Category: 7. Immigration policies

The Orbanisation of EU asylum law: the latest EU asylum proposals

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

by Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system.

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn.

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports.

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways.

First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’.

Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months.

Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey.

Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010.

Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal).

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration.

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission’s asylum proposals – to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, thecurrent law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can’t relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany.

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.

L’accord Union européenne avec la Turquie : l’heure de vérité ?

ORIGINAL PUBLISHED ON CDRE SITE ON 28 AVRIL 2016. 

par Henri Labayle

L’indifférence relative avec laquelle l’opinion publique a accueilli l’annonce d’une nouvelle tragédie en Méditerranée ne doit pas tromper : celle-ci n’est vraisemblablement que l’un des épisodes d’une série à venir.

Ce silence contraste avec l’autosatisfaction bruyante avec laquelle l’Union et ses membres se sont félicités, au même moment, des premières applications de l’accord passé avec la Turquie concernant le renvoi des migrants arrivés en Grèce vers cet Etat tiers. Comme si le problème était en passe d’être réglé, comme si le sérieux des inquiétudes exposées ici s’était dissipé, au point de voir les autorités italiennes proposer de s’en inspirer avec les Etats du bassin méditerranéen pour leur proposer un « pacte migratoire » …

En fait, et au delà des polémiques relatives à la bonne volonté du « partenaire » turc, l’examen attentif de la première évaluation qui vient d’être proposée par la Commission (1) semble présager exactement du contraire (2).

1. Une mise en œuvre opérationnelle sujette à caution

L’accord passé le 20 mars 2016 entre la Turquie et l’Union européenne s’était fixé pour date de mise en œuvre le 4 avril 2016. A cet instant, les premiers retours de la Grèce vers la Turquie et les premières réinstallations vers l’Union européenne devaient avoir lieu. Après une présentation toute médiatique laissant croire aux opinions publiques que la solution était désormais acquise, la Commission s’est livrée à une évaluation plus technique, le 20 avril, dans une Communication relative aux progrès réalisés dans l’application de l’accord du 18 mars ((COM 2016 (231) .

L’exercice devrait se répéter avec une périodicité mensuelle. Cette volonté louable de transparence depuis l’été dernier illustre sans doute à la fois la volonté de la Commission de rendre compte de son action mais aussi de pointer publiquement les responsabilités en cause. Aucun doute n’est permis, elles sont celles des Etats membres.

L’accord du 18 mars, on le sait et au delà des controverses quant à son contenu, avait pour principal objectif du point de vue de l’Union de tarir le flux des migrants en provenance de Turquie et réduire à néant l’attractivité du commerce des trafiquants et autres passeurs. Il espérait y parvenir à la fois en ouvrant un canal légal entre la Grèce et la Turquie et en cordonnant le contrôle de la frontière commune. Pour contrepartie, il impliquait du point de vue turc à la fois un appui financier et administratif mais aussi une relance du processus d’adhésion, en particulier en matière de visas.

Le contrôle de la frontière commune implique d’abord une coopération accrue des forces en présence. De ce point de vue, l’action conjointe de Frontex, de l’OTAN et des autorités turques a, apparemment produit de l’effet puisque le chiffre des arrivées en Grèce serait passé de plus de 25 mille durant les trois semaines précédant l’accord à moins de 6000 depuis. Plus précisément, la Commission fait état du retour forcé de 325 migrants irréguliers n’ayant pas demandé l’asile, entrés après le 20 mars : 240 Pakistanais, 42 Afghans, 10 Iraniens, 7 Indiens, 5 Bangladais, 5 Irakiens, 5 Congolais, 4 Sri Lankais, 2 Syriens, 1 Somalien, 1 Ivorien, 1 Marocain, 1 Egyptien, 1 Palestinien. Ces retours ont été opérés sous l’égide de l‘accord de réadmission Grèce/Turquie, avant que, le 1er juin, l’accord de réadmission entre l’Union et la Turquie ne prenne le relai, après approbation du Parlement turc.

Sans doute faut-il y voir aussi les premiers fruits des échanges avec les autorités turques concernant la lutte contre les passeurs, via la présence d’agents de liaison à Europol et à Frontex, et de la stratégie de communication en direction des migrants tendant à contrebalancer le discours sécurisant des passeurs.

Il reste que le gigantesque effort sollicitant à la fois l’Union et ses agences mais aussi les Etats membres demeure encore très largement à produire, au plan matériel et financier comme au plan opérationnel. L’exposé financier des efforts attendus est en effet parfaitement clair, les mécanismes actuels d’aide d’urgence à la Grèce ou de financement des efforts de Frontex et du Bureau européen d’asile n’étant pas à la hauteur suffisante. Fait peu fréquent dans ce registre, la Commission n’hésite pas à épingler explicitement 12 Etats membres à la fin de sa communication pour n’avoir encore versé aucune contribution à ce jour (l’Autriche, la Belgique, Chypre, la Croatie, l’Espagne, la Lituanie, Malte, la Pologne, la Roumanie, la Slovénie). En revanche, 16 États membres de l’UE ont désormais envoyé leurs certificats de contribution, pour un montant de 1,61 milliard d’euros sur les 2 milliards promis pour 2016-2017

Du point de vue opérationnel, les choses ne sont guère plus encourageantes. Si autour du coordonnateur nommé par la Commission et le comité de pilotage qu’elle conduit avec la Grèce, les agences intéressées et un certain nombre d’Etats membres, la mécanique s’est mise en place, il n’en est pas forcément de même du soutien attendu des Etats membres.

La Commission se félicite de ce que Frontex ait déployé dans les îles grecques près de 318 agents d’escorte et 21 experts en réadmission à l’appui des opérations de retour et que 25 officiers de liaison turcs soient déployés dans les centres de crise grecs et 5 officiers de liaison grecs aux points d’arrivée en Turquie. De même, une petite centaine d’agents du Bureau européen d’asile sont à l’oeuvre, pour une cinquantaine d’entretiens quotidiens avec pour objectif d’en mener 200 à la mi-mai. Au vu de l’ampleur de la tâche et de son sérieux indispensable, les doutes sont donc permis. Car, à vouloir réserver aux Etats membres le fonctionnement des agences de l’Union, ces derniers sont pris à leur propre piège lorsque l’on évalue leur degré d’implication. La Communication de la Commission et ses annexes et autres « fact sheet » (méprisant comme à l’ordinaire la langue officielle de trois Etats fondateurs de l’Union) fournissent à cet égard des tableaux éloquents quant à l’effort réel des Etats à la fois au vu des demandes effectuées et des réponses Etat par Etat.

Attentes

Bilan avril

L’autre volet de la contribution des Etats membres tient dans la réalisation des engagements pris il y a plusieurs mois et demeurés largement lettre morte depuis juillet 2015, bafouant ouvertement les obligations juridiques contractées. L’accueil par les Etats membres conditionne en effet le jeu du principe « 1 + 1 ». Si la Commission présente un schéma décisionnel où la Turquie saisirait le HCR d’une liste de candidats à la réinstallation, pour évaluation et avant une décision finale des Etats membres concernés, la réalité des chiffres est toute autre.

A ce jour et sur la base de l’accord, 103 Syriens seulement ont gagné l’Allemagne, la Finlande, la Suède et les Pays Bas depuis la Turquie … Initialement, 22 500 places offertes à la réinstallation avaient été arrêtées en 2015, et 5677 ont été pourvues, principalement pour soulager les Etats voisins tels que la Jordanie et le Liban et grâce à l’appui des Etats associés à l’Union, comme en témoigne les tableaux fournis par la Commission. Il reste donc 16.800 places disponibles…

Réinstallation UE

Reisntallation associés

Afin de donner un minimum de crédibilité à l’accord passé avec la Turquie, la Commission a donc proposéd’ajouter à ces chiffres, les 54 000 places de relocalisation prévues initialement pour soulager l’Italie et la Grèce, en modifiant la décision 2015/1601 du 22 septembre 2015. Ce faisant, cette approche strictement comptable permettrait d’aboutir au chiffre total de 70 800 places à mettre dans la balance des relations avec la Turquie. Elle ne masque pas la démission des Etats comme en témoignent les chiffres que la Commission fournit elle même, bien volontiers.

Relocalisation Italie 11 avrilRelocalisation Grece

Dans ces conditions, les tensions entourant l’application de l’accord du 18 mars se comprennent aisément. Outre les difficultés pratiques extrêmement délicates à régler, les arrières plans politiques et juridiques ne sont pas réglés, bien au contraire.

2. Une mise en œuvre juridique sujette à critiques

Dès la conclusion de l’accord, l’interprète le plus qualifié qui soit en matière d’application de la Convention de Genève, le Haut Commissariat aux réfugiés avait émis expressément ses réserves. Celles-ci sont généralement partagées tant par la doctrine que par l’essentiel des ONG et d’une part de la classe politique. Fait peu habituel, l’Assemblée consultative du Conseil de l’Europe a même exprimé ses critiques dans une résolution, le 20 avril.

Elles tiennent en un doute principal, celui de la crédibilité du partenaire turc et de la fiabilité de ses pratiques. Comment un tel contributeur aux jurisprudence les plus sévères de la Cour européenne des droits de l’Homme pourrait-il inspirer la confiance, faisant preuve d’une constance remarquable de ce point de vue : il est à ce jour l’Etat partie à la CEDH ayant fourni le contingent le plus important d’arrêts à Strasbourg (17,13 %) et la pente sur laquelle s’engagent ses nouveaux dirigeants mène à penser que le pire est à venir … En d‘autres termes, comment imaginer qu’un Etat tiers réticent à reconnaître effectivement des garanties fondamentales à ses propres ressortissants pourrait assurer, a priori, la protection efficace de ressortissants de pays tiers ?

