By Neža Kogovšek Šalamon, The Peace Institute – Institute for Contemporary Social and Political Studies

The mass influx of asylum seekers to the European Union through the so-called Western Balkans route was made possible due to one major factor: the countries on the route (i.e. Greece, Macedonia, Serbia, Croatia, Hungary, Slovenia, Austria, Germany) collectively disregarded either Schengen rules or, in the case of non-EU states, their own entry rules. As I have discussed elsewhere, the states allowed entry and transit to people who did not meet the required legal conditions.

The reasons leading these states to adopt such conduct were manifold. For some states humanitarian reasons might have prevailed, knowing that not allowing entry would have  spurred a humanitarian emergency in the areas in between the states (no man’s land). For others, the reasons were mostly  related to convenience and aimed at ensuring that people leave their territories as soon as possible to be admitted by the next country on the route. In order to ensure that migrants and refugees cross over to the next country quickly, the states in question, assisted by humanitarian organizations and volunteer groups, provided transport, temporary shelters, food and clothes to ensure the minimum that is required in such extraordinary situations. In some border areas, state officials (police and military) even accompanied asylum seekers to the border (either crossing points or other parts of the border where there were no crossing points) and handed them over to the officials of the neighbouring state. It seems that sometimes the state officials wanted to avoid giving the impression that they are directing people to cross the border. For instance, even if border crossings were close by, they directed people to a dirt road or even just a crop field. Being aware that their conduct was outside legal boundaries, governments tried to mitigate the situation through administrative measures, such as registering the individuals (however registration was not always systematic), taking their fingerprints, and issuing them with different types of administrative documents.

The situation amounted to legal chaos. And one year after, we can still witness the  consequences of such actions. Strangely enough, the rulings of the Court of Justice (CJEU), were unfortunately  written as if in a complete vacuum, disregarding the reality in which at least six EU member states participated (Greece, Croatia, Hungary, Slovenia, Austria and Germany). The two relevant cases are  A.S. v Slovenia (C-490/16) and Jafari (C-646/16).          

A.S. v Republic of Slovenia (C-490/16)

Following the closure of the Western Balkans route, when the States on the route started to reapply entry and transit restrictions, increasingly asylum seekers lodged applications where they were stranded. These states were not their preferred destination. State authorities were also not always ready to take responsibility for examining those applications. Instead, Member States tried to apply the Dublin system to shift responsibility. As provided by Article 13(1) of Dublin III Regulation, the Member State where the individual entered the EU irregularly shall be responsible for examining his or her application for international protection. One of the issues that the national courts initially had to address in such cases was whether the entry into the State by a person who had travelled through the corridor, was irregular.

To address this issue, the Supreme Court of Slovenia made a reference for a preliminary ruling to the CJEU. The case concerned A.S., a Syrian national who crossed from Serbia to Croatia at a designated border crossing point, accompanied by the Serbian authorities. He was then handed over to the Croatian authorities, who did not deny him entry to Croatia, did not initiate any procedure for his return to Serbia, neither did they verify if he met the conditions for lawful entry. Furthermore, the Croatian authorities organised his transport to Slovenia, where he entered on 20 February 2016. Slovenia wished to hand him over to Austria, but the latter refused him entry. Hence, A.S. applied for international protection in Slovenia (paras. 14-16 of ruling C-490/16).   

The Slovenian Ministry of Interior, the body competent for examining applications for international protection, dismissed his application and decided that according to the Dublin III Regulation, Croatia was the member state responsible to examine the application. Surprisingly, following Slovenia’s request, Croatia accepted responsibility in line with Article 13(1) of the Dublin Regulation. A.S. appealed first to the Administrative Court and then also to the Supreme Court of Slovenia.  

In its reference for a preliminary ruling, the Slovenian Supreme Court expressed doubts as to whether the entry of A.S. could be considered irregular, as it was in fact authorised. The Supreme Court was not convinced whether it was allowed to undertake such autonomous interpretation of Article 13(1) of the Dublin III Regulation, or whether the national courts should interpret such entry as irregular from a purely formalist point of view as it was not in line with the Schengen Borders Code. In other words, the Supreme Court was uncertain whether the activities of the authorities who accompanied people to the border, handed them over to the neighbouring country’s authorities and organized transport for them, while disregarding the entry rules, should be taken into account in the consideration whether a border crossing was irregular or not.

The Supreme Court also cited the differences in the terminology used in the various legal acts. For example, while the Dublin Regulation uses the term irregular crossing (Slovenian: nepravilen), the translation of the Slovenian text uses the word illegal (Slovenian: nezakonit). While the EU and many other international organisations started avoiding the use of the term illegal in the context of migration to avoid criminalising migrants, the Slovenian authorities (and also translations of relevant legal acts) still predominantly use the term illegal (Slovenian: nezakonit) or unauthorised (Slovenian: nedovoljen). For the Supreme Court this was an additional argument to doubt whether the manner in which the crossing took place could be examined only from the perspective of formal entry requirements, as specified in the law, or whether other circumstances also had to be taken into account.

