Category: 5. Asylum & refugees rights' policies

Le placement en rétention des demandeurs d’asile, précisions utiles de la Cour de justice dans l’arrêt J.N.

ORIGINAL PUBLISHED ON CDRE PAGE ON 7 MARS 2016 (NB : emphasis are added)

par Marie Garcia, CDRE

Le 15 février 2016, la Cour de justice, réunie en grande chambre, s’est prononcée dans l’affaire J.N(C‑601/15 PPU). Rendu dans le cadre d’une procédure préjudicielle d’urgence (PPU), l’arrêt s’attèle à la délicate question du placement en rétention des demandeurs d’asile, comme le prévoit désormais ladirective 2013/33/UE.

L’occasion était donc donnée au juge de l’Union, d’interroger le bien-fondé d’une telle mesure, alors qu’en principe, l’examen de la demande d’asile garantit le droit pour le demandeur de demeurer librement dans le pays d’accueil et que le placement en rétention ne se justifie qu’à des fins d’éloignement.

1. Le caractère exceptionnel du placement en rétention des demandeurs d’asile.

Confronté au cas d’un demandeur d’asile, dont la rétention avait été ordonnée sur la base de l’article 8§3 e) de la directive 2013/33/UE relatif à la protection de la sécurité nationale ou de l’ordre public, le Raad van State (Conseil d’Etat des Pays-Bas) s’interrogeait quant à la validité d’une telle disposition avec le droit à la liberté et à la sûreté consacré par l’article 6 de la Charte.

Classique en droit, la question consistait à déterminer si l’exigence de protection de la sécurité nationale ou de l’ordre public constituait une limitation assez raisonnable pour qu’un droit aussi sacré que celui du droit à la liberté puisse souffrir d’exception. En d’autres termes, bien que l’ingérence soit juridiquement autorisée (article 52§1 de la Charte) et que le texte de la directive 2013/33 la prévoie formellement (article 8§3 e)), encore fallait-il, que le juge s’assure de la proportionnalité de la mesure, ici le placement en rétention, à l’objectif d’intérêt général poursuivi par cette même mesure, la protection de la sécurité nationale ou de l’ordre public.

Si la réponse de la Cour ne fait état d’aucune ambigüité, l’article 8§3 e) procède selon elle d’une « pondération équilibrée » entre la protection de la sécurité nationale ou de l’ordre public et l’ingérence dans le droit à la liberté occasionnée par la mesure de rétention, elle saisit cependant l’opportunité de rappeler que la rétention des demandeurs d’asile demeure une mesure d’une exceptionnelle gravité, dont la mise en œuvre, par les Etats membres doit s’opérer dans les limites du strict nécessaire.

Il en va tout d’abord de la logique générale du texte de la directive 2013/33/UE. Si la disposition selon laquelle, « les motifs du placement en rétention sont définis par le droit national », avait à juste titre inquiété certains de ses détracteurs, une lecture attentive des autres dispositions de la directive et de ses travaux préparatoires, démontre que les intentions du législateur de l’Union sont bien celles de faire de la rétention une mesure de dernier ressort, au profit d’alternatives garantissant le droit à la liberté des candidats à une protection internationale.

Ainsi, la marge de manœuvre dont dispose les Etats membres se réduit-elle, en principe au moins, au respect d’une procédure exigeante et rigoureuse, selon laquelle les autorités nationales doivent se livrer à un examen individuel de la situation de chaque demandeur, vérifier l’existence de mesures moins coercitives, s’assurer de la durée la plus brève possible de la rétention et de la permanence des motifs la justifiant, le tout conformément au respect des garanties procédurales et juridictionnelles prévues par le texte.

Dans ce contexte, le motif tiré de la protection de la sécurité nationale ou de l’ordre public ne pouvait échapper à un cadre d’interprétation exigeant et restreint, en sus des principes dégagés ci-dessus. En application de sa jurisprudence traditionnelle, relative aux notions de sécurité nationale et d’ordre public, la Cour déclare que l’atteinte à la sécurité nationale ou l’ordre public ne justifie un placement en rétention que lorsque le comportement du demandeur en question « représente une menace réelle, actuelle et suffisamment grave, affectant un intérêt fondamental de la société ou de la sécurité intérieure ou extérieure de l’Etat membre concerné ». Il incombe ainsi aux autorités nationales de démontrer que le danger incarné par le demandeur d’asile justifie le placement en rétention, et pour reprendre l’expression de la Cour,correspond au moins à la gravité de l’ingérence que constitue la rétention dans le droit à la liberté du demandeur.

Si ces rappels sont les bienvenus, notamment parce que la crise migratoire actuelle fait la lumière sur des situations de violations flagrantes des droits des réfugiés (en témoigne le récent projet du gouvernement grec de banaliser l’enfermement systématique des primo-arrivants pour une durée de trois jours), l’intérêt de l’arrêt se trouvait peut-être là où on ne l’attendait pas.

La particularité de la situation du requérant (il avait été condamné à diverses peines d’emprisonnement pour une vingtaine d’infractions de vol constatées et avait fait l’objet avant d’introduire sa quatrième demande d’asile, d’une décision de retour et d’une interdiction d’entrée de plus de dix ans), amène en effet la Cour à préciser le régime de la rétention des demandeurs d’asile, au regard notamment des exigences de la procédure de retour et de la jurisprudence de la Cour Européenne des Droits de l’Homme en la matière.

2. Vers un régime européen de la rétention ?

Si le statut particulier du requérant, à la fois demandeur d’asile et ressortissant de pays tiers en situation irrégulière visé par une décision de retour, illustre la complémentarité qu’entretiennent discrètement la procédure d’asile et de retour, il est surtout l’occasion pour le juge de régler des situations que le droit n’a pas au préalable organisé.

A l’occasion tout d’abord, de l’appréciation du placement en rétention du requérant, la Cour qui s’attache à rechercher les indices d’un comportement menaçant et dangereux, tisse les premiers liens entre le texte de la directive 2008/115/CE et celui de la directive 2013/33/UE. 

En effet, l’article 11§2 de la directive 2008/115/CE autorise l’allongement de la durée de l’interdiction d’entrée (qui est en principe de cinq ans), lorsque la personne concernée constitue une menace grave pour l’ordre public, la sécurité publique ou la sécurité nationale. Si donc, dans le cadre de la procédure de retour qui le visait, le requérant était identifié comme présentant un danger pour les intérêts de la société, cette circonstance devait également être prise en compte dans le cadre de l’article 8§3 e) de la directive 2013/33/UE. A charge des autorités compétentes de contrôler que ces circonstances soient toujours valables au moment d’ordonner la rétention, ce qui est visiblement le cas en l’espèce.

La juridiction de renvoi mentionnait également que la demande de protection internationale avait été introduite postérieurement à la décision de retour et de l’interdiction d’entrée. La question de l’articulation entre ces différentes procédures devait être précisée, exercice auquel la Cour se livre, en démontrant que la procédure de retour et d’asile ont vocation à coexister.

Selon les textes en vigueur, le principe qui prévaut est bien celui pour le demandeur d’asile, de se maintenir sur le territoire de l’Etat membre, le temps de l’examen de sa demande de protection internationale. Cependant, le placement en rétention du requérant, fondé sur les exigences de protection de sécurité nationale ou de l’ordre public, ne compromet pas son droit de demeurer sur le territoire de l’Etat membre concerné, dans la mesure où elle ne vise pas à préparer son éloignement, mais à protéger la société du danger que ce dernier représente. Il n’y a donc aucun risque, de ce point de vue, que le requérant soit éloigné avant que les autorités nationales ne se prononcent en première instance, sur sa situation.

Parallèlement, l’introduction de la demande d’asile de l’intéressé ne peut pas réduire à néant les effets de la décision de retour dont il fait l’objet, du simple fait que la législation nationale le prévoie. Sur ce point la Cour est très claire. L’effet utile de la directive 2008/115/CE, dont l’objectif est bien celui d’instaurer une politique efficace d’éloignement, n’autorise pas qu’une procédure d’asile postérieure à la procédure de retour, retarde voire compromette l’éloignement de l’individu concerné.

En effet, comme elle a déjà eu l’occasion de le rappeler dans la jurisprudence Arslan, l’introduction d’une demande d’asile peut suspendre les effets de la procédure de retour engagée, le temps seulement, de l’examen de cette demande. Ceci s’explique aisément, par l’idée d’un éventuel rejet de la demande d’asile, lequel impliquerait alors que les autorités nationales se remettent à l’œuvre le plus vite possible, afin de s’acquitter de leur obligation d’éloigner tout ressortissant en situation irrégulière de leur territoire.

Enfin, face aux inquiétudes de la juridiction de renvoi, selon laquelle la rétention organisée dans le cadre de la procédure d’asile contreviendrait aux exigences de la jurisprudence de la CourEDH, le juge de l’Union en rappelle son contenu. Si la finalité de la rétention est bien l’éloignement, la Cour strasbourgeoise considère néanmoins que « l’existence d’une procédure d’asile en cours n’implique pas par elle-même que la rétention d’une personne ayant introduit une demande d’asile n’est plus mise en œuvre « en vue d’une expulsion », puisqu’un éventuel rejet de cette demande peut ouvrir la voie à l’exécution des mesures d’éloignement déjà décidées » (voir l’arrêt Nabil e.a c. Hongrie).

Ainsi, la rétention du requérant ne méconnait pas en l’espèce la ligne défendue par la CourEDH, la procédure de retour en cours, légitimant en quelque sorte la mesure de rétention ordonnée dans le cadre de l’examen de la procédure d’asile.

Tout en veillant à une application uniforme du droit de l’Union, le juge jette ici les bases d’un régime européen de la rétention, dont l’actualité de la situation migratoire en Europe se chargera vraisemblablement d’en préciser le contenu.

Schengen / Refugee Crisis : European Council (Draft) conclusions (March 6)

NOTA BENE  : Document leaked by Statewatch and by TO VIMA (previous version)

Meeting of the EU Heads of State or Government (Brussels, 7 March 2016) – Draft Statement (Doc SN 26/16)

Draft Statement of the EU Heads of State or Government

1.     Following their meeting with Prime Minister Davutoğlu, the EU Heads of State or Government addressed the migration situation, in particular as regards the Western Balkans route.

2.     They recalled that the European Council, at its meeting on 18-19 February, decided to get back to a situation where all Members of the Schengen area fully apply the Schengen Borders Code, while taking into account the specificities of the maritime borders, and to end the wave-through approach. Irregular flows of migrants along the Western Balkans route are coming to an end; this route is now closed. The EU will stand by Greece in this difficult moment and will do its utmost to help manage the situation that has arisen as a consequence of this development. This is a collective EU responsibility requiring fast and efficient mobilisation of all available EU means and resources and of Member States’ contributions.

3.     Action is required along the following lines:

a)     provide an immediate and effective response to the very difficult humanitarian situation which is rapidly developing on the ground. Emergency support will be provided urgently by the Commission, in close cooperation with Greece, other Member States and non-governmental organisations on the basis of an assessment, by the Commission and Greece, of the needs and a contingency and response plan. In this context, Heads of State or Government welcome the Commission proposal on the provision of emergency support within the EU  and call on the Council to adopt it before the March European Council, thus expanding the range of financial instruments that can be used; they invite the budgetary authority to take any necessary follow-up measures;

b)    provide further assistance to Greece in managing the external borders, including those with FYROM and Albania, and ensuring the proper functioning of hotspots, with 100% identification, registration and security checks, and the provision of sufficient reception capacities. Frontex will launch an additional call for national guest officers as soon as possible and all Member States should respond in full by 1 April at the latest. Europol will rapidly deploy guest officers in all hotspots to reinforce security checks and support the Greek authorities in the fight against smugglers. In this context, Heads of State of Government welcome the NATO activity in the Aegean Sea, which became operational today, and call on all members of NATO to support it actively;

c)     assist Greece in ensuring comprehensive, large scale and fast-track returns to Turkey of all irregular migrants not in need of international protection, building on the Greece-Turkey readmission agreement and, from 1 June, the EU-Turkey readmission agreement;

d)    accelerate the implementation of relocation to alleviate the heavy burden that presently weighs on Greece. EASO will launch a further call for national expertise to support the Greek asylum system and all Member States should respond rapidly and in full. Member States are also invited to provide more places for relocation as a matter of urgency. The Commission will report on a monthly basis  to the Council on the implementation of relocation commitments;

e)     continue to cooperate closely with the non-EU countries of the Western Balkans and provide any necessary assistance;

f)     implement the existing resettlement commitments and continue work on a credible voluntary humanitarian admission programme with Turkey;

g)    take any necessary measures immediately in respect of any new routes opening up, and step up the fight against smugglers;

h)    take forward, as a matter of priority, all the elements of the Commission roadmap on getting “back to Schengen”, so as to end temporary internal border controls and re-establish the normal functioning of the Schengen area before the end of the year.

4.     These are urgent measures that have to be taken against the background of the present situation on the ground and should be kept under review. The European Council will come back to the migration file in all its aspects at the March European Council to further consolidate the joint European implementation of our comprehensive migration strategy.

WORTH READING : BACK TO SCHENGEN. AN EUROPEAN COMMISSION’S ROADMAP

See notably the section dealing with the possible triggering of art.26 mechanism foreseen in the Schengen border Code.

It is almost unfortunate (and surprising) that when all these mechanisms were negotiated in codecision the European Parliament did’nt asked to be associated to such an important decision for the freedom of movement of EU Citizens and the smooth functioning of the internal market.. Once again, it is depressing to see that notwithstanding the Lisbon Treaty and of the Charter have widened the EP powers (and responsibilities) the latter still prefers to hide behind the decisions of european and national bureacrats and diplomats… (NB emphasis to the Commission Communication are added)   

EDC

The original European Communication on March 4 (COM (2016)00120) to the European Parliament, the European Council and the Council is accessible HERE .  The annexes  describing the current situation in the EU Ms are accessible HERE  (*)  

  1. Introduction

Schengen is one of the major achievements of European integration. The creation of an internal area without borders where persons and goods can circulate freely has brought important benefits to European citizens and business alike. Schengen is one of the key means through which European citizens can exercise their freedoms, and the internal market can prosper and develop.

Yet in recent months the system has been shaken to its core by the scale of the challenge of facing up to the largest refugee crisis since the Second World War. The conflict and crisis in Syria and elsewhere in the region have triggered record numbers of refugees and migrants arriving in the European Union, which in turn has revealed serious deficiencies at parts of the Union’s external borders and resulted in a wave-through approach applied by some Member States. This has led to the creation of a route across the Western Balkans which sees migrants travelling swiftly north. In reaction, several Member States have resorted to reintroducing temporary internal border controls, placing in question the proper functioning of the Schengen area of free movement and its benefits to European citizens and the European economy. Restoring the Schengen area, without controls at internal borders, is therefore of paramount importance for the European Union as a whole.

This was recognised by the European Council of 18/19 February which gave a clear mandate to restore, in a concerted manner, the normal functioning of the Schengen area while giving full support to Member States in the most difficult circumstances.[1]

Actions are needed in three areas to bring the Schengen system of border management back to normality. First, steps must be taken to remedy the serious deficiencies that were identified in the management of the external border by Greece. Member States, EU Agencies and the Commission should all assist Greece in this regard. Second, the wave-through approach must end. Member States must take their responsibilities and comply with EU law, both in terms of granting access to the asylum procedure for persons requesting asylum and in terms of refusing entry at the border to persons who do not satisfy the entry conditions; under EU law, asylum seekers have no right to choose the Member State granting them protection. Third, the current patchwork of unilateral decisions on the reintroduction of border controls needs to be replaced with a coordinated approach to temporary border controls, with the aim to subsequently lift all internal border controls as quickly as possible and with a clear target date of December 2016. The Schengen Borders Code expressly provides for such a coordinated approach.

The current crisis has also underlined the close structural links between border management and related areas. The absence of internal border controls should go hand in hand with the framing of a common policy on asylum, immigration and external border control, based on solidarity between Member States, and which is fair to third-country nationals[2]. It is therefore essential that the European Border and Coast Guard is agreed and legally adopted by June at the very latest so that it can start functioning during the summer, to ensure that the European Union can deliver on the joint responsibility of protecting the external border. Moreover, related challenges beyond border control need to be addressed in order to create the confidence needed to restore the full functioning of the Schengen area, as set out in the Commission’s Communication of 10 February[3]. This includes in particular a substantial reduction in the flow of irregular migrants to Greece, by working with Turkey to fully implement the Joint Action Plan, and with the support of NATO. The full application of the existing Dublin rules must be progressively restored, with the full participation of Greece, in line with the Commission’s recommendation of 10 February[4], whilst improving these rules for the future based on the objective of solidarity and fair burden-sharing between Member States. The emergency relocation schemes already in place since September 2015 must deliver concrete results in terms of meaningful volumes of persons relocated from Greece. Those persons who have no right to stay in the European Union must be effectively returned.

Taken together and in a coordinated way, these measures will lay the foundations for a return to a normally functioning Schengen area at the latest by the end of 2016. This roadmap sets out the steps that need to be taken in order to achieve this objective.

  1. The costs of non-Schengen

 The reintroduction of internal border controls on a sustained basis within the EU would not solve the challenges of the migration crisis, yet it would entail huge economic, political and social costs for the EU and the individual Member States. It would also risk putting in jeopardy the judicial and police cooperation that has become one of the key elements of added-value arising from the Schengen system.

The stabilisation of the Schengen system through the use of its safeguard mechanisms is essential in order to ensure the subsequent lifting of all internal border controls. To fail to do so would not only deprive people of the huge benefits of free movement across borders, but it would impose major economic costs on the EU economy as a whole by damaging the Single Market.[5] From an economic perspective, the Commission has estimated that full re-establishment of border controls to monitor the movement of people within the Schengen area would generate immediate direct costs for the EU economy in a range between €5 and €18 billion annually[6]. These costs would be concentrated on certain actors and regions but would inevitably impact the EU economy as a whole.

The free exchange of goods within the EU currently accounts for more than €2,800 billion in value and 1,700 million tonnes in volume. The highest and most immediate impact of border controls would be felt by the road haulage sector, with an additional €1.7 to €7.5 billion of additional direct cost each year. Member States such as Poland, the Netherlands or Germany would face more than €500 million of additional costs for the road transport of traded goods while others such as Spain or the Czech Republic would see their businesses paying more than €200 million in additional costs. These costs will have a particularly harmful impact on those sectors that operate on small margins and/or where transport presents a high percentage of the costs. Sectors that could be particularly affected include the agricultural sector and the chemical sector as well as the transport of raw materials. In the medium term, costs of transportation that are unduly increased by delays in border controls could hurt the efficient development of EU value chains and the competitiveness of the EU economy as a whole.

There are 1.7 million workers in the EU crossing a border every day to go to their jobs. Border controls would cost commuters and other travellers between €1.3 and €5.2 billion in terms of time lost. More importantly, long waits at the border would discourage people from looking for cross-border opportunities in the labour market, reducing the pool of potential workers. This would in the medium term reduce the economic efficiency of some regions.[7]

The Commission estimates that at least 13 million tourist nights could be lost in the EU due to the reduction of intra-Schengen tourist trips caused by cumbersome border controls, with a total cost of €1.2 billion for the tourism sector.  If border controls also bring a fragmentation of the EU’s common visa policy, the potential impact for the tourism industry could multiply (between €10 and €20 billion). Travel agents trying to minimise the number of countries visited by lucrative long distance tourists such as Asian tourists would hurt all but the most popular EU tourist destinations.

Finally, between €0.6 and €5.8 billion of administrative costs would have to be paid by governments due to the need for increased staff for border controls. Investment in the necessary infrastructure would add several billions.

The costs detailed above, mostly reflect direct first order effects of border controls. The medium term, indirect costs may be considerably higher with unprecedented impact on intra-community trade, investment and mobility.

From the citizens’ perspective, the reintroduction of border controls within the EU would damage the freedom of citizens to travel, which is one of the most cherished accomplishments of the EU. It would risk destroying one of the central achievements of European integration and the construction of a shared European space.

  1. Ensuring the protection of the external borders

The unprecedented migratory and refugee crisis has led to severe difficulties in several Member States in ensuring the efficient external border controls in accordance with the Schengen acquis and in the reception and processing of arriving migrants.  Greece is, mainly due to its geographical situation, particularly affected by these developments due to a shift in migratory flows with the result that the Aegean Sea has become the most exposed area for irregular migration. In 2015, more than 868 000 persons entered into the Schengen area irregularly through this section of the external border. This massive inflow is of a nature that would put the external border control of any Member State under severe pressure.  However, it does mean that there is an immediate need to address the current shortcomings in the protection of the external border by and in Greece. This is primarily the responsibility of Greece, but ultimately of the entire Union. Greece’s external borders are also the external borders of each member of the Schengen area. Restoring a strong external border in Greece is an indispensable part of wider efforts to stabilise the asylum, migration and border policy in Greece, including the aim to bring Greece back into the Dublin system.[8]

Wider structural deficiencies in the way that the Union’s external borders are currently protected have become evident in the current crisis. To address them, the Commission presented an ambitious proposal for a European Border and Coast Guard in December 2015. It is crucial that the co-legislators, the European Parliament and the Council, adopt the proposed Regulation without delay, by June at the very latest, in order for it to start functioning during the summer to ensure a high level of external border protection. To that end:

  • Member States should already now start the necessary preparations for the mandatory pooling of resources.
  • In the meantime, Member States should voluntarily step up the support provided to Frontex joint operations and rapid border interventions, in particular at present in Greece.
  • Within the limits of its current mandate, Frontex, in coordination with the European Fisheries Control Agency and the European Maritime Safety Agency, should also take all possible steps to prepare the setting up of the European Border and Coast Guard. In particular, Frontex should take preparatory steps to enable the European Border and Coast Guard, once operational, to immediately conduct the first vulnerability tests under the proposed risk assessment and prevention mechanisms and complete them by September at the latest. This is in particular relevant since migration routes might change and all sections of the EU external borders should be secure.
  • Addressing the deficiencies in the external border management in Greece

The Commission adopted a Schengen evaluation report on 2 February 2016, based on unannounced on-site visits to the Greek-Turkish land border and to the islands of Chios and Samos conducted from 10 to 13 November 2015. As a result, the Council adopted on 12 February 2016 a set of 50 recommendations to Greece to remedy serious deficiencies in external border management.[9] The recommendations concern in particular the identification, registration and fingerprinting of irregular migrants and sea border surveillance.

The Schengen Evaluation Mechanism and the Schengen Borders Code set out a clear procedure to address the serious deficiencies identified.

While recognising the improvements already made since the on-site visit in November 2015, the Commission adopted on 24 February 2016 an implementing decision setting out recommendations on specific measures to be taken by Greece, as provided for in the Schengen Borders Code.[10] These measures are designed with a view to ensuring full compliance by Greece with the recommendations of the Council. The implementation of these measures would serve the purpose of ensuring adequate border surveillance (including detection and apprehension), as well as correct and full identification, registration and reception of third-country nationals who crossed the external border irregularly, and return of those not in need of protection. This also applies to stepped-up exit controls at the border between Greece and the former Yugoslav Republic of Macedonia. In this way, these measures would safeguard the proper functioning of the Schengen area as a whole.

