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THE NEW EU MIGRATION AGENDA TAKES SHAPE: ANALYSIS OF THE FIRST NEW MEASURES

ORIGINAL PUBLISHED ON MAY 28 ON EU LAW ANALYSIS

by Steve Peers

This week the European Commission took its first steps towards implementing its new EU Migration Agenda (previously discussed here). A number of the items in the agenda have already been addressed (for instance, the military mission against smugglers on the Libyan coast, as discussed here). Others will be addressed later: a broader reform of legal migration law and changes to the rules on asylum procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures contained five different elements. First of all, the Commission launched a public consultation on the reform of the existing EU law providing for a ‘Blue Card’ for the admission of highly-skilled non-EU migrants. I have commented previouslyhere on the implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released an Action Plan against migrant smuggling. This mainly elaborates upon several ideas mentioned already in the main agenda. This includes: a revision of EU anti-smuggling law, planned for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions from the rules; possible new rules on immigration liaison officers in 2016; a Handbook on expulsion in 2015; a possible revision of the rules on trafficking victims, in 2016, to include ‘victims’ of smuggling; a revision of the legislation on Frontex (the EU border agency), to give it more powers relating to expulsion; changes to the rules on the Schengen Information System in 2015-16, so that all Schengen Member States’ entry bans are applicable across the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting employment of irregular migrants. Most of these measures concern all irregular migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a Recommendation on the resettlement of refugeesdirectly from outside the EU to EU Member States. The text of this measure has not yet appeared, and so I can’t comment on it in detail. Obviously though, as a Recommendation it is non-binding, and as an act of the Commission, it does not need the approval of the Council or the European Parliament. According to the new Immigration Agenda, there will be EU funds attached to each resettled refugee, so Member States are encouraged to resettle people. It is a useful measure to ensure that a bigger number of persons are rescued without having to risk their lives or pay smugglers to cross the Mediterranean, although the overall numbers are likely to be modest. In the event that Member States do not make use of the Recommendation to resettle refugees, the Migration Agenda promises a proposal for a binding measure, although it might be hard to find sufficient support in Council for its adoption.

Fourthly, the Commission issued guidance on the fingerprinting of asylum-seekers, as provided for in the EU’s Eurodac legislation, which sets up a database of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In the Commission’s view, any irregular border-crosser who refuses to give fingerprints ought to be detained, expelled and subjected to an entry ban, in accordance with EU asylum law and the Returns Directive. Alternatively, Member States could force them to take fingerprints, with apossible exception for pregnant women and minors. Frankly, the correct application of the EU’s Dublin system is not worth the health of life of a single unborn child.

Moreover, the Commission appears to be confused about the details of the relevant legislation. It would be necessary to prove that refusal to take fingerprints ‘avoids or hampers the preparation of return or the removal process’ to justify detention under theReturns Directive; but the purpose of the fingerprinting is mainly to apply the Dublin asylum rules, not to ‘prepare the return and/or carry out the removal process’, which is the legal basis for detention of irregular migrants under the Returns Directive. Furthermore, the rules on entry bans in that Directive make no reference to the issue of fingerprinting. As for asylum-seekers, the paper is correct to say that they can be detained in order to ‘verify their identity and/or nationality’ in the EU’s Reception ConditionsDirective. However, for asylum-seekers who have been fingerprinted already by a Member State and then apply for asylum in a second Member State, the Commission fails to mention that the Dublin rules apply. They permit detention only where there is a ‘significant risk of absconding’, which does not automatically follow from a refusal to be fingerprinted.

Fifthly, the Commission proposed a Decision on relocation of asylum-seekers between Member States. This is the only one of this week’s proposals which would (if adopted) be legally binding. Like most Commission proposals, this needs a qualified majority of Member States to support it in the Council; unlike most EU law, the European Parliament need only be consulted. It seems from press reports that there will be a ‘blocking minority’ of Member States preventing its adoption, unless some of them change their position. It’s also possible that it will be agreed, but with major changes. But for now, let’s look at what the proposal would do if adopted.

The main thrust of the proposal is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute about 40% of the asylum-seekers which would normally be the responsibility of those Member States under the Dublin rules to other Member States. Due to opt-outs, the other Member States will not include Denmark or the UK, although it seems possible that Ireland will opt in. The proposal also will not apply to the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland and Liechtenstein). It would effectively be a regime within a regime, with only 25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will be split 60/40 between Italy and Greece, and will be allocated to other Member States on the basis of the criteria set out in the Annexes to the proposal. Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection. It’s clear from the proposal that the Commission believes that only Syrians and Eritreans will qualify. The Member State of relocation will be responsible for considering the application, and asylum-seekers and refugees will not be able to move between Member States, in accordance with the normal Dublin rules. (After five years’ residence, refugees can move between Member States, according to the EU’s long-term residence Directive).

Besides the nationality criterion, who will be relocated? Asylum-seekers must be fingerprinted in order to qualify. The selection of asylum-seekers will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. This refers to a long list of people:

‘such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation’

Implicitly, the other Member States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation if it’s ‘likely that there are national security or public order concerns’.

What about the asylum-seekers themselves? There is no requirement that they consent to their relocation or have the power to request it. The proposed Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the Commission suggests that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. This is problematic, since forcing asylum-seekers to a country that they don’t want to be in is one of the key problems facing the Dublin system already.

Of course, it’s possible that like children left in an orphanage who weren’t picked by new parents, there will be rather more asylum-seekers disappointed that they were notselected for relocation. Do they have the right to a legal challenge? Arguably yes, to the extent that Italy and Greece select people who are not vulnerable for relocation, in light of their legal obligation to select vulnerable persons as a priority.

Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State. It’s not clear if Member States could count the transfer of family members towards their overall quota. If the asylum-seekers obtain refugee status in the State of relocation, they could also apply for family reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member States can count towards their overall quota asylum-seekers who would normally be the responsibility of Italy and Greece, but who have already found their way on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the Decision, this would in any event depend upon the willingness of Italy and Greece to designate such asylum-seekers for relocation. And as the Commission notes, persons who would already be the responsibility of Greece cannot be sent back there anyway due to the collapse of the asylum system in Greece, according to the CJEU ruling in NS (the position regarding Italy is more qualified: see thediscussion of last year’s Tarakhel judgment). Of course, it is possible that the relocation of significant numbers of asylum-seekers away from Greece will contribute to solving the systemic problems with that country’s asylum system in the foreseeable future.

Overall, if the Council is willing to agree to the proposed Decision, it is likely to make a significant contribution to solving the problems with the asylum systems of some Member States, although only the more significant review of the Dublin rules promised for 2016 (or a profound improvement in the situation of countries of origin or transit) could provide a long-term solution. It is very striking that while this proposal effectively admits that the Dublin system is profoundly dysfunctional, the separate set of fingerprinting guidelines issued on the same day adopts a tone of head-banging savagery to try and get that system to work.

A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli – but I don’t want to intrude into the private grief of Liverpool football fans.

