Analysis :The second phase of the Common European Asylum System: A brave new world – or lipstick on a pig? By Professor Steve Peers, (*) University of Essex

ORIGINAL PUBLISHED ON STATEWATCH

(* FREE Group Member)

8 April 2013

Several years ago, the EU set itself the deadline of 2010 – later postponed to 2012 – for completing the second phase of the Common European Asylum System (CEAS). Near the end of March 2013, the European Parliament (EP) and the Council (the Member States’ interior ministers) finally agreed upon the texts of the two remaining legislative measures to this end.
No further EU measures on asylum (other than a revision of the current European Refugee Fund) are currently under discussion or planned for the time being. So the recently agreed rules will likely govern the issue of asylum in the EU for a number of years to come.

The objectives of the second phase of the Common European Asylum System were set out in the policy plan on asylum published by the Commission in 2008 (see the links below). This policy plan began by pointing out some key general trends.

In particular, a ‘critical flaw’ of the first phase of the Common European Asylum System was the wide difference in Member States’ recognition rates, ie the percentage of persons from the same country of origin whose claim for refugee status was accepted or not.

This divergence created ‘secondary movements’ (ie movements of asylum-seekers between Member States) and ‘goes against the principle of providing equal access to protection across the EU’.
Also, an increasing number of applicants were given ‘subsidiary protection’, ie a form of protection other than refugee status, and it was necessary to take account of this when developing the second phase legislation.

As for the content of the Common European Asylum System, the objective of creating the system was first agreed back in 1999, at the European Council (ie summit meeting) in Tampere, Finland. It was then agreed that there should be a ‘uniform status of asylum’ which would be ‘valid throughout the Union’.

Since the entry into force of the Treaty of Lisbon in 2009, these objectives are now a legally binding part of the EU Treaties (Article 78 of the Treaty on the Functioning of the European Union).

The most recent multi-year Justice and Home Affairs programme, agreed in 2009 (the ‘Stockholm programme’) states that:

The European Council remains committed to the objective of establishing a common area of protection and solidarity based on a common asylum procedure and a uniform status for those granted international protection. While [the] CEAS should be based on high protection standards, due regard should also be given to fair and effective procedures capable of preventing abuse. It is crucial that individuals, regardless of the Member State in which their application for asylum is lodged, are offered an equivalent level of treatment as regards reception conditions, and the same level as regards procedural arrangements and status determination. The objective should be that similar cases should be treated alike and result in the same outcome.

Furthermore:

There are still significant differences between national provisions and their application.
In order to achieve a higher degree of harmonisation, the establishment of CEAS, should remain a key policy objective for the Union. Common rules, as well as a better and more coherent application of them, should prevent or reduce secondary movements within the Union, and increase mutual trust between Member States.
With the recent agreement in principle on all of the remaining legislative proposals, it is time to assess whether the second phase of the Common European Asylum System will achieve the objective of ensuring common standards based on a high degree of protection.

Overview

There are five main measures making up the first phase of the Common European Asylum System, and all of them are being updated as part of the second phase of the system.

The state of play of these five measures is as follows: Continue reading “Analysis :The second phase of the Common European Asylum System: A brave new world – or lipstick on a pig? By Professor Steve Peers, (*) University of Essex”

An european area of freedom, security and justice ? Paving the way from Stockholm …to Rome in 2014

On November 7th the FREE Group submitted to the Chairman and other members of the Civil liberties Committee of the European Parliament its “Call for a true European Area of Freedom Security and Justice”. The main aim of the “Call” was to evaluate what has been done (or not done) since the entry into force of the Lisbon Treaty and the adoption of the Stockholm Programme.
Learning from failures and successes is a pre-condition for the new phase which will start from December 1st, 2014 (at the end of the five-years transitional period for the measures adopted before the Lisbon Treaty in judicial and police cooperation domain) (1).

According to the FREE Group “CALL” from December 2014 onward, EU and its Member States have to close the current gap between the EU legislation and the principles and objectives now outlined in the Treaties and in the European Charter of fundamental rights. Needless to say, the “lisbonisation” of police and judicial cooperation in penal matters, (1) will be the first test of the real will of the member States and of the EU institutions. Unfortunately the current situation is not promising at all and the announced UK opt-out will not make things easier either.
However, a fundamental shift of responsabilty between the EU institutions is also needed to make the EAFSJ more legitimate and credible.

