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

By Gabriel Almeida, Katharina Bamberg and James Kneale, OMNIA Coordination Team, Odysseus Network

This blog post sets out the main issues that animated the debate during the Odysseus Annual Conference 2017 “Beyond ‘Crisis’? The State of Immigration and Asylum Law and Policy in the EU”, which brought together legal and policy experts on asylum and migration from across Europe to critically assess the developments in asylum and migration law in 2016 and to investigate possible future trends.

Stream 1: Cooperation between Member States (video recording)

Workshop 1: Towards a European Border and Coast Guard?

The new European Border and Coast Guard (EBCG) offers an example of the need for new solutions, on the one hand, and the difficulties of moving beyond traditional models of inter-state cooperation, on the other hand. The EBCG would be better prepared than Frontex in cases of emergencies at the external border, with a rapid reaction to be implemented in maximum 5 days. As for the external dimension, an important innovation is the possibility of national border guards to operate in neighbouring countries. Another example is the existence of a Frontex liaison officer in Turkey, with liaison officers to be established in Western Balkan countries and in Niger shortly.

Despite some concerns expressed about the militarisation of Frontex, one should not talk about militarisation of the agency per se, but rather about the increasing interest of national military authorities in border surveillance and control which escape the “checks and balances” procedures by which Frontex is bound. Moreover, the recourse to instruments normally used in military activities, such as satellites and drones, does not mean a militarisation of the agency.

It was generally agreed that the EBCG does not imply a substantial revamp of Frontex, but rather institutes a Frontex plus where the lack of consensus on an integrated border management is very much alive. A notorious example of this  is the absence of satisfactory answer to the question of who is responsible for search and rescue operations. The EBCG in fact follows an old logic to answer a new reality. In other words, despite its name, the new Regulation did not create an authentic European Border and Coast Guard. In particular, the degree of solidarity prescribed by the regulation falls far short of the expected and much needed full consideration of the principle of shared responsibility.

Workshop 4: Hotspots and EU Agencies: Towards an Integrated European Administration?

The revamped Frontex is one among other agencies in the field of Justice and Home Affairs. While political scientists would expect a policy fragmentation with the proliferation of agencies in this field, what we see is instead a unique inter-agency co-operation. This is the most clear in hotspots, where different EU agencies and national authorities have engaged in innovative administrative procedures, knowing that hotspots work very differently in Italy and Greece and are a solidarity tool that plays an essential role for the management of external borders and the good functioning of Schengen.

Lilian Tsourdi expanded the arguments raised in this blog and drew on her broader study published in the European Papers. If initial practical cooperation between Member States consisted of information exchange through administrative networks and other ad-hoc projects, operations in hotspots are a considerable development towards joint implementation. Undoubtedly, the crisis faced by Italy and Greece and their lack of resources to manage the unprecedented migrations flows pushed the EU to move towards “de facto mixed proceedings”. The relation between EASO officials and Greek authorities is a case in point: EASO experts have a key role in the asylum procedure, including by performing interviews and writing reports which are later used by Greece to reach a conclusion on asylum applications. EASO has also the capacity to perform vulnerability checks. When looking at the cooperation between EASO experts and domestic authorities in the field, even though Greek authorities are ultimately responsible for decisions and do not have to necessarily uphold EASO’s opinion, most of the time Greek authorities simply translate it. In a practitioner’s view, when it comes to the admissibility decisions, one can ask if in practice the Greek authorities are those who assist EASO experts, and not the other way around as it should be the case.

Despite concerns regarding the respect for fundamental rights, hotspots are a living example of what an integrated EU and national administration practice can look like. One of the ways to improve this experience would be to enhance EASO’s role in hotspots and to put in place further protection safeguards for migrants. It was also considered that hotspots cannot be exported to third countries.

Workshop 7: Why does relocation not work?

To provide an answer, the workshop presented a much-needed background of the relocation decisions. The present mechanism can be considered as a “transitory model” of relocation, succeeding the “embryonic model” of EUREMA I and II possibly preceding a future “permanent model” of relocation if the Dublin IV proposal is approved. On 8 February, the Commission released its 9th report on relocation and resettlement showing that if 11,966 people have been relocated from Greece and Italy to date, the trend falls short of the target. Following a trend analysis, 28,000 relocations will take place until the end of the relocation mechanism in September 2017, only 28% out of the 160,000 relocations prescribed by the relocation decisions.

If there seems to be a consensus about the failure of the relocation on the basis of the number of relocations so far, a representative of the Commission offered a new way to evaluate the performance of the mechanism: not by comparing the total number of relocations with the 160,000 relocation-target, but rather by assessing if EU Member States manage to relocate all of those that are eligible for relocation currently present in Greece and in Italy, and whether the majority of Member States are engaged in this program. In other words, the target contained in the relocation decisions might no longer be in tune with the situation in Greece and Italy.

While recognising the difficulties in the relocation procedures, the Commission is of the opinion that Member States can still make the mechanism work. Despite Greece and Italy’s efforts to speed up the procedure with the support of EASO, relocations cannot be carried out if there are no pledges.  Pledges are often unsteady, which leads to the Commission’s request to receive monthly planning of pledges. The Member States seem to abuse their prerogatives to reject relocation on the basis of arguments of national security and public order. This leads to procedural difficulties faced by national authorities involved in relocation, such as long procedures for health and security assessments.  

For officials working on the ground in Italy or Greece, the legal loopholes and the complexity of the relocation procedures comes up as reasons explaining the difficulties. If one takes a EU-level scope, the lack of political will is blatant and the lack of solidarity is the underlying reason for the malfunction of the relocation mechanism. Finally, as regards the future of the relocation mechanism in the EU, the Commission will assess further options to push for compliance of the relocation mechanism after the 10th report on relocation and resettlement. One option could be the start of infringement procedures against the Member States who failed to follow their obligations under the Council decisions.

Stream 2 on the Protection of Persons (video recording)

Centring on the 2016 Commission proposals for a third generation of asylum legislation, the workshops of Stream 2 were clearly conceived along questions in relation to the protection of persons, especially with regard to the concept of coercion in the detention of asylum seekers and irregular migrants and the role of the judiciary in upholding detention standards. The workshops critically evaluated the state of art in European asylum law to date, focusing in particular on a lack of enforcement of EU law and the greatly varying standards throughout Member States. In scrutinising the proposed new round of legislation, one may doubt the added value of the proposals for both administrations and individuals seeking protection. The very pressing question raised is whether new legislation is actually needed as it appears to be based on the same dysfunctional and inconsistent asylum system currently in place.  

Workshop 2 – Judicial Interactions in control of Return and Asylum Detention

It became clear in the workshop’s keynote address that standards vary greatly in particular with regard to divergent practices in pre-removal detention based on the risk of absconding. One of the significant findings of the REDIAL project in this regard is that a new legislation is not needed to ensure consistency in the application of detention of asylum seekers, but more horizontal judicial cooperation between national courts.

An important point to highlight is the inherent difficulties associated with the consistency of detention standards, primarily the variety of national configurations of judicial competences to review return detention. In some Member States such as Belgium, Spain, France and Poland, criminal judges may be competent to review pre-removal detention, whereas in Germany it is a civil judge’s area of competence. In other Member States still, pre-removal detention falls under the responsibility of general courts, for instance in Hungary, Finland and Lithuania.

The pronounced discrepancy between EU law standards on detention and actual practice in the Member States was raised as well. The panel agreed that an improved training of judges and an establishment of harmonised standards for assessing the legality of pre-removