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

By Diego Acosta Arcarazo, Reader at the University of Bristol Law School 

Dr. Diego Acosta is the author of The National versus the Foreigner in South America. 200 Years of Migration and Citizenship Law (Cambridge University Press, 2018). This blog is based on Chapter 5 of this book, which will be presented at the Odysseus Summer School on Wednesday 11 July.

In South America, pioneering discussions are taking place, challenging global established assumptions on how to control undocumented flows. One can see a clear progress from an initial general nebulous concern with fundamental rights and migration management as solutions to irregular flows towards a much more emphatic, precise and delineated answer lying in three consecutive aspects: non-criminalisation, rights’ protection and regularisation. To various degrees, these three elements have become a flagship and been reaffirmed in numerous regional fora. They have also progressed from political statements into legal provisions prohibiting criminalisation and incorporating principles favouring regularisation. There is thus a unique aspect of how a group of South American countries are trying to regulate undocumented migration. At a comparative level, it distinguishes them from the European Union in certain aspects with differences that are important to understand.

Some innovative approaches towards regularisation deserve in particular to be noticed. As a first reaction when faced with an undocumented migrant, the general rule in the EU – to put it in simple terms – is to limit undocumented migrants’ rights and use return. This does not mean neither that most migrants are expelled or that there are no possibilities to regularise, nor that irregular migrants do not enjoy rights. It simply indicates the rationale behind the law. On the contrary, some South American legislations reverse this paradigm by prioritizing regularisation.

Taking measures for guaranteeing access to a legal status takes various forms. It ranges from a State’s obligation to regularise an individual on the basis of family links to an individual right to obtain residence and to any other attempt for regularisation. Remarkably, the general rule of expulsion is reversed to regularisation. In other words, it is only when regularisation is not possible that expulsion kicks in. In some cases, regularisation is automatic, in others, it is a first option.

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by Melanie Fink, Post-doctoral researcher, University of Leiden, Kristof Gombeer, PhD researcher at the University of Leiden and Vrije Universiteit Brussels, and Jorrit Rijpma, Associate Professor, University of Leiden

This post is published in view of the evening debate that will take place in the Odysseus Summer School on Thursday 12 July with the authors. The Odysseus Network wants to thank warmly the EJIL:Talk! that published an earlier version available here for the kind authorisation to put it again at the disposal of our readers.

Between Saturday 9 and Sunday 10 June 2018, 629 migrants were rescued from overcrowded boats in the Central Mediterranean in search and rescue (SAR) operations carried out by both NGOs and the Italian navy. They were taken on board by the Aquarius, a rescue vessel operated by the German NGO SOS Méditerranée and flying the flag of Gibraltar. On Sunday, the Aquarius was on its way to Italy, whose Maritime Rescue Coordination Centre (MRCC) had coordinated the operations. Around 35 nautical miles off the southern coast of Italy, Italian authorities ordered the Aquarius to stop. Italy refused the Aquarius access to its ports and prohibited disembarkation of the rescued migrants on its territory. Italy’s new Minister of the Interior Matteo Salvini announced, that this would be the new policy for any NGO vessel rescuing migrants in the Mediterranean. He made good on that ‘promise’ in the following days calling on the Netherlands, allegedly the flag state of the NGO-operated rescue vessel Lifeline, to take responsibility for the migrants rescued by the NGO.

Italy’s instructions to the Aquarius ‘manifestly go against international rules’, Malta’s Prime Minister Joseph Muscat tweeted on Sunday night, but then he himself denied the ship access to dock in the port of Valletta. Malta in turn, Muscat claimed, was thereby acting in full compliance with international law. For another 24 hours, the Aquarius remained on stand-by, floating between Malta and Italy. Maltese and Italian vessels supplied the Aquarius with water and food, but neither States gave in by offering a safe haven. On Monday, Spanish Prime Minister Pedro Sánchez announced that Spain would allow for disembarkation of all 629 rescued individuals in the port of Valencia. Italy provided two ships to facilitate safe passage to Spain. On Sunday 17 June the three vessels arrived at the port of Valencia, safely disembarking the migrants after a week at sea.

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by Elspeth Guild, Professor of Law, and Katharine T. Weatherhead, PhD Candidate, Queen Mary University of London

The Global Compact for Migration will be the topic of a debate in the framework of the 18th edition of the Odysseus Summer School on Asylum and Immigration Law and Policy that will take place at the Université Libre de Bruxelles in July. Elspeth Guild, one of the authors of this post, will be present in Brussels for this debate on Friday 6 July.

The UN is currently in the middle of the intergovernmental negotiation of a new instrument, a Global Compact for Safe, Orderly and Regular Migration. The process was launched with the UN General Assembly’s New York Declaration on Refugees and Migrants of 19 September 2016 which called for two Compacts, one on refugees and the other on migration (A/RES/71/1). To the regret of the President of the UN General Assembly, the US Government announced its decision not to participate in the GCM’s negotiation, leaving thus the European Union as one of the important regional powers in the global north still in the process. A Zero Draft of the GCM was released on 5 February 2018, followed by a Draft Revision 1 on 26 March 2018 that has been the basis for the present blog. The process is nearing the critical end, as a fairly final draft needs to exist in the summer so that States can put everything in place for formal adoption of the GCM at the Intergovernmental Conference in Morocco from 10-11 December 2018.