Within the framework set out by the Schengen Borders Code, the following steps will need to be taken to return to the orderly application of the Schengen rules in the protection of the external borders in Greece:

  • 12 March 2016: Greece should provide its action plan (required at the latest one month from adoption of the Council recommendations). By the same date (and then monthly), Greece should report to the Commission on the progress in the implementation of the Commission’s recommendations of 24 February 2016.
  • 12 April 2016: after consulting the Member States’ experts involved in the on-site visits in November 2015, at the latest one month after the presentation of the action plan, the Commission will present its assessment of the adequacy of this action plan to the Council. The other Member States shall be invited to comment on the action plan.
  • 11-17 April 2016: a Schengen evaluation carried out by Member States’ experts and the Commission of air, land and sea borders of Greece will take place[11]. The programme for the evaluation of land and sea borders includes some of the locations visited in November 2015 (land border with Turkey and Samos Island). The information gathered during this evaluation visit will be available within days after the visit.
  • 12 May 2016: at the latest by this date, Greece has to report on the implementation of the Council recommendations.

 The Commission will, on the basis of all the information at its disposal, assess without delay whether Greece meets its obligations under the Schengen Borders Code and to what extent the serious deficiencies in external border management in Greece have been remedied.

  • Immediate support for Greece

 The difficulties that Greece faces in the protection of the external border have an impact on the European Union as a whole. It is therefore necessary that other Member States show solidarity and collectively take responsibility for addressing the situation. EU Agencies and the Commission should also assist Greece. More precisely, Member States, EU Agencies and the Commission should support Greece in implementing the Recommendations made to Greece by the Council and the Commission[12] with regard to the following steps:

  • Commission experts on the ground in Greece should continue to cooperate closely with the responsible Greek authorities and to coordinate the action of the other actors involved (Frontex, the European Asylum Support Office, Europol, national authorities of other Member States, international organisations). Among the actions, there should be 100% identification and registration of all entries, including systematic security checks against databases[13].
  • When presenting its action plan (no later than 12 March), Greece should in parallel present a clear needs assessment. This will allow other Member States, EU Agencies and the Commission to provide timely support to Greece according to the needs identified.
  • Frontex should immediately assess Greece’s needs assessment to prepare the further deployment of European Border Guard teams. If needed, Frontex should launch additional calls for contributions by 22 March at the latest.
  • Other Member States should then assume their responsibility and respond to these calls within 10 days at the latest, by providing human resources and technical equipment.
  1. Applying the rules and stopping the wave-through approach

 Stopping the wave-through approach and restoring Dublin transfers to Greece

A wave-through approach is neither politically nor legally acceptable. Politically, the conclusions adopted by the European Council at its meeting on 18 and 19 February call for “an end to the wave-through approach”. Instead of unilateral decisions, the agreed approach for better cooperation and coordination between the countries along the Western Balkans route must be implemented.

Legally, in accordance with Article 6 of the Asylum Procedures Directive[14], if a third-country national requests asylum in a Member State, including when the application is made at the border, the Member State must grant that person access to the asylum procedure. The question of whether that Member State will remain responsible for the handling of the particular application will then be decided in accordance with the relevant provisions of EU law, including in particular the Dublin Regulation.

In that regard, the Commission’s Communication of 10 February underlined that if the Common European Asylum System is to work properly, there must be a real opportunity to return asylum-seekers to the country of first entry into the EU (“Dublin transfers”), as foreseen by the commonly agreed EU rules. Therefore, the Commission also adopted on 10 February a Recommendation listing the concrete steps needed in order to bring Greece back into the Dublin system[15]. Reporting by Greece on its progress in implementing the recommended actions, as well as other inputs such as reports from the Committee of Ministers of the Council of Europe on the execution of judgments and from the UNCHR, will clarify the assessment whether the conditions are such as to allow for Member States to resume individual transfers to Greece under the Dublin Regulation, bearing in mind that the volume of transfers and the categories of persons to be transferred would need to correspond to the specific progress being made.  For its part, the Commission will carry out its assessment of the matter ahead of the June European Council.

At the same time, Member States should refuse entry at the external border to third-country nationals who do not satisfy the entry conditions provided in Article 5 of the Schengen Borders Code, including third-country nationals who have not made an asylum application despite having had the opportunity to do so. For Member States that have temporarily reintroduced controls at their internal borders, these Member States should also refuse entry at that internal border to third-country nationals who do not satisfy the entry conditions. This is irrespective of the intention of the third country national to apply for asylum in another Member State.

The wave-through approach is incompatible with Schengen and Dublin rules and encourages secondary movements and should be stopped. It also undermines the functioning of the relocation scheme, and it is thus one of the reasons for the poor implementation of the relocation decisions up to now. Therefore, stopping the wave-through approach in a coordinated way is a requirement for the functioning of the Schengen and Dublin systems, as well as the relocation scheme.

  • Helping Greece to manage migratory pressure

 In its Communication of 10 February, the Commission identified a trend along the Western Balkan route towards a gradual tightening of border controls that could ultimately result in their closure. This trend has accelerated and has led to the intermittent closure of the border between the former Yugoslav Republic of Macedonia and Greece, in part in reaction to restrictions or closures applied in other countries along the route.

As the flow of migrants into Greece has not been reduced, an increasing number of migrants are stranded in Greece. Steps should be taken as a matter of urgency to address the growing humanitarian crisis in Greece and to relieve the migratory pressure it faces:

  • The implementation of the EU-Turkey Joint Action Plan and of the voluntary humanitarian admission scheme with Turkey[16] should lead to rapid decrease in the number of arrivals in Greece; with regard to the latter, the more Member States that take part in this scheme, the better the prospects for countering illegal migration in the Aegean Sea.
  • Returns of persons with no right to stay and in no need of international protection to countries of origin and transit, including Turkey, should also reduce the number of irregular migrants present in Greece. Greece should accelerate readmissions, in particular with Turkey, on the basis of applicable existing readmission agreements and with the support of other Member States.
  • The agreed relocation schemes are essential tools to lessen the strain on the Member States under greatest pressure and to restore order to the management of migration. In the case of Greece, it has also become a tool of humanitarian assistance. Member States must step up the rate of relocation speeding up processing in line with the need to carry out proper security checks[17]. The Commission stands ready to provide administrative and logistical assistance. In line with the schemes, Member States should also take all steps to inhibit secondary movements by requiring the immediate return to the Member State of relocation and by taking the necessary preventive measures in the field of access to social benefits and legal remedies, in accordance with Union law[18].
  • Humanitarian assistance to Greece should be stepped up, and facilitated through the rapid adoption and implementation of the Commission’s proposal on the provision of emergency support within the Union.

In addition, the build-up of migratory pressure in Greece may lead to the increasing use of alternative routes through the wider Balkans region. The EU should make use of all instruments at its disposal (Member State information, EEAS, Commission, Frontex, Copernicus satellite) to monitor the migratory flows and to anticipate any changes of the route. It should also seek to intensify coordination with possible transit countries such as Albania, Montenegro and Bosnia-Herzegovina.

  1. Internal border controls: from patchwork to a coherent approach

The current situation: unilateral reintroduction of internal border controls

Since September 2015, overall eight countries of the Schengen area have reintroduced border controls at their internal borders in view of a serious threat to internal security and public policy related to secondary movements of irregular migrants. The countries concerned are Belgium, Denmark, Germany, Hungary, Austria, Slovenia, Sweden and Norway. The unilateral decisions notified by Member States refer to the influx of high numbers of undocumented or inadequately documented persons, including minors, who were not registered upon their first entry into the EU, and the fact that these massive movements stretch the reception capacities of the respective national authorities and pose a serious threat to public policy or internal security.

While the controls at the internal borders of Slovenia and Hungary have been lifted in the meantime[19], the other countries have prolonged the controls on several occasions, in line with the Schengen Borders Code.

In all eight cases the countries have based the decision on the unilateral reintroduction of internal border controls on the provision for cases requiring immediate action (Article 25 Schengen Borders Code), which allows for reintroduced controls at internal borders for a period of up to 2 months. As the situation has not improved significantly, the controls have been subsequently prolonged based on Articles 23 and 24 Schengen Borders Code, which allows for reintroduced controls at internal borders for a period of up to 6 months. For the detailed information of the dates of reintroduction of internal border controls and their prolongations, see the overview in Annex I.

France reintroduced internal border controls in November 2015 for reasons not related to irregular migration. The controls were introduced first in the context of the COP21 Conference and then in consequence of the emergency state following the Paris terrorist attacks of 13 November 2015. The internal border controls in France are currently still on-going. Such controls also need to comply with the provisions of the Schengen Borders Code on the introduction of temporary border controls. This Communication does not address internal border controls that were introduced for reasons unrelated to irregular migration.[20] It goes without saying that the intention to return to normality would not preclude the possibility to put in place justified temporary security controls, in line with the Schengen Borders Code.[21]

The reintroduction of controls at internal borders is an exceptional measure of temporary character. A combined implementation of Articles 23, 24 and 25 of the Schengen Borders Code allows for maintaining border control for a total period of up to eight months[22].

  • Towards a coherent Union approach

The Schengen Borders Code also provides for a coordinated approach of temporary internal border controls (Article 26).

This provision applies in exceptional circumstances where the overall functioning of the Schengen area is put at risk as a result of persistent serious deficiencies relating to the management of the external border. The provision also requires that those circumstances constitute a serious threat to public policy or internal security within the Schengen area or parts thereof. In such exceptional circumstances, the Commission can submit a proposal to the Council for a Recommendation that one or more Member States reintroduce border controls at all or specific parts of their internal borders.

At this moment in time, there are serious deficiencies in external border control caused by a lack of border surveillance and insufficient registration and identification of irregular migrants. As a consequence of the secondary movements triggered by these deficiencies, Member States have reintroduced internal border controls. These serious deficiencies therefore jeopardise the Schengen area as a whole, and are evidence of a threat to public policy or internal security in that area.

If the migratory pressures and the serious deficiencies in external border control were to persist beyond 12 May, the Commission therefore would need to present a proposal under Article 26(2) of the Schengen Borders Code to the Council recommending a coherent Union approach to internal border controls until the structural deficiencies in external border control are mitigated or remedied. The Commission will be prepared for this eventuality and would act without delay.

Any proposal by the Commission under Article 26 Schengen Borders Code would only propose border controls at those internal border sections where controls would be necessary and proportionate to respond to the serious threat to public policy and internal security identified. The recommended border controls would also be temporary and for the shortest possible period in view of the threat addressed. If the overall situation allows, the objective should be to lift all internal border controls within the Schengen area within six months from their introduction, namely by mid-November 2016.

The application of Article 26 Schengen Borders Code is a safeguard for the overall functioning of the Schengen area. It is not a sanction against any Member States, nor does it aim at excluding any Member State from the Schengen area.

  1. Conclusion

The Schengen system is currently severely challenged by its exposure to high migratory pressures, and hampered by serious deficiencies in external border control. These pressures and deficiencies have together put the functioning of the entire system at risk.

The challenges are multi-faceted. The Commission in its Communication of 10 February identified the different policies that need to be put in place to address the crisis in all its complexity. Based on those findings and responding to the call of the European Council to return to a situation in which all Member States fully apply the Schengen Borders Code, this Communication identifies a path back to normality based on the systematic application of the rules. Whilst the identified path cannot be viewed in isolation from other important factors, such as the successful implementation of the EU-Turkey Joint Action Plan, leading to a sustainable and material reduction in the flow of irregular migration, it is now time for Member States to pull together in the common interest to safeguard one of the Union’s crowning achievements.