The European Agenda on Migration: four announcements and a funeral ?

published HERE on 2 June 2015

by Henri Labayle, CDRE

Rarely has a Commission Communication been so eagerly anticipated. The “European Agenda on Migration” (COM (2015) 240)was presented with great pomp on 13th May 2015 by the two vice-presidents of the Commission in connection with the dossier and the Commissioner.

Rarely has a declaration of intent of this nature produced such a virulent media and political outcry either. The searing vociferation is compounded by the fact that its authors express themselves at length on subjects they know nothing about, most notably the French political class. It has also given numerous opportunities for minor powdered Marquis to hold forth on the ‘human rightsism’ of the Commission, with no regard of the values, the rights and the traditions of the Republic which they claim to possess.

The announcement of the deadline had worked as a shield for the Community’s executive over the last few weeks in order to weather the storm of the crisis in the Mediterranean whilst also providing protection against the gales blowing from the British election campaign. It was time to deliver and the text arguing the Commission’s proposals is now on the European Union’s table.

Since then, the Commission has hastened, and it is an understatement, since a few texts have not been formally adopted, to demonstrate that it was working on it by calling a new press room, on may the 27^th^,, making things clear.

The Communication (2015) 240, even after a second reading, is not convincing. Quickly, doubt creeps in especially because the precipitation of declarations maintains the confusion on the proposed measures, the numbers and roles of stakeholders. Could this apparent desire to combat the most glaring flaws in asylum and immigration policy not, after all, be a pretext or an avoidance strategy destined to leave it up to the Member States to take responsibility for policy failure in the eyes of the public? In other terms, does this noisy announcement not prefigure a funeral in due form at worst and, at best, a result far below the needs ?

1. Four ‘pillars’ under the guise of policy

The European Agenda on Migration reveals the political engagement of Juncker, candidate in 2014. It also reveals the commitment of the President of the Commission to give political meaning to his actions as he had indeed previously announced. In a somewhat curious demarcation between the “immediate” and the long term, the discourse is far from seductive. Neither the appellation of this European Agenda on “Immigration” which surprisingly does not mention “asylum” nor its thematic structure provide for a convincing Commission Communication.

a. reprehensible perspective

Let’s begin with the immediate. The Mediterranean crisis is not given its true name- that is to say an asylum crisis well before an immigration crisis; this brutal pressure shows the limits of the Union’s border control policy. Inscribed in a shift of global migratory inflow, nothing would suggest that it would cease thanks to some additional budget and technical injections. Also, we struggle to understand the interest in separating and highlighting immediacy from long term goals except if it is to give credence to the idea that the causes may disappear abruptly which is entirely unlikely. The choice of presentation blurs the guidelines of the actions proposed by the Commission.

Next and most especially it must be pointed out that asylum policy is in no case a component of immigration policy. This is indicated by treaties without a trace of doubt. This policy expresses an obligation which weighs not just on the Union but also on the Member States having individually subscribed to the international engagements under edict, from Geneva to Strasbourg. All of the British blustering makes no difference to the legal reality: it is not possible to “send back” persons seeking protection with or without the Union. Nor is this blustering all that credible in light of the self-proclaimed advantageous presentation as an island ‘fortress’ when in fact it is known that the United Kingdom on its own annually issues 700,000 of the 2.3 million residency permits granted in the Union.

Grouping together these two distinct chapters “common asylum policy” on one side and “common immigration policy” on the other is a political error. By doing so it gives credence to the idea that accepting or denying a person seeking protection or an ordinary immigrant falls under the same procedure. However what constitutes an obligation for the first case is merely optional for the second one.

This amalgamation by the Commission creates a disastrous political effect. It renders any effort at trying to educate with regards to national public opinion which already has a set view on the matter and refuses obstinately to listen to the necessity of protection or even to open the door to the continent to anybody whatsoever.

b. prerequisite: immediate action in the Mediterranean

The European Agenda claims to be providing a one-off response to an emergency situation whilst testing potential solutions for the future. One can understand the Commission wanting to assume its role in the management of a crisis which we already witnessed on 23^rd April how the European Council then the European parliament took notice of the tragedy under way.

Yet the reach of this discourse is clouded. How is the determination to chase after smugglers and save lives, to support frontline States’ efforts by allocating an extra almost 90 million euros for these chapters not an integral part of a solid, lasting migration policy in the Union? Such schemes must be intended as permanent and it is entirely doubtful that the current budget increase for certain agencies will be renewed due to the lack of true awareness and the rapidly worsening context.

In fact, the Mediterranean crisis carried to breaking point as it is today is a testing ground and prefigures long-term solutions. We will come back to this point with regards to relocalisation. Actually, are we not witnessing a rise of the Union, particularly its agencies, due to the inability of some Member States to manage migration ? It is doubtful that this “communautarisation by default” does not cause a strong reaction from other Member States, particularly France and the Federal Republic … It is one thing to tolerate it about crossing borders and Frontex and another to accept it about asylum considering international protection obligations involving each member State individually …

c. First pillar: reduce incentive of irregular migration

It indicates the order of political priorities within this common policy even if the listing of the envisaged means contains absolutely nothing new and if its poverty occasionally enhances a reading that merely highlights what already existed.

Consequently, presenting sending a European migration liaison officer to high tension countries as some sort of progress likely to reverse the flow of migration brings a smile to our lips… Aligning millions of euros in an effort to prove the need of Mobility Partnerships for which we have yet to find out their real usefulness and Regional Development and Protection Programmes (RDPP) for North Africa and Horn of Africa are again far from convincing and just part of a political public relations spiel.

The same holds true when the Commission gives in to its “action plan” addiction so as to propose measures aiming to make smuggling and trafficking a “high risk and low return”, criminal activity. These empty words have been heard time and time again within the Union circles. The idea itself is rather promising; fighting traffickers on the financial terrain as was the case for fighting certain forms of terrorism. However one remains perplexed as to how this could be implemented in an efficient way.

These pious vows correspond perfectly to the hollow wishes heard thousands of times before, “an action plan will be brought forward and the goal must be to transform smuggling networks into ‘high risk and low return’ operations and to address long term root causes of forced and irregular migration through development cooperation and humanitarian assistance” …

On the contrary, modifying the legal basis of Frontex and thus reinforcing its capacity to initiate return missions would seem like a far more interesting proposition. Frontex is often pilloried because its task of monitoring and returning irregular migrants is far from gratifying. Yet this agency successfully carries out its missions and all that is its limiting further success is the parsimonious approach with which the Union’s States devote financial means to it.

d. Second concern: border control

The second “pillar” of the Agenda simply refers to article 77 TFUE which mentions an “integrated management system for external borders”. It is politically linked to the objective of “saving lives”; it has been all too clear in light of recent current affairs how slow the members of the Union were to stand up and take notice. The Communication is not overly innovative on this point. All that is mentioned is the need to consolidate intervention standards on the ground alongside a promise to “launch a broad debate” over setting up a European system of Border Guards. None of this is likely to break the budget.

