Month: February 2017

AG MENGOZZI’S OPINION ON GRANTING VISAS TO SYRIANS FROM ALEPPO: WISHFUL THINKING?

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG  HERE

By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf 

Introduction

The opinion of AG Mengozzi in the case of X and X v. Belgium, so far only available in French, has created quite a stir throughout the European Union. In a nutshell, the AG found that, when third country nationals apply for a visa with limited territorial validity (‘LTV’) under Article 25 of the Visa Code with the aim of applying for international protection once they have arrived in a Member State’s territory, the Member State’s immigration authority should take the circumstances of the applicant into account and assess whether a refusal would lead to an infringement of the applicant’s rights as protected by the Charter of Fundamental Rights. Although the AG makes an effort to cover all the arguments brought up by the parties, this blogpost focuses mainly on the issues directly related to the margin of discretion left to the Member States by Article 25(1) of the Visa Code.

Although an AG’s opinion is not binding on the Court, it is widely acknowledged and documented that opinions do indeed influence the Court’s decision in a majority of cases. If the Court were to follow the opinion of AG Mengozzi in this particular case, this could have a serious impact on the legal landscape and context of EU immigration and asylum law. Coming at a time in which migration and asylum are topics often used to manipulate the political opinion of the electorate both in Europe and in the world, the opinion could serve as a wake-up callas it recalibrates the EU’s migration and asylum policy on the fundamental values it is constructed on: respect for human rights and obligations stemming from international treaties.

However, in the light of the ongoing and already difficult negotiations on the future of the Common European Asylum System (‘CEAS’), this time it is more likely that the Court will find it opportune to come to a conclusion that diverges from the AG’s Opinion with regard to some of the legal aspects of the case.

Facts of the case legal framework and questions referred to the Court

On 12 October 2016, a Syrian family of 5 (two parents and three small children) living in Aleppo applied for a visa with limited territorial validity ex Article 25(1) of the EU Visa Code at the Belgian embassy in Beirut (Lebanon). On their application form, they state that the aim of their trip is to apply for asylum once in Belgium, as their situation was untenable as an Orthodox Christian family in a city occupied by ISIS. The family then returned to Aleppo and waited for the decision on their visa application. Shortly after their return, the Syrian border with Lebanon was closed; it remained closed during the procedure as described below.

On 18 October 2016, the Belgian Aliens’ Office (the ‘Office’) refused the visa application based on Article 32(1)(b) of the Visa Code. The Office held that the family clearly had the intention to stay on Belgium’s territory after the expiry of the visa they applied for since they had specified that they would apply for asylum once in Belgium. The visa application would therefore fall under Belgian national law, according to the Office. It further held that neither Article 3 ECHR nor Article 33 of the 1951 Geneva Convention on the Status of Refugees provides for an obligation to admit foreigners on the territory of the States party to the Convention, even if these foreigners live in ‘catastrophic circumstances’, but that these articles merely provide for a prohibition of ‘refoulement’. According to the principle of non-refoulement, States party to the Convention may not remove a person to another State if the person concerned faces a real risk of being persecuted or subjected to torture or to inhuman or degrading treatment in the country to which he is returned. The Office argued that this principle only applies to persons that are already within the Belgian (territorial) jurisdiction. It also argued that Belgian law does not allow its diplomatic posts to accept applications for international protection from third country nationals, and that granting a visa to the applicants in order for them to apply for international protection once on Belgian soil would circumvent the limitation of the competences of the Belgian diplomatic posts.

The Syrian family appealed to the Belgian Asylum and Immigration Board (the ‘referring Court’), arguing that Article 18 of the Charter (Right to Asylum) obliges the Member States to ensure the right to asylum, and that granting international protection to the applicants is the only way in which the Belgian authorities can avoid the risk of an infringement of Article 3 of the ECHR which corresponds to Article 4 of the Charter. The applicants further argued that the Aliens’ Office had erroneously not taken Article 3 ECHR into account in the assessment of their visa application, and that if it had done so, it should have come to the conclusion that the conditions for a visa with limited territorial validity based on Article 25 of the Visa Code are met.

The referring Court considers that the application of Article 4 of the Charter, according to Article 51 of the Charter, solely depends on the application of EU law by Member States’ authorities, a condition that is fulfilled when they assess a visa application according to the Visa Code.

It is within this framework that the referring court asked for guidance as to the margin of discretion left to the Member States in their decisions based on Article 25(1) of the Visa Code, taking into account the article’s reference to international obligations and in the light of the Charter.

