Category: 9. Internal security -police cooperation

An updated version (2014) of the Handbook on European law relating to asylum, borders and immigration just published..

(EXCERPTS OF THE HANDBOOK INTRODUCTION)

A first version of the handbook on the European law relating to asylum, borders and immigration is co-authored by the European Agency for Fundamental Rights (FRA) and by by the European Court of Human Rights was published (in four languages) in June 2013. This second edition incorporates the changes to the EU asylum acquis published in the summer of 2013. Future updates of this handbook will become available on the FRA webpage at: http://fra.europa.eu/en/theme/asylum-migration-borders and on the European Court of Human Rights (ECtHR) webpage at: www.echr.coe.int under “Publications”.

This handbook provides an overview of the law applicable to asylum, border man-agement and immigration in relation to European Union (EU) law and the European Convention on Human Rights (ECHR). It looks at the situation of those foreigners whom the EU usually refers to as third-country nationals, although such distinction is not relevant for cited ECHR law.

The handbook does not cover the rights of EU citizens, or those of citizens of Iceland, Liechtenstein, Norway and Switzerland who, under EU law, can enter the territory of the EU freely and move freely within it. Reference to such categories of citizens will be made only where necessary in order to understand the situation of family members who are third-country nationals.

There are, under EU law, some 20 different categories of third-country nationals, each with different rights that vary according to the links they have with EU Member States or that result from their need for special protection.

For some, such as asylum seekers, EU law provides a comprehensive set of rules, whereas for others, such as students, it only regulates some aspects while leaving other rights to EU Member States’ discretion. In general, third-country nationals who are allowed to settle in the EU are typically granted more comprehensive rights than those who stay only temporarily. (…)

This handbook is designed to assist legal practitioners who are not specialised in the field of asylum, borders and immigration law; it is intended for lawyers, judges, prosecutors, border guards, immigration officials and others working with national authorities, as well as non-governmental organisations (NGOs) and other bodies that may be confronted with legal questions relating to these subjects.

It is a first point of reference on both EU and ECHR law related to these subject areas, and explains how each issue is regulated under EU law as well as under the ECHR, the European Social Charter (ESC) and other instruments of the Council of Europe. Each chapter first presents a single table of the applicable legal provisions under the two separate European legal systems. Then the relevant laws of these two European orders are presented one after the other as they may apply to each topic. This allows the reader to see where the two legal systems converge and where they differ.

Practitioners in non-EU states that are member states of the Council of Europe and thereby parties to the ECHR can access the information relevant to their own country  by going straight to the ECHR sections.

Practitioners in EU Member States will need to use both sections as those states are bound by both legal orders. For those who need more information on a particular issue, a list of references to more specialised material can be found in the ‘Further reading’ section of the handbook.

ECHR law is presented through short references to selected European Court of Human Rights (ECtHR) cases related to the handbook topic being covered. These have been chosen from the large number of ECtHR judgments and decisions on migration issues that exist.

EU law is found in legislative measures that have been adopted, in relevant provisions of the Treaties and in particular in the Charter of Fundamental Rights of the European Union, as interpreted in the case law of the Court of Justice of the European Union (CJEU, otherwise referred to, until 2009, as the European Court of Justice (ECJ)).

The case law described or cited in this handbook provides examples of an important body of both ECtHR and CJEU case law. The guidelines at the end of this handbook are intended to assist the reader in searching for case law online.

Not all EU Member States are bound by all the different pieces of EU legislation in the field of asylum, border management and immigration. Annex 1 on the ‘Applicability of EU regulations and directives cited in this handbook’ provides an overview of which states are bound by which provisions.

It also shows that Denmark, Ireland and the United Kingdom have most frequently opted out of the instruments listed in this handbook. Many EU instruments concerning borders, including the Schengen acquis – meaning all EU law adopted in this field – and certain other EU law instruments, also apply to some non-EU Member States, namely Iceland, Liechtenstein, Norway and/or Switzerland.

While all Council of Europe member states are party to the ECHR, not all of them have ratified or acceded to all of the ECHR Protocols or are State Party to the other Council of Europe conventions mentioned in this handbook. Annex 2 provides an overview of the applicability of selected Council of Europe instruments, including the relevant Protocols to the ECHR. Substantial differences also exist among the states which are party to the ESC. States joining the ESC system are allowed to decide whether to sign up to individual articles, although subject to certain minimum requirements. Annex 3 provides an overview of the acceptance of ESC provisions.

EU Anti-Money Laundering legal framework: the race has started again…

by Dalila DELORENZI (FREE Group Trainee)

After two years, the revision of the new EU Anti-Money Laundering (AML) framework has finally come to an end. The 20th May the European Parliament at its second reading has adopted the Fourth Directive AML  (Directive (EU) 2015/849) along with the new Regulation on information on the payer accompanying transfers of funds (Regulation (EU) 2015/847).

The revision was triggered by the necessity to adapt the legal framework to counter new threats of money laundering and terrorist financing and to reflect recent changes due to revised Financial Actiont Task Force (FATF)  Recommendations. In the following lines the new legal framework is presented by including some crucial measures which could represent a real step-up in the fight against money laundering, financing terrorism and tax evasion.

  1. Introduction of an European register of beneficial ownership

The creation of an European register of beneficial ownership has been one of the sticking point and the reason why the text has attracted much more political attention than the latest directives and the negotiations have taken much longer than it was expected.

1.1 Definition of beneficial ownership and the problems caused by “phantom firms”

A beneficial owner  is a natural person – a real, live human being and not another company or trust – who stands behind a company (or trust) as the ultimate owner and controller, directly or indirectly exercising substantial control over the company or receiving substantial economic benefits (such as receipt of income) from the company. If the true owner’s name is disguised, we deal with “anonymous companies”. In a majority of countries, keeping unknown the true owner’s name is perfectly legal and there is typically no requirement to disclose that the names listed are merely front-people.

Such anonymous companies can be created by using “nominees”, people who front the company in place of the true owner, or by incorporating one or more of the companies in a country which does not make details of the beneficial owners publicly available. Also called “phantom firms”, they exist only on paper, with no real employees or office.

Now, it’s certainly true that such entities can also have legitimate uses, but the untraceable company can also be a vehicle of choice for crimes such as money laundering, tax evaders and financier of terrorism.

1.2 The role of anonymous companies in money laundering

Although there are countless ways to launder money, money laundering can be broken down into three stages:

  • Placement: the initial entry of illicit money into the financial system. This might be done by breaking up large amounts of cash into less conspicuous smaller sums that are then deposited directly into a bank account.
  • Layering: the second step consists in the process of separating the funds from their source. This purpose is often followed by using anonymous shell companies: for instance, wiring money to account owned by anonymous shell company.
  • Integration: money re-enter the legitimate economy. For instance, by investing the funds into real estate and luxury assets.
  • That being said, it is clear that these secretive “shell” companies and trusts play a central role in laundering and channelling funds, concealing behind a veil of secrecy the identity of corrupt individuals and irresponsible businesses involved in activities, including tax evasion, terrorist financing, and the trafficking of drugs and people. More precisely, it is impossible for law enforcement officials go back to the real individuals ultimately responsible for the company’s actions and to track the origin of illicit funds.
  • 1.3 The importance of central registers

Continue reading “EU Anti-Money Laundering legal framework: the race has started again…”

EU-USA “UMBRELLA” AGREEMENT ON DATA PROTECTION: A …LEAKY UMBRELLA ?