As for the rest, using new technologies to identify risks or manage “smart borders”, or, notably, strengthening Frontex’s capacities and mandate, none of this is really anything new under the sun.

What is probably more significant is the open backing of third countries via the Action Plan with Africa and in particular Regional Development and Protection Programmes which have been allocated an extra 30 million euros. The rumours surrounding this issue have been confirmed with two States being focussed on: Niger and Mali. With a view to improving safety for migrants and combatting against smugglers these proposals seem quite astonishing considering the situation of the latter State.

Another now officially confirmed innovation is the backing of third States which will undoubtedly take the non-experimental form of a “pilot multi-purpose centre” and is to be set up in Niger thereby reigniting the debate dear to Tony Blair’s heart some ten years ago over externalisation of asylum policy. It should, according to the Commission, provide “provision of information, local protection and resettlement opportunities for those in need’” In other terms, circumventing migrants’ onward journeys by offering “assisted voluntary return options” for those who understand what that entails. With the support of the IOM and especially the UNCHR which has not opposed this scheme as a matter of principle, it would appear in all likelihood to become a key area of the Union’s policymaking.

e. “Solid” common policy on asylum

Yet another astonishing promise in light of the enormous investment in this common policy; two generations of successive texts have thus first laid the foundations then corrected the major flaws of the common asylum system.

In affirming that high priority will be given to setting up an integral and coherent Common European Asylum System it is in fact the same as listing all of the breaches for which the Commission seems to be unaware that contentious proceeding exists in order to reach outcomes.

Yet this prodedure would be of some use when the Communication states, for example, that progress could be made with “guidance, notably by encouraging States to systematically identify and take migrants’ fingerprints”, which is a clear reference to Italian practices.

The Commission thus proposes on may 27^th guidelines on fingerprinting for the EU’s common asylum system to work effectively. Because“migrantsneed to be systematically fingerprinted upon arrival”, the Commission services have publishedguidelines for Member States setting out a best practices approach for fingerprinting newly arrivedapplicants for international protection. « Hotspot » teams from EASO, Frontex and Europol will workon the ground to swiftly identify, register and fingerprint incoming migrants and assess those whoare in need of protection”. We are impatient to read a legal analysis of that option from the member States’ point of view as well as of the applicants…

In the same vein, the Commission refrains from a particularly deep analysis of the asylum figureswhich Eurostat has just published. By taking a closer look at the figures what quickly becomes clear is that the Union and individual States are faced with the same problem; a high concentration of applicants is found in the same zones. In France, for example, Ile-de-France and the Lyonnaise region bear the brunt of the pressure. What can also be seen is that recognition rates are somewhat variable- Eurostat queries the Hungarian recognition rate of 9%. The fluctuation among the types of protection granted to applicants of the same nationality depending on Member States could also be deemed surprising. None of this is even mentioned.

Among the reasons which inspired the Commission to write the Communication are these figures which reveal the internal divisions within the Union. Although European asylum law is presumed to be harmonised, deeply worrying questions remain and no geographical responses are received.

So, for the reasons that we are well aware of, the number of Syrians has quadrupled since 2012 and they now make up the largest contingent of asylum beneficiaries. Nevertheless, 60% of the 68,000 persons are placed under the protection of either Germany (27,500) or Sweden (16,800) and they are not the top nationality protected in France or in the United Kingdom. Similarly, though Eritrea (14,600 refugees) is the second most protected nationality in the Union, more than three quarters of the Eritreans obtain asylum in just three States: the United Kingdom, Sweden and the Netherlands. Is it any wonder to find them in Calais once they have been informed that 183 of their compatriots’ asylum requests were granted in France in 2014?

Rather than attacking the shortcomings of Member States, it is better to stigmatise individuals and the “abuses of the asylum system” and propose to cut back on its impact by, for example, reopening the dossier on specific provisions on safe country of origin as found in the Asylum Procedure Directive…

f. New legal migration policy

Stating this in the midst of an irregular immigration crisis cannot be considered as overly deft politically, despite the terms of article 79 TFUE. The presentation of this “new” policy seems somewhat excessive; how can it be qualified as “new” when in fact it does not or barely exists as a Member State retains the right to define the total number able to access its respective job market?

And yet, its main goal is obvious. It has been repeated for years by the Commission, confirmed by demographers and deliberately ignored by Member States which have firmly shut their eyes when faced with the demographic decline. In contrast, one cannot help but smile upon seeing the ‘Blue Card’ directive being brought back ou; aside from the 11,580 cards issued in Germany out of a total 12,854 in the entire Union in 2013, which other State issues any?

As for the wish to set “new priorities for our integration policies”, once more, how is it possible to renew something which does not or just barely exists? The driving ambition of the Commission would seem purely to render “remittance transfers cheaper, faster and safer.” What an utter lack of seriousness…

2. The outcome, a programmed burial ?

The European Agenda on Migration displays two sides. That of a recycling operation of various measures, all of which had initially proven to be more or less complete failures. The other side is that of a new and strong political message querying the community of the Member States with no regard for the public opinion held in each state. It receives as such the strong and justified support of NGOs and UNHCR.

This leads to some confusion in its reading. How can the clear discourse of the chief of the Community’s executive be criticised radically when he is finally speaking from a solid political standpoint (and it was high time to do so) in terms of solidarity? It has to be said that this solidarity is commendable as it is attempting at least to provoke real political change even if that enflames public opinion.

a. Dissimulating an impasse

The spectacle of irregular migrants and asylum seekers displays the blatant failure of joint policy. Any semblance of this was abandoned by the Commission after the only great commissioner that the JIA has ever known, Antonio Vitorino departed. Since then, verbiage, uncontrolled technocracy, standardised discourse and a surreal management culture have taken the place of any form of political direction. The latest Commission follows on in this tradition from what we can judge.

Between 2012 and 2014, in two years, the number of asylum seekers in the Union doubled, jumping from slightly more than 300.000 requests to just over 600.000. This explosion poses major challenges for the Union and as we saw above, it reveals for all to see the weaknesses and lack of cohesion within it. And yet no political lesson is publicly drawn from this.

So, the Dublin system, the cornerstone upon which the Common Asylum system is built, claims that since Schengen (its heir) the Member State in which migrants arrive in the Union is responsible for the processing of those migrants. This thereby establishes, on the face of it, the bulk of the pressure on the State Members situated on the periphery of the Union. But, if we are to look a little more closely at the asylum figures in order to gauge more than just who does the most and who does the least, much can be gleaned. Of the four Member States currently receiving 71% of asylum requests (Germany, Sweden, Italy and France), just one country, Italy, is in direct contact with the new arrivals. The failure of the Union’s strategy is thus based on figures without it causing much concern because, despite its flaws, the system continues to be accepted by the States, including those in the second line which refuse any change to it.

