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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By Professor Kees Groenendijk, Radboud University Nijmegen and Professor Elspeth Guild, Queen Mary University of London

 

Introduction

The human rights of children are universally proclaimed and the subject of solemn declarations by all levels of state officials. But, when it comes to unaccompanied minor asylum seekers, their status as children is all too often forgotten by European states which tend to focus exclusively on their status as asylum seekers. This trend is most clearly apparent in the refusal of so many European states to actually ban the detention of asylum seeking children. Instead, in their legislation (including EU legislation like Article 11 of reception conditions directive) they insert weasel phrases like “unaccompanied minors shall be detained only in exceptional circumstances. All efforts shall be made to release the detained unaccompanied minor as soon as possible.”

On 12 April 2018, the Court of Justice of the European Union upheld the human rights of children to be joined by their parents, rejecting siren calls to leave such matters to the discretion of Member States and their officials. In its ruling  in case C-550/16 A & S ,  the Court held namely that the provision of Directive 2003/86 about the family reunification of refugee unaccompanied children with their parents by means of visas (or residence permits) introduces an unquestionably positive obligation for the host Member State. The refugee unaccompanied children are entitled, under the conditions set out in this  directive, to have their first-degree relatives in direct ascending line reunified with them.

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By Jonas Bornemann, Research Assistant and PhD candidate, Chair of Public, European and International Law, Universität Konstanz 

In the 2017 State of the Union speech, Jean-Claude Juncker outlined his vision for the bloc’s future mode of integration. In this vein, the president expressed his confidence that time was ripe to align Member States’ commitments under EU law. Consonance should be attained in different fields, including prominently the Schengen Acquis. Thus, Juncker’s aspiration featured the Commission’s continuous insistence upon paving the way for Bulgaria and Romania into full Schengen membership. Identifying a window of opportunity, the president was determined to seize momentum in this regard and to do so ‘immediately’.

Besides this claim’s rigour, the final decision to lift restrictions in the implementation of the Schengen Acquis in Romania and Bulgaria, including the abolition of border controls with Schengen States, rests with the Council. However, since these Member States’ attempts to do so have been frustrated repeatedly, talk may prove cheap. Rather, one must wonder whether the absence of internal border controls – as ordained by Article 67 (2) TFEU – can be attained at Romanian and Bulgarian borders in the near future. Is Juncker’s call to grant access to the Schengen Acquis ‘immediately’ just a claim against long odds or does a ‘window of opportunity’ extend to Romania’s and Bulgaria’s chances to implement the entire Schengen Acquis as well?

Formulating a response to this question, the blogpost will employ two steps of investigation. It will first deliberate upon the legal framework facilitating the process of accession to full Schengen Acquis application with regard to Bulgaria and Romania. In particular, it will focus on respective criteria serving as prerequisite benchmarks to establish readiness for joining Schengen proper. Secondly, a compromise recently agreed within the Council will be examined. Against this background, Council Decision (EU) 2017/1908 informs an assessment whether Schengen States’ political reservations can be overcome. Does this measure facilitate the Schengen Acquis’ full application in Romania and Bulgaria, pushing open the alleged window of opportunity for those Member States’ Schengen ambitions?

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By Nula Frei, PhD, Senior Researcher, Institute of European Law, University of Fribourg & Constantin Hruschka, Max Planck Institute for Social Law and Social Policy, Munich

As a reaction to the “unprecedented migratory flows”, the EU Commission issued a Communication on establishing a new Partnership Framework with third countries under the European Agenda on Migration on 7 June 2016. The EU Partnership Framework essentially unites all actions of the EU Member States (individually and collectively) to combat smuggling and trafficking, to address “the fate of migrants and refugees” as well as to manage migration “in a sustainable way” and to fight against deaths at sea.

As part of the actions under the new Partnership Framework, measures to prevent irregular migration and irregular entries play a primary role (alongside with “fast and operational returns” and “specific and measurable increases in the number and rate of return and readmission”). These measures always take place in a legal grey zone, threatening to conflict with the obligations arising from international and European law and especially the prohibition of refoulement. While the European Court of Human Rights (ECtHR) has already provided a legal compass for measures at the borders and under the control of European states (see following paragraph), such guidance lacks for cooperation with third countries. The following article aims to provide such legal orientation, using the example of the central Mediterranean route.

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