Category: 7. Immigration policies

The EU’s Planned War on Smugglers

ORIGINAL PUBLISHED ON STATEWATCH 

by Steve Peers (Twitter: @StevePeers)

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

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

Details

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

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

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

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

ORIGINAL PUBLISHED ON Migration Policy Centre, EUI

by Evangelia (Lilian) Tsourdi and Philippe De Bruycker,

1.State of play

Growing numbers of the forcibly displaced

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

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

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

Is a Common European Asylum System in place?

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

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

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

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

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

  1. Why is reform still necessary?

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

THE COMMISSION’S NEW EU MIGRATION STRATEGY: WAITING FOR THE GREAT LEAP FORWARD

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve PEERS

Today this Commission releases its EU immigration strategy. The final text is not available yet, but here are my thoughts on the earlier version, leaked on Monday. I will update them if the final strategy differs significantly from the leaked draft.

Content

The migration strategy is divided into three parts. First of all, it sets out ‘immediate action’ to address the migrant death crisis. Secondly, it describes an agenda for immigration management in four areas: irregular immigration, border management, asylum and legal migration. Finally, it briefly sets out some long-term objectives.

Immediate action

The ‘immediate action’ section largely elaborates upon the strategy already defined by EU leaders in response to the deaths in the Mediterranean. As I discussed already, this is a modest response to the crisis, focussed mainly upon enlarging EU interception operations in the Mediterranean and destroying smugglers’ boats.

However, the Commission paper suggests more ambition in two areas. First, it wants to go further on the ‘relocation’ of asylum-seekers between Member States. This would mean that frontline states like Italy and Malta do not have to deal with so many asylum-seekers, which would normally be their responsibility under the EU’s Dublin rules on this issue. So on this issue, the Commission will propose by the end of May ‘emergency response’ legislation on the basis of Article 78(3) of the TFEU, which will allocate asylum-seekers coming as part of a mass influx between Member States. These laws will be subject to a qualified majority vote in the Council, but the European Parliament (EP) will only be consulted. The Commission will then follow that up with a proposal by the end of 2015 for a permanent system of relocation, on the basis of the ‘ordinary legislative procedure’, ie the usual powers of the EP. I have already discussed separately the question of whether they would apply to the UK.

Secondly, the Commission wants to go further on resettlement, ie the entry of recognised refugees now in third States into the EU. On this issue, the Commission will make a Recommendation on resettlement, to be followed by a binding proposal for legislation if this proves insufficient. Extra EU funds will be made available to assist resettlement.

Irregular immigration

First of all, the Commission wants to address root causes of irregular migration, by focussing the money the EU already spends on these issues. There is no clear commitment to more spending. Next, the Commission wants to address smuggling of migrants, with an ‘Action Plan’ to be produced by the end of May. The Commission doesn’t mention this, but a review of the current EU legislation on smuggling of migrants is now underway. Also, the Commission wants to take further action to enforce the EU’s Directive on employment of irregular migrants (on the implementation of this Directive, see discussion here).

Also, the Commission wants to address the issue of return, by prioritising countries of origin for readmission treaties with the EU, providing guidelines on the application of the EU Return Directive (see here on implementation of that Directive), and giving the EU Border Agency, Frontex, the power to initiate expulsion missions. The Commission will propose legislation on the latter issue on the basis of an evaluation to be completed by the end of the year.

Border management Continue reading “THE COMMISSION’S NEW EU MIGRATION STRATEGY: WAITING FOR THE GREAT LEAP FORWARD”

(DRAFT) COMMISSION STRATEGY ON EU IMMIGRATION POLICY

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

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

_____________________________________________________________

  1. Introduction

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

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

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

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

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

Will the EU Migration Agenda (at last) propose to update the EU legislation on smuggling ?