Opinion of AG Mengozzi

The main issue at stake

AG Mengozzi was thus confronted with the task to assist the CJEU in the interpretation of Article 25(1) of the Visa Code, and more specifically in answering the question of whether Member States’ immigration authorities may refuse an application for a visa with limited territorial validity under Article 25(1) of the Visa Code if this application is made in order to apply for asylum on arrival in the Member State.  The Belgian government, supported by the Commission and a number of Member States that joined the hearing on 30 January 2017, argued mainly that the visa application falls under Belgian national law, as the application should be regarded as having been made for a stay for more than three months – thereby excluding the application of the Visa Code. The argument is that the Belgian migration authorities are therefore not bound by the Charter of Fundamental Rights. Other relevant international treaties do not impose an obligation on States to allow foreigners to enter their territory in order to apply for international protection.  For the same reason, the Court is also not competent to look into the questions referred to it. In his Opinion, analyzed in detail below, the AG disagrees with the Belgian government, and concludes that because of the applicability of the Visa Code the applicants fall within the scope of the Charter. The Charter, according to the AG, does not allow Member States’ authorities to refuse an application for a visa with limited territorial validity if such a refusal would lead to the applicants’ running a substantial risk of having their rights, as guaranteed by the Charter, infringed upon in their country of residence.

Applicability of the Visa Code to visa applications that will lead to stays longer than 3 months

In his opinion of 7 February 2017, AG Mengozzi deals with the issues of the competence of the Court and the applicability of the Charter jointly. He first finds that X and X applied for a visa with limited territorial validity for a stay not exceeding three months in accordance with the Visa Code. The AG further points out that  during the whole of the application procedure the Belgian authorities assessed the application under the Visa Code, that the authorities based their decision on Article 32(1)(b) of the Visa Code and that their decision to refuse the application was composed according to their own ‘decision form for short stay visas’.  The AG concludes that it was therefore clear to all that the application was regarded as an application for a short stay visa in accordance with the Visa Code.

Contrary to what several Member States had argued before the Court, the AG highlights that nothing in the Visa Code justifies a conclusion that the applicants’ intention to apply for asylum once on Belgian territory could change either the nature or the subject of their application, or transform the application into an application for a stay longer than three months. For the same reason, the AG disagrees with the Belgian government that it is not possible to apply for a visa with limited territorial application, and he further underpins his position by pointing out that the standard application form annexed to the Code refers to ‘Schengen visa’ without making any distinction between the types of visa that can be applied for. Furthermore, the 21st question of the application form asks the applicant to specify the reasons for the journey. This question in principle allows for the applicant to motivate his application with a wish to apply for asylum in the Member State he intends to travel to. In any case, according to the AG, even if the Visa Code did not allow for an application for a visa with limited territorial application, the fact that the applicants applied for a visa that is regulated in the Visa Code automatically guarantees the application of the Charter.

Applicability of Article 25(1) of the Visa Code

With regard to the applicability of Article 25 of the Visa Code, the Belgian government also argued that this Article only allows Member States to derogate from the imperative reasons to refuse a visa as listed in Article 32(1)(a), and not if there are reasonable doubts as to the intention of the applicant to leave the territory of the Member State before the expiry of the visa applied for as stipulated in Article 32(1)(b). However, AG Mengozzi’s analysis of the wording of Article 25(1) of the Visa Code leads to the exact opposite conclusion, as he points out that this article allows the Member States, among others, to issue a new visa during the same six-month period to an applicant who has already used a visa allowing for a stay of three months during that six-month period. Therefore, Article 25(1) allows Member States’ authorities to issue a LTV, even if they have serious doubts as to whether the applicant will leave the territory after the expiry of the visa or if other reasons to refuse a visa as listed under Article 32 exist. This is also in line with the Commission’s Handbook the AG already referred to. The AG thus concludes that Member States must assess an applicant’s appeal to Article 25 of the Visa Code, even in cases in which they find reasons to refuse an application for a visa according to Article 32.

Furthermore, the applicants’ extended stay in Belgium would not be based on the initial visa that allowed them to enter Belgian territory, but on their status as applicants for international protection in accordance with Article 9(1) of Directive 2013/32. The applicants’ intentions to stay longer than three months could therefore at the very most be regarded as a reason to refuse a visa in accordance with the Visa Code, but it could certainly not be a reason for the non-application of the Code (and as a consequence thereof, the non-applicability of the Charter). The AG continues that this is exactly the question that lies at the heart of this case: Can Member States refuse visas with limited territorial application in cases such as the one at hand considering the reference Article 25 of the Visa Code makes to obligations under international law?

The scope of the Charter of Fundamental Rights

The AG thus turns to answering the questions referred to the Court. According to the AG, the ‘international obligations’ mentioned by Article 25 of the Visa Code do not include obligations stemming from the Charter of Fundamental Rights of the EU. However, due to Article 51 of the Charter Member States’ authorities are bound by the Charter when applying EU law, such as the Visa Code or Regulation 539/2001, which lists the third countries whose nationals must be in possession of visas when crossing the external borders of the EU. Therefore, the Belgian migration authorities were bound by the Charter when deciding on X and X’s application for a visa with limited territorial application under Article 25 of the Visa Code, even if this Article grants a margin of discretion to the said authorities. Here, the AG refers to the Court ruling in the case of N.S. and others, and the Handbook for the processing of visa applications and the modification of issued visas, published by the Commission in 2010.