Seul, l’aveuglement insondable du Président du Conseil européen peut lui permettre d’afficher sans vergogne dans ses conditions sa « fierté » quant à un tel partenariat …

Le principe même d’un transfert systématique en direction de la Turquie demeure donc au cœur du débat, tel que le HCR lui même en avait exposé les termes immédiatement après l’accord avec l’Union. Le concept de pays tiers sûr est évidemment admis par le droit de l’Union, comme indiqué précédemment, mais il continue à poser concrètement la question de son application au cas d’espèce.

Afin de considérer que la Turquie émargeait à cette catégorie, il fallait, d’une part, remplir des conditions juridiques dans le pays de départ, la Grèce, et dans le pays de retour, la Turquie, et, d’autre part, que des garanties effectives soient apportées. Sous peine, comme le soulignait le HCR, de justifier une saisine de la Cour de justice à titre préjudiciel, argument qui a d’ailleurs trouvé un écho au Parlement européen.

Pour ce qui est de la mise à niveau juridique, des règles spécifiques devaient d’abord être introduites dans la législation grecque, notamment afin d’offrir un accès réel aux procédures et à un recours effectif aux personnes concernées. Il en allait de même en ce qui concerne la portée des engagements de la Turquie au regard de la Convention de Genève. La Grèce a ainsi adopté le 3 avril une loi lui permettant d’appliquer les concepts de pays tiers sûr et pays sûr de premier asile ainsi que d’assurer des procédures accélérées pour l’examen des demandes d’asile, en matière d’appel. Malgré l’optimisme affiché par la Commission dans son rapport d’évaluation évoqué précédemment, la création d’une vingtaine de « comités d’appel » demandera confirmation quant à son efficacité. Pour ce qui est de la Turquie et après quelques réticences, a été adoptée début avril la législation permettant d’accorder une protection temporaire aux ressortissants syriens « remis », conformément à la Convention de Genève. De même auraient été fournies les assurances nécessaires concernant les non-Syriens réadmis. En bref, la couverture juridique exigée par l’Union parce que légitimant l’accord semblait avoir été obtenue.

Au plan pratique, les choses se sont avérées beaucoup moins simples.

En Grèce d’abord, où se sont multipliées les accusations de déficiences à l’encontre de l’administration grecque. Avec tout de même et quelles que soient les positions des uns ou des autres, minimisant ou accentuant ces défaillances, une forte présomption de vraisemblance. Comment un Etat membre incapable depuis de nombreuses années d’accomplir ses obligations en matière de protection internationale, comme constaté à de multiples reprises par les juridictions européennes, au point de voir suspendre les transferts Dublin en sa direction, pourrait brusquement se transformer du tout au tout en quelques semaines ?

Au cœur du dispositif, la question de la rétention des demandeurs de protection et des conditions dans lesquelles celle-ci se déroule est incontestablement d’une gravité certaine. Non pas que la retenue des demandeurs de protection soit contraire à la législation de l’Union, ce qui n’est pas le cas, mais parce que les conditions matérielles et juridiques dans lesquelles ces privations de liberté sont réalisées posent manifestement problème, provoquant de ce fait la mise en retrait de nombre d’ONG. Le rapport de l’Assemblée parlementaire du Conseil de l’Europe mérite à cet égard une citation intégrale : « la capacité prévue des trois plus grands centres d’accueil et d’enregistrement (Lesbos, Chios et Samos) a été très rapidement saturée. Ces centres sont devenus surpeuplés et les conditions de vie se sont détériorées: nourriture de mauvaise qualité, abris précaires, conditions d’hygiène déplorables, accès insuffisant à des soins médicaux appropriés ».

Pour ce qui est de la Turquie, la situation faite aux ressortissants non-syriens pose évidemment problème au regard du principe de non-discrimination et quoi que l’on en dise à Bruxelles. De l’Afghanistan à l’Erythrée, la misère humaine dépasse la situation particulière de l’exode syrien. Aussi, les « assurances » données à l’Union par la Turquie les concernant sont loin d’être suffisantes quant à leur accès à une procédure d’asile. D’autant que se multiplient les rapports alarmants relatif à la situation réelle des demandeurs de protection dans le pays ou quant au respect du principe de non-refoulement.

D’où l‘accentuation des pressions politiques et une multiplication des contacts directs avec la Turquie, le dernier en date prenant la forme d’une visite sur le terrain d’Angela Merkel et de Donald Tusk. Visite d’un village Potemkine ou tentative de forcer les blocages en cours, l’interprétation exacte de cette venue est délicate, destinée à légitimer l’action en cours autant qu’à établir un rapport de force avec l’opinion publique, l’initiative étant vertement critiquée dans la presse allemande la qualifiant de « farce« .

Car s’est ouvert entretemps un autre front, celui du lien effectué par les autorités turques entre la pérennité de l’accord avec l’Union et la libéralisation des visas à l’égard des ressortissants turcs.

On saura au mois de juin si cette « promesse faite au peuple turc », selon le premier ministre turc, peut ou non être honorée. En l’état, la Commission, avec cet optimisme qui la prive souvent de crédibilité, produira une évaluation le 4 mai, rapport sur la base duquel on saura si les 72 critères à remplir par la partie turque sont satisfaits ou non et si une proposition législative en bonne et due forme concrétise cette mise à niveau. A ce stade et selon les informations fournies par la Commission, il semblerait qu’une cinquantaine de ces critères soient effectivement acceptés, ce qui suppose néanmoins qu’en un mois un progrès conséquent doive encore être fait. Ce à quoi invite la Commission, par l’intermédiaire de son premier vice-président devant le Parlement européen.

Co-législateur, ce dernier pourrait donner davantage de fil à retordre qu’on ne le croit aux Etats membres, accusant d’ores et déjà ces derniers de sacrifier leur sécurité sur l’autel de la collaboration avec la Turquie et au détriment des demandeurs de protection. Une première salve a ainsi été tirée le 14 avril à propos du rapport 2015 consacré à la Turquie, dans une résolution dont les huit paragraphes consacrés à l’accord passé avec l’Union méritent le détour. D’où les rumeurs récentes quant à une initiative franco-allemande liant l’accord sur la libéralisation des visas à l’introduction d’un mécanisme de sauvegarde, type « emergency break », qui permettrait une suspension de cet accord en cas de tensions migratoires ou de problème sécuritaire. Au vu du climat de la réunion de la Commission Libé, le 21 avril, la partie est loin d’être gagnée …

Au total donc, les semaines à venir seront lourdes de conséquences.

Pour les réfugiés d’abord et avant tout, peu convaincus par la pseudo-voie d’accès légal qui leur est ainsi ouverte et qui laisse en suspens le sort de dizaines de milliers d’entre eux, n’entrant pas dans le champ d’application du texte. La proximité de l’été et l’ampleur de la reprise des traversées de la Méditerranée donneront très rapidement la réponse de l’efficacité de l’accord avec la Turquie.

Pour l’Union ensuite et sa pitoyable tentative de sous-traitance de ses valeurs et de ses obligations à un partenaire retors. De Charybde en Scylla, le prochain partenariat de ce genre impliquera-t-il la Libye ?

Pour les Etats membres de cette Union, enfin, que nul renoncement ne rebute, en Autriche ou ailleurs, et dont la solidarité ne se vérifie qu’à l’instant de renier le contrat sur laquelle leur Union s’était fondée.

La sécurité digitale à l’heure des crises migratoire et terroriste, le noeud gordien de l’interconnexion des fichiers

ORIGINAL PUBLISHED ON CDRE SITE (20 AVRIL 2016)

par Pierre Berthelet, CDRE

La situation que connaît actuellement l’Union européenne n’aura échappé à personne. Qu’il s’agisse de la crise migratoire ou de la crise terroriste générée par les attentats à répétition en 2015 et en 2016, le remède préconisé par les États membres par la voix du Conseil et du Conseil européen, consiste à vouloir sécuriser davantage les frontières extérieures de l’Union européenne.

La protection renforcée de celles-ci constitue l’enjeu majeur de la lutte menée contre le phénomène terroriste, dont l’agenda converge désormais clairement avec la politique européenne en matière migratoire, comme l’atteste la communication de la Commission du 6 avril 2016 intitulée « des systèmes d’information plus forts et plus intelligents pour les frontières et la sécurité ». Le texte affirme à cet égard très clairement une « interconnexion dynamique » entre police, migration et gestion des frontières.

La crainte actuelle est, en particulier, le phénomène des combattants de l’État islamique venant d’Irak et de Syrie. L’organe de coordination antiterroriste belge, l’OCAM, a d’ailleurs souligné, le 19 avril 2016, un risque considérable d’attentat de la part de ces combattants, des Européens partis faire le Jihad au Moyen-Orient et rentrant aguerris (phénomène dit des « returnees »).

Nouveaux défis, mais anciennes solutions donc. L’observateur ne peut qu’avoir une impression de déjà-vu : les choix de ces derniers mois formulés par les chefs d’État et de gouvernement, inspirant les orientations contenues dans cette communication, ressemblent, à bien des égards, à ceux des Conseils européens de Laeken de 2001, de Séville de 2002 ou encore de Thessalonique 2003. À l’époque, l’Union était déjà confrontée aux problématiques du terrorisme et d’échouage de migrants sur les côtes européennes. Les agendas antiterroriste et migratoire se mêlaient alors autour de la sécurisation des frontières extérieures pour éviter toute intrusion possible d’agents d’Al-Quaïda dans l’UE, dissimulés dans les colonnes de migrants, jetant ainsi les fondations du projet des frontières électroniques (smart borders).

Anciennes solutions, mais nouveaux défis néanmoins. La communication du 6 avril 2016, accompagnée d’une proposition de règlement instituant le « Système Entrée-Sortie » (correspondant à une révision du précédent projet présenté en 2013, jugé trop onéreux par les États membres), marque un nouvel épisode dans la création des frontières électroniques européennes. Elle s’inscrit dans le contexte d’enjeux très actuels : la protection des frontières extérieures au prisme de la lutte antiterroriste a trait à deux problèmes distincts, celui des « combattants étrangers » (1) et celui de la fraude documentaire (2).

Dans le premier cas, il s’agit de contrôler les flux de voyageurs sortants pour empêcher ces « combattants étrangers » (foreign fighters), c’est-à-dire les jeunes Européens désireux de partir faire le Jihad au Moyen-Orient. Dans le deuxième cas, il s’agit de contrôler les flux de population, pour la plupart fuyant la guerre dans cette région. En réalité, ces deux problématiques se recoupent car la fraude documentaire concerne le contrôle des titre de voyage dont sont porteurs les flux de voyageurs, y compris les migrants irréguliers rassemblés dans les hotspots. Elle a trait aussi à l’identification des « combattants étrangers » franchissant les frontières Schengen avec de faux papiers. Les solutions apportées concernent, dans un cas comme dans l’autre, un meilleur déploiement des fichiers et une plus grande interconnexion de ceux-ci (3).

Analyser la manière dont l’Union s’efforce de répondre à ces deux problématiques distinctes mais sécantes est instructif. Cette réponse s’exprime de façon commune, le recours à la sécurité digitale, c’est-à-dire l’utilisation accrue des systèmes d’information et de communication et ce, en écho au phénomène de digitalisation de la vie sociale observable dans d’autres secteurs à l’ère du Big Data, tels que la santé digitale. Les problématiques secondaires, fraude documentaire et combattants étrangers, se trouvent au cœur de la résolution des crises migratoire et terroriste, elles-mêmes étroitement imbriquées. Il s’opère à ce propos un phénomène d’intrication immigration-terrorisme dans un contexte où s’échafaudent des capacités de gestion de crise horizontale, c’est-à-dire de polycrises.

L’interopérabilité des systèmes d’information devient alors un enjeu central, crucial même, car de son succès dépend la protection effective de l’Union. La sécurité digitale, expression archétypale dusolutionnisme technologique, constitue un nœud gordien au sens où le sort de lutte antiterroriste dépend de la réussite de l’interopérabilité des systèmes d’informations, qu’ils soient à finalité sécuritaire ou migratoire, l’une et l’autre apparaissant désormais mêlées.

1. Verrouiller les frontières pour résoudre le problème des combattants étrangers 

Continue reading “La sécurité digitale à l’heure des crises migratoire et terroriste, le noeud gordien de l’interconnexion des fichiers”

“MIGRATION COMPACT”: Contribution to an EU strategy for external action on migration

 (ITALIAN NON-PAPER) : ORIGINAL PUBLISHED HERE 

 

  1. INTRODUCTION

The unprecedented phenomenon of growing migratory flows towards Europe is expected to last for decades due to various geopolitical dynamics in the neighbourhood and beyond (mainly Middle East and North Africa, Sahel, Horn of Africa): security challenges and regional instability, deterioration of economic and social environment, poverty and unemployment, climate change, etc. The migratory challenge is seriously jeopardising the fundamental pillars of European integration (e.g. integrity of the Schengen area) and solidarity among Member States.

The complexity of such a challenge is linked to the mixed nature of the flows (both refugees and economic migrants). Actions taken in the Eastern route have to deal with mixed flows with a greater component of refugees due to the civil war in Syria. Flows through the Central/Western Mediterranean route are composed mainly by economic migrants and are expected to last in the medium-long term. The EU should be ready to cope with both challenges (the second is expected to last for decades) as well as with the opening of other possible routes (eg. north-east).

At the same time, if well managed, migration may represent an opportunity both for the EU and partner countries, in terms of economic growth and development, and for an ageing Europe in terms of sustainability of social security systems.

  1. LESSONS LEARNED

Most recently a number of initiatives and legislative proposals have been discussed at EU level to address the challenge, mainly focusing on the EU internal dimension, such as: the establishment of the European Border Guard; the reform of the Common European Asylum System which should feed into ambitious legislative proposals; the Decisions on relocation adopted in 2015; the intention of the Commission to not take into account the costs for the management of the current crisis under the Stability and Growth Pact; the Communication “Back to Schengen” and the recent proposals on “Smart Borders”.

However such measures only constitute components, even though important ones, of the more comprehensive response needed which so far does not yet directly address the external dimension of our migration policy. In order to be effective such internal measures need to be complemented with a stronger joint external action. The outburst of the migratory crisis highlighted the need to overcome fragmentation of available EU external action tools and to upgrade the Global Approach to Migration and Mobility, revise the EU-ACP partnership, and further develop the pathways offered by the Valletta Action Plan, by the EU-Turkey agreement and by the existing Dialogues the EU is promoting at regional level (such as the Khartoum and Rabat Processes).

In order to design a reinforced external action strategy on migration it is urgent to carry out a comprehensive analysis of all existing instruments and actions with the aim to highlight the strengths and weaknesses of the existing framework and consequently reorient the EU programming and planning.

The recent EU/Turkey agreement represents the first attempt to initiate a large-scale cooperation with a third country and has shown that it is possible to use existing tools and budget in an innovative way.

All existing initiatives and instruments in the field of external action should be directed (in a coherent way with the internal ones) to developing an active strategy, focussing first and foremost on African countries of origin and transit.

  1. THE WAY FORWARD: “THE FAIR GRAND BARGAIN”

The first step of the strategy should concern the identification of key partner countries to cooperate with on migratory issues and the definition of the kind of cooperation to develop with each of them. A matrix should be defined, on the basis of different migratory features of each country (origin, transit, origin and transit) and be adapted according to the characteristics of the country (e.g: economic and social trends, security, climate change, etc.). The Country Fiches prepared by the Commission and the EEAS are a good starting point and an example of interinstitutional cooperation which is much needed to improve our approach. Such a mapping should be accompanied by a thorough needs assessment to be carried out together with the third country, in a genuine spirit of co-ownership, and should become the basis for Country Specific Action Plans for an enhanced Partnership.

The EU should upgrade its commitment on priorities identified by the third country, while the latter should upgrade its commitment on priorities identified by the EU.

3.1 The EU may offer:

* Investment Projects with a high social and infrastructural impact to be identified together with the partner country as a crucial incentive for enhancing cooperation with the EU. To that end, programming of external action financial instruments (EDF, DCI, ENI, etc…) should be reoriented and a new EU Fund for Investments in third countries should be established.

* “EU-Africa bonds” to facilitate the access of African countries to capital markets (with a medium-to-long-term perspective in order to ensure capital availability for growth and sustainable prosperity schemes), as well as other innovative financing initiatives (facilitating remittances and their re-investment and blending mechanisms, etc.), in synergy with the EIB1 and other European and international financial organizations.

* Cooperation on security: mainstreaming migration (border management/control, customs, criminal justice, management of migrants and refugees in line with international standards) in the mandate of existing and future CSDP missions in Africa (Sahel; a reflection could also be conducted for the Horn of Africa). The logical next step in this process would be a regional grouping of missions to better manage a phenomenon that, by definition, has a “cross-border” dimension. Support should also be ensured to existing regional processes aimed at regional cooperation in security and migration domain (e.g. the G5 Sahel). This approach should go alongside the practical implementation of the Capacity Building for Security and Development concept (“CBSD”), coupling training with adequate equipment.

* Legal migration opportunities, building upon the pillars set out at the Tampere European Council in 1999, as an incentive that could include: entry quotas for workers, information on job opportunities in Europe for third countries nationals, pre-departure measures (including language and vocational training) in collaboration with European companies ready to employ manpower from third countries, matching of demand and supply of jobs, professional and social integration in the host Member States, Erasmus Plus programmes for students and researchers. Initiatives on circular migration as well as south-to-south migration opportunities should be further explored.

* Resettlement schemes as compensation for the burden on those countries that engage in establishing national asylum systems in line with international standards.

3.2 The EU may ask:

* Commitment on effective Border Control and reduction of flows towards Europe. The EU should help with “capacity building” initiatives and supply of equipment and technologies. Third countries should also engage in Search and Rescue activities. The European Border Guard, within its new mandate, has to step up the cooperation with third countries and have a coordinating role.

* Cooperation on returns/readmissions, focusing on operational agreements, reciprocal posting of liaison officers in third countries and Member States to speed up identification and issuing of travel documents. The EU should fund these secondments as well as reintegration programmes for returnees. The third country should accept repatriations also via charter flights organized by individual Member States or by the European Border Guard. The EU should provide assistance in the development of biometric databases and IT systems for civil registers. Development of readmission cooperation among third countries should be supported by the EU. The EU should promote a coherent revision of the EU-ACP partnership (post-Cotonou) in line with EU priorities on migration, including the full implementation of obligations under art. 13.5 of the Cotonou agreement.

* Management of migration and refugee flows: third countries should be supported in establishing a system of reception and management of migratory flows (including infrastructures and logistics), which should foresee careful on-site screening of refugees and economic migrants, coupled with resettlement measures to Europe for those in need of international protection and returns for irregular migrants.

* Establishment of asylum systems: the EU should support third countries in establishing national systems, in line with international standards, which offer on-site protection (“safe harbours”) to those in need. The experience of relevant international organizations such as UNHCR and IOM could be used to help third countries to establish reception centres for refugees, financed by the EU.

* To strengthen the fight against trafficking in human beings and smuggling of migrants also through joint police and judicial cooperation.

To implement this approach, the new European Border Guard (in particular the new Office for Returns) should develop a plan (already before the entry into force of the Regulation) for joint EU return operations to be financed with the EU budget and for supporting return operations from third countries of transit to countries of origin (where cooperation on readmission is in place). The possibility for Member States having privileged relations with specific third countries to lead and organize (with the support of the Agency) joint return operations should be explored. The EU should use in an effective way its network of Delegations, the new Border Guard and all Common Security Defense Policy instruments. This effort could be complemented by contributions from Member States.

