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

By Silvia Bartolini, PhD King’s College London, Academic Assistant at Université Saint Louis Bruxelles and Visiting Professor Université Catholique de Lille

Introduction

On 19 March 2019, the Court of Justice of the EU (hereinafter, the “CJEU”) delivered its long-awaited ruling in the Arib case, where it was asked once again to verify the compatibility of Article L. 621-2 of the Ceseda (the French code on foreigners and asylum as amended by the law of 31 December 2012), which penalizes with a term of imprisonment the irregular entry of third country nationals, with Directive 2008/115 (hereinafter, the “Return Directive”).

Article L. 621-2 of the Ceseda had already come under the spotlight in the Affum case. There the CJEU held that the imprisonment of third-country nationals on the sole basis of their irregular entry would only be possible when the return procedure has come to its formal end (Affum at [63]). In particular, the CJEU singled out two specific circumstances where Member States are allowed to impose such term of imprisonment. Firstly, when the return procedure has been applied and the third-country national continues to stay in the territory without justified reasons for non-return. Secondly, when the third-country national re-enters the territory of that Member State in breach of an entry ban (Affum at [54], [64]). 

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By Dr. Niovi Vavoula, Lecturer at Queen Mary, University of London

1.Introduction

Since the past few decades, legal scholars and practitioners have been progressively acquainted with a series of abbreviations: SIS II, VIS, Eurodac, EES, ETIAS, ECRIS-TCN and the concept of interoperability has arisen prominently in the EU agenda. Behind the abbreviations lies an elaborated and complex legal framework of Europe-wide databases, whereby millions of personal data collected by different groups of third-country nationals are stored and further processed for a variety of purposes. For the sake of convenience and to inform the subsequent analysis, find here a table summarizing the key characteristics of each system.

This table is illustrative of the different logics and objectives underpinning each database, but also of an array of common characteristics.

1. First, their scope ratione personae is primarily different categories of third-country nationals, with EU citizens personal data only processed in an incremental manner (by the law enforcement branch of the SIS II; by the VIS, as regards sponsors or family members of visa applicants, or in the future ECRIS-TCN in relation to dual nationals); 
2. Second, those databases process a wide range of personal data, including biometrics (photographs and fingerprints, except for the ETIAS), which constitute a special category of personal data under Article 9 of the General Data Protection Regulation; 
3. Third, law enforcement authorities and Europol are allowed to have access to the records, either under specific conditions (VIS, Eurodac, EES, ETIAS) or because of the law enforcement (security) mandate (SIS II and ECRIS-TCN); 
4. Fourth, personal data are retained for a significant period of time; 
5. Fifth, databases are multi-purpose, dynamic and flexible in nature, as evidenced by the increasing objectives attached to each system. These purposes range from modernising immigration control to (disturbingly) law enforcement, thus blurring the boundaries between immigration and criminal law. 

Crucially, databases are compartmentalised; even though in the future all third-country nationals will be effectively captured by at least one database, the data pots are separate from each other. This will soon change; the final step towards an EU ‘Big Brother’ is the interconnection of the different ‘data pots’ under the umbrella term of interoperability. Against this background, this blog post aims at critically evaluating this important legal development from a privacy and data protection standpoint.

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By Evelien Brouwer, Vrije Universiteit Amsterdam

This blog has already been published on 25 May 2019 on Verfassungsblog and we thank the editors of Verfassungsblog for their kind permission to re-publish this contribution.

On 14 May 2019, the Council adopted two regulations, Regulation 2019/817 and Regulation 2019/818, establishing a framework for the interoperability between EU information systems in the Area of Freedom, Security, and Justice. The new rules on interoperability, upon which the European Parliament agreed in April 2019, will allegedly provide for easier information sharing and ‘considerably improve security in the EU, allow for more efficient checks at external borders, improve detection of multiple identities and help prevent and combat illegal migration’. All this, according to the press release of the Council, ‘while safeguarding fundamental rights’.

It is questionable whether this commitment made by the EU legislator is justified. Interoperability only ‘works’ as long as the reliability and trustworthiness of data in the databases involved are sufficiently guaranteed. Considering the number of states and the large-scale databases involved, the consequences of decision-making based incorrect or even unlawful data will be detrimental not only for the protection of fundamental rights but also for the effectiveness of interoperability as a data and border surveillance tool as such.

‘Interoperability’ and ‘interstate trust’ is a perilous combination if this would allow national authorities to rely on data stored in EU data systems, instead of making a careful examination of each individual case. Despite formal safeguards in the regulations and the applicable data protection standards, it will be hard for data subjects to oppose decision-making based on incorrect data, when the source or the author of that information is unknown or when states can ‘hide’ behind the back of interstate trust without providing access to effective legal remedies. The problems which may arise for individuals through the ‘blind’ use of large-scale databases will be illustrated with two recent case-studies:

the first concerns the entry of a human rights activist into SIS II, and the second one the reliance on Eurodac/DubliNet to determine the age of a minor asylum seeker. Considering the extensive scale of data processing, the fact that interoperability affects mainly third-country nationals, and because of the complexity of rules, the adopted instruments fail to meet the standards defined by the CJEU and the ECtHR on the basis of the rights to privacy and data protection.

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By Kris Pollet, Head Legal and Policy Research, European Council on Refugees and Exiles (ECRE)

This blog is written in the personal capacity of the author and does not necessarily represent the views of ECRE.

