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

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

Parliamentary tracker : echoes from LIBE meeting of January 30-3124, 2017

by Luigi LIMONE (*)

Summary :
– Information systems and interoperability
– 2009 Europol Data Breaches
– Europol-Danemark Agreement
– Amnesty Report on Hotspots in Italy
– Residence Permits for Third Country Nationals
– Trade framework Agreement with Turkey
– LIBE delegations to the UN Summit on migration (2016)
– Electorinc votes
– Draft Report on the Reception Directive
– Implementation PNR Directive
– Registration Ships Passengers
– EU-Afghanistan Joint Way Forward (migration)
– Study on criminalisation of humanitarian assistance to irregular migrants
– Implementation Directives on seasonal workers and intracorporate transfert

 
Point 1 – High-Level Expert Group on information systems and interoperability
Presentation of the state of play of the process towards the interoperability of information systems and first results of the High-Level Expert Group’s interim report of December 2016 by Julian King, Commissioner for the Security Union.
Julian King, Commissioner for the Security Union, opened his presentation highlighting the need for an effective information sharing system between Member States. In particular, he reported several repeating cases of people being registered under different identities within the  various EU information systems. Therefore, he underlined the importance of looking at how to improve the quality of the data which are put into the information systems, the access to that data by the national authorities as well as the way in which that data in processed.
He also mentioned the need to increasingly support Member States for the implementation of the EU Passenger Name Record (PNR) directive and claimed that some progress was achieved in the way information is shared between national authorities, mentioning in particular Europol contribution to smart data information.
From his presentation, three priority actions have emerged:  Continue reading

Parliamentary tracker : echoes from LIBE meeting of January 23-24, 2017

by Luigi LIMONE (*)

Summary:
– Confirmation of Claude Moraes as Chairman of LIBE Committee
– State of Roma integration in the EU
– Collection of biometric data of illegally staying third-country nationals
– Structured dialogue with Commissioneer Vera Jourova
– Legal Service presentation of Tele2/SverigeAB ruling on data retention
– EASO assesment on Turkey and Balkan Countries as “safe countries”
– Danemark-Europol cooperation after May 1st 2017
– Structured dialogue with Commissioneer Avramopoulos
– EP report on “Fundamental rights implications of Big Data”
– Outcome of the LIBE delegation in Sweden (19-20 September 2016)

 

The Committee meeting of LIBE of 23 and 24 January opened with the confirmation of Claude Moraes (S&D, United Kingdom) as chairman of the LIBE Committee for the second half of the 8th legislature (2014-2019).

  1. The first point on the agenda was about the ‘State of play of Roma integration in Member States’.

It has been opened by an intervention of  Ioannis Dimitrakopoulos, Head of Equality and Citizens’ Rights Department for the European Union Agency for Fundamental Rights (FRA) who presented the findings of the Second European Union Minorities and Discrimination (MIDIS) Survey on Roma inclusion.
This Survey build on the results of the first wave of the large-scale survey conducted by the European Union Agency for Fundamental Rights (FRA) in 2008 and is particularly focused on the issue of Roma inclusion in order to fulfill both the EU global strategy for the next period and the UN Agenda for sustainable development..
The main emerging issues of the second survey based have been :
1) Education: this is the only area where some improvements have been registered, notably for young children. However, almost half of Roma children don’t follow secondary schools and almost 95% do not attend any form of post-secondary education.
2) Youth: on average, 63% of young Roma (aged 16-24) are neither working nor studying or following professional training (compared to 12% of their non-Roma peers of the same age in the EU).
3) Employment: fewer than one on three Roma have a paid job, and the situation is even worse for Roma women.
Most of Roma people are marginalized and not less than 41% of Roma living in Europe is discriminated in employment, education or when trying to reach health care centers or the public administration. Continue reading

Worth reading: The EP legislative initiative on Robotics

The European Parliament has just adopted on Thursday 16 February  by 396 votes in favor, 123 against and 85 abstentions a legislative initiative in compliance with the art. 225 of the TFEU. It deals with Robotics and has been adopted  following a report of  Mady Delvaux (S&D, Luxembourg) on behalf of the Legal Affairs Committee (JURI).

