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

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The Armed Conflict in Afghanistan and Forcible Displacement

Afghanistan has been characterised by an almost continuous situation of armed conflict since 1978. More recently, the main actors involved in the conflict included the Afghan National Security Forces (ANSF), supported by the NATO-led International Security Assistance Force/Resolute Support Mission, fighting against the Taliban. However, in the last few months, the Taliban gained control of an increasing number of provinces, including provincial capitals. Things moved fast. On 15 August 2021, President Ashraf Ghani fled Kabul leaving the Taliban to take over the Presidential Palace and announce the restoration of the Islamic Emirate of Afghanistan.  

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By Ana Rita Gil, Professor at the Faculty of Law, University of Lisbon.

“Legal Rights to regularisation” in the Portuguese Immigration Law in “normal times”

Since the 2008 European Pact on Immigration and Asylum, the European Union has urged Member States to refrain from adopting the so-called “mass regularisations of migrants”. At the same time, the European Court of Human Rights case-law recognised that, in some cases, the right to respect one’s private life could require, exceptionally, a positive duty to regularise a migrant’s legal status. Nonetheless, a “right to regularisation” has been always seen as somehow paradoxical.

Since its enactment in 2007, the Portuguese Immigration Law foresees several “regularisation” possibilities, which have been gradually expanded. Article 122, for example, contains a long list of cases whereby a migrant may regularise his or her status for the purpose of protecting their human rights to family, to private life or even to health. Articles 88 and 89, on their side, refer to regularisation for the purposes of dependent and independent professional activity and, therefore, represent mere immigration policy options. Until 2017, these “economic” regularisation opportunities only corresponded to pure discretionary administrative powers.

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By Nikolas Feith Tan, Senior Researcher, Danish Institute for Human Rights and Jens Vedsted-Hansen, Professor, Aarhus University.

On 9 July 2021, the Grand Chamber of the European Court of Human Rights handed down its judgment on Denmark’s legislative tightening of family reunification rules for temporary protection holders in the case of M.A. v Denmark. In a careful but resounding sixteen-to-one decision, the Court declared that the statutory requirement of three years waiting time for family reunification for a Syrian doctor with ‘temporary subsidiary protection’ status in Denmark breached his right to respect for family life under Article 8 of the Convention. The judgment has already been the subject of academic comment, with analysis tending to focus on the role of the ECtHR in adjudicating migration and asylum policy and legal implications for Denmark (in Danish). This post discusses the background, main findings and implications of the judgment from both a human rights and EU law perspective, including the impact of EU law on the ECtHR’s assessment of the Danish suspension rule.

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Mariana Gkliati, Assistant Professor of International and European Law, Radboud University

On 15 July, the Frontex Scrutiny Working Group (Scrutiny Group) of the European Parliament’s LIBE Committee published its report on the alleged involvement of Frontex in fundamental rights violations at the external borders.

Frontex welcomed the report and its conclusions which, according to the agency, ‘reaffirmed that there is no evidence of the Agency’s involvement in any violation of human rights.

However, a closer look at the report would indicate that this is only part – if at all – of the story. The comments in this contribution aim to discuss the Scrutiny Group’s findings within the legal framework and their implications as to the agency’s legal responsibility for fundamental rights violations.

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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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