The reform of the Common European Asylum System (CEAS) through a third phase of harmonisation of the EU asylum acquis, launched by the Commission in 2016, proved too ambitious to be concluded under the 2014-2019 parliamentary term. While being blocked because of disagreements between Council and Parliament especially about solidarity between Member States, the legislative work done risks to be annihilated by the European elections, knowing that appetite of Member States for legislative harmonisation may diminish in the future.

Contrary to popular perception, from an institutional perspective considerable progress has already been made on parts of the asylum package. As discussed in more detail below, with five of the seven proposals having reached the stage of so-called trilogue negotiations and short of an inter-institutional agreement within less than three years, co-legislators have certainly moved at reasonable pace. Keeping in mind the fact that both the first and second phase of legislative harmonisation in the asylum field took five years and various amended proposals to conclude, the third phase of harmonisation is certainly still on schedule.

However, discussions on the Commission’s Dublin IV proposal in particular and the Asylum Procedures Regulation have triggered a range of fundamental legal and political questions among the Member States preventing the Council from adopting a negotiating mandate so far. A final push by the Commission and some Member States to have at least some of the least controversial proposals adopted before the European elections appeared to be in vain as there was eventually too little appetite to split the package. The uncertain legal and political ramifications of a partial deal finally prevented both the European Parliament and the Council from moving ahead. Faithful to the package-doctrine, the negotiations on the asylum package were finally de facto referred to the next parliamentary term. 

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By Elspeth Guild, Jean Monnet Professor ad personam, Radboud University Nijmegen and Queen Mary University of London

Read another post on our blog about this issue “Of Carrots and Sticks: A Punitive Shift in the Reform of the Visa Code” by Niovi Vavoula.

The EU legislature has agreed about a substantial reform of the Visa Code which still needs to be adopted officially. It will tie the cost, processing time of visas and availability of multiple entry visas to the success rate of Member States’ return efforts to the relevant country. The idea, proposed by the Commission and accepted both by the Council and the Parliament, is that nationals of countries on the EU’s visa black list, should be punished for the inability of EU Member States to return people (both nationals of the state and where permitted non-nationals who travelled through) to their state.

This collective punishment would take the form of a doubling of the cost of a visa (from the proposed € 80 to € 120 or even € 160) or exclusion from:

(a) simplified visa application procedures,

(b) waivers for holders of diplomatic and service passports,

(c) the 15 day visa processing time and

(d) access to multiple entry visas. Further, the penalties would not necessarily apply to all nationals of the ‘offending’ country but possibly only to some categories (unspecified) of them.

This principle could constitute discrimination on the basis of nationality within the class of States which are on the EU’s visa black list and discrimination on the basis of economic, social and/or educational status in the delivery and cost of EU visas for nationals of the same state. While the international community is becoming increasingly intolerant of discrimination on the basis of nationality in immigration procedures (see for instance No 2018/36 Qatar v UAE ICJ Provisional Measures decision of 23 July 2018 where the ICJ gave provisional relief to Qatar regarding the threatened collective expulsion of its nationals from UAE in reliance on the Convention on the Elimination of All Forms of Racial Discrimination), the EU appears to be embracing it in a particularly arbitrary form. The vast majority of the people the proposal would punish have no control over or influence on the rates of expulsion of their fellow countrymen and women from EU states, yet would be the objects of this discrimination.

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by Vera Wriedt, European Center for Constitutional and Human Rights (ECCHR) 

The decision of the UN Committee on the Rights of the Child in the case of D.D. v. Spain sets a precedent that strongly condemns the policy and practice of push-backs, called “rechazos” by the Spanish authorities. As the first case on summary expulsions in front of the Committee, D.D. v. Spain plays a crucial role for future jurisprudence on individual communications. The Committee’s decision clearly affirms the rights of unaccompanied minors at Europe’s borders and beyond.

Push-backs are a longstanding policy and practice at the Spanish-Moroccan border with fences around the enclaves of Ceuta and Melilla, the only land border between the European and the African continent. Spanish authorities immediately apprehend those who manage to cross the fences and return them to Moroccan forces, including the return of unaccompanied minors without access to any procedure to safeguard their fundamental rights. In March 2015, the Spanish Parliament created a legal basis for indiscriminate automatic deportations from Ceuta and Melilla. The Organic Law 4/2015 on the “Protection of Public Safety” introduced a special legal regime for Spain’s terrestrial borders with Morocco, stipulating that “foreigners detected on the territorial border line of Ceuta and Melilla while trying to cross irregularly the border may be rejected in order to prevent their illegal entry into Spain”. These amendments do not contain procedures to protect unaccompanied minors from immediate expulsions to Morocco.

The Spanish-Moroccan border regime has served as a laboratory for push-backs, with other Member States such as Hungary, Croatia, Greece, Bulgaria and Poland replicating this practice of indiscriminate automatic returns. More recently, border controls and push-backs have also surged at Europe’s internal borders, such as between France and Italy. Some States root these practices in national law, some issue semi-formalised paperwork in fast-track procedures and some take informal measures without any record. The underlying common denominator is the denial of access to any effective possibility to explain personal circumstances and to present arguments against the measures taken. At Europe’s multiple borders, unaccompanied minors encounter institutionalized violence instead of protection.

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