The AG also is of the opinion, contrary to what the Belgian government argued based on Article 52(3) of the Charter, that the territorial limitation of Article 1 of the ECHR should not be applicable to the Charter, as the aim of Article 52(3) of the Charter is to guarantee a minimum standard of protection by referring to the ECHR, whereas it also clearly states that this minimum standard does not prevent Union law from providing a more extensive protection. Furthermore, the AG repeats that Article 51 of the Charter clearly defines that the provisions of the Charter are addressed to the institutions and bodies of the EU and to the Member States when they are implementing EU law. Finally, the AG also argues that even if the Charter had a limited application in general, Article 4 of the Charter is drafted in such a way as to provide for a universal application. The AG therefore finds it unnecessary to delve further into the content of the ‘international obligations’ referred to by Article 25(1) of the Visa Code, and continues to analyze the discretion of the Member States under that Article in the light of the Charter.

Member States’ margin of discretion under Article 25(1) of the Visa Code

AG Mengozzi then admits that Article 25 of the Visa Code leaves a certain margin of discretion to the Member States in their assessment of the arguments the applicant has brought forward in his appeal to Article 25. To the AG, it is clear that the applicants’ situation is one that justifies the issuance of a visa with limited territorial validity on humanitarian grounds. However, in case the Member State would not agree, the AG specifies that, since the Member States are applying EU law when assessing an appeal to Article 25 of the Visa Code, their discretion is limited by Union Law. Thus, according to the AG, a Member State has to assess whether the refusal to issue a visa under Article 25 of the Visa Code leads to an infringement of its obligations under the Charter. As the referring court has asked for guidance on the interpretation of Article 25 of the Visa Code in the light of Article 4 of the Charter, the AG then analyses the scope and content of Article 4 of the Charter in the light of the case law of the ECtHR on Article 3 ECHR (Mahmut Kaya v. Turkey, El-Masri v. Macedonia and Nasr et Ghali c. Italie). This leads the AG to conclude that the Member States are under a positive obligation to take reasonable measures to prevent the materialization of a risk of torture or inhuman or degrading treatment of which they know or of which they should have known. Therefore, Member States’ authorities must inform themselves with regard to the situation in the country of origin of an applicant before deciding to apply one of the reasons for refusal of a visa as listed under Article 32(1). The AG points in the direction of official EU sources such as the Commissions ECHO factsheet on the crisis in Syria and other countries that are in a dire situation, but also to reports published by NGOs working in the field as sources of information that need to be taken into account by the Member States’ authorities in taking a decision under the Visa Code.

Practical implications for the application of X and X

In this particular case, the AG finds that a refusal to issue a visa with limited territorial validity will expose the applicants to a substantial risk of having their rights as protected by Articles 1 (right to human dignity), 2 (right to life), 3 (right to the integrity of the person), 4 (prohibition of torture and inhuman and degrading treatment), and 24(2) (the child’s best interest) of the Charter. He also points out that the Belgian authorities were aware of the apocalyptical or ‘catastrophic’ situation in Aleppo, according to the file sent in by the referring court. The argument of the Belgian authorities that the applicants could have applied for international protection in Lebanon is parred by the AG by referring to the decision of the Lebanese government to suspend the registration of newly arriving asylum seekers in the autumn of 2015 – a decision that was still in place when the Belgian authorities took their decision. Furthermore, the situation of asylum seekers or refugees living in the neighboring countries of Syria are reported to be disastrous and their standard of life far below the minimum standards foreseen in applicable international human rights law instruments. The AG therefore concludes that the refusal of the Belgian authorities to issue the applicants with a visa of limited territorial validity infringes Article 4 of the Charter.

Comment

To sum it up, AG Mengozzi argues that Member States’ immigration authorities’ discretion under Article 25(1) of the Visa Code is limited by the Charter of Fundamental Rights. If the authorities have substantial reasons to believe that the refusal of an LTV will expose an applicant to torture or to inhuman or degrading treatment or punishment, they are obliged to issue an LTV.

AG Mengozzi’s compelling Opinion, which he bases not only on standing case-law (not only of the ECtHR but also of the CJEU in recent cases like Koushkaki, Aranyosi and Căldăraru or Petruhhin), gives hope to those who live in truly untenable circumstances but who are unable to reach an EU Member State’s territory in order to file an application for international protection. At a time in which some of the Member States have a 98% recognition rate for Syrian asylum seekers from Aleppo, denying protection to those who would like to file an application for international protection but who are unable or unwilling to try and reach Europe’s shores by crossing the Mediterranean in a dinghy, any other conclusion would have raised serious doubts with regard to the EU’s commitment to refugee and human rights law.

