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

The Odysseus Network organised with the European Policy Centre (EPC) and the EMN Finland its annual conference “From Tampere 20 to Tampere 2.0: Towards a new programme (2020-2024) for EU Migration and Asylum Policies 20 years after the Tampere conclusions” in Helsinki on 24 and 25 October in connection with Finlands EU Presidency. The outcome is presented this Monday 2 December to the Libe Committee of the European Parliament and will be available on our website as from the 11th of December after the publication’s launch. The present post is part of the contribution of Philippe De Bruycker to the conference. The author warmly thanks Jean-Louis De Brouwer for his contribution and precious advice, as well as Marie De Somer for her review of the text.

Philippe DE BRUYCKER

The crisis of 2015-16 challenged the entire migration and asylum policies of the EU and its member states. The rules patiently built over 15 years tumbled down like a house of cards. Despite the European Commission’s 2015 Agenda on Migration launched in reaction, the EU plunged into a multi-dimensional – political, moral, legal, institutional, financial – crisis:

• Some member states openly refused to apply some of the solidarity measures, like the relocation of asylum seekers, despite it being adopted as a legally binding decision, thereby violating the rule of law upon which the EU is built.
• Member states re-established within the Schengen area which is one of the foundations of the EU, internal border controls without consideration of the limitations imposed by the Schengen Borders Code.
• The EU and member states’ support to third countries of transit for migrants led to violations of their basic human rights, involving inhuman or degrading treatments and arbitrary detention like in the case of Libya.

Nonetheless, the crisis is over, and the issue of the disembarkation of some hundreds of persons rescued at sea should not be instrumentalised to convince the public that it is still ongoing. Despite its negative effect on the political climate, the crisis acted as a catalyst and can be transformed into an opportunity as it has often been the case for the EU in the past. It is therefore more than welcome that the new President of the European Commission Ursula von der Leyen has announced her willingness to propose the conclusion of a “New Pact on Migration and Asylum”. Due to the existential character of this crisis, rather than another impetus, it is a new European consensus that is needed and should be concluded between the member states and the EU institutions. After a brief assessment of the implementation of the Tampere conclusions (1), we present the building blocks upon which this new consensus could be established in order to build migration and asylum policies sustainable for the future (2) before making a proposal regarding the methodology that could be used (3).

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Thomas Spijkerboer & Elies Steyger

Elies Steyger is professor of European administrative law at the Vrije Universiteit Amsterdam. Thomas Spijkerboer is professor of migration law at the Vrije Universiteit Amsterdam and Raoul Wallenberg visiting professor of human rights and humanitarian law at Lund University; his research for this article was funded by the Marianne and Marcus Wallenberg Foundation

In 2014-2015, the European Union adopted three financial measures in order to cooperate with neighbouring countries in the field of migration policy. By July 2019, the Trust Fund in response to the Syrian crisis, also called the Madad Fund, was worth a total of €1.8 billion; the European Union Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa was worth €4.6 billion; and the Facility for Refugees in Turkey €5.6 billion. The European external migration funds are subject to the ordinary public procurement rules to which both the member states and EU institutions themselves are subject. This requires open, transparent and objective procedures so as to open up markets for public contracts, stimulating competition and therefore quality of contractors and the proper spending of public money.

However, for the projects implemented through these financial measures, there is often no open competition. Instead, potential implementing partners bring their projects to the attention of EU delegations in the country concerned and the European Commission. These carry out a first scrutiny of potential projects. Subsequently, an informal expert group carries out an examination of the project proposals. In the background, there is an on-going negotiation between the Commission, the EU Member States, the third country involved and sometimes the potential implementing partner. In the words of the European Court of Auditors, the selection of projects is “not fully consistent and clear.” Others have called it “opaque.”

In light of these concerns about the transparency of the way in which public funds are spent, we have analysed in an article published in European Papers how expenditure under the migration funds relates to European public procurement law.

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Minos Mouzourakis, ECRE, and Refugee Support Aegean (RSA)

Unlawful deprivation of liberty is a longstanding and amply highlighted concern in the Greek asylum system. Greece consistently resorts to systematic detention of people seeking international protection at its borders and on its soil. In 2018, during which 66,969 applicants registered claims with the Asylum Service, the Hellenic Police detained 18,204 asylum seekers in pre-removal detention centres alone, while holding many more in unsuitable police stations. This is almost double the number of asylum seekers held in pre-removal centres in 2017 (9,534). Albeit reflecting only part of detention landscape in the country, these figures reveal the continuation of a policy of migration management largely based on coercion.

Against that backdrop, the latest iteration of hasty reform of asylum legislation introduced by the Greek government to “amend the detention regime in order to avoid thousands of foreigners evading authorities’ oversight” should give one pause. The International Protection Act (Greek IPA), approved by the Parliament on 31 October 2019 within two weeks of presentation of a bill to a truncated public consultation, has attracted deep concerns from the United Nations High Commissioner for Refugees (UNHCR) and civil society organisations (e.g. Refugee Support Aegean, Greek Council for Refugees, Médecins Sans Frontières, Amnesty International, Human Rights Watch). Critiques point to the government’s doubling down on coercive measures and weakening procedural guarantees in the areas of reception and asylum procedures. They also flag the lack of prior evaluation of the successive asylum reforms carried out in recent years and of due justification for new legislation.

Various provisions of the Greek IPA further undermine the right to liberty in Greece by pushing the legal boundaries of detention of asylum seekers, by entrenching previously blurred boundaries  as well as  by seemingly introducing new places of detention. While the exact impact of the reform is yet to be seen in practice, the changes made to the domestic framework are liable to expose more people seeking refuge to the damaging effects of detention.

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By Daniel Thym, Universität Konstanz

Notwithstanding a lack of popular support, the German government managed to bring a rather extensive set of eight bills on immigration through parliament before the 2019 summer break. This blogpost aims at introducing the core piece of legislation of Germany’s recent migration package to a transnational audience: the Skilled Immigration Act, which indicates the determination of the largest Member State not to confine migration policy reform to supranational harmonisation, even though the reform step may reinforce the international debate about legal migration and its interaction with the asylum system. Closer inspection of the Skilled Immigration Act also offers insights into specificities of the German debate.

By contrast, other elements of the migration package do not raise many issues that are relevant for the pan-European debate, since they essentially implement or complement existing EU rules. Some measures were however politically contested and raise important legal questions, but their effects are often specific to the German context. Those who want to learn more about corresponding measures on the regularisation of illegal stay, return and detention, the residence requirement for beneficiaries of international protection or deprivation of nationality are invited to consult the reports submitted by experts to the parliamentary hearing.

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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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