Category: 7.2 Irregular immigration

Three legal requirements for the EU-Turkey deal: An interview with JAMES HATHAWAY

NOTA BENE : RE-BLOGGED FROM VERFASSUNGSBLOG

The EU and Turkey seem to be heading towards an agreement on how to manage the Syrian refugee issue between them, including Turkey taking back refugees who entered the EU by boat from Greece and a flexible quota of refugees eligible for legal resettlement to the EU. Is this good or bad news?

As such, a system under which place of arrival is divorced from place of protection could be both legal and a good thing — if it enables those to be resettled to be chosen on the basis of eg. relative urgency of need, rather than just on the basis of who can pay for a smuggler. And to the extent that smugglers are no longer needed to reach solid protection, that is also a positive thing.

Some decry that this „one in, one out“ model treats people like cattle. How would such an agreement fit in with a system of individual asylum rights?

An individual is entitled to decide for himself where to seek recognition of his refugee status.  For this reason, undifferentiated efforts to deter groups known to include refugees — for example, NATO action “against smugglers”, to the extent it precludes refugees from reaching a state party — are in breach of the Refugee Convention. (And refugees are explicitly exempt from penalties for unlawful arrival). But the right to decide where to seek recognition of refugee status does not entail the right to choose where international refugee protection is to be enjoyed.  States enjoy substantial latitude to require a refugee to benefit from protection in a state not of the refugee’s choosing.

Is Turkey with its dismal human rights track record and questionable refugee protection standards a legally possible candidate for such an agreement in the first place?

There are three requirements that must be met for a state lawfully to remove a refugee to accept protection in a country not of his choosing: First, the destination state must be a state party to the Refugee Convention.  Second, it must ensure that refugees are in fact recognized.  And third, the destination state must in fact honor refugee rights (Arts. 2-34 of the Refugee Convention).

Let’s start with the Convention. Turkey is a member state, isn’t it?

On this front, Turkey — despite appearances to the contrary — does not yet comply.  It has entered a geographical limitation on its accession to the Refugee Convention, under which it assumes no obligations to non-European refugees.  Put simply, obligations cannot lawfully be shared with a state which has none — and in this case, Turkey has none towards relevant refugee populations. Turkey would have to withdraw its geographical limitation. And since it in fact receives millions of non-Europeans, this may be politically feasible — especially when 6 billion Euros are involved.

What about the refugee status? Would Turkey have to recognize those who are returned from Greece as refugees?

Turkey must either recognize the refugee status of those returned or have a fair and effective process in place. UNHCR involvement in the process or an EU support office overseeing the refugee status determination process might enable this requirement to be met.  Or Turkey might simply agree — as many less developed countries do — to treat those returned from the EU as refugees without need of formal status assessment.

So, unless Turkey factually meets the standards of the Refugee Convention, legally there can’t be any removal of refugees to Turkey?

The destination state must in fact honor refugee rights (Arts. 2-34 of the Refugee Convention).  As senior courts have made clear, this is a matter of enforceable facts on the ground — not promises.  To date Turkey has a mixed, but largely positive record in this regard.  A process of international oversight and effective remedies for breach would be a plausible answer to the concern.

The resettlement quota seems to be only for Syrians. What about the Afghans, Iraqi and Eritreans and others who might also be in need of asylum and, in fact, entitled to get it?

Art. 3 of the Refugee Convention prohibits “discrimination” between and among refugees on the basis of country of nationality.  To the extent that all refugees are returned by the EU to Turkey but only Syrians — not eg. the many Iraqis and Afghans who also have solid refugee claims — can benefit from EU protection via resettlement, there is a potential issue of discrimination.  But if shown to be “objective and reasonable,” the differentiation is not discrimination, and thus not unlawful — and this might be shown.

So, under international refugee law the path taken by Turkey and the EU is viable?

Not necessarily. The more critical challenge arises from the European Convention on Human Rights.  While under the Refugee Convention there is no protection from “expulsion” that does not involve “refoulement” to the county of origin until an individual is admitted to a refugee status determination procedure (and hence is “lawfully present”), the ECHR disallows “collective expulsion of aliens.”  Perhaps unwittingly (and perhaps unwisely) the jurisprudence under the ECHR has found that even if it might otherwise be thought objective and reasonable, a “collective” procedure to expel non-citizens that does not take include a means to take account of individuated circumstances  is in breach of the ECHR.  My own view is that the jurisprudence to date did not consider systemic responsibility-sharing systems of the kind that meet the three criteria mentioned above, and might well have evolved differently had the cases involved a clearly protection-oriented scheme.  But (perhaps regrettably) the language of the case law to date does indeed seem to require an individuated assessment before expulsion of aliens is lawful.  In this sense, the ECHR seems to take away the flexibility that the Refugee Convention intended that states should enjoy in ensuring that all refugees get protection.

Questions: Maximilian Steinbeis

SUGGESTED CITATION  Hathaway, James C.: Three legal requirements for the EU-Turkey deal: An interview with JAMES HATHAWAY, VerfBlog, 2016/3/09, http://verfassungsblog.de/three-legal-requirements-for-the-eu-turkey-deal-an-interview-with-james-hathaway/.

Europe to the Rescue? EU Law, the ECHR and Legal Aid

NOTA BENE : Chapter from Palmer, Cornford, Marique and Guinchard, Access to Justice: Beyond the Policies and Politics of Austerity (Hart, 2016)

by  Steve Peers

Introduction

Some potentially radical changes in public policy are prevented, or at least constrained somewhat, by the twin protections provided by European Union (EU) law and the European Convention on Human Rights (ECHR). Is this true of cut backs of legal aid in civil and administrative cases?

Legal aid in EU countries takes two forms: support for the costs of a lawyer, and exemption from court fees.1 Some states provide for only one of these types of support, and some provide both. There are also alternative means of assisting litigants, namely: legal expenses insurance, legal advice centres, pro bono work and self-help services.2 Across the EU, there is a wide discrepancy in the amount of legal aid expenditure per person, with most Member States spending less than €5 per person and expenditure being cut in many countries.3

The ECHR

Although Article 6(3)(c) ECHR guarantees legal aid as regards criminal matters, there is no express provision on legal aid in civil or administrative proceedings. However, starting with the 1979 judgment in Airey v Ireland,4 the European Court of Human Rights (ECtHR) stated that the general right to a fair trial in Article 6(1) ECHR could include an implied right to legal aid in civil cases too, if this is necessary to ensure effective access to justice. The facts of the case concerned judicial separation proceedings, and the Court considered that the alternative of presenting her case in person would not fully guarantee the applicant’s right to a fair trial, due to the complex procedural and substantive law, the need for expert advice as regards evidence and other witnesses, and the emotional impact of the case.

The Court rejected the argument that a right to legal aid in civil proceedings brought the ECHR unduly into the field of social rights, and that Article 6(3)(c) ECHR implied a contrario that there was no right to legal aid in civil matters.

The key point was that ‘despite the absence of a similar clause for civil litigation’, Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.

Subsequent case law made clear that there is no general right to legal aid in all civil proceedings. Rather, any limitation on the right of access to the courts (the implied right which legal aid facilitates) cannot undermine the very core of the right.

Limitations of the right must pursue a legitimate aim, and must also be proportionate in light of the legitimate aim which they seek to satisfy. For instance, in Tolstoy-Miloslavsky the applicant, a defendant in a libel case, challenged an order for security for costs of over £100,000 that he would have to pay within 14 days in order to bring an appeal.5

The ECtHR ruled that there was a ‘legitimate aim’ for the costs order (protecting the other party from shouldering his own costs if the applicant could not pay them in the event of an unsuccessful appeal). The merits test imposed upon the proceedings could also be ‘said to have been imposed in the interests of a fair administration of justice’. The security for costs requirement did not impair ‘the very essence’ of the right of access to court, because there had already been an extensive first-instance hearing; the sum was a reasonable estimate of the costs involved; the applicant could not have raised the money in a longer period of time; the national court took the merits into account when considering a possible waiver of an order for security of costs; the applicant was more interested in determining liability than costs (he had refused a proposed settlement); and there was a full judicial assessment of the costs issue. Therefore there was no ‘arbitrariness’ in issuing the order for security of costs.

