EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

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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by Melanie Fink, Post-doctoral researcher, University of Leiden, Kristof Gombeer, PhD researcher at the University of Leiden and Vrije Universiteit Brussels, and Jorrit Rijpma, Associate Professor, University of Leiden

This post is published in view of the evening debate that will take place in the Odysseus Summer School on Thursday 12 July with the authors. The Odysseus Network wants to thank warmly the EJIL:Talk! that published an earlier version available here for the kind authorisation to put it again at the disposal of our readers.

Between Saturday 9 and Sunday 10 June 2018, 629 migrants were rescued from overcrowded boats in the Central Mediterranean in search and rescue (SAR) operations carried out by both NGOs and the Italian navy. They were taken on board by the Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée and flying the flag of Gibraltar. On Sunday, the Aquarius was on its way to Italy, whose Maritime Rescue Coordination Centre (MRCC) had coordinated the operations. Around 35 nautical miles off the southern coast of Italy, Italian authorities ordered the Aquarius to stop. Italy refused the Aquarius access to its ports and prohibited disembarkation of the rescued migrants on its territory. Italy’s new Minister of the Interior Matteo Salvini announced, that this would be the new policy for any NGO vessel rescuing migrants in the Mediterranean. He made good on that ‘promise’ in the following days calling on the Netherlands, allegedly the flag state of the NGO-operated rescue vessel Lifeline, to take responsibility for the migrants rescued by the NGO.

Italy’s instructions to the Aquarius ‘manifestly go against international rules’, Malta’s Prime Minister Joseph Muscat tweeted on Sunday night, but then he himself denied the ship access to dock in the port of Valletta. Malta in turn, Muscat claimed, was thereby acting in full compliance with international law. For another 24 hours, the Aquarius remained on stand-by, floating between Malta and Italy. Maltese and Italian vessels supplied the Aquarius with water and food, but neither States gave in by offering a safe haven. On Monday, Spanish Prime Minister Pedro Sánchez announced that Spain would allow for disembarkation of all 629 rescued individuals in the port of Valencia. Italy provided two ships to facilitate safe passage to Spain. On Sunday 17 June the three vessels arrived at the port of Valencia, safely disembarking the migrants after a week at sea.

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by Elspeth Guild, Professor of Law, and Katharine T. Weatherhead, PhD Candidate, Queen Mary University of London

The Global Compact for Migration will be the topic of a debate in the framework of the 18th edition of the Odysseus Summer School on Asylum and Immigration Law and Policy that will take place at the Université Libre de Bruxelles in July. Elspeth Guild, one of the authors of this post, will be present in Brussels for this debate on Friday 6 July.

The UN is currently in the middle of the intergovernmental negotiation of a new instrument, a Global Compact for Safe, Orderly and Regular Migration. The process was launched with the UN General Assembly’s New York Declaration on Refugees and Migrants of 19 September 2016 which called for two Compacts, one on refugees and the other on migration (A/RES/71/1). To the regret of the President of the UN General Assembly, the US Government announced its decision not to participate in the GCM’s negotiation, leaving thus the European Union as one of the important regional powers in the global north still in the process. A Zero Draft of the GCM was released on 5 February 2018, followed by a Draft Revision 1 on 26 March 2018 that has been the basis for the present blog. The process is nearing the critical end, as a fairly final draft needs to exist in the summer so that States can put everything in place for formal adoption of the GCM at the Intergovernmental Conference in Morocco from 10-11 December 2018.

The UN does not generally use the term ‘Global Compact’ for agreements and the novelty of the term makes it unclear what kind of instrument it will be from a legal perspective. However, one negotiating entity, the EU, has been in no doubt about its stance towards the document’s status. Throughout the GCM’s development, the EU has insisted that it should not be a legally binding instrument. The EU’s input to the UN Secretary-General’s report (A/72/643) on the GCM includes wording to that effect in the first line: “The future Global Compact on Migration should be a non-legally binding document resulting from an intergovernmental process, at the same time going beyond the declaratory nature of the New York Declaration by setting forth specific priorities and actions/chapters and linking them to a follow-up and monitoring mechanism” (p.1, original emphasis). In the preambles of the Zero Draft and Draft Revision 1 (paras 5 and 6 respectively), the UN sustains this message that the GCM is not a legally binding framework. Even if the draft text makes multiple references to law, such as the preambular mention of international human rights treaties (Draft Revision 1, para 2), the overarching message is that the GCM itself is not legally binding.

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