To answer the question, the CJEU relied exclusively on the formal entry requirements:

On a proper construction of Article 13(1) of Regulation No 604/2013, a third-country national whose entry has been tolerated by the authorities of a first Member State faced with the arrival of an exceptionally large number of third-country nationals wishing to transit through that Member State in order to lodge an application for international protection in another Member State, without satisfying the entry conditions in principle required in that first Member State, must be regarded as having ‘irregularly crossed’ the border of that first Member State, within the meaning of that provision.

Unfortunately, this decision does not offer any further explanation for the reasons why the CJEU chose to disregard the full context and opted for a purely formalist approach. This is particularly odd if we take into account the Opinion of Advocate General Sharpston that went in a completely different direction. In her Opinion, under these circumstances, the Member State in which application for international protection was first lodged is responsible for examining those applications, instead of the Member State where the individual entered the EU. In her complex reflection based on extensive analysis of the facts and circumstances of the humanitarian corridor, she stated that:

The plain truth is that Article 13(1) of the Dublin III Regulation was meant to address the normal situation of individual border crossings and individual applications where the third-country national concerned enters an EU Member State illicitly from a third country. Neither that provision nor the Dublin III Regulation as a whole was designed to cover a situation of authorised border crossings by a mass inflow of potential applicants for international protection. That regulation is not aimed at ensuring a sustainable sharing of responsibility for applicants for international protection across the European Union in response to such an inflow of people. That is, however, precisely the background to the present references.  

Observing the developments concerning the Western Balkans route up close, one could only but agree with this. The entry of asylum seekers in the corridor was not merely tolerated; rather it was authorised and facilitated. Asylum seekers were fingerprinted, return decisions were not issued, basic subsistence was provided and transport was organized by the Croatian authorities. With such conduct, the ‘irregularity’ of people’s entry was heavily compromised.

However, contrary to the Advocate’s General opinion, the CJEU’s reasoning is based on purely formal grounds; it dismissed the unprecedented circumstances that the countries on the route and Europe as a whole experienced during the refugee crisis (see paragraph 40 of the ruling). However, given the objective of upholding the Common European Asylum System of which the Dublin Regulation forms an essential part, the decision of the Court was entirely predictable. Namely, if the CJEU responded to the Slovenian Supreme Court’s main question affirmatively – i.e. that the term ‘irregular’ may be interpreted autonomously and that the state authorities’ activities on the ground should be taken into account in addition to formal legal provisions – this would effectively prevent transfers on the basis of the Dublin Regulation for persons who applied for international protection in other European Member States, even though they entered the EU first in Greece, before crossing to Croatia. According to the official statistics, the number of these persons was at least 650 000. The judgment therefore reaffirmed the logic of the Dublin system, despite it  having proved to be dysfunctional.

The main concern that arose after the judgment was whether Croatia would consequently be faced with hundreds of thousands of other Member States’ requests to accept responsibility for the examination of these individuals’ asylum requests. If this were to happen, Croatia could be overflown with asylum applications which would increase the risk of collapse of its asylum system, as was the case in Greece in 2011, when Dublin returns were stopped based on the European Court of Human Rights’ judgment in the case M.S.S. v. Belgium and Greece. However, in practice this case did not have any adverse consequences on the number of Dublin returns from Slovenia to Croatia. On the day the judgment was issued the Slovenian Ministry of Interior confirmed that there was no other individual present in Slovenia on whom this CJEU ruling would have an effect.

What about A.S.?

Twenty-two months after his arrival to Slovenia and five months after the CJEU judgment, A.S. who fled from armed conflict in Syria, is still in Slovenia as the Dublin transfer to Croatia has not been carried out yet. He has a strong social network in Slovenia, is well integrated, speaks Slovenian and has opened an informal barber shop in Ljubljana. He has not seen his family for two years and they will only be able to join him, if and once he receives protection. He used all available legal remedies against the Dublin transfer order to Croatia and the transfer decision is now final. Should he be returned to Croatia, the procedure for international protection will start all over again. This reality shows that the CJEU’s endeavours to safeguard the functioning of the Dublin system are not effective.   

As the Dublin transfer order became final on 14 November 2017 the Ministry of Interior scheduled his transfer to Croatia. However, a group of his friends and supporters organized a wide civic opposition against it. They decided to wait for the police with him in front of the Asylum Centre where he was ordered to appear. The sequence of events that followed were somewhat dramatic. At the morning when the transfer was scheduled two members of the Parliament visited him, joined the calls addressed to the Ministry of Interior to stop the transfer and decided to take him along to the National Assembly to protect him and await the decision of the Minister of Interior. The activists aimed at encouraging the State authorities to invoke the Dublin discretion clause under article 17 even after the transfer decision has become final. Even the Prime Minister Miro Cerar looked for a way to stop him from being transferred. The matter was discussed by the government, however the ministers could not reach an agreement on what to do. Some ministers (e.g. the Minister of Foreign Affairs) were publicly opposing exceptional solutions in individual cases, while the Minister of Interior even stated that the “government lost their compass”. Anti-immigrant opposition parties even threatened the Prime Minister with impeachment due to his decision to look into this specific case. For two weeks the online media, TV editions and newspapers were full of reports on the case and opinions of all possible experts on the Dublin regulation and the discretion clause, while the social media exploded with hate speech against the “barber from Syria”.