This is not to say that it is probable that the Court will simply rule that because of the applicability of the Charter to visa applications made in accordance with the Visa Code, Member States are under an obligation to issue LTVs to third country nationals who want to come to any EU Member State to file an application for international protection. Not only would such a ruling in the current political climate be unfeasible, it would also be contrary to applicable EU asylum law, as the AG also mentions in his Opinion.

A decision of this nature would endanger the functioning of the Dublin system, as asylum seekers in desperate situations could simply file a visa application anywhere in the world, which would then have to be accepted if there is a risk of a violation of article 4 of the Charter. As, according to article 12(2) of the Dublin regulation, the possession of a valid visa triggers the respective State’s responsibility to treat the asylum claim, this means that ‘asylum shopping’ (i.e. choosing the country which suits you best) would become possible again. It is unlikely that the Court would expose the Common European Asylum System to the risk of a collapse – especially not at a time in which all of the EU’s efforts are directed at saving the already failing system, instead of trying to find an alternative that would work. Such an interpretation could further instigate EU Member States to close down their consulates and embassies in areas with a high risk of conflicts and persecutions.

However, it should be possible for the Court to strike a balance between the two interests. If it formulated its ruling in such a way as to highlight the exceptionality of the circumstances that would force Member States to apply Article 25(1) of the Visa Code to issue LTVs despite the fact that there might be reasons to refuse a visa according to Article 32 of the Visa Code, the EU would honor its obligations under international and European refugee and human rights law, without endangering the functioning of the CEAS. Such a ruling would boost the image of the EU as an advocate of human rights, an image that has been seriously battered by many of the recent EU actions in this policy field.

No doubt Member States will argue that such a ruling would ‘open the floodgates’ and paralyze the already strained asylum systems of the Member States. However, until the European Union has created effective legal pathways to Europe, as it has obliged itself to do, people in need of international protection will continue trying to use other ways to save themselves and their loved ones – whether the Member States like it or not.

 

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The Ever-expanding National Security State in Europe: the Case of Poland

by Luigi LIMONE (*)

One of the most alarming developments across the European Union is the effort by States to make it easier to invoke and prolong a “state of emergency” as a response to terrorism or the threats to violent attacks. Emergency measures, which are generally supposed to be temporary, have become embedded in ordinary criminal law. Parliaments across the European Union are adopting a number of coercive measures in fast-truck processes, leaving little time for consideration on their impact on human rights and civil liberties.

In compliance with international human rights law, exceptional measures should only be applied in genuinely exceptional circumstances and, as stated by Article 15 of the European Convention on Human Rights (ECHR), “in time of war or other public emergency threatening the life of the nation”.

Nevertheless, phenomena such as the rise of nationalist parties, anti-refugee sentiment, stereotyping and discrimination against Muslims communities, intolerance for speech or other forms of expression, risk that this “emergency measures” will target certain people for reasons which have nothing to do with a genuine threat to national security or from terrorist-related acts.

Up to now, France is the only EU Member State to have formally declared a state of emergency on national security grounds for terrorism-related acts on the last couple of years. However, other Member States have passed laws in fast-track processes and engaged in operations in response to real or perceived security threats. A clear example comes from Austria and Hungary, which have recently invoked the threat of terrorism in the context of the refugee crisis with profoundly negative impact on the right to seek and enjoy asylum in Europe.

One of the countries which is currently attracting the attention of several NGOs working in the field of human rights protection is Poland. Several cases of human rights violations as well as dismantlement of the rule of law have been reported since the Law and Justice (Prawo i Sprawiedliwość) party came to power in October 2015.

In June 2016, Poland enacted a new Counter-terrorism Law following a fast-track legislative process. This law consolidates sweeping powers in the hands of the Internal Security Agency (ISA) and, combined with other recent legislative amendments, it creates conditions for violations of the rights to liberty, privacy, fair trial, expression, peaceful assembly and non-discrimination.

The new Counter-terrorism Law gives a broad and vague definition of terrorism which paves the way for: a) the expansion of indiscriminate mass surveillance powers; b) the targeting of foreign nationals; c) the extension of pre-charge detention.

According to Amnesty International, such an ill-defined and imprecise definition allows for disproportionate interference with human rights as well as arbitrary application and abuse.

The UN Human Rights Committee recommended in October 2016 that a definition be adopted that “does not give the authorities excessive discretion or obstruct the exercise of rights”.

The Counter-terrorism law includes provision for the Director of the Internal Security Agency to order the immediate blocking of specific websites with no prior judicial authorization if he or she considers that a delay could result in “terrorist incident”. Such a provision compromises the right to freedom of expression, including the right to seek, receive and impart information.

Freedom of peaceful assembly is also under threat under the new Counter-terrorism Law.

The Law, in fact, establishes a terror alert system which, if it reaches the level of three or four, allows the authorities to ban assemblies and large-scale events in particular locations.