By Isabella MERCONE (FREE Group trainee)

It appears that after the recent tragedies in the Mediterranean, the European Union could finally take action against deaths in the sea, and focus its efforts on the fight against trafficking of human beings. Indeed, in its special meeting on the 23th April, the European Council promised to ‘undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers’, while the High Representative was invited ‘to immediately begin preparations for a possible CSDP operation to this effect’.[1] 

This statement has been perceived by some scholars as ‘a disproportionate measure’ as it mixes up different legal situation by covering smugglers, traffickers and even pirates in the same legal basket where the legal definition of these crimes is not the same so that this EU strategy looks too hasty and quite  ‘an outrage to human rights and even to the rule of law.’[2] It has still to be seen if such a repressive approach will be endorsed at UN level (as it recently happened with the EU pressure for criminalizing the so-called “Foreign Fighters” phenomenon). The EU High Representative Federica Mogherini will brief the UN Security Council on the issue on Monday (11 May), and for the time being  both the Russian and Chinese representatives and the UN Secretary General Ban-Ki-Moon have already expressed their contrary opinion, by saying that “Apprehending human traffickers and arresting these vessels is one thing, but destroying them would be going too far.”[3]

Smuggling an trafficking look similar but are legally different..

One can then guess if by proposing a bold action such as the destruction of smugglers boats, the European Union is not taking the wrong direction by using military means without a clear legal basis, outside its territory, when the issue should be more framed by criminal law measures be they linked to smugglers or to traffickers. Under this perspective it is worth recalling that, according to international law [4],
– ‘human smuggling’ is recognized as ‘the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’, while
– ‘human trafficking’ is ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’[5]

This is to say that the difference between the two phenomena could be often very subtle, because both of them usually concern the transport of persons from one country to another. However, the different purpose is clear: while the smuggler simply aims at receiving the benefit for the assistance provided for the illegal entry in another country, human trafficking requires evidence of the intent to exploit the trafficked person.
This is why human trafficking and human smuggling differ, although in the real life they can often overlap [6]: because, even if many desperate people are looking for the services provided by smugglers,  not all of them are (fortunately) victims of trafficking, and they deserve different kind of support. Regrettably,these days the public debate and the press present these two different legal situations as if they were the same.
On his side, the European Union, even if it has established a broad legal framework concerning trafficking in human beings[7], has regrettably “forgot” to update its legislation on human smuggling, to effectively tackle this growing phenomenon.

An outdated EU legal framework for smuggling

It is worth recalling that the EU legal framework on smuggling (so-called “facilitators package”) dates back to 2002 and is composed by two [8]measures:

– Council Directive 2002/90/EC, that provides a common definition of the offence and requires Member States to adopt effective sanctions upon any person who intentionally assists a third-country national ‘to enter or transit across’ a Member State ‘in breach of the laws of the State concerned on the entry or transit’ of foreigners, and any person ‘who, for financial gain, intentionally assists’ a third-country national to ‘reside within’ a Member State in breach of its national laws on residence. Identical sanctions must also be applied to instigators or accomplices and those who attempt to commit the activities in question.There is a ‘humanitarian’ exemption, applying ‘where the aim of the behaviour is to provide humanitarian assistance to the person concerned’. But this exception is optional, and only applies to the first category of offence.[9]

– Framework Decision 2002/946/JHA, requires Member States to punish ail the conduct defined in the Directive by ‘effective, proportionate and dissuasive criminal penalties, which may entail extradition’, accompanied if appropriate by confiscation of transport, prohibition of practice of an occupation, or deportation. In cases of unauthorized entry or transit, there must be a maximum sentence of at least eight years if the activity was committed by a criminal organization or if committed while endangering a would-be migrant’s life.

These two measures were adopted as a partial implementation of the UN “Palermo” Convention and clearly only focus on the criminalization of smugglers. As such, they lack in addressing any other aspect of the problem, like prevention or protection of smuggled persons even if in particular there is still no EU requirement to criminalize (or to decriminalize) migrants who have breached immigration law as such.[10]
Instead of providing support and assistance to smuggled persons, who are often in difficult conditions before their departure, suffer great harm during the journey, and eventually find themselves “lost” in a foreign country, trying to build a new life, after having paid a great amount of money for a journey where they risk their life, the European Union decided to insist on the ‘need to combat illegal immigration’, reaffirming the importance of protecting State (EU) sovereignty, rather than providing legal forms of migration to people looking for a better life.