The situation did not end well for A.S. A few days later he suffered severe health deterioration and was first hospitalised in a mental health emergency room, and later accepted to a neurological clinic, where he is still recovering. While the whole drama that exposed him to the intense media pressure, political games and public attention has an adverse impact on his wellbeing, he might at the end be saved by the six-month deadline set forth in Article 29 (1) of the Dublin III Regulation. As the Supreme Court decided in August 2017, the deadline expires in February 2018.        

Jafari v Bundesamt für Fremdenwesen und Asyl (C-646/16).  

The Jafari case concerning two sisters from Afghanistan and their children is an Austrian case that derives from similar circumstances, but raises different legal issues. It is a consequence of first instance judgments issued by Austrian courts in relation to persons who were returned from Austria to Slovenia, when the corridor was already closing down, therefore being denied the possibility to apply for asylum in Austria. Croatia was determined as the country responsible for examining their asylum applications. In this case Croatia failed to respond to the request of the Austrian authorities to accept responsibility, which differentiated the case from the A.S. case.

The Austrian Administrative High Court which heard the case decided to request a reference  for a preliminary ruling, asking whether the acts  of the Croatian authorities, which allowed the Afghans  to enter and then transferred them to Slovenia,  effectively meant that they were issued  a ‘visa’.

In this case Advocate General Sharpston’s response to the question was negative in the sense that granting entry cannot be regarded as issuing a visa. In her Opinion, granting a visa fundamentally requires for the state to issue a specific document and hand it to the person concerned (paragraph 149 of the opinion), which did not happen in this case. In addition, she emphasised that “there was no stamp indicating that the visa application was admissible, no period of validity and no visa sticker.” Predictably, the CJEU response to the question raised by the Austrian court was negative as well. The Luxemburg Court confirmed that authorising entry cannot be regarded as granting a visa:  

Article 12 of [the Dublin III] Regulation read in conjunction with Article 2(m) of that regulation, must be interpreted as meaning that the fact that the authorities of one Member State, faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, tolerate the entry into its territory of such nationals who do not fulfil the entry conditions generally imposed in the first Member State, is not tantamount to the issuing of a ‘visa’ within the meaning of Article 12 of Regulation No 604/2013.

Similar to the A.S. case, the CJEU reiterated that even though the entry was tolerated, it should still be considered ‘irregular’ under EU law.

The visa issue at stake in Jafari is less controversial than the irregular entry issue in A.S.. It would indeed be farfetched to claim that the conduct of the Croatian authorities, which had very little to do with paperwork and was mainly oriented towards providing transport, amounts to the  granting of a ‘visa’, unless such interpretation were specifically provided for in the legislation. The response of AG Sharpston and the CJEU judgment in Jafari can therefore not be marked as purely formalistic, but as in line with the usual interpretation of the rules relating to visas. This is also where the outcomes of the two preliminary references differ most. In the issue concerning irregular entry, the CJEU did not apply the usual meaning of the term, which is entering in a clandestine way, outside the crossing points, without proper documents and out of authorities’ sight. In the case of entry through the Western Balkans corridor several of these elements are missing.    

It is interesting how Slovenia managed to avoid becoming the EU member state responsible for the reception of Dublin transferees travelling north through the Western Balkans route. When the Slovenian authorities received a request for information from the Austrian authorities, the former stated that the third-country nationals in question “had not been registered in Slovenia for any purpose relevant to the application of that regulation and that they had transited through Slovenia from Croatia” (paragraph 31 of the ruling). Namely, at the time Slovenia made sure the police documents (permission to remain) that were issued to each person in transit could not be regarded as residence documents in the sense of Article 12 of the Dublin III Regulation.

Conclusion

It is difficult not to see how absurd a situation where the state authorities had first rushed people through the states’ territories, and then tried to use legal ways to return them to where they had entered from was. In spite of this situation, the CJEU response was foreseeable. It is the Court’s role to guard and reaffirm EU law and ensure that it is valued and observed as strictly as possible. In a situation when the asylum rules were widely disrespected and the future of the EU has become uncertain (when one considers Brexit, the rise of Euroscepticism in a number of EU member states, and the halt in EU enlargement), any pronouncement perceived as ‘legal activism’ from the part  of the CJEU would further undermine the principles at the core of the Common European Asylum System. With the suspension of the Schengen rules and the de facto halt of the Dublin III system during the mass influx, it was particularly important for the Court to “get the EU’s act together” and reaffirm its structures. It is likely that any kind of relativisation of the system, considering the mass influx as an exceptional situation in which the EU’s legal framework does not apply, would have further contributed to undermining the already malfunctioning asylum system in the EU. The two CJEU judgments, A.S. and Jafari, can be understood as an effort to strengthen the Common European Asylum System that has been shaken by the refugee crisis. They reinstate the legal boundaries that had become blurred due to massive non-compliance by Member States  during the organised secondary movements through the Western Balkans corridor.