All EU and MS existing security, foreign and development policy instruments should be strategically combined to maintain a constant European law enforcement presence in the Saharan belt with the objective of formally training, equipping, assisting and cooperating on security with countries in the region (border control, joint patrolling, irregular migration and trafficking, terrorism, drugs, organised crime, etc.), while informally improving our early warning and prevention mechanisms.

3.3 The “Migration Compact” approach should be financed through:

  • Reorienting of programming of external action financial instruments (EDF, DCI, ENI, etc…).
  • A new   financial   “Instrument   for   the   external   action   in   the   field   of   migration” (IEAM)2 to be established within the EU budget and operate in synergy with AMIF and ISF. In the meantime, the EU should increase resources available under the Emergency Africa Trust Fund in support of a EU-Africa Program for prosperity, security and migration, building on the Valletta Action Plan and make use of regional migration dialogues (such as the Khartoum and Rabat Processes) to ensure African ownership.
  • “Common EU Migration Bonds” to be issued to fund the migration management in Member States and to finance the “Migration Compact” goals.
  • A new EU Fund for Investments in third countries to finance sustainable investments in the region and attract European investors, including through blending structures and operations by the Commission and the EIB.

LIBYA

In this context, the stabilization of major transit countries, such as Libya, is a strategic priority of the first order also to cope with migration and refugee flows. At the EU level, we will need to step up our partnership with the Libyan government, while engaging in targeted capacity-building programs aimed at bolstering the Government’s control over its territory and law-enforcement capacity.

The EU should ensure the best possible use of EUNAVFOR MED Sophia and its capacity in contributing to the disruption of the business model of human smuggling and trafficking networks in the Central Mediterranean, thus contributing to Libyan and regional security. When the necessary conditions will be met, different possible options and tasks can be included in the Operation’s mandate, moving it to new phases and tasks, including the training of the Libyan Coastguard.

In addition the EU should offer Libya security sector support, including advice and capacity building in the fields of police and criminal justice, through a civilian CSDP mission, focusing as well on border management and assisting Libyan authorities in their efforts to fight terrorism and improve management of migration flows.

To this end, UN and EU efforts should aim at supporting the management in Libyan territory of migratory flows, also through careful screening of refugees and economic migrants, coupled with resettlement measures for those in need of international protection and return for irregular migrants.

NOTES

  1. See European Council Conclusions, 17-18 March 2016, doc. 12/1/16.
  2. IEAM should cover potentially all geographic areas and could be used also for mobilising additional funding for the Facility for Refugees in Turkey.

(Legislative Alert) : The Council “general approach” on the future EU Border Agency.

NOTA BENE : Following intense negotiations inside the working groups of the Council (see some preparatory works on Statewatch and soon on a WIKI-LEX page of this site) the Coreper has agreed Yesterday (April 7) on a mandate for negotiations with the European Parliament, as set out in the text below.
Even if the Treaty requires that debates and votes on legislative proposals should be public (also in the Council) in the case of the so called “early agreements” and “trilogues”   everything is still blurred. In this parallel world “informally” created by the co-legislators it is not clear the nature of the preparatory votes in the Council/Coreper  (qualified majority ? unanimity ?) , nor the role of the Commission, nor the impact on the original legislative proposal.
These legal procedural niceties taken apart (!?)  in the text of the mandate below the envisaged changes vis-à-vis the Commission proposal are highlighted in underline and strikethrough.  It should be noted that an additional legal basis, i.e. point (e) of Article 77(2) TFEU has been considered necessary,  in order to cover the provision of draft Article 18(8) which deals with issues related to controls at the internal borders.
Chapter I of the proposal (Article 2) deals with the definitions of the concepts used in it. Among them, the definitions of “external borders” and of “hotspot areas” should be highlighted.
Chapter II, Section 1 (Articles 6-7), concerns the name and the tasks of the new Agency. 

Chapter III, Sections 3-5 (Articles 50-78), deals with the cooperation between the future Agency and different stake holders (including with third countries), the general framework and organisation of the Agency and the financial requirements for its proper functioning.
Among the important issues tackled in these provisions, emphasis should be given in particular, on:
i) the envisaged facilitation of cooperation by the Agency with the Member States and the Commission in specific activities related to the Customs Area (Article 51);
ii) with regard to the cooperation with third countries, the Council has taken on board the view expressed by a number of delegations according to which the participation of Member States in joint operations on the territory of third countries shall be only on a voluntary basis. The joint operation in question shall be carried out on the basis of an operational plan agreed also by the Member State bordering the relevant operational area. In the same context, the compromise envisaged by the Council includes a provision on the Status Agreement that should be concluded by the EU and the third country for the deployment of the members of the teams in appropriate situations (Article 53);
iii) more functions have been added in the remit of the Management Board so as to meet with the role that is envisaged for it;
iv) the deletion of the provision on Supervisory Board, following a consistent request by many delegations (Article 69).
Finally, Chapter IV (Articles 79-82) covers the final provisions.

A detailed comment of this proposal which can be considered the first case of a quasi – federal Agency will follow.
EDC

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the European Border and Coast Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC Continue reading “(Legislative Alert) : The Council “general approach” on the future EU Border Agency.”

(ASGI and OTHERS) THE AGREEMENT BETWEEN THE EUROPEAN COUNCIL AND TURKEY OF 17/18 MARCH 2016 IS ILLEGAL.

NB. The original is available in the site of the Associazione di Studi Giuridici sull’Immigrazione (ASGI) Unofficial translation by Statewatch

 

It seriously violates European law and radically betrays the EU’s and Italy’s judicial culture.

The agreement of 17/18 March 2016 is a decision by the heads of state and of the governments of the EU which runs contrary to the European law that is in force. The violations which have been recorded are numerous, including the following:

  1. The agreement envisages the forced return to Turkey of asylum seekers who entered Greek territory passing through Turkish territory after their asylum application was declared inadmissible. According to what the European Council reported, such inadmissibility will be declared by the Greek authorities, in cooperation with UNHCR, following an examination which is defined as individual but is described in terms which apply to collective refoulements. Art. 33 of EU Directive 32/2013 (on common procedures) establishes that asylum applications can only be deemed inadmissible following an individual assessment which may lead, in such cases, to establishing that an asylum seeker may be readmitted into a third country which may be deemed a “first country of asylum” or “safe third country”. These two notions are specified better in arts. 35 and 38 of the same directive, and are subject to compliance with requisites which cannot be observed as applying to the case of Turkey in any way. In fact, the latter country, apart from violating human rights and not guaranteeing democratic principles to its citizens, does not offer “sufficient protection” to asylum seekers for it to be defined a first country of asylum (art. 35), nor does it offer “the possibility to apply for refugee status” or to “obtain protection in accordance with the Geneva Convention” to an extent that may allow it to be deemed a safe third country (art. 38). In other terms, the agreement wants to break through the current normative framework (Directive 32/2013) to qualify Turkey as a “first country of asylum” or “safe third country”, in order to trigger a system of absolutely summary evaluation of asylum applications which will lead to quick declarations of inadmissibility and, as a result, to forced deportations on the basis of the sole precondition that such asylum seekers have passed through Turkey and that, just for this reason, they may be sent back to that country.
  2. The agreement envisages the possibility of enacting forced returns towards Turkey of all the foreign citizens who have reached Greece after crossing Turkish territory without submitting an asylum application. In this case as well, the agreement defines as individual a mechanism which, conversely, is described as a collective refoulement, enacted en masse against all the foreign citizens who have not submitted an application (or who are unlikely to manage to express their will to do so), solely on the basis of the fact that they have crossed the Turkish border. Hence, this is a mechanism which openly contravenes the prohibition of collective refoulements which is enshrined by 4 of the 4th Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
  1. Finally, the agreement which has just been reached represents a decision by the heads of states and of governments, and not an authentic EU agreement. Thus, it requires ratification by the Italian Parliament if it is to be deemed binding for Italy.

In view of its illegal aspects highlighted above, the signatory associations (*) demand:

I. That the authorities of the European Union immediately reassess the terms of the agreement and thereby exclude the possibility that Turkey may be considered a “first country of asylum” or a “safe third country” in accordance with arts. 35 and 38 of EU Directive 32/2013. Further, we ASK that, in any case, they respect the individual nature of the examination of an asylum application, allowing asylum seekers the concrete chance to have effective access to the procedure for recognition of international protection and to express any reason they may have to exercise a genuine right to legal defence.

II. That UNHCR should not participate in operations of mass evaluation of the inadmissibility of requests for international protection submitted in Greece by applicants who have arrived from Turkey. Such an assessment concerning inadmissibility represents a waiting room for collective refoulements and UNHCR cannot and must not legitimate such an operation.

III. That the Italian Parliament subject the decision by heads of states and of governments to ratification and not to authorise it because it contravenes European law, the European Union’s Charter of Fundamental Rights, article 10.3 of the Italian Constitution and, more generally, the fundamental principles of our legal civility and our democratic tradition.

22 March 2016

(*) Arci, Asgi, Federazione delle Chiese Evangeliche in Italia, Centro Astalli, FOCUS -Casa dei Diritti Sociali, Medici per i Diritti Umani, Consiglio Italiano per i rifugiati (CIR), SenzaConfine

 

 

 

Is the EU-Turkey refugee and migration deal a treaty?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (emphasis have been added by myself. EDC)

by Maarten den Heijer*, Thomas Spijkerboer**

In the European Parliament, questions were asked about the legal nature of the EU-Turkey Statement of 18 March, pursuant to which Greece has started to return asylum seekers to Turkey this week. Apparently, the EU’s procedure for negotiating and concluding treaties with third countries, laid down in in Art. 218 TFEU, has not been followed. The European Parliament wants to know whether the Council nonetheless considers the Statement to be a treaty, and, if not, whether Turkey has been informed about the non-binding nature. Importantly, for treaties “covering fields to which the ordinary legislative procedure applies” (asylum and immigration is such a field), the Council may only conclude a treaty with a third country after obtaining consent of the European Parliament (Art. 218(6)(a)(v) TFEU).