Posted HERE on 18. September 2015

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On 8 September 2015, the European Commission announced the successful completion of the negotiations with the US on a framework agreement („Umbrella Agreement“), that shall apply to the co-operation between law enforcement authorities. „Once in force, this agreement will guarantee a high level of protection of all personal data when transferred between law enforcement authorities across the Atlantic. It will in particular guarantee that all EU citizens have the right to enforce their data protection rights in US courts“, said the competent EU Commissioner Věra Jourová. Prerequisite for the signing of the agreement will be, however, that the US Congress will have approved the necessary legislative changes („Judicial Redress Bill“).

Although the Commission initially did not want to publish the agreement, the text – however – has found it’s way into the Internet, enabling the assessment.

First the good news: The agreement contains, in fact, substantial concessions from the US side. It has to be highlighted, that the US shall even provide EU citizens with a right to seek judicial redress if they are of the opinion that their privacy rights have been violated in the context of processing information the respective US authorities have received from the EU. Over years, the US government insisted on granting EU citizens only administrative redress. For Europe such limited redress – ultimately depending on the goodwill of the US administration – would not have provided an adequate level of data protection.

Another positive aspect is that both sides have agreed to commit to the principles of proportionality, necessity and purpose limitation and that they have to determine the use and duration of storage of personal information in accordance with these principles. The concrete purposes of data processing and the retention periods have to be determined by the specific legal acts.

However, although the agreement improves the legal status of EU citizens whose data are transferred to the US, it would be a misperception that the agreement provides EU citizens with the same privacy rights as US persons. If this would have been intended, the rights provided by US Privacy Act of 1974 and other laws, currently limited to US citizens and residents, could have been extended to EU citizens. Instead, the agreement text contains complicated rules, which do not ensure equality in the result. EU citizens have first to seek administrative redress. They may call a US court only after administrative redress definitely was exhausted. In addition, administrative and judicial redress are limited to those privacy rights explicitly specified in the Agreement, as the right to access and correction of the personal information. The agreement will not grant EU citizens – unlike US citizens – further rights to challenge the lawfulness of the entire process of data processing before a US court.

Furthermore, it should be noted that the agreement shall apply only to judicial and police authorities, but not to authorities with the task to guarantee the „national security“. US intelligence agencies like the NSA and the CIA share personal data with law enforcement agencies, even if they have received these information from their European partners. The provisions of the umbrella agreement would not apply in these cases. Last but not least the agreement does not cover data US and European authorities collect on the basis of national laws, i.e. the Foreign Intelligence Surveillance Act (FISA) or similar European legislation.

Another limitation of the umbrella: While according to the European data protection law, all personal data will be protected regardless of the nationality of the persons concerned, the agreement should apply only to data on EU citizens which have been transferred to the US by European authorities or companies based on bilateral or multilateral agreements. So data relating to citizens of third countries remain unprotected.

Finally, the agreement (Art. 21) falls short, however, with regard to the data protection oversight. It lacks an explicit commitment of both parties to ensure an independent data protection supervision. While the European Union commits that the independent data protection authorities shall be competent to check the provisions, the agreement refers with respect to the United States on a variety of oversight institutions, some of them not independent, which are to exercise the supervision of data protection „cumulatively“.

Given these shortcomings, to me the exultation of the agreement seem premature. The European legal bodies which need to approve the ratification of the agreement, in particular the European Parliament and the parliaments of the Member States are called upon to thoroughly examine the agreement, in particular, its compatibility with the provisions of the EU Charter of Fundamental Rights. Depending on the results of such assessment it might be necessary to renegotiating and caulking the umbrella.

 

Enhancing the common European asylum system and alternatives to Dublin

SUMMARY OF AN EXTERNAL STUDY REQUESTED BY THE EP LIBE COMMITTEE (THE FULL VERSION IS ACCESSIBLE HERE – manuscript completed in July 2015)

Authors : Prof. Elspeth Guild, Dr. Cathryn Costello, Ms. Madeline Garlick, Dr. Violeta Moreno-Lax, with the participation of Dr. Sergio Carrera. (

Introduction: Key question

Throughout the evolution of the Common European Asylum System (CEAS), the Dublin system of responsibility allocation for the examination of asylum claims has been, it is claimed, its ‘cornerstone’. This is despite it being neither fit for its intended purpose nor designed as a solidarity measure, as multiple reports have demonstrated, including the 2014 study on New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection (the ‘2014 Study’). Judicial decisions have, in turn, highlighted that the Dublin system violates fundamental rights in several respects. Yet, the tendency is towards its ever more coercive application, regardless of the administrative, financial, and human costs.

Against this background, this study urges a fundamental rethink. The study is premised on the ethical and practical importance of avoiding excessive coercion of asylum seekers and refugees. Any reforms should bear in mind the significance of avoiding coercion, in order to foster trust between asylum seekers and refugees and the authorities, and to ensure that fundamental rights are respected, protected and promoted. Avoiding coercion is also important to deliver the workability of asylum systems and any responsibility allocation mechanisms that are developed to replace or complement the Dublin system.

The text proceeds in three sections. Section 1 demonstrates that refugees’ dangerous journeys to the EU are necessitated by EU visa policies and carriers’ sanctions. Alternatives means of ensuring safe and lawful access to the EU are set out. These are urgently required if we wish to avoid those seeking refuge dying on their way to Europe, whether in transit by sea or by land. Safe and lawful access would greatly reduce the demand for the services of smugglers, and thereby enhance trust between asylum-seekers, refugees and the authorities in EU Member States. It would also contribute to more planned and orderly arrivals in the territory of the Member States. Section 2 explores mutual recognition of positive asylum decisions, which would alleviate some of Dublin’s shortcomings and help realise the ‘common status valid throughout the Union’ the EU is obliged to adopt as part of the CEAS under the EU Treaties. Section 3 discusses alternatives to the Dublin system, thereby contributing to the wider debate on its replacement.  Continue reading “Enhancing the common European asylum system and alternatives to Dublin”

Passenger Name Records, data mining & data protection: the need for strong safeguards

EXCERPTS FROM EXPERTS’ OPINION SUBMITTED TO THE COUNCIL OF EUROPE (PUBLISHED ON THE STATEWATCH SITE)

by Douwe KORFF and Marie GEORGES (FREE-Group Members)

Introduction

Much has been said and written about Passenger Name Records (PNR) in the last decade and a half. When we were asked to write a short report for the Consultative Committee about PNR, “in the wider contexts”, we therefore thought we could confine ourselves to a relatively straightforward overview of the literature and arguments.

However, the task turned out to be more complex than anticipated. In particular, the context has changed as a result of the Snowden revelations. Much of what was said and written about PNR before his exposés had looked at the issues narrowly, as only related to the “identification” of “known or [clearly ‘identified’] suspected terrorists” (and perhaps other major international criminals). However, the most recent details of what US and European authorities are doing, or plan to do, with PNR data show that they are part of the global surveillance operations we now know about.

More specifically, it became clear to us that there is a (partly deliberate?) semantic confusion about this “identification”; that the whole surveillance schemes are not only to do with finding previously-identified individuals, but also (and perhaps even mainly) with “mining” the vast amounts of disparate data to create “profiles” that are used to single out from the vast data stores people “identified” as statistically more likely to be (or even to become?) a terrorist (or other serious criminal), or to be “involved” in some way in terrorism or major crime. That is a different kind of “identification” from the previous one, as we discuss in this report.

We show this relatively recent (although predicted) development with reference to the most recent developments in the USA, which we believe provide the model for what is being planned (or perhaps already begun to be implemented) also in Europe. In the USA, PNR data are now expressly permitted to be added to and combined with other data, to create the kinds of profiles just mentioned – and our analysis of Article 4 of the proposed EU PNR Directive shows that, on a close reading, exactly the same will be allowed in the EU if the proposal is adopted.

Snowden has revealed much. But it is clear that his knowledge about what the “intelligence” agencies of the USA and the UK (and their allies) are really up to was and is still limited. He clearly had an astonishing amount of access to the data collection side of their operations, especially in relation to Internet and e-communications data (much more than any sensible secret service should ever have allowed a relatively junior contractor, although we must all be grateful for that “error”). However, it would appear that he had and has very little knowledge of what was and is being done with the vast data collections he exposed.

Yet it is obvious (indeed, even from the information about PNR use that we describe) that these are used not only to “identify” known terrorists or people identified as suspects in the traditional sense, but that these data mountains are also being “mined” to label people as “suspected terrorist” on the basis of profiles and algorithms. We believe that that in fact is the more insidious aspect of the operations.

This is why this report has become much longer than we had planned, and why it focusses on this wider issue rather than on the narrower concerns about PNR data expressed in most previous reports and studies.

The report is structured as follows. After preliminary remarks about the main topic of the report, PNR data (and related data) (further specified in the Attachment), Part I discusses the wider contexts within which we have analyzed the use of PNR data. We look at both the widest context: the change, over the last fifteen years or so, from reactive to “proactive” and “preventive” law enforcement, and the blurring of the lines between law enforcement and “national security” activities (and between the agencies involved), in particular in relation to terrorism (section I.i); and at the historical (immediately post-“9/11”) and more recent developments relating to the use of PNR data in data mining/profiling operations the USA, in the “CAPPS” and (now) the “Secure Flight” programmes (section I.ii).

In section I.iii, we discuss the limitations and dangers inherent in such data mining and “profiling”.

Only then do we turn to PNR and Europe by describing, in Part II. both the links between the EU and the US systems (section II.1), and then the question of “strategic surveillance” in Europe (II.ii).

In Part III, we discuss the law, i.e., the general ECHR standards (I); the ECHR standards applied to surveillance in practice (II, with a chart with an overview of the ECtHR considerations); other summaries of the law by the Venice Commission and the FRA (III); and further relevant case-law (IV).

In Part IV, we first apply the standards to EU-third country PNR agreements (IV.i), with reference to the by-passing of the existing agreements by the USA (IV.ii) and to the spreading of demands for PNR to other countries (IV.iii). We then look at the human rights and data protection-legal issues raised by the proposal for an EU PNR scheme. We conclude that part with a summary of the four core issues identified: purpose-specification and –limitation; the problem with remedies; “respect for human identity”; and the question of whether the processing we identify as our main concern – “dynamic”-algorithm-based data mining and profiling – actually works.

Part V contains a Summary of our findings; our Conclusions (with our overall conclusions set out in a box on p. 109); and tentative, draft Recommendations. (…)

Conclusions Continue reading “Passenger Name Records, data mining & data protection: the need for strong safeguards”

Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020

ORIGINAL PUBLISHED HERE ON  23 JUIN 2015

par Pierre Berthelet, CDRE

Le Professeur Panayotis Soldatos comparait il y a peu l’Union européenne à Prométhée enchaîné par les Etats membres. Ces réflexions mettant en évidence une construction européenne dépendante des États, « dont les élites politiques, écrit-il, se refusent à admettre la réalité de l’obsolescence de la souveraineté nationale », s’illustrent parfaitement avec l’adoption par le Conseil de la stratégie européenne de sécurité intérieure pour la période 2015-2020.

À première vue, la sécurité intérieure vient de franchir un pas supplémentaire dans l’intégration avec l’approbation par le Conseil le 16 juin 2015, de conclusions renouvelant et modernisant pour cinq années à venir la stratégie 2010-2014. Pour autant, il semble bien que les chaînes soient pesantes, car les États conservent la main, et de main ferme pourrait-on dire, le processus d’intégration dans ce domaine.

Ces conclusions entraînent une série de réflexions critiques quant aux conséquences institutionnelles et quant à la manière dont les États décident d’œuvrer dans la construction européenne en matière de sécurité intérieure.

Elles suscitent d’emblée des interrogations concernant l’inclusion du Parlement européen dans le processus décisionnel lié au déroulement du cycle, ainsi que sur la préservation accrue des droits fondamentaux (1).
Continue reading “Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020”

STATEWATCH : the migrant crisis in the Mediterranean

Published on Statewatch 

Key Analysis and Documents

1.   Statewatch Special Report: “War” to be declared on migrants: “Structured border zones”
2.   EU: Letter from Commissioner Avramopolous to Ministers with Annex
3.   EU: MED-CRISIS: Official statement on the launch of EUNAVFOR
4.   Statewatch Briefing: Coercive measures or expulsion: Fingerprinting migrants
5.   Statewatch Analysis: The EU’s Planned War on Smugglers
6.   Council: Secret plan for a war on smugglers – document (PSC)
7.   Council Press Release: 18 May 2015
8.   European Commission: A  European Agenda on Migration
9.   Mission in the Med: financial support under the ATHENA Decision
10. European External Action Service: Libya, a Political Framework for a Crisis Approach (EUBAM)
11. Ongoing EU external operations (European External Action service)

NEWS

1.   EU: German-Italian-French non-paper on EU migration policy
2.   EU: European External Action Service (EEAS): European Union Naval Force
3.   EU: European External Action Service (EEAS): EU prepares to go to “war” in the Med
4.   EU: No agreement on sharing “relocation” of migrants
5.   EU: Council of the European Union: LIMITE documents: Migration – Policy debate
6 .  Liquid Traces – The Left-to-Die Boat Case (Vimeo, link)
7.   EU:  Recommendation of XXX on a European resettlement scheme
8.   EU:  The new EU Migration Agenda takes shape: analysis of the first new measures
9.   EU:   MED CRISIS: Press coverage
10. EU: ACP: Destroying boats is not a solution to migration
11. EU: European Parliament: Migration: MEPs debate EU response.”