This report follows an important study on the ‘Ethical aspects of cyber-physical systems‘, recently conducted for the European Parliament’s STOA (Science and Technology Options Assessment) Panel. (see the animated infographic highlighting the range of concerns that require legal and ethical reflection, by linking different entry points – areas, concerns, and committees-  with each other).

The text adopted by the plenary is still very ambitious but some important suggestions of the JURI committee did’nt found the required majority in plenary. The most innovative ones would had been the introduction of basic universal income and of a tax on work done by robots as measures which can partially compensate the loss of working opportunities for “humans”.  The proposal to be able to put together collective redress against a robotic company was not retained either.

All that having been said the main point is: will it be followed by a formal Commission proposal and become a legal reality?

By reading the position taken by the Commission representatives during the debates (see below) it does not look like. Let’s hope that this time the Commission will not take the same position it took for the EP legislative proposal to establish an European Code of Good administration when it declared that it was …too early. Not being followed by the Commission should be extremely frustrating for an institution which is the only one directly elected by the EU Citizens  and which should in principle know what has to done but unlike the national parliaments is still lacking a true power of legislative initiative …

Quite rightly such power has been envisaged  this week by another Parliamentary report (Verofhstadt) on the possible changes to the current Treaties (Proposes, moreover, that in line with the common practice in a number of Member States, both chambers of the EU legislature, the Council and, in particular, the Parliament, as the only institution directly elected by citizens, should be given the right of legislative initiative, without prejudice to the basic legislative prerogative of the Commission; ).

Wishful thinking ?  Quite probably but “Spes Ultima Dea) ….

EDC

” EP DEBATES : …Carlos Moedas, Member of the Commission. – Mr President, on behalf of my colleague Věra Jourová let me start by thanking the rapporteur, Ms Delvaux, and all the MEPs involved. This is a crucial report on all the legal questions related to development of robotics and artificial intelligence. This House, to my knowledge, will be one of the first to have a clear and comprehensive position on robotics and artificial intelligence, a topic that is getting great public attention, and rightly so. Your text highlights the challenges and opportunities of this sector, and points towards a clear need for a coherent European approach. You are also calling for Europe to have a strong presence and investment in its technology in order to maintain leadership. In the European Commission, we have long recognised the importance and the potential of robotics and artificial intelligence, and the need for significant investment in these areas. We have set an ambitious public and private partnership for robotics in Europe: Sparc. This partnership not only brings the academic and research institutions, industry and business together, but also looks into questions related to ethics and law. Sparc is by far the biggest civilian research programme in this area in the world, with EUR 700 million from EU funding from Horizon 2020 to be leveraged up to EUR 2.8 billion by private investment…..()… Let me now comment in particular on your request for the Commission to come forward with a legislative proposal on civil liability for damage caused by robots. First, as you know, we already have EU legislation applying to robots. The Machinery Directive, the General Product Safety Directive, the proposed legislation on medical devices, and the regulation on common rules in the field of civil aviation currently under revision also includes concrete measures to ensure the safe operation of civil drones. And the new General Data Protection Regulation that will also be fully applicable to any kind of processing of personal data, which includes artificial intelligence and robots.

Second, we are obviously looking at any need for adjustment of the current legislation. And third we are well aware that legal certainty on liability is of paramount importance for innovators, investors and consumers, providing them with the legal certainty they need. But the complexity of digital technologies makes it particularly difficult to determine who is liable and to what extent in case of failure. That is why the Commission has put in its communication and presented a communication last month on building up a European data economy. We are consulting with a wide range of stakeholders on the new challenges in this field, covering the liability questions relating to autonomous systems. Simultaneously, we are evaluating the Product Liabilities Directive with regard to emerging technologies.

Fourth, testing and experimenting will be important as will gathering data and gaining experience. This in turn will then help us with designing a suitable legal framework. On the communication on building a new European data economy, we included plans for cross-border corridors to test connected automated driving.
My fifth and final point on the question of legislation is to underline the importance of smart legislation, technologically neutral and future proof when dealing with technologies and jobs. As Ms Delvaux said, we cannot even imagine what they will be in the future.