Proof that the Commission refused to shoulder its responsibility was already evident in the polite silence heard over the dysfunctions of its cursory evaluation carried out during the revisions of the text in 2008, despite the criticisms of Parliament at the time. The problems remain and the figures are grim: the rate of asylum seekers transferred to the State responsible in accordance with the Dublin system barely reaches 16% annually in France, according to the last report from the French Senate.

Following the old saying, ‘never change a losing team’, the Agenda has laid its cards on the table; it will only be at the beginning of the upcoming evaluation of Dublin III, in 2016, that the Commission will “determine whether a revision of the legal parameters of Dublin will be needed to achieve a fairer distribution of asylum seekers in Europe”…

As for irregular immigration, Eurostat’s figures are also grim; the Commission is well aware of this fact when it quotes its figures: out of the 425,000 return decisions delivered in 2013, only 167 000 were correctly enforced. After having weathered the incomprehensible thunderbolts of those who had taken umbrage over the harmonisation of conditions in which returns must take place, the Union has not really tackled the problem which contaminates the entire issue, leaving judges to weave and unweave hesitant jurisprudence.

Yet, putting names and faces to the focal point of grievances surrounding this blockage is now possible by, for example, listing the third States which are reticent in assuring the cost of taking back their own nationals who reside irregularly in Europe. In descending order Morocco, Pakistan, Albania, Russia, and India could thus represent grounds for diplomatic consideration. This is not impossible. So it can be noted in the Agenda that the Commission is at last envisaging modifying its practice of readmission agreements by now focusing on nationals and ceasing to believe that third States will indeed cover costs of foreign nationals having transited their territory seeing as this creates tension in interior affairs.

b. a protection against failure

One can wonder about this. Due to the sharpness of the President of the Commission’s political intelligence alongside there being not a shadow of doubt over his perfect knowledge of the European context the risks involved in certain leading proposals cannot be ignored. But a double-edged discourse confuses matters and inevitably leads either to failure of this attempt or to empty it of its scope.

As we denounced above, the initial amalgam involves fostering a detestable ambiguity between asylum seekers and ordinary migrants both from a political and technical standpoint. Those applying for protection are reduced to the lowest common denominator, stigmatised and they therefore become the primary victims of this amalgamation.

And now today it is precisely the first tangible result of the Commission’s communication. The press has unanimously and blithely mixed up the numbers in the proposals of the Commission which exclusively deal with asylum seekers. However the press mixed up these figures with those of ordinary irregular migrants. This misinterpretation induced by the biased presentation of the Agenda was of course immediately relayed by the political class in its entirety and, within a few member states such as France, the confusion is obvious as the various interpretations of the President and the Prime minister clearly show.

A second trouble reigns over the impact created following the Commission’s announcement of the proposals of “relocation” and “resettlement”. Yet the idea is very simple: it refers to either people who are already in the Union (relocation) or those who are still outside of it (resettlement). The European Agenda in fact outlines two distinct measures which concern totally different situations and the vagueness of what is said combined with the mix-up surrounding by the word “quotas” is far too obvious to have escaped the authors’ attention. Clarifying and completing things was probably the aim pursued by the May 27^th press room where the announced texts were not available and, for the Recommandation, not even formally adopted !!!

The first proposal is entirely new. It involves instigating a temporary “resettlement” procedure in the case of applicants who “are in clear need of protection”. This proposal would be justified under the principle of solidarity of article 80 TFUE so as to “ensure the fair sharing of responsibility between all of the Member States”.

The Commission thus proposes “triggering the emergency response system envisaged under Article 78(3) TFEU”. This is in fact a preconceived lie; the treaty does not to date contain an “emergency response system” but on a much more modest scale, an emergency “procedure”. Indeed, the procedure states that “in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.” No more, no less and by qualified majority. Hence a more careful formulation since then, that of a “Proposal for provisional emergency relocation measures”.

The Commission shows no fear in anticipating the agreement of the Member States in Council; this is yet another highly revealing novelty. The “relocation” would appear to concern in all likelihood applicants who have already entered the Union’s soil, illegally as the Commission said it. Logically enough but rather arbitrarily, the Commission adds that those eligible for relocation are therefore applicants with nationalities who have an average EU recognition rate for international protection that is equal to or above 75%, according to the latest available EU-wide Eurostat data, in other words, Syrians and Eritreans.

It would be established on a redistribution key based on criteria such as GDP (40%), size of the population (40%), unemployment rate (10%) and the past number of asylum seekers and of resettled refugees (10%). The receiving Member State will be responsible for the examination of the application in accordance with Union law. Let us point out in passing that each state is trying to dispel the “Land of Asylum” image that France once held and now belongs to the past. It is currently fighting to obtain that the number of applicants, which is to its avantage, accounts finally for 30% of the criteria …

The system is a “ proposal for a Council decision establishing provisional measures in the area of international protection for the benefit of Italy and Greece” COM (2015) 286, for two years. The Commission rejects Malta from the device without really convincing if one thinks in terms of percentage, no more than the indifference of the Commission with regard to those « relocated » who would not accept the destination assigned …

Obviously the three Member States concerned by the opt-out provision with regards to certain policies of the Area of freedom could choose to not be involved in the deliberation of the scheme which is indeed the case for the United Kingdom as it has already announced.

Technically, it is a a limited and temporary derogation fromcertain provisions of the Dublin Regulation, in particular as regards the criterion for determining theMember State responsible for examining an asylum application. Will it receive the consent of the States supporting the text who refused any substantial change ?

In a second time, on May 27^th 2015, the Commission judged it necessary to give detailed figures, which it had not two weeks earlier. First, concerning the volume of the concerned persons : there would be 40.000 of them. that is 40% of the total number of applicants who entered irregularly Italy and Greece in 2014. The distribution of the 40,000 total between the two countries, respectively 24,000 from Italy and 16,000 from Greece, is based on their respective shares of the total number of irregular border crossings of persons in clear need of international protection over the last year.

In return, the States accepting relocation will receive a €6000 lump sum for each relocated person, under the Asylum, Migration and Integration Fund (AMIF), an extra €240 million in dedicated funding to support this 24 month scheme.

And the Commission does not leave it at that. On May 13^th, it has even stated that it will table a legislative proposal after 2015 to render such a system “permanent”, “automatic” and “mandatory” (COM (2015) 240 p. 5). All of this in total contempt of the political balance of power and the sovereignty of the Member States which the rule of law of the Union cannot constrain to this point. Is this just a matter of reinforcing the attractiveness of an initiative which already gave rise to such strong opposition among Member States?

A certain amount of surprise arises from the political and technical backing of this sequence. It is particularly true with regards to the rigid stalemate of the Commission over an existing tool, specifically designed for emergency situations. In fact, directive 2001/55 of 20 July 2001, on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons. This text was drawn up, passed and implemented whilst war was waged in Kosovo: it provides a yardstick for Member States’ tolerance levels alongside the upper limit of their understanding. The Directive grants temporary protection in the Union … on a voluntary basis of States, as indicated in article 26. The Agenda does not mention this even once.