In the case of Kreuz v Poland,6 the ECtHR reiterated that a requirement to provide security for costs was in principle a legitimate restriction on access to court. But in that case, the required security amounted to a year’s average salary. Although the applicant was a businessman, the dispute was ‘related only loosely, if at all, to a business activity as such’. Rather it was a claim for damages against a public authority. Also, the national courts only considered his hypothetical earning capacity, not the amount which he actually earned, did not supply any evidence to contradict his account of his earnings, and made assumptions which were not supported by any evidence. Moreover, national law allows for the exemption from court fees to be revoked if the applicant’s financial situation improves. On the whole, then, there was an insufficient balance between the state interest in collecting court fees and the applicant’s right to vindicate his claim in the courts, since the required fee was excessive and deterred him from going to court at all.

Another key judgment is Steel and Morris v United Kingdom.7 In a case involving libel defendants, the ECtHR began by reiterating the basic case law on when legal aid was necessary in civil cases pursuant to Article 6 ECHR. This must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively. Restrictions are possible if they ‘pursue a legitimate aim and are proportionate’. So conditions can be imposed on ‘the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings’.

The state is not obliged to grant legal aid ‘to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary’.

Applying these criteria, first of all, this case was different from previous judgments like Airey because ‘the proceedings … were not determinative of important family rights and relationships’, and usually there is a distinction between a defamation action aiming to protect an individual’s reputation from an application for judicial separation, ‘which regulates the legal relationship between two individuals and may have serious consequences for any children of the family’. But here the applicants did not bring the proceedings, but ‘acted as defendants to protect their right to freedom of expression, a right accorded considerable importance under the Convention’, and the damages awarded against them were huge in comparison with their modest incomes.

The case was also distinct from prior judgments ruling that the English law of defamation and civil procedure is not complex enough to require legal aid,8 since those rulings concerned a single allegation while Steel and Morris concerned the longest trial in English history, with thousands of pages of evidence, over 100 witnesses, judgments running to over 1000 pages and numerous legal and procedural issues.

Compared with prior cases, in which the defamation actions were brought by professionals, the applicants would have met the means test for legal aid and benefited from some pro bono legal assistance and latitude extended by the courts. But the ECtHR ruled that this was not a ‘substitute for competent and sustained representation by an experienced lawyer familiar with the case and with the law of libel’, and the ‘disparity’ between their legal assistance and the plaintiff’s (McDonald’s Restaurants) ‘was of such a degree that it could not have failed, in this exceptionally demanding case, to have given rise to unfairness’. Therefore there was a breach of Article 6.

As for the form of legal aid granted, states have discretion to provide different forms of legal aid for different types of litigation. For instance, it was acceptable for the UK to exclude defamation cases from legal aid support, since it had granted potential litigants of defamation cases the right to two hours of free pre-litigation legal advice, if they had insufficient means.9

As regards one type of plaintiff (profit-making companies), the ECtHR ruled that their exclusion from a national legal aid scheme was acceptable since the discrimination between them and non-profit-making organisations and natural persons had an objective and reasonable justification (the possibility to deduct the legal costs from the company’s tax bill).10

EU Law Continue reading “Europe to the Rescue? EU Law, the ECHR and Legal Aid”

Enhancing and diluting the legal status of subsidiary protection beneficiaries under Union law – the CJEU judgment in Alo and Osso

ORIGINAL ON EU LAW ANALYSIS (Wednesday, 9 March 2016)

by Louise Halleskov Storgaard, (*)

Is it in accordance with the Qualification Directive (QD) to restrict the freedom of movement within the host country of beneficiaries of subsidiary protection (a form of protection parallel to refugee status) in receipt of social security benefits? This question was addressed by the CJEU in its ruling of 1 March 2015 in the Alo and Osso case. The Court’s answer and its reasoning is equally interesting, groundbreaking and controversial as it, on the one hand, strengthens the impact of the Geneva Convention (the United Nations Convention on the Status of Refugees) on the QD standards and the substantive content of subsidiary protection while it, on the other hand, creates uncertainty about the applicable non-discrimination standard in such cases.

Facts

Mr Alo and Mr Osso are Syrian nationals who, independently of each other, in 2012 were granted subsidiary protection status in Germany. German law prescribes that, where beneficiaries of subsidiary protection receive social security benefits, their residence permit is issued subject to a condition requiring residence to be taken up in a particular place of the country. This condition does not apply to third-country nationals legally residing in Germany on other grounds than international protection (ie, subsidiary protection or refugee status). Since both Mr Alo and Mr Osso had been in receipt of social security benefits since they arrived in Germany, their residence permits required them to take up residence in, respectively, a specific town and specific parts of a region in Germany. They both disputed this requirement and on appeal the Bundesverwaltungsgericht (German Federal Administrative Court) decided to stay the proceedings in both cases and ask the CJEU to clarify the conformity of the place-of-residence condition with the QD.