The European Council which has acted until now practically alone when it has adopted the multiannual programmes of Tampere (1999), Den Haag (2004) and even Stockholm (2009). It should now accept the fact that after Lisbon, even if it will maintain its strategic role in this area (art.68 TFEU) it has to play it by taking in account the new EU institutional balance arising from the Treaties and the Charter. The new role of the European Parliament, of the Commission and of the Court of Justice in the EAFSJ policies requires a different relation with the European Council which is no more the “Deus ex machina” but an institution which like all the others should respect the principle of loyal cooperation, abide to the obligations of transparency (art. 15 TFEU), respect of democratic principles, dialog with civil society (art.11 TEU) and, last but not least, be accountable to the EU citizens.
In this perspective a strong interaction with the other Institutions directly elected by the european citizens such the European Parliament and of the national parliaments become unavoidable.
Moreover a stronger integration of the European Council within the “ordinary” EU institutional dialogue will not only re-establish the checks and balances within the EU (required since 1958 by the ECJ “Meroni” ruling) but could also trigger as a substantial effect, a real political debate also betweeen the european political “families” which still prefers hiding themselves behind the EU institutional machinery.
If such an open political debate arises it will be extremely beneficial for the all EU construction and could prove that the EAFSJ policies are no more an area restricted to skilled diplomats and burocrats “elites” shaping the Council and Commission’s Strategies, Conclusions, Guidelines, Roadmaps… .

The future Italian Presidency of the EU Council which will take place in the second semester of 2014, could play a decisive role for a more transparent and democratic phase of the EAFSJ.

However to make this change possible hard preparatory work is needed and should start already now because the EU is a sort of “super carrier” which requires time and skillfulness to change its direction. Moreover as soon as this change of strategy will become apparent it will inevitably create the opposition inside the Council, the Commission and even in the European Parliament as it happened for the “access to documents” file. It is well known that soon after the “Turco” ruling of the Court of Justice which has required more transparency in the Council and Commission these institutions have developped a clear opposite strategy to “protect” their old decision making procedures.

This kind of turf wars between the EU institutions could be extremely dangerous from an european citizen’s perspective because the EAFSJ policies should now be negotiated and implemented in full compliance with the EU Charter. They have become the core of a new European Public order which can be considered democratic only if the EU citizens and their representatives could influence both the national and European level. This objective was crystal clear when the Charter has been negotiated, and it has been reiterated also by seminal ruling of national Constitutional Courts, but since then it looks fading away from the EU legislative works and debates.

However this sort of resilience of the “Maastricht style” even after the Lisbon Treaty and EU Charter risks to be a slippery slope for the EAFSJ policies.

For thirty years the EU has underestimated the close relation between the EURO and a true EU Economic policy; let’s hope that the same mistake will not be repeated for the relation which has now to established between the EU Charter and the relevant EAFSJ policies. They should no more evolve, as it is still now the case, in a parallel world separated from the other EU policies notably in the economic and social sphere. In politics (as in nature) everything is linked. Again, the role that the future Italian Presidency could play will be extremely important because it will be at the beginning of a new EU legislature as well as of the new 18th months Trio Presidency cycle which will cover from 1st of July 2014 to December 31st 2015.

By framing the new global EU roadmap bringing together the EAFSJ policies with the new EU 2020 agenda the Italian Presidency can make the difference by setting a new bridge on (still) troubled waters.

EDC

1. See artt 9 and 10 of Protocol 36 on “TRANSITIONAL PROVISIONS CONCERNING ACTS ADOPTED ON THE BASIS OF TITLES V AND VI OF THE TREATY ON EUROPEAN UNION PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OF LISBON

Article 9
The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.
The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.

Article 10
1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.
5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen Acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area
of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.”

European Data Protection : legislative negotiations soon to be started …

Three years after the entry into force of the Lisbon treaty the long awaited legislative negotiations on the future European Union legal framework on data protection will now start between the European Parliament and the Council of the European Union. The competent parliamentary Committee LIBE will now debate two reports dealing respectively with
– a first report on the draft EU regulation covering the cases where possible the private sector is involved
– a second report on the draft EU Directive covering the cases where public authorities are involved.