Hard-line attitudes of this nature create doubt especially concerning an institution which has hardly been renowned for its political courage. It is difficult to understand why an institution determined to have this type of proposal accepted would label and present it these terms… Using this type of argumentation, the proposal is doomed to fail before it even gets off the ground. There is no way of avoiding that this is in fact the exact goal that the Commission had in mind- being shot down in the line of duty due to overly generous proposals whilst also provoking a political electric shock…

Anyway, we will go back to it later in detail in these columns.

The second major proposal is totally different and concerns “resettlement” of asylum seekers. In refugee law the resettlement procedure is absolutely standard. It is now both known and used in the European Union COM (2009) 447 which launched a recent Programme, even if it is only on a small scale. Resettlement of refugees is voluntary. Currently, only 15 EU Member States have resettlement schemes, with three other Member States resettling onad hoc basis. The remaining Member States do not participate in resettlement.This allows to measure their enthusiasm and to doubt their changing mind …

Persons who “clearly need international protection”, are transferred from outside of Europe, that is to say from a third State to a Member State which agrees to accept the aforementioned persons, on the United Nations High Commissioner for Refugees’ recommendation who acts as an intermediary.

It is no longer a question of a beating stick and obligations but more of a carrot. A simple “recommendation” from the Commission will enable a new “resettlement programme” to be set up which will apparently be added to the existing one and on top of that will be matched with a financial incitement of fifty million euros over the next two years. The distribution key of these applicants would be the same as for “relocation”, it would remain voluntary, with possible participation of the associated states.

The total number specified is 20,000 people over this period of two years. The cries of outrage emitted from the majority of the Member States give cause for some surprise. In fact 10.000 asylum seekers per year will be distributed in the Union, adding to the 500 million inhabitants of the EU and this figure is given when 2014 saw 6,380 people resettled in the Union… The projected figures drawn up by the Commission under the criteria discussed above produce results which do not seem to deserve the outcry provoked. The table below shows the current annual resettlement figures alongside those suggested by the Commission and we can thus clearly appreciate the ridiculousness of them with regards to resettlement needs which, according to the High Commissioner, are somewhere in the vicinity of millions :

In other words and assuming that it will be accepted, the supposed effort that the Union is making is far from sufficient in light of the tragic events taking place for the millions of Syrian refugees fleeing death or persecution, in Turkey, Jordan, or Lebanon. Where Germany has announced admitting 10,000 refugees, France has spoken of fewer than a thousand…

The reception of the European Agenda and more specifically of the proposals for distribution of asylum seekers is worthy of the paradigm change which it outlines. There is absolutely nothing surprising about NGOs and the High Commissioner for Refugees approving this direction. Nor is there anything surprising about the fact that Hungary, Poland, the United Kingdom and France (in a more ambiguous fashion) are against it while the other countries are keeping a prudent silence. In fact, it is the sovereign capacity of each State to decide to admit migrants in need of protection which is at question. Common reading of grounds for granting protection, mutual acknowledgement of decisions and judicial review are all stages that have to be traversed sooner or later. Appearing to be under no illusions as to the likelihood of these proposals being accepted, the president of the Commission has chosen to advance onto the terrain of provocation. Despite the implicit consent of the German delegation- including in Parliament- it is not yet the right time to move towards the next stage. Never mind for the Mediterranean graveyard, appearances have been kept up.

OPEN LETTER TO UK MPS: ENSURING DEMOCRATIC SCRUTINY OF UK SURVEILLANCE LAW CHANGES

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve PEERS

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today’s letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.

An open letter to all members of the House of Commons,

Dear Parliamentarian,

Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During the past two years, the United Kingdom’s surveillance laws and policies have come under scrutiny as the increasingly expansive and intrusive powers of the state have been revealed and questioned in the media. Such introspection is healthy for any democracy. However, despite a need for transparency in all areas of lawmaking, and in particular in areas of controversy, the previous Government repeatedly resisted calls for an open and transparent assessment and critique of UK surveillance powers. Instead, in response to legal challenges, it extended the powers of the state in the guise of draft Codes of Practice and “clarifying amendments.” As we welcome a new Government we expect another round of revisions to UK surveillance laws, with the likelihood that the Queen’s Speech will signal a revival of the Communications Data Bill. At this time we call on the new Government, and the members of the House, to ensure that any changes in the law, and especially any expansions of power, are fully and transparently vetted by Parliament, and open to consultation from the public and all relevant stakeholders.

Last year, in response to the introduction of the Data Retention and Investigatory Powers Bill (“DRIP”), a number of leading academics in the field – including many of the signatories to this letter – called for full and proper parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled as to what powers it truly contained. Our concern emanated from the Home Secretary’s attempt to characterize the Bill, which substantially expanded investigatory powers, as merely a re-affirmation of the pre-existing data retention regime.[1]

Since that letter was written, it has become apparent that the introduction of the DRIP Bill was not the only time an expansion of surveillance powers was presented in a way seemingly designed to stifle robust democratic consideration. In February 2015, the Home Office published the draft Equipment Interference Code of Practice.[2] The draft Code was the first time the intelligence services openly sought specific authorisation to hack computers both within and outside the UK. Hacking is a much more intrusive form of surveillance than any previously authorised by Parliament. It also threatens the security of all internet services as the tools intelligence services use to hack can create or maintain security vulnerabilities that may be used by criminals to commit criminal acts and other governments to invade our privacy. The Government, though, sought to authorise its hacking, not through primary legislation and full Parliamentary consideration, but via a Code of Practice.

The previous Government also introduced an amendment via the Serious Crimes Act 2015, described in the explanatory notes to the Bill as a ‘clarifying amendment’.[3] The amendment effectively exempts the police and intelligence services from criminal liability for hacking. This has had an immediate impact on the ongoing litigation of several organisations who are suing the Government based in part on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The new Conservative Government has announced its intention to propose new surveillance powers through a resurrection of the Communications Data Bill. This will require internet and mobile phone companies to keep records of customers’ browsing activity, social media use, emails, voice calls, online gaming and text messages for a year, and to make that information available to the government and security services. We also anticipate this Parliament will see a review of the Regulation of Investigatory Powers Act 2000, which currently regulates much of the Government’s surveillance powers. The Independent Reviewer of Terrorism Legislation, David Anderson QC, has conducted an independent review of the operation and regulation of investigatory powers, with specific reference to the interception of communications and communications data. The report of that review has been submitted to the Prime Minister, but has yet to be made public: when it is made public, parliamentary scrutiny of the report and any recommendations made following it will be essential.

As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality, of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came to before the courts one issue examined would be the nature of any “exacting review” undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.

This letter has been prepared and signed by 35 academic researchers. We are comprised of people from both sides of this issue – those who believe that increased powers are a reasonable response to an emerging threat, and those who think them an unjustified extension of state interference. Our common goal is to see the Rule of Law applied and Parliamentary oversight reasserted. We are calling on all members of the House of Commons, new and returning, and of all political persuasions to support us in this by ensuring Parliamentary scrutiny is applied to all developments in UK surveillance laws and powers as proposed by the current Government.