An issue for the EU Commission Migration agenda…

The humanitarian crisis in the Mediterranean is now apparently wakening up the EU and raising the awareness on the growing scale of the migration phenomenon. Moreover, after the Lisbon Treaty it could be possible for the same political majority [11] to adopt a comprehensive migration policy and frame in the same legal framework humanitarian and security aspects  by creating a binding burden sharing between the EU MS.
Now it could be the right time for the EU to change its approach by taking the individual at the core of the EU policies, as required by the Charter of fundamental rights and by dealing with smuggling in a more comprehensive and consistent framework. To do do, in its “holistic” Migration agenda, the Commission should also take into account the European Parliament recommendations :

On the humanitarian side : to provide alternative and safer channels of legal migration by associating in the definition of the new EU strategy and legal acts.Notably, the ministers for social affairs as the Ministers of Interiors, who are currently in charge of these issues, still have a partial distorted view of the human mobility dynamics. In the same perspective, the EU and its MS should engage in information and awareness-raising campaigns to make would-be-migrants aware about the risks they might face in their irregular journeys towards Europe, and inform them about the existence of alternative, safer but affordable forms of migration. It would also be helpful to improve the support to ‘victims’ of smuggling (not only as it is currently the case when the victims cooperate in the criminal investigation, prosecution and trial of a smugglers), both at the moment of arrival and for an appropriate period after.

On the security side : to improve the cooperation among MS in the investigation and conduction of joint operations (supported by EU agencies such as Frontex, Europol and Eurojust) by strengthening in a consistent operational framework the exchange of information dealing with people which can be considered a “threat” for the EU such as smugglers[12], Traffickers and foreign fighters[13].

…or for the UN Security Council ?

EU institutions before launching military operations should take into account what in recent forum between Prosecutors of EU member states has emerged eg that most of the current prosecutions relate to the criminal activity committed by those who provide the transport of migrants in boats, whereas only a few of them address the leaders of the organised crime groups behind this phenomenon. The limited exchange of information through Europol and the lack of coordination between EU Member States should be considered the main obstacles in identifying these organised crime groups. Moreover, effective legislation is considered essential to address this phenomenon and to clearly distinguish between smuggling and trafficking activities, by extending law enforcement’s powers to enter adjacent territorial waters when in hot pursuit of vessels suspected of trafficking.

Last but not least, in the medium and long term perspective, given the trans-border nature of smuggling and human trafficking, consideration should be given to the need to ensure prosecution at EU level of THB and smuggling of migrants crimes, as well as the opportunity to extend the competence of the European Public Prosecutor’s Office (EPPO) also to this kind of crimes. However, it is less than likely that this straight but more legally ambitious solution would be chosen, instead of the slippery shortcut of military intervention.

Further Reading :

Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
Shelley L., “Human Smuggling and Trafficking into Europe: a comparative prospective”, Washington DC, Migration Policy Institute, 2014.
Gallagher A.T., “Trafficking, Smuggling and human rights: tricks and treaties”, Forced Migration Review, 12 (2003), 25-28. NOTES
[1] European Council, ‘Special meeting of the European Council, 23 April 2015 – statement’, 23/04/2015, available at: http://www.consilium.europa.eu/en/press/press-releases/2015/04/23-special-euco-statement/
[2]See, for instance, Gabriella Carella, ‘Tratta degli esseri umani, uso della forza internazionale e prevenzione dei naufragi ( … dello stato di diritto)’, available at: http://www.sidi-isil.org/sidiblog/?p=1417
[3] EUObserver, ‘Russia to oppose EU sinking of migrant smuggler boats’, https://euobserver.com/foreign/128597
[4] Article 3(a) of the UNDOC Smuggling Protocol (‘Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime’, GA Res. 55/25, Annex III, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003)., available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[5] Article 3(a) of the UNDOC Trafficking Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, GA Res. 55/25, Annex II, UN GAR, 55th Sess., Supp. No. 49, at 53, UN Doc. A/45/49 (Vol.1) (2001), done Nov.15, 2000, entered into force Dec. 25, 2003), available at: https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf
[6] It is not unusual that a victim of smuggling later on also falls into the hand of a trafficker, in order to pay off his debt for the journey (traffickers ad smugglers often know each other and cooperate).
[7] See primarily the Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA and the EU Strategy toward the eradication of trafficking in human beings 2012-2016.
[8] In the pre-Lisbon the legal basis for criminal sanctions was in the intergovernamental regime framing the judicial cooperation in criminal matters (so called “ third pillar”).
[9] See Steve PEERS “EU Justice and Home Affairs Law” (Third Edition) published on Oxford European Union Law Library (Chapter 7 Irregular Migration)
[10] It should not be forgotten, however, that Article 31 of the Geneva Convention on refugee status exempts refugees who have entered or stayed irregularly from penalties under certain circumstances.
[11] Before the Lisbon Treaty legislation on Legal migration required the unanimity in Council.
[12] Actually, a provision concerning Communication of information between the Member States is already established by article 7 of Directive 2002/90/EC, but so far it is not clear if the MS have adequately implemented this provision.
[13] It is worth recalling that Europol has recently established a “Focal Point (FP) Travellers” which is mainly focused on so called “foreign fighters” and which is opened to all the EU  Member States as well as to third countries such as Australia, Norway, Switzerland and the US Custom and Border Protection Service (CBP). Eurojust has also asked to be associated.

