By Francesco Maiani, Associate Professor, Centre of Comparative, European and International Law, University of Lausanne

This article has been originally published on reflaw.org which operates under the auspices of the University of Michigan Law School’s Program in Refugee and Asylum Law (PRAL). The link to the article on the reflaw.org website is accessible here. Professor Francesco Maiani is also Member of the Editorial Advisory Panel (EAP) of RefLaw.

Introduction: The Cyclical Crises of The Common European Asylum System

In 2015-2016, the Schengen common travel area and the Common European Asylum System (CEAS) risked a complete meltdown. The story has been told elsewhere on RefLaw: one million refugees landed in Greece and Italy and then engaged in secondary movements throughout the European Union (EU). In response, unilateral measures negating the very idea of a common space of travel and protection spread like wildfire: “waving” unidentified refugees “through” to neighbouring States, unilateral border closures, competitive devaluations of national asylum systems endangering the integrity of international and EU standards. Some semblance of unity could only be found under the rallying cry of “stemming the flows.”

The EU thus initiated a series of measures aiming to confine refugees in countries outside or on the periphery of the EU. The EU-Turkey statement and “hotspot approach” epitomize this policy. At the same time, the European Commission proposed a reform package centred on three ideas: fighting secondary movements, reinforcing the above mentioned externalisation measures, and introducing a new solidarity mechanism centred on the physical relocation of protection seekers among the EU Member States (EUMS).

Fast-forward to the summer of 2018, and we are again in the midst of a “crisis.” The reform of the CEAS is stalled over the apparently unbridgeable rift between those EUMS requesting more solidarity and those EUMS wanting none of it. Meanwhile, with Mediterranean crossings reduced to pre-2015 levels, EUMS governments are maintaining, introducing or announcing unilateral measures to “stem” imaginary but electorally lucrative migration flows.

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by Niovi Vavoula, Lecturer at Queen Mary, University of London

On 14 March 2018, the Commission adopted a proposal on the reform of the Visa Code and just three months later, on 22 June 2018, the Council reached its general approach. This contribution aims at providing a concise analysis of the proposed rules whilst taking stock of the current state of play, with emphasis on the legal implications of the intertwining between visa and return policies.

  1. Background

The Visa Code sets out harmonised procedures and conditions for processing Schengen visa applications and in particular issuing visas to nationals originating from ‘blacklisted’ countries. The Code has been amended on numerous occasions. Nevertheless, a comprehensive reform of its rules remains elusive.

Following an evaluation of the Visa Code, in 2014, the Commission attempted to amend the rules in order to enhance facilitations and contribute to tourism, trade, and employment. Interestingly, when in 2001 the first ‘blacklist’ was drafted, such economic interests were not included among the criteria for ‘blacklisting’, which at that time involved risk of irregular immigration, risk of criminality and external relations. Progressively, the promotion of tourism and foreign trade were added to the equation, calling for a more liberal approach. It is in this context of balancing between the openness of the EU, security concerns and the maintenance of foreign relations that the proposal was tabled.

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by Maja Janmyr, Professor, Faculty of Law, University of Oslo

On 24th and 25th April, the European Union and the United Nations co-chaired the Second Brussels Conference, where a total of $4.4 billion was pledged in humanitarian support to Syria and neighboring refugee-hosting countries. While these funding commitments were nearly $5 billion short of what is needed to fund the humanitarian response, conditions on the ground demonstrate how far more than humanitarian aid is needed for any real and positive change to happen in the lives of Syrian refugees.

In Lebanon, a country with the highest per capita number of refugees in the world, the situation can be seen as particularly dire. At the Brussels conference, Lebanon made important commitments to refugee rights, but at home, political debates are raging surrounding the mass return of the same persons. But who is designated as a refugee in the first place? And who is really targeted for return? Research shows how these questions are far more complex than they may seem at first glance.

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by Mauro Gatti, Research Associate, University of Luxembourg, Faculté de Droit, Economie et Finance

Europe is notoriously divided regarding its internal policies on migration. But when it comes to making deals on migration with other States, EU Member States and institutions tend to be surprisingly united. This external unity might be threatened by populist leaders as shown by the decision of Hungary to refuse the Global Compact on Migration like the USA: if so, there would be little the Union may do to restore cohesion on the international stage.

