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

By Francesco Maiani, Associate professor at the Centre of Comparative, European and International Law, Faculty of Law, Criminal Justice and Public Administration, , University of  Lausanne. 

Five years after the peak of the 2015 policy crisis, the European Commission launched what it labelled as a ‘new’ Pact on Migration and Asylum. The academic Odysseus Network for legal studies on immigration and asylum in Europe is the natural setting to provide a timely and quality review of the diverse aspects of the Commission proposals. They will be published in a special collection of more than a dozen blogposts written by eminent experts from across Europe over the next weeks. We have designed a specific website to bring together the individual contributions in an overarching format – and invite you to consult it on a regular basis or to subscribe to our newsletter informing you about new blogposts.

In ongoing discussions on the reform of the CEAS, solidarity is a key theme. It stands front and center in the New Pact on Migration and Asylum: after reassuring us of the “human and humane approach” taken, the opening quote stresses that Member States must be able to “rely on the solidarity of our whole European Union”.

In describing the need for reform, the Commission does not mince its words: “[t]here is currently no effective solidarity mechanism in place, and no efficient rule on responsibility”. It’s a remarkable statement: barely one year ago, the Commission maintained that “[t]he EU [had] shown tangible and rapid support to Member States under most pressure” throughout the crisis. Be that as it may, we are promised a “fresh start”. Thus, President Von der Leyen has announced on the occasion of the 2020 State of the Union Address that “we will abolish the Dublin Regulation”, the 2016 Dublin IV Proposal (examined here) has been withdrawn, and the Pact proposes a “new solidarity mechanism” connected to “robust and fair management of the external borders” and capped by a new “governance framework”.

Before you buy the shiny new package, you are advised to consult the fine print however. Yes, the Commission proposes to abolish the Dublin III Regulation and withdraws the Dublin IV Proposal. But the Proposal for an Asylum and Migration Management Regulation (hereafter “the Migration Management Proposal”) reproduces word-for-word the Dublin III Regulation, subject to amendments drawn … from the Dublin IV Proposal! As for the “governance framework” outlined in Articles 3-7 of the Migration Management Proposal, it’s a hodgepodge of purely declamatory provisions (e.g. Art. 3-4), of restatements of pre-existing obligations (Art. 5), of legal bases authorizing procedures that require none (Art. 7). The one new item is a yearly monitoring exercise centered on an “European Asylum and Migration Management Strategy” (Art. 6), which seems as likely to make a difference as the “Mechanism for Early Warning, Preparedness and Crisis Management”, introduced with much fanfare with the Dublin III Regulation and then left in the drawer before, during and after the 2015/16 crisis.

Leaving the provisions just mentioned for future commentaries – fearless interpreters might still find legal substance in there – this contribution focuses on four points: the proposed amendments to Dublin, the interface between Dublin and procedures at the border, the new solidarity mechanism, and proposals concerning force majeure. Caveat emptor! It is a jungle of extremely detailed and sometimes obscure provisions. While this post is longer than usual – warm thanks to the lenient editors! – do not expect an exhaustive summary, nor firm conclusions on every point.

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By Dr Stian Øby Johansen, Associate professor at Centre for European Law, University of Oslo. Author of The Human Rights Accountability Mechanisms of International Organizations 

Respect for human rights and the rule of law are among the European Union’s foundational values proclaimed in TEU article 2. The Lisbon treaty’s merging of the EU’s three pillars, together with the elevation of the European Charter of Fundamental Rights to the level of primary law, ensured a sufficient level of substantive human rights protection across all the Union’s activities. However, the right to an effective remedy – enshrined in Article 47 of the Charter , as well as in regional and global human rights treaties – requires available and effective procedural mechanisms for holding human rights violators to account. When it comes to the availability and functioning of such mechanisms, which I will refer to as accountability mechanisms, there is less uniformity and significant gaps.

These gaps are increasingly becoming visible in the area of immigration and asylum, where the powers of the Union and its agencies have been rapidly expanding over the last few years, in response to the so-called “migration crisis” of 2015. In a post on this blog written back in April, Melanie Fink highlighted the lack of access to human rights accountability mechanisms in relation to Frontex.