The procedure

On the procedural side the two reports will in the coming months be debated and amendments will soon be submitted by all the political groups so that everyone will have the chance to take position on the main aspects of the proposed EU legislation. A first “orientation” vote will then take place and a majority will arise inside the parliamentary commitee and this majoritarian position will be the basis for the dialogue with the Council. The latter will also try to build its own majority between the national delegations. If successful a “general approach” will be endorsed by the Committee of Permanent Representatives (COREPER) and by the Council and this will be the Council alternative text to the parliamentary Committee “orientation”. The dialogue between the two institutions will then take place with the aim to reach a possible compromise.
If a compromise is reached it will be voted by the parliamentary committee and then by the plenary. The same will happen on the Council side and the procedure could then be considered closed (according to the practice of the so called “first reading agreement” an interinstitutional practice which has become the rule in the legislative negotiations at European Union level).

Will this procedure be successful for the data protection “package” ?

It is still possible but not granted as the issue of data protection is extremely sensitive and impact on fundamental interests in the public and private sphere. The end of the legislature is not so far (mid-2014) and there is not much time to close the negotiations in time if no “first reading” agreement is out of view in the coming months.
The pressure exist on both sides as Ireland, which is now chairing the Council Presidency, is the country where giants like GOOGLE and Facebook have their european seat, and is interested more than others in clarifying the new legal framework to avoid all the possible problems which could arise from a still unclear legal situation.
On the other side also the European Parliament is strongly committed in reaching an agreement because data protection has been at the centre of a more then a decade long “saga” with the other institutions (suffice to remember the controversial Plenary votes on the international agreements with the USA on Safe Harbor, PNR, SWIFT, and enquiry on the ECHELON system..).

However because of this pressure on both side the risk of stalemate could not also be excluded.

The evolution of the EU constitutional framework

On the Content side there are several new elements to be taken in account.
First of all since the entry into force of the Treaty of Lisbon the constitutional framework for data protection is radically changed.

Before this Treaty Protection of personal data was not an autonomous EU objective but a condition to be fulfilled as a corollary of other public objectives such as sharing data in the framework of the single market or collecting data to prevent transnational crime and terrorism. The legal basis for legislating in this domain where the articles of the treaties empowering the EU institutions for building the internal market (art.95 of the European Community Treaty) or to grant an hig level of security (art.29 of the Treaty of the European Union).

It is worth recalling that notwhitstanding its original focus on internal market the Community draft legislation (Com (90)0314 – C3-0323/Syn 287; OJ No. C277, 5.1.1990, p3) became the most advanced standard setting legal text on Data protection principles taking stock of the previous works in international fora such as the Council of Europe (Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, adopted on 28 January 1981) and in the OECD (OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal data, adopted on 23 September 1980). The legal framework for data protection by law enforcement authorities were before Lisbon much more sparse, confuse and vague because at that time protection of public security at EU level was dealt at intergovernamental level and there was no real will to harmonize the existing national (diverging) standards.
Only because of the pressure of the European Parliament and after the signature of the Lisbon Treaty (!) an intergovenramental Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters has been published on 30 December 2008. However the Framework Decision which is still into force cover only transnational transfert of data so that it does not establish a common level of privacy protection nor cover the EU institutions and agencies (Schengen information system included) which continue even today to consider as reference the Council of Europe Convention of …1981 and a Recommendation of 1987 .

The lack of a legal general framework for data protection together with a lack of Member States political will have probably been the main cause of the interinstitutional conflicts of the last fifteen years as well as of the growing tensions with the USA. As it happens often in case of interinstitutional stalemate the only progresses made came from the jurisprudence of national and european judges.()

After the entry into force of the Treaty of Lisbon everything is changed because data protection has been recognised as a fundamental right as well as a self standing objective of the European Union.

On the first aspect the art. 8 of the EU Charter is crystal clear:
“(1) Everyone has the right to the protection of personal data concerning him or her.
(2) Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
(3) Compliance with these rules shall be subject to control by an independent authority.

In short, protecting personal data is like protecting not only the image of an individual but also his ability to act in a given society without external public and private interference (the so-called right to “self-determination” which has been shaped already in 1983 by the jurisprudence of the German Constitutional Court. According to the “Census” judgment:“A social and legal order in which the citizen can no longer know who knows what when about him and in which situation, is incompatible with the right to informational self-determination. A person who wonders whether unusual behaviour is noted each time and thereafter always kept on record, used or disseminated, will try not to come to attention in this way. A person who assumes, for instance, that participation in a meeting or citizen initiative is officially recorded, and may create risks for him, may well decide not to use the relevant fundamental rights ([as guaranteed in] Articles 8 and 9 of the Constitution). This would not only limit the possibilities for personal development of the individual, but also the common good, because self-determination is an essential prerequisite for a free and democratic society that is based on the capacity and solidarity of its citizens”.
To protect personal data amounts not only to protect the liberty of the individual and, his dignity but even a more general good of the democratic society itself.

