Parliamentary Tracker: Revision of Dublin, Qualification Directive, Refugees situation in Greece, EASO reform.. (LIBE debates on March 9,2017)

by Luigi LIMONE (Free-Group Trainee)

Main Points on the Agenda
MEETING DOCUMENTS ARE ACCESSIBLE HERE

REVISION OF DUBLIN REGULATION (Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) – Presentation of the draft report by rapporteur Cecilia Wikström.

According to the EP Rapporteur Cecilia Wikström (ALDE – Sweden), the Dublin system has collapsed and the current reform gives the European Parliament the possibility to have a rethinking of the whole system. She underlined four main points to accomplish such a reform:
a) every member state has to participate in the system;
b) the management of external borders has to be reformed;
c) applicants’ secondary movement has to be reduced;
d) the system needs to earn applicants’ trust, with regard to information and access to fair asylum procedures in particular.

Cecilia Wikström said that the proposal should be based on solidarity and not on ad-hoc  emergency measures. The European Union needs a pragmatic and practical mechanism to relocate applicants in Europe, as well as the introduction of the principle of shared responsibilities among Member States.
One of the key points of her draft report deals with admissibility in the first country of arrival:  admissibility check procedures prior to the establishment of the Member State responsible, as proposed by the Commission, would imply introducing an unreasonable new additional burden on frontline Member States.
She also proposed simplified procedures for family reunification and the possibility for applicants to be registered as a group in case there are some connections, for example language, ethnic origin and so on.  The latter provision would enable Member States to relocate those people as a group, thus reducing the costs for translation, simplifying the procedures for relocation and limiting secondary movement.
She also proposed a transitional system as far as the distribution quotas are concerned: for the first period, those Member States who are new to the migratory phenomenon will receive less migrants, in order to become familiar with refugee reception and asylum applications.
She then highlighted the importance of a strong link between the relocation system and the protection of external borders. An efficient relocation system would reduce the burden on frontline Member States. With this respect, she proposed the introduction of sanctions, such as an interruption of structural funds, for those Member States which do not respect their obligations.
The fight against secondary movement is the key element of the proposal.
For this reason, applicants’ registration in Eurodac is necessary, in order to establish an efficient relocation system capable of limiting secondary movements. Member States must therefore register applicants and respect the rules concerning the reception of asylum seekers. This would create a predictable system capable of making people feel safe in the first country of arrival. In this way, secondary movements would be discouraged and migrants would stop relying on smugglers in order to reach the Member State they wish to live in.
Among the issues which require further attention, Cecilia Wikström mentioned the situation of unaccompanied minors: thousands of migrants still go missing today and the EU has to provide them with protection, so that they receive appropriate care and they do not fall into the hands of smugglers or criminal networks. She therefore proposed some provisions regarding the quick appointment of guardians and the creation of teams for the assessment of the situation of child asylum seekers. Specifically, every single Member State should be able to offer an appropriate system for the reception of unaccompanied minors.

According to Alessandra Mussolini (shadow rapporteur for EPP – Italy), the draft report is very decisive and ambitious and many of the innovations introduced will be able to increase the flexibility of the Dublin system. The key elements for the reform of the Dublin system are greater solidarity and a greater sense of shared responsibility among Member States. To reach this solidarity, mutual recognition between Member States and their full participation in the Dublin system are required. With regard to admissibility, she stated that the reform proposed by the rapporteur would make the definition of admissibility criteria faster, while reducing the burden on frontline Member States. She also appreciated the wider flexibility family reunification criteria and the possibility to consider groups of people who share the same language or the same ethnic origin, since it would make registration and relocation procedures faster. On unaccompanied minors, she said that in order to prevent them from disappearing or falling into the hands criminal networks, Member States should need greater specialisation and greater solidarity as well as more responsibility and safety.

According to Elly Schlein (shadow rapporteur for S&D – Italy), the main problem is that while the European Parliament is discussing the reform of the Dublin system for the fourth time, the Council is not even looking at the proposal of the Commission. For her, one of the major obstacles of the current Dublin system is the management of EU external borders.
On admissibility, she confirmed that the introduction of systematic admissibility checks before the application of the Dublin criteria would imply a significant additional burden on frontline Member States, thus reducing their incentives to properly register applicants and promoting secondary movements.
She also said that an automatic relocation mechanism would help the system move forward. On reception, she said that EU Member States should provide decent reception conditions, instead of applying coercive measures. In her opinion, the EU should be able to find a balance between the duties of Member States and the responsibilities of applicants.
She appreciated the reforms on guardianship for unaccompanied children and the flexibility on family reunification- For her, Member States have in fact to respect the family links applicants may have with a Member State different from the country of first arrival.
Elly Schlein was quite critical on the proposal for a transitional period for countries who are less accustomed to receiving refugees. For her, this “exception” would create different responsibilities among Member States and it might therefore weaken solidarity.

Daniel Dalton (shadow rapporteur for ECR – UK) was quite disappointed regarding the proposal for the introduction of the automatic and mandatory relocation system proposed by Commission. In his opinion, Member States cannot be forced to take people if they do not want or they are not ready to do so. He also criticised the conditionality between participation of Member States in mandatory relocation and suspension of EU financial support:  for him, it is completely unacceptable to link the two things, since imposing sanctions on Member States could undermine solidarity and mutual trust. According to him, the EU should reinforce its control procedures in order to fight secondary movement and prevent migrants from absconding. Migrants should be discouraged to take journeys, by giving them the impression that they could not choose the Member State they want to live in.

For Cornelia Ernst (shadow rapporteur for GUE/NGL – Germany), the Dublin system is dead and anyone who says anything else is a dreamer. The system has totally failed and if the Member States wants to get something out of it, they should start thinking not only about their own interests but also about the interests of asylum seekers. She welcomed the proposal to extend family reunification conditions, since in her opinion family goes beyond the mother/father/child relationship. She also welcomed the positive changes concerning guardianship for unaccompanied minors. She found the proposal to register migrants in groups quite positive and she agreed that Member States should be more flexible when dealing with reception of migrants.
On the other hand, she was very critical about the differences in the application of the legislation among Member States. She said, in particular, that the problem of secondary movement would continue to exist as long as refugees were locked up by some Member States, such as Hungary. In her opinion, the European Parliament should make pressure on Member States, so that they all respect the system in the same way. Adopting exceptional measures in order to avoid secondary movements is not the solution, since the real problem is the approach chosen by some Member States. As far as external boundaries are concerned, she said that the proposal of the Commission was too theoretical and it did not take into account the concrete situation that frontline Member States were facing.

For Jean Lamber (shadow rapporteur for Greens/EFA – UK), the key point of the Dublin system is to ensure that the application for asylum is examined and that Member States respect their obligations to do so. She was quite satisfied with the innovations regarding children and unaccompanied minors. On relocation, she found the idea of collective registration and transfer very interesting. However, according to her, today one of the main obstacles to relocation is integration. It is therefore fundamental to reduce barriers to integration in the European societies.

According to Laura Ferrara (shadow rapporteur for EFDD – Italy), the proposal of the Commission is highly critical of the Dublin reform and nothing seems to have changed over the years. The main point of the proposal appears to be the need to block secondary movement. However, in her opinion this should not be considered the priority, since the main issue is that frontline Member States will continue to be overburdened. People can’t be forced  to stay in bad conditions and, as a consequence, they try to reach other countries where reception conditions are better. The key aspect of the reform of the Dublin system is solidarity. Therefore, the EU needs to put into place an automatic relocation mechanism, which should always be applied and not only for emergency situations. On family reunification, she said that the Member State responsible for the examination of the asylum application should always be that in which the applicant has some family connections. As a result, the applicant should be transferred to that Member State as fast as possible.

MEPs interventions:
According to Tomáš Zdechovský  (Czech Republic – PPE), the Dublin system cannot be based on penalties. Member States who do not respect their obligations should not be sanctioned and coercive conditionality between participation of Member States and financial support cannot be accepted.
According to Jussi Halla-Aho (ECR – Finland), Member States should not forget that most of the people who arrive in Italy or Greece hope to travel across Europe and not to stay in the county of first arrival. The EU therefore needs to discourage people to take journeys, making it clear that applicants cannot choose where they want to go. For him, Italy and Greece are called on to put into practice measures of return and readmissions of migrants driven by socio-economic causes as soon as possible.
For Kristina Winberg (EFDD – Sweden), the reform under discussion will collapse soon,  since Member States will start experiencing some problems relating to its implementation.
Ana Gomes (S&D – Portugal) proposed the introduction of new solutions based on the creation of safe and legal pathways for asylum seekers. On relocation, she said that the introduction of an automatic mandatory relocation mechanism would be a very good element.   In her opinion, the use of structural funds needs to be reconsidered: the EU should stimulate  Member States’ solidarity through structural funds. She also raised some concerns on how to reinforce the role of EASO within the relocation mechanism.
In conclusion, the Rapporteur Cecilia Wikström (ALDE – Sweden) stated again that the EU should stop adopting ad-hoc solutions and should make more concrete efforts to reform the Dublin system, in order to reinforce the stability of the system itself. She reiterated the importance of helping overburdened countries, Italy and Greece in particular, in a spirit of solidarity and equal responsibilities. According to her, the EU needs, however, to establish a system that is able to function not only for Italy and Greece, but which can prevent from having a similar situation in other parts of Europe in the future. Member States should therefore act in solidarity and remember that they are dealing with people who are in need of international protection.