To that end, the roadmap back to a fully functioning Schengen area involves the following steps:

  • 4 March 2016 (and monthly thereafter): Greece reports on its progress in implementing the actions identified in the Recommendation on resuming Dublin transfers.
  • 12 March 2016 at the latest: Greece provides its action plan to implement the recommendations made by the Council, together with a needs assessment.
  • 16 March 2016: Commission Communication on the reform of the Dublin Regulation based on the objective of solidarity and fair burden-sharing between Member States.
  • 16 March 2016: the Commission presents its First Report on Relocation and Resettlement.
  • 22 March 2016 at the latest: Frontex launches additional calls for contributions to further deploy European Border Guard teams to support Greece.
  • 1 April 2016 at the latest: Member States respond to the Frontex call by providing human resources and technical equipment.
  • 12 April 2016 at the latest: the Commission presents its assessment of the adequacy of the action plan prepared by Greece.
  • 16 April 2016: the Commission presents its Second Report on Relocation and Resettlement.
  • 11-17 April 2016: a Schengen evaluation by Commission and Member State experts of air, land and sea borders of Greece will take place.
  • 12 May 2016 at the latest: Greece reports on the implementation of the Council recommendations.
  • 12 May 2016: if the serious deficiencies in external border control were to persist, the Commission will present a proposal under Article 26(2) of the Schengen Borders Code.
  • 13 May 2016: if the serious deficiencies in external border control were to persist, the Council should adopt a recommendation under Article 26(2) of the Schengen Borders Code for a coherent Union approach to temporary internal border controls.
  • 16 May 2016: the Commission presents its Third Report on Relocation and Resettlement.
  • June 2016 at the latest: the co-legislators reach political agreement on the European Border and Coast Guard and adopt the legal act.
  • June 2016: Commission presents its assessment of the possibility of resuming Dublin transfers to Greece.
  • August 2016 at the latest: the European Border and Coast Guard is operational.
  • September 2016 at the latest: the European Border and Coast Guard has delivered the first vulnerability tests so that any necessary preventive measures can be taken.
  • December 2016: if the overall situation allows, the target date for bringing to an end the exceptional safeguard measures taken.

 

NOTES

[1]    Paragraph 8 e): “The Council adopted a Recommendation on 12 February 2016. It is important to restore, in a concerted manner, the normal functioning of the Schengen area, with full support for Member States which face difficult circumstances. We need to get back to a situation where all Members of the Schengen area apply fully the Schengen Borders Code and refuse entry at external borders to third-country nationals who do not satisfy the entry conditions or who have note made an asylum application despite having had the opportunity to do so, while taking into account the specificities of maritime borders, including by implementing the EU-Turkey agenda”.
[2]    Article 67(2) of the Treaty on the Functioning of the European Union.
[3]    Commission Recommendation on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration (COM(2016) 85 of 10 February 2016).
[4]    Commission Recommendation addressed to the Hellenic Republic on the urgent measures to be taken by Greece in view of the resumption of transfers under Regulation (EU) No. 604/2013 (C(2016) 871 of 10 February 2016).
[5]    According to France Stratégie, trade between countries in the Schengen zone could be reduced by at least 10% through the permanent reintroduction of internal border controls. Another study (Bertelsmann Stiftung Study on Departure from the Schengen Agreement. Macroeconomic impacts on Germany and the countries of the European Union, February 2016) has shown that, in the case of a reintroduction of border controls, over a period of 10 years, the economic performance of the EU as a whole would be between €500 billion and €1.4 trillion lower than without such controls.
[6]    Estimated for road freight transport, cross border passenger mobility, tourism and corresponding administrative costs at the border.
[7]    The share of cross-border commuters is particularly high in Slovakia (5.7%), Estonia (3.5%), Hungary (2.4%) and Belgium (2.3%).
[8]    See Report from the Commission to the European Parliament and the Council: Progress report on the implementation of the hotspots in Greece (COM(2016)141; 4 March 2016).
[9]    Council Implementing Decision setting out a Recommendation on addressing the serious deficiencies identified in the 2015 evaluation of the application of the Schengen acquis in the field of management of the external borders by Greece (12 February 2016).
[10]   Commission Implementing Decision setting out a recommendation on specific measures to be taken by the Hellenic Republic following the evaluation report of 2 February 2016 (C(2016) 1219 of 24 February 2016).
[11]   Commission Implementing Decision establishing the first section of the annual evaluation programme for 2016 in accordance with Article 6 of the Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis (C(2015) 8537 of 9 December 2015). It is planned that the evaluation will consist of on-sites visits to Athens, Thessaloniki and Heraklion airports (air borders), Piraeus, Mytilini Port, Samos Port, Kos Port and Symi Port (sea borders), Border Crossing Points Kipi, Pythio, Tychero, Kastanies, Fylakio, Didymoteicho, Evzonoi and Krystallopigi (land borders).
[12]   The table in Annex II provides an overview of those recommendations for which the Commission and EU Agencies should contribute to ensure their full and timely implementation.
[13]   In line with the conclusions of the European Council of 18 and 19 February 2016, paragraph 8 f).
[14]   Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection.
[15]   Commission Recommendation addressed to the Hellenic Republic on the urgent measures to be taken by Greece in view of the resumption of transfers under Regulation (EU) No. 604/2013 (C(2016) 871 of 10 February 2016).
[16]   Commission Recommendation for a voluntary humanitarian admission scheme with Turkey, (C(2015) 9490 of 15 December 2015).
[17]   In line with the conclusions of the European Council of 18 and 19 February 2016, paragraph 8 h).
[18]   See in this regard, for instance, the judgment of the Court of Justice of the European Union in Joined Cases C-443/14 and C-444/14 Alo and Osso of 1 March 2016.
[19]   Slovenia and Hungary did not prolong controls after 30 and 10 days respectively, in response to the decline of the identified threats.
[20]   Malta reintroduced internal border controls on 9 November in the context of the Commonwealth Heads of Government Meeting and the Valletta Conference on Migration, and subsequently prolonged these controls for reasons of a global terrorist threat and with the aim to dismantle a smuggling ring. Malta lifted the internal border controls on 31 December 2015.
[21]   For example, for the purposes of dealing effectively with the security implications of major sporting events, political demonstrations or high-profile political meetings.
[22]   Accordingly, if continued, the internal border controls that countries reintroduced unilaterally under the Schengen Borders Code would have to expire at the latest by 13 May for Germany, 15 May for Austria, 9 July for Sweden and 15 July for Norway.

(*) See also:

Progress Report on the implementation of the hotspot approach in Greece
EU-Turkey Joint Action Plan – Third implementation report
Press release: Commission Visa Progress Report: Turkey makes progress towards visa liberalisation
FACTSHEET: The Schengen Rules Explained
FACTSHEET: EU-Turkey Joint Action Plan – Implementation report
FACTSHEET: Greece: Progress Report
FACTSHEET: Relocation and Resettlement

Violence against women: what will be the impact of the EU signing the Istanbul Convention?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

The scourge of violence against women is a serious human rights abuse and the worst form of sex discrimination. Several years ago, the Council of Europe (a body different from the EU) drew up the Istanbul Convention on this issue. It came into force in 2014, and currently applies to 20 countries, including 12 EU Member States (for ratification details, see here). Today, the EU Commission proposed that the EUsign and then conclude the Convention. What practical impact will that have on violence against women?

If the EU does sign and conclude (ie ratify) the Treaty, it will be the second human rights treaty binding the Union. The first is the UN Convention on the Rights of Persons with Disabilities. While most attention has been focussed on the EU’s attempt to accede to the European Convention on Human Rights (ECHR), which was essentially thwarted by the EU’s Court of Justice (CJEU) in 2014 (as discussedhere), the EU’s capacity to sign up to other human rights treaties is also relevant. While the EU cannot sign up to older international human rights treaties, like the UN Covenants, because they are only open to States, newer treaties (like the Istanbul Convention) expressly provide for the EU to sign up to them – if it wishes.

Impact of EU ratification

Like many international treaties, the Istanbul Convention is a ‘mixed agreement’, meaning that (if the EU ratifies it), the treaty will bind both the Union and its Member States. EU ratification should have six main effects (I’ve updated this list from the previous post on the reasons why the EU should ratify).

First of all, the EU’s ratification of the Convention could provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe. It should be noted that the treaty is open for signature to non-EU countries: the 19 Council of Europe countries not in the EU (8 of them have ratified it already), as well as the 4 non-European countries (plus the Holy See) which took part in drawing it up.

Do you live in a country which hasn’t ratified the Convention? You can sign up to a campaign for the UK to ratify the Convention here. Please let me know of any other campaigns in the UK or any other country, and I’ll list them with a link in an Annex to this post.

Secondly, ratification could, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that Member States, would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to urge any countries to do so?

Thirdly, ratification of the Convention should enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation. While there’s no general EU criminal law on violence against women (on the case for such a law, see here), there are other relevant EU rules. In particular, the Commission proposal refers to EU free movement law, substantive EU criminal law relevant to violence against women, EU immigration and asylum law, and the EU law on crime victims’ rights, applicable from last autumn (on the content of the crime victims’ law, see discussion here). It should also mean that the Convention will already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.The proposal is based on EU competence over victims’ rights, and would apply (if agreed) to every Member State covered by the crime victims’ law – meaning every EU country except Denmark.

In practical terms, that should mean that (for instance), EU law must be interpreted to mean victims receive a residence permit based on their personal situation, if the authorities consider it necessary (Article 59(3) of the Convention). That would apply to citizens of other Member States and their (EU or non-EU) family members, in all 27 Member States covered by the proposal. It would also apply to non-EU citizens in general, in the Member States which apply EU law on non-EU migration (ie the 25 Member States other than the UK, Ireland and Denmark, which have mostly opted out of such laws).  

For asylum cases, Article 60 of the Convention makes clear that gender-based violence is a ground of persecution. This is more explicit than the EU’s qualification Directive, which says that ‘gender-related aspects shall be given due consideration’, with further reference in its preamble to specific practices like genital mutilation. (Note that the UK and Ireland are covered by the first-phase qualification Directive, which has less precise wording on this issue; so the EU’s ratification of the Convention might have more influence in these countries).

As regards victims of domestic violence crimes (of any nationality and residence status), Chapter IV of the Convention, concerning support and protection, could in particular have an impact on the interpretation of the crime victims’ Directive in each Member State.

Fourth, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this could promote a uniform interpretation of those provisions within the EU.  

Next, the relevant provisions of the Convention will be more enforceable if the EU ratifies it. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.


Conclusion

For all the above reasons, the EU’s planned ratification can only be welcomed. It may not, by itself, prevent any act of violence from being committed, but it may accelerate a broader process of ratification (and corresponding national law reform) on this issue. And it may have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.

Save Schengen / Beyond Dublin: a Joint initiative of Italy and Germany

LETTER SENT BY ANGELINO ALFANO (IT) AND THOMAS DE MAIZIERE (DE) MINISTERS OF INTERIOR

March 2, 2016

To: Vice President Timmermans  / Commissioner Avramopoulos  EU Commission Bruxelles

Dear Mr. Vice President, dear Commissioner,

The refugee crisis has revealed the limitations of the European Policy on Migration and Asylum, and in particular of the Dublin Regulation as well as substantial shortcomings in the protection of the external borders of the Union, it has become evident that the existing refugee procedures and mechanisms in Europe are not viable. Our legislation has not been designed for managing so large a number of refugees.