The relevant provisions of that directive read:

Article 29

Social welfare

  1. Member States shall ensure that beneficiaries of inter­national protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State.
  1. By way of derogation from the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same level and under the same eligibility conditions as nationals.

Article 33

Freedom of movement within the Member State

Member States shall allow freedom of movement within their territory to beneficiaries of international protection, under the same conditions and restrictions as those provided for other third-country nationals legally resident in their territories.

Judgment

The CJEU started out by providing important new guidance on the interpretation of the QD. It reiterated the statements most recently made in El Kott concerning the necessity of ensuring consistency with the Geneva Convention and a full and inclusive application of that Convention. The CJEU then went one step further as it declared that the Geneva Convention is to be used as interpretative guidance also in cases involving subsidiary protection beneficiaries. To justify this approach the CJEU referred to statements made in the preamble about the European asylum system, as a whole, being based on the full and inclusive application of the Geneva Convention and about the intention of the EU legislature to establish a uniform status for all beneficiaries of international protection subject only to necessary and objectively justified derogations.

Against this interpretative backdrop the CJEU ruled that since Article 33 QD does not specifically allow for difference in treatment between refugees and subsidiary protection beneficiaries, and since Article 26 of the Geneva Convention on freedom of movement of refugees includes the right for refugees to choose their place of residence, the same must apply as regards Article 33 QD. Consequently, the place-of-residence condition constitutes a restriction with the freedom of movement guaranteed by Article 33 QD. Similarly, Article 29 QD was interpreted by the CJEU in light of Article 23 of the Geneva Convention leading to the conclusion that the place-of-residence condition also constitutes a restriction on the access to social welfare of beneficiaries of subsidiary protection when it is not also imposed on German nationals.

The CJEU continued to the question of whether these restrictions could be justified by the two aims put forward by the German authorities: 1) achieving an appropriate distribution of the burden of paying certain social benefits among the various institutions competent in that regard; and 2) preventing social segregation and its negative consequences for integration (integration policy considerations).

To that end the CJEU established a general test as it explained (para. 54):

”[n]ational rules could legitimately provide for a residence condition to be imposed on beneficiaries of subsidiary protection status, without such a condition being imposed on refugees, third-country nationals legally resident in the territory of the Member State concerned on grounds that are not humanitarian or political or based on international law and nationals of that Member State, if those groups are not in an objectively comparable situation as regards the objective pursued by those rules.

Applying this test to the first aim invoked by the German authorities, the CJEU acknowledged that the movement of recipients of social security benefits or the fact that such persons are not equally concentrated throughout a Member State entails the risk of an uneven distribution of the financial burden. However, the Court pointed out that this risk relates not only to subsidiary protection beneficiaries but also to refugees and other third-country nationals residing legally in receipt of social benefits. For that reason the place-of–residence condition is in breach of Articles 29 and 33 QD.

Concerning the second aim relating to integration policy, the CJEU first explained that Article 29 QD is not relevant to consider because beneficiaries of subsidiary protection status and German nationals are not in a comparable situation as far as the objective of facilitating the integration of third-country nationals is concerned. As regards Article 33 QD, the CJEU left it for the Bundesverwaltungsgericht to assess whether beneficiaries of subsidiary protection status are in a situation that is, so far as concerns the integration aim, objectively comparable with the situation of third-country nationals legally residing in Germany on grounds that are not humanitarian or political or based on international law.

The CJEU offered some guidance as it explained that theBundesverwaltungsgericht will have to determine whether the fact that the person receiving welfare benefits holds international protection, in this case subsidiary protection status, means that he or she will face greater difficulties relating to integration than third-country nationals holding another immigration status than international protection. That might particularly be the case if the latter group of persons are eligible for welfare benefits only after a certain period of continuous legal residence in the host Member State since it can (para. 63):

“be assumed from such a period of residence that the third-country nationals concerned are sufficiently integrated in that Member State and therefore would not be in a situation comparable with that of beneficiaries of international protection so far as the objective of facilitating the integration of third-country nationals is concerned.”

