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

By Dr Melanie Fink, Postdoctoral Researcher, Europa Institute, Leiden University; author of Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ under the ECHR and EU Public Liability Law (Oxford University Press 2018).

Ever since Frontex’s establishment, the question of its human rights responsibility has been a source of contention and uncertainty. This has a number of drawbacks. On the one hand, if no clear consequences follow from unlawful conduct, this undermines the law’s preventive effect. If Frontex and the Member States participating in its operations can shift the blame among each other, they may be less ‘motivated’ to ensure their own compliance with human rights law. On the other hand, uncertainty also weakens the position of the victim of a breach because bringing legal action requires knowledge of the role each actor played with respect to a particular violation and the extent to which that is relevant for responsibility.

Drawing on some of the findings published in my book, this post discusses whether Frontex is responsible for human rights violations that occur in the context of its activities and how individuals’ access to mechanisms to invoke that responsibility can be improved.

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

We thank the European Law Blog for authorising the re-publication of this post.

After the CJEU rendered judgment on the matter, headlines were quick to announce that Poland, Hungary and Czech Republic broke Union law by disavowing the refugee relocation mechanism; one of the major policy responses to the so-called refugee crisis. The judgment of 2^nd April 2020 (Joined Cases C‑715/17, C‑718/17 and C‑719/17) adds another chapter to a dispute that simmered for years, even after the relocation mechanism’s two year lifespan had expired. Against that background, Commission President Ursula Von der Leyen reportedly noted that the ruling ‘is referring to the past but it will give us guidance for the future.’ How did the Court solve the dispute? And which ramifications may the judgment yield for EU migration law?

This post intends to discuss these questions, focussing in particular on the canny yet vain invocation of Article 72 TFEU as a legal avenue to depart from binding Union law (I.) and the emphasis of the relocation mechanism’s administrative nature (II.). On the basis of these considerations, it will be argued that the judgment seeks salvation in administrations’ wide discretion as a politically sensible solution, albeit with legal repercussions (III.). Thus, the post takes the view that the judgment allows both the defendant Member States and the Commission to come to terms with the relocation mechanism. Yet, it raises unresolved legal questions, which may motivate follow-up litigations.

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by Eugénie Delval, PHD candidate at the Université Libre de Bruxelles

In a recent landmark ruling, the United Nations Human Rights Committee found that climate-induced displaced persons can’t be sent back to their home countries where their right to life is threatened because of the effects of climate change. Climate conditions can thus trigger the non-refoulement obligations of sending states. The decision has been applauded by human rights and refugee rights advocates as a “ground-breaking” ruling that opens the doorway to future protection claims for individuals whose life is threatened due to the climate change.

The petitioner, Ioane Teitiota, is a citizen of the Republic of Kiribati, located in the Central Pacific Ocean and considered as one of the countries most threatened by rising sea levels. In 2012, he applied in New-Zealand for protection as a refugee and/or protected person, arguing that the sea level rise and other effects of climate change have rendered the living conditions in Kiribati unstable and precarious. The author claimed that life in Kiribati has become so untenable that returning him would violate his right to life under New Zealand’s Immigration Act. Teitiota’s asylum application was denied subsequently by New Zealand’s Immigration and Protection Tribunal, High Court, Court of Appeal and Supreme Court and he was removed to Kiribati, with his family, in 2015 (For a review of New Zealand climate change cases, see here). Ioane Teitiota finally filed an individual communication with the UN Human Rights Committee (“Committee”) under the Optional Protocol to the International Covenant on Civil and Political Rights (“ICCPR”), asserting that, by sending him back to Kiribati, New Zealand has violated his right to life under Article 6 of the ICCPR. 

On January 7th 2020, the Committee upheld New Zealand’s decision and ruled that Teitiota’s return had not taken place in violation of his right to life. The Committee nevertheless recalls that States must refrain from deporting an individual when there are substantial grounds for believing there is a real risk of irreparable harm such as that contemplated by Article 6 (right to life) and Article 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment) of the ICCPR (§ 9.3). The question that was raised before the Committee was whether Teitiota was exposed to a “real risk of irreparable harm” to his right to life in Kiribati. The Committee specifies that “there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists” (§ 9.3) (on the relevance of applying the test of a “real risk of irreparable harm” to the present case, see here). It concluded that the applicant had not provided sufficient evidence demonstrating that he faces any real chance of being the victim of a situation that would result in life-threatening conditions.

