Collective expulsion or not? Individualisation of decision making in migration and asylum law
Various international human rights instruments prohibit the collective expulsions of aliens, including art. 4 of Protocol n° 4 to the ECHR. The text of this provision is, however, quite vague. It merely states that ‘Collective expulsion of aliens is prohibited’. The ECtHR has consistently ruled in several cases like Conka that the prohibition of collective expulsions is infringed by ‘any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group’. Collective expulsions take place when two constitutive elements are cumulatively met: the aliens are (1) expelled together with other aliens in a similar situation, (2) without due examination of their own individual situations.
According to well-established case law (Andric, Sultani and Ghulami), ‘the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis. The Court performs a holistic assessment of all relevant facts, including procedural guarantees, the motivation behind expulsion orders, and the circumstances surrounding their adoption and implementation. The approach is pragmatic, not formal. To date, the Court has determined that a violation of article 4 of Protocol n°4 has occurred only in specific and exceptional circumstances, where the existence of a policy aimed at systematically expelling a particular group of aliens was shown. Those included expulsions of Slovakian nationals of Roma origin by Belgium (Conka) and of Georgian nationals by Russia (Georgia v. Russia, Berdzenishvili and others v. Russia, Shioshvili and others v. Russia. Thus far, the Court has not required the aliens who have been subjected to collective expulsion to answer specific constitutive criteria. This is in contrast to the African Charter on Human and Peoples’ Rights, which prohibits ‘mass expulsion’, defined as ‘that which is aimed at national, racial, ethnic or religious groups’.
At first relatively discrete, the prohibition of collective expulsions has gained importance in the jurisprudence of the ECtHR following the evolution of European border policies. In various rulings, the Court relied on art. 4 of Protocol n° 4 to condemn ‘push-back’ policies, which consisted in the systematic expulsion of asylum seekers as soon as they reached the European territory or even before they could reach it, thereby preventing access to the asylum procedure. In Hirsi Jamaa v. Italy, the Court condemned the interception on the high Mediterranean Sea of vessels of migrants who were sent back to Libya. Similarly, in Sharifi and others v. Italy and Greece and in N.D. and N.T. v. Spain, the Court condemned the immediate and automatic removal of aliens as soon as they entered Italian ports from Greece (Sharifi) or crossed the Spanish-Moroccan border in Melilla (N.D. and N.T.).
In each of these rulings, the lack of proper examination of the individual situation of the applicants weighed heavily in the reasoning of the Court, which insisted that they were not identified nor given access to the asylum procedure. The ruling in Hirsi Jamaa v. Italy opened a new line of jurisprudence in which procedural guarantees are at the heart of the reasoning of the Court. Doctrinal comments have highlighted that procedural guarantees enshrined by Hirsi Jamaa are such that they lead to the obligation of states to grant access to the asylum procedure to asylum seekers falling under their jurisdiction, including those rescued on the high seas.
This raises the question of the extent of procedural guarantees that can be deduced from the prohibition of collective expulsions. In Khlaifia v. Italy, the grand chamber of the Court made it clear that an equilibrium must be found between the imperative and effective protection of fundamental rights, which requires procedural guarantees, and efficient border control. It expressed awareness of and understanding for practical difficulties that sudden mass influxes of migrants may cause. In that particular case, the grand chamber of the Court found that the expulsion of Tunisian nationals who were fleeing the Arab spring and had been intercepted by Italian coastguards and subsequently brought to Lampedusa, where they were detained before being expelled, was not a collective expulsion. It thereby reversed the ruling adopted by one of its chambers, which concluded that Art. 4 Prot. No. 4 had been violated.
Now that the EU is reshaping its migration and asylum policy following the crisis of 2015, such developments in the jurisprudence of the ECtHR call for broader reflection on the individualisation of administrative decisions adopted in the field of migration and asylum.
Under EU law, the EU Charter of Fundamental Rights prohibits collective expulsions (article 19, §1). It also establishes other procedural guarantees, such as the right to good administration (article 41). Even though the right to good administration as established by the Charter only applies to ‘institutions, bodies, offices and agencies of the Union’, the CJEU has already found in Mukarubega and in Boudjlida that one of its components, the right to be heard, reflects a general principle of EU law and must therefore be respected by Member States within the scope of EU law. This raises the question of whether such reasoning can be extended to other procedural obligations established by the right to good administration, such as the duty to give reasons.
In its jurisprudence on family reunification (Chakroun, Khachab, K. & A.), the CJEU has consistently emphasized the duty of national administrations to consider all relevant circumstances. In various rulings, it has held that Member States may not automatically reject applications for the sole reason that some requirements are not met, such as a fixed minimum of financial resources for the sponsor or standardized integration tests. Due regard must always be given to the particular situation of the concerned alien.
The workshop convened at the next Odysseus Annual Conference, to be held in Brussels on the 1st of February 2018, therefore intends to discuss the relationship between the prohibition of collective expulsions as established by the ECHR and general procedural guarantees under EU law. Participants will analyse the jurisprudence of the ECtHR on article 4 of Protocol n°4, with an emphasis on recent case law and controversies. They will then turn to a broader reflection on corresponding guarantees under EU law as they stem from the EU Charter of Fundamental Rights, general principles of EU law and the jurisprudence of the CJEU. The panel will ultimately address the question of whether such procedural guarantees, combined with the prohibition of collective expulsions, can express a general requirement of individual decision making in migration and asylum law.