Key Analysis and Documents

1. Statewatch Special Report: “War” to be declared on migrants who – fleeing from war, persecution and poverty – have arrived in the EU are to be contained and detained in “Structured border zones” to be set up to “ ensure the swift identification, registration and fingerprinting of migrants (“hotspots”)”

This is set out in the Draft Conclusions of the European Council [the EU Heads of State] meeting on 25 and 26 June 2015: Draft conclusions (pdf)

Section 5.c says: “the setting up of structured border zones and facilities in the frontline Member States, with the active support of Member States’ experts and of EASO, Frontex and Europol to ensure the swift identification, registration and fingerprinting of migrants (“hotspots”);” [emphasis added]
Will the “swift fingerprinting” of those described here as “illegal” migrants involve coercive measures? See: Statewatch Briefing on a “Working Document” issued for discussion by the Commission: Coercive measures or expulsion: Fingerprinting migrants (pdf):

“If the data-subject still refuses to cooperate it is suggested that officials trained in the “proportionate use of coercion” may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject..”

Statewatch Director, Tony Bunyan comments: “Where is the EU going? Migrants, including pregnant women and minors, who have fled from war, persecution and poverty are to be forcibly finger-printed or held in detention until they acquiesce or are expelled and banned from re-entry.”

Steve Peers, Professor of Law, University of Essex comments on the Draft Conclusions: “It is remarkable that Member States (if this draft is accepted) are indeed willing to accept the relocation of 40,000 asylum-seekers from Italy and Greece, and 20,000 resettled refugees.
It is also notable that all Member States will participate in the latter decision – with even the UK agreeing recently to resettle a few hundred more Syrians. This is a very modest amount of the numbers needing protection however.
The European Asylum Support Office does not seem to have the powers to participate in fingerprinting asylum-seekers, and the reference to ‘bringing together’ rules on fast-tracking asylum applications is very vague. Is the intention to lower standards, and if so, how exactly? Any moves to negotiate more readmission agreements and to expel more people who supposedly have no need for protection will have to comply fully with EU, ECHR and all national and international human rights standards.
Equally if Frontex is to gain more powers over expulsion it must be made more fully accountable, including as regards individual complaints against it.”

See: UN says one million refugees should be no problem for EU (euractiv, link): “The UN rights chief yesterday (15 June) called for the European Union to take bolder steps to address its swelling migrant crisis, insisting the bloc could easily take in one million refugees”

2.  EU: Jailing migrant families together with convicted criminals: A desperate EU policy to deter irregular migration by Steve Peers, Professor of Law, University of Essex:
“Taken together, the loss of these protections will mean that irregular migrants, including irregular migrant families, will not only be detained in ordinary prisons, but mixed in with the ordinary prison population of convicted criminals and those awaiting trial for serious crimes. Moreover, their capacity to challenge their detention by means of judiicial review will be severely curtailed.
Coupled with the recent Commission paper offering guidelines for using force, including against pregnant women, on migrants who refuse to be fingerprinted, this represents a significant turn in EU policy – turning toward direct and indirect threats of physical violence to control their behaviour and induce them to leave.
To say the least, this is hard to square with the EU’s frequent professions of support for the human rights and decent treatment of migrants.”
See: Letter from Commissioner Avramopolous to Ministers with Annex (Statewatch version, 75KB) orlink to Council’s 10.5 MB version (pdf)

3. EU: MED-CRISIS: Official statement on the launch of EUNAVFOR: Council launches EU naval operation to disrupt human smugglers and traffickers in the Mediterranean (Council of the European Union, pdf):
“The first phase focuses on surveillance and assessment of human smuggling and trafficking networks in the Southern Central Mediterranean…. The Council will assess when to move beyond this first step, taking into account a UN mandate and the consent of the coastal states concerned..” [emphasis added]
It is by no means certain that a UN mandate will be forthcoming as this requires the consent of the affected states, in this case Libya. The EU’s own mission in Libya, EUBAM, withdrew from from the country last autumn, has been slimmed down and is now based in Tunisia because of the highly unstable security situation in Libya where two separate governments are vying for power in addition to a number of warring groups:.See:

EU and political situation in Libya: Interim Strategic Review of EUBAM Libya (LIMITE doc no: 7886-15, 13 April 2015, pdf): “a number of additional considerations have arisen as a result of the mission’s relocation to Tunis. The mission’s legal status in Tunis is still unclear, with the Tunisian authorities unofficially indicating that they would prefer not to explore the issue….its presence in Tunis will make it difficult for mission staff to assess conditions and operate in Libya“ [emphasis added]

4. Statewatch Briefing: Coercive measures or expulsion: Fingerprinting migrants (pdf):
New guidelines released by the European Commission allow Member States to use physical and mental coercive measures to take fingerprints of migrants and asylum seekers entering Europe, including minors and pregnant women. If they refuse, they face detention, expulsion and a potential five year EU-wide ban.
“If the data-subject still refuses to cooperate it is suggested that officials trained in the proportionate use of coercion may apply the minimum level of coercion required, while ensuring respect of the dignity and physical integrity of the data-subject..” [emphasis added]

5. Statewatch Analysis: The EUs Planned War on Smugglers (pdf) by Steve Peers, Professor of Law, University of Essex:
“it is clear from the documents discussed in the EUs Political and Security Committee last week that (unless plans have changed radically in the meantime) the High Representative is being economical with the truth. The EU action clearly contemplates action by ground forces. Moreover, it anticipates the possible loss of life not only of smugglers but also of Member States forces and refugees. In effect, the EU is planning to declare war on migrant smugglers without thinking through the consequences.”

6. Secret EU plan for a war on smugglers – document (PSC, pdf)

7. Press Release: Council establishes EU naval operation to disrupt human smugglers in the Mediterranean (pdf) and Comparison between Draft and Final Statements (pdf)

8. European Commission: A European Agenda on Migration (COM 240-15, pdf)

9. Mission in the Med could call for financial support under the: ATHENA Council Decision (pdf)

10. European External Action Service: Libya, a Political Framework for a Crisis Approach (LIMITE doc no: 13829-14, pdf)

11. Ongoing EU external operations (European External Action service, pdf)

NEWS

1. EU: German-Italian-French non-paper on EU migration policy (pdf) and Letter (pdf). Includes:
– Dialogue with source/transit countries: At upcoming EU-Africa summit in Malta “we should also discuss the relationship between migration and mobility and their impact on development, the promotion of fair trade and the strengthening of security cooperation as well as return and readmission issues”
– Proposal for EU CSDP civilian mission in Niger: EUCAP Sahel Niger to become permanent and “work even more closely with Nigerien authorities in the fight against smuggling and trafficking in human beings”
– Adequate funding for continued “engagement” with countries in the Horn of Africa, to deal with migration from/through those countries (in the recent ISF-Police work programme some money was put aside for this, see: Annual Work Programme for 2015 for support to Union Actions under the Internal Security Fund – Police cooperation and crime prevention (pdf)
– “We must increase the effectiveness of return and readmission programmes”
And: “Our migration policy goals should relate to other relevant horizontal foreign policies such as counter-terrorism, maritime security, water and climate policy and a reviewed European Neighbourhood Policy which also considers the neighbours of our neighbours.”

2. EU: MED-CRISIS: European External Action Service (EEAS): European Union Naval Force – Mediterranean (Press statement, pdf): Contributing States: Currently 14 Member States (BE, DE, EL, ES, FI, FR, HU, IT, LT, LU, NL, SE, SI, UK):
“The Council shall assess whether the conditions for transition beyond the first phase have been met, taking into account any applicable UN Security Council Resolution and consent by the Coastal States concerned.”
Consent is needed for the EU to act within the territorial waters of another state (eg: Libya) and see: Comments below on this position.