The EU response also included the establishment of a military Common Foreign and Security Policy (CSDP) mission, Operation Sophia, to combat human smuggling and trafficking. At the outset, Operation Sophia consisted of one aircraft carrier, supported by six ships and two submarines, and additional units were deployed in subsequent phases. With a mandate that allowed for the “boarding, search, seizure and diversion” of vessels suspected of being used for human smuggling and trafficking, not much imagination is needed to see that there are risks of human rights violations.

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By Daniel Thym, Research Centre Immigration & Asylum Law, University of Konstanz, Germany

Five years after the peak of the 2015 policy crisis, the European Commission launched what it labelled as a ‘new’ Pact on Migration and Asylum. The academic Odysseus Network for legal studies on immigration and asylum in Europe is the natural setting to provide a timely and quality review of the diverse aspects of the Commission proposals. They will be published in a special collection of more than a dozen blogposts written by eminent experts from across Europe over the next weeks. We have designed a specific website to bring together the individual contributions in an overarching format – and invite you to consult it on a regular basis or to subscribe to our newsletter informing you about new blogposts.

Overarching Enquiries

Three overarching questions define an overall assessment of the reform package. Firstly, one is bound to notice that the law is not enough – as the situation on the Greek islands amply illustrates: living conditions for asylum seekers are insufficient, procedures take years to complete and returns after rejection often fail. Similar deficiencies exist elsewhere in Europe. Northern countries complain about the notorious failure of the takeback procedure under the Dublin system. NGOs rightly worry about possible pushbacks in Croatia. Our assessment of the Commission proposals will have to be guided by the understanding that legislative reform is a necessary, but insufficient condition for a functioning asylum system. We need to ensure that the law in the books is being applied in practice.

Secondly, we will have to answer the question: is the ‘fresh start’ a reality or an illusion? In the press material, the Commission was eager to highlight the novelty factor, since ‘the current system no longer works’. At closer inspection, it is less clear to what extent the discursive framing is supported by the nitty-gritty of the legislative proposals. Digging into the more than 300 pages, one is bound to discover rules that contradict the label of a ‘fresh start’. Other provisions are controversial. It is the ambition of the special collection of blogposts to combine an in-depth knowledge with a style of argument that can be read and understood by a broader audience, thereby advancing the debate about the merits of the ‘pact’.

Thirdly, the idea of ‘solidarity and responsibility sharing’, which the Commission emphasised in the political Communication, aptly captures the tensions inherent in any debate about migration and asylum in Europe. Member States have different views about their ‘fair’ share, especially when it comes to the reform of the infamous Dublin system. At the same time, solidarity and responsibility are not confined to interstate relations. Migrants and refugees have rights (and also some obligations), which must inform our analysis of the proposals.

It seems to me that – notwithstanding the rhetoric emphasis on ideas such as ‘solidarity’, ‘responsibility’ or ‘fresh start’ – the reform package is more about pragmatism than principles. It is certainly not ‘beautiful’ in the sense of an ideal vision of how migration and asylum policy could possibly look like (even though EU politics usually prefer such grand designs). It is in essence a piece of realpolitik, which – according to the lexical definition – is defined more by the needs and circumstances of the relevant actors than by morals or ideology. That may explain some of the idiosyncrasies of the proposals, which, nonetheless, will have to be judged in terms of adequately balancing countervailing claims to migration management and human rights, supranational cooperation and state action. This introduction will continue by shortly presenting seven themes, which reiterate the overarching difficulties described above.