It seems that legal experts of the Commission and the Council have identified the issue. Shortly after the EU-Turkey Statement, the Commission proposed to amend theRelocation Decisions relating to Italy and Greece, in order to transfer some of the relocation commitments concerning asylum seekers arriving in Italy and Greece to Syrians in Turkey. The proposal appears to contradict the view that the EU-Turkey Statement of 18 March did not intend to produce legal effects. However, in consideration 4 of the proposal’s preamble, the presented rationale for the amendment is the Statement of the EU Heads of State or Government of 7 March 2016, in which the Members of the European Council (and not Turkey) agreed to work towards the Turkish proposal of resettling, “for every Syrian readmitted by Turkey from Greek islands, another Syrian from Turkey to the Member States, within the framework of the existing commitments”. The Commission would seem to be navigating around the EU-Turkey Statement as the ground for amending the 22 September Council Decision, possibly fearing that to do otherwise may lend support to the argument that the Statement is, in fact, a treaty.

It could be argued that the statement is not a treaty in the meaning of the Vienna Convention on the Law of Treaties or an international agreement in the meaning of Article 216 TFEU, precisely because it is merely a “statement”. This is the view of Steve Peers on this blog: “Since the agreement will take the form of a ‘statement’, in my view it will not as such be legally binding. Therefore there will be no procedure to approve it at either EU or national level, besides its endorsement by the summit meeting. Nor can it be legally challenged as such. However, the individual elements of it – new Greek, Turkish and EU laws (or their implementation), and the further implementation of the EU/Turkey readmission agreement – will have to be approved at the relevant level, or implemented in individual cases if they are already in force.” Karolína Babická appears to share this view: “The EU-Turkey statement as such is not legally binding. It is only a politically binding joint declaration. It is not challengeable as such but its implementation in practice will be possibly challenged in court.”

A further reason not to view the statement as a treaty is that it does not use terms as shall and should, which are normally used in international law to indicate obligations of result (shall) or obligations of effort (should). Instead, the more indistinct term ‘will’ is used. On the other hand, the Statement says that the EU and Turkey “have agreed on the following additional points”. Article 216 TFEU uses the term ‘agreement’ when referring to a treaty with third countries. If two parties agree to something, can the result be anything less than an “agreement”? Or is the meaning of the term agreement in Art. 216 TFEU different from its ordinary meaning?

If one would embrace the thought that the Statement of 18 March is not a treaty or agreement because it is designated as “Statement” and uses the term “will”, it would follow that the EU could neglect the constitutional safeguards of Art. 218 TFEU by changing the form or terminology of a particular text. It would be rather odd if the EP and CJEU could be sidetracked by such clever ruses. It would mean that the applicability of constitutional safeguards depends entirely on choices regarding the design instead of content made by Commission or Council.

That the form is not decisive is confirmed in the case law of the International Court of Justice. In Aegean Sea, the question was whether a joint communiqué, issued after a meeting between the Prime Ministers of Greece and Turkey, in which they agreed that a territorial dispute dividing the two countries should be resolved by the ICJ, constituted a treaty on the basis of which the ICJ had jurisdiction over the case. The Court held:

  1. The Brussels Communiqué of 31 May 1975 does not bear any signature or initials, and the Court was informed by counsel for Greece that the Prime Ministers issued it directly to the press during a press conference held at the conclusion of their meeting on that date. The Turkish Government, in the observations which it transmitted to the Court on 25 August 1976, considered it “evident that a joint communiqué does not amount to an agreement under international law”, adding that “If it were one, it would need to be ratified at least on the part of Turkey” (para. 15). The Greek Government, on the other hand, maintains that a joint communiqué may constitute such an agreement. To have this effect, it says, “It is necessary, and it is sufficient, for the communiqué to include-in addition to the customary forms, protestations of friendship, recital of major principles and declarations of intent-provisions of a treaty nature” (Memorial, para. 279). Counsel for Greece, moreover, referred to the issue of joint communiqués as “a modern ritual which has acquired full status in international practice”.
  1. On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement (cf. Arts. 2, 3 and 11 of the Vienna Convention on the Law of Treaties). Accordingly, whether the Brussels Communiqué of 31 May 1975 does or does not constitute such an agreement essentially depends on the nature of the act or transaction to which the Communiqué gives expression; and it does not settle the question simply to refer to the form – a communiqué – in which that act or transaction is embodied. On the contrary, in determining what was indeed the nature of the act or transaction embodied in the Brussels Communiqué, the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.

The ICJ found that the terms of the communiqué, using terms as “decision” and “obligation” were indicative of the parties intending to bind themselves. However, it transpired from the context, namely previous and later negotiations and diplomatic exchanges between the parties, that they had not yet undertaken an unconditional commitment to submit the continental shelf dispute to the Court.

In Qatar/Bahrain, the question was whether minutes of a meeting between two Foreign Ministers constituted a treaty. The ICJ held:

  1. The 1990 Minutes refer to the consultations between the two Foreign Ministers of Bahrain and Qatar, in the presence of the Foreign Minister of Saudi Arabia, and state what had been “agreed” between the Parties. In paragraph 1 the commitments previously entered into are reaffirmed (which includes, at the least, the agreement constituted by the exchanges of letters of December 1987). In paragraph 2, the Minutes provide for the good offices of the King of Saudi Arabia to continue until May 1991, and exclude the submission of the dispute to the Court prior thereto. The circumstances are addressed under which the dispute may subsequently be submitted to the Court. Qatar’s acceptance of the Bahraini formula is placed on record. The Minutes provide that the Saudi good offices are to continue while the case is pending before the Court, and go on to Say that, if a compromise agreement is reached during that time, the case is to be withdrawn. 25. Thus the 1990 Minutes include a reaffirmation of obligations previously entered into; they entrust King Fahd with the task of attempting to find a solution to the dispute during a period of six months; and, lastly, they address the circumstances under which the Court could be seised after May 1991. Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.

On that basis, the ICJ concluded the dispute to be within its jurisdiction. It follows that the question of whether a text is a treaty does not depend on form but on whether the parties intended to bind themselves. Whether there is such intent, depends on the terms used and the context in which the text was drawn up.

There is no reason to assume that this reasoning does not apply to the EU (which is not a party to the Vienna Convention on the Law of Treaties). In interpreting agreements concluded between the EU and third countries, the CJEU consistently observes thateven though the Vienna Convention does not bind either the Community or all its Member States, a series of provisions in that convention reflect the rules of customary international law which, as such, are binding upon the Community institutions and form part of the Community legal order (C-386/08, Brita, par 42). Presumably, the definition of a treaty in Art. 2(1)(a) VCLT belongs to customary international law. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which has not yet entered into force, uses the same definition and expands it to agreements concluded between international organizations or an international organization and a state.

Both the text and context of the EU-Turkey Statement support the view that it is a treaty. The parties “decided” to end the irregular migration from Turkey to the EU, and, to that purpose, they “agreed” on a number of action points. These include a commitment on the part of Turkey to accept returned migrants and a commitment on the part of the EU to accept for resettlement one Syrian for every one Syrian returned to Turkey. Further, the Statement reaffirms the joint action plan of November 2015 and mentions that it is already being implemented. Indeed, several implementation reports have been drawn up since November 2015, from which it is clear that the previous action plan has been activated (here and here). The EU-Turkey Statement now at issue is also being implemented. For example, the Greek parliament has passed a law allowing migrants arriving in the country to be returned to Turkey. On Monday 4 April 2016, Turkey accepted the first returned asylum seekers from Greece. All this indicates that the EU-Turkey Statement was meant to sort legal effects. This, in turn, indicates that both parties intended to bind themselves and that, therefore, it is a treaty.

One way to argue that the EU-Turkey statement is not an agreement in the sense of Article 216 TFEU would be to posit that it merely reconfirms already existing obligations from previous agreements (such as the EU-Turkey and Greece-Turkey Readmission Agreements). But textually as well as contextually, that argument is difficult to uphold. First, the substantive part of the agreement opens with the decision to return all irregular migrants to Turkey. Even though this sentence is followed by qualifications about compatibility with international and European law and even the explicit statement that this does not constitute collective expulsion, this is a highly novel (and legally very questionable) element, which can hardly be construed as a restatement of pre-existing obligations. The same is true for the EU commitments to resettle Syrians from Turkey and the additional funding for the Facility for Refugees in Turkey of 3 billion euro. Secondly, it is well known that the pre-existing readmission obligations (on the basis of the EU-Turkey and Greece-Turkey Readmission Agreements) were barely being applied. Therefore, the fact that Turkey agreed that, as of 20 March 2016, all irregular migrants were to be accepted is a substantively novel element. The idea that the EU-Turkey Statement merely repeats pre-existing legal obligations is not convincing.

Does the fact that the internal EU rules were possibly not followed mean that the Statement does not have legal effect? Probably not, as the Statement was agreed by the Members of the European Council, whom Turkey could have considered to have full powers to bind the EU. Article 46 VCLT provides that a party may not “invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Paragraph 2 of that provision provides that a violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. In Qatar/Bahrain, the ICJ did not consider it relevant that Qatar had not followed the procedures required by its own Constitution for the conclusion of treaties: “Nor is there anything in the material before the Court which would justify deducing from any disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did not intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question.” (par. 29).

We are therefore of the view that the EU-Turkey Statement is a treaty with legal effects, despite its name and despite internal EU rules not having been observed.

Why is the binding nature relevant?