See also: EU foreign ministers to agree on Mediterranean intelligence operations (euractiv, link): “EU foreign affairs ministers will today (22 June) agree on an intelligence gathering operation, the first phase of the bloc’s response to the burgeoning migration crisis in the Mediterranean, but military action against people smugglers will depend on the support of Libya’s National Unity Government and the United Nations.” and Naval bid to tackle migrants in Med (Yahoo News, link): “With GCHQ – Britain’s listening post in Cheltenham – said to be tracking the activities of smuggling gangs moving people to the Libyan coast, Defence Secretary Michael Fallon indicated that he wanted to see more intelligence-sharing.” also:Exclusive: France backs Italy-UK Plan for Sicily Intel Cell (Migrant Report, link)

See: EU agrees to launch military operation against people smugglers (FT, link): “EU officials have warned that casualties were possible after deciding to launch military action against people smugglers in the Mediterranean. Ministers of the 28-country bloc meeting in Luxembourg on Monday gave the go-ahead for a c controversial intelligence gathering operation, which will precede full-blown military action this year … “The use of firepower will be done in such a way that we do all we can to prevent any casualties to anyone,” said one EU official. “There is a difference between smugglers and migrants. If they are migrants, we will be even more cautious.” Asked whether the military operation created the risk of collateral casualties, the official replied: “Of course it would.”” and: EU navies take up position in Mediterranean(euobserver, link)
3. EU: European External Action Service (EEAS): EU prepares to go to “war” in the Med: Proposal of the High Representative of the Union for Foreign Affairs and Security Policy to the Council for a Council Decision launching the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (pdf);
“The Operation Plan and the Rules of Engagement concerning the European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) are approved…. EUNAVFOR MED shall be launched on xxx 2015.”
See: EU naval mission for Med gets green light (Politico, link)
See also: Draft Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR MED) (LIMITE doc no: 8921-15, pdf) and Proposal for for a Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR Med) (LIMITE doc no: 8731-15, pdf): This contains details on:
Mission: “The Union shall conduct a military crisis management operation contributing to the disruption of the business model of human smuggling networks… systematic efforts to dispose of vessels and assets before they are used by smugglers”
Mandate: includes: “boarding search, seize and diversion of smuggling ships”
“The Operation Headquarters of EUNAVFOR MED shall be located in Rome, Italy”
“PSC shall exercise the political control and strategic direction of EUNAVFOR MED” [Political Security Committee]
“The EUMC shall monitor the proper execution of EUNAVFOR MED conducted under the responsibility of the EU Operation Commander” [EU Military Committee]
“The Council hereby authorises the PSC to invite third States to offer contributions”

4. EU: No agreement on sharing “relocation” of migrants: Council of the European Union: Justice and Home Affairs Council, 15-16 June 2015, Luxembourg: Final press release (pdf):
“As regards the concrete proposal on relocation, Ministers stressed that on the basis of the principle of solidarity they are all ready to make an effort to help member states under a particular migratory pressure. Several delegations stressed the necessity to strike the right balance between solidarity and responsibility.. Ministers invited the Council’s preparatory bodies to continue these discussions with the aim of achieving full implementation as soon as possible.”
See also; Civil Liberties Committee Chair, Claude Moraes, regrets EU minister’s failure to reach agreement on the migration package (EP Press release, pdf)

5. EU: Council of the European Union: LIMITE documents: Migration – Policy debate & European Council draft Conclusions
– European Agenda on Migration – Policy debate (LIMITE doc no: 9825-15, 11 June 2015, pdf) Many areas of disagreement between Member States on how to respond to the crisis in the Mediterranean:
“”Immediate Action” but also builds on four pillars as a basis for a comprehensive European migration policy: – Reducing incentives for irregular migration; – Border management; – Strong common asylum policy; – New policy on legal migration….
There is wide consensus with regard to the need to further cooperate with third countries since both the root causes of and solutions to migration related issues can be sought there. In order to ensure a genuinely comprehensive approach, some Member States have suggested to strengthen the links with the Internal Security Strategy and measures proposed therein….
Member States’ views differ on the proposed concept of relocation in order to respond to high volumes of arrivals that includes temporary scheme for persons in need of international national protection.. The total number of persons to be relocated, the available funding, and the capacity of the Member States’ structures to deal with relocation were equally questioned…” [emphasis added]
and: Update: COR -1 (LIMITE doc no: 9825-15, 12 June 2015, pdf)

– European Council (25 and 26 June 2015) – Draft guidelines for the conclusions (LIMITE doc no: 8392-15, 10 June 2015, pdf): Covers Mediterranean crisis response, security challenges, economic issues, the Digital Agenda and the UK:
Position on “1. “Relocation / resettlement p.m.” is blank as is Position: “IV. UK p.m” and “Return policy:Mobilise all tools to promote readmission of unauthorised economic migrants to countries of origin and transit….” [emphasis added]
read the restraint manual.

6. Liquid Traces – The Left-to-Die Boat Case Vimeo, link): “Liquid Traces offers a synthetic reconstruction of the events concerning what is known as the “left-to-die boat” case, in which 72 passengers who left the Libyan coast heading in the direction of the island of Lampedusa on board a small rubber boat were left to drift for 14 days in NATO’s maritime surveillance area, despite several distress signals relaying their location, as well as repeated interactions, including at least one military helicopter visit and an encounter with a military ship. As a result, only 9 people survived.” See also: Left ot die – report (link)

7. EU: MED-CRISIS: Germany and France urge Commission to revise immigration plan (euractiv, link): “Germany and France on Monday (1 June) urged the EU to find a fairer way to admit and distribute asylum seekers, as their leaders met the European Commission chief in Berlin….. France and Germany said in the joint statement that they currently were among five member states, along with Sweden, Italy and Hungary, that “are in charge of 75% of the asylum seekers”. “This situation is not fair and no longer sustainable,” they said.”
See European Commission: Recommendation of XXX on a European resettlement scheme (COM 286-15, pdf) and Annexes (pdf)

8. EU: MED-CRISIS: European Commission: Recommendation of XXX on a European resettlement scheme (COM 286-15, pdf): It was going to be 5,000 people, then 40,000 now:
“The Commission recommends that Member State resettle 20 000 people in need of international protection”
and Annexes (pdf)

8.  The new EU Migration Agenda takes shape: analysis of the first new measures (EU Law Analysis, link)

9. EU: MED CRISIS: Press coverage:
EU’s refugee plans need a reality check: The EU this week outlined plans to resettle and relocate refugees, but one expert taking a closer look at the proposals argues they put the rights of migrants and asylum seekers at risk. (The Local, link) Good critique of EU plans

EU border chief wants protection from armed smugglers: The EU’s border agency Frontex wants military protection from armed migrant smugglers as it expands operations in the Mediterranean and closer to the Libyan coast (euobserver, link)

British tourists complain that impoverished boat migrants are making holidays ‘awkward’ in Kos(Independent, link)

Mediterranean migrant crisis: Hundreds rescued off Sicily (BBC News, link) and Migration: Are more people on the move than ever before? (BBC, link) with map

Italy Hands Smuggler Unprecedented Life Sentence as Europe Prepares for Migrant Deluge (BB, link)

Tunisian – and Top E.U. Generals – Fear Mission Creep Madness in Libya (The Daily Beast, link): “A newly revealed classified document and a history of grave misjudgments warn against the dangers of the new EU plan to stop migrants…. Europe’s defense chiefs are warning their political superiors that the planned military mission to stop migrant-smuggling boats crossing the Mediterranean can lead to land operations in Libya and possible clashes with the Islamic State’s affiliate in that failing North African state, a turn of events bound to threaten neighboring Tunisia’s fragile equilibrium still further.”