Comments

This is the CJEU’s first judgment on the revised “second-phase” QD. Four interrelated aspects of the case deserve particular attention:

First, the case cements the Geneva Convention’s function as a cornerstone of the Common European Asylum System (CEAS) measures by enhancing the strong link between that Convention and the QD. In that respect the Court’s extension of the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries is groundbreaking. One of the key features of the second-phase QD is precisely that it improves the substantive content of subsidiary protection, and by allowing for the Geneva Convention to function as the guiding standard to ensure equality of treatment between refugees and subsidiary protection beneficiaries when interpreting Chapter VII QD, the CJEU secures that Union law also in practice complements the ECHR and the Geneva Convention in this area. The CJEU’s reasoning on this point therefore illustrates the gradual EU law development towards an alignment of the two statuses of international protection which was fuelled by the Stockholm Programme and has been implemented not only in the QD, but also the second-phase Dublin and Eurodac Regulations and procedures and reception conditions Directives.

Second, unlike in the Bolbol and El Kott judgments concerning the first-phase QD, the CJEU did not justify the application of specific provisions of the Geneva Convention by the fact that the relevant text of the QD refers to these provisions. Instead, the CJEU referred to the preamble to the QD where it is stated that the directive responds to the Stockholm Programme’s call for a uniform international protection standard and that equality between the two statuses shall be granted as regards rights, benefits and conditions for eligibility “with the exception of derogations which are necessary and objectively justified”. To buttress the argument the CJEU referred also to Article 20 (2) QD, according to which Chapter VII QD (which concerns the content of status, ie what recognized refugees and people with subsidiary protection are entitled to) applies to both refugees and subsidiary protection beneficiaries unless otherwise indicated. As the Court’s reasoning on this point is not limited to cases involving Articles 29 and 33 QD, the Geneva Convention can be used as a yardstick for the interpretation of all provisions in Chapter VII QD. However, it remains to be seen whether the CJEU in future cases is willing to extend the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries beyond situations concerning the substantive content of this status – within or outside the QD. Since all second-phase CEAS directives contain elaborate references to the call for uniformity in the Stockholm Programme, there is some room for arguing that the Geneva Convention should also guide e.g. the interpretation of the Procedures Directive in cases involving procedural arrangements and status determination of persons eligible for subsidiary protection.

Third, it is worth noting the road not taken by the CJEU. In his opinion, AG Cruz Villalón argued that the circumstances of the case warrant that Article 33 QD must be interpreted through the lens of the non-discrimination provisions in Article 21 of the EU Charter of Fundamental Rights and Article 14 ECHR in conjunction with the fundamental right to freedom of movement set out in international human rights law, including Article 2 of Protocol 4 to the ECHR. Since the AG too found that the place-of-residence condition constitutes a restriction on the right guaranteed by Article 33 QD, he assessed whether that condition could be justified under the general rule on limitations on Charter rights in Article 52 (1) of the Charter in light of the two aims referred to by the German authorities. The AG found both aims to be legitimate but when assessing the proportionality of the restriction, he concluded that the economic burden-sharing objective was not appropriate to this aim. The AG left it for the referring national court to assess whether integration policy considerations could justify the restriction.

Fourth, the AG’s reasoning is interesting because it may offer insight as to how the CJEU came up with the above-quoted “comparable-test”. Arguably, this test is not easily comprehensible and depending on how it is applied by national courts and by the CJEU in future cases, it can dilute some of the above-identified impact of the Court’s findings concerning the application of the Geneva Convention to subsidiary protection beneficiaries. The essence of the Court’s reasoning is (seemingly) that even though equality of treatment is the main rule, and even though a derogation is not explicitly provided for, then subsidiary protection beneficiaries can be treated differently than refugees as regards the rights guaranteed under Chapter VII QD, “if those groups are not in an objectively comparable situation as regards the objective pursued by those rules”. The same applies as regards difference in treatment compared to other legally resident third-country nationals and nationals.

There is no information in the judgment about the origins of this test. Unlike the AG opinion, the judgment does not contain any reference to non-discrimination provisions or other fundamental rights standards, and there is no indication as to whether it is a reformulation of the “necessary and objectively justified”-requirement listed in the Stockholm Programme either.