FACT-CHECKING NIGEL FARAGE: WILL THE EU’S ASYLUM POLICIES ADMIT HALF A MILLION TERRORISTS?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party, argued that the EU’s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in the slightest. First of all, the EU policy, as I discussed last week, is essentially to reaffirm the status quo. The current limited maritime surveillance missions will be expanded, although it is not clear if they will amount to fully-fledged rescue missions. This probably means that more people will reach the EU, but this will only be for the reason that fewer of them will drown en route. Once in the EU, they will be able to make claims for asylum – but that is no different to the current law. The EU’s plan does not involve any changes to EU asylum legislation; it simply calls on Member States to apply those laws. The EU did commit to some form of direct resettlement of refugees from third countries – but EU leaders could not even agree on the tiny number of 5,000 refugees to be settled next year.

Farage would prefer a policy of returning people to the countries they left. In fact, asylum-seekers can already be returned to their countries of origin or transit, if it is clear when examining their application that those countries are safe. But in accordance with the UN (Geneva) Refugee Convention – which UKIP purports to support – they cannot be returned to an unsafe country. Libya, for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants. In any event, asylum-seekers who prove to be terrorists must be denied refugee status or other forms of protection status, as the CJEU has confirmed.

Farage demands that David Cameron veto the EU’s plans, but that simply isn’t possible, because the UK has an opt-out from EU asylum and immigration law. We can choose not to participate, and indeed the UK has already chosen not to participate in any of the second phase EU asylum measures, except for those which transfer asylum-seekers from the UK to other Member States. We can choose not to participate in any future measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration and asylum law has in fact been subject to qualified majority voting since 2005. (Laws on legal migration were subject to unanimous voting until 2009; but the EU’s plan does not address legal migration issues).

As regards border control operations in particular, the UK doesn’t participate fully in the EU’s border control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the full Schengen system of abolishing internal border controls. Instead we have an informal arrangement, for instance supplying some hardware to assist with the expanded surveillance operations. But even that sort of informal arrangement is under challenge in a case pending before the CJEU.

In some ways, Farage’s own policy runs its own risks. He has argued that Christians in particular should be admitted as refugees into the EU. As I have pointed out, this again violates the Geneva Convention that UKIP purport to support, since that Convention requires non-discriminatory application on grounds of religion, and it would also be unfeasible to distinguish between Christians and Muslims during rescue at sea. But if Christians are being resettled directly from areas afflicted by Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in Libya and Nigeria. Most of the people who have been linked to Daesh in Europe have been EU citizens who travelled to parts of the Middle East to participate in atrocities. Any migrants who were rescued from boats or who were resettled directly from conflict areas would presumably be disarmed of any weapons they were carrying en route. Of course, they might obtain weapons once they reached the EU; but since Farage is an outspoken critic of gun control, he is part of the problem, not of the solution, to that issue. As for the figure of half a million Daesh fighters coming to the EU, that’s 20 or 30 times the CIA’s estimate of the total number of all Daesh fighters.

Finally, Farage argues that the EU has cynically used the migrant deaths crisis to develop a comprehensive immigration and asylum policy. If only it had: in fact, the EU’s response is largely marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this glass house. It is Farage who is trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this opportunity to make an inaccurate and incoherent rant in the midst of an election campaign.