Tunisian PM Speaks Against EU Military Action to Stop Refugee Smugglers (Sputnik News, link):
“Tunisia opposes any military effort by the EU to tackle refugee smuggling across the Mediterranean Sea, Prime Minister Habib Essid said Thursday. “Tunisia’s position was always clear… We are originally against all military action, both to regulate political conflict and to regulate the problem with illegal smugglers,”  Essid said in the European Parliament.”

Migrants en Méditerranée : la Tunisie contre toute intervention militaire [Migrants in the Mediterranean: Tunisia against all military intervention] (rtbf.be, link):
“Habib Essid said that his country is “against any military intervention to solve this problem. This problem must be resolved upstream and downstream. These people take risks, sell everything they have around them to come to Europe, for more freedom, for better economic opportunities for work. I know the problems this poses for all countries of the European Union, but the solution is to look other than make occasional military interventions.”
The European Parliament press release does not mention these comments: Tunisia’s Prime Minister Habib Essid on security and migration challenges (pdf)

Before the Boat: Understanding the Migrant Journey (MPI, link): “Deep, sophisticated insight into the decision-making process of those who undertake these journeys is necessary; without this information and a wider understanding of the political economy of migrant smuggling, policymakers essentially are making decisions in the dark.”

10. EU: MED-CRISIS: ACP: Destroying boats is not a solution to migration (euractiv, link): “The Secretary-General of the ACP (African, Caribbean and Pacific) group of states said yesterday (21 May) that his organisation was against the EU’s idea of destroying the boats of human traffickers, who make fortunes by luring prospective immigrants into risky journeys across the Mediterranean.”

And see: Twisting the ‘lessons of history’ to authorise unjustifiable violence: the Mediterranean crisis (Open Democracy, link): “More than 300 slavery and migration scholars respond to those advocating for military force against migrants attempting to cross the Mediterranean. This is no slave trade. Where is the moral justification for actions that cost lives?”

Also: “The War on migrants and refugees: has the ‘never again’ imperative been forgotten?” (Franck Duvell, link): “This imperative derived from the lessons learned from the Holocaust and the failure to rescue the European Jews has now been relinquished it seems. Are we now back at the moral state of the 1930s were unwanted populations are removed from the ‘realm of moral subjects’ (Bauman 1996) and killed or left to die and the needy are turned away and refused shelter?”

11. EU: European Parliament: Migration: MEPs debate EU response (pdf): “MEPs discussed on 20 May European Commission plans to tackle the large numbers of migrants seeking to reach the European Union, often risking their lives at sea. Commission vice president Frans Timmermans and migration commissioner Dimitris Avramopoulos announced a number of measures, including an emergency mechanism for relocating migrants, a resettlement scheme to take in migrants from countries outside the EU and more funds for securing borders.”

See also: MEPs angry at member states over immigration (euractiv, link): “EU lawmakers on Wednesday accused some member states of passing the buck by rejecting a Brussels plan for binding quotas for refugees making the dangerous Mediterranean crossing.”

Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020

ORIGINAL PUBLISHED HERE ON 23 JUIN 2015

par Pierre Berthelet, CDRE

Le Professeur Panayotis Soldatos comparait il y a peu l’Union européenne à Prométhée enchaîné par les Etats membres. Ces réflexions mettant en évidence une construction européenne dépendante des États, « dont les élites politiques, écrit-il, se refusent à admettre la réalité de l’obsolescence de la souveraineté nationale », s’illustrent parfaitement avec l’adoption par le Conseil de la stratégie européenne de sécurité intérieure pour la période 2015-2020.

À première vue, la sécurité intérieure vient de franchir un pas supplémentaire dans l’intégration avec l’approbation par le Conseil le 16 juin 2015, de conclusions renouvelant et modernisant pour cinq années à venir la stratégie 2010-2014. Pour autant, il semble bien que les chaînes soient pesantes, car les États conservent la main, et de main ferme pourrait-on dire, le processus d’intégration dans ce domaine.

Ces conclusions entraînent une série de réflexions critiques quant aux conséquences institutionnelles et quant à la manière dont les États décident d’œuvrer dans la construction européenne en matière de sécurité intérieure.

Elles suscitent d’emblée des interrogations concernant l’inclusion du Parlement européen dans le processus décisionnel lié au déroulement du cycle, ainsi que sur la préservation accrue des droits fondamentaux (1). La stratégie ne fait pas véritablement l’impasse sur ces deux questions, car elle les mentionne en soulignant l’importance de ces problématiques. Cependant, l’observateur ne peut que demeurer sur sa faim quant aux modes d’inclusion du Parlement européen, et à la manière dont les droits fondamentaux ont vocation à être davantage pris en compte, alors que le Conseil semble précisément se focaliser davantage sur la sécurité que sur la liberté. Cette stratégie pour la période 2015-2020, justifiée par la permanence des menaces, voire leur accroissement, en premier lieu, le terrorisme et la grande criminalité organisée (p. 2 des conclusions du Conseil du 16 juin), est qualifiée par le Conseil de « globale et réaliste » (p. 5). Son adoption mérite d’être saluée à ce titre, car elle confère une certaine cohérence à une action qui dépasse les frontières de l’espace de liberté, de sécurité et de justice, pour comprendre des thématiques telles que la gestion de crise, la protection des infrastructures critiques et la cybersécurité. Pour autant, en l’examinant de plus près, cette stratégie pour la période 2015-2020 n’apparaît pas exempte de toutes critiques. Il est vrai qu’elle est bien plus précise concernant les priorités fixées par la stratégie précédente qui avait, par exemple, érigé la « lutte contre la violence en elle-même » en un objectif de sécurité de l’Union.

En revanche, elle l’est moins que le plan d’action venant compléter cette stratégie de 2010 et ce, en raison de l’ambiguïté des objectifs fixés par la stratégie européenne pour la période 2015-2020 (2). Il est même possible de considérer que la stratégie de 2015 est de moins bonne facture que la précédente, car il s’agit à la fois d’un document opérationnel, mais qui n’en est pas réellement un, et d’un document stratégique, mais qui n’en est pas réellement un non plus. De prime abord, elle se positionne à mi-chemin entre d’une part, des conclusions des 4 et 5 décembre 2014 qui énoncent les grands principes, et d’autre part, un plan d’action destiné à lister des mesures concrètes. Néanmoins, sa portée se révèle être bien plus opérationnelle que stratégique, car le plan d’action à venir, visant à mettre en œuvre cette stratégie censée, comme son nom le laisse supposer, être un document de nature stratégique, est réduit à la portion congrue (3).

