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By Philippe DE BRUYCKER, ULB & Odysseus Coordinator

The blog post below critically exposes the main themes of our next annual conference that will take place on Thursday 1 February 2018 in Brussels. This event is organised in the framework of the OMNIA Project with the support of the Jean Monnet Networks under the Erasmus+ Programme of the EU.

2017 has been marked by several rulings about crucial questions related to the European migration and asylum policies. The Court of Justice was called to rule on the most politically sensitive issues and delivered very controversial answers. The Odysseus Network decided therefore that its annual conference will focus on “Conflict and Compromise between Law and Politics in EU Migration and Asylum Policies”. The six workshops organised in the framework of the conference will tackle key legal, policy and operational challenges in relation with Court rulings around three streams.

1. Externalisation

The efforts of the EU to contain migration flows from Libya provide an excellent example of a policy designed to avoid as much as possible any legal responsibility before a court. Knowing that contacts with people trying to flee could entail jurisdiction of the European Court of Human Rights and that it is currently impossible to send them to Libya without violating article 3 of the ECHR due to the horrific conditions in that country, the EU and its Member States leave the so-called Libyan coast guards do the job and “save” those persons against their will on their way to the EU.

One may however wonder if international responsibility can be totally avoided in this case. The EU and its Member States are indeed providing different types of assistance to the Libyan coast guards like training, equipment and financial support. Moreover, they do so while knowing what happens to the persons “pulled back” to Libya. From then on, one may legitimately ask if the conditions required by the draft articles on responsibility of States for internationally wrongful acts of 2001 are not fulfilled. The speakers of workshop A will try to answer this question.

The increasingly successful externalisation of the EU migration policies to stem the flows raises also the issue of the access of asylum seekers to the EU. The impossibility to travel without a visa forces most of them to have recourse to smugglers. One Syrian family tried to get a visa for Belgium with the intention to apply afterwards for asylum. After refusal of the visa application by the Belgian Immigration Office, the Belgian judge decided to ask the CJEU if the international obligations envisaged by article 25 the EU Visa Code comprise article 4 and 18 of the EU Charter on Fundamental Rights and, in case, if Member States are obliged to deliver a visa to avoid a breach of those provisions. The speakers of workshop B on “Visas for asylum: not under EU law or not at all?” will critically analyse this controversial case as Violeta Moreno Lax already did (see here and here).

One should not misunderstand the object of this ruling. The CJEU did not rule about the substance of the question which is if the refusal of a visa by consular authorities can be considered as equivalent to a prohibited refoulement. The court did not deal with that question because it considered that the Charter was not applicable to such issue which is outside the implementation of EU law, with the consequence that the CJEU is simply not competent to answer such question belonging to national law, possibly under the control of the ECtHR.

Many observers will conclude that the Court did not want to answer that question and decided to escape. Even if it is probably true that not having to answer this delicate legal question has been a relief for the Court, arguing that the judges actually had this intention is vain as it is speculative. Knowing that scholars could also be suspected of academic activism, the only valid question from a legal point of view is if the Court determined rightly or not the scope of application of the Charter.

The case law of the CJEU when it has to determine when Member States implement EU law is actually far from clear. Even specialists of the EU Charter can get lost in the Court’s reasoning on this complex and delicate issue. If X & X is one of the cases where the answer of the Court about the scope of application of the Charter is debatable in relation to previous case law as shown by ECRE in its comment on the case, it is certainly not the only one.

But there is more. The key issue that has to be solved before the question of the scope of the Charter is actually about the real object of the application of X & X. Is it about a short or a long-term visa, and if so does it fall or not under the Visa Code, knowing that there are disagreements even about the scope of the visa code (see the technical counter-arguments developed against one blog post criticizing the way the CJEU has determined the scope of this instrument).

Personally, I add that the qualification in that case of the particular visas as ‘humanitarian visas’ is wrong, and that they are actually ‘asylum visas’ as article 25 of the Visa Code envisages “international obligations” and so possibly the Geneva Convention on refugees. This is not only a question of the correct label. It has a crucial impact as the Court considered that humanitarian long term visas fall outside the scope of EU law because they have not been harmonized under the common immigration policy. I would argue instead that asylum visas belong to a policy that has obviously been harmonised. One can however argue that asylum applications made through consular or diplomatic representations of Member States do not fall under the scope of EU law on the basis of article 3, §2 of the asylum procedures directive of 2013.

All these detailed observations give an idea of the technicality and complexity of the discussion that will take place in this workshop in presence of a mix of experts of the EU Charter on Fundamental Rights, as well as of migration and asylum law, the knowledge of those two areas being actually necessary to try answering the questions raised in X & X.