The lack of transparency in the operation of the alert system, together with the vague definition of terrorism, could result in violations of the right to peaceful assembly and freedom of expression. As a result, the terror alert system could be used by the government as an excuse to ban peaceful public protests against its policy on a wide range of issues, including abortion or Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) rights.

Foreign nationals in Poland are particular targets of the new Counter-terrorism Law. They can be subjected to a range of covert surveillance measures, including wire-tapping, monitoring of electronic communications and surveillance of telecommunication networks and devices without any judicial oversight for the first three months.

Such surveillance is permitted if there is a “fear” that a foreign national may be involved in terrorism-related activities. In addition, the Law does not provide procedural safeguards to ensure that anyone made aware of surveillance can challenge it and have access to an effective remedy against unlawful surveillance. It also impacts Polish citizens who communicate or live with foreigners under investigation.

Poland’s new Counter-terrorism Law also provides for 14 days of detention without charge of people suspected of “terrorist crimes”. Since such detention measures can be adopted on the basis of information obtained through the broad surveillance powers given to the executive, the suspects and their lawyer may be denied access to the evidence upon which the pre-charge detention is based. Given the fact that the new surveillance powers primarily target foreigners, such measures could discriminate against non-nationals and have a disproportionate impact on foreign individuals, their families and communities.

Furthermore, the situation in Poland appears very critical when it comes to criminal law and to protection from discrimination and hate crimes in particular. While the country has made some progress in addressing hate crimes against certain groups, it has left others entirely behind, thus creating a double system and a significant protection gap in law as well as in practice.

Polish criminal law provides for the investigation and prosecution of hate crimes motivated by race, ethnicity, nationality, religion and political affiliation. However, it does not establish that age, disability, gender, gender identity and expression, sexual orientation and social or economic status are grounds to investigate and prosecute hate crimes.

As stated in a report published by Amnesty International in September 2015, members of ethnic minorities, refugees, asylum-seekers and migrants continue to experience discrimination and violence in practice. In addition, transgender and intersex people are not explicitly protected from discrimination on grounds of gender identity and expression, and protection on the grounds of disability and religion is limited as well.

The situation is particularly crucial with regard to discrimination motivated by gender identity as well as expression and sexual orientation. LGBTI people are not sufficiently protected, as demonstrated by the huge number of homophobic and transphobic hate crimes. As far as women and girls are concerned, they continue to face obstacles in accessing legal and safe abortion and frequent cases of sexual harassment and rape are still being reported.

The current legal framework governing abortion in Poland is one of the most restrictive in Europe with terminations legally permitted only when the life of the foetus is under threat, when there is a grave threat to the health of the mother and in the instance that the pregnancy resulted from rape or incest.

A new bill proposing to further restrict sexual and reproductive rights was submitted to Parliament on 5 July 2016. The restrictive measure is intended to ban abortion in all circumstances except for when it is considered to be the only means available to save a woman’s life. It would also criminalize women and girls who are found to have obtained abortion as well as the people encouraging or assisting them to do so.

Following mass protests and women’s strikes, the bill has been eventually rejected but the government, supported by the Polish Catholic church, has announced that it is considering other restrictions, including a total ban of emergency contraception and of the morning after-pill in particular.

In conclusion, significant deterioration in several areas has been observed since the Law and Justice party’s assumption of power in October 2015. A total of 148 new laws and legislative amendments have been enacted since then, which have led to serious violation of several fundamental rights enshrined in international human rights treaties, including the right to life, health and freedom from torture and other inhuman or degrading treatment as well as the right to privacy, information, equality and non-discrimination.

(*) FREE Group Trainee

Sources:

– Dangerously Disproportionate: The Ever-expanding National Security State in Europe, by Amnesty International, 17 January 2017, Index number: EUR 01/5342/2017

– Poland: Submission to the United Nations Human Rights Committee – 118th session, 17 Oct.-04 Nov. 2016, Index number: EUR 37/4849/2016

– Poland: Dismantling Rule of Law?, Amnesty International Submission for the UN Universal Periodic Review – 27th Session of the Upr Working Group, April/May 2017,  EUR: 37/5069/2016

 

As Bad as it Gets: the White Paper on Brexit

Original from EU LAW ANALYSIS 

Professor Steve Peers

Yesterday (February 2,2017)  the UK government released its White Paper on Brexit. This tome was reluctantly extracted from the government after months of prompting, but is in the end enormously disappointing: the political equivalent of a cat coughing up a hairball.

As many had expected, the white paper is basically content-free. It’s essentially Theresa May’s recent speech (which I analysed here), in some cases word-for-word, with a few statistics and graphs added. But even this information refers back to the status quo, and in some cases is inaccurate (a graph suggested British workers get 14 weeks’ paid holiday a year, before it was corrected), out-of-date (the 2011 statistics on UK citizens resident in the EU), or only partial (the migration statistics omit Irish people in the UK, and vice versa).