However such beautiful principles would be meaningless if not reflected in a binding legislation and in the daily life. To reach this objective art. 16 of the Treaty on Functioning of the European Union (TFEU) makes clear that personal data should be protected by “Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data.”

This will not be an easy task because EU law cover now all the main aspects of a person’s daily life in a global world where personal data have become the blood of the information society.
Massive data collection, on-line tracking and profiling not only by private companies but also by public authorities have become so widespread that many people consider that the protection of personal data itself do not exist any more. It seems that it has been killed
– by widespread invasive relatively low-cost technology
– by individual’s naïve behaviour in the social network
– by big private societies which are making an incredible amount of money from on-line advertising built on the exploitation of personal data (obtained for free)
– and last but not least by public authorities which, in a borderless world, having the facto lost the control of their territories try to prevent crime and terrorism by profiling potential dangerous people and collect everywhere massive amounts of personal data.

The post-Lisbon legislative data protection package

Confronted with the challenge of defining the new post-Lisbon data protection framework the Commission after thorough comparative studies has decided to maintain a twin track approach by submitting a Draft Regulation for protecting personal data in the civil domain and a Draft Directive adressed to public authorities when collecting personal data for security purposes. This choice has not been appreciated by the data protection authorities and by the European Parliament not only for the risk of inconsistencies but also for the risk of grey areas for activities which can fall in between.

European Area of Freedom Security and Justice : Council draft Agendas for the First Semester 2013

In compliance with the principle of transparency and in order to improve the decision making process the Council of the European Union organize its internal works in the framework of two main instruments:

a) A 18 months program prepared by a the pre-established group of three Member States holding the Presidency of the Council. The draft Program shall be prepared in close cooperation with the Commission and the President of the European Council, and after appropriate consultations it should be endorsed by the General Affairs Council. (art.2 p6 of the Council Rules of Procedure).
The current “Trio Presidency” program cover the last 18 months of the legislature : Ireland (January-June 2013) Lithuania (July -December 2013) and Greece (January –June 2014).

b) A 6 months Programme which is prepared and diffused by the incoming Council Presidency. This program “shall establish, for each Council configuration, and after appropriate consultations, draft agendas for Council meetings scheduled for the next six-month period, showing the legislative work and operational decisions envisaged” (art.2 p7 of the Council Rules of Procedures). It is worth recalling that according to a Council Declaration “‘The President will endeavour to ensure that, in principle, the provisional agenda for each meeting of the Council dealing with implementation of the Title of the TFEU relating to the area of freedom, security and justice and any documents relating to the items involved reach members of the Council at least 21 days before the beginning of the meeting.”
The current Irish Presidency 6 months Program foresee two formal meetings of the Justice and Home Affairs Council on March 7-8th and on June 6-7th.

An informal Justice and Home affairs Council meeting is already foreseen on 17th/18th of January . It is worth recalling that this kind of Meeting is devoted to strategic debates and no formal votes can take place. For the incoming meeting the main issues to be debated are :
*”Migration for Growth”,
*“Greek National Action Plan on Asylum & Migration” an
*“Update on Situation in Syria (Presented by key EU agencies such as Frontex and EASO).
The second day will be devoted to :
*”Internal Security and Growth”,
*“European cross-border Insolvency law” and certain aspects of the European Data Protection reform.

The main issues to be debated respectively for the “Home affairs” and “Justice” at the formal Council meetings are the following:
Continue reading “European Area of Freedom Security and Justice : Council draft Agendas for the First Semester 2013”

Seasonal Workers – EU institutions state of play

The European Parliament is due to begin discussions on “Seasonal employment: conditions of entry and residence of third-country nationals“.

This follows the European Commission’s proposal on 13 July 2010 for a directive on seasonal employment which has the aim of “establishing a common procedure for entry and residence in the EU and defines the rights of seasonal workers from third-countries” .