Still, it is safe to say that the Court’s reasoning bears resemblance to the non-discrimination test under Article 21 Charter and Article 14 ECHR (i.e. that difference of treatment of persons in comparable situations on account of a prohibited discrimination ground must be objectively and reasonably justified). It is therefore important to note that the CJEU links the fulfilment of the comparable situation-requirement under the QD to the objective of the disputed national provision, which is a different and (from an applicant’s perspective) less favourable approach than that applied by the ECtHR in non-discrimination cases. In the Hode and Abdi case (relied on by the AG), the ECtHR thus ruled that refugees who married after leaving their country were in an analogous position with refugees who married before this point in time as well as with third-country national students and workers solely because the immigration status held by all groups was of a limited nature. The ECtHR disregarded the UK Government’s objection concerning the purpose of the various immigration statuses being fundamentally different. In fact, from a non-discrimination perspective, the CJEU’s reasoning in Alo and Ossois entirely confusing since the assessment of both aims put forward by the German authorities is better characterised as a proportionality assessment (similar to the one conducted by the AG) than an assessment of the “objective comparability” of subsidiary protection beneficiaries with other groups of legally residing third-country nationals as regards the aims pursued by the place-of-residence condition. This is illustrated by the fact that the CJEU’s arguments concerning the economic burden-sharing aim in reality concerns whether the place-of-residence condition is an appropriate means to reach that aim.

Although it is far from certain that the CJEU intended to or even found it relevant to align the test developed under Articles 29 and 33 QD with that of Article 14 ECHR, the vocabulary chosen by the Court makes it reasonable to draw parallels and compare with that provision. And by departing from the approach of the ECtHR in a very similar case and leaving it for the referring national court to apply the test in practice in light of relatively abstract guiding criteria, the CJEU creates undue legal certainty about the applicable non-discrimination standard in cases involving difference of treatment of international protection beneficiaries.

(*) Assistant Professor, Aarhus University

Shengen – Migration and Asylum Crisis : are the EU Heads of State and Governments outsourcing the EU’s policies /responsibilities ?

Aware of the lack of internal solidarity between the EU MS the Heads of State or Government of the European Union, in a panic move, are outsourcing the EU policies on borders, asylum and irregular migration to Turkey and NATO… Not surprisingly Turkey will also show to the EU that a 80 millions habitants country would be able to manage in full respect of fundamental rights (?) 3 millions of refugees while the richest region in the world with half billion habitants is still apparently unable to cope with 1 million of refugees and a relocation programme of 160.000…
Notwithstanding the rhetorical (and sometime bullying) posture of some of  Prime ministers in the European Council the EU is proving once again that is currently unable to overcome alone the challenges of a globalised world and should always ask for a third party help. In the same mood it is giving up our privacy to an US Privacy Shield and entrusting the financial “EU” solidarity to a Troika with the IMF… 
An interesting example of this cacophony is also the growing confusion of roles between the European Council itself (which is an European Union Institution which should abide with EU law) and the Heads of State or Government acting alone (without the participation of the Commission) but making statements on behalf of the European Union as it happened yesterday.
Moreover it is rather interesting to see that the final version of the Heads of State and Governments “Statement” still maintain a reference to the fact that the so called Balkan Route is now closed (as required by the Visegrad Countries and confirmed by the European Council President Tusk) even if, according to press sources, this concept was not shared by Germany and the Commission.

The Emperor is without clothes but it is more than likely that this week the main political groups in the EP will probably welcome such an outcome (which hides once again the divergent agendas inside the EU). But are this European Council, this Parliament and this EU still credible and democratically accountable to anyone?

EDC

Statement of the EU Heads of State or Government, 07/03/2016

  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. They welcomed their discussion with the Turkish Prime Minister on EU-Turkey relations and on the progress made in the implementation of the Joint Action Plan. Turkey confirmed its commitment in implementing the bilateral Greek-Turkish readmission agreement to accept the rapid return of all migrants not in need of international protection crossing from Turkey into Greece and to take back all irregular migrants apprehended on Turkish waters.The Heads of State or Government agreed that bold moves were needed to close down people smuggling routes, to break the business model of the smugglers, to protect our external borders and to end the migration crisis in Europe. We need to break the link between getting in a boat and getting settlement in Europe.That is why they underlined the importance of the NATO activity in the Aegean Sea that became operational today. They called on all members of NATO to support it actively. They warmly welcomed the additional proposals made today by Turkey to address the migration issue. They agreed to work on the basis of the principles they contain:
  • to return all new irregular migrants crossing from Turkey into the Greek islands with the costs covered by the EU;
  • to resettle, for every Syrian readmitted by Turkey from Greek islands, another Syrian from Turkey to the EU Member States, within the framework of the existing commitments; 
  • to accelerate the implementation of the visa liberalization roadmap with all Member States with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016;
  • to speed up the disbursement of the initially allocated 3 billion euros to ensure funding of a first set of projects before the end of March and decide on additional funding for the Refugee Facility for Syrians;
  • to prepare for the decision on the opening of new chapters in the accession negotiations as soon as possible, building on the October 2015 European Council conclusions;
  • to work with Turkey in any joint endeavour to improve humanitarian conditions inside Syria which would allow for the local population and refugees to live in areas which will be more safe.