 

2) “Qualification Directive” : (Proposal for a Regulation of the European Parliament and of the Council on Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status of refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents – Presentation of the draft report by rapporteur.
Tanja Fajon (S&D – Slovenia), Rapporteur underlined the importance to reform the qualification system, by stating that around 1.5 million people have arrived in Europe over the last two years. According to her, the EU needs a step forward to reform a system which is still based on the principle of the first country of arrival. She also raised some concerns on the role played by cohesion funds. According to her, these funds, which mostly go to the EU Eastern countries should be used as a condition to stimulate Member States to respect their obligations. Her report has been drafted after several meetings with NGOs working in this domain.  According to her, the key elements for an efficient qualification system are a more equitable distribution of burdens among Member States and the introduction of new measures aiming at a rapid integration of refugees within the European societies.
Among the essential elements proposed in the report, she highlighted:
a) the adoption of efficient measures to encourage refugee integration and avoid secondary movement;
b) equal treatment for refugees and EU citizens and non-discrimination against minority groups;
c) the equation between asylum and subsidiary protection in terms of length of residence permits (5 years for both status).
As regards the revision of international protection, it should be optional and it needs to take into account the situation of the applicant’s country of origin. The introduction of a systematic revision of the status is not a good element and could represent an additional burden for the Member State responible.
The draft report also proposes to extend the criteria of eligibility to international protection to new categories, in particular to persons in need of protection due to a natural or a man-made disaster. The definition of family members should be broadened as well and it has to include brothers and sisters in order to encourage family reunification.

According to Alessandra Mussolini (shadow rapporteur for EPP – Italy), the EU needs  some common ground on the reform of the qualification directive. It is essential to simplify, streamline and speed up the procedures if the EU wants to fight illegal activities and reduce the burdens on Member States. She also found very important to harmonise the timeframe for residence permits of the two status of international protection. As regards family links, she said that the more the EU tried to define new categories eligible to international protection, the more the other categories are excluded, with possible negative impacts on vulnerable people. She also raised some concerns on married minors, for whom the situation could me more difficult to be examined.

According to Jussi Halla-Aho (shadow rapporteur for ECR – Finland), secondary movement and asylum shopping are the major threats to the Schengen area and to the credibility of the asylum system. He also recalled that many people in the world flee the general economic conditions of their countries and not for reasons of real persecution. This constitute an abuse of the asylum system. In his opinion, a regulation is the right instrument to harmonise measures within the EU. However, the liberal interpretation and the maximum standards of protection adopted in the draft report should be substituted by a conservative interpretation and minimum standards, since the objective of the system should be to discourage and not to encourage migration flows. He said that he could not accept the inclusion of environmental migrants as beneficiaries of international protection and he stated that international protection should be always temporary and that subsidiary protection should last no more than one year. He also reiterated the importance to asses the situation in the country of origin before the renewal of the status of international protection, while taking into consideration that the purpose of the system should always be to send people back home as soon as possible, in particular those who do not show a cooperative and open attitude towards the integration into the society of the host Member State.

Cecilia Wikström (on behalf of Angelika Mlinar, shadow rapporteur for ALDE) said that the draft report appeared to be very good and that the reform should be based on incentives instead of sanctions and on the extension of the scope of family reunification.

For Barbara Spinelli (shadow rapporteur for GUE/NGL – Italy), some points of the report need to be totally revisited, since the new regulation risks leading to a downward harmonisation. This holds especially true when it comes to the equation between subsidiary protection and refugee status, since the harmonisation can lead to less safeguards for people in need of protection compared to what some Member States, such as Italy, already grant. She also underlined that the respect of the non refoulement obligation should always be at the base of the reform. She also highlighted the importance of including environmental migrants among the beneficiaries of international protection. She made the example of land grabbing, a phenomenon which is forcing many people from Africa and other parts of the world to leave their countries. She also called for the extension of the residence permits as well as the inclusion of new family ties for family reunification. The spirit should be to include more and more categories as beneficiaries of international protection, and even though it is true that the definition of these categories can exclude other categories, that is the spirit under which subsidiary protection was introduced and the EU therefore needs to continue in that direction.

For Jean Lamber (shadow rapporteur for Greens/EFA – UK), the new regulation must not level down the situation. In particular, she said that the systematic examination of the status each year could become a nightmare for Member States and could have serious damages on integration. For example, in the case of integration in the labour market, employers would be discouraged to take people on, if they know that after one year they will not probably be there anymore. For her, the alignment between asylum and subsidiary protection is necessary. The definition of family should be extended as well, together with the scope of those in need of protection, including environmental refugees.

3) Refugees/Migrants issue in Greece: State of play and future scenarios. Exchange of views with Ioannis Mouzalas, Minister of Migration Policy of Greece.
Ioannis Mouzalas talked about the current migration situation in Greece. He said that there had been around 850,000 migrants in Greece in 2015 and that Greeks had showed great solidarity and friendship towards the migrants, with the exception perhaps of the people of the islands, where some populist responses and reflexes had aroused.
On the situation of reception centres and refugee camps in his country, he said that their conditions had not not been very good in the beginning, but the situation had improved over time. According to him, Greece has managed to build around many  new centres and has made concrete efforts to create new safe spaces inside the camps for unaccompanied minors. As far as the migration situation on the islands is concerned, conditions are worse than the mainland mostly because of overpopulation, and Greek people living on the islands are often afraid of these massive arrivals. However, the Greek government has planned to create 10,000 further housing slots in the islands and it wants to provide refugees and asylum seekers with cash payment as well as work permits in the cities where they live.
In his opinion, the EU needs an automatic procedure to provide overburdened countries, such as Greece, with the assistance they require. The EU cannot continue to manage migration flows through voluntary support. Solidarity cannot be voluntary, because such a voluntary clause would create a situation in which only some Member States would be willing to participate in solidarity actions and actually this is already the case in Europe with countries, such as Germany, Greece, Italy and Sweden, which are facing alone the current migration crisis, while others are not participating in the system at all.

MEPs interventions:
Roberta Metsola (EPP – Malta) said that in Greece there had been a huge influx of migrants over the past years. For her, real solidarity needs to be improved and it should represent the starting point to deal with this situation. However, she asked for more clarity on the number of migrants who are currently entering Greece and those who are being returned under the EU-Turkey agreement. She also asked for more accuracy on the information regarding the financial aid Greece is receiving from the EU in order to manage the situation.
For Birgit Sippel (S&D – Germany), the situation Greece is facing clearly demonstrates that flexible solidarity is even more senseless if some Member States continue to do nothing.
Cornelia Ernst (GUE/NGL– Germany), asked about the functioning of the allocation system in Greece, in particular with regard to allocation of minors.
For Judith Sargentini (Greens/EFA – Netherlands), Greece is not relocating refugees as it should do, due to the fact that they do not fit the nationality criteria or as an effect of the EU-Turkey deal. According to her, relocation seems to have become a game in Europe.
Malin Björk (GUE/NGL – Sweden) talked about a letter from 160 NGOs concerning the need to change the course of the current EU migration policy. She criticised the stricter externalisation of borders in general and the institutionalisation of Greek islands camps in in particular. According to her, the European Parliament should put more and more pressure on the Council in order to close these camps. The Parliament should also ask for an elimination of the measures on refugee detention and introduce new measures on minor protection, since minors in Greece are now sent back to Turkey under the EU-Turkey agreement.
Monika Hohlmeier (EPP – Germany) asked about the relation between the islands and the mainland, since for her there is a lack of clear figures on the people who have been effectively  relocated form the islands to the mainland and on the people who have been sent back under the EU-Turkey agreement.
According to Elly Schlein (S&D – Italy) the admissibility/inadmissibility checks discussed under the reform of the Dublin system could end up being an additional burden for frontline states, and this can have negative impact on Greece. She also affirmed that minors and vulnerable groups should not be returned to Turkey, and that the Commission and the Council should include some obligations for Member States on that point.
Ana Gomes (S&D – Portugal) asked for concrete numbers on relocation from Greece, as well as for some clarification on the orientation Greece is adopting with regard to vulnerable people. According to her, vulnerable categories should have priority in relocation measures. She also said that unaccompanied minors should not be returned to countries like Afghanistan,  where terrorist attacks are the norm.

In reply, Minister Ioannis Mouzalas said that Greece was the second country in Europe in terms of number of asylum applications received and that the country therefore needed the help of the other Member States, some of which were not cooperating at all. He criticised for example those Member States which had failed to keep their promises in terms of relocation and providing staff for the European Asylum Support Office (EASO). He then stated again that Greece was making concrete efforts in order to improve the situation of refugees, under full respect of international obligations. In particular, he said that Greece was trying to manage vulnerable categories as efficiently as possible, but he called for the support of the EU and its agencies, especially EASO, in terms of resources and concrete assistance.

OTHER POINTS ON THE AGENDA

4) Proposal for a regulation of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union – Presentation of the draft opinion to the BUDG Committee  by rapporteur Daniele Viotti (S&D – Italy)

Birgit Sippel (S&D Germany) talked on behalf of Rapporteur Daniele Viotti. She said that, according to the rapporteur, the proposal of the Commission could be further improved. The rapporteur, in fact, asked for more transparency on the EU agencies and called for a standardisation of the agencies, while stating the importance of taking into account the specificity of each of them. On the revision of the financial regulation concerning the EU Trust Fund, the rapporteur said that the Trust Fund should be used only in exceptional circumstances, since it was not placed under the Parliament’s budget scrutiny.

MEPs’ interventions:
Tomáš Zdechovský (EPP – Czech Republic) said that the LIBE Committee should fight for sufficient flexibility of the EU budget and find a balance between flexibility and control. He completely disagreed with Daniele Viotti’s report and he called for a discussion to reach a new compromise.