According to the Commission the proposed directive concerns non-EU citizens coming to an EU Member State for the purposes of seasonal employment on EU territory. The work will be carried out during one or more fixed-term work contracts concluded directly between the non-EU worker and the employer established in a Member State. The proposal introduces a special procedure for the entry and residence of third-country seasonal workers and “sets out fair and transparent rules for entry and residence while, at the same time, it provides for incentives and safeguards to prevent a temporary stay from becoming permanent“. 

The only other existing provision in this area is the 1994 Council Resolution ‘on limitations on admission of third country nationals to the territory of the Member States for employment’.

Within the Council, Ministers have held a first exchange of views which resulted in “several ministers recalling the right of Member States to determine the number of third-country nationals to be admitted to their territories.  In this context, they pointed out that the impact on national labour markets should be taken into account. Several ministers also highlighted the need for greater flexibility, for example with reference to the proposed duration of stay or the time limits in which applicants must be given a decision. In the case of seasonal employment, a number of member states mentioned that a choice should be given on whether accepted third-country nationals would receive residence permits, as proposed by the Commission, or long-term visas.

Another issue highlighted by several ministers was the question whether the rights accorded to third-country nationals should be equivalent to those enjoyed by nationals of the host member states, in particular with regard to social security benefits. Other delegations questioned whether the proposal on seasonal workers was in line with the principle of subsidiarity.” (Quote taken from: http://www.europarl.europa.eu/oeil/file.jsp?id=5865532)

Negotiations on a common asylum system progress with the involvement of the European Parliament

The establishment of a common area of protection and solidarity, based on a common asylum procedure and a uniform status for those granted protection remains one of the prime objectives of the EU. Following the implementation of the first phase, the European Commission submitted (in late 2008 and early 2009) a set of proposals for the recasting of existing legal instruments as well as the setting up of a European Asylum Support Office (requested by the Council in the European Pact on Immigration and Asylum). These proposals aim to commence the second phase of EU asylum policy with the overall objective of bringing in a Common European Asylum System.

The European Parliament, in its new capacity as co-legislator in a co-decision procedure with the Council, gave its position on these proposals at first reading on 7 May 2009, expressing an overall favourable opinion.

In October 2009 the Commission submitted its two most recent proposals for the recasting of the Directive on minimum standards on procedures for granting and withdrawing refugee status and the Directive on minimum standards for qualification for refugee status and the status of beneficiaries of international protection and the content of the protection granted. The LIBE Committee appointed two rapporteurs, Sylvie Guillaume and Jean Lambert, to study these proposals. An initial debate was held in committee on 16 March 2010.

Following the entry into force of the Lisbon Treaty which endowed the Parliament with new responsibilities in the setting up of new legal instruments in this field, the LIBE Committee requested in 2008, a study to the Odysseus network (the Academic Network for legal studies on immigration and asylum in Europe) “Setting up of a Common European Asylum System – on the application of existing instruments and proposals for the new system”.

Some of the most important findings of this study  (which will be available in May 2010) were presented during the roundtable organised by the LIBE Committee on 26 April 2010.  The debate, far from exhaustively analysing the questions at stake, focused on a number of cross-cutting issues with relevance for many of the legal instruments currently under debate, namely:

  1. General principles of European law as guidelines for the definition of procedural guarantees for asylum seekers
  2. Trust among Member States on each others’ asylum systems
  3. Detention of asylum seekers: Distinction between detention and restriction to freedom of movement
  4. Identification of asylum seekers with special needs
  5. Responsibility towards asylum seekers when the EU and its Member States act outside their territory
  6. Alignment of subsidiary protection and exceptions with international law and Member States’ practices and alignment of equal rights with refugees
  7. Development of a coherent common European asylum system: accession to the Geneva Convention, reinforcement of the powers of the support office or creation of a European asylum court.

1. General principles of European law as guidelines for the definition of procedural guarantees for asylum seekers

The prohibition on refoulement is the cornerstone of international refugee and asylum law.  According to this principle States are obliged not to return a person to his country of origin, or any other country, where he/she is at risk of being subject to serious harm or human rights violations.

Current instruments, such as the Geneva Convention and protocol, recommendations of the UNHCR, the Convention on Human Rights  Council of Europe’s recommendations, rulings of the European Court of Justice (ECJ), rulings of  the European Court of Human Rights (ECtHR), do not establish common procedural guarantees for asylum seekers at the European level.