Signatories

Andrew Murray (contact signatory)	Paul Bernal (contact signatory)
Professor of LawLondon School of Economics a.murray@lse.ac.uk	Lecturer in Information Technology, Intellectual Property and Media Law University of East AngliaPaul.Bernal@uea.ac.uk
Subhajit BasuAssociate Professor University of Leeds	Sally Broughton MicovaDeputy Director LSE Media Policy Project, Department of Media and Communications London School of Economics and Political Science
Abbe E.L. BrownSenior Lecturer School of Law University of Aberdeen	Ian BrownProfessor of Information Security and Privacy Oxford Internet Institute
Ray CorriganSenior Lecturer in Maths, Computing and Technology Open University	Angela DalyPostdoctoral Research Fellow Swinburne Institute for Social Research Swinburne University of Technology
Richard DanburyPostdoctoral Research Fellow Faculty of Law University of Cambridge	Catherine EastonLancaster University School of Law
Lilian EdwardsProfessor of E-Governance Strathclyde University	Andres GuadamuzSenior Lecturer in Intellectual Property Law University of Sussex
Edina HarbinjaLecturer in Law University of Hertfordshire	Julia HörnleProfessor in Internet Law Queen Mary University of London
Theodore KonstadinidesSenior Lecturer in Law University of Surrey	Douwe KorffProfessor of International Law London Metropolitan University
Mark LeiserPostgraduate Researcher Strathclyde University	Orla LynskeyAssistant Professor of Law London School of Economics
David MeadProfessor of UK Human Rights Law UEA Law School University of East Anglia	Robin MansellProfessor, Department of Media and Communication London School of Economics
Chris MarsdenProfessor of Law University of Sussex	Steve PeersProfessor of Law University of Essex
Gavin PhillipsonProfessor, Law School University of Durham	Julia PowelsResearcher Faculty of Law University of Cambridge
Andrew PuddephattExecutive Director Global Partners Digital	Judith RauhoferLecturer in IT Law University of Edinburgh
Chris ReedProfessor of Electronic Commerce Law Queen Mary University of London	Burkhard SchaferProfessor of Computational Legal Theory University of Edinburgh
Joseph SavirimuthuSenior Lecturer in Law University of Liverpool	Andrew ScottAssociate Professor of Law London School of Economics
Peter SommerVisiting Professor Cyber Security Centre, De Montfort University	Gavin SutterSenior Lecturer in Media Law Queen Mary University of London
Judith TownendDirector of the Centre for Law and Information Policy Institute of Advanced Legal Studies University of London	Asma VranakiPost-Doctoral Researcher in Cloud Computing Queen Mary University of London
Lorna WoodsProfessor of Law University of Essex

[1] http://bit.ly/1jNzlUz
[2] http://bit.ly/1yiXUZD
[3] http://bit.ly/1LfVFz3
[4] http://bit.ly/1S4RCdJ

Posted by Steve Peers at 03:18

Europe and “Whistleblowers” : still a bumpy road…

by Claire Perinaud (FREE Group trainee) The 9th and the 10th of April was organized in Paris by the University Paris X Nanterre la Défense in collaboration with the University Paris I Sorbonne a Conference on « whistleblowers and fundamental rights »[1] which echoed a rising debate on the figure of wistleblowers after the numerous revelations of scandals and corruption which occurred last years, with some of them directly linked to EU institutions. In the following lines I will try to sketch a) the general framework then b) the main issues raised during the Conference

A) The general framework

The term « whistle-blower » was created by Ralph Nader in 1970 in the context of the need to ensure the defense of citizens from lobbies. He defined « whistle blowing » as « an act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is in corrupt, illegal, fraudulent or harmful activity »[2]. The interest of scholars and lawyers to the figure of whistle-blowers in the United States dates back to the adoption by the Congress in 1863 of the False claims act which is deemed to be the first legislation related to the right of alert[3].
The system which developed afterwards is notably based on the idea that whistle-blowing is a strong mechanism to fight corruption and has to be encouraged by means of financial incentives[4]. If this mechanism is of utmost importance in the United States, protection of whistle blowers is only slowly introduced in Europe[5].
With numerous scandals related to systemic violations of human rights, the subject is progressively dealt with in the European Union (EU) and in the Council of Europe. Nevertheless, in both organizations, the protection of whistleblowers remain at the stage of project or only recommendations to the states.

The Council of Europe… Continue reading “Europe and “Whistleblowers” : still a bumpy road…”

The EU’s Planned War on Smugglers

ORIGINAL PUBLISHED ON STATEWATCH

by Steve Peers (Twitter: @StevePeers)

The EU’s Foreign Affairs Council is meeting today (May 18) to discuss the possibility of a military operation in the Mediterranean to take actions against smuggling of migrants. Officially, at least, the purpose of the operation (as defined by EU leaders last month) is to destroy smugglers’ boats. The EU’s High Representative has stated that there will be ‘no boots on the ground’; and as she arrived at the Council meeting today, she referred to authorising an ‘EU operation at sea’.

However, it is clear from the documents discussed in the EU’s Political and Security Committee last week that (unless plans have changed radically in the meantime) the High Representative is being “economical with the truth”. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life not only of smugglers but also of Member States’ forces and refugees. In effect, the EU is planning to declare war on migrant smugglers – without thinking through the consequences.

Details

The document defines the purpose of the EU operation: ‘to disrupt the business model of the smugglers, achieved by undertaking systematic efforts to identify, seize/capture and destroy vessels and assets before they are used by smugglers.’

There would be four phases: ‘(1) a deployment and assessment phase, (2) an operational/seizure (of smuggled vessels) phase; (3) an operational/disruption phase, (4) a mission withdrawal and completion phase. The EU states that authorisation by the UN is not required by the first phase. While ‘ideally’ there should be consent of ‘the government(s) concerned’, the EU document clearly contemplates going ahead without it.

Phase 1 – Deployment Continue reading “The EU’s Planned War on Smugglers”

(UK) IS REPEALING THE HUMAN RIGHTS ACT COMPATIBLE WITH EU LAW?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

The new British government has indicated that it is determined to repeal the UK’s own Human Rights Act (HRA) in the near future. There are a number of legal and political problems with this idea, which are aptly summarised (with many links to further discussion) in a new Jack of Kent blog post. But the issue of the overlap between the HRA and EU law isn’t discussed there. I blogged last year on how the Conservative party’s strategy document on this issue fit very awkwardly with the UK’s EU law obligations, but it’s a good time to update this analysis.

First of all, let’s simplify the analysis by assuming that the UK will not withdraw from the European Convention on Human Rights (ECHR), although as discussed in the prior blog post, the strategy document did raise the possibility that the UK will withdraw from that Convention if the Council of Europe raises too many objections to its plans. As I blogged previously, withdrawal from the ECHR could impact upon the UK’s EU membership, but we are not at that stage yet.

