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

By Nora Markard, Professor of International Public Law and International Human Rights at the University of Münster

On 13 February 2020, the Grand Chamber of the European Court of Human Rights rejected in N.D. & N.T. the complaint of two migrants who had been pushed back by Spanish border police to Morocco – overturning the 2017 Chamber judgment that found a breach of the prohibition of collective expulsion. An NGO observer commented that the Grand Chamber judgment “will be perceived as a carte blanche for violent push-backs everywhere in Europe . . . Push-backs at the border to Morocco are a longstanding Spanish practice, which has become a model for other states along the European Union’s external land borders.”

Less than three weeks later, as Turkish President Erdogan stops preventing migrants from trying to reach the EU, Greek border guards are shooting at and endangering migrant boats and using tear gas and rubber bullets against migrants at the land border. Turkey even reports that one Syrian has been fatally shot by Greek border police – a claim that Greece denies. Meanwhile, Greek police is not effectively protecting support workers from right-wing violence, leading some to suspend their operations. Hungary sees its anti-Muslim, anti-immigration policy ruling the day. Honi soit qui mal y pense?

While the recent events in Greece are nothing less than shocking, EU Council President Croatia has been catching flack all winter for reports on its border policy, where migrants are beaten with sticks, including on their feet to prevent them from walking, burned with cigarette lighters, or submerged in the icy cold water of the river. So it is tempting to see a connection, but even if the events in Greece had nothing to do with the Grand Chamber judgment, has it become harder to criticise them as flagrant violations of international law? This very much depends on your reading.

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By Constantin Hruschka, senior researcher at the Max Planck Institute for Social Law and Social Policy Munich.

In the fast-growing Corona crisis, governments in Europe are currently trying to find ways to contain the virus. Many measures seem at first sight to make sense (like school closures and other restrictions on public life) to slow down the spread of the virus, and to serve as symbolic measures to point out the seriousness of the situation. On top of that, many States in the Schengen area have decided to reintroduce internal border controls and absolute entry bans for persons from “risk areas”. This, too, allegedly serves to flatten out the growth in the rate of infections but shows a law-and-order understanding of virus control which largely lacks the necessary health policy component. 

The corona virus is “novel” and comes from “outside” (initially from China) and then spreads in a kind of continuous flow – this seems to be the idea behind these measures. “Foreign” viruses are to be prevented from entering the country by refusing the entry of “foreigners”, while own citizens who have a right to enter their own country may only have to show their identity cards. In these cases, e.g. the German Federal Government – probably also due to a lack of legal competence to act – only makes recommendations on self-quarantine. The “foreigner”, the novelty, the evil must be stopped and repelled, and this – according to the political message to reassure the population – with border controls, so that we may reflect on internal solidarity and community as if this could cure the disease.

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By Daniel Thym, Universität Konstanz

It was shown in the first part of this blogpost that border controls and severe travel restrictions within the Schengen area can be justified under the public health exception as a matter of principle. That does not imply, however, that Member States can do as they please. They must comply with the relevant case law of the Court of Justice limiting state discretion even in times of crisis. Particularly disquieting are unprecedented travel bans for Union citizens that several Member States have enacted to varying degrees and which have been described in the first part of the blogpost. Similarly, the travel ban at the external borders remains deplorably vague at the moment. The supranational institutions should strive to establish uniform and proportional practices that enhance legal certainty for citizens and third country nationals.

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By Daniel Thym, Universität Konstanz

In a joint statement of 12 March 2020, President von der Leyen and President Michel ‘disapproved’ the decision of the Trump administration to impose a travel ban on persons coming from much of Europe. Less than a week later, the European Council unanimously agreed on sweeping restrictions on travel to the Schengen area. Any ‘non-essential’ movements across the external Schengen borders are suspended. This astonishing about-turn followed a week of political activism across Europe to fight the epidemic, including temporary border controls and far-reaching travel restrictions at the internal borders between several Member States.

It is no coincidence that borders play a prominent role in the fight against the coronavirus, since they can fulfill important symbolic functions transcending the practical effects of more police checks. Donald Trump has always been good at exploiting the discursive and symbolic potential of borders to convey a message of political power and to bolster a national sense of belonging, which can be enhanced in times of crisis, when the population feels insecure and threatened. Similar dynamics are at play when Member States reintroduce border controls in the Schengen area. The staggeringly strict new border regimes reinforce that trend.

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By Eleonora Frasca, PhD Candidate in EU Migration Law at UCLouvain and Francesco Luigi Gatta, Research Fellow at UCLouvain, members of EDEM (équipe droits européens et migrations) 

Introduction

On 23 September 2019 an informal “mini-summit” was held in Malta to find a solution to the long-standing controversy over Search and Rescue (SaR), disembarkation and relocation of migrants in the Mediterranean, which had become a burning political issue since the summer of 2018. It convened Interior Ministers of Italy and Malta, searching for solidarity and fair responsibility-sharing, Germany and France, seemingly willing to offer some support in this regard, representatives of the European Commission and Finland, holding the Presidency of the Council.

The result of the summit was a Joint declaration of intent on a controlled emergency procedure: a preliminary text concerning a predictable cooperation mechanism to be discussed and further developed at the following Justice and Home Affairs Council meeting of 7-8 October 2019, so as to encourage other Member States to participate in the initiative. The declaration, however, did not gather a major success in the Council. Despite the expectations raised by intense media coverage before and after the summit, and political statements released by European leaders involved, the Malta initiative received lukewarm attention. The Council Conclusions dedicate only throwaway remarks to the matter, laconically affirming that “over lunch” the state of play of migration was discussed, together with “the recent declaration (…) on temporary arrangements for disembarkation”. Despite the Council cutting the issue short, others have depicted the Malta declaration as a positive development, a first step or even a turning point towards a much-needed European common action. Few months after its launch, the future of this initiative remains still unintelligible, being in principle open to Member States’ participation, yet in absence of a clear picture of those willing to adhere.

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By Constantin Hruschka, senior researcher at the Max Planck Institute for Social Law and Social Policy Munich.

In its judgement N.D. and N.T. of 13 February 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) rejected the finding that Spain had violated the ban on collective expulsions enshrined in Article 4 Protocol No. 4 of the European Convention on Human Rights (ECHR). To conclude from this that the practice of so-called hot returns, i.e. the direct deportations without individual examination directly at the border, was approved by the ECHR, is understandable in view of the press statement of the ECHR but wrong. The practice of hot returns was and remains illegal.

In the case before it, the ECtHR merely interpreted the wording of article 4 of Protocol 4 to the EHCR (“Collective expulsions of foreign persons are not permissible”) – in a legally questionable manner – by adding a (narrowly limited) exception in a case that resulted in the aftermath of “an attempt by a large number of migrants to cross that border in an unauthorised manner and en masse.” Consequently, the ECtHR did not find any violation in the specific individual cases. However, the Spanish border control measures (or even “Fortress Europe“) have thus neither been approved nor has the principle of non-refoulement or the question of access to an asylum procedure been made dependent on the person first trying to enter Europe legally. Rather, hot returns are still prohibited, not according to Article 4 of Protocol No. 4 to the ECHR, but according to Art. 3 ECHR prohibiting inhuman and degrading treatment or punishment. One could also interpret the judgment as meaning that the ECHR did try to avoid a political statement on the issue before it.

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