In order to establish such a common set of guarantees, it is suggested to look at the general rulings of the ECJ as well as the general principles established and transpose them in procedural safeguards. These will then could form a catalogue which allows to address the shortcomings of the directive and look at the proposals of the Commission.

The two concrete interlinked examples of the right to legal aid and the right to appeal help explaining such an approach

Right to legal aid

Legal aid to asylum seekers should  be mandatory and should be appropriate to the needs of those who need it. In order to define what appropriate means it is useful to refer to what the jurisprudence has established in this regard, namely that when somebody is vulnerable it is desirable that mandatory and free legal assistance is provided.

More specifically, the right to have access to legal aid should be determined on the basis of two criteria:

–       the weaker the user and

–       the higher the nature of the right at stake

the higher the legal assistance .

Right to appeal

The right to appeal by asylum seekers should foresee the possibility to suspend the removal of the individual who appealed.

In this regard the new proposals currently under negotiations saw  the Parliament proposing a number of amendments designed to strengthen asylum seekers’ rights, in particular by ensuring that they receive free legal assistance and by improving the arrangements for the transfer of asylum seekers between Member States.

2. Trust among Member States on each others’ asylum systems

The concept of mutual trust entails the idea that asylum seekers transferred on the basis of the EU Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (Dublin Regulation) are not subject to inhuman, unfair treatment and that such a provision is in conformity with the principle of non refoulement.

This principle, entails the idea that the Member State responsible for the asylum seeker transfer is also responsible for the individual’s non refoulement.

That is why it is appropriate to talk about qualified, rather than absolute trust between Member States. In this respect, since all Member States signed the 1951 Geneva Convention and the Convention on Human Rights it is assumed that signatories respect the obligations enshrined in these legal instruments.

However, Member States should be in the position to challenge the Dublin Regulation and refrain from transferring an asylum seeker to a State when they doubt that the principle of non refoulement is respected.

This represents a fundamental guarantee for individuals especially given that human rights standards varies greatly between Member States. Indeed the report of the UNHCR concluded that not all Member States’ standards are in line with international human rights standards.

The sovereignty clause however is not sufficient per se to guarantee adequate and effective safeguards to asylum seekers. Additional safeguards are necessary and that is why the Commission’s proposals are welcomed.

3. Detention of asylum seekers

The detention of asylum seekers is in principle an admissible instrument of preventing unauthorised entry or residence into the EU territory.

Member States possess a broad discretion to decide whether to detain potential immigrants.

According to the ECtHR decision in the Saadi case (Art. 5 para. 1(f)) ECHR does not prohibit that asylum seekers may be detained to prevent unlawful entry, even if detention is not “necessary” in an individual case.  Detention, however, is subject to the principle of proportionality, forbidding arbitrariness and excessively long detention.

According to EU law, asylum seekers must not be detained for the mere fact of filing an asylum application and detention should not impede individual to claim international protection. In fact their request should be processed in a priority manner.  The same principle can be found in the Reception Conditions Directive (Art. 14 paragraph 8).

The detention of asylum seekers is increasingly used not only as a consequence of a rejection of an application but also upon arrival of an individual. This measure contributes to the overall tendency to blur the lines between genuine refugees and ‘irregular’ migrants in public perception as well as in the management of public policies. Therefore, its legitimacy should be assessed especially against the risk of violation of fundamental rights.

Detention has become a measure of  prevention of ‘irregular’ flows where the control strategy is taking over from the exigencies of bona fide asylum seekers and refugees. This phenomenon raises humanitarian as well as legal concerns and that is why detention as a deterrence strategy for prevention of abuse of the asylum system cannot be justified.

In conclusion, detention should be only used as an exceptional measure. However European states’ practice indicates a wide range of approaches to detention which not always ensure the full respect of fundamental rights of asylum seekers. The proposals under revisions should therefore take into considerations the proportionality of such measure vis à vis the risk of violation of fundamental rights.

4. Identification of asylum seekers with special needs

The only legal instrument containing obligations on Member States is to be found in Article 17 of the Reception Directive. A study conducted by Odysseus in 2007 concluded that the majority of the Member States have not transposed the directive correctly and in some cases have not transposed it at all .

This is mainly due to the fact that Article 17 does not explicitly require, from a legal point of view, a specific procedure to be put in place in order to identify those asylum seekers with special needs.