1. The Surprising Unity of the Union

The acrimonious debate on refugee quotas or the Aquarius and Lifeline affairs may suggest that Europe is irremediably divided on the issue of migration. Despite the apparent alliance between far-right leaders in Italy, Austria, and Hungary, the interests of EU Members seem to be at odds. While some seek European solidarity, others reject any mutual support and pursue purely national solutions. Considering the fragmentation of internal policies, the EU’s external unity may come as a surprise.

The ongoing negotiations of the UN Global Compacts on Refugees (GCR) and on Migration (GCM) are a case in point. The New York Declaration for Refugees and Migrants (2016) set in motion a process of intergovernmental consultations and negotiations that are expected to culminate in the adoption of both global compacts. The Global Compact on Migration, in particular, will be adopted in an intergovernmental conference in Marrakech in December 2018.

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By Achilles Skordas, Professor of International Law at the University of Copenhagen

The Odysseus Network wants to thank warmly EJIL:Talk! that published an earlier version of this blog (available here) for the kind authorisation to put it again at the disposal of our readers. The author Achilles Skordas will participate tonight in a debate on interception of migrants at sea organised in the framework of the Odysseus Summer School.

Even though the International Court of Justice (ICJ) has jurisdiction to resolve disputes on the interpretation and application of the 1951 Refugee Convention (Art. 38) and the 1967 Protocol (Art. IV), it has so far not adopted any relevant judgment or advisory opinion. States have not shown interest in activating the Court’s jurisdiction with regard to the Refugee Convention, but they have done so in a variety of disputes broadly linked to transboundary movement of persons or to international protection: Latin American diplomatic asylum (Asylum and Haya de la Torre cases), consular assistance (LaGrand  and Avena cases), and extradition, arrest  or surrender of persons suspected of war crimes and crimes against humanity (Arrest Warrant and Habré cases), and terrorism (Lockerbie case).

As the world currently faces the worst migration crisis since WWII in terms of destabilization potential, due to the combined effects of the wars in Libya and Syria, and poverty in the Sahel, it is time to consider the challenges and benefits of the potential involvement of the ICJ in the global efforts of migration management and international protection. There are three questions to discuss, (a) necessity, (b) feasibility and (c) contribution of a potential ICJ ruling.

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By Diego Acosta Arcarazo, Reader at the University of Bristol Law School 

Dr. Diego Acosta is the author of The National versus the Foreigner in South America. 200 Years of Migration and Citizenship Law (Cambridge University Press, 2018). This blog is based on Chapter 5 of this book, which will be presented at the Odysseus Summer School on Wednesday 11 July.

In South America, pioneering discussions are taking place, challenging global established assumptions on how to control undocumented flows. One can see a clear progress from an initial general nebulous concern with fundamental rights and migration management as solutions to irregular flows towards a much more emphatic, precise and delineated answer lying in three consecutive aspects: non-criminalisation, rights’ protection and regularisation. To various degrees, these three elements have become a flagship and been reaffirmed in numerous regional fora. They have also progressed from political statements into legal provisions prohibiting criminalisation and incorporating principles favouring regularisation. There is thus a unique aspect of how a group of South American countries are trying to regulate undocumented migration. At a comparative level, it distinguishes them from the European Union in certain aspects with differences that are important to understand.

Some innovative approaches towards regularisation deserve in particular to be noticed. As a first reaction when faced with an undocumented migrant, the general rule in the EU – to put it in simple terms – is to limit undocumented migrants’ rights and use return. This does not mean neither that most migrants are expelled or that there are no possibilities to regularise, nor that irregular migrants do not enjoy rights. It simply indicates the rationale behind the law. On the contrary, some South American legislations reverse this paradigm by prioritizing regularisation.

Taking measures for guaranteeing access to a legal status takes various forms. It ranges from a State’s obligation to regularise an individual on the basis of family links to an individual right to obtain residence and to any other attempt for regularisation. Remarkably, the general rule of expulsion is reversed to regularisation. In other words, it is only when regularisation is not possible that expulsion kicks in. In some cases, regularisation is automatic, in others, it is a first option.

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