Si le positionnement de la stratégie est complexe sur le plan normatif, il l’est beaucoup moins sur le plan conceptuel dans la mesure où la stratégie de 2015 demeure, comme celle de 2010, très empreinte d’une idéologie de la sécurité globale (4). Elle révèle certes, le peu d’audace de la part du Conseil concernant les avancées en matière de sécurité, reflétant le double discours habituel des États, très volontaires dans les déclarations d’intention, mais beaucoup moins dans la concrétisation de celles-ci. En revanche, elle suscite des interrogations quant aux relations qu’entretiennent la sécurité intérieure et l’espace pénal européen et ce, en raison de la place faite à la doctrine relative à la sécurité globale (5). L’un et l’autre se construisent de manière séparée et même dans l’ignorance mutuelle. La stratégie révèleà ce propos un monde de la sécurité (police, douane, garde-frontières) dont l’horizon d’action est davantage marqué par une collaboration avec celui de la sécurité et de la défense, qu’avec celui de la justice.

1. Une impasse sur le Parlement européen et sur les droits fondamentaux ?

Continue reading “Les lourdes chaînes de Prométhée, réflexions critiques sur la Stratégie européenne de sécurité intérieure 2015 – 2020”

WHAT IF A REFUGEE ALLEGEDLY SUPPORTS TERRORISM? THE CJEU JUDGMENT IN T

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 24 June 2015)

by Steve Peers

What happens if a refugee allegedly supports terrorism? The most obvious answer is that the person concerned might be excluded from getting refugee status in the first place, in accordance with Article 1.F of the Geneva (UN) Convention on Refugees, as reflected in the EU’s qualification Directive and interpreted in the CJEU’s B and D judgment of 2010. However, the situation is more complicated if the person already has refugee status, and his or her alleged support for terrorism begins or comes to light only later. This issue was addressed for the first time in today’s CJEU judgment in T.

Background

The qualification Directive offers three possible responses to a situation like this.

First of all, a Member State may revoke refugee status where there are ‘reasonable grounds for regarding [a refugee] as a danger to the security of the Member State in which he or she is present’, or where the refugee was ‘convicted by a final judgment of a particularly serious crime’ so ‘constitutes a danger to the community of that Member State’.

Secondly, it is possible to refoule a refugee (ie return the refugee to an unsafe country) on the same two grounds (which are also the exceptions to non-refoulement set out in the Geneva Convention), if that is not ‘prohibited’ by Member States’ international obligations. In that case, Member States may revoke or refuse to renew the refugee’s residence permit.

Finally, Member States must issue refugees with a residence permit and renew it, ‘unless compelling reasons of national security or public order otherwise require’.

Also, a Member State is obliged to revoke refugee status if the refugee ‘should have been’ excluded from refugee status in the first place, but presumably this only applies where the activity justifying exclusion took place before the refugee status was granted. All of the same rules apply to the parallel status of ‘subsidiary protection’, which exists for persons who don’t qualify for refugee status but who otherwise need international protection because they are fleeing torture, the death penalty or a civil war.

Judgment

This case concerned a Turkish national who moved to Germany back in 1989 and obtained refugee status there in 1993, on the basis of his activities in support of the PKK, the Kurdish group which Turkey (and subsequently also the EU) regards as a terrorist organisation. However, those links later led to a conviction for supporting terrorism, due to his collection of money for the PKK and distribution of PKK literature. His residence permit was revoked but he retained refugee status, and he was not expelled from the country. Nevertheless, he still challenged the revocation of his residence permit.

The CJEU’s judgment considers the second and third of the two issues above: refoulement (which might lead to the loss of a residence permit) and the loss of the residence permit as such. First of all, the Court explains the relationship between these two overlapping rules. If the criteria to refoule a refugee are satisfied, a Member State can either (a) refoule the refugee; (b) expel the refugee to a safe country; or (c) allow the refugee to stay. In the event that Member States can refoule the refugee, then they can also revoke a residence permit. But conversely, if the criteria to refoule the refugee are not satisfied, then the Member State cannot withdraw a residence permit on this ground.

In that case, the Court ruled, the question arises whether the rules on granting residence permits apply. Those rules don’t expressly refer to revoking a permit which has already been issued, but the Court ruled that this possibility was implicit.

The Court then moved on to interpret the two sets of grounds for loss of a residence permit at issue in this case: the ‘reasonable grounds’ that the refugee is a security risk, and the ‘compelling reasons of national security or public order’. These concepts aren’t further defined in the Directive, and the language versions of the Directive differ. So the Court proceeded to interpret these rules in the overall context of the Directive – protecting human rights and developing a common policy. In the Court’s view, refoulement of a refugee is a ‘last resort’ in the event that there is no other option to protect national security or the public. Since it could have a ‘drastic’ impact on the refugee, it was subject to ‘rigorous conditions’.

In contract, the mere loss of a residence permit did not lead to refoulement, and so the threshold for the application of the relevant rules was lower. The rules on loss of a residence permit ‘only’ apply where the refugee’s actions ‘cannot justify loss of refugee status, let alone the refoulement of that refugee’, and so did not ‘presuppose the existence of a particularly serious crime’.

So does support for a terrorist group meet the threshold to be one of the ‘compelling reasons of national security or public order’? The Court ruled that the concept should be interpreted consistently with the public security exceptions in the EU’s citizens’ Directive, because ‘the extent of protection a company (sic) intends to afford to its fundamental interests cannot vary according to the legal status of the person that undermines those interests.’ So terrorism is covered by that concept, and there must be a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Moreover, the EU has listed the PKK as a terrorist group, which is a ‘strong indication’ that must be ‘taken into account’. Since the CJEU had already ruled (in B and D) that terrorist acts could lead to exclusion from refugee status, it must follow that they could equally justify revocation of a residence permit.

But that was not the end of the matter. The national court has to go on to a second step, to consider whether the specific actions of a refugee in fact constitute support for terrorism so as to justify revocation of a residence permit. Not all forms of support for an organisation which the EU considers to be terrorist can lead to revocation of a refugee’s residence permit. As with the exclusion clause (see B and D), it was necessary to look at the individual’s behaviour, examining ‘in particular whether he himself has committed terrorist acts, whether and to what extent he was involved in planning, decision-making or directing other persons with a view to committing acts of that nature, and whether and to what extent he financed such acts or procured for other persons the means to commit them’.

In this case, Mr. T had participated in legal meetings, celebrated the Kurdish New Year and collected money for the PKK. The Court asserted that this ‘does not necessarily mean that he supported the legitimacy of terrorist activities’. Indeed, such acts ‘do not constitute, in themselves, terrorist acts’. The national court also had to consider the ‘degree of seriousness of danger’ Mr. T posed. It could take into account his criminal conviction but also had to consider that he was only sentenced to a fine. Also, the principle of proportionality (which the Court stated was not relevant when applying the exclusion clause, in B and D) was relevant here: the national court had to consider if Mr. T was still a threat to public security at the time the decision to revoke the permit was taken.

Finally, the Court ruled on the consequences of the loss of a residence permit. The person concerned retained refugee status and so was still entitled to all of the rights granted to a refugee, including access to employment, education, welfare, healthcare and housing. Although a clause in the preamble to the Directive stated that a residence permit could be made a condition of obtaining such benefits, the Court said that this clause was irrelevant since it was not reflected in the main text. Those rights could ‘only’ be restricted in accordance with the conditions in the Directive, and Member States ‘are not entitled to add restrictions not already listed there’. This was directly relevant to Mr. T, since Germany had indeed restricted his access to all of those benefits. But this is ‘incompatible’ with the Directive.