” Honourable Members, I agree with you that the impact of digitalisation on our societies and our labour market needs to be closely monitored and anticipated, and we have to improve our understanding of this phenomenon. The different studies that have assessed that evolution reached diverging conclusions from catastrophic predictions on the labour market to a positive impact on job creation. In 2015, the Fraunhofer Institute indicated that EU companies which are intensive users of robotics are less likely to offshore production to low-cost regions because robots improve their cost production so much that they can stay in high-wage regions and create other jobs. We all know that technological change will not only replace or change existing tasks, but it will, as Mr Mayer said, create new jobs in services, it will complement human skills. Robots are also used in many areas with labour shortages such as healthcare, farming and even manufacturing. Many robots do tasks that are repetitive and dangerous for humans, such as inspecting oil tanks or welding metal parts. Far from replacing humans, robots allow the workforce to focus on other more economically useful, creative or social activities where robots cannot and will never replace us.
The Commission is fully aware of the challenges ahead and has already launched concrete measures to address them. We adopted a New Skills Agenda for Europe, the Digitising European Industry blueprint and, last December, we launched a Digital Skills and Jobs Coalition, which aims at equipping the workforce at large with the necessary digital skills to thrive in a digital workplace.
Ladies and gentlemen once again, I would like to thank the European Parliament for this timely and comprehensive report and for the support for our activities. The issues raised and the measures proposed will need broader consultation and an in-depth analysis of their impact and consequences before we can draw conclusions, including on the possible legislative needs. Thank you for attention and I’m looking forward to our discussion.”

 

 

European Parliament (8th Legislature 2014-2019)
TEXTS ADOPTED Provisional edition
P8_TA-PROV(2017)0051

European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL))
The European Parliament,
– having regard to Article 225 of the Treaty on the Functioning of the European Union,
– having regard to Council Directive 85/374/EEC1,
– having regard to the study on Ethical Aspects of Cyber-Physical Systems carried out on behalf of the Parliament’s Science and Technology Options Assessment (STOA) Panel and managed by the Scientific Foresight Unit (STOA), European Parliamentary Research Service;
– having regard to Rules 46 and 52 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Transport and Tourism, the Committee on Civil Liberties, Justice and Home Affairs, the Committee on Employment and Social Affairs, the Committee on the Environment, Public Health and Food Safety, the Committee on Industry, Research and Energy and the Committee on the Internal Market and Consumer Protection (A8-0005/2017),

Introduction

A. whereas from Mary Shelley’s Frankenstein’s Monster to the classical myth of Pygmalion, through the story of Prague’s Golem to the robot of Karel ?apek, who coined the word, people have fantasised about the possibility of building intelligent machines, more often than not androids with human features;

B. whereas now that humankind stands on the threshold of an era when ever more sophisticated robots, bots, androids and other manifestations of artificial intelligence (“AI”) seem to be poised to unleash a new industrial revolution, which is likely to leave no stratum of society untouched, it is vitally important for the legislature to consider its legal and ethical implications and effects, without stifling innovation;

C. whereas there is a need to create a generally accepted definition of robot and AI that is flexible and is not hindering innovation;

D. whereas between 2010 and 2014 the average increase in sales of robots stood at 17% per year and in 2014 sales rose by 29%, the highest year-on-year increase ever, with automotive parts suppliers and the electrical/electronics industry being the main drivers of the growth; whereas annual patent filings for robotics technology have tripled over the last decade;

E. whereas, over the past 200 years employment figures had persistently increased due to the technological development; whereas the development of robotics and AI may have the potential to transform lives and work practices, raise efficiency, savings, and safety levels, provide enhanced level of services; whereas in the short to medium term robotics and AI promise to bring benefits of efficiency and savings, not only in production and commerce, but also in areas such as transport, medical care, rescue, education and farming, while making it possible to avoid exposing humans to dangerous conditions, such as those faced when cleaning up toxically polluted sites;