That the Statement is a treaty implies not only that the EU and Turkey must uphold its terms; it also opens up a debate out is legal effects, including possible challenges against its legality in view of possible conflict with other rules and treaties, such as human rights. The fact that the Statement has already been concluded and is therefore no longer merely ‘envisaged’, means, however, that it is no longer possible to obtain an opinion of the CJEU “as to whether an agreement envisaged is compatible with the Treaties” (Art. 218(11) TFEU). It is still possible for one of the EU institutions or a Member State to bring an action for annulment of the act of the European Council to conclude the agreement with Turkey. Such an action was successfully brought in Commission v France (C-327/91), when the ECJ declared void the act whereby the Commission sought to conclude a competition agreement with the US, for reason of the Commission not being empowered to do so. However, this left the Agreement with the US itself intact, which is in conformity with the rule of Article 46 VCLT.

In view of the default position in international law that all treaties are equal, it further is difficult to argue that the Statement is void because of a possible conflict with human rights such as guaranteed in the ECHR or within the EU legal order, such as the right to asylum and the prohibitions of non-refoulement and collective expulsion. Only if the EU-Turkey Statement conflicts with jus cogens, is it to be considered void and may Member States not give effect to it (Art. 53 VCLT).

It is however possible for individuals (such as those being returned from Greece to Turkey) to challenge the implementation of the EU-Turkey agreement before national courts, arguing that it conflicts with fundamental rights. This in turn, may lead to a referral to the CJEU or a complaint before the ECtHR.

Is the agreement in violation of human rights? As has been argued by UNHCR (here and here) and many others (eghere), the agreement may well raise issues under (at least) the prohibition of refoulement (is Turkey safe and is there a risk of expulsion from Turkey?), the right to liberty (is systematic detention in Greece allowed?) and the prohibition of collective expulsion (are the returnees able to challenge their return on individual basis, including before a court?).

However, the Statement does not prescribe how, exactly, returns are to be effectuated and does not oblige Greece to systematically detain all asylum seekers who enter the country from Turkey. The Statement says that returns are to “take place in full accordance with EU and international law, thus excluding any kind of collective expulsion” and that “[a]ll migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement.” Further, migrants are to be “duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive.” It would seem therefore that the Statement itself does not directly violate international norms – it leaves the Member States sufficient freedom to implement the obligations in harmony with human rights. It follows that the Member States (Greece) must implement the agreement in harmony with human rights: “Where a number of apparently contradictory instruments are simultaneously applicable, they must be construed in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law.” (ECtHR Nada v Switzerland, par 170).

Conclusion

This brings us to two concluding observations. First, the devil of implementing the EU-Turkey deal is in the detail. Although its effectiveness in terms of stopping irregular migration by creating a deterrent effect may depend on returning all persons arriving in Greece as quickly as possible, fundamental rights may well halt returns in individual cases or result in lengthy procedures. It is indeed the question whether the appropriate human rights framework is in place in Greece (as is observed by UNHCR).

Second, the EP is right in asking critical questions about the Council not following the rules for concluding a treaty (also see earlier questions about the EU-Turkey deal of 29 November 2015). Although one could take the view that time did not allow to await an Opinion of the CJEU, the agreement was not concluded with Turkey overnight and there would at least seem to have been opportunity to ask consent from European Parliament (Art. 218(6) says that, in an “urgent situation”, EP and Council may agree on a time-limit for consent). That the institutional role of the EP has been neglected confirms the worrying trend that intergovernmental decision-making is taking over in the Union, and that national interests increasingly often prevail over the common values of the Union. This is bad for European democracy.

*Assistant professor of international law at the Universiteit van Amsterdam

**Professor of migration law at the Vrije Universiteit Amsterdam.

‘Wisdom and goodness to the vile seem vile’: Towards a third phase of the Common European Asylum System?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

(NB : emphasis are added)
by Steve Peers*

How to fix the EU’s troubled Common European Asylum Policy? The Commission has given its views today in the form of a discussion paper, with plans for further legislation. Will this fix the problems?

The first phase of the EU’s Common European Asylum Policy was set in place in the form of legislation adopted over 2003-05. The second phase is based on legislation adopted between 2011-13. (For more details, see volume 3 of the Commentary on EU Immigration and Asylum Law, which I co-authored). Today’s communication effectively outlines the plans for a third phase – without actually using that phrase. It examines many facets of EU asylum policy, and also mentions immigration policy. I’ll look at the announced plans in turn.

It’s worth making two general points at the outset. First, the UK is bound by the first-phase asylum laws, but not by the second-phase laws, other than the Dublin rules, Eurodac, and the law setting up the European Asylum Support Agency. It can opt out of any of the third-phase laws, but if it opts out of new laws amending those laws which it’s already bound by, the EU Council could decide to end the UK’s participation in those laws, on condition that operating a different system for the UK is effectively impossible. (Ireland is in broadly the same position).

While it’s sometimes asserted that ‘the EU court controls UK asylum laws’, the UK chose to opt into those first-phase laws, and used its veto to ensure that they were consistent with existing UK law. The only British cases on asylum which have ever reached the EU court have been about the Dublin system. And eventual access to citizenship of a Member State by asylum-seekers is far harder to obtain than some imagine it to be.

Secondly, any proposals the Commission makes will have to be approved by a qualified majority of participating Member States (in the EU Council) and by the European Parliament. Obviously there’s no guarantee of obtaining either in this controversial area.

The Dublin system

The discussion paper devotes the most space to the plans to reform the EU’s Dublin system, currently set out in the Dublin III Regulation. The principal problem with this Regulation is its allocation of responsibility in most cases to the first EU state which the asylum-seeker entered. With its declining economy and a sharp increase in the number of asylum-seekers, Greece cannot handle this burden. Although the EU has already tried to address this problem, in the form of two Decisions relocating some asylum-seekers away from Italy and Greece (discussed here), this has not worked well in the absence of Member State willingness to apply the system: barely 1,000 of the promised 160,000 have been relocated. In addition, the second Decision has been challenged by two cases in the EU Court (see discussion here of one of these cases).

How to address this? The Commission suggests two options: a sort of compensation system that would kick in once a Member State had particular burdens, or a quota system reallocating all asylum-seekers across the EU. The former option is based on the current relocation decisions; it should be noted that the Commission already proposed amendments to the Dublin rules along these lines last September, but there seems to be little interest in this proposal. There could be adjustments to the current Dublin rules (so that responsibility would no longer cease due to lapse of time), and the relocation rules (so that more categories of asylum-seekers were covered, not just those with a 75%+ acceptance rate).

The second option would allocate all asylum-seekers in principle between Member States based on standard rules, with exceptions where there are family links for instance. Where the EU has designated a ‘safe’ country, though, the first Member State of entry would remain responsible, for the sake of efficiency. Obviously the intention here is to keep in place the new rules which aim to return people from Greece to Turkey quickly.

Either way, the Commission suggests possibly repealing the EU’s temporary protection Directive, a law designed to deal with mass influxes that has never actually been invoked to deal with any of them. (On its possible use to deal with the current crisis, see discussion here).

Eurodac

The Commission plans changes to the Eurodac Regulation, which currently requires taking and storing fingerprints of all asylum-seekers and irregular border crossers, mainly for the purpose of checking at a later stage if they have already applied for asylum or where they originally entered (for the purpose of applying the Dublin rules). Currently the database allows police access as well as checking of irregular migrants (separately from the asylum procedure). The Commission plans to make proposals for changes to match the changes to the Dublin rules as well as to make much more use of the system for migration control. This will parallel the smart borders proposals for an entry-exit system (also made today).

Procedures Directive

The intention is to replace the current Directive with a Regulation, setting out ‘comprehensive harmonisation’ and a genuinely ‘common procedure’, which would ‘reduce incentives to move to and within the EU’. There would be new rules on ‘key aspects of the asylum procedure’ which are currently optional, as regards admissibility (ie whether the asylum-seeker had, or should have sought, protection in a non-EU country), ‘the use of border and accelerated procedures’, the treatment of repeat applications, ‘and the right to remain in the territory’ during applications and appeals. This would harmonise the length of the initial application process and the appeals (the second-phase Directive already has common rules on the former issue, although not for the fast-track version of it).

On this point the Commission is particularly keen to harmonise ‘safe country’ rules, both as regards ‘safe country of origin’ (ie is the asylum-seeker safe in her own country?) and ‘safe third country’ rules (should he have applied for asylum elsewhere?). On the first aspect, the Commission wants the EP and Council to agree the proposal it made back in September 2015 for a partly common list (designating the Western Balkans and Turkey as ‘safe’: discussed here). But neither institution has rushed to adopt the Commission proposal. The intention is for more harmonisation relating to countries where many applicants come from. But as I pointed out in my previous analysis this proposal wrongly includes Turkey – despite its dubious human rights record – for cynical political reasons, and does not provide enough safeguards for those who claim may be genuine.

The Commission also wants to harmonise the use of the ‘safe third’ country concept, and set up a process of defining a common list in future. This would avoid awkward problems where differences between Member States divert flows of asylum-seekers or cause a ‘protection lottery’ with divergent decisions for similar cases. But it remains to be seen how these standards are applied. Given that (as discussed here) the Commission and Member States support the absurd designation of  Turkey as a ‘safe third country’ – despite its non-application of the Geneva Convention to most asylum-seekers and evidence of refoulement, unsafe treatment, and low standards – the prospect of further moves in this direction are unappealing.

Qualification Directive

The Commission has been carrying out an evaluation of the qualification Directive (which defines the concept of ‘refugee’ and ‘subsidiary protection’ status, and the rights which each group receive, but there is no mention of that here. The main concerns of the paper are twofold: further harmonisation of the rights received, including ‘differentiation’ of the two types of status, as subsidiary protection is ‘inherently more temporary’. This contradicts the second-phase Directive, which accepted that subsidiary protection was often not temporary and harmonised the two forms of status in most respects: see discussion of the first EU court judgment here. Secondly, protection will be granted ‘only for so long as they need it’.