 
5) EASO REVISION (Proposal for a regulation of the European Parliament and of the Council on the European Union Agency for Asylum – Presentation of the state of play of trilogue negotiations by rapporteur Péter Niedermüller.
Rapporteur Péter Niedermüller (S&D – Hungary) stated that the European Parliament wanted a strong independent agency capable of providing support to Member States. He said that there had been some conflicts during the trilogue negotiations, with regard to monitoring, training and power balances in particular, even though in the end negotiations had had some positive results.

MEPs’ interventions:
According to Carlos Coelho (EPP – Portugal), the legal basis for the European Union Agency for Asylum should be set up as soon as possible, since the role its role could be extremely important not only during crisis but also for crisis prevention.

6) UKRAINE VISAS (Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Ukraine) – Presentation of the state of play of trilogue negotiations by rapporteur Mariya Gabriel (EPP – Bulgaria)
Michal Boni (EPP – Poland) spoke on behalf of Rapporteur Mariya Gabriel. He said that excellent collaboration between the EP, the Commission and the Council had existed throughout the whole negotiation. He also said that Ukraine had achieved all the benchmark criteria necessary to obtain visa liberalisation and that the country had gone even further. According to the rapporteur, every country which respects the criteria should benefit from the liberalisation of visa for its citizens and Ukraine falls within this case.

7) Electronic vote
During the meeting, MEPs were voted on:

a) the compromise text  on UKRAINE – VISA WAIVER agreed during the inter-institutional negotiations (Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement -Ukraine).

b) the draft report on the on the proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) 1030/2002 laying down a uniform format for residence permits for third-country nationals.

8) European Commission Report on the implementation of Directive on combating the sexual abuse and sexual exploitation of children and child pornography (Presentation by the Commission of the report to the European Parliament and the Council assessing the extent to which the Member States have taken the necessary measures in order to comply with Directive 2011/93/EU and the report assessing the implementation of the measures referred to in Article 25 of Directive 2011/93/EU.  
According to the European Commission, Directive 2011/93/EU is an ambitious and comprehensive legal instrument that covers investigation, prosecution, prevention and assistance to victims of sexual abuse. The transposition of such a directive represents a big step in the right direction, but there are still a number of steps which need to be made, starting from the accomplishment of satisfactory levels of implementation.
There has been a lot of progress with regard to setting up cooperation schemes in order to improve cooperation among national actors. Member States have also made relevant steps forward with regard to blocking the dissemination of materials on child sexual abuse. However, prevention from sexual abuse remains the less developed area.
Further efforts are also required in the field of assistance and protection of child victims, including the family of the victim, as well as in the fields of investigation and prosecution. The European Commission is fully supporting Member States in the implementation of the directive and it is cooperating with Interpol for a stronger control of the Internet in order to protect children and prevent from child abuse and pornography.

MEPs’ interventions:
Anna Maria Corazza Bildt (EPP – Sweden), rapporteur for the session, said that Member States should do more in terms of how the directive could be put into practice. Member States have done great progress in implementing the directive and the civil society has played an important role in advocating as well as supporting Member States. However, crimes against children are still frequent in Europe and they need to be combated more concretely. In her opinion, stronger cooperation between Member States is required to fight against the cross-border criminal networks which exploit children. In particular, she said that the number of sex extortion and revenge pornography cases was increasing in Europe.  The EU should therefore make stronger and more concrete efforts to combat these phenomena. For her, a better identification of victims as well as of potential offenders is also needed, if Member States want to put into practice efficient prevention mechanisms.
Birgit Sippel (S&D – Germany) spoke on behalf of the shadow rapporteur for S&D. She said that the party welcomed the report on implementation prepared by the Commission, but she noticed that the two reports had shed light on the differences among Member States’ practices to protect children against sexual abuse. She also highlighted the importance of educational campaigns in order to raise awareness of the consequences of child sexual exploitation.
For Branislav Škripek (shadow rapporteur for ECR – Slovakia), the directive should be implemented in toto and Member States should make efforts to bring about a change in the behaviour of offenders.
According to Nathalie Griesbeck (shadow rapporteur for ALDE –  France), today child sexual abuse is a matter of great urgency in Europe. She clarified that it was not a question of freedom of the Internet, but a question of targeting specifically sexual abuse and other crimes against children. For her, the report of the Commission is very clear and it confirms that there is still much to be done.

9) Croatia preparation of Schengen operational phase.  (Proposal for a Council Decision on the application of the provisions of the Schengen acquis in the area of the Schengen Information System in the Republic of Croatia )– Presentation by the Commission and intervention by the Maltese Presidency.
According to the Commission, discussions for the integration of Croatia in the Schengen Information System (SIS) started in 2016 after they country had accepted to undergo this process in 2015. The objective of these evaluations is to allow Croatia to gradually participate  in the Schengen Information System. A wide range of domains were discussed and Croatia was found technically ready to be integrated into the system.
The Commission explained that Croatia had accomplished all the criteria required but that, since the Council had not take its final decision on the full Schengen evaluation process yet, there would be some restrictions applied to Croatia, with regard to entry alerts in particular.

The Council confirmed that a process of verifying the correct implementation of the Schengen acquis across different domains, in particular data protection, had been carried out and Croatia had met all the requirements. The country was therefore found technically ready to join the Schengen Information System. According to the Council, the integration of Croatia is important because it will increase cooperation in the areas of information collection and exchange as well as in the field of police cooperation.

MEPs’ interventions:
Nuno Melo (EPP – Portugal), rapporteur for the session, said that from a legal point of view the assessment of Croatia had been positive and that Croatia had met all the requirements. According to him, the evaluation of the country’s contribution to the Schengen Information System can only take place once Croatia has joined the system.
For Birgit Sippel (S&D – Germany), if Croatia has really fulfilled the criteria, further steps should be made in order to make the country part of the system as soon as possible. However, she raised some doubts as regards Croatia’s readiness to contribute to data protection.

Humanitarian Visas: CJEU CASE C-638/16 PPU, X AND X – DASHED HOPES FOR A LEGAL PATHWAY TO EUROPE

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG  ON MARCH 10, 2017

(NB: emphasis are added)

By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf 

On 7 March 2017, the CJEU announced its judgement in case C-638/16 PPU (X and X / Belgium) and dashed all hopes for an extensive interpretation of the EU Visa Code in the light of the EU Charter of Fundamental Rights.

To summarize the facts of the case, X and X and their three small children are an Orthodox Christian family living in rebel-held Aleppo. In October 2016 X leaves Aleppo to apply for a visa with limited territorial validity ex Article 25(1) of the EU Visa Code at the Belgian embassy in Beirut (Lebanon). The application states that the aim of entry into Belgium is to apply for asylum. X returns to his family in Aleppo immediately after lodging the application. Less than a week later, they are served with a negative decision from the Belgian authorities, against which they appeal. The court of appeal refers the case to the Court of Justice for a preliminary ruling on the interpretation of Article 25 of the Visa Code. In its rather short judgment the CJEU determines, contrary to what AG Mengozzi (see detailed analyses of this Opinion here and also here) argued with regard to this case, that the applications of X and X fall outside the scope of the EU Visa Code, even if they were formally submitted on its basis.

The Court first reiterates that Regulation 810/2009 establishing a Community Code on Visas (Visa Code) was adopted on the basis of Art. 62 EC Treaty, pursuant to which the Council had the competence to adopt measures on visas for intended stays of no more than three months. The visa applications in question, however, were for visas with limited territorial validity with a view to a future application for asylum in Belgium. Hence, the applicants’ intended stay was not limited to 90 days – and their visa-application should not be considered under the Visa Code, but under national law. As the application thus falls outside the scope of EU law, according to the Court, the Charter of Fundamental Rights is not applicable either.

In the last sentences of its judgment, the Court also adds that allowing third country nationals to lodge applications for visas in order to apply for international protection in the Member State of their choice would undermine the Dublin system. With this remark, inserted as if it were an afterthought, the Court seems to reveal the true motivation behind the ruling in X and X: to save an already failing system…

Humanitarian visa vis-a-vis Dublin system

The CJEU’s judgement in X and X was awaited with impatience by many active in the field of refugee protection. Heartened by AG Mengozzi’s Opinion, some saw this as an opportunity for the Court to confirm the EU’s dedication to the promotion and protection of human rights within the EU and beyond, and to decide that the Charter of Fundamental Rights is applicable to visa applications made by potential applicants for international protection. Member States and the Commission had vehemently argued on the other hand that such a ruling would endanger the operation of the painstakingly constructed (though clearly malfunctioning) Dublin system, and that it would open the floodgates to thousands of applicants for international protection, that would otherwise not have reached the EU. 

The Dublin system, based on Regulation 604/2003, provides the criteria and mechanisms for determining the Member State responsible for the assessment of an asylum application made by a third-country national or a stateless person in one of the Member States of the EU. These criteria do not take the wish of the applicant into account, but are instead based on events like through which Member State the applicant entered the EU, or in which Member State of the EU the applicant was previous to the application a legal resident.