The system rests on an identification of these persons, therefore progress towards a system of identification could be achieved either by:

  • obliging Member States to draw up a specific procedure for the identification of special needs (ex via  medical screening, assessment on whether or not individuals have the mental and physical capability to be transferred), or
  • by obliging authorities via clear regulations to contact asylum seekers, refer those with special needs and then provide adequate reception conditions.

The proposal of the Commission touches upon this aspect, trying to provide more legal certainty in this respect. Paragraph 20  of the proposal for a directive introduces an obligation for the Member States to carry out identifications.

However, the problem is the overall concept. The Commission has not specified that vulnerability should be considered as a criteria on its own right in order to carry on an accurate identification of individuals with special needs.

Therefore, although the second phase in the development of a common asylum system is an attempt to have a more cross -cutting approach, it still falls short on implementation provisions

5. Responsibility towards asylum seekers when the EU and its Member States act outside their territory

European primary and secondary law oblige the EU and its Member States to uphold the non refoulement principle and related procedural rights towards asylum seekers also when operating outside the EU territory.

Concerning primary law, Article 78 of the TFEU makes a clear reference to international law and inter alia to the Geneva Convention and the principle of non refoulement.

Also case law both at the national and international level confirm that the EU and the Member States are responsible towards individuals under their jurisdiction.

As soon as a contact between an individual and an EU or national authority is established,  all the activities related to it involve an exercise of jurisdiction requiring international human and refugee rights to be observed by the EU and /or the Member States , even if the contact does not take place in the EU territory.

Although there is no case law of the ECJ  in this regard as yet,  such aspect is indeed touched upon by other case law, namely in the field of competition and freedom of movement.

The European Charter of Fundamental Rights  in Art. 18 also contains references to obligations under international law. Furthermore, Art. 51 CFR, which regulates the CFR’s scope, does not take territory into account, only the authority responsible.

Also EU secondary law establishes such obligations:

  • The Qualification Directive (Art. 21 para. 1 of Directive 2004/83/EC): covers both refugee protection, in accordance with the Charter of Fundamental Rights and subsidiary protection
  • Asylum Procedures Directive (Art. 3 para. 1): member states are obliged to accept and examine requests for international protection submitted on their territory – this includes requests made at the border or in transit zones.
  • The Schengen Borders Code (Art.3): entry controls must be implemented “without prejudice to […] the rights of refugees and persons requesting international protection, in particular as regards non-refoulement”. Even though non-refoulement does not include a general right to admission, in practice it means that member states are obliged to allow temporary admission for the purpose of verifying the need for protection and the status of the person.

The current revision of the Frontex Mandate represents a very good opportunity to spell out such responsibilities. It has been demonstrated that Frontex is indeed responsible towards asylum seekers when carrying on operations outside EU territory. It is not true that Frontex is only responsible for the logistic of its operations. Frontex is responsible to conduct its activity in full respect of human right law, including the respect of the principle of non refoulement.

To reach this goals it is fundamental that the new revised mandate grants the United Nations High Commissioner for Refugees the participation to the operational activities of Frontex in order to have an effective and transparent monitoring of the agency and ensure that no violation of human rights takes place.

6. Alignment of subsidiary protection and exceptions with international law and Member States’ practices and alignment of equal rights with refugees

The EU Directive on refugee definition and complementary protection (EU Qualification Directive) established for the first time an obligation of the Member States to grant subsidiary protection status to persons who do not qualify as refugees, but are nevertheless in need of international protection.

Therefore, subsidiary protection is granted in some countries when expulsion would be in conflict among others with Article 3 of the European Convention of Human Rights, because such acts would be considered inhuman or cruel treatment.

The current scope of the qualification directive with its use of the subsidiary forms of protection is limited  and it does not provide for a  widely recognised definition of subsidiary protection .

The application of various solutions to these problems resulted in emergence of practice whereby different statuses were granted, such as “status B”, “subsidiary protection”, de facto status” and “humanitarian status”.

There is no international document, listing all persons that may be eligible for subsidiary protection, but EU Qualification Directive provides three categories of individuals to whom this protection may apply:

– persons who because of reason of death penalty or execution;

– torture or inhuman or degrading treatment or punishment in the country of origin;

– serious and individual threat to life or person by reason of indiscriminate violence in situations of international or internal armed conflict are unable, or owing to such risk, unwilling to avail themselves of the protection of the country of origin.