There’s no proper analysis of different options relating to the UK’s post-Brexit future, with assessments of their relative pros and cons. But then there couldn’t be: the White Paper says little of substance about the very existence of those options. David Allen Green has pointed out that the initial version of the document was time-stamped at about 4am, giving the strong impression it was written overnight by an intern working to a deadline in a student-like coffee-fuelled flurry.

Detailed comments on the White Paper

The paper begins with a collection of sentence fragments from the Prime Minister, centring on the bizarre claim that 65 million people are “willing” Brexit, simply ignoring the 48% who voted against it. By and large, it goes downhill from there.

Having said that, there is a little bit of detail on plans for the ‘Great Repeal Bill’ (previously discussed here and here), which will convert existing EU law into UK law. This White Paper confirms that there will be a further White Paper on that Bill. The latter Bill will retain EU Regulations in UK law, not just EU Directives, which are referred to implicitly (as “all laws which have been made in the UK, in order to implement our obligations as a member of the EU”).

This is an important legal point because by their nature as defined by EU law, Directives have anyway been implemented as part of UK law already. Regulations usually have not, and so would vanish unless some steps were taken to retain them. (Regulations are more commonly used in areas which EU law has more fully harmonised, whereas Directives usually apply in areas where there is less harmonisation).

Interestingly, the White Paper says that the ex-EU law should be interpreted post-Brexit “in the same way as it is at the moment”. This suggests that the case-law of the EU courts will continue to be relevant, even though those courts are loathed by many Brexiteers. It remains to be seen exactly how this approach to interpretation will be secured outside the EU; the most obvious route is to insert language to this effect in the Great Repeal Act. There’s a weasel word which isn’t further explained (“Generally”), and two obvious questions aren’t answered: what about post-Brexit EU case law, and what about EU legislation which is amended after Brexit?

After Brexit, it will be up to the UK to amend ex-EU law. But who will have the power to do this? There’s a little bit of detail about this key question. Any “significant policy change” will be the subject of an Act of Parliament, which means that the House of Commons and the House of Lords will have a full debate and every chance to table amendments or block the government’s plans. There will be Bills on customs and immigration, “for example”.

But there is also a commitment to a “programme of secondary legislation”. This refers to various methods of the government making laws, with limited power of Parliament – usually only one chance to examine the draft law briefly, with no chance to amend it. The White Paper refers to this as “oversight”, but it’s not very substantial. By process of elimination this is how the government will make changes to other areas of ex-EU law, besides customs and immigration – environment and employment law, for example. The White Paper says it wants to remove “deficiencies” in the ex-EU laws; but one woman’s “deficiencies” are another woman’s clean beaches.

Next, the section on “taking control” of UK laws starts with the remarkable statement: “Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.” The Supreme Court’s Miller judgment indeed recently confirmed that Parliamentary sovereignty did not vanish while the UK was an EU member, since the effect of EU law in the UK was dependent on Parliament’s decision to keep the European Communities Act in force, Parliament could have insisted on blocking the domestic effect of any EU law by expressly deciding to keep Acts of Parliament conflicting with that EU law in force.

But let’s step back from the legal details. This is an astonishing statement. One of the best-known slogans of the ‘Leave’ side in the referendum was ‘take back control’. Yet it’s conceded here that we already had control. The problem is the feeling that we didn’t have it.

So…what prompted that feeling? Could it be the consistent lie that EU law is adopted by ‘unelected bureaucrats’, which is a simple falsehood about the nature of EU law-making? (As discussed here, EU laws are jointly adopted by national ministers and the elected European Parliament; the UK votes in favour of proposed laws over 90% of the time). Needless to say, the White Paper doesn’t refer to that fact. Rather it overstates the impact of EU law in the UK, by means of a dodgy statistic which includes ‘soft law’ (non-binding measures like Recommendations, Communications, Reports and Opinions) in the total number of EU documents sent to Parliament.

Next, the White Paper points out correctly that there is no need for the EU courts to have jurisdiction over agreements between the UK and the EU. Indeed, the EU rarely asks for this with other countries (although the EU courts do rule on how such treaties should be interpreted by the EU). I’ve always suspected this focus on the EU courts is a red herring – so that the UK government can declare a ‘victory’ by resisting something that the EU might not even ask for.

Moving on to devolution, the White Paper details various means of talking to the devolved administrations – ignoring the simple fact that the government has already ruled out following any of a number of options (discussed here) which the Scottish government presented in December.

There’s a special section on Northern Ireland, listing facts but not giving any idea of how reinstating border checks between the Irish Republic and Northern Ireland can be avoided. I’ve referred before to Brexiteers’ apparent belief in a ‘Brexit Fairy’ who will magically solve all problems which Brexit might create. The Irish border issue seems to be a task for her culturally-appropriating cousin: the Brexit Leprechaun.

In passing, this section refers to the common belief that the status of Irish citizens in the UK is guaranteed by the Ireland Act 1949. As far as immigration status is concerned, this is questionable, as detailed here by Professor Bernard Ryan.