The Dublin system, branded as the ‘cornerstone of the Common European Asylum System’, is put in place to prevent asylum seekers to engage in ‘asylum shopping’ by applying for international protection in the country that is most attractive to them for various reasons – which can be the level of reception conditions and/or the spectrum and content of the rights pertaining to an international protection status – or to apply for asylum in multiple Member States. However, even data published by the European Asylum Support Office (EASO) show that the costly system does not quite lead to the desired results, and that numerous asylum seekers prefer to abscond and disappear into illegality, rather than to be transferred to a Member State in which they do not want to live. Nevertheless, the Member States are not really open to discuss an alternative system, and their efforts are directed at saving the system – apparently at all costs. The Court chose to indulge these concerns and take the politically easy way out by ruling that EU law (including the Charter) is not applicable to visa applications that would lead to a stay of more than 90 days – instead of ruling for the application of the Visa Code and thus also the Charter of Fundamental Rights, as it would then have been confronted with the impossible task of having to interpret the Charter in a way that would not have a negative effect on the functioning of the Dublin system.

This restrictive interpretation of the scope of the Charter is a disappointing decision of the CJEU for those active in the field of human rights and refugee protection. It is difficult to understand why the Court shies away from ruling for the applicability of the Charter, for extending the protection of the Charter to those so obviously in need of protection, especially in a time that the EU’s asylum policy and actions have raised so many doubts about the EU’s self-professed dedication to human rights. But next to being disappointing, the judgment also fails to convince on a number of instances.  These will be discussed below, in the order followed in the judgment.

Competence of the court

When considering the Court’s deliberations in its decision on jurisdiction, the ruling on the substance of the case becomes even more puzzling.  The defending Belgian government asserted at the hearing that the CJEU would not have jurisdiction to answer the question referred to it, as in its view the applicant’s visa application should be considered as an application for a visa sanctioning a stay of more than 90 days, so that the application does not have any connection with EU law. The Commission did not contest the jurisdiction of the Court, but subscribed to the defendant’s main idea.

The Court disagreed with the defendant and, invoking its earlier rulings in cases like Wojciechowski and the case-law cited therein, decided that it indeed has jurisdiction to answer the referring court’s request. In the invoked cases, the Court has previously decided to decline jurisdiction where it was obvious from the circumstances of the case that EU law was not applicable. The Court continues its decision in X and X by ruling that, since the visa-application in question was submitted on the basis of humanitarian grounds as per Article 25 of the Visa Code, the Wojciechowski case law does not apply and the Court indeed has jurisdiction.

In other words, the Court does not agree with the Belgian government, which argues that it is obvious that visa-applications submitted under the Visa Code should not be dealt with under EU law if the applicants’ aim is to prolong their legal stay beyond 90 days on arrival in the Member State they applied to through an application for international protection.

Applicability of the Visa Code

The Court then turns to the substantive questions referred to it, and answers these questions in merely 14 paragraphs – or even fewer, once the introductory paragraphs are deducted. Considering the implications of the judgment, and the polemic surrounding this specific case and the EU asylum system as a whole, it would have been beneficial to have a deeper insight in the arguments and reasoning of the Court.

The Court’s decision starts with a reference to Article 62 (2)(a) and (b)(ii) of the EC Treaty on which the Visa Code was based, which (unlike Article 79 (2) (a) TFEU) limits the competence of the Council to adopting measures regarding the issuance of visas for intended stays of no more than three months. This is followed by a reference to Article 1 of the Visa Code, which states that the objective of the Code is to establish the procedures and conditions for issuing visas for intended stays on the territory of the Member States not exceeding 90 days in any 180 day period, and to Article 2(2)(a) and (b) of the Visa Code defining the concept of ‘visa’ as ‘an authorization issued by a Member State’ with a view to ‘stay on the territory of the Member States for a duration of no more than 90 days in any 180‑day period’.

The Court concludes that, since the objective of the applicants in the main proceedings is to apply for international protection upon arrival in that Member State with the visa they applied for and therefore ultimately to stay in Belgium for more than 90 days, their visa application falls outside the scope of the Visa Code described above.

The Court thus did not consider the fact that, although in principle the scope of the Visa Code is limited to the establishment of the procedure and the conditions for issuing visas for intended stays on the territory of the Member States not exceeding 90 days in any 180 day period, the Visa Code also allows for exceptions to this principle in Article 25 (1)(b). With regard to visas with limited territorial validity, this Article provides that in exceptional circumstances (‘for reasons deemed justified by the consulate’) a Member State’s authorities may allow applicants that have already stayed within the territory of that Member State for three months in a given period of six months to stay on the territory of that Member States for another three months. Thus, Article 25 (1)(b) stretches the scope of ‘visa’ under the Visa Code as defined in the Code’s Article 2 (2)(a) beyond the ‘authorization for an intended stay of a duration of no more than three months in any six-month period’. This is exactly the definition on which the Court relies when it concludes that the answer to the question of the applicability of the Visa Code to the visa application of X and X should be negative (see the last sentence of paragraph 51 of the judgment). The Court could, based on the Visa Code, just as well have decided that, in exceptional circumstances, the Code foresees the issuance of visas that will allow the applicant to stay for more than 90 days in any six-month period and that, therefore, the definition of ‘visa’ should – especially under Article 25 of the Visa Code – not be interpreted restrictively. To be clear: This would not automatically lead to X and X, and applicants in like circumstances, being granted a visa, it would merely ensure that their application would be decided according to the provisions of the Visa Code. This in turn would guarantee the application of the Charter of Fundamental Rights according to standing case law of the Court in cases like Fransson.

That the Court is keen to avoid such a conclusion is clear from the argument brought forth in the statement of the Court in paragraphs 46 and 47 of the judgment, where the Court finds that its decision to rule for the non-applicability of the Visa Code does not run contrary to the distinct requirement of the Visa Code to refuse a visa in case there are doubts with regard to the applicant’s intention to leave the territory of the Member State after the expiry of the visa – a refusal that would be taken as a result of the application of the Visa Code, not as a result of its non-applicability.

However, the Court’s ruling boils down to exactly that; just imagine for a moment that the applicants did not state their motive in applying for a short stay visa to be to apply for international protection on arrival in Belgium; they could claim they would only be visiting Belgium’s beautiful sights, as any potential tourist would also do. Under these circumstances, the competent Belgian authorities would have been certainly justified to doubt the applicants’ intention to leave Belgium and go back to Aleppo after having seen the sights (and who could even expect them to do so?). In such a scenario, the authorities would only be able to refuse the visa-application under Article 32 of the Visa Code – thus forcing them to take into account Article 25 of the Visa Code as well as the whole of the Charter, including its Articles 4 and 18.

The European Agenda on Migration: no time for human rights…

Unfortunately, since the Court decided against the applicability of the Visa Code in the case of X and X, it was not required to look further into the question of whether Member States’ authorities should assess applications made under Article 25 of the Visa Code in the light of Articles 4 and/or 18 of the Charter of Fundamental Rights or any other international obligation by which they are bound. The important question of the extent to which Articles 4 and 18 of the Charter of Fundamental Rights could impose a positive obligation on Member States’ authorities to issue humanitarian visas to persons still present in their own country, an issue which is given a prominent place in AG Mengozzi’s Opinion, is therefore left untouched by the Court.

Unfortunately, again, it seems that similar decisions are taken by the Court on a regular basis these days.

On 28 February 2017, the Court decided in an equally controversial and important case that it had no competence to look into the question of the legality of what has become known as the EU-Turkey deal under Article 263 TFEU. Apparently, the text of the invitations with which the European Council’s administration invited the Members of the European Council to working lunches and working sessions –in their function as Members of the European Council or as Heads of State and Government of the Member States depending on the setting, but never as both at the same time – was reason to make the Court decide that the European Council was not the author of the EU-Turkey statement, notwithstanding the many references in the statement itself to actions the EU would undertake in return for Turkey’s role as gatekeeper for Europe. Even the fact that the EU institutions feel bound by the promises made by the Heads of State and Government of the Member States (not acting together as institution of the EU, according to the Court) does not seem to matter to the Court. With this –procedural- move, the Court has again discharged itself of its task of reviewing in depth the legality of the acts of the EU’s institutions, bodies, offices and agencies intended to produce legal effect vis-à-vis third parties. For a more detailed discussion in German of this decision of the Court, see here.

It seems that the Court agrees with some other institutions of the EU that times of crisis require robust measures – and that at such times the EU’s commitment to human rights can be put on hold. This notion is fortified by the remarks made by the Court, seemingly as an afterthought, in paragraphs 48 and 49 of the judgment in the case of X and X, where the Court notes that a decision to allow third-country nationals to lodging applications for visas on the basis of the Visa Code in order to apply for international protection in the Member State to which they will travel would undermine the general structure of the Dublin system. However, even from data regularly published on the site of the EASO it is quite clear that the Dublin system fails, and that it definitively is not able to guarantee effective access to an assessment of applicants’ protection needs. The Court thus choses to bypass the Charter of Fundamental Rights of the EU in order to save an already failed system – but one that Member States are unwilling to change.

The future of humanitarian visas after X and X

According to a recent research by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, currently 16 EU Member States either have or have had some form of scheme governing humanitarian visas. Astonishingly, however, the same study shows that in times of crisis the number of visas with limited territorial validity issued for humanitarian reasons decreases dramatically. The plea of X and X and others that are in a similar situation should animate the Commission to come up with a viable proposal for EU legislation governing the issuance by Member States of long-term visas and residence permits to third-country nationals on humanitarian grounds, which the EU is competent to adopt according to Article 79 (2) of the TFEU.

The fate of X and X and other prospective applicants for international protection

The Court’s ruling that visa-applications of prospective applicants for international protection should be dealt with under national law has the – above discussed – effect that the Charter of Fundamental Rights does not apply to such applications nor the procedure with which they are assessed. However, though national authorities and courts of all Member States of the EU are still bound by the ECHR and other relevant international law when applying national immigration and asylum law, their scope of application may not reach as far as the Charter would have reached, and at present is regarded as applicable to potential applicants for international protection that have not yet entered the territories of the states bound by them.