Secondly, we have not yet seen the details of the government’s proposals to repeal the HRA, but I will assume for now that they will not aim to disapply the EU’s Charter of Rights in the domestic laws of the UK. I have separately blogged on the reasons why this would be unfeasible, but let’s assume for now (until we see those proposals) that this is not the government’s intention.

The core of the government plan (if it follows the template set out in the previous strategy document) is to weaken the domestic system of human rights protection, decouple it from the ECHR system and introduce new rules which weaken substantive protection of human rights for any group of people whom the government deems to be sufficiently despicable (for more details, see my critique of the plan here). How does that relate to EU law? Continue reading “(UK) IS REPEALING THE HUMAN RIGHTS ACT COMPATIBLE WITH EU LAW?”

A.T. V LUXEMBOURG: THE START OF THE EU-ECHR STORY ON CRIMINAL DEFENCE RIGHTS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Alex Tinsley, (*)

(*) Legal & Policy Officer (Head of EU Office) at Fair Trials, based in Brussels. Twitter: @AlexLouisT

On 9 April 2015, the European Court of Human Rights (‘ECtHR’) gave judgment in A.T. v Luxembourg. The judgment, which will become final unless referred to the Grand Chamber, in finding a violation of Article 6 of the European Convention on Human Rights (ECHR), develops the principles established in the Salduz v Turkey. At the invitation of Fair Trials International, third party intervener, it also takes into account, for the first time, Directive 2013/48/EU on access to a lawyer in criminal proceedings (the ‘Access to a Lawyer Directive’), a possible indicator of future convergence in this area.

Background

The applicant, A.T. was questioned by police following surrender under a European Arrest Warrant (‘EAW’) (as to the cross-border aspect, see the post-script). On arrival, he demanded a lawyer. Police gave information (it is unclear what) which led him to accept to be questioned without one. He denied the offences. He was then questioned again before the investigating judge, with a lawyer present but (a) without having had the chance to talk with that lawyer beforehand and (b) without the lawyer having had sight of the case file prior to that questioning; again, he denied the offences.

A.T. argued that his defence rights had been breached as he had been denied access to a lawyer. The appeal court, and then the Court of Cassation, rejected this, essentially finding that he had agreed to be questioned without a lawyer and that no obligation arose to remedy any prejudice caused. With local remedies exhausted, A.T. applied to the ECtHR arguing a violation of Article 6 ECHR.

The legal territory: the Salduz principle Continue reading “A.T. V LUXEMBOURG: THE START OF THE EU-ECHR STORY ON CRIMINAL DEFENCE RIGHTS”

EU Asylum Policy: In Search of Solidarity and Access to Protection

ORIGINAL PUBLISHED ON Migration Policy Centre, EUI

by Evangelia (Lilian) Tsourdi and Philippe De Bruycker,

1.State of play

Growing numbers of the forcibly displaced

Numerous crises and conflicts worldwide have forced more people from their homes, in the last years and months, than at any time in the last two decades1. The Syrian conflict has, for example, triggered the world’s largest humanitarian crisis since World War II, leading 3.9 million refugees to flee and leaving an estimated 12.2 million persons in need of humanitarian assistance inside Syria2. At the same time, significant numbers have had to flee other countries including Iraq, Afghanistan and Eritrea in order to seek asylum3.

The vast majority of those forcibly displaced outside their country of origin or residence remain in neighboring countries. The Syrian crisis is a telling example in this respect. Countries bordering Syria are coming close to saturation, particularly Lebanon, which hosts the largest per capita refugee population in the world with almost 1.2 million Syria refugees4. It has to be remembered that the Syrian refugee crisis comes just after the Iraqi refugee crisis of 2006-2009, which had displaced around two million Iraqi citizens towards the very same countries: Syria, Jordan, Lebanon, Turkey and Egypt5.

It is against this backdrop that the relative rise in asylum applications to the EU28 and the EU’s advancement in the creation of a common asylum system, as well as its role as a global protection actor should be assessed.

Is a Common European Asylum System in place?

The incremental development of a CEAS has been agreed since the Treaty of Amsterdam and the Tampere conclusions of 19997. The first stage of development revolved around efforts at legal harmonization on the basis of shared minimum standards. However, a common asylum procedure and a uniform status valid throughout the EU were seen as the end objective. It became apparent that legal harmonization alone would not be enough to bring about this result. Therefore, the development of other elements, and most notably, practical cooperation and enhanced solidarity came up.

It was gradually recognized that there were a number of advantages in joining forces in the asylum area. There was, of course, the rather ‘inward-focused’ motivation of establishing a common asylum system in order to limit secondary movements of protection seekers that had reached EU territory. But there were, also, more ‘outward looking goals’. Notably, these were: coordinating action in order to have a strategic impact externally; collaborating with third countries in the management of migration flows; and, less prominently, boosting the possibilities of legal access to the EU for international protection seekers.

Examined macroscopically, the CEAS is an advanced regional protection framework, both legislatively and policy-wise, that has the potential to influence the international refugee protection regime. Member States have sought to devise concrete mechanisms to allocate responsibility and they have elaborated detailed norms in areas that are not covered by the 1951 Refugee Convention, such as asylum procedures. They possess an institution, the Court of Justice of the EU, which is tasked with authoritatively interpreting the common norms, in an area where there is no ‘international refugee Court’. They have managed to move from ad-hoc support and exchanges of good practice to the institutionalization of practical cooperation efforts, by creating an EU agency. Finally, they have begun to coordinate their actions externally in an effort to manage, as much as possible, migration flows and to build protection capacity in third countries.

Nevertheless, the EU’s asylum system is riddled with problems that hold back its development. First of all, the responsibility-allocation mechanism that has been devised fails to share responsibility equitably between the Member States; it also largely disregards the realities faced by protection seekers and their preferences. More broadly, no objective discussion of what is a fair share of responsibility has ever taken place. This creates disincentives: on the one hand, for Member States to respect the obligations they have undertaken legislatively and, on the other, for protection seekers to abide by the rules, which do not take into account their links to specific Member States. Beyond the legislative and policy framework, the differentiated level of economic development between Member States, the discrepancies in their social assistance systems and the varying levels of investment in their asylum processing and reception systems, have led to widely diverging recognition rates and reception conditions. This has undercut the objective of curbing secondary movements between Member States; on the contrary it has fuelled them.

Finally, the EU’s external asylum dimension remains underdeveloped and is disproportionately focused on capacity building, while offering meagre opportunities for legal entry to protection seekers. On the contrary, the various measures the EU has taken as part of its external border control or visa policies have stifled access to protection and have led asylum seekers to risk their lives in order to reach EU territory. The impact of these policy choices is witnessed most vividly in the loss of life in the waters of the Mediterranean. Mediterranean crossings are not new; however, there an ever-increasing number of deaths in conjunction with a record number of migrant crossings8.

Why is reform still necessary?

Continue reading “EU Asylum Policy: In Search of Solidarity and Access to Protection”

Mutual Recognition of Positive Asylum Decisions in the European Union

by Valsamis Mitsilegas (*)

The following lines summarize the issues I have raised at the Conference on “Managing Asylum Flows: Strengthening the Tools, Strengthening the System” organized by the Italian Presidency of the Council on 18-19 November 2014.