2. Human rights

Workshop C about the human right to leave a country is linked with the measures taken by the EU to stem migration flows examined under the previous workshops. The right to leave is not absolute and can be limited under article 2, §3 of Protocol 4 ECHR for “reasons of national security, public safety, public order, the prevention of crime, the protection of health or morals, and the protection of the rights and freedoms of others”, but the question is if such reasons can provide a legal basis for the measures taken by Turkey or Libya and, in that case, to which extent they can be justified.

Such issue has, to my knowledge, not yet been examined by a judge. As underlined by Elspeth Guild in her blog post preparatory to our workshop, the most relevant case is Stamose which the ECtHR ruled in 2012. The Court considered that the automatic imposition of such a measure (the confiscation of a passport for two years) without any regard to the individual circumstances of the person concerned (a Bulgarian national returned by the USA for illegal stay) may not be characterized as necessary in a democratic society.

Interestingly, the Court added that it might accept that a prohibition to leave one’s own-country imposed in relation to breach of the immigration laws of another State in certain compelling situations be regarded as justified. However, it did not have to rule about this issue as the salient point was that the applicant had been prevented to travel anywhere and not only to the USA where he had breached the law. The CJEU was even more restrictive towards a similar measure taken by the Romanian government in Jipa, but the legal framework of this case is specific as it concerned a European citizen and such case law can therefore not be transposed to third-country nationals.

The right to leave is forgotten by the EU and its Member States when they praise Turkey and Libya for preventing asylum seekers and migrants to leave their territory on their way to Europe. The objective of our workshop is to bring it back on the agenda and to launch a legal debate about the limitations that can be imposed to that fundamental right.

Workshop D is about the prohibition of collective expulsion. Among the very few cases where a violation of article 4 of protocol 4 ECHR prohibiting collective expulsions has been recognised, is the Khlaifia case concerning a very small group (only three Tunisians) with two contradictory rulings:

  • The second section of the Court considered firstly that there had been a collective expulsion in particular because the refusal-of-entry orders did not contain any reference to the personal situation of the applicants.
  • However, the Grand Chamber considered that the relatively simple and standardised nature of the refusal-of-entry orders could be explained by the fact that the applicants had neither alleged that they feared ill-treatment in the event of their return, nor that there were any other legal impediments to their expulsion. Therefore, the Grand Chamber held that simultaneous removal of the three applicants may be explained as the outcome of a series of individual refusal-of-entry orders instead of a collective expulsion.

One may wonder what must be the standard of review in order to avoid a collective expulsion, in other words, to which extent the authorities must individualise the examination of each potential returnee. The requirement of taking individual decisions adapted to the specificities of each case could be considered as a general principle of administrative law, even if it has not been explicitly expressed under human rights law.

But simply requiring individualization without providing any further indication, as the second section of the ECHR did in the case Khlaifia (point 156) is too easy. The judge should instead try to assist the administration by explaining precisely what has to be checked in order to avoid a collective expulsion. One element of answer can be found in the decision of the Grand Chamber which underlined as a “paramount safeguard” the fact that the applicants had been given the opportunity to apply for asylum but had not done so (point 247).

This leads to the idea that the authorities should at least check the risk of violation of article 3 ECHR before returning a person that has not applied for asylum. One will note with interest that this issue is precisely what is currently at stake in the case of the Sudanese recently send back to Sudan by the Belgian authorities and who might have been tortured upon arrival, a point that is for the moment the object of an enquiry to determine the legal and political responsibility of the Belgian authorities in that case.

This raises the question which arguments the authorities must examine proprio motu. The list of elements to be automatically checked by the administration would therefore disregard another potential element of individualisation, namely the protection of family life under article 8 ECHR, which is not an absolute right. Bearing in mind all those elements, we expect critical discussions during this workshop.

3. Institutions

The last stream of workshops will deal with issues of a very different nature, revolving around institutional and operational matters. Workshop E focuses on the external competence and representation of the EU and its Member States in migration and asylum.

This is a politically controversial, but also legally complex area where the distribution of competences, and in particular their nature (exclusive or concurrent?) is not always easy to determine. As it is well known, the General Court considered in NF that the EU-Turkey statement of 18 March 2016 cannot be regarded as a measure adopted by the European Council, but one that was adopted instead by the Heads of State or Government of the Member States of the EU and the Turkish Prime Minister. It therefore concluded that it has no jurisdiction on the matter.