While Ioane Teitiota lost his case as his claim was ruled not to be strong enough based on the specific circumstances and evidence of the case, the Committee did issue strong statements on States’ responsibility when it comes to climate-induced displaced persons. It recognises that if climate change impacts worsen in the future, governments may not return people to their home countries where their life is threatened or where they would face inhuman or degrading treatment due to these impacts. The non-refoulement obligations imposed on States, would, thereby, be triggered. 

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By Nora Markard, Professor of International Public Law and International Human Rights at the University of Münster

On 13 February 2020, the Grand Chamber of the European Court of Human Rights rejected in N.D. & N.T. the complaint of two migrants who had been pushed back by Spanish border police to Morocco – overturning the 2017 Chamber judgment that found a breach of the prohibition of collective expulsion. An NGO observer commented that the Grand Chamber judgment “will be perceived as a carte blanche for violent push-backs everywhere in Europe . . . Push-backs at the border to Morocco are a longstanding Spanish practice, which has become a model for other states along the European Union’s external land borders.”

Less than three weeks later, as Turkish President Erdogan stops preventing migrants from trying to reach the EU, Greek border guards are shooting at and endangering migrant boats and using tear gas and rubber bullets against migrants at the land border. Turkey even reports that one Syrian has been fatally shot by Greek border police – a claim that Greece denies. Meanwhile, Greek police is not effectively protecting support workers from right-wing violence, leading some to suspend their operations. Hungary sees its anti-Muslim, anti-immigration policy ruling the day. Honi soit qui mal y pense?

While the recent events in Greece are nothing less than shocking, EU Council President Croatia has been catching flack all winter for reports on its border policy, where migrants are beaten with sticks, including on their feet to prevent them from walking, burned with cigarette lighters, or submerged in the icy cold water of the river. So it is tempting to see a connection, but even if the events in Greece had nothing to do with the Grand Chamber judgment, has it become harder to criticise them as flagrant violations of international law? This very much depends on your reading.

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By Constantin Hruschka, senior researcher at the Max Planck Institute for Social Law and Social Policy Munich.

In the fast-growing Corona crisis, governments in Europe are currently trying to find ways to contain the virus. Many measures seem at first sight to make sense (like school closures and other restrictions on public life) to slow down the spread of the virus, and to serve as symbolic measures to point out the seriousness of the situation. On top of that, many States in the Schengen area have decided to reintroduce internal border controls and absolute entry bans for persons from “risk areas”. This, too, allegedly serves to flatten out the growth in the rate of infections but shows a law-and-order understanding of virus control which largely lacks the necessary health policy component. 

The corona virus is “novel” and comes from “outside” (initially from China) and then spreads in a kind of continuous flow – this seems to be the idea behind these measures. “Foreign” viruses are to be prevented from entering the country by refusing the entry of “foreigners”, while own citizens who have a right to enter their own country may only have to show their identity cards. In these cases, e.g. the German Federal Government – probably also due to a lack of legal competence to act – only makes recommendations on self-quarantine. The “foreigner”, the novelty, the evil must be stopped and repelled, and this – according to the political message to reassure the population – with border controls, so that we may reflect on internal solidarity and community as if this could cure the disease.

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By Daniel Thym, Universität Konstanz

It was shown in the first part of this blogpost that border controls and severe travel restrictions within the Schengen area can be justified under the public health exception as a matter of principle. That does not imply, however, that Member States can do as they please. They must comply with the relevant case law of the Court of Justice limiting state discretion even in times of crisis. Particularly disquieting are unprecedented travel bans for Union citizens that several Member States have enacted to varying degrees and which have been described in the first part of the blogpost. Similarly, the travel ban at the external borders remains deplorably vague at the moment. The supranational institutions should strive to establish uniform and proportional practices that enhance legal certainty for citizens and third country nationals.

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