1. In order to evaluate the legal challenges surrounding the development of the Common European Asylum System (CEAS), one must bear in mind the paradox at the heart of the evolution of the Area of Freedom Security and Justice (AFSJ): while for a great part of EU Member States internal borders have been abolished, the administration of law and justice continues to take place at the national level, in accordance with national procedures and law. A Common European Asylum System has not (yet) led to a single European asylum status or procedure.

2. Mutual recognition has been one of the key tools which have been developed in EU law to manage the interaction of national legal systems in this context. Its operation in the AFSJ involves a system whereby decisions by judicial authorities issued in one Member State are recognised and executed speedily and with a minimum of formality and limited grounds for refusal by authorities in other Member States.

3. Mutual recognition has developed in this context in the fields of civil and criminal law. In criminal law, the system established by the European Arrest Warrant Framework Decision is emblematic of the application of the principle of mutual recognition in criminal matters. While the majority of the mutual recognition of the EU acquis in criminal law involves the mutual recognition (and thus extraterritorial application) of decisions aimed at law enforcement and at increasing the powers of the state, there are two Framework Decisions which lead to the mutual recognition of rights: the FD on the European Supervision Order (ESO- concerning the recognition of decisions on bail); and the FD on the European Protection Order (EPO- concerning the extraterritorial application of decisions granting rights to victims of crime such as restraining orders).

4.Notwithstanding the much higher degree of harmonisation in the field of asylum law compared to criminal law, mutual recognition has not been used extensively in the field of asylum. Mutual recognition has been used in a negative manner only in the Dublin system, whereby a decision by national authorities not to examine an asylum claim and leading to the transfer of an asylum seeker to another Member State is almost automatically recognised by the other Member State. The priority is here not to transfer rights, but to shield national systems from the presence and the examination of claims by asylum seekers. Recent case-law by European courts (MSS and Tarakhel in Luxembourg and NS in Luxembourg) has placed limits to the Dublin automaticity and the Dublin system under strain.

5. In the light of the above, the time has come to consider the application of the principle of mutual recognition to positive asylum decisions in EU law. The application of mutual recognition in this context provides five distinct and clear benefits:

a)It will create legal certainty as regards the status and rights of refugees throughout the EU in an AFSJ without internal frontiers

b)It is consistent with the Treaty aim of establishing a CEAS and a uniform status (Article 78 TFEU)

c) The necessary harmonisation which is necessary for the effective operation of mutual recognition exists at EU level, with the adoption of the second generation CEAS instruments post-Lisbon. There is a need to focus on the implementation of and compliance with these instruments across the EU.

d) Mutual recognition of positive asylum decisions is a corollary to developments examining possibilities for the pooling of reception conditions and join processing of asylum claims. Pooling of reception and procedure must be combined with the pooling of protection. Joint efforts in procedures and reception before the granting of refugee status will create joint ownership and mutual trust which will facilitate the subsequent recognition of positive asylum decisions across the EU.

e) Mutual recognition of positive asylum decisions focuses the discussion on solidarity specifically on the needs and rights of the refugee.

6. Point 5 has examined the question of why mutual recognition. This point will address the question of how.
There are three factors which must be considered when examining the precise conditions and modalities for the application of the principle of mutual recognition to positive asylum decisions:

Time: from when will mutual recognition kick in? One option is for mutual recognition to kick in from day one, namely from the date of the judicial decision granting refugee status. Another option may be for mutual recognition to kick in after 2 years of continuous residence in the state which has granted protection in line with the time limits established by the European Agreement of Transfer of Responsibility. A third option may be a hybrid model where movement to the second Member State happens immediately but equal treatment with long-term resident third-country nationals is granted from day one, whereas equal treatment with nationals of the second state is granted after 2 years.

Rights: For mutual recognition to be meaningful, the recognition of status should be accompanied by the recognition of rights. The protection and rights which the refugee is granted in the first Member State should follow her in the second Member State. There are different moments in time when this can happen (see under i).

Quotas: a possible way forward is to combine mutual recognition with the allocation of responsibility between Member States on the basis of quotas. However, this option faces two challenges: it may disregard the particular situation and wishes of refugees (eg in the context of family reunification); and it is hard to enforce in a Union without internal frontiers.

(*) Professor of European Criminal Law, Director of the Criminal Justice Centre / Head of the Department of Law, Queen Mary University of London.

(DRAFT) COMMISSION STRATEGY ON EU IMMIGRATION POLICY

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

The following is a leaked draft of the Commission communication on the EU migration agenda which is due to be published on Wednesday 13th May.It might be changed before publication and may also be missing some text.

_____________________________________________________________

Introduction

Throughout history, people have migrated from one place to another. The reasons can vary greatly: political oppression, war, poverty, entrepreneurship, family reunification – every person’s migration tells its own story. Migration impacts society in many different ways and calls for a variety of responses. This Agenda brings together the different steps the European Union should take now, and in the coming years, to meet this challenge.

The immediate imperative must be the duty to protect those in need. The plight of thousands of migrants putting their lives in peril to cross the Mediterranean has shocked us all. As a first and immediate response, the Commission put forward a ten point plan for immediate action. The European Parliament and the European Council have lent their support to these plans and Member States have also committed to concrete steps to avert further loss of life.

The response was immediate but insufficient. This cannot be a one-off response. Emergency measures have been necessary because the collective European policy on the matter has fallen short. While most Europeans have responded to the plight of the migrants, the reality is that across Europe, there are serious doubts about whether our migration policy is equal to the pressure of thousands of migrants, to the need to integrate migrants in our societies, or to the economic demands of a Europe in demographic decline.

To try to halt the human misery created by those who exploit migrants, we need to exploit the EU’s global role and wide range of tools to address the root causes. Some of these are deep-seated but must be addressed. Globalisation and the communication revolution have created opportunities and raised expectations. Others are the consequence of wars and crises from Ukraine to the Middle East and North Africa. The impact of global poverty and conflict do not end at national frontiers. Europe should continue to be a safe haven for those fleeing persecution but it is also an attractive destination for economic migrants. Upholding our international commitments and values while protecting our borders and at the same time creating the right conditions for Europe’s economic prosperity and societal well-being is a difficult balancing act that requires coordinated action on the European level.

This calls for a set of core measures and a consistent and clear common policy. We need to restore confidence in our ability to bring together European and national efforts to address migration, to meet our international and ethical obligations and to work together in an effective way. A European solution is essential because these are challenges that no Member State can effectively address alone. But it is clear that we need a new approach. This requires using all policies and tools at our disposal – combining internal and external policies to best effect. This also requires us to show solidarity and shared responsibility. All actors, Member States and EU institutions, need to work together to make a common European migration policy a reality. Continue reading “(DRAFT) COMMISSION STRATEGY ON EU IMMIGRATION POLICY”