This means that the Directive will be replaced by a Regulation, and the intention seems to be harmonisation downwards: ‘to reduce both undue pull factors and secondary movements’. There will be a ‘regular check’ to see if protection can justifiably be taken away, although this is consistent with the Geneva Convention, which refers to ‘cessation’ of refugee status when circumstances change in the country of origin. There will be standard rules on identity documents (although note that the Geneva Convention has already provided for a standard travel document for refugees). In the long term, there could be mutual recognition of decisions and a transfer of protection (on the latter issue, see my earlier paper). This reflects the Treaty obligation to create a status ‘valid through the Union’ – although the Commission cannot bring itself to refer to this concept.

Reception conditions

The Commission plans ‘targeted’ amendments to the reception conditions Directive, which governs the day-to-day life of asylum-seekers outside the procedural aspects of their asylum claim.  There’s no detail of these plans but the intention is to ‘reduce incentives to move to Europe’ and within the EU, while still ensuring ‘humane’ treatment.

Reducing ‘secondary movements’

As evident already, a main purpose of the paper is to stop asylum-seekers moving within the EU – a reversal of the usual logic of EU legislation. The paper elaborates further on this, referring to ‘proportionate sanctions’ for those who leave the responsible Member State. This will entail an obligation to send back the asylum-seeker to the responsible State (does that mean the options to consider the application in the Dublin Reg will be dropped?), a fast-track examination procedure without an automatic right to remain during the appeal, detention or restriction of movement, removal of benefits (overturning the judgment in CIMADE and GISTI on this point), and reduced credibility of the claim, on the basis of ‘existing provisions in the acquis’ dealing with last-minute applications. There will also be punishments for those who move without authorisation after obtaining refugee or subsidiary protection status, including a ‘status review’, and the five-year waiting period to obtain long-term residence status will be restarted every time they do so. There will be a common document issued to asylum-seekers, making clear that they cannot leave the responsible Member State except for ‘serious humanitarian reasons’.

The European Asylum Support Office

Currently this EU agency has a modest role supporting national asylum decision-makers. The Commission wants to enlarge its role, allowing it to evaluate Member States’ compliance with asylum standards, and suggesting changes they should make in national practice. If there were no compliance, the Agency could provide ‘enhanced support’, and there would be ‘measures’ to prevent ‘any incentive for Member States or asylum seekers not to respect the rules’. In particular, the Commission would have the power to decide on ‘operational measures’ to be taken by a Member State where the Agency found a breach of asylum standards, as regards case-handling and reception support, linked to the parallel actions by the EU Border Guard. (Obviously the drafters of the paper are thinking of Greece here).

The Agency would also have the power to offer detailed guidance (as it does occasionally already) on the substance of asylum law, with a reporting mechanism and case-auditing. The Agency would also have a key role assessing whether third countries are ‘safe’, giving its opinions to the Commission on this point.  It will also operate the revised Dublin system, on the basis of criteria not leaving it any discretion (it’s not possible to give EU agencies discretionary policy-making powers, according to the EU court).

Finally, the agency would have a reserve of national experts it could call on, and extra financial resources, linked to the new money for humanitarian assistance within the EU. In the longer term, the Agency could be given the role of making first-instance decisions in place of national authorities, although the Commission realistically acknowledges that this prospect is on the far horizon. Indeed, that horizon is darkened by flocks of low-flying pigs.

Safe routes for entry

While much of the paper is focused on getting the Dublin system to work, this is balanced somewhat by discussion of safe routes for entry. First of all, this refers to existing ‘soft law’: a general recommendation on resettlement (which means the movement of people from non-EU countries to the EU), and the controversial 1:1 deal between Turkey and the EU, in effect ‘trading’ resettlement places for readmission of non-Turkish refugees from the EU (discussed here).

The Commission will build on this to propose (as promised before) EU legislation on resettlement, which will set out a ‘common approach to safe and legal arrival in the EU’ for people who need protection. There will be general rules, addressing admission and distribution, the status of resettled persons, financial support, and punishment for secondary movements between Member States.  These general rules will then be applied in individual cases as regards specific countries or groups of people. For specific countries, resettlement might only be offered on a quid pro quo basis, related to readmission: this echoes the controversial 1:1 deal with Turkey. It should be noted that readmission treaty negotiations are about to start between the EU and Jordan, which is another major host country for Syrian refugees.

The paper also talks about other safe legal routes for entry. Existing laws on admission of workers, students and researchers should be made accessible to refugees, although the Commission makes no commitment as regards EU legislation dealing with that issue. Private sponsorship should be encouraged by developing EU ‘best practice’. The Commission also promises to look at the issue of humanitarian permits. The most obvious way to do this in the near future is by including provisions in the EU visa code, which is currently being amended – as I have previously advocated and as supported by the European Parliament.

Legal migration

The Commission argues in general that the EU needs more legal migration for economic and demographic reasons. It suggests several means to this end. First of all, it plans to amend the EU’s Blue Card Directive on highly skilled workers, to encourage admission and make this law (which has had limited success) more attractive. (On the Directive in practice, and possible reforms, see my discussion here).

Secondly, the Commission might make a proposal for an EU law on admission of entrepreneurs. Next, it will consider a proposal on admission of service providers from non-EU countries. It will also review the effectiveness of other existing EU legislation on labour migration, in particular in order to prevent exploitation of workers. Finally, the paper includes some general words about cooperation with third countries.

Comments

Today’s paper seems entirely focused on the feasibility of the Dublin system, with all other aspects of asylum law subsumed to supporting that objective. Never in the course of human history has such a small tail wagged such a big dog. The implication (only hinted at once) is that Dublin must be saved so that Schengen can be saved. At no point does the Commission ask itself whether Dublin can be saved – or whether Schengen should be.

The problem is that it is hard to see how Dublin could be made to work, especially now that large increases in migration flows have made its malfunctioning a huge political issue. Allowing asylum-seekers to leave Greece and Italy in large numbers for other Member States is politically unacceptable for those other Member States, and has led to internal border checks being reimposed and the construction of new walls across the continent. Insisting that Greece – its economy impoverished by a combination of poor domestic and Eurozone governance – should bear the burden alone is untenable, and both the EU court and European Human Rights court ruled that Greek asylum standards were insufficient even before the twin economic and migration crises took full effect. The reasonable attempt to reduce the Greek burden a little by means of the relocation Decisions has been ineffective.

It’s hard to see how a slightly different version of the relocation system can be made to work either. And why would the Member States collaborate in a fully-fledged quota system, which they are likely to find even less attractive than the relocation rules?

All this explains the recent EU turn towards a ‘Plan B’: simply returning most or all those who reach Greece straight back to Turkey. Time will tell soon enough how workable this alternative is: it may also prove unfeasible if people switch to different routes, are not deterred from arriving, or successfully challenge the legality of the deal. Certainly, the Commission’s assumption is that enough people will still arrive to cause a political problem. So the most important elements of today’s paper are the twofold intention to punish secondary movements and to deter people from coming at all. (I won’t comment on the legal migration part, which simply reiterates existing plans).

It’s clearer how the Commission would like to punish secondary movements. The plans here resemble nothing more closely than a liberal parent who has finally lost his patience with his misbehaving children, resulting in a disproportionate authoritarian overreaction. Some of the plans are legally questionable: for instance, the CIMADE and GISTI judgment (ruling that asylum-seekers should retain benefits even if they are the responsibility of another Member State under the Dublin system) was based partly on the EU Charter. A legislative amendment overturning it might therefore be challenged as a breach of the Charter. So might new rules on detention (cf the recent CJEU judgment on challenges to existing detention rules).

Sensible parents use carrots as well as sticks. Why not offer asylum-seekers a modest cash bonus in kind if they accept allocation to a Member State under the relocation rules? Or let them have earlier access to work if they stick to the rules? Or simplified and quicker long-term residence status?

Returning to the analogy of the angry parent, the Commission has clearly found, like King Lear:
How sharper than a serpent’s tooth it is
To have a thankless child

Yet its response is, in its own way, as irrational as his.
As for new rules to deter people from coming to the EU in the first place, the Commission threatens much, but is silent on most of the details. One is reminded of Lear again:
I will do such things,—
What they are, yet I know not: but they shall be
The terrors of the earth

But Lear did not have to contemplate convincing the European Parliament, EU Member States or the courts of his unformed plans. So there are political, legal and practical limits to what the Commission can successfully propose. Member States will be reluctant, as ever, to curtail much of their significant remaining discretion over asylum procedures. The European Parliament will probably not rush to roll back the improved standards which it spent five years fighting for. Anyway, the underlying logic of the Commission’s argument is doubtful. If high asylum standards in the EU are such a pull factor, why are there so many more refugees in Turkey, Jordan, Lebanon, and East Africa? Won’t a sharper difference between refugee and subsidiary protection status encourage more appeals and secondary movements too?

The only semblance of balance in the Commission’s paper is its focus on safe passage. But it’s spent two years resisting safe passage in the context of the reform of the EU visa code, using the weak argument that humanitarian visas are not meant for short-term entry. But they fall within the scope of the rules on visas with ‘limited territorial validity’, where the normal rules on visas (such as the time limit) are expressly disapplied. The mention of humanitarian permits in this paper now looks like an excuse to defer dealing with the issue. Similarly, the EU could and should have developed a proper resettlement policy years ago. There’s still no mention of any numbers in this context: compare to the recent suggestions from the UNHCR. And expecting a quid pro quo for the humanitarian gesture of resettlement doesn’t get any less cynical with repetition.

Overall, this is a very disappointing paper from the Commission. There are certainly abuses of the asylum system, but EU legislation already has many possibilities to address them, as regards fast-tracking decisions and appeals, reduced benefits and detention. There’s little evidence here of a balanced, rational and coherent response to the crisis. In fact, this looks rather more like panic.

Of course EU asylum law does not develop in a political vacuum. Member States had a key role agreeing these laws, and the main role implementing them and driving the reaction to the crisis. No criticism of the ‘EU response to the crisis’ should ignore what is ultimately driving that response: the neo-nationalist political parties which are in government in several Member States and form the main opposition in several more. But is endless concessions to these parties really the right strategy? They will always be able to outflank the political mainstream when it comes to anger, fear and ignorance. It’s always better to stand and fight for what you really believe in than to pretend to agree with your opponents’ fundamentally different views.

*Disclaimer: I have been an independent consultant on the impact assessment relating to the reform of the Dublin system and the Blue Card Directive, and the evaluation of the qualification Directive. This does not restrict me from giving my own views on the Commission’s plans. 

Desperately searching for solidarity : the EU asylum saga continues

ORIGINAL PUBLISHED ON CDRE SITE (5 AVRIL 2016)

par Jean-Baptiste Farcy, Eimear O’Neill and David Watt,  (Odysseus Network, OMNIA)

The “refugee crisis” has disappeared from the headlines of European news, of course in part because of the Brussels terror attacks, but also apparently because the agreement between the EU and Turkey concluded on 18th March seems, at least temporarily, to have reached its real goal: preventing migrants, including asylum seekers, from leaving Turkey in the direction of Greece. However, this does not mean that the crisis is over, even if the EU and its Member States want to forget this difficult chapter in their history.

We are therefore returning to the topic of EU solidarity, presenting what we learned at the Odysseus Network conference on 26 and 27 February, including the legal nature of solidarity, the reasons solidarity has failed and our hope for a better implementation of solidarity in the future.

1. The meaning of solidarity in EU law

Searching for solidarity in EU asylum and border policies requires that solidarity, the research subject, be defined. In the popular sense, solidarity refers to the existing relationship between a category of persons or entities which is the source of moral obligations. However, less straightforward is the legal nature and scope of solidarity. Indeed, solidarity is an ambiguous term in the sense that it lacks the precision of ordinary legal norms. Yet, solidarity is embedded in Article 80 of theTreaty on the Functioning of the European Union (TFEU) which is undoubtedly a hard law norm. Here lies the complexity for lawyers: Article 80 is hardly sufficiently concrete to oblige states to do anything particular, but it is material enough to be more than a nullity.

In order to clarify the legal construction of solidarity, it may be helpful to trace back to the Roman law origin of the term. Solidarity, in the Roman law of obligation, was a concept referring to the legal relationship existing between a group of people responsible for a debt. This concept of solidarity still exists in civil law tradition but it is most likely that the drafters of Article 80 distanced themselves from it as the necessary ex ante contract is absent here.

Another reading of Article 80 can arguably be based on the French social tradition. Here solidarity is grounded in the real existence of a social community, and solidarity is what binds individuals together according to Emile Durkheim. While this conception of solidarity was likely to be more influential in the framing of primary EU law, a social organism hardly exists at a pan-European level as the 2004 French and Dutch referenda on the Treaty establishing a Constitution for Europe demonstrated. The use of the term “solidarity” in Article 80, as in other provisions of the TFEU, could then be described as a dubious appropriation of an historical experience unfamiliar to the European construction. As a result, the constitution of an EU-wide solidarity was arguably bound to fail from the beginning as Article 80 remained empty in positivist terms.

Does it mean that the effectiveness of Article 80 ought to be void? The legal character of solidarity, as embodied in this provision, should not be dismissed too quickly, be it for its formal hard law nature. Given the theory of “effet utile”, a provision of EU law ought to be interpreted so as to best guarantee its practical effect. In that sense, Article 80 could be read as entailing both an obligation of means (engaging with others) and of result (reaching a fair result). It follows that it can be invoked in Court. Indeed, on the basis of Article 80 an infringement procedure could be brought either by the Commission (based on Article 258 TFEU) or by a Member State (based on Article 259 TFEU) for another Member State’s  failure to take its fair share of responsibility in the implementation of the EU asylum policy, and a precedent for this does exist (for instance in the common agricultural policy, see Case 39/72 Commission v. Italy of 7 February 1973). However, a functional executive body effectively securing the enforcement of the Common European Asylum System (CEAS) is missing at the EU level which allows for normative dumping or limited normative solidarity, as we have recently witnessed across Europe.

Once we agree that Article 80 is not deprived of any legal effectiveness, the question is: solidarity with whom? According to the wording of Article 80, solidarity is only considered among Member States. As a result, the claim that solidarity has an external dimension in relation with third countries seems difficult to uphold, the extent of solidarity among Member States having yet to be defined, and Article 8 of the Treaty on European Union (TEU) hardly constitutes a sufficient legal basis either. More fundamentally, the fact that solidarity is only conceived in the context of inter-state relations is illustrative of the prevailing narrative. Indeed, the principle of solidarity and fair sharing of responsibility which ought to govern the CEAS is exclusively framed so as to meet the needs of the States, not the individuals. Therefore, a change of paradigm may be needed in order to move towards vertical solidarity, focusing on the effective protection of asylum seekers’ rights. The debate should then be reframed to concentrate on solidarity towards individuals in need of international protection rather than solidarity among Member States.

From that perspective, as long as relocation between Member States does not take into account, at least to some extent, the preferences of asylum seekers it cannot work as it remains synonymous with coercion for them. In a common area of  Freedom, Security and Justice without internal borders, refugees should arguably be allowed to move throughout the Union while maintaining their rights, in a similar fashion, for instance, to the European protection order of Directive 2011/99 of 13 December 2011. This would first require that the European asylum system be more common and systematic than it actually is.

The lack of normative solidarity accompanied by the lack of physical solidarity have arguably paved the way of the current asylum crisis that has also transformed into a governance crisis. Indeed, the asylum acquis was designed for “beautiful weather” but, as the storm approached, the inherent weaknesses of the CEAS have only become more obvious.

2. Lacking solidarity in the EU Asylum Policy 

Continue reading “Desperately searching for solidarity : the EU asylum saga continues”

TOWARDS A REFORM OF THE COMMON EUROPEAN ASYLUM SYSTEM AND ENHANCING LEGAL AVENUES TO EUROPE

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL (LEAKED  VERSION NOT-FINAL)

Migration has been and will continue to be one of the defining issues for Europe for the coming decades. Underlying trends in economic development, climate change, globalisation in transport and communications, war and instability in neighbouring regions, all mean that people will continue to seek to come here – for refuge, for a better life or following their close family. European countries will continue to stand steadfast in meeting their legal and moral commitment to those who need protection from war and persecution. And, as their own demographics evolve, they will need to take advantage of the opportunities and benefits of attracting foreign talents and skills.

In a continuing response to the ongoing migration and refugee crisis, on 10 February the Commission reported1 on the priority actions taken under the European Agenda on Migration to address the immediate challenge of restoring order on the Eastern Mediterranean/Western Balkans route. Following the European Council meetings of 18-19 February and 17-18 March and the meeting of the Heads of State or Government of 7 March3, the Commission will continue to provide support to Member States to implement all the agreed elements to stem disorderly irregular migration flows, protect our external borders, and safeguard the integrity of the Schengen area, including in particular the decisions on relocation, the hotspots and measures to ensure returns and readmissions, whilst ensuring effective access to asylum procedures for those in need of international protection.

Applying the current rules and improving the functioning of existing tools and mechanisms is key to regaining control of the present situation. But at the same time, as noted in the conclusions of the European Council of 18-19 February and those of 17-18 March4, it is time for progress to be made in reforming the EU’s existing framework so as to ensure a humane and efficient asylum policy. There are significant structural weaknesses and shortcomings in the design and implementation of European asylum and migration policy, which the crisis has exposed. The EU now needs to put in place the tools to better manage migration flows in the medium and long term, in line with the approach set out in the European Agenda on Migration.

The overall objective is to move from a system which by design or poor implementation places a disproportionate responsibility on certain Member States and encourages uncontrolled and irregular migratory flows to a fairer system which provides orderly and safe pathways to the EU for third country nationals in need of protection or who can contribute to the EU’s economic development. The EU needs a robust and effective system for sustainable migration management for the future that is fair for host societies and EU citizens as well as for third country nationals and countries of origin and transit. For it to work, this system must be comprehensive, and grounded on the principles of responsibility and solidarity.

Over the past months, significant steps have been taken to tackle irregular migration resolutely and manage the EU’s external borders more efficiently. It is essential that the proposed Regulation establishing a European Border and Coast Guard5 is adopted by June at the very latest so that it can start functioning during the summer. Implementation of the Action Plans against migrant smuggling6 and on return7 is also progressing, with all relevant Agencies and Member States having scaled up their work in this area.

But reducing irregular flows to and within Europe, and protecting our external borders, can only happen effectively if we look at the migratory phenomenon in a broad and comprehensive perspective: this means that we need at the same time to enhance legal and safe pathways to Europe, to improve the use and implementation of existing legal migration instruments, to strengthen the Common European Asylum System as well as to continue tackling the root causes of migration. If we want to improve our way of managing migration, we have to become better at attracting the skills and talents that we will need in the future, and at reaping the benefits of migration by ensuring effective integration and participation into the host society of all -refugees or legal migrants.

Together with the other measures following the European Agenda on Migration, this Communication sets out steps to be taken towards a more humane, fair and efficient European asylum policy, as well as a better managed legal migration policy.

  1. TOWARDS A ROBUST AND SUSTAINABLE COMMON ASYLUM POLICY

1.1 Inherent weaknesses of the Common European Asylum System in time of migratory crisis Continue reading “TOWARDS A REFORM OF THE COMMON EUROPEAN ASYLUM SYSTEM AND ENHANCING LEGAL AVENUES TO EUROPE”