THE CJEU WASHES ITS HANDS OF MEMBER STATES’ FINGERPRINT RETENTION (JOINED CASES C-446/12 – 449/12 WILLEMS)

ORIGINAL PUBLISHED ON EU LAW BLOG

by

When is the Charter of Fundamental Rights of the EU applicable to a Member State measure? In C-446/12 – 449/12 Willems the CJEU held that a Member State which stores and uses fingerprint data, originally collected in compliance with Regulation No 2252/2004, but which the Member State then uses for purposes other than those stipulated in the Regulation, is not acting within the scope of EU law, and therefore is not bound by the Charter. This case appears to indicate a retreat by the Court from the expansive interpretation of the scope of application of the Charter which it had previously laid down in C-617/10 Fransson.

Facts and judgment

Council Regulation No 2252/2004/EC requires Member States to collect and store biometric data, including fingerprints, in the storage medium of passports and other travel documents, and require that such data be used for verifying the authenticity of the document or the identity of the holder. Spain introduced measures requiring the collection and retention of the fingerprint data for use in connection with travel documents. However, those national measures also provide that such data can be kept in a central register, and used for other purposes (such as national security, prevention of crime and identification of disaster victims). The applicants made passport applications, but refused to provide the fingerprint data. They argued, inter alia, that the storage and further use of those data breached their fundamental rights under Article 7 and 8 of the Charter of Fundamental Rights of the EU. The national court referred two questions for preliminary ruling.

The first question concerned the applicability of the Regulation to national identity cards. The Court held that the Regulation did not apply to such cards. The second question is the one I want to focus on: Does Article 4(3) of the Regulation, read together with Articles 6 and 7 of Directive 95/46/EC  and Articles 7 and 8 of the Charter, require Member States to guarantee that the biometric data collected and stored pursuant to that Regulation will not be collected, processed and used for purposes other than the issue of passports or other travel documents?

The ECJ had already held (in C-291/12 Schwarz) that the collection of those data for the purposes stipulated in the regulation (to verify the authenticity of the passport or the identity of the holder) was compatible with the Charter. The question was whether further processing of those data by the Member State would similarly be compatible.

The Court noted that the Regulation did not provide a legal basis for such further processing – if a Member State were to retain those data for other purposes, it would need to do so in exercise of its own competence (para 47). On the other hand, the Regulation did not require a Member State not to use it for other purposes. From these two observations the Court concluded that the Regulation was not applicable. The Court then cited its famous passage in C-617/10 Franssonwhere it had held that the applicability of EU law entails the applicability of the Charter. As the Regulation was not applicable, the Charter was not applicable either.

The Court then turned to Directive 95/46/EC  (the Data Protection Directive). It merely observed that the referring court requested the interpretation of the Regulation “and only that Regulation”. As the Regulation was not applicable, there was no need to examine whether the Data Protection Directive may affect the national measures.

Comment

I will focus on the question of applicability of the Charter (See Steve Peers comment on the “appalling” reasoning of the Court in respect of the Data Protection Directive). This judgment appears to signal a retreat by the Court from the expansive understanding of the scope of application which was laid down inFransson. It is true that in that case the Court had held that when EU law is not applicable, the Charter is not applicable. But when applying that test to the facts, the Court observed that the national (Swedish) measure was connected (in part) to infringements of the VAT Directive, and therefore was designed to implement an obligation imposed on the Member States by EU law “to impose effective penalties for conduct prejudicial to the financial interests of the European Union”. So inFransson the Court held that national measures which were connected in part to a specific obligation imposed by EU law on the Member State fell within the scope of application of EU law, and therefore of the Charter.

In the present case, the national measures are designed (in part) to implement the obligation imposed on the Member States by the Regulation, to collect and retain fingerprint data. Applying the reasoning in Fransson it would seem to follow that such measures would fall within the scope of EU law – after all, the measures relate to the retention of fingerprints, and the reason the fingerprints need to be retained stems from a specific obligation imposed, by EU law, on Member States: the obligation to collect and store biometric data with a view to issuing passports and travel data, set out in Article 4(3) of the Regulation.

Of course, this case can be distinguished from Fransson. In Fransson the Member State’s measure could be seen as not only stemming from the specific obligation imposed by EU law, but also as furthering the EU purpose of preventing conduct prejudicial to its financial interests. In contrast, in the present case the Member State’s measure is in furtherance of a member state’s purposes, and not an EU purpose.

