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 Elspeth Guild, Jean Monnet Professor ad personam Queen Mary University of London, and Emeritus Professor Radboud University Netherlands.

In the first of two blogs on Frontex and oversight, I examined the developments at the European level of legal oversight of law enforcement agencies with particular regard to requirements from a human rights perspective as set out in the decisions of the two European supranational courts (Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR)). The continuing controversy about the activities of Frontex as it moves towards increasing operational responsibility has highlighted the weakness of the current legislative framework under which it operates. In this second of the series, I turn to the shortcomings identified in the first. For the moment, this discussion has been primarily discussed in the context of the New EU Pact on Migration and Asylum which proposes a monitoring mechanism considered in an earlier post on this blog which clarifies the issues and takes into account the perspectives of authoritative NGOs such as ECRE and others. Rather than placing this discussion in the context of the Pact, here I examine the question from the perspective of the requirements set out by the two European courts in their constant case law.

Effective and independent monitoring of fundamental rights on law enforcement requires mechanisms which fulfil the requirements identified by the two courts as explained in the first part of this post: independence, effectiveness, investigative powers and the ability to make binding decisions. The instances charged with the review of law enforcement actions with fundamental rights obligations both national and supranational must be integrated into judicial structures – responsible to the courts or with powers to refer questions of fact and law to the competent courts (including the CJEU and ECtHR) in the light of independent investigations which their personnel have undertaken. Their role cannot be subsumed into the hierarchy of the law enforcement agency in respect of which they are carrying out their activities. 

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

Revelations about Frontex’s potential unlawful actions in the Eastern Mediterranean began to appear first as the result of a joint investigation by Bellingcat, Lighthouse Reports, Der Spiegel, ARD and TV Asah published on 23 October 2020 and then picked up by the New York Times, on 26 November 2020. The essence of the allegations are that Frontex has been involved in forcing little boats with potential refugees on board away from Greek islands and back to Turkish waters contrary to a judgment of the European Court of Human Rights which found such collective expulsion unlawful. Since then, a controversy around the agency and its compliance with human rights has been raging in Europe: 

• Already in November 2020 the European Ombudsman’s office opened an inquiry into the effectiveness of the Frontex complaints mechanism. 
• On 4 March 2021 the European Parliament‘s LIBE committee opened an inquiry into the allegations of human rights violations by the agency regarding the alleged push-backs (which was accompanied by the publication of extensive correspondence with the Frontex director). 
• The European Union’s anti-fraud office, OLAF also opened an inquiry into the agency in January 2021. 
• The European Court of Auditors had already opened an inquiry into Frontex in January 2020 regarding the agency’s performance.
• The Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, has also stepped into the fray issuing a report in March 2021 on EU action which leaves people to drown in the Mediterranean.
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By Rebecca O’Donnell, Director of Child Circle asbl.

On January 14, 2021, the Court of Justice of the European Union handed down a landmark judgment concerning the interpretation of the provisions of the EU Return Directive in cases involving unaccompanied children whose claim for international protection has been rejected (Case C-441/19 TQ v Staatssecretariis van Justitie en Veiligheid).

The interpretation of the relevant provisions of the Return Directive, in particular Articles 5 and 10, has been explored extensively in policy discussions since its adoption over 10 years ago.  The centrality of the principle of the best interests of the child has been increasingly emphasised in asylum and migration policy; however authorities still struggle with its operationalisation.  The Court’s ruling is valuable in its concrete demonstration of how EU law, including the Charter of Fundamental Rights, requires the principle to be applied in this context.

Much ink will likely be spilled on this judgement. Many policymakers and lawyers across the EU will be analysing carefully the findings of the Court in this sensitive and much contested area. From a timing perspective, the judgment is also significant.  The New Pact on Migration and Asylum, as well as discussions on international cooperation arising out of the Global Compact for Migration, means that the judgement may carry significant implications not only for the application of current law and practice in Europe, but potentially also for the future architecture of EU law and policy in this field and for cooperation with third countries on durable solutions for children.

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By Ulrike Brandl, Ass. Professor at the Department of Public, Public International and European Law, University of Salzburg.

Integration in European Union migration policy is a topic characterised by the divergence between the lack of legislative competence of the EU and the essential importance of comprehensive and targeted integration measures for a successful migration policy. That is why the efforts for a recast of the migration legislation are accompanied by a strategy to support and strengthen national integration policies. The New Pact on Migration and Asylum presented by the European Commission on 23^rd September 2020 contains a separate chapter on “Supporting integration for more inclusive societies”. This chapter enumerates a number of recommendations for Member States to promote integration. As a next step, the new Action plan on Integration and Inclusion 2021-2027 – already announced in the Pact and preceded by an open consultation with stakeholders – was published by the Commission on 24^th November 2020. The Action Plan is a comprehensive document which stresses key principles and values regarding integration and inclusion and also focusses on actions in main sectoral areas like education and vocational training, employment and skills, health and housing.