What we need is an ambitious reform of the Dublin Regulation within a readjusted Common European Asylum System. We need to develop a protection system in which the burden of illegal migration and persons in need of protection are not just borne by the member states of first arrival and on the external borders and a few other receiving countries.

We need updated and effective procedures. This applies to the asylum procedure as such, to harmonized standards for accommodation and basic services, the procedures on the recognition of the status of refugees but also on legal redress and return issues. An acceler­ated appeal procedure should be introduced for all cases.

An essential part of our overall obligation and efforts to improve the protection of the external borders of the European Union must be an enhanced European mechanism for identification and registration of all migrants entering the EU. This requires a substantial strengthening of EASO. Through comprehensive legal, organizational, personnel and financial measures, EASO must be transformed into an EU asylum agency.

Repatriation activities are crucial for the effectiveness of the whole migration management system. We urge the Commission to arrange, in cooperation with Frontex, repatriation initiatives which should be complemented by reinstallation programs (i.e. in the field of vocational training and in the start up of new micro-entrepreneurial businesses).

In order to manage the difficult situation in Europe all member states and the European Commission must work together in a constructive manner. For this reason, we suggest that the attached non-paper be taken into account in the context of the upcoming revision of the Common European Asylum System, which we are awaiting with great interest.

Yours sincerely. (Signatures)

ANNEX      

Save Schengen/Beyond Dublin)

Introduction

The Dublin Regulation on Asylum belongs to a past era when the pressure of immigration was lower than today. The context and challenges were also deeply different.

Today, the numbers have dramatically changed and the existing national systems fail to cope with the growing influx of arrivals in Europe. The burden is unevenly distributed since only a few member states receive the vast majority of applications.

We therefore highly welcome the intention of the European Commission to soon present a proposal for the reform of the Dublin Regulation. The Dublin Regulation, which is an integral part of the Common European Asylum System [CEAS), can only be reformed within a further development of the whole CEAS. We firmly believe that the current migration crisis demands a much higher convergence of the asylum and reception systems of the MS.

Time is short and we have to act soon if we want to save the free movement of persons and prevent a disintegration of Schengen, one of the founding pillars of the European Union.

A concerted action is needed along a three-pronged strategy: short-term coordinated ad-hoc measures to immediately lower the arrival flows; strengthening the joint EU control of external land and maritime borders; agreeing on a revision of the Common European Asylum System based on the core principles of solidarity and responsibility.

Indicative Guidelines

Border Protection

Strengthening the protection of the EU-External borders is a precondition to safeguard EU-internal free circulation and the stability of the European Union. The introduction of the EU Border and Coast Guard Agency is a top priority goal that must be pursued by taking into account national specificities. Speeding up this process is crucial. In order to achieve an immediate reduction of the influx, ad-hoc measures should be adopted in a coordinated manner and for limited time. In parallel, targeted and tailor-made assistance to non-member states on the migration routes should be provided. With the entry into force of the new EBCG-Regulation operational cooperation with third countries has to be initiated.

EU-Registration-Mechanism

A comprehensive EU registration mechanism including security checks (SIS, Eurodac) of all migrants and asylum seekers crossing EU-external borders is the cornerstone of all EU migratory and asylum policies. Member States have to ensure the compliance with this necessary obligation. Frontex has to play a major role in this development.

Burden sharing on Asylum

Our challenge is to design and implement a system of distribution of asylum seekers which goes beyond the principle of the state of the first arrival. It should be a system in which the burden of illegal Migration and persons in need of protection are not just borne by the member states of first arrival and on the external borders and a few other receiving countries. We need an EU fair burden sharing procedure based on objective criteria (e.g.: population, per capita income, rate of unemployment number of refugees received in the last five years etc.). Procedures should be speeded up and streamlined. The current system of national hotspots must be properly integrated within a wider EU arrival ad registration mechanism in order to curtail asylum-shopping.

Harmonized conditions

Harmonized conditions of reception, evaluation procedures and applicants’ rights will greatly help to establish a truly European Asylum System, reduce the pull-factor and curtail asylum shopping. EASO should be strengthened with adequate human and financial resources and wider legal competences so as to develop into a real an EU-Asylum agency. Additional effective Measures to counter secondary movement are required.

Accelerated procedures

Both the Asylum Procedures Directive and the Reception Conditions Directive (2013/33) contain key provisions which must be revised, along with the Dublin Regulation and the Eurodac Regulation. We need effective and harmonized procedures for admitting refugees, for granting them protection but also for returning those who are not in need of international protection. An accelerated legal procedure should be established in all cases, in particular for remedies against EU decisions for jurisdiction, distribution and transfer.

Returns

A well-functioning, robust and coordinated European Repatriation Mechanism is needed to return illegal economic migrants. Experience shows that single Member States find it hard to successfully implement repatriations in adequate numbers. Repatriation activities are crucial for the effectiveness of the whole migration management system. An effective EU-Repatriation Mechanism together with a stronger role of Frontex will disincentive perspective economic migrants. While EU-readmission agreements will certainly play a crucial role, joint cooperation among member states should be pursued to enhance the efficiency of the EU return policy also by taking advantage of existing well-functioning bilateral relations of MS. We urge the Commission to arrange, in cooperation with Frontex, repatriation initiatives which should be complemented by reinstallation programs (i.e. in the field of vocational training and in the start-up of new micro-entrepreneurial businesses).

Management of migration flows

Information sharing and analysis in order to obtain reliable prevision on migration flows should be improved and enhanced, taking into consideration the relevant role of the competent Agencies. EU and Member States should use policy instruments of the CSDP to strengthen capacities of third countries in managing and better controlling migration flows and coordinate a common communication-strategy towards potential migrants and Countries of origin and transit in order to inform and curtail illegal migrants.

Cooperation with third countries

To reduce migration flows, a much stronger EU External Action is needed. Cooperation with African countries must be intensified and properly focused. The fight against human trafficking and illegal migration should be at the core of all EU-contacts with third countries. Capacity Building and Training in Border and Migration Management should become an integral part of our Cooperation. During this process UNHCR and IOM will be import partners. We have to speed up the implementation of the Khartoum and the Rabat process and fully implement the EU Trust Fund for Africa as well as the North Africa Regional Protection programs. In the short term, Turkey will continue to play a major role in managing the refugees’ flows. A concrete follow-up of the Valletta Summit should also be ensured.

Resettlement: Pre-Screening in countries of origin and/or countries of transit and safe countries

Persons in need of protection could be already identified in countries of origin or transit countries, thus preventing refugees from taking risks of the journey as well as contributing to the common sound management of migration and asylum flows in the years to come. Establishment of an institutionalized EU resettlement scheme, based on annual quota to be distributed among all Member States, should be developed. Furthermore, an EU-list of safe countries must be agreed upon and communicated.

Hotspots and emergency relocation. State of play

PUBLISHED HERE BY THE EUROPEAN PARLIAMENT RESEARCH SERVICE. 

Author: Anita Orav

hOTSPOTS

SUMMARY

The year 2015 saw a record number of migrants arriving in the European Union: Frontex reports that 1.83 million irregular border crossings were detected at the EU’s external borders, 1.04 million of them in Greece and Italy. According to Eurostat, 1.29 million asylum applications were lodged in the EU in 2015. Based on the current Dublin system, applicants’ first country of entry is responsible for processing their asylum claims. This puts enormous pressure on frontline states.

The Commission’s communication on a European Agenda on Migration includes a proposal for a temporary emergency relocation mechanism to relieve the pressure on overburdened states. In parallel, the Commission has launched a ‘hotspot’ approach to provide assistance along specific sections of the border, characterised by ‘disproportionate mixed migratory flows’. The approach entails temporary intervention by EU agencies such as Frontex, the European Asylum Support Office (EASO) and Europol to help national authorities guide asylum-seekers towards asylum procedures and irregular migrants towards return procedures.

Eleven such hotspots had been identified as of February 2016: six in Italy and five in Greece. Currently only three are fully operational. Although work on the hotspot approach is not yet complete and the relocation process only began in October 2015, stakeholders have already pointed to several shortcomings in how they currently operate. Parliament has insisted that the hotspot approach should not undermine the fundamental rights of any persons, refugees or otherwise, arriving at Europe’s shores.

Glossary

Hotspot: Section of the EU’s external border or a region under extraordinary migratory pressure, which calls for increased and concerted support by EU agencies.

Relocation: Redistribution among Member States of persons who are already present in the EU and in clear need of international protection.

Asylum: International protection offered by a state on its territory to a third-country national threatened by persecution in his or her own country. Following a successful application, an asylum-seeker is recognised as a refugee in the meaning of the 1951 Geneva Convention.

Context  Continue reading “Hotspots and emergency relocation. State of play”

THE ODYSSEUS NETWORK : SEARCHING FOR SOLIDARITY ​IN EU ASYLUM AND BORDER POLICIES

ORIGINAL PUBLISHED HERE 
A Collection of Short Papers: Searching for Solidarity in EU Asylum and Border Policies

We are pleased to publish a collection of short papers written by conference speakers, based on a number of presentations given at the conference.

READ THE PUBLICATION
Table of contents :
  • Failure by Design? On the Constitution of EU Solidarity, ​​Gregor Noll​​
  • Intra-EU solidarity and the implementation of the EU asylum policy: a refugee or governance ‘crisis’? Lilian Tsourdi
  • Practical Cooperation and the First Years of the EASO, Madeline Garlick
  • Solidarity as a sovereignty-reducing penalty for failing to meet responsibility in the European Border and Coast Guard, Philippe De Bruycker
  • Control and Closure of Internal Borders in the Schengen Area, Nuno Piçarra
  • Hotspots: the case of Greece, Aikaterini Drakopoulou
Visit the Odysseus website in the coming days for material from the conference, including Powerpoint presentations, photos, podcasts and more…


​

From Dublin to Athens: A Plea for a Radical Rethinking of the Allocation of Jurisdiction in Asylum Procedures 

Click to access IIHL-A-plea-for-the-reform-of-the-Dublin-system-policy-brief-def.pdf

FULL STUDY PUBLISHED HERE
by Marcello Di Filippo (1)
ABSTRACT (Policy Brief – January 2016) (2)
The so called refugee crisis of 2015 had several effects, among which the definitive demonstration of the unsustainability of the Dublin system and the need of a radical change in the modalities of allocation of the competence for the exam of asylum claims in the EU. 
The same credibility of the EU is at stake, as well as the capacities of national governments to manage the relevant flows reaching the Schengen area. 
This Policy Brief provides sound arguments both for supporting the demand for a new legal framework, and for the determination of new criteria which combines fairness, realism, solidarity, cooperation. 
A quota approach would be combined with a “genuine link” approach, thus trying to find a proper balance between the States’ interests and the point of view (and related behaviors) of asylum seekers, and also between the objections of human rights defenders and the concerns of European public opinion. 
The need to turn the page with the Dublin age warmly suggests to choose, for the new proposed regulation, a nick name which evokes the features of the current historical (and dramatic) passage of European integration and our deep sense of belonging to a place where much part of our way of thinking and of being a society is rooted: Athens. 
Having regard to the lessons learnt from decades of regulation of the determination of jurisdiction in civil, commercial and criminal matters, a first step to take is the adoption of a new conception for the role of the asylum seeker, who should be allocated to the State with which he/she holds a substantial link: the configuration of the relevant connecting factors (family relations; economic or social ties) should pay due regard to the empirical dimension of the phenomenon and to the need to avoid unnecessary sufferance and waste of public funds and time. 
If the asylum seeker has genuine links with more States, a certain relevance to his/her free choice should be awarded. 
Lacking any connection with a given country, the State with the lowest performance in fulfilling its reference quota should be the competent one. In the same time, an already overburdened country should be afforded the possibility to refuse responsibility, provided that some basic family ties are safeguarded. In such cases, a less connected country should be responsible, or the one less engaged in hosting asylum seekers and refugees, or as extrema ratio the country of first entrance or where the application is lodged. Whether an asylum seeker is allocated to a country where he/she does not have any substantial link and his/her asylum claim receives a positive outcome, the possibility of accepting a genuine job offer in another Member State should be admitted. This way, a partial freedom of circulation for work purposes could be recognized, but its exercise would relieve the first Member State by protection duties. As an accompanying measure, a system of financial incentives/disincentives for Member States should be conceived. 
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 1 Associate Professor of International Law (University of Pisa; marcello.difilippo@unipi.it), Member of the International Institute of Humanitarian Law (http://www.iihl.org), Coordinator of the Observatory on European Migration Law (http://immigrazione.jus.unipi.it).
The author is grateful to G. Beruto, S. Baldini and to the whole IIHL staff for their precious support, and to A. Baldaccini, C. Hein, S. Marinai, and E. Papastavridis for their valuable comments on an earlier version of this paper.
2 Policy Brief elaborated with the support of the Italian Ministry for Foreign Affairs and the International Cooperation (contribution awarded under Article 2 Law No. 948/82).