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By Ulrike Brandl, Ass. Prof. at the Faculty of Law, University of Salzburg & Philip Czech, Senior Scientist at the Austrian Human Rights Institute, University of Salzburg

The last years have seen a major shift in European states’ policy in the field of asylum and migration towards an increasingly muscular surveillance of external borders. This trend has already found its resonance in the case law of the European Court of Human Rights (ECtHR). Following this shift, the major issue that links several of the most crucial judgments delivered in the past years regards states’ obligations arising from the European Convention on Human Rights (ECHR) to receive applications for international protection at their external borders or at the high seas and to preliminarily allow persons seeking protection to stay on their territory or under their jurisdiction until their claim has been decided on. From a legal point of view, the focus not only lies on Article 3 ECHR and its inherent non refoulement obligation but also on a right that had not played a significant role for quite a long time: the prohibition of collective expulsion enshrined in Article 4 of Protocol n°4 to the European Convention on Human Rights. The conclusion that this obligation does not allow the denial of access to the territory without an individualised decision is uncontested. The jurisprudence however still leaves scope for further clarifications what exactly is an individualised decision and inasmuch as a “culpable conduct” on the part of applicants can justify to reject them at the border without examining their individual circumstances.

In N.D. and N.T. vs Spain the Grand Chamber took the chance to clarify the implementations of the prohibition of collective expulsion for the Spanish policy of “hot returns” or push-backs at its enclave in Melilla; the Grand Chamber also established a new and still unclear connection between collective expulsion and legal pathways to submit applications for international protection. The most recent judgment in the case of M.K. vs Poland, delivered on 23 July 2020, provides some further guidance regarding the interpretation of the prohibition of collective expulsion and states’ obligations regarding asylum seekers arriving at their borders.

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By Iris Goldner Lang, Jean Monnet Professor of EU Law and Holder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue, University of Zagreb.

I am grateful to Philippe de Bruycker, Tamara Ćapeta and Romain Lanneau for their help and comments.

Since the implementation of the EU-Turkey Statement (see here and here on this blog) in March 2016 until 28 February 2020, the Greek-Turkish border had been mostly closed, with Turkey hosting around 3.6 million Syrian refugees (out of a total of over 4 million refugees). On 28 February 2020, Turkey announced that it would no longer stop migrants and refugees trying to enter the EU. According to the Greek media, the following day more than 4,000 persons repeatedly tried to cross the Greek border. The border was opened only on the Turkish side, as the Greek police stopped everybody who tried to cross the border, by using tear gas and rubber bullets. The situation continued to escalate in the following weeks with tens of thousands of people gathering on the Turkish side after having been reportedly taken there by Turkish buses. At the same time, Greece decided to suspend all asylum applications for one month. (on this blog see here and here about the geopolitical context of this crisis).

The Greek border conduct was strongly supported and praised by EU leaders. The President of the European Commission openly thanked Greece as Europe’s “shield” in blocking the entry to the EU and promised financial and material support, as well as the deployment of Frontex. On top of this, the Commission has refused to release a preliminary legal assessment of the Greek decision to temporarily freeze all asylum applications. In the meantime, the number of people trying to cross the border considerably decreased.

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by Galina Cornelisse, Vrije Universiteit Amsterdam & Madalina Moraru, Masaryk University Brno, authors of Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart Publishing, 2020)

The concept of judicial dialogue that is central to our book Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union shows that in times characterised by legislative stalemate and crisis driven governance, courts and judicial interactions serve as important guarantors for the rule of law. As such they also set standards for policy-making that the institutions would be wise to engage with in the ongoing legislative process.

The Covid and perceived refugee crisis have seen a relapse of asylum and immigration policies across Europe towards executive driven policy making – both on the European level as on the level of the Member States. In this context the role of courts becomes especially salient and as such, a close look at the contribution of courts to the implementation of the Return Directive is more than timely. The contributors to our book show that European and domestic courts have played a crucial role in transforming the Return Directive from a ‘Directive of Shame’ to a positive normative example for legal orders around the globe. Judicial interactions in particular have been key for this policy transformation by giving the courts tools to act as gatekeepers for human rights protection and effective implementation of the Directive.

This has not been easy, since the task of those courts involved striking the right balance between competing objectives: they have been required to reconcile the demands of an effective return policy with the protection of the human rights of third-country nationals, or they had to find a compromise between traditions of judicial deference to administrative prerogatives over migration and the enhancement of legal accountability that is the direct consequence of introducing European legislation in this area. The 2018 Proposal for the Recast of the Return Directive put forward by the European Commission has brought back the debate on the design of return management and the vertical and horizontal allocation of powers.

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