Comments

This was the first chance for the Court to rule on the status of refugees, ie the various benefits attached to refugee status, since its previous judgments on the qualification Directive have essentially concerned the definition of refugee or subsidiary protection status (or the linked issues of exclusion from or cessation of that status). Broadly speaking, the judgment does a good job clarifying the points which the Court set out to tackle – but inevitably the Court could not deal with every possible issue, and some of its answers raise further questions of their own.

First of all, the Court provides a useful clarification of the distinction between the non-refoulement rules and the rules on residence permits as such. The crucial point here is that the latter rules apply only when the former do not. While this makes the residence permit rules sound as if they have secondary importance, in fact the reverse is true. In practice, the residence permit rules are more important, since it is rarely if ever possible to refoule a refugee consistently with international obligations. This is because the case law on Article 3 of the European Convention on Human Rights (ECHR) makes clear that even if a person has done things awful enough to justify refoulement under the Geneva Convention, he or she cannot be removed to face a real risk of torture or inhuman or degrading treatment in violation of Article 3 ECHR – since that provision is not subject to any exception relating to the behaviour of the person concerned (or any other exception either). It was not necessary for the CJEU to rule on this point in the T case, since Germany was not seeking to remove him, but it would surely be willing to do so if the case arose (see the judgment in Abdida, discussed here, where the CJEU relied upon another strand of the Article 3 case law).

In the unusual event that refoulement might be possible, the CJEU’s ruling leaves some questions to ponder. It refers to the possible removal of a refugee to a safe third country. Presumably the criteria to determine the meaning of that concept are those in the asylum procedures Directive. It is also possible that the Court would be willing to rule on the interpretation of Article 32 of the Geneva Convention – which regulates the substance and procedure of the expulsion of refugees to safe countries (if the refugees are legally resident) – in this context. The CJEU might also be called upon to elaborate further what it means by saying that refoulement is a ‘last resort’ in the event that no other alternatives are available.

As for the main thrust of the Court’s ruling, on the ‘compelling reasons’ exception to the grant of residence permits, it is striking that the Court continues its recent trend of applying its case law on the EU citizens’ Directive to the ‘public policy’ clauses in EU immigration and asylum law. It did the same thing just a few weeks ago as regards the voluntary departure rules in the EU Returns Directive (see the Zh and O judgment, discussed here), and the broad wording of its judgment in T on this point suggests that all public policy clauses (they appear in swathes of EU legislation in this area) should have the same meaning. Having said that, the Court clearly accepts that the threshold for refoulement of a refugee is higher than for the normal public policy exception.

The Court also borrows most of its prior reasoning on the exclusion clause (with the addition of a proportionality element) to make clear that broad support of a group which the EU considers to be terrorist is not enough: there must be an active participation in violent acts or the funding of those acts. Presumably there must be a direct link with the funding of those acts, since the Court finds that Mr. T’s participation in collecting money for the PKK generally is not enough. Implicitly the Court shows little sympathy with recent EU and national moves against ‘radicalisation’ of Islamic communities (as very broadly defined), and it makes no reference to the Council of Europe measure (reflected in EU legislation) which criminalises ‘public provocation’ of terrorism. But nor does it refer to the countervailing case law of the European Court of Human Rights on freedom of speech, which requires States to allow the free expression of radical political beliefs and allows limits on that expression only where there is a direct incitement to commit violent acts. Nevertheless, the Court’s approach fits squarely into that latter line of case law.

Finally, the Court’s ruling on the consequences of loss of a residence permit are highly relevant, especially in Germany and any other Member States which do indeed make the receipt of benefits, access to employment et al dependent upon holding a residence permit. In effect, the judgment means that for many refugees the loss of a residence permit, even if justified, will have no real impact on their day-to-day life. It will only have an impact as regards journeys within the Schengen area (since holding a residence permit or long-stay visa is a condition of freedom to travel), or travels to non-Schengen and non-EU countries (since the criteria to revoke a residence permit also apply to the travel documents which refugees obtain from their host States in lieu of passports). It would also have an impact upon those refugees who do not yet have family living with them, since the EU’s family reunion Directive requires a third-country national to have a residence permit as a condition for family reunion. But that doesn’t matter to Mr. T, since he is already surrounded by his very large family in Germany.

Jailing migrant families together with convicted criminals: A desperate EU policy to deter irregular migration

ORIGINAL PUBLISHED ON STATEWATCH

by Steve Peers, Professor of Law, University of Essex: (23.6.15)

This week’s European Council (Summit) meeting is due to discuss the issues of immigration, in light of the recent high loss of life of Mediterranean migrants. The draft Summit Conclusions call for most Member States to participate in “relocating 40,000 people in clear need of temporary protection” from Greece and Italy, as proposed by the Commission. If agreed, this would be a significant change in traditional EU policy – although the details of relocation have yet to be worked out, and the Commission proposal did not use the phrase ‘temporary protection’. All Member States would also agree to sign up to resettle 20,000 refugees directly from regions of origin over two years. Even the UK has volunteered to participate it in this, recently offering to take a few hundred more people from Syria.

Yet in conjunction with this policy the EU intends to harden its policy towards irregular migrants, ie those non-EU citizens who have not applied for asylum or whose applications have failed. The draft summit conclusions endorse a strategy of encouraging more non-EU countries in Africa to take their citizens back, by offering them further incentives to do so. But furthermore, the EU intends to put greater pressure on the migrants themselves to leave. The Summit Conclusions refer to a letter to Interior Ministers from the EU Home Affairs Commissioner Avramopolous, who suggests a number of actions to this end.

The letter calls for a widespread use of detention of irregular migrants, for up to 18 months. In particular it calls for use of an obscure clause allowing for exceptions to the normal EU standards for detention of irregular migrants. This means that three usual protections will no longer apply:

– detention of irregular migrants in separate facilities from ordinary prisoners, or at least (if they are detained in prisons) separately from the prisoners within them;
– detention of families separately; and
– frequent judicial review of immigration detention.

Steve Peers comments:

“Taken together, the loss of these protections will mean that irregular migrants, including irregular migrant families, will not only be detained in ordinary prisons, but mixed in with the ordinary prison population of convicted criminals and those awaiting trial for serious crimes. Moreover, their capacity to challenge their detention by means of judiicial review will be severely curtailed.

Coupled with the recent Commission paper offering guidelines for using force, including against pregnant women, on migrants who refuse to be fingerprinted, this represents a significant turn in EU policy – turning toward direct and indirect threats of physical violence to control their behaviour and induce them to leave.

To say the least, this is hard to square with the EU’s frequent professions of support for the human rights and decent treatment of migrants.”

Sources

1. Draft European Council conclusions

2. Letter from Commissioner Avramopolous to Ministers with Annex (Statewatch version, 75KB) orlink to Council’s 10.5 MB version

3. Coercive measures or expulsion: Fingerprinting migrants (pdf)

See also: Statewatch Special Report: “War” to be declared on migrants