F. whereas ageing is the result of an increased life expectancy due to progress in living conditions and in modern medicine, and is one of the greatest political, social, and economic challenges of the 21st century for European societies; whereas by 2025 more than 20 % of Europeans will be 65 or older, with a particularly rapid increase in numbers of people who are in their 80s or older, which will lead to a fundamentally different balance between generations within our societies, and whereas it is in the interest of society that older people remain healthy and active for as long as possible;

G. whereas in the long-term, the current trend leans towards developing smart and autonomous machines, with the capacity to be trained and make decisions independently, holds not only economic advantages but also a variety of concerns regarding their direct and indirect effects on society as a whole;

H.whereas machine learning offers enormous economic and innovative benefits for society by vastly improving the ability to analyse data, while also raising challenges to ensure non-discrimination, due process, transparency and understandability in decision-making processes;

I. whereas similarly, assessments of economic shifts and the impact on employment as a result of robotics and machine learning need to be assessed; whereas, despite the undeniable advantages afforded by robotics, its implementation may entail a transformation of the labour market and a need to reflect on the future of education, employment, and social policies accordingly;

J. whereas the widespread use of robots might not automatically lead to job replacement, but lower skilled jobs in labour-intensive sectors are likely to be more vulnerable to automation; whereas this trend could bring production processes back to the EU; whereas research has demonstrated that employment grows significantly faster in occupations that use computers more; whereas the automation of jobs has the potential to liberate people from manual monotone labour allowing them to shift direction towards more creative and meaningful tasks; whereas automation requires governments to invest in education and other reforms in order to improve reallocation of the types of skills that the workers of tomorrow will need;

K. whereas in the face of increasing divisions in society, with a shrinking middle class, it is important to bear in mind that developing robotics may lead to a high concentration of wealth and influence in the hands of a minority;

L. whereas the development of robotics and AI will definitely influence the landscape of the workplace what may create new liability concerns and eliminate others; whereas the legal responsibility need to be clarified from both business sight model, as well as the workers design pattern, in case emergencies or problems occur;

M. whereas the trend towards automation requires that those involved in the development and commercialisation of AI applications build in security and ethics at the outset, thereby recognizing that they must be prepared to accept legal liability for the quality of the technology they produce;

N. whereas Regulation (EU) 2016/679 of the European Parliament and of the Council1 (the General Data Protection Regulation) sets out a legal framework to protect personal data; whereas further aspects of data access and the protection of personal data and privacy might still need to be addressed, given that privacy concerns might still arise from applications and appliances communicating with each other and with databases without human intervention;

O. whereas the developments in robotics and AI can and should be designed in such a way that they preserve the dignity, autonomy and self-determination of the individual, especially in the fields of human care and companionship, and in the context of medical appliances, ‘repairing’ or enhancing human beings;

P. whereas ultimately there is a possibility that in the long-term, AI could surpass human intellectual capacity;

Q. whereas further development and increased use of automated and algorithmic decision-making undoubtedly has an impact on the choices that a private person (such as a business or an internet user) and an administrative, judicial or other public authority take in rendering their final decision of a consumer, business or authoritative nature; whereas safeguards and the possibility of human control and verification need to be built into the process of automated and algorithmic decision-making;

R. whereas several foreign jurisdictions, such as the US, Japan, China and South Korea,are considering, and to a certain extent have already taken, regulatory action with respect to robotics and AI, and whereas some Member States have also started to reflect on possibly drawing up legal standards or carrying out legislative changes in order to take account of emerging applications of such technologies;

S. whereas the European industry could benefit from an efficient, coherent and transparent approach to regulation at Union level, providing predictable and sufficiently clear conditions under which enterprises could develop applications and plan their business models on a European scale while ensuring that the Union and its Member States maintain control over the regulatory standards to be set, so as not to be forced to adopt and live with standards set by others, that is to say the third countries which are also at the forefront of the development of robotics and AI;

General principles Continue reading

Prison systems and conditions in the EU

by Luigi LIMONE (*)

Introduction

Living conditions in prisons are regulated by a variety laws and guidelines ranging from constitutional provisions to national criminal and penitentiary laws and international law principles. Relevant human rights provisions include, in particular, those protecting the right to personal liberty and clarifying the grounds on which it may be restricted (Article 5, ECHR and Article 6, EU Charter of Fundamental Rights), and those prohibiting torture and other forms of inhumane and degrading treatment or punishment (Article 3, ECHR and Article 4, EU Charter).