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The EU, Turkey and the Refugee Crisis: What could possibly go wrong?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Friday, 5 February 2016)

by Steve Peers* and Emanuela Roman, **

The key non-EU country in the EU’s ongoing refugee crisis is Turkey: the host ofover 2 million Syrian refugees, and a transit country for many asylum-seekers. An increasing number of them have been making the journey from Turkey to the Greek islands, leading to a significant rise in the number of would-be asylum-seekers in the EU over the last year. Tragically, many have died making this crossing.

To address these issues, the EU and Turkey reached a deal in November with a number of different elements. The main aim was to improve the position of Syrian refugees in Turkey (reducing the ‘push’ factor which results in more people planning to leave), and to return to Turkey those who did not need international protection. But, according to the latest Frontex statistics, most of the people arriving from Turkey do need international protection: about 90% of those arriving in Greece in December were from Syria, Iraq and Afghanistan, countries with high recognition rates for asylum claims.

It follows that returning to Turkey only those who don’t need international protection would only make a small dent in the numbers coming to the EU. Many politicians, in reaction to a portion of public opinion, would like to reduce those numbers far more. So last week, a further plan emerged: to return to Turkey those who do need international protection, on the grounds that they already had such protection in Turkey – or if not, they should seek it there. This would entail designating Turkey as a ‘safe third country’. The plan would entail a nearly immediate return to Turkey of any would-be asylum-seekers who reached the Greek islands.

The following analysis looks first of all at the main elements of the overall EU/Turkey deal on the refugee crisis, then in more detail at the new plan to return asylum-seekers to Turkey.

The EU/Turkey deal

The EU/Turkey deal contains concessions on both sides. The EU side has agreed: the opening of another chapter in the EU/Turkey accession process, and preparatory work by the Commission on further chapters; a proposal to lift Schengen visa requirements for Turkey by October 2016, if Turkey meets the requirements of the EU’s ‘roadmap’ on visa liberalisation; and a ‘Refugee Facility for Turkey’, totalling of €3 billion for Turkey. Subsequently, the Commission adopted a Recommendation on an EU ‘humanitarian admission scheme’ of Syrian refugees from Turkey (discussed in detail by Laura Robbins-Wright here).

In return, the Turkish side agreed: to readmit non-Turkish nationals to its territory, from June 2016; to apply a previously-agreed plan on the status of Syrian refugees in Turkey; and to prevent non-EU citizens from leaving.

There are also agreements in both sides’ mutual interest: to hold regular summits (at least twice a year); and to ‘upgrade’ the EU/Turkey customs union, to include services and investment, with negotiations to start before the end of 2016.

Several elements of the deal should be clarified further. It’s sometimes claimed that the deal has ‘fast-tracked’ Turkish membership of the EU. This is clearly not the case. Turkey applied for EU membership in 1987, and negotiation talks opened 18 years later, in 2005. In the eleven years since, the EU and Turkey have agreed only one of the 35 ‘chapters’ of issues being discussed in the negotiation. Before last year’s deal, they had opened another 13 chapters; the deal raised that number to 14. There is no date to open talks on the remaining 20 chapters; the deal is expressly without prejudice to EU Member States’ position on the planned ‘preparatory work’. Overall, the deal means that the enlargement negotiations will now move at the pace of a turtle, instead of a snail.

The prospect of Turkish accession to the EU also faces a number of obstacles on the EU side: objections by many Member States (including possible referendums), and misgivings by the European Parliament (which must approve accession treaties). Nor would accession lead immediately to free movement of Turkish citizens to the EU. Recent accession treaties have provided for waiting periods of seven years before workers from the new Member States can move to the older Member States, and the UK, which has a veto over accession treaties, insists that future enlargements must provide for even longer waiting periods.

As for the visa waiver, it should be noted that it will apply to (short-term) visas to visit the Schengen states. Therefore it will not ever apply to the UK and Ireland; and does not yet apply to Romania, Bulgaria, Croatia or Cyprus. It’s the EU’s usual practice to offer visa facilitation (fast-track issue of visas, with reduced fees) and then a full visa waiver to neighbouring States which have agreed a readmission treaty. As the text of the EU/Turkey deal points out, that waiver is dependent in each case upon the third State fulfilling a list of conditions set out by the EU (for the Commission’s most recent report on Turkey meeting those conditions, see here).

It’s the readmission deal – the quid pro quo for the visa waiver – that is central to the issue of the refugee crisis. The EU/Turkey readmission treaty has applied since October 2014. It applies to Turkish citizens straight away, but Turkey (like many other states signing up to readmission treaties) negotiated a delay before it applies to nationals of other countries. That’s a three year delay, so it was due to expire in October 2017. However, in light of the perceived migration and refugee crisis, the EU was not willing to wait that long until it called upon Turkey to accept third-state citizens back onto its territory.

Finally, the ‘Refugee Facility for Turkey’ aims to reduce the ‘push’ factor which leads to departures from Turkey to the EU. According to the Decision establishing the fund – which Member States finally agreed to recently – the Fund will assist refugees and host communities. No further details are given.

Before we look at the substance of the law on returning people to Turkey, it’s useful to make some general observations on EU policy in this area. Some critics of EU asylum policy argue that it should be more like the Australian policy. In fact, in some ways the EU is moving towards such a policy, as we’ll see. But – leaving aside for a moment the desirability of the EU adopting an ‘Australian’ asylum policy – there are legal, political, geographical and practical limits to doing so.

In a nutshell, Australia intercepts vessels of asylum-seekers on the high seas (international waters) and arranges for the asylum-seekers to be detained and their applications processed in other countries, which Australia considers to be ‘safe’. Furthermore, Australia resettles confirmed refugees directly from third countries (about 13,000 a year), as its contribution to sharing the burdens of the countries which host those refugees (the large majority of refugees live in developing countries).

There’s no legal obligation upon the countries which Australia considers ‘safe’ to take the asylum-seekers and process them. The UN Convention on Refugees (the ‘Geneva Convention’) imposes no such obligation (on the international law framework for ‘safe third country’ rules, see discussion here). Even if it did, some of the countries concerned haven’t ratified that treaty. So Australia has to talk those countries into accepting the people concerned. They won’t accept unless Australia pays most of the costs.

How does this compare with the EU? First of all, the numbers are hugely different:18,000 people arrived illegally by sea in Australia in 2012-13, whereas over a million potential asylum-seekers arrived in the EU last year. We’re comparing apples and orchards here. There are simply more people wanting to apply for protection in closer vicinity to the EU, as compared to Australia, and the distance to travel is shorter. Furthermore, there are no ‘high seas’ between Greece and Turkey, so interception raises different legal issues. Once would-be asylum-seekers reach Greek waters, EU law says they can apply for asylum, and Greece is also bound by the European Convention on Human Rights (ECHR) as regards them.

That brings us to the next distinction. The Australian constitution has weak human rights protection, and that country’s High Court has recently ruled in favour of the offshore detention policy. In contrast, EU countries are governed by the case law of the European Court of Human Rights (ECtHR), which is open to individual complaints and can give binding rulings, often critical of national policies in this area. While Australia has signed up to the International Covenant on Civil and Political Rights (ICCPR), and allows individuals to make complaints to the United Nations Committee which interprets that Covenant, the Committee’s rulings aren’t binding. When the Committee rules against Australian policy on asylum-seekers – which it often does – Australian politicians in effect throw the ruling on the barbecue.

So given the large numbers concerned and the legal constraints, if the EU wants non-EU countries to take back non-citizens of those countries who have made their way to the EU, it needs to offer a lot to them to convince them to do so. At first sight, it may seem overly generous for the EU to offer money to Turkey, waive visa requirements and accelerate the accession process a little, in order to secure Turkey’s cooperation as regards refugees and migrants. But Turkey is under no obligation now to take back non-citizens or to restrain them from leaving. Even after it agrees to accept returns of non-citizens to its territory, it could end its obligations at any time by denouncing the readmission agreement – if it is willing to accept the re-imposition of visa requirements by the EU as a consequence. The financial assistance, if spent as intended, will also reduce the ‘push’ factor for migration of Syrian refugees towards the EU.

Returning people to Turkey

Turkish citizens

Turkey is already obliged to accept back its own citizens under the readmission agreement with the EU. Turkish citizens in the EU might have rights to stay under the EU’s immigration and asylum legislation, or under the EU/Turkey associationagreement. But they have no general right of free movement to the EU, and there is no prospect of it being extended to them before (or indeed well after) EU membership. So those Turkish citizens in the EU without such a right to stay, including failed asylum-seekers, must be returned.

It should be noted that the EU Commission has proposed to list Turkey as a ‘safe country of origin’ for asylum purposes, meaning that asylum claims by Turks would be fast-tracked (but not rejected automatically). This is a rather dubious suggestion (for the reasons set out here), and it is not yet known whether it will be accepted.

Non-Turkish citizens: Irregular migrants

Turkey is not obliged to accept back any non-Turkish citizens until it brings forward the relevant obligations in the EU/Turkey plan – as it has agreed to do so. If someone has never applied for asylum, and has no other ground to stay, EU Member States will then be able to return them to Turkey, if the Member States can prove that the person was previously in Turkey. It should be sufficient to show that the person concerned crossed from Turkey to a Greek island.

This is equally the case for failed asylum-seekers, if the person concerned has failed on the merits. In other words, if the non-Turkish citizen has not convinced the Member State’s authorities (or the courts on appeal) that he or she faced persecution or serious harm, that person could be sent back to Turkey once that country extends the scope of the readmission deal.

The more difficult question – which is the subject of the new plan – is whether asylum-seekers who have come via Turkey can be rejected and returned to Turkey on the grounds that their applications are inadmissible. Let’s be clear what that means: those applications would not be rejected on the basis that the person wasn’t a genuine refugee, but that he or she either (a) could have applied for protection in Turkey or (b) already had protection there. The former is the ‘safe third country’ concept; the latter is the ‘first country of asylum’ concept. There are detailed definitions of each concept in EU law, in the Asylum Procedures Directive. We will consider those definitions in turn.

Is Turkey a ‘safe third country’?

On Thursday 28 January 2016, Diederik Samsom, leader of the Dutch Labour Party, announced in an interview with the newspaper De Volkskrant (followed by an interview on the nightly TV programme Niewsuur) a Dutch proposal for a new plan to radically reduce the number of migrants and asylum-seekers entering the EU from Turkey. The proposal was immediately baptised ‘the Samsom Plan’.

