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

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By Nikolas Feith Tan, Senior Researcher, Danish Institute for Human Rights and Jens Vedsted-Hansen, Professor, Aarhus University.

On 9 July 2021, the Grand Chamber of the European Court of Human Rights handed down its judgment on Denmark’s legislative tightening of family reunification rules for temporary protection holders in the case of M.A. v Denmark. In a careful but resounding sixteen-to-one decision, the Court declared that the statutory requirement of three years waiting time for family reunification for a Syrian doctor with ‘temporary subsidiary protection’ status in Denmark breached his right to respect for family life under Article 8 of the Convention. The judgment has already been the subject of academic comment, with analysis tending to focus on the role of the ECtHR in adjudicating migration and asylum policy and legal implications for Denmark (in Danish). This post discusses the background, main findings and implications of the judgment from both a human rights and EU law perspective, including the impact of EU law on the ECtHR’s assessment of the Danish suspension rule.

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Mariana Gkliati, Assistant Professor of International and European Law, Radboud University

On 15 July, the Frontex Scrutiny Working Group (Scrutiny Group) of the European Parliament’s LIBE Committee published its report on the alleged involvement of Frontex in fundamental rights violations at the external borders.

Frontex welcomed the report and its conclusions which, according to the agency, ‘reaffirmed that there is no evidence of the Agency’s involvement in any violation of human rights.

However, a closer look at the report would indicate that this is only part – if at all – of the story. The comments in this contribution aim to discuss the Scrutiny Group’s findings within the legal framework and their implications as to the agency’s legal responsibility for fundamental rights violations.

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Annick Pijnenburg, Assistant Professor, Radboud University Nijmegen. Author of the book: “At The Frontiers of State Responsability: Socio Economic Rights and Cooperation on Migration“

This blog post examines the human rights obligations of EU Member States towards people on the move contained in neighbouring third countries like Libya and Turkey as a result of migration deals, as well as the question whether EU Member States incur international responsibility for violations of their socio-economic rights. The analysis first describes migration deals and their impact on people on the move (Section 1), before turning to EU Member States’ obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) (Section 2). This post argues that EU Member States can have two types of obligations under the ICESCR: direct obligations that apply when there is a jurisdictional link; and global obligations of international assistance and cooperation. Section 3, in turn, demonstrates that EU Member States can incur direct responsibility for breaching their direct and/or global obligations as well as derived responsibility for complicity in human rights violations abroad. This post is based on my recently published PhD thesis to which the reader is referred for a detailed analysis: At the Frontiers of State Responsibility: Socio-economic Rights and Cooperation on Migration. 

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Juan Ruiz Ramos, PhD Candidate at Universidad de Granada and at Vrije Universiteit Amsterdam. 

The ‘Strasbourg reversal’ is an intriguing concept in European human rights law. According to this theory, developed by Marie Dembour in When Humans Become Migrants, the European Court of Human Rights (ECtHR) always begins its analysis of a migration-related case with the statement that States have a ‘right to control the entry of non-nationals into its territory’. By doing this, the Court grants States greater leeway to enact potentially rights-violating policies than in cases in which the applicant is a national of the defendant state. Having been taught that human rights are universal, the idea that some individuals are more entitled to human rights than others (paraphrasing George Orwell) fractures one’s idealistic conception of human rights law.

The most plausible explanation for the existence of the Strasbourg reversal is the fact that the Court reacts to political pressures coming from States who do not wish to see a supranational institution intervene in sensitive political issues such as migration (see here and here). In this vein, I  analysed in an article last year whether the political tensions deriving from the 2015 ‘refugee crisis’ led the Court to become even more deferential to States’ practices in an area which is particularly troublesome in terms of human rights protection: the detention of asylum-seekers. To this end, the article carries out a systematic review of the judgments on the matter rendered between 2015 and the first months of 2020. The focus of the analysis is on the Court’s case law under Article 5(1)(f) (the exception to the right to liberty for purposes of migration control) and Article 3 ECHR (prohibition of degrading treatment in relation to detention conditions).

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By Daniel Thym, Professor of European and International Law and Director of the Research Centre Immigration & Asylum Law, University of Konstanz, Germany.

15 years ago, the term ‘Aegean Sea’ was shorthand for crystalline beaches. Nowadays, we associate it with a different set of images. Islands such as Lesvos stand for the partial failure of the EU asylum policy at ensuring adequate reception conditions and fair and efficient asylum procedures. Frontex is under fire for having tolerated or supported pushbacks practices of the Greek coastguard. More recently, the Spanish exclave of Ceuta entered the limelight once again when border guards returned several thousand migrants to Morocco, seemingly without even rudimentary procedural guarantees. These ‘pushbacks’ at land and sea borders raise important challenges of institutional governance, operational reporting, and external monitoring. Moreover, it can be difficult to identify the correct legal standards, which shall be at the heart of this blog post.

The spectrum of opinions on the legality of the pushbacks practices appears to be irreconcilable. On the one hand, the term ‘pushbacks’ is often associated with automatic illegality. On the other hand, Article 6 of the Sea Borders Regulation (EU) No 656/2014 explicitly authorises national border guards to ‘order’ vessels ‘engaged in the smuggling of migrants by sea’ to change course. Earlier last year, the Spanish policy of summary returns was famously found to comply with human rights.

Comments below have the objective of introducing readers to the veritably labyrinth of legal issues involved. They are deliberately not meant to take a definite stance, let alone assess specific incidents. Rather, the objective is to provide readers with a mental map allowing them to chart a legal territory, which, unfortunately, is full of shallow and muddy waters where one can easily get lost. We shall see that the debate should pay more attention to the higher level of protection in secondary legislation instead of abstract human rights guarantees.

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By Steve Peers, Professor of Law, University of Essex. This article was originally published on EU Law Analysis. We are reposting with permission of the author.

One sign of the difficulty in resolving differences of opinion within the EU on immigration and asylum issues (other than visas and border controls) is that no new legislation on these issues has been agreed since 2016 (that was the revised Directive on admission of students, researchers and trainees, discussed here). This five-year drought may soon to come to an end, with the recent agreement on revision of the Blue Card Directive on highly-qualified non-EU workers. (Note that the recent deal must still be formally approved by the Council and the European Parliament. This blog post is based on the full legal text of the agreed revised Directive. UPDATE, May 21 2021: the full text of the agreed Directive has  now been made public by Statewatch).

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