The UN does not generally use the term ‘Global Compact’ for agreements and the novelty of the term makes it unclear what kind of instrument it will be from a legal perspective. However, one negotiating entity, the EU, has been in no doubt about its stance towards the document’s status. Throughout the GCM’s development, the EU has insisted that it should not be a legally binding instrument. The EU’s input to the UN Secretary-General’s report (A/72/643) on the GCM includes wording to that effect in the first line: “The future Global Compact on Migration should be a non-legally binding document resulting from an intergovernmental process, at the same time going beyond the declaratory nature of the New York Declaration by setting forth specific priorities and actions/chapters and linking them to a follow-up and monitoring mechanism” (p.1, original emphasis). In the preambles of the Zero Draft and Draft Revision 1 (paras 5 and 6 respectively), the UN sustains this message that the GCM is not a legally binding framework. Even if the draft text makes multiple references to law, such as the preambular mention of international human rights treaties (Draft Revision 1, para 2), the overarching message is that the GCM itself is not legally binding.

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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.

In recent years, the best interests of the child have been explicitly recognised in several opinions of Advocates General and in judgments of the Court of Justice. This has happened in the context of family reunification cases involving third-country national (TCN) parents or stepparents of minor EU citizens who have not exercised their free movement rights and could, thus, be characterised as internal situations. Even though the Court of Justice in Zambrano did not mention the child’s best interests, it relied on the criterion of the dependency of EU citizen children on their TCN parent as the crucial factor for determining whether the refusal to grant a residence permit to a TCN national parent would deprive his/her EU citizen children of the right to reside in the EU. Zambrano is the case in which the Court – for the first time –  labelled the EU citizen’s right to move and reside, contained in articles 20 and 21 TFEU, as “the genuine enjoyment of the substance of one’s EU citizenship rights” (para. 45), which places the situation in question within the scope of EU law, despite the existence of an internal situation.  This text aims to explore whether the notion of dependency and the principle of the child’s best interests add anything new to the Zambrano logic by broadening the reach of EU law to more internal situations. We discuss in a first part will discuss Cases O, S & L and Alfredo Rendon Marin and C.S. The second part will focus on the cases Chavez-Vilchez and Others and K.A. and Others, as the most recent judgments which develop the notion of dependency and the principle of the child’s best interests.

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By Catharina Ziebritzki, Max Planck Institute for Comparative Public Law and International Law and Robert Nestler, Refugee law clinics abroad

The judgement of the Greek Council of State of 17th April 2018: Assessing the illegality of the geographical restriction

Under the EU Hotspot Approach as originally implemented in the Eastern Aegean islands as from the entry into force of the EU Turkey Statement,  hotspots were designed as detention centers. The initially applied detention scheme was later replaced by the so-called geographical restriction limiting asylum seekers’ freedom of movement to the respective island. On 17th April 2018, the Greek Council of State annulled the administrative decision imposing this geographical restriction. On 20th April already, a new decision of the Greek Asylum Service reinstated the geographical restriction. In parallel, a new bill that transposes the Recast Reception Conditions Directive into the Greek legislation was adopted on 15th May 2018 with the aim, among other issues, to justify the imposition of the geographical restriction.

What are the implications of these developments for the EU Hotspot Approach and for the EU-Turkey Statement? Why is the restriction of asylum seekers’ freedom of movement a central issue when it comes to the implementation of the return policy foreseen by the EU-Turkey Statement?

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By Angeliki Tsiliou,  former Research and Project Assistant of the Odysseus Academic Network

A few days after the two-year anniversary of the EU-Turkey statement, almost 1,500 people have been returned to Turkey on this basis. Although most returnees originate from countries other than Syria, the legal precedent for returns of Syrians from Greece to Turkey has been established. On 22 September, the Supreme Administrative Court of Greece decided (dec n° 2347/2017 and 2348/2017, available only in Greek) that Turkey qualifies as a safe third country for two Syrians. This conclusion comforts the EU-Turkey statement concluded in March 2016 on the presumption that Turkey qualifies as a safe third country to which asylum seekers can be returned and enjoy adequate protection in accordance with the Refugee Convention of 1951 and its 1967 Protocol. Numerous controversial discussions regarding the statement arose, on the one hand, over its nature, and on the other, on the question whether Turkey qualifies as a safe third country. So far, policy-makers are satisfied as the arriving migratory flows have significantly decreased, whereas the CJEU deems itself to lack jurisdiction to rule on the legality of the agreement by risking to contradict its historical case law on the external competences of the EU. The present analysis will focus on the safe third country notion, as interpreted through the Greek judges’ lens.

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