For the applicants in this concrete case, X and X and their three children, the decision of the Court means more concretely that their visa-application will presently be dealt with under Belgian law. This also means that, even though their application does not come within the ambit of the Charter of Fundamental Rights of the EU according to the CJEU’s ruling in their case, Belgium is still bound by the ECHR in the application of its national laws. However, considering the recent developments in Belgian asylum policy and the country’s record with regard to the assessment of asylum applications, it is doubtful whether this should be considered as a reason to hope for a decision that would allow X and X to enter Belgium. Thus, the Court’s ruling has the disappointing consequence that X and X will most probably remain in Aleppo, facing inhuman treatment and forcing them to consider other, perhaps less legal, pathways into Europe for the sake of their future and that of their children.

Relocation of Asylum seekers in the EU

(EP Study on the implementation of the 2015 Council Decisions establishing provisional measures in the area of international protection for the benefit of Italy and of Greece)

THE FULL VERSION OF THE STUDY IS ACCESSIBLE HERE   

 Abstract : This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, examines the EU’s mechanism of relocation of asylum seekers from Greece and Italy to other Member States. It examines the scheme in the context of the Dublin System, the hotspot approach, and the EU-Turkey Statement, recommending that asylum seekers’ interests, and rights be duly taken into account, as it is only through their full engagement that relocation will be successful. Relocation can become a system that provides flexibility for Member States and local host communities, as well as accommodating the agency and dignity of asylum seekers. This requires greater cooperation from receiving States, and a clearer role for a single EU legal and institutional framework to organise preference matching and rationalise efforts and resources overall.

 

AUTHOR(S) : Elspeth GUILD, Centre for European Policy Studies, Brussels, (Belgium),  Cathryn COSTELLO, Refugee Studies Centre, University of Oxford, (UK) Violeta MORENO-LAX, Queen Mary University of London, (UK). With research assistance from: Christina VELENTZA, Democritus University of Thrace, (Greece) Daniela VITIELLO, Roma Tre University, Rome, (Italy) Natascha ZAUN, Refugee Studies Centre, University of Oxford, (UK)

EXECUTIVE SUMMARY

Background

In September 2015 the Council adopted two Decisions regarding the relocation of asylum seekers from Greece and Italy to other Member States (‘the Relocation Decisions’). In total, the number of asylum seekers to be relocated was 160,000, to take place over 24 months from the adoption of the decisions. By 2 February 2017, 18 months into the relocation period, a total of 11,966 asylum seekers had been relocated from the two countries. The largest number of people relocated from Greece went to France (2,414) and from Italy to Germany (700). By any measure, this failure to make relocation work effectively and swiftly from the outset is striking.

The second Relocation Decision included a distribution key based on the following elements: (a) The size of the population (40%), as it reflects the capacity to absorb a certain number of refugees; (b) total GDP (40%), as it reflects the absolute wealth of a country and is thus indicative for the capacity of an economy to absorb and integrate refugees; (c) average number of spontaneous asylum applications and the number of resettled refugees per 1 million inhabitants over the period 2010-2014 (10%), as it reflects the international protection efforts made by Member States in the recent past; and (d) unemployment rate (10%), as an indicator reflecting the capacity to integrate refugees. Member States allocation under this distribution key was supposed to be mandatory with only the possibility for Member States to refuse an applicant on the basis of national security.

Aims

On this basis, the study pursues the following objectives:

  • To describe the development of the relocation scheme in the context of the Common European Asylum System and the movement of third-country national asylum seekers in 2015;
  • To investigate the operation of the relocation scheme(s) established in September 2015, the successes, failures, and practical modalities;
  • To examine the reasons for resistance from several Member States to the relocation scheme;
  • To understand the practices in the relocation schemes that have contributed to satisfactory outcomes for asylum seekers, States and the EU, and those practices that have resulted in unsatisfactory outcomes for all involved;
  • To review the links between relocation and the ‘hotspots approach’ as well as action under the EU-Turkey Statement of 18 March 2016 and their impact on the ground;
  • To unpack the implications of the incorporation of the relocation scheme in the Dublin IV reform through a permanent mechanism of corrective allocation;
  • To formulate concrete proposals to improve and rationalise the workings of relocation within the EU as a stable element of the Common European Asylum System.

Issues and Recommendations  Continue reading

Parliamentary Tracker: European and national parliaments debates on the (third) Reform of the Common European Asylum System (28-02-17)

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NOTA BENE : THIS IS NOT AN OFFICIAL RECORDING  See the LIBE official page (with background documents – webstreaming) here                   

by Luigi LIMONE (FREE Group trainee)                                                                                                                                                                        

UP TO THE CHALLENGE

Opening remarks by Claude Moraes, Chair of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament :  According to Claude Moraes this meeting was taking place at very crucial moment of the reform which will  be needed to overcome the crisis which erupted at the EU external borders  in 2015 under the mass influx of migrants coming notably from the war zones in Syria and Iraq. Since the entry into force of the Lisbon Treaty it should be now a common parliamentary endeavor to succeed in reforming these sensitive policies.

FIRST SESSION: Challenges related to the Common European Asylum System – Chaired by Claude Moraes, LIBE Committee Chair

a) Intervention of Hon. Carmelo Abela, Minister for Home Affairs and National Security, Maltese Presidency Council.  According to Hon. Carmelo Abela, when it comes to asylum, the EU is facing significant challenges like the urgent need to define future approaches for the solution of the migration crisis. The current EU legislative framework does not address the problem as it should do. Several amendments have been proposed by the Commission in order to reform the package on asylum legislation. The December 2016 Council conclusions on solidarity within the Dublin system provided that the EU should create a system built on solidarity, equal responsibility and based on political legitimacy. Discussions on the proposals already started and the Maltese presidency has already done some important efforts, but the road is still long.  The Minister confirmed that the reform was a priority for the Maltese Presidency. For him, the EU and the Maltese Presidency itself are facing significant challenges which should be addressed decisively and conclusively. He stated that the Maltese presidency would make every effort to achieve its objectives. However, it is worth noting that the presidency cannot succeed alone, it needs the help of the national Parliaments in order to create a durable and successful system of asylum.

b) Intervention by Dimitris Avramopoulos, European Commissioner for Migration, Home Affairs and Citizenship. Avramopoulos said that the reform of the Common European Asylum System (CEAS) remained a key priority of the EU. For this reform to be successful the EU needs to build a constructive dialogue between the Union and the representatives of the national Parliaments. According to him, purely national measures do not bring positive results, since nationalist approaches simply undermine the common strategy the EU wishes to adopt. A true spirit of solidarity and shared responsibility is required in order to: define a functioning system for asylum seekers; protect the EU external borders; dismantle the trafficking system; regulate irregular migration; manage return and readmission; accelerate the relocation process. The EU should face the challenge of the large amount of unaccompanied minors as well, together with the fight against secondary movement and asylum shopping. The renovated CEAS would help strengthen mutual trust among Member States, which is necessary not only for the efficiency of the system but also to provide asylum applicants with dignified treatment. The reform is therefore necessary to obtain a higher degree of harmonisation and greater convergence of measures, as well as an equal repartition of responsibilities among Member States.  The success of this reform depends on the implementation of solidarity mechanisms. A clear, predictable and efficient Dublin system is fundamental for the realization of a Union without internal borders. In this respect, sanctions for non-compliance with the rules are necessary, especially to fight secondary movement. Furthermore, resettlement and relocation should become compulsory for all Member States, especially with regard to unaccompanied minors. Ultimately, Avramopoulos proposed to have a Union resettlement framework for persons in need of international protection, which would enable to eliminate differences among national practices. Member States have to show their political willingness to work together and the EU needs to achieve a common understanding on how the future CEAS should function. This should happen through the support of the Maltese Presidency. It is the time to move on with this proposal and look at the migration phenomenon in a more strategic, comprehensive and positive manner. The sooner migrants and refugees are integrated in the host societies and in the labor markets, the more the Union can take advantage of their inclusion. In order to accomplish these goals, the EU needs the involvement of all stakeholders and EU citizens.

c) Interventions of National Parliaments representatives and of MEPs. Continue reading

Parliamentary Tracker : a new episode of the EU-US visa waiver saga…

by Emilio De Capitani

Yesterday March 2nd the European Parliament has adopted a resolution (see below ) by which it has set a deadline to the Commission to adopt a delegated act which will trigger the reciprocity mechanism with the US because it still  does not grant a visa waiver to all the EU citizens. The latest Plenary debate on this subject took place following an oral question on December 14, 2016 (see here  and below the intervention of the LIBE Chairman and of the Commissioner Avramopoulos)

It is worth recalling that Reciprocity  is a basic principle framing the relations between States in the international arena and that in the visa policy domain the EU Member States may no more trigger alone this mechanism since the transfer of visa policies to the  EU 25 years ago with the Treaty of Maastricht.

The main EU legislative text dealing with reciprocity in visa domain is the Council Regulation (EC) No 539/2001 of 15 March 2001  which has been amended dozen times also in codecision  since the entry into force of the Amsterdam treaty (1999) and the gradual transfer of these policies under the “ordinary” regime.  The problem is that this transfer of competence from the MS to the EU has been recognized by almost all the third States except Canada, and ..the US. However, as far as Canada is concerned Prime Minister Trudeau has just confirmed that  the visa requirement will be lifted for all EU citizens  in December this year.

As far as the US are concerned  the European Commission was notified on April 2014, that  the EU citizens of Bulgaria, Croatia, Cyprus, Poland and Romania still cannot enter US territory without a visa, while US citizens can travel to all EU countries visa-free.

On the US side the visa issue has still to be settled bilaterally with each EU member state concerned (see the US legal framework here) and to obtain the US visa waiver the Country concerned should give access to a vast amount of confidential information and respect some strict thresholds connected to the return of its nationals. The point is that if the same standards were applied to the EU as a whole the visa waiver would be granted to everyone but for the US the EU is still not yet a valid counterpart because national  passport remain …national (?!). Needless to say this situation make furious the EU member states whose citizens are not granted the visa waiver (see the Polish position here) because they are no more competent in this domain. Their only possibility is to notify the situation to the Commission (as they did on 12 April 2014) so that the Commission can do its best to find in a two years time a positive solution with the third State concerned. According to the EU regulation into force if the situation is not settled the Commission should adopt a delegated act ( to which both Parliament and the Council may object following art 290 of TFEU) suspending the visa waiver for the third Country national for 12 months.

By so doing not only the EU will preserve the equality between its member states (who can no more protect themselves) but will ensure that all the EU citizens enjoy the same protection. The point is that  the Commission should have acted before 12 April 2016 as far as the US and Canada were concerned but almost one year later it has yet to take any legal measure  (see the latest Commission communication here )

Will the Commission obtain from the Trump administration what has been unable to obtain from the previous Bush and Obama administration ? We may have some doubts but the road ahead looks rather bumpy ..

——————————–

European Parliament resolution of 2 March 2017 on obligations of the Commission in the field of visa reciprocity in accordance with Article 1(4) of Regulation (EC) No 539/2001 (2016/2986(RSP))

The European Parliament,

–      having regard to Council Regulation (EC) No 539/20011, in particular Article 1(4)

thereof (‘the reciprocity mechanism’),

–      having regard to the Commission communication of 12 April 2016 entitled ‘State of play and the possible ways forward as regards the situation of non-reciprocity with certain third countries in the area of visa policy’ (COM(2016)0221),

–      having regard to the Commission communication of 13 July 2016 entitled ‘State of play and the possible ways forward as regards the situation of non-reciprocity with certain third countries in the area of visa policy (Follow-up of the Communication of 12 April)’ (COM(2016)0481),

–      having regard to the Commission communication of 21 December 2016 entitled ‘State of play and the possible ways forward as regards the situation of non-reciprocity with certain third countries in the area of visa policy (Follow-up to the Communication of 12 April)’ (COM(2016)0816),

–      having regard to Article 17 of the Treaty on European Union (TEU) and Articles 80, 265 and 290 of the Treaty on the Functioning of the European Union (TFEU),

–      having regard to its debate on ‘Obligations in the field of visa reciprocity’ held on 14 December 2016 in Strasbourg,

–      having regard to the question to the Commission on obligations of the Commission in the field of visa reciprocity in accordance with Article 1(4) of Regulation (EC) No 539/2001 (O-000142/2016 – B8-1820/2016),

–      having regard to the motion for a resolution of the Committee on Civil Liberties, Justice and Home Affairs,

–      having regard to Rules 128(5) and 123(2) of its Rules of Procedure,

A. whereas the criterion of visa reciprocity as one of the criteria guiding the EU’s visa
policy is generally understood to imply that EU citizens should be subject to the same
conditions when travelling to a third country as the nationals of that third country are when travelling to the EU;

B. whereas the purpose of the visa reciprocity mechanism is to achieve such visa
reciprocity; whereas the EU’s visa policy prohibits individual Member States from
introducing a visa requirement for nationals of a third country if this country is listed in Annex II to Regulation (EC) No 539/2001 (countries whose nationals are exempt from the visa requirement for short stays);

C. whereas the reciprocity mechanism was revised in 2013, with Parliament acting as co-legislator, as it needed to be adapted in the light of the entry into force of the Treaty of Lisbon and of the case-law of the Court of Justice of the European Union on secondary legal bases and ‘to provide for a Union response as an act of solidarity, if a third country listed in Annex II to Regulation (EC) No 539/2001 applies a visa requirement for nationals of at least one Member State’ (Recital 1 of Regulation (EU) No 1289/2013);

D. whereas the reciprocity mechanism sets out a procedure starting with a situation of non-reciprocity with precise timeframes and actions to be taken with a view to ending a situation of non-reciprocity; whereas its inherent logic entails measures of increasing severity vis-à-vis the third country concerned, including ultimately the suspension of the exemption from the visa requirement for all nationals of the third country concerned (‘second phase of application of the reciprocity mechanism’);

E. whereas ‘in order to ensure the adequate involvement of the European Parliament and of the Council in the second phase of application of the reciprocity mechanism, given the particularly sensitive political nature of the suspension of the exemption from the visa requirement for all the nationals of a third country listed in Annex II to Regulation (EC) No 539/2001 and its horizontal implications for the Member States, the Schengen associated countries and the Union itself, in particular for their external relations and for the overall functioning of the Schengen area, the power to adopt acts in accordance with Article 290 of the Treaty of the Functioning of the European Union [was] delegated to the Commission in respect of certain elements of the reciprocity mechanism’ including the suspension of the exemption from the visa requirement for all nationals of the third country concerned;

F. whereas ‘the European Parliament or the Council may decide to revoke the delegation’ (Article 290(2)(a) TFEU);

G. whereas a delegated act ‘may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act’
(Article 290(2)(b) TFEU);

H. whereas the Commission contested the choice of delegated acts in the second phase of application of the reciprocity mechanism before the Court of Justice of the European Union, and whereas the Court considered however the choice of the legislator to be correct (Case C-88/14);

I. whereas the mechanism thereby clearly assigns obligations and responsibilities to Parliament and the Council and to the Commission in the different phases of the reciprocity mechanism;

  1. Considers the Commission to be legally obliged to adopt a delegated act – temporarily suspending the exemption from the visa requirement for nationals of third countries which have not lifted the visa requirement for citizens of certain Member States – within a period of 24 months from the date of publication of the notifications in this regard, which ended on 12 April 2016;
  2. Calls on the Commission, on the basis of Article 265 TFEU, to adopt the required delegated act within two months from the date of adoption of this resolution at the latest;
  3. Instructs its President to forward this resolution to the Commission, the European Council, the Council and the national parliaments.

(1) 1 OJ L 81, 21.3.2001, p. 1.

EXCERPT EP DEBATE (December 14) VISA RECIPROCITY

Claude MORAES (author of the Oral Question). – Mr President, (…) We now come to the important oral question, which many colleagues have been waiting for, on the very important, compelling and urgent issue of visa reciprocity. As colleagues will know, this is an ongoing issue of urgency, not just for those five countries and the citizens of those five countries – Poland, Romania, Bulgaria, Croatia and Cyprus – but indeed a matter of principle for the whole House on questions of symmetry and equality in our relationship with the United States.

In 2013, Parliament and the Council adopted a regulation modifying, amongst other elements, the so-called reciprocity mechanism. It entered into force in January 2014. Under EU law and according to this mechanism, if a third country does not lift visa requirements 24 months after notification of a situation of non—reciprocity, the Commission is obliged to suspend the visa waiver for citizens of that country for 12 months, via a delegated act to which Parliament and the Council could object.

Notifications of five Member States – and I have named them – were published by the Commission on 12 April 2014. There were at times cases of non—reciprocity also affecting Australia, Japan and Brunei and all of them have now been solved. After 24 months had elapsed, on 12 April 2016, the Commission, instead of presenting the delegated act as we required, decided to publish a communication asking the Council and Parliament for their views. This communication was followed by another communication on 13 July updating the situation and again failing to fulfil the Commission’s obligations.

As Chair of the Committee on Civil Liberties, Justice and Home Affairs, it is my view that the reciprocity mechanism sets out a procedure with precise time frames and actions not subject to discretionality by the Commission. Therefore, the Commission is under an obligation to adopt a delegated act pursuant to Article 1(4)(f) of Regulation 539/2001.

As the Commissioner knows, on 7 June 2016, I sent a letter reminding you, Commissioner, of the legal obligations of the Commission here. On 12 October, during the exchange we had with you in the Civil Liberties Committee, the Commission was again urged to act and all the Members who took the floor made it clear that the Commission does have some more room for manoeuvre. This was our view.

In this context, and with an overwhelming majority, we have in the Civil Liberties Committee adopted the following oral question for answer today: do you share the legal assessment according to which the Commission is obliged to adopt a delegated act – temporarily suspending the exemption from the visa requirement for nationals of third countries which have not lifted the visa requirement for citizens of certain EU Member States – within a period of 24 months from the date of publication of the notifications in this regard, which ended on 12 April 2016? In the event that the Commission agrees with the assessment that it is obliged to adopt a delegated act, by when will the Commission present this delegated act? And finally, if the Commission does not agree, what are the reasons for not agreeing with that assessment?

This issue, as I said at the beginning of my presentation of this oral question, is not just about the deep and very understandable concerns of our colleagues from Poland, Romania, Bulgaria, Croatia and Cyprus; it is about the idea that we in the EU have the right to expect symmetry and equality with the United States in our relationship. We are right to expect fairness. The right to expect fairness is something that we have transmitted directly to our United States partners and to the State Department in Washington, and we did so respectfully and forcefully

(…)

Commissioner AVRAMOPOULOS : Mr President, honourable Members of the Parliament, let me start by telling you that I welcome the opportunity to discuss this very important matter, being already fully aware of your expectations. In October I discussed this with the members of the Committee on Civil Liberties, Justice and Home Affairs (LIBE). You will remember that, Mr Moraes. It should be clear that we all share the same objective. Full visa reciprocity is the central principle of our visa policy framework. With the United States and Canada it is a challenging and sensitive issue, and we all hope for tangible progress.