These rules, as interpreted by the competent courts, clarify the grounds on which deprivation of liberty may be based and the minimum standards that detention conditions must comply with. Both fundamental rights standards and broadly agreed criminal justice principles point to the conclusion that imprisonment should only be used as a measure of last resort in response to serious crimes, as it entails deprivation of the fundamental right to liberty.

EU legal framework

While prison conditions are mainly a responsibility of Member States, the European Union has already started to deal with them, (see the 1000 pages research on the subject  here) as clarified by the European Commission in its 2011 Green Paper and in the 2010 Stockholm Programme (under the pressure of the European Parliament…) as well as in many European Parliament specific Resolutions.

In order to promote mutual trust, judicial cooperation and the proper functioning of mutual recognition tools in the criminal law area (as foreseen by the EU Charter and by  Article 82, TFEU), it is essential to ensure that adequate detention conditions exist in all Member States.

Several mechanisms have been created in Europe in order to monitor detention conditions in prisons. Such mechanisms are meant as a tool to prevent torture and ill-treatment of detainees, and, more generally, to verify detention conditions at any given time. In particular, the 1987 Council of Europe’s Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) created a monitoring mechanism which is empowered to visit any place within the jurisdiction of the States parties where persons are deprived of their liberty by a public authority.

Such a mechanism is a preventive tool against torture and inhumane treatment which aims to monitor both the active behaviour of law enforcement authorities, collecting allegations of violence and abuses, and the factual conditions of prisons and other detention institutions, verifying whether they comply with the standards which the CPT itself has developed over time. All 28 EU Member States are parties to the Convention and therefore subject to the monitoring mechanism it establishes.

In line with international standards, rules concerning the treatment of persons deprived of their liberty have been developed in the European context.

The European Prison Rules, first adopted in 1987 and then amended in 2006, are a set of recommendations emanating from the Committee of Ministers of the Council of Europe. As such, they are not binding, but they have been endorsed politically by the Council of Europe, as well as in several EU documents. (see a previous FREE Group post here)

The starting point of these recommendations is that no one is to be deprived of liberty except from a measure of last resort and in accordance with a procedure prescribed by law, restrictions placed on prisoners must be limited to those strictly necessary and proportionate and detention is to be managed so as to facilitate prisoners’ reintegration.

The Committee for the Prevention of Torture (CPT) has also developed very detailed standards concerning detention conditions, as well as good practices that are meant to reduce the risk of detainees being subjected to torture or other degrading treatment. In particular, the CPT has defined specific guidelines addressing overcrowding, determining for instance the exact minimum amount of space that each prison inmate must be afforded in a cell. It has also published its general standards with regard to detention conditions and treatment of prisoners.

Last but not least, the European Court of Human Rights has developed its case-law on detention conditions mostly on the basis of Article 3 ECHR which prohibit degrading and inhumane treatment or punishment. According to the Court, violations of Article 3 may arise not only by positive acts of ill-treatment and violence by State authorities over prisoners, but also through the imposition of degrading detention conditions or through lack of action in the face of allegations of ill-treatment between prisoners.

The Court has affirmed that “prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty”. They therefore continue to enjoy the rights to family life, to marry, to freedom of expression, to practise their religion, to access to a lawyer or court, and to respect for correspondence. As a result, any restrictions on these rights must be justified.

EP Hearing on Prisons’ systems and conditions in the EU Continue reading

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

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG  HERE

By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf 

Introduction

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

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

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

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

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

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

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

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

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

Opinion of AG Mengozzi

The main issue at stake

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

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

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

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

Applicability of Article 25(1) of the Visa Code

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

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

The scope of the Charter of Fundamental Rights

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

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

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

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

Practical implications for the application of X and X

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

Comment

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

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

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

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

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

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

 

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