But such a distinction would seem to entail a very strict approach to what obligations are imposed by EU law. Because the obligation which the Regulation imposes is not just to collect and store date, but also (under Article 4(3) of the Regulation) to ensure that the data are only used to for the specified purposes set out in the Regulation. That obligation was subsequently modified by Recital 5 inRegulation 444/2009, which states that Regulation 2252/2004 is “without prejudice to any other use or storage of these data in accordance with national legislation of Member States.” But is such a Recital sufficient to place the measures concerning those data outside the scope of EU law, or does it merely confer a discretion on states to adopt such measures, provided that they are compatible with EU law? Unfortunately, the reasoning in this judgment does not provide much guidance.

Conclusion

The approach of the Court in Fransson did not meet universal approval, and the judgement of the German Federal Constitutional Court in the Counter-Terrorism Database case may be read as a warning shot across the CJEU’s bows to make sure that the Charter is not applied to Member States’ measures in a way that “question[s] the identity of the [national] constitutional order”.  And by emphasising the autonomy of EU fundamental rights in its recent Opinion 2/13 on the accession to the ECHR, the Court certainly raised the stakes involved in demanding Member State compliance with the Charter. So this case may indicate a desire to ensure that the EU fundamental rights standard is reserved for those Member State measures where it matters most that a EU standard is applied – those matters where the primacy, unity and effectiveness of EU law is at stake.

In effect, this case can be read as tacit acceptance of AG Cruz Villalón in hisOpinion in Fransson, who proposed that the oversight by the Court of the exercise of public authority by the Member States be limited to those cases where there was “a specific interest of the Union in ensuring that that exercise of public authority accords with the interpretation of the fundamental rights by the Union”. However, that Opinion was a well reasoned legal argument. This judgment leaves many questions unanswered, and makes it very difficult to predict when a national measure will fall within the scope of EU law.

Furthermore, this approach sits uneasily with the self-understanding of the EU as a Union based on the rule of law inasmuch as neither Member States nor its institutions can avoid review of the conformity of their acts with fundamental rights (C-402/05 P and C-415/05 P Kadi). Through this Regulation, the EU requires the Member States to collect and store sensitive personal data of all EU citizens who wish to travel; but where the Member States go on to use those data in ways that may breach the fundamental rights of those EU citizens, the Court washes its hands of the matter.

 

 

DON’T ROCK THE BOAT: EU LEADERS DO AS LITTLE AS POSSIBLE TO ADDRESS THE MIGRANT CRISIS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS  Thursday, 23 April 2015

by Steve Peers

Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.

Detailed comments

At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.

It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.

The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).

As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.

There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.

As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option – discussed further here – in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.

There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.

Conclusions

Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.

On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.

THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS Wednesday, 22 April 2015

by Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU’s Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase. Continue reading “THE EU RESPONSE TO MIGRANT DEATHS: PROTECTION AND PREVENTION – OR POLICY LAUNDERING?”

L’Union européenne et la crise de l’immigration en Méditerranée : le bal des hypocrites

ORIGINAL PUBLISHED HERE 22 AVRIL 2015

par Henri Labayle, CDRE

Rien ne change. Les minutes de silence au sein des institutions européennes ne se comptent plus face à la litanie des morts et des disparus lancés en Méditerranée.

Comme il y a près de vingt ans à Douvres devant les cadavres de 54 clandestins chinois, les Etats membres et les institutions de l’Union promettent que cette fois-ci est la dernière, qu’enfin des mesures efficaces seront prises pour faire face à l’inacceptable : des centaines de morts en quelques semaines, des milliers à venir en quelques mois si l’indifférence persiste. Faute de reconnaître son échec, l’Europe est incapable de changer d’approche en affrontant autrement la réalité. Au bal des hypocrites, le carnet de chacun est donc bien rempli.

1. Le double langage des Etats membres

L’environnement de l’Union est devenu extrêmement dangereux, troublé par une multitude de conflits. Graves autant que nouveaux, ils engendrent des mouvements de personne quasiment impossibles à réguler, pour partie imputables d’ailleurs à l’imprudence des interventions militaires occidentales, en Irak ou en Libye.