Before responding to the questions, let me start with the good news concerning Canada. As I told you in the past, I used the window of opportunity offered to us, the EU-Canada summit. A series of meetings and discussions were held ahead in order to reach a mutually satisfactory agreement. I took the plane myself to meet in person the Canadian Immigration Minister John McCallum, in order to address the real situation at political and not at technocratic level. We had a very constructive discussion with the minister and we agreed to engage in a political process to address each other’s concerns and make the lifting of visa obligations for Romania and Bulgaria possible. Indeed, and as I had hinted in my meeting with LIBE, Canada took a positive decision in line with the commitment of McCallum in July. At the summit Canada announced its decision to lift in late 2017 the visa requirements for all Bulgarian and Romanian citizens. Moreover, certain categories of Bulgarian and Romanian travellers who visited Canada in the past 10 years, or who currently possess a valid visa issued by the United States, will already become visa-free from 1 May 2017.

We all welcome very much this outcome. It is a strong indication that diplomatic channels and engagement can achieve positive results. On this point, I would like to thank Members of Parliament for their constructive contribution too. We worked in close coordination with Bulgaria and Romania and they played a central role in addressing Canadian concerns. We have to continue this path to ensure that full visa waiver is achieved. The Commission will continue to do its part, in full cooperation with both Member States.

Now the situation with the United States is different. While I continue discussions with our US partners, most recently at the EU-US JHA Ministerial Meeting on 5 December in Washington, there is no progress to report. But I want to assure you that I will keep this issue high on the agenda with the new administration and Congress. I will personally immediately engage in conference with my new counterparts. I call on all of you to give a chance for the political discussion to take place and to explain the mutual obligations, reservations, goals and work to find a solution.

It is very important to understand that the role of Congress is crucial. The visa waiver programme cannot be expanded without Congress, particularly if Member States do not meet the thresholds of US legislation. It seems certain that temporarily suspending the visa waiver for US citizens would immediately lead to a visa requirement imposed on all EU citizens. We are aiming for the opposite, not a reciprocal visa requirement but a reciprocal visa waiver. Let me be very clear. The Commission would not hesitate to adopt the respective acts if that would improve the situation of EU citizens, and lead to the visa waiver for all. At the same time, the Commission has a responsibility to inform you, the co-legislators, about negative consequences on the EU and its citizens from the implementation of our rules.

And this leads me to your questions. There is a regulation that says ‘the Commission shall adopt a delegated act’. But there are also other requirements and obligations to be followed which are difficult to reconcile with this obligation, and which are equally important. The same regulation says that: ‘the Commission shall take into account the consequences of the suspension of the exemption from the visa requirements for the external relations of the Union and its Member States with the third country in question’.

The approach we put forward back in April outlined these adverse consequences. We still consider that the negative impacts we identified, which were not questioned by other institutions and stakeholders, should be taken fully into account. If a visa requirement is reintroduced, it will be difficult to explain to millions of EU citizens travelling to the United States every year that the EU serves their interests and that the EU action was appropriate in this case. Would legal arguments be convincing for thousands of EU citizens that would likely lose their jobs due to the expected decrease of US visitors? I very much doubt it.

A recent study for the World Travel and Tourism Council suggests that suspending the visa waiver would annually lead to a 22% drop in visitors to the European Union, or 5.5 million fewer visitors from the United States and Canada. This will be equal to a loss of EUR 6.8 billion annually, risking the loss of 140 000 jobs in the tourism industry. The most affected Member States will be Italy, Spain, France, Germany, the Netherlands and Poland. I am asking the question: can we really afford that loss?

Dear Members of Parliament, we are in a very unpleasant situation, but determined to work to achieve visa-free travel for all EU citizens to the United States, as we managed to do with Canada. Let us work together in this effort

 

 

TERROR AND EXCLUSION IN EU ASYLUM LAW CASE – C-573/14 LOUNANI (GRAND CHAMBER, 31 JANUARY 2017)

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG  ON  MARCH 3, 2017 (NB: EMPHASIS ARE ADDED)

By Stephen Coutts

The on-going conflict in the Middle East has profound implications for the global legal order in two areas of law in particular: asylum law and anti-terrorist law.

The European Union and EU law have not been immune from this development and in many respects are closely affected by these geopolitical developments and their legal impact. After a fitful start, the EU has become a major actor in the area of criminal law, and in particular anti-terrorist law, on the one hand and in asylum law on the other.[1]

The two fields meet in Article 12(2)(c) of the Qualification Directive, itself reflecting Article 1F of the Geneva convention,[2] providing that an individual shall be excluded from eligibility for refugee status for acts contrary to the principles and purposes of the United Nations, acts which have been held to include acts of terrorism.

Furthermore, Article 12(3) of the Qualification Directive extends that exclusion to ‘persons who instigate or otherwise participate in the commission of the crimes or acts’ mentioned in Article 12(2). The status of terrorist and refugee are legally incompatible and mutually exclusive; one simply cannot be a terrorist and also a refugee. What, however, constitutes a terrorist for the purposes of Article 12 of the Qualification Directive? That essentially is the question at stake in Lounani.

Facts and Background Context

Mr Lounani, a Moroccan national, arrived in Europe in 1991 and initially applied for asylum in Germany where his application was rejected. He moved to Belgium in 1997 and lived there illegally. In 2010 he was convicted of membership of the Moroccan Islamic Combatant Group (MICG), an organisation that has been listed by the United Nations Security Council as a terrorist organisation. It appears he occupied a leading role in the MICG over many years and participated in various aspects of its organisation including fund-raising, forging of documents and arranging the travel of individuals to Iraq.

Crucially, however, he was never convicted of direct terrorist acts and there appears to be some dispute as to whether the MICG and/or individuals Mr Lounani aided in travelling to Iraq themselves participated directly in terrorist acts.

Mr Lounani subsequently claimed asylum in Belgium on the grounds that, following his conviction for terrorist related offences, he would be persecuted upon return to Morocco. An initial decision excluding him from refugee status on the basis of Article 12(2)(c) of the Qualification directive was overturned on review. That decision was in turn appealed to the Conseil d’Etat which stayed the case and referred a number of questions to the Court of Justice asking essentially if the exclusion clause operated only in relation to terrorist acts as defined in Article 1 of the Framework Decision on Combatting Terrorism (FDCT)[4] or if ancillary acts of participation in terrorist organisation and facilitating the commission of terrorist acts could be considered contrary to the principles and values of the UN as referred to in Articles 12(2)(c) and 12(3)[5] of the Qualification Directive.

Finally, if so, the Conseil d’Etat queried if a criminal conviction would automatically lead to the application of the exclusion clause.

Opinion of AG Sharpston[6]  Continue reading

Escale à Canossa ? La protection des droits fondamentaux lors d’un transfert « Dublin » vue par la Cour de justice (C.K. c. Slovénie, C-578/16 PPU)

ORIGINAL PUBLISHED HERE  POSTED ON 1 MARS 2017

par Henri LABAYLE

Le trajet conduisant de Luxembourg à Strasbourg est parfois moins direct qu’il n’y paraît, impliquant des retours en arrière imprévus mais salutaires. La Cour de justice en aurait-elle fait l’expérience, moins douloureusement certes qu’Henri IV devant Grégoire VII ?

L’arrêt rendu par sa cinquième chambre dans l’affaire C.K. c. Slovénie (C-578/16 PPU) le 16 février 2017 interroge de ce point de vue.

Questionnée par le juge suprême slovène quant à l’étendue du contrôle des conditions de déroulement d’un transfert Dublin vers un autre Etat membre, la Croatie, la Cour de justice était attendue avec curiosité. Elle était en effet assez clairement invitée par le juge national à se prononcer sur les implications de sa jurisprudence refusant, comme chacun le sait, que l’on s’intéresse de trop près aux conditions dans lesquelles les droits fondamentaux sont appliqués dans certains Etats de l’Union, ceci au nom de la confiance mutuelle. Sauf qu’en l’espèce, c’était moins l’Etat de destination qui posait question, la Croatie justifiant la confiance, que le procédé utilisé pour y revenir, la décision de transfert elle-même.

A l’instant où cette confiance mutuelle est mise à mal par les comportements étatiques et où ce principe fondamental ne semble guère trouver grâce dans le futur règlement Dublin IV, l’appui de la Cour lui est ici mesuré. La réponse de cette dernière se situe au cœur d’un double courant d’interrogations.

Le premier demeure plus agité que ne semble l’avoir perçu la chambre de jugement. Il confronte des visions demeurant sensiblement différentes entre la Cour européenne des droits de l’Homme et la CJUE quant à la portée du principe de confiance mutuelle sur le continent européen (I). Le second est tout aussi important, à l’instant où « Dublin IV » est négocié. Il concerne la portée de la protection que le droit européen accorde à des étrangers gravement malades en situation d’être transférés dans l’Etat responsable du traitement de leur demande d’asile (II).

I – De la relation de confiance unissant les Etats membres au sein de l’Espace de liberté, sécurité et justice 

La Cour de justice ordonne le fonctionnement de l’ELSJ autour du principe de confiance mutuelle, telle est la réalité juridique. Cette vision a trouvé son expression la plus éclatante dans le considérant célèbre de l’avis 2/13 selon lequel le principe de confiance mutuelle, doté d’une « importance fondamentale », « impose, notamment en ce qui concerne l’espace de liberté, de sécurité et de justice, à chacun de ces États de considérer, sauf dans des circonstances exceptionnelles, que tous les autres États membres respectent le droit de l’Union et, tout particulièrement, les droits fondamentaux reconnus par ce droit … »(pt 191).