Next, the White Paper deals with immigration, referring to “public concern about pressure on public services, like schools and our infrastructure, especially housing, as well as placing downward pressure on wages for people on the lowest incomes.” There’s a mysterious absence of statistics to back up these claims, perhaps because they are shaky: see this recent summary of economic literature on migration, by Professor Jonathan Portes. But who needs evidence, when we can just poke a finger down Nigel Farage’s throat? And if public services are so badly affected by EU migration, why no mention of the famous £350 million/week which would be supposedly made available for the NHS?

It’s striking that this section refers to possible ‘phased implementation’ of new rules on immigration of EU citizens. This seems to be the euphemism for an interim agreement with the EU – which would presumably entail retaining a limited version of free movement of people for a time. The issue is likely to be a key bargaining point in negotiations.

The next section deals with existing UK/EU migrants. The government repeats its mantra that it wants to secure their status, but there are no specifics on what “securing status” means. The banality of political waffle could not be waived to suggest anything more concrete for millions of people worried about their future. (For detailed suggestions on this issue, see the recent British Future report, discussed here).

Moving on to employment rights, the White Paper repeats a government promise to retain EU employment protection. But as I noted above, there’s no mention of safeguarding those rights by means of needing an Act of Parliament to amend them. As others have pointed out, there are weasel words here: “strengthening rights when it is the right choice for UK workers” and “maintain the protections and standards that benefit workers” (emphases added). There’s a definite “fox in charge of the henhouse” vibe here – quite literally so, if we remind ourselves of cabinet minister Liam Fox’s attitude to EU employment regulation.

This section includes the usual assertions about UK employment law being better than the EU version. This is true in some ways, and there are some issues that EU law has nothing to do with (for instance, the minimum wage, which the White Paper rambles on about). Yet, as I discuss in detail here, there are a number of areas where EU case law extended workers’ rights in the UK: holiday pay for UK workers with fixed term contracts, who are on commission or have extra allowances, to take just one example.

Moving on, the section on trade and economic cooperation re-iterates the intention to sign a free trade deal without considering the relative advantages of staying part of the single market. There are wildly empty statements about future EU/UK cooperation. The government wants “civil judicial cooperation” to continue with EU. But in which areas? (There are general EU rules on civil and commercial judgments, but also specific rules on insolvency, recognition of divorce and child access rulings, and maintenance payments).

Similarly, the White Paper lists many EU economic laws, but which would the government like to remain part of: competition law? The EU trademark? The unitary patent? EU data protection law? (On the latter issue, where there is a particular risk of disruption to trade flows if the UK does not retain laws nearly identical to the EU’s, see my discussion here).

The discussion of Euratom, the atomic energy treaty linked to the EU, implicitly suggests that the UK energy industry would benefit from a cooperation agreement with Euratom post-Brexit (see further discussion here). But the government is unwilling to say so, due its general paranoia about revealing its intentions. Yet even Homer Simpson – the world’s most famous employee of the nuclear industry, but also the dumbest – could guess the UK’s negotiating plans here.

Equally, the White Paper supplies interesting statistics on the usefulness of EUcriminal and policing laws, and asserts the government’s continued interest in playing a role in EU foreign and defence policy. Yet again, there’s no detail on what the UK would like to participate in. (Some further comments on the criminal law and policing issues here).

Overall, the White Paper is largely devoid of content because the UK government’s concern about negotiating secrecy. While of course some of the government’s position needs to remain confidential, I have to point out that treaties aren’t negotiated with actual playing cards. They are negotiating by tabling draft texts – and so the EU is bound to see what the UK is asking for, once talks start.

The government may in fact be concerned about a different issue: being embarrassed in front of the British public, by asking for things it doesn’t get. But here, it’s being a little naïve. In my experience, officials from the EU and its Member States love to talk. And little birds leak a regular flow of EU documents to the Statewatch website. Even if UK officials keep as quiet as mice, the EU side will sing like canaries.

Finally, the “we can’t show our cards” argument reminds me of a rather relevant anecdote. Years ago, in the dying days of the Soviet Union, I went on a trip to Moscow as a member of the university debating club. After several days there, our stomachs were rumbling from the effect of central economic planning upon the supply of edible food. So some of us took refuge for the evening in the Canadian embassy, where there was decent grub and beer. (We’d drunk…enough vodka by that point).

Following a frenzied supper, we started to play cards. We’d never played cards with each other before, so didn’t know what to expect. One of my friends kept on asking the dumbest, most basic, questions about the rules of the game. At one point he even showed one of the cards in his hand to all of us, asking “So what should I do with this? Is it a good card?” Everyone laughed, and no one took him seriously as an opponent. At the end of the game, lo and behold, he had the best hand by far, and won easily. It turned out he knew the rules perfectly well, and his pretence of complete ignorance had been a perfect bluff.