Les populations persécutées par Daesch comme par Bachar El Assad appellent la protection autant que celles fuyant la guerre en Erythrée, lorsqu’elles se jettent dans l’exode. Quoi que les politiciens prétendent aux opinions publiques nationales, cette protection leur est due et l’Union européenne n’en est pas la cause. Nous l’avions décidée bien avant, inscrite dès 1946 dans notre constitution et dans la Convention de Genève comme nos voisins depuis 1951. Notre indifférence contemporaine à la misère humaine ne peut occulter un choix qui est partie intégrante de nos valeurs. Les dévoiements tout aussi indiscutables du droit d’asile ne peuvent le masquer. N’est pas australien qui veut.

Quelle est l’attitude individuelle comme collective des Etats européens devant ce constat ? Une fuite devant leurs responsabilités et le refus de tirer les conséquences de leur impuissance matérielle et budgétaire à garantir isolément leurs frontières respectives. Ceux qui proclament le contraire en réclamant leur rétablissement ont-ils oublié l’échouage d’un cargo turc transportant des immigrants kurdes sur une plage corse et imaginent-ils ce qu’il adviendrait demain d’une vague semblable à celle de la Sicile ?

Ce refus s’est traduit d’abord, en Méditerranée. Sous couvert de soulager l’Italie qui avait lancé à grands frais l’opération de sauvetage « Mare nostrum » après une première catastrophe, les Etats membres lui ont substitué l’opération conjointe « Triton ». Elle a divisé les coûts par trois et couvert une zone moindre, aux seules fins de surveillance de la frontière commune. Les 4 avions et 21 bateaux alloués par une vingtaine d’Etats, dont certains ne sont pas membres de l’Union, illustre bien le peu d’enthousiasme étatique à défendre la frontière commune avec Frontex, rapportés aux moyens mis en oeuvre par la seule Italie …

L’opération n’illustre d’ailleurs pas les clichés habituels. Si la Roumanie (tenue à l’écart de Schengen) ou la Slovénie et la Lettonie répondent présentes, tel n’est pas le cas de la Hongrie, pourtant consommatrice de crédits de l’Union dans ce registre, ou de l’Irlande et du Royaume Uni. Certes, le refus de ces derniers de participer à l’espace Schengen est connu mais on sait tout autant qu’une partie importante de ces demandeurs de protection se retrouvera en fin de compte à Calais, dans l’espoir d’un passage … En attendant, c’est un navire islandais, le Tyr, qui est au rendez vous du canal de Sicile.

Passé les mots de l’émotion, le cynisme l’emporte donc largement. L’opposition à Mare Nostrum était ouvertement menée au moyen d’un argument glaçant de réalisme : sécuriser le passage en sauvant les naufragés serait un appel d’air au commerce des passeurs … L’augmentation actuelle du nombre de naufragés alors que cette opération est précisément terminée témoigne de l’erreur d’appréciation commise, son incompatibilité évidente avec la morale et le droit de la mer ne suscitant aucun doute.

Les attitudes individuelles ne sont guère plus glorieuses. Les envolées françaises sur le droit d’asile, tradition de notre pays, et les déclarations martiales du chef de l’Etat appelant à régler des « questions devenues insupportables » ne dissimulent pas le double langage.

Celui par exemple des résistances de la diplomatie française lorsqu’il fallut, en 2014, réglementer le cadre de la surveillance des frontières maritimes extérieures conformément aux grands principes. Pas davantage que n’est infirmé le bien fondé des remarques de la Cour des comptes et du Sénat sur le projet en discussion relatif au droit d’asile qui prétend faire mieux en n’octroyant aucun moyen nouveau …

D’autant que le couplet habituel sur une France « terre d’asile » appelle modestie : quatrième Etat européen à enregistrer des demandes d’asile (62.000), nous sommes devancés par l’Allemagne (plus de 200.000), la Suède et l’Italie, en 2014. Et pour ce qui est de leur acceptation, nous ne dépassons pas 15.000 dossiers … trois fois moins que l‘Allemagne, autant que les Pays Bas qui sont bien moins sollicités, 20% qui se situent largement au dessous de la moyenne européenne.

C’est bien là que le bât blesse : comment l’Union européenne peut-elle sérieusement prétendre à une solidarité quelconque quand l’essentiel de la pression pèse sur un dixième de ses membres, 3 Etats seulement ? Que font les autres ?

2. L’inconsistance de l’Union européenne       

Continue reading “L’Union européenne et la crise de l’immigration en Méditerranée : le bal des hypocrites”