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

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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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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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