Well…everyone in Britain had better hope that this is exactly the government’s real Brexit strategy. The horrifying alternative is that the government really is as dumb as it looks.

 

Foreign fighters’ helpers excluded from refugee status: the ECJ clarifies the law

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

What if a person claiming to be a refugee is an alleged terrorist, or at least giving assistance to alleged terrorists? Can they still claim to be a refugee – and if not, how should we define ‘terrorism’ for the purposes of rejecting their claim to be one? Today’s judgment of the EU Court of Justice in the Lounani case usefully clarifies some aspects of this controversial and legally complex issue, but inevitably leaves some difficult questions open.

Legal framework

The starting point for this issue is the wording of the UN Refugee Convention, known by the EU as the ‘Geneva Convention’, which contains an ‘exclusion’ clause in Article 1.F:

  1. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The UN rules (which all EU Member States have signed up to) have been transposed, but with variations, in the EU’s Qualification Directive, which applies to every Member State except Denmark. (Technically the UK and Ireland are bound only by the first version of this Directive, but the rules on exclusion haven’t changed).  Article 12(3) of that Directive reads as follows:

  1. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

  1. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.

It can be seen that the EU rules differ from the UN rules to the extent that: they add some wording on the timing and nature of ‘serious non-political crimes’; they clarify the reference to acts contrary to UN ‘purposes and principles’; and they apply the exclusion to those who ‘incite or otherwise participate’ in all three categories of acts leading to exclusion.

Despite this attempt at clarification, there will always be issues of interpreting these rules. The EU Court has ruled on them once before, in its judgment in B and D, when it stated that first of all that the second and third exclusion clauses can apply to terrorist offences.  However, exclusion must be assessed in each individual case, meaning that membership of a group listed as ‘terrorist’ in EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause, although it is a ‘factor’ to consider. Participating in a terrorist group, as defined by EU criminal law on terrorism, does not automatically trigger the exclusion clause either. Instead, there must be direct involvement by the person concerned in such offences, as further explained by the Court. Furthermore, there is no additional ‘proportionality’ or ‘present danger’ test for exclusion. Finally, the exclusion clause is mandatory: ie Member States cannot assert a right to apply higher standards and give someone refugee status if they fall within the exclusion criteria.

The judgment

What does today’s judgment add? The person concerned was convicted of participating in a terrorist group, but not of carrying out any terrorist acts as such. So is such a conviction sufficient to trigger the exclusion clause?

The EU court ruled that it was. First of all, the preamble to the EU Directive referred to UN Resolutions on ‘financing, planning and inciting’ terrorism; so the third exclusion clause goes beyond terrorist acts as such. Secondly, the EU legislature had not intended to match the exclusion clause in asylum law with the narrower definition of terrorism in (current) EU criminal law legislation.

Next, the EU court ruled that following a later UN Security Council Resolution, assisting with recruitment, organisation or transport of ‘foreign fighters’ could also fall within the scope of the exclusion clause. So could ‘participation’ in such activities, pursuant to Article 12(3) of the EU Directive. It was relevant that the group in question was listed as terrorist by the UN Security Council, and particularly relevant that the person concerned had been convicted of terrorist offences in Belgium.

Comments

The Court’s judgment asserts a broad scope of the exclusion clause, meaning that a degree of support for ‘foreign fighters’ will also result in exclusion from refugee status. In doing so, it answers the claims of those who believe that many refugees are ‘jihadists’. Simply put, anyone who has been directly involved in terrorist acts (B and D) or in facilitating the activities of ‘foreign fighters’ (today’s judgment) is not entitled to refugee status. Although the judgment does not mention it, this aligns the interpretation of the exclusion clause to some extent with recent developments in criminal law, namely the 2015 Protocol to the Council of Europe Convention on the prevention of terrorism, and the agreed revision of the EU’s anti-terrorism laws.

But the judgment cannot help leaving some difficult questions open. What if the asylum-seeker has not been convicted of terrorist offences anywhere, but there are allegations of such action? Since a conviction is particularly relevant to applying the exclusion clause, would a lack of such conviction conversely be particularly relevant in determining that the clause should not apply? Would that assessment be different if the person had been acquitted, or if an investigation or trial was pending? If the criminal law process was pending, should the asylum determination process be put on hold? What if the authorities had claimed to have information supplied from the security services, and were reluctant to bring criminal proceedings in order to preserve their sources and intelligence capability?

What if there is a criminal conviction for terrorism from another country – particularly in the asylum-seeker’s country of origin, which might define criticism of the government as ‘terrorism’? Similarly what about ‘provocation’ to terrorism, which might include ‘glorification’ of terrorist acts, according to the revised EU criminal law? Here the question is to what extent freedom of expression, not directly connected to violent acts, might justify a refusal of refugee status. Recent acts remind us that as far as criminal law is concerned, terrorist acts – and the climate of hatred that surrounds them – are not confined to Islamist extremists, but stem also from those who fanatically hate minority groups as well.