The previous documents (e. g. the Action Plan 2016 and many others) containing plans, ideas and concrete measures about the promotion of integration were characterized by a mixture of an enumeration of deficits in integration policy and ideas and recommendations about projects that are perceived as being supportive to successful integration. A further common characteristic is the fact that the documents did not distinguish between different categories of migrants. They referred to third country nationals in general, to persons who were granted asylum or subsidiary protection as well as to persons who intended to stay permanently or for a certain period for employment or for another reason. Furthermore, the documents complained about the difficult situation with regard to access to employment, education and social inclusion in general. They lamented about these deficits without a clear distinction between rights which have to be guaranteed to third country nationals and other mainly supportive measures which make integration easier.

This blogpost intends to give an overview of the content of the Pact and the Action Plan on Integration and to highlight several critical issues. These are the unstructured reference to the rights of migrants which have to be guaranteed and measures which should be implemented to support a successful integration. It would have been better to confirm that rights have to be guaranteed without discrimination and that measures are intended to provide assistance for full inclusion. Furthermore, the Pact and the Action Plan cover all migrants and even nationals with a migratory background. This approach could lead to the effect that the measures are not target-oriented enough.

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By Jorrit J. Rijpma, Professor of European Law at the Europa Institute of Leiden Law School, Leiden University. This blog builds on an earlier note of the Meijers Committee of which the author is a member.

In 2011, the closure of the French-Italian border by France in response to the arrival of Tunisian migrants who had been given an Italian temporary residence, was but a glimpse of things to come. In 2015, the ‘refugee crisis’ led one Member State after the other to reinstate checks at its internal border. Many of these checks have remained in place until this very day, despite clear time limits laid down in secondary law, with Member States invoking both the situation at the external borders and so-called ‘secondary movements’ of asylum applicants as justification.

The absence of border controls in Europe remains closely linked to common rules on migration and asylum, many of which find their origin in the Schengen flanking measures. The New Pact on Migration and Asylum has hailed the Schengen area as one the most important successes in European integration, but given the continued disruption of borderless travel, exacerbated by the COVID-19 pandemic, one would have expected a ‘comprehensive’ approach to have included concrete proposals for the governance of the Schengen area. Yet, the Commission merely announced a Strategy on the Future of Schengen, to be presented in the first half of 2021.

This contribution will argue that although the exclusion of Schengen from the Pact may be justifiable, it does not mean there is no need for a deeper reflection on the future of Schengen. It will briefly discuss the limited innovations the Pact does introduce. Finally, it will identify three priorities for the new Strategy: reinstatement of borderless travel in Europe, compliance with the Schengen rules, and the long overdue enlargement of the Schengen area.

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By Lieneke Slingenberg, Associate professor at the Amsterdam Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam.

In 2016, as part of the European Agenda on Migration, the European Commission published a proposal for a recast of the Asylum Reception Conditions Directive. This proposal aimed to further harmonise reception conditions in the EU; reduce incentives for secondary movements; and increase applicants’ self-reliance and possible integration prospects. In 2018, the Council of the EU and the European Parliament reached provisional agreement on the proposal. However, the political representatives of the member states (in Coreper) could not agree with the compromise text andit was concluded that ‘further attempts at the technical level should be made to gain further support from delegations’. Subsequently, the presidency presented some amendments to the compromise text, on the basis of whichnegotiations had to be reopened. The proposal has, to date, not yet been adopted. See also here.

In its 2020 New Pact on Migration and Asylum, the European Commission indicates that it supports the political agreement reached and urges for adoption ‘as soon as possible’. From the ‘roadmap’, it appears that this should happen in the second quarter of 2021. At present, however, this seems unlikely given that Member States at the external border, in particular, insist on treating all CEAS legislation as a package.

In this blogpost I will discuss the most important changes laid down in the Commission proposal and the provisional compromise text, published in October 2020 and the further proposed amendments by the Council (referred to together as ‘the proposals’), as compared to the current Asylum Reception Conditions Directive 2013/33/EU, against the background of relevant CJEU case law. The first section will discuss a few issues where the proposals provide for more clarity in the obligations for Member States and decrease Member States’ discretion. The second section deals with the relevant concept of a ‘dignified standard of treatment’. The third section discusses a few proposals that do not limit Member States’ discretion, but considerably limit applicants’ autonomy. I will not pay much attention to the detention of asylum seekers, as this has been dealt with already in the blogpost of Galina Cornelisse.

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