The President of the European Council will take forward these proposals and work out the details with the Turkish side before the March European Council. This work will respect European and international law.

The EU Heads of State or Government also discussed with the Turkish Prime Minister the situation of the media in Turkey.

  1. Heads of State or Government further 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 have now come to an end.3. In order to make this sustainable, action is required along the following lines:
  2. a) stand by Greece, in this difficult moment and do our 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;b) 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;c) provide further assistance to Greece in managing the external borders, including those with the former Yugoslav Republic of Macedonia 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;

    d) 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;

    e) accelerate substantially 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;

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

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

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

    i) 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.

    This document does not establish any new commitments on Member States as far as relocation and resettlement is concerned.

    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.

 

Remarks by President Donald Tusk after the meeting of the EU heads of state or government with Turkey Go to the website

Good evening,
We have just finished a summit between Turkey and the European Union. We agreed that despite good implementation of the Joint Action Plan on migration, the flow of migrants passing from Turkey to Greece remains much too high and needs to be brought down significantly. I  am happy that we have a common understanding with Prime Minister Davutoğlu on strengthening our cooperation so as to achieve concrete results on the ground within days.
Today we assessed the progress made so far.
Last week’s return of migrants from Greece to Turkey was the first visible step of the bilateral agreement becoming more operational and effective. Prime Minister Davutoğlu confirmed Turkey’s commitment to accept the rapid return of all migrants coming from Turkey to Greece that are not in need of international protection.
The EU will support Greece in ensuring comprehensive, large scale and fast-track returns to Turkey.
We also welcomed the establishment of the NATO activity in the Aegean Sea and we look forward to its contribution to enhance intelligence and surveillance with a view to stemming migrant crossings.
This operation will not work without Turkey’s readiness to take back all irregular migrants who have been apprehended in Turkish waters.
Today we were assured that this will be possible. All the above mentioned decisions send a very clear message that the days of irregular migration to the European Union are over.
Furthermore, we welcomed new, bold proposals made today by Turkey to further address this crisis. We agreed to work on the basis of the following principles: 

  • the return of all new irregular migrants crossing from Turkey into the Greek islands;
  • the acceleration of the implementation of the visa liberalization roadmap;
  • the speedingup the disbursement of the 3bn euro and additional funding for the Refugee Facility for Syrians;
  • the preparation for the opening of new chapters in the accession negotiations;
  • the possibility of establishing in Syria areas which will be more safe; 

And finally to resettle Syrian refugees on a one-for-one basis.
I was assigned by leaders to take forward these proposals and work out the details together with the Turkish side before the next European Council.
We also discussed with Prime Minister Davutoğlu the situation of the media in Turkey. We all know how important freedom of speech and expression are, these are fundamental human rights. Without them, there cannot be the healthy development of any culture, of any society. I am saying all this because we cannot stay indifferent to the concerns raised in this context about what is now happening in Turkey.  
Finally, let me stress that our meeting lasted longer not only because of our talks with Turkey but also due to the fact that leaders had a number of important decisions to take.  Firstly, I would like to announce the decision by the EU leaders to end the ‘wave-through approach’ which means that the irregular flow of migrants along the Western Balkan route have now come to an end.
To facilitate this change, we agreed to help Greece and to deploy massive humanitarian assistance there. Emergency support to the very difficult humanitarian situation on the ground will be provided urgently. We will also offer further assistance in order to manage the external border in Greece, including those with the former Yugoslav Republic of Macedonia and Albania. This is a collective EU responsibility and so Greece will not be left alone. 

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.

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

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. 
Continue reading..
 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).

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