Il en résulte des conséquences non négligeables lorsqu’un Etat membre éprouve des doutes quant à l’un de ses partenaires, en matière d’asile comme en matière d’entraide répressive, par exemple à propos du mandat d’arrêt européen (CJUE, 26 février 2013, Melloni, C-399/11).

a. L’impact du principe de confiance mutuelle sur le système « Dublin »

Continue reading

Today’s Court (non) decision on the (non) EU “deal”(?) with Turkey..

by Luigi LIMONE (*)

eu-turkeystatement-junckertuskturkey-180316

The General Court has declared today that it lacks jurisdiction to hear and determine the actions brought by three asylum seekers against the EU-Turkey statement which was concluded to resolve the EU “migration” crisis.

On 18 March 2016, a statement setting out how the Member States of the EU and Turkey aiming primarily to address the current migration crisis and secondly to combat human trafficking between Turkey and Greece (‘the EU-Turkey statement’) was published, in the form of a press release, on the website shared by the European Council and the Council of the European Union. The main points of that statement are the following:

  1. a) all new irregular migrants crossing from Turkey to the Greek islands as from 20 March 2016 will be returned to Turkey;
  2. b) migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive;
  3. c) migrants not applying for asylum or whose application for asylum has been found to be unfounded or inadmissible will be returned to Turkey;
  4. d) for every Syrian being returned to Turkey from the Greek islands, another Syrian will be resettled from Turkey to the European Union.

Several doubts have already been raised concerning the nature and the classification of the ‘EU-Turkey statement‘. In particular, the legal nature of the agreement with Turkey was debated before the Civil Liberties Committee of the European Parliament following a presentation by the legal service of that institution. The latter has considered that the so called EU-Turkey ‘deal’ is not legally binding but it is just a political catalogue of measures adopted on their own specific legal basis.

While on its side the European Parliament decided to follow its legal service approach by considering that, no matter of what had been negotiated, it remains free to adopt or not the legislative, budgetary and operational measures which can implement the agreement, the European Council was notified on 31 May and 2 June 2016 of three similar applications for annulment lodged before the General of the EU Court of Justice under Article 263 TFEU.

The three applications were directed against the European Council and were asking the Court to annul the ‘EU-Turkey statement’ which had been issued following the meeting of 18 March 2016 of the Members of the European Council and their Turkish counterpart.

On that occasion, the applicants, two Pakistani nationals and an Afghan national, challenged the ‘EU-Turkey’ statement, considering that the statement constitutes an agreement which could produce legal effects adversely affecting the applicants’ rights and interests.

The two Pakistani nationals and an Afghan national, in fact, travelled from Turkey to Greece, where they submitted applications for asylum. In those applications, they stated that, for a variety of reasons, they would risk persecution if they were returned to their respective countries of origin. In view of the possibility, pursuant to the ‘EU-Turkey statement’, that they might be returned to Turkey if their applications for asylum were rejected, those persons decided to bring actions before the General Court of the European Union with a view to challenging the legality of the ‘EU-Turkey statement’.

According to those asylum seekers, that statement is an international agreement which the European Council, as an institution acting in the name of the EU, concluded with the Republic of Turkey. In particular, they claimed that this agreement represented an infringement of the rules of the TFUE (confirmed by the EU Charter of fundamental rights) as well as the procedure for the the conclusion of international agreements by the EU (218 TFEU).

In the orders made today, the General Court has declared that it lacks jurisdiction to hear and determine the actions pursuant to Article 263 TFEU as the EU Member States are not listed in that article . In such orders, the Court recognises , first of all, that there were inaccuracies in the press release of 18 March 2016 regarding the identification of the authors of the ‘EU-Turkey statement’. The press release indicated, firstly, that it was the EU, and not its Member States, which had agreed on the additional action points referred to in that statement and, secondly, that it was the ‘Members of the European Council’ who had met with their Turkish counterpart during the meeting of 18 March 2016 which had given rise to that press release.

Considering that neither the European Council nor any other institution of the EU has decided to conclude an agreement with the Turkish Government on the subject of the migration crisis, the Court has therefore concluded that, in the absence of any act of an institution of the EU, the legality of which it could review under Article 263 TFEU, it lacks jurisdiction to hear and determine the actions brought by the three asylum seekers.

The Court has, in fact, considered that, even supposing that an international agreement could have been informally concluded during the meeting of 18 March 2016, (something which has been denied by the European Council, the Council of the European Union and the European Commission) in the present case, that agreement would have been an agreement concluded by the Heads of State or Government of the Member States of the EU and the Turkish Prime Minister and not by the European Council itself. In an action brought under Article 263 TFEU, however, the Court does not have jurisdiction to rule on the lawfulness of an international agreement concluded by the Member States.

Even assuming that the Court has no competence to intervene in such a case, the real problem is that apparently the General Court does not object on the fact that all the members of an EU institution can adopt measures falling in the EU competence without being bound by the EU law (procedural and material). This fuzziness  on the legal nature of ‘the EU-Turkey statement’ paves the way on further questions. Do the EU Member States have the power to act in a matter which is already covered by EU measures such as the EU-Turkey readmission agreement? Does this behavior comply with the principle of sincere cooperation between the MS and the EU institutions and notably the European Parliament which will be under the moral obligation to implement measures which it has not approved?  By  following this “creative” path the EU is not trying to introduce a new approach under which readmission agreements will not be more necessary because replaced by other informal agreements, in order to bypass the rules laid down in the EU Treaties for the conclusion of international readmission agreements.

The Joint Way Forward (JWF) declaration on migration issues with Afghanistan and the EU  represents yet another attempt to conclude a readmission agreement, while bypassing the rules laid down in the EU Treaties for the conclusion of international readmission agreements.

The Joint Way Forward declaration aims to facilitate the return process of irregular Afghans and to support their sustainable reintegration in the Afghan society, while fighting the criminal network of smugglers and traffickers at the same time. More precisely, the objective, as stated in the document, is “to establish a rapid, effective and manageable process for a smooth, dignified and orderly return of Afghan nationals who do not fulfil the conditions in force for entry to, presence in, or residence on the territory of the EU, and to facilitate their reintegration in Afghanistan in a spirit of cooperation”.

The document also clarifies that “in their cooperation under this declaration, the EU and Afghanistan remain committed to all their international obligations, in particular: a) respecting the provisions of the 1951 Convention relating to the Status of Refugees and its 1967 New York Protocol; b) upholding the rights and freedoms guaranteed in the International Covenant on Civil and Political rights and the EU Charter on Fundamental Rights and the Universal Declaration on Human Rights; c) respecting the safety, dignity and human rights of irregular migrants subject to a return and readmission procedure”.

Actually, the declaration was defined by Dimitris Avramopoulos, Commissioner for Migration, Home Affairs and Citizenship, as ‘an informal agreement’ which is not legally binding and which, as stated in the document, simply “paves the way for a structural dialogue and cooperation on migration issues, based on a commitment to identify effective ways to address the needs of both sides”.

Once again, a readmission agreement concluded by the European Commission has been technically presented as a ‘statement’, in order to bypass the European Parliament’s democratic scrutiny and the necessary legal procedures or the conclusion of readmission agreements.

As noted by Tony Bunyan, director of Statewatch, the readmission agreement with Turkey of 18 March 2016 originated in the form of two letters and an informal declaration and the European Union has adopted the same approach with Afghanistan and it will probably do the same with the other countries which have been identified as priority targets of the new Partnership Framework on migration.

The legal basis for the conclusion of readmission agreements with third countries is Article 79(3) TFEU which states that “the Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States”. These agreements are negotiated with the partner country on the basis of a negotiating mandate grated by the Council to the Commission and they are then concluded after the European Parliament has given its consent.

According to article 218(6) TFEU the European Parliament must, in fact, give its consent prior to the conclusion of association and similar agreements. Moreover, according to article 210(10) TFEU the European Parliament shall be immediately and fully informed at all stages of the procedure.

The result of these covert negotiations is a continuous ‘discharge of responsibilities’ which has led a non-transparent, grey zone in which the European Commission, under pressure from some Member States, and Germany in particular, appears to have possibility to do whatever it wants, without allowing any debate in the European Parliament and, most importantly, leaving possible human rights violations unchallenged by the elected representatives of the European citizens.

Like for the agreement with Turkey of March 2016, Germany has hardly fought for a rapid adoption of an agreement with Afghanistan. Faced with the rise in arrivals form Afghanistan, in October 2015 the German Ministry of Interior Thomas de Maizières had already announced that Germany wanted to return to Afghanistan all the Afghan nationals who were not eligible for asylum, including those who had lived in Iran or Pakistan and, consequently, had no link to Afghanistan itself, and that to do so he would have urged the European Union to negotiate an agreement with the government of Kabul.

However, unlike the case of the EU-Turkey statement, it is clear that the Joint Way Forward declaration is an agreement concluded between the European Union and the government of Afghanistan. As such, the agreement should be subjected to the exercise of the democratic scrutiny by the European Parliament, as provided by EU law regarding the conclusion of readmission agreements with third countries.

Such a non-transparent approach not only prevents from any form of democratic scrutiny but also ignores the concerns of the civil society about the major risks of rights violations, such as the principle of non-refoulement, exposure to inhuman and degrading treatment, protection against collective expulsions and the right to an effective remedy.

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