What is striking is that the General Court never questioned the distribution of competences in relation to a statement such as the EU-Turkey statement of 16 March 2016. As explained by Paula Garcia in her post introducing the workshop, some of its most important elements (readmission and asylum) belong to the exclusive competence of the EU. It so appears that the General Court has allowed the Member States to intervene in such area, giving the priority to a kind of intergovernmental framework instead of the institutional framework of the EU.

One will note with interest that “[f]or the sake of completeness, the Court considers that, even supposing that an international agreement could have been informally concluded during the meeting of 18 March 2016, that agreement would have been an agreement concluded by the Heads of State or Government of the Member States of the European Union and the Turkish Prime Minister(point 72). Such conclusion goes directly against the entire case-law of the Court of Justice launched by the historical ruling in ERTA of 31 March 1971!

We therefore await with great interest the decision of the Court of Justice on appeal of this case in order to find out whether the General Court did not get lost in a role of Sherlock Holmes reviewing the documents and press releases related to the meeting of 16 March 2016 to determine their author, instead of taking into consideration all relevant elements from a legal point of view.

The last Workshop F will focus on Justice and Home Affairs Agencies, in particular the amended Frontex whose official denomination is now the European Border and Coast Guard (EBCG) and EASO that should become in the future the EU Asylum Agency (EUAA). Agencies are the vehicle of a progressive but profound transformation of the modes of implementation of EU law that has been fueled by the 2015 crisis. We examined in last year’s conference the emergence of an administration integrating the European and national levels on the basis of research done by Lilian Tsourdi. This year will be devoted to the analysis of another trend related to the control of Member States through agencies even if the word control is carefully avoided not to frighten them.

This evolution has already been observed with the EBCG that I presented as a new model based on an old logic in the European Papers. The new elements are that this agency has been given the power to adopt a “technical and operational strategy for European integrated border management” (article 3) while the Member States have to adopt their own strategy that must be “in line” with the European strategy (article 3). Moreover, the agency should assess the availability of the technical equipment, systems, capabilities, resources, infrastructure, adequately skilled and trained staff of Member States necessary for border control through what is called a “vulnerability assessment” (article 13).

The same evolution with the transformation of the EASO into a EUAA can be observed on the basis of the partial agreement concluded on 27 June 2017 between Council and Parliament regarding the Commission proposal that could be adopted in the near future. The emerging trend observed with the EBGC seems to deepen with the EUAA:

  • Even if the asylum agency will not provide general guidance to the Member States like Frontex through a European strategy, it will acquire the power to steer them on specific issues through guidance notes on countries of origin that “Member States should take into account” when assessing individual asylum applications and other soft law tools like operational standards and guidelines.
  • The “monitoring mechanism” – (a concept whose scope might be broader than the vulnerability assessment?)- would lead the asylum agency to assess “the operational and technical application of the Common European Asylum System in order to prevent or identify possible shortcomings in the asylum and reception systems of Member States and preparedness to manage situations of disproportionate pressure so as to enhance the efficiency of those systems”.

Even if comparing the EBCG and EASO regulations is an interesting exercise, one should not forget the global picture that gives us as mentioned above the image of the old logic behind this new model. Frontex 2.0 and EASO 2.0 would remain fundamentally intergovernmental agencies; an assessment which brings to question their independence towards Member States as well as their capacity to supervise policy implementation. If the legislator is aware of this issue, no solution has been envisaged apart from creating a supervisory board around the Director of Frontex (an idea of the Commission that was dropped) and providing the EUAA with sufficient resources and staff, including the agency’s own staff.

As the upcoming contradiction between the new functions and the intergovernmental nature of EU agencies seems difficult to resolve without reopening an inter-institutional war between the Commission and the Council on the control of agencies, this is a promising avenue for new research since the literature on Justice and Home Affairs Agencies has up to date mainly focused on the issue of accountability.

Towards judicial passivism?

The discussions in all these workshops will feed in the debate during the closing plenary session devoted to the position and role of judges in EU migration and asylum law and policy.

Political correctness should not prevent us to mention that the authority of the CJEU is at stake with rulings like X & X and NF. Among the harsher comments made about X and X, one will note that the Court sheds further doubts on its capacity to act as a true human rights courts and finally preferred political opportunism to legal integrity; about NF, dismissing the important questions raised by the deal, as the GC did, will undermine the protection of human rights and the rule of law and will cast doubt on the existence of an effective system of judicial protection in the EU legal order” and “the General Court has bent the authority of the European judicial system to the demands of real politik”. Not only NGOs but most academics seem to share the idea that the Court tried to escape ruling on the substance by considering that the EU Charter does not apply to the request for an “asylum visa” and that the European Council has not adopted the statement with Turkey. In other words, the Court is using an “avoidance technique”.