The plan would have the support of Dutch PM Mark Rutte and would also receive support by a number of EU Member States, among which Germany, Austria and Sweden. The idea is to offer Turkey the resettlement of 150,000 to 250,000 refugees per year from Turkey to the EU countries that voluntarily agree with the plan. This resettlement would presumably be on the basis of the Commission Recommendation on humanitarian admission from Turkey, referred to above. In exchange for this, Turkey would have to accept the return of all migrants and asylum-seekers who cross the Greek-Turkish border irregularly. According to Mr Samson, these people would have to be very rapidly returned from Greece to Turkey by ferry-boat, and it would be Turkey’s responsibility to deal with their reception and asylum application.

This new plan is based on the assumption that Turkey can be considered a ‘safe third country’ – a non-EU country where an asylum-seeker can apply for asylum and be granted access to asylum procedures and reception conditions in line with international and EU law.

The Samsom Plan, however, does not seem to come from Mr Samsom’s mind. The European Stability Initiative (ESI), a think tank specialised in Southeast Europe, presented a very similar proposal in October 2015. The original plan, based on the fundamental idea of considering Turkey a safe third country, was called ‘Merkel Plan’, because initially Germany alone would have the main role in the resettlement scheme with Turkey. The original plan was then further developed (becoming‘Merkel Plan 2.0’) and a ‘coalition of the willing’ (including the Netherlands) was gathered around Germany. From October 2015 to January 2016 the ESI presented this proposal in different countries across Europe, but it was only following Mr Samsom’s interview, that the now renamed Samsom Plan burst into the public debate.

What is the legal definition of a ‘safe third country’? Article 38(1) of the Asylum Procedures Directive sets out a series of legal requirements that need to be met in order for a third country to be considered ‘safe’ for asylum-seekers:

  1. a) life and liberty shall not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
  2. b) there shall be no risk of serious harm (consisting of: death penalty; torture or unhuman or degrading treatment; or a serious threat to the applicant’s life due to indiscriminate violence in situations of conflict, as defined by Article 15 of theQualification Directive, ie the concept of ‘subsidiary protection’);
  3. c) the principle of non-refoulement (non-return to an unsafe country) shall be respected; and
  4. d) the possibility shall exist for the applicant to claim refugee status and to receive protection in accordance with the  Geneva Convention.

Article 38(2) establishes also several procedural guarantees. The safety of a third country must be always assessed on a case-by-case basis in order to check whether the notion is applicable to the particular circumstances of the individual applicant concerned. Moreover, the applicant must be guaranteed the right to challenge the application of the safe third country concept to his or her case, based on the fact that that country may not be safe in his or her particular circumstances. The question is whether an extremely rapid procedure as the one envisaged by Mr Samsom, would allow for a case-by-case examination of the individual circumstances of each asylum-seeker arriving in Greece from Turkey.

A further, more practical, question concerns who would be responsible for these procedures. Considering the difficulties faced by the Greek authorities in managing the current migrant flow and the established deficiencies of the Greek asylum system, it is hard to believe that the Greek authorities (despite the assistance provided by Frontex and the European Asylum Support Office, EASO) would be able to implement a systematic readmission plan as far-reaching as the one foreseen by Mr Samsom. As mentioned above, such plan must indeed be based on the individual consideration of each asylum application, otherwise it could amount to  a violation of the prohibition of collective expulsions entailed in Article 4 Protocol 4 of the ECHR. Such practice has been condemned by the European Court of Human Rights (ECtHR) in the famous Hirsi case, where the Grand Chamber found Italian authorities responsible for violating the ECHR, because they returned a group of Eritrean and Somali migrants intercepted on the high seas back to Libya without granting them the possibility to apply for asylum. The same rule obviously applies to asylum-seekers who enter the territorial waters or land on the territory of a Member State.

In addition, according to Article 46 of the Procedures Directive, asylum-seekers have the right to refer to a national court the decision to consider their application inadmissible pursuant to Article 33(2). They can stay on the territory during their initial application, and apply to a court to stay during this appeal. The Grand Chamber of the ECtHR unanimously confirmed in Hirsi (and reiterated in following case law – see for instance, Sharifi and others v Italy and Greece and Khlaifia and others v Italy) that return is only possible after the asylum-seeker has been able to claim asylum before a national authority, and to stay on the territory at least until the first instance decision on the application was made. However, it is even more doubtful that the accelerated procedure proposed by Samsom would allow for asylum-seekers to challenge the decision to return them to Turkey in front of a judicial authority and in the respect of all due procedural safeguards under the Directive and the ECHR.

However, besides the procedural issues, the crucial question here is more substantive: can Turkey be considered as a safe third country? Does Turkey comply with the requirements established by the Procedures Directive?

First, Turkey ratified the 1951 Geneva Convention and its 1967 Protocol, but maintains a geographical limitation for non-European asylum-seekers, thus recognising refugees originating only from Europe (i.e. from countries which are members of the Council of Europe). The geographical limitation provides the first barrier to accessing asylum in the country. Moreover, Syrians represent a particular case. They were at first received as ‘guests’ and then subject to a temporary protection regime, formalised by a Regulation on Temporary Protection only in October 2014 (for more details, see the updated AIDA Country Report on Turkey). The basic idea behind the temporary protection regime is to host Syrians until the conflict is over and then possibly let them return to their country of origin. As such, Syrians have a right to reside in the country but are denied the prospect of a long-term legal integration. They have access to limited rights compared to asylum-seekers in the ‘normal’ procedure, in particular as concerns access to education for children (on this point, see for instance, Human Rights Watch report) and access to employment. Although in January 2016, the Turkish government adopted adecision aimed at ensuring that Syrians can enter the labour market, the effects of this new regulation are yet to be seen in practice. Most importantly, Syrians in Turkey do not have access to refugee protection in its full sense, as enshrined in the Geneva Convention. For the reasons set out in more detail in the annex to this blog post, it is arguable that the ‘safe third country’ clause can only be interpreted as applying to countries which have ratified and fully apply the Geneva Convention.

Secondly, Turkey should respect the principle of non-refoulement, a prohibition on returning a person to a place where he or she faces a risk of persecution, torture, or inhuman or degrading treatment. However, several reports suggest that Turkey has engaged in refoulement and push-back practices throughout the years 1990s and 2000s. In particular, in November and December 2015, Human Rights Watch andAmnesty International denounced an increase in deportations, push-backs, arbitrary detentions and physical violence against asylum-seekers trying to cross the Turkish southern border coming from Syria or Iraq, or trying to enter Greece from Turkey, either by land or sea. This increase would coincide with the period leading up to and after the signing of the above-mentioned EU/Turkey deal.

Thirdly, in Turkey asylum-seekers and migrants in general, face a number of obstacles which may increase their risk of serious harm. In particular, Turkey has a record of treating asylum-seekers and refugees harshly in detention: episodes of torture or inhuman or degrading treatment have been reported by NGOs (Global Detention Project and Amnesty International among others) and condemned by the ECtHR in a series of judgments (see for instance, Abdolkhani and Karimnia v Turkey and the recent SA v Turkey, judgement of 15 December 2015). Furthermore, with reference to serious harm due to indiscriminate violence in a situation of conflict, the internal conflict between Turkey and the Kurdish rebels, which has escalated during the last year, may pose threats to the lives of asylum-seekers and refugees in the southeast of the country.

Therefore, it seems that Turkey does not fulfil many of the requirements for designation as a safe third country under the Procedures Directive. Even though the Samsom Plan does not mention this option, it seems now interesting to consider whether a similar policy could theoretically be implemented based on two different concepts entailed in the Procedures Directive, the concepts of ‘European safe third country’ and ‘first country of asylum’. The latter will be examined more in detail.

Is Turkey a ‘super-safe’ third country?

This wasn’t mentioned above, but the Asylum Procedures Directive also provides for a special category of ‘European safe third country’, which has been dubbed (sarcastically) the ‘super-safe’ third country concept. In this case, a Member State could have ‘no, or no full’ consideration of an asylum application – as foreseen by the Samsom Plan. The legal requirements for a country to be considered a ‘European safe third country’ are set out in Article 39(2) of the Directive:

  1. a) the ratification and full implementation of the Geneva Convention without any geographical limitation;
  2. b) the existence of an asylum procedure prescribed by law; and
  3. c) the ratification and full implementation of the ECHR.

Even though Turkey has in place an asylum procedure prescribed by law (Law on Foreigners and International Protection adopted in April 2013 is Turkey’s first-ever national legislation on asylum), is a party to the ECHR (even though one of the parties with the highest number of condemnations by the ECtHR for violations of this treaty) and has ratified the Geneva Convention, as mentioned above, it maintains a geographical limitation to the application of the Geneva Convention, excluding non-European asylum-seekers from the refugee status. For this reason Turkey could not even be considered a ‘European safe third country’.

Could Turkey be considered a ‘first country of asylum’?

Could then the notion of ‘first country of asylum’ apply to Turkey? Could asylum-seekers possibly be returned from Greece to Turkey based on the fact that Turkey is their first country of asylum?

Article 33(2)(b) of the Procedures Directive foresees the possibility for a Member State to deem an asylum application inadmissible if it considers a non-EU country to be a first country of asylum for a particular applicant. Article 35 establishes that a third country can be a first country of asylum in two cases:

  1. a) if the applicant has been recognised as a refugee in that country and can still avail himself or herself of that protection; or
  2. b) if the applicant otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement.

Article 35 further specifies that in applying this concept Member States may take into account the legal requirements provided for by Article 38(1) – i.e. those used to establish whether a country is a safe third country. It also states that asylum-seekers ‘shall be allowed’ to argue that the principle cannot apply to their particular circumstances. Furthermore, they also have the right to appeal pursuant to Article 46 of the Procedures Directive (and stay on the territory during the application and at least at the outset of the appeal), as discussed above.

For the reasons set out in the annex to this blog post, option (a) arguably refers only to obtaining status under the Geneva Convention. Therefore Turkey cannot be considered a first country of asylum for a non-European asylum seeker, due to its geographical limitation on that Convention. On the other hand, option (b) might apply. In Turkey, indeed, non-European asylum seekers can, at least theoretically, have access to an alternative form of protection: the so-called ‘conditional refugee status’ (for applicants who would qualify as refugees under the Geneva Convention but who come from a non-European country) or the EU-inspired subsidiary protection. Moreover, as mentioned above, asylum seekers originating from Syria have access to a different form of temporary protection.

These three alternative forms of protection differ in terms of the level of rights their holders benefit from, which in all cases (and in particular in the case of Syrians benefiting from temporary protection) is lesser than the one recognised to ‘European refugees’ (for details on the content of these three alternative forms of protection, see the AIDA Country Report on Turkey). The question is: could these forms of protection be considered as ‘sufficient protection’? How can a Member State establish when protection is ‘sufficient’?

Article 35 provides two reference points, one being strictly mandatory, the other one being optional. The first one is the respect of the non-refoulement principle. Turkey is formally bound to the principle of non-refoulement, being a party to the ECHR and having incorporated the principle into Article 4 of its Law on Foreigners and International Protection as well as in Article 6 of its Temporary Protection Regulation. However, as mentioned above, the country has a historical record ofrefoulement practices and there are allegations of a recent intensification of push-backs and deportations of Syrians and other asylum-seekers. Therefore, Turkey does not seem to be fully compliant with the principle of non-refoulement in practice. But, in light of the fact that each asylum application must be examined individually based on the specific circumstances of the case, Member States might argue that the risk of non-refoulement could be assessed on a case-by-case basis in order to establish if that particular applicant enjoys sufficient protection in Turkey.