Despite this no provision regulates cases in which a person who is excluded from subsidiary protection by reason of having committed a serious crime, is  unable to return to the country of origin due to threat of torture.

The revision of the directive should address this aspect, as well as the problem related to family reunification, which is not provided by any EU directive.

7. Development of a coherent common European asylum system: accession to the Geneva Convention, reinforcement of the powers of the support office or creation of a European asylum court.

The development of a coherent common European Asylum System can take place either by reforming the current structure or establishing a completely new structure.

Since experience shows that revolutionary interventions are difficult to be put into place, it is probably more realistic to look at possible ways to modify the existing system of EU asylum policies.

The EU already has a series of legal instruments which provide guarantees and rights to asylum seekers. The problem is that they do not have the necessary legal effect.

For example the principle of equality is at best relative in asylum law.

Therefore it is necessary to look at different options to develop a coherent system.

Accession to the Geneva Convention

The accession to the Geneva Convention might be feasible. However it goes much further than EU law in  terms of rights recognised to asylum seekers. Therefore, the EU and the Member States in this case should align their system to meet the same standards.

European Asylum Support Office

It is currently too early to foresee the direction that the European Asylum Support Office will take. Its activities and development have already been criticised. However, it is necessary to support the further development of this office because in order to be able to reach its goals it must have a comprehensive picture of all migration factors.

Therefore, the Parliament has sought, by means of its amendments, to clarify the tasks of the European Asylum Support Office in the area of the collection, management and analysis of information, in particular as regards countries of origin, with a view to the establishment of common assessment criteria, to clarify the arrangements for cooperation with the UNHCR and the NGOs concerned, and to lay down more precise rules governing the deployment and role of the asylum support teams.

European Asylum Court

These elements however are not sufficient to develop a coherent common European Asylum System. In order to reach a real protection of fundamental rights rather than a simple management of EU asylum policies, it is necessary to eliminate the divergences that exist between the EU and national asylum legislation.

Therefore on the one hand the European Asylum support office should impose further obligation on member States to ensure that principles of EU law is correctly transposed. On the other hand it would be necessary to have a specialised asylum court.

However, this last suggestion might be less realistic due to obstacles in the Treaty of Lisbon as well as the renowned jealousy of the ECJ to keep its own competencies.

In conclusion, in a context of a single space where freedom of movement is one of the funding principles of the European Union, it is paradoxical and counterproductive to still have a mosaic of asylum systems that differ from state to state. The proposals for amendments of the Dublin Regulation, Eurodac, Reception Directive, Qualification Directive and Procedures Directive represent an improvement compared to the previous situation. However, this does not mean that the modified proposals represent the best possible solutions. Indeed, several shortcomings and loopholes have been highlighted in relation to the right of asylum seekers also in relation to the new proposals.

It is true that the EU is building a stronger asylum system, in line with the international standards. However, the asylum system start to apply only once an individual has reached a State territory. Hence, protection is subordinated to admission according to general immigration laws, which generally include a series of clauses that make the access to EU territory increasingly difficult also for those entitled to international protection.

The European Union and its Member States will probably have to put into place a third phase of asylum harmonisation takling the above mentioned shortcomes, including the problems resulting from an increasingly restrictive immigration policy.

LB

Brandeis in Italy: The Privacy Issues in the Google Video Case

Reports of the recent decision by an Italian court to issue suspended sentences against three Google exes for posting a video of a young person with downs syndrome being taunted has sparked a flurry of First Amendment concern. The opinion of reporters, at least in the U.S., has been nearly unanimous — “What were they thinking??” “This will kill the Internet.” “The Italians just don’t get it.”

There is no published opinion yet, so this is very much a first impression based on a quick review of the law in the case, but I was struck by the similarity of the Italian decision with the birth of the right of privacy in the United States.

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Cutting bureaucracy: Simplifying applications of third-country nationals

On the 22 February the LIBE Committee of the European Parliament will hold an orientation vote on the ‘Directive of the European Parliament and of the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State.’

The purpose of this directive is to allow for a single application and a single permit for third-country nationals who wish to reside and work in an EU Member State. The aim of the directive is also to allow for the third-country nationals to have equal rights to the nationals of the Member State they will subsequently reside in if given a permit. However, this directive does not affect the competence of the Member States to decide on the admission of third-country nationals to their labour markets.

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