Even the case Slovakia and Hungary v Council where the CJEU ruled on the substance by refusing to annul the relocation scheme of asylum seekers has been strongly criticised by Henri Labayle in a paper ironically entitled “solidarity is not a value” where he considers that “the Court used the principle of solidarity to the expense of the solemn proclamation we could have hoped for. It could have opted for a direct approach, similar to that of its Advocate General, to deliver one of the praetorian phrases of which it alone has the secret, consisting in conspicuously recognizing all its legal strength to the principle (of solidarity) formulated in article 80 TFUE. Yet, it took a biased approach by searching a manifest error of assessment to arrive at the same conclusion”. This is what Iris Goldner Lang considers “judicial passivism” (in the narrow or large sense that can be given to this expression) in a blog that we will publish very soon to introduce the final plenary session of the Odysseus annual conference. This is also why we have entitled the debate that will gather judges and academics “Towards judicial passivism in EU Migration and Asylum Law”?

The reader will note the question mark that we added to this title. One has indeed to be careful with the accusation of judicial passivism (or restraint) that might not be more consistent than the idea of judicial activism traditionally opposed to the CJEU. In that sense, Franklin Dehousse, former judge at the General Court of justice, considers that “in general, there is little basis for the accusation of activism. Judicial activism itself is an overrated concept and, in any case, the ECJ is generally quite careful not to engage in it. The criticism that the ECJ lacks technical competence seems to have more validity if one reads the academic literature”. In particular, Franklin Dehousse considers that the case-law of the CJEU suffers from “limited explanations” and “weak methodology”, “observers criticising less the ECJ’s results than the method by which they are achieved”.

“Judging Europe’s judges” to borrow the title of a famous book remains a delicate task. Accusing the CJEU of judicial passivism in those cases is tempting as it goes along the idea of “integration (in this case it would be disintegration) through law” considering the Court of justice as a political actor, an idea supported by political scientists. Starting from the point that the Court is not a political actor (at least not one like the others), Andreas Grimmel warns about the danger of transferring existing approaches and concepts from political science to the field of law and considers rightly that fair and appropriate critique of the judicial development of law must be addressed by means of law, not by projecting ultimately non-testable political interests on the Court and its judges.

This invites not only a critical but also a careful and in-depth analysis of arguments and counter-arguments about the case law and it is why we have convened the workshops on X & X and NF before the final debate. As explained above, those cases are actually about fundamental questions of (EU) law. X & X raises firstly the question how to determine the object of the visa application, and secondly how to delineate the scope of application of EU law not only on the basis of the contorted jurisprudence of the CJEU on this issue, but also of the detailed provisions of the Visa Code (see above). NF raises the question of the determination of the author of an act which implies more than researching who adopted it and necessitates taking into consideration elements such as its content. It looks as if the more basic the questions are, the more difficult it becomes to answer them clearly.

One will note that the debate is this time not only about the reasoning of the Court, as it is often the case, but as well also about the very answer provided by the Luxembourg judges. Thomas Spijkerboer considering that “the options preferred by the Court are the outcome of a combination of legal analysis and political choice” has perfectly described with strong words the fundamental debate behind X & X and NF: it is not only about keeping migrants and refugees “outside the territory of the European Union” as it the case with the externalisation of EU policies but about keeping them “outside the scope of EU law”. He concludes that by reserving European law for Europeans, the court also naturalizes policies that intervene in third countries without even seeking the legitimacy that comes with judicial supervision and human rights law”.

After a long evolution of the treaties that has finally lead to an extension of judicial control at EU level to migration and asylum law following the ordinary rules and the recognition of the Charter of Fundamental Rights as part of primary law, the rule of law and the place of human rights are still at stake in EU law. As suggested by Anthony Arnull about how academic should respond to judicial activism (as well as passivism), legal scholars have therefore the lonely and painstaking task and duty to scrutinise carefully the jurisprudence of the CJEU with the same degree of impartiality as we expect from judges, all the more so as migration and asylum are nowadays unfortunately among the most politicised issues at EU and national levels.

The Odysseus Network, that has already rewarded by its annual prize the work undertaken by Marie-Benedicte Dembour about what she considers as judicial passivism from the European Court of Human Rights in the area of migration and asylum, intends to open this debate about the CJEU by devoting its 2018 annual conference to “Conflict and Compromise between law and politics in EU migration and asylum policies”.