The second reference point mentioned by Article 35 is Article 38(1). In deciding whether a third country can be considered a first country of asylum, Member States may apply the same criteria they use for determining whether that country could be a safe third country. As discussed above, Turkey does not seem to comply with most of the safe third country legal requirements and, on this basis, it might be argued that in general it should not be considered a first country of asylum. However, because this is a ‘may’ clause, Member States have no obligation to apply Article 38(1) requirements to Article 35 cases and can simply ignore the possible link between the two concepts.

Therefore, although the possible application of the concept of first country of asylum to Turkey seems in general rather controversial, Member States might apply it on an individual basis, based on option (b). However, if they decide to do so, Member States’ authorities would have to conduct a case-by-case assessment, taking into due consideration the particular circumstances of each individual applicant in order to determine whether he or she enjoys sufficient protection in Turkey and does not risk being refoulé(e). As discussed above, an individual examination of all asylum claims (including the applicant’s right to appeal against a negative decision) is incompatible with the extremely rapid procedure and systematic readmission mechanism envisaged by the Samsom Plan.

A change in EU law?

The above discussion is based on current EU legislation. It is, of course, possible in principle for the EU to amend that legislation via the usual process, or arguably via means of an ‘emergency’ measure on asylum pursuant to Article 78(3) TFEU. The previous use of Article 78(3), for a ‘relocation’ system, is being challenged byHungary and Slovakia. (On the latter challenge, see discussion here; and on the general legal issues concerning that provision, see discussion here.) There might be some specific procedural issues about the use of Article 78(3) to establish the Samsom Plan, but the underlying issue is substantive: could EU law be changed (by either means) to set up a ‘return ferries’ process?

The answer is clearly: No. All EU asylum measures are subject to the general rules in Article 78(1) TFEU: ‘compliance with the principle of non-refoulement’, and acting ‘in accordance with the Geneva Convention…and other relevant treaties’. Also, all EU measures are subject to the EU Charter of Fundamental Rights, which must be interpreted consistently with the ECHR (Article 52(3) of the Charter).

It must follow that at the very least, the ECHR case law minimum standards discussed above must apply. So no revised EU law can provide for return of people coming from Turkey without some proper individual consideration of their claim that Turkey would not be a safe country for them; and there must be a right to appeal and stay in the country at least until the first-instance decision is made on this issue. To the extent that the Samsom Plan does not respect this irreducible core of human rights protection, it would be illegal.

Conclusion

Although it is remarkable that Turkey adopted a new comprehensive EU-inspired asylum legislation and is a state party to major human rights conventions, such as the European Convention on Human Rights, the Refugee Convention and the Convention against Torture, the way it has so far implemented its international human rights obligations appears to be still faulty. In particular, the right to asylum in Turkey cannot be considered as ‘fully established’, especially because of the still largely dysfunctional asylum system and the existing inequalities in access to protection and content of protection, which at the present moment are affecting Syrian refugees in particular.

For these reasons, the Samsom Plan proposing the systematic return of all asylum seekers from Greece to Turkey in exchange for increased refugee resettlement in Europe, appears to be not only very difficult to implement (due to both legal and practical obstacles), but also based on the doubtful presumption that Turkey may be (soon) considered a safe third country for refugees and asylum-seekers.

Furthermore, it is unfortunate that the EU and Turkey did not agree to fully apply the Geneva Convention for Turkey, and that there are no mechanisms of accountability in place for the EU institutions to report either in general upon Turkey’s compliance with international human rights standards or in particular to explain exactly how the EU’s money is being spent.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: insidethegames.biz

**Emanuela Roman is a PhD candidate in Human Rights at the University of Palermo and junior researcher at the Forum of International and European Research on Immigration (FIERI). This article was written during the period she is spending as a visiting researcher at the Vrije Universiteit Amsterdam, Faculty of Law, Migration Law Section. Emanuela would like to thank all her colleagues at the VU Migration Law Section, in particular Theodore Baird, Evelien Brouwer, Thomas Spijkerboer and Hemme Batijes for their precious comments and advise. The sole responsibility for the content of this article lies with the authors.

Annex I

Interpreting the ‘safe third country’ clause in the Procedures DirectiveAs noted above, Article 38 of the Asylum Procedures Directive says that in a safe third country it must be possible for the applicant ‘to request refugee status and … to receive protection in accordance with the Geneva Convention’. In my view, this can only refer to States which have ratified and fully apply the Convention; therefore it cannot apply to Turkey. I am grateful for a discussion with Daniel Thym on this issue – although I should note that he holds the opposite opinion.

First of all, this interpretation is supported by the legislative history of the text, which is set out in detail in Annex II. The original draft in 2002 made expressly clear that the clause could apply even if a State had not ratified the Convention. During negotiations that text was revised so that the final wording states that it must be possible to get status ‘in accordance with’ the Convention. Attempts by several Member States to make it clear that alternative types of protection besides full Convention refugee status could also trigger the clause were not successful.

Secondly, the ordinary meaning of the words ‘in accordance with’ in English is ‘in compliance with’, although the other language versions are equally valid. This is confirmed by the words ‘refugee status’: the full title of the Geneva Convention is the ‘Convention on the Status of Refugees’. How can one apply for ‘refugee status…in accordance with the Geneva Convention’ if the state concerned has not ratified, or does not fully apply, the ‘[Geneva] Convention on the Status of Refugees’? While the definitions clause refers to Member States as regards the definitions of ‘refugee’ and ‘refugee status’, this logically cannot be intended to apply to Article 38, since that Article only refers to applications made in non-EU states.

Thirdly, the a contrario rule supports this interpretation. Where the drafters of the Directive wanted to refer to the possibility of applying for an alternative form of protection, they did so expressly, as in Article 35(b) of the Directive. Admittedly Article 39, which refers more clearly to the geographical reservation of Turkey as a (failed) condition for the ‘super-safe’ countries rule to apply, points in the opposite direction. But to the extent that these two a contrario analyses simply cancel each other out, the interpretation in line with the legislative history and ordinary meaning should apply.

Similarly ‘recognised as a refugee’ under Article 35(a) of the Directive should be interpreted to refer to the Convention refugee status, in the absence of any indication that any alternative meaning is intended. However, Article 35(b) does clearly provide for an alternative option of designating a state as a ‘first country of asylum’ due to the existence of other forms of protection.

Annex II: Legislative history of the ‘safe third country’ clause

  • Commission proposal, 2002: explicitly provides in an Annex that a ‘safe third country’ can be a country which has not ratified the Geneva Convention
  • Council doc 6929/03 – a note indicates that the Council will start work looking at ‘safe’ country concepts. This plan is soon dropped; the Council looks first at Arts 1-22 instead.
  • Council doc 7214/03 – Annex unchanged at this point, no MS comments
  • Council docs 10064/03 and 10456/03 – ditto
  • Council doc 10722/03 – minor amendment to annex to state that Cartagena declaration countries must have a procedure compliant with the principles of the Geneva Convention
  • Council doc 11108/03 – no change
  • Council doc 11575/03 – annex shortened a little
  • Council doc 12281/03 – annex shortened significantly
  • Council doc 12734/03 – annex is simplified, but still provides for rules (same as in previous text) on when a ‘safe third country’ can be a country which has not ratified the Geneva Convention
  • Council doc 13369/03 – same text, but Germany now has a reservation linked to the ‘super-safe’ country clause, and Finland says the relevant clause could be deleted
  • Council doc 13901/03 – unchanged
  • Council doc 13902/03 – unchanged. The Presidency notes that delegations have inflexible positions on these provisions.
  • Council doc 14020/03 – ditto
  • Council doc 14182/03 – issue sent to the Council
  • Council doc 14330/03 – text unchanged
  • Council doc 14686/03 – text unchanged. But Spain suggests deleting the annex and having a short description of ‘safe third country’ in the main text, which is vague as to whether the state in question must have ratified the Convention
  • Council doc 14686/03 add 1 – Presidency proposes to delete the annex and have a short description of ‘safe third country’ in the main text, which only mentions the Convention as regards non-refoulement
  • Council doc 15153/03 – clause now in the main text, annex deleted. No change re Convention issue. DE still has reservation linked to ‘super-safe’ clause
  • Council docs 15153/03 rev 1 and 2 – amended to refer to ‘request recognition and be granted protection by that country or by the UNHCR as a refugee’. Spain wants to delete ‘as a refugee’. BE, NL and FI want to add express clause requiring ratification of the Convention and/or observation of the Convention. DE reservation is gone.
  • Council doc 15198/03 – unchanged
  • Council doc 15198/03 add 1 – UK wants to delete the whole sub-para
  • Council doc 6871/04 – redraft adds clause separate from main criteria for ‘safe third country’: ‘…Member States shall have regard to whether the third country has ratified the Geneva Convention…’ when assessing the application of those criteria. The clause in the main criteria now reads ‘request and be granted protection as a refugee in that country’. This deletes the reference to the UNHCR and makes it clear that it must be the country which grants refugee status.
  • Council doc 6954/04 – unchanged, but UK joined by EL/ES/NL/AT want to add the words ‘or other forms of international protection’ to the criteria
  • Council doc 7183/04 – unchanged, NL no longer supporting the UK position
  • Council doc 7184/04 – unchanged
  • Council doc 7184/1/04 – unchanged. UK and ES now want to change to ‘or another form of status which otherwise offers sufficient protection’ to the criteria. This is similar to final ‘first country of asylum’ clause.
  • Council doc 7484/04 – due to deadlock, Presidency proposes dropping clause on ‘request and be granted protection as a refugee’ to get a deal.
  • Council doc 7729/04 – ditto
  • Council doc 8166/04 – redraft retains ‘request and be granted protection as a refugee’ clause, drops requirement to take into account whether third State has ratified Convention
  • Council doc 8158/04 – same text and reservation as in 7184/1/04
  • Council doc 8413/04 – text amended to read:  ‘the possibility exists to requestrefugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’. UK and Spanish proposal rejected – link to Geneva Convention in fact made explicit instead
  • Council doc 8415/04 – as before, except the UK seeks to amend to read ‘in accordance with the principles of the Geneva Convention’. This is clearly rejected in the final version.

    • Posted by Steve Peers 

Protecting civilians in armed conflict International framework and challenges

EUROPEAN PARLIAMENT RESEARCH SERVICE BRIEFING (January 2016)

Author: Carmen-Cristina Cîrlig

SUMMARY

In today’s armed conflicts, whether international or intra-state, the vast majority of casualties are now civilians. Increasingly, civilians are victims of deliberate attacks and other serious violations by parties to a conflict – both states and non-state armed groups, despite the existence of strict legal rules intended to spare civilians from the effects of hostilities: the principles of international humanitarian law, of international human rights law and refugee law.
The lack of compliance with these norms, as well as the United Nations Security Council’s inability to take action to protect civilians in some specific cases, reflects the key concerns regarding the protection of civilians affected by armed conflicts worldwide. Moreover, specific protection concerns relate to the situation of women, children and displaced persons.
Besides this international legal framework, another related concept has garnered significant support internationally in the past decade: the Responsibility to Protect (R2P), meant to apply only in cases of atrocity crimes. However, R2P remains controversial, given the challenge of adequate implementation, particularly with regard to its military intervention aspects.
Notwithstanding the many challenges with regard to protecting civilians in armed conflict, the European Union is a strong promoter of international humanitarian principles and of R2P, and other protection-related issues are consistently among its priorities.

Armed Conflicts

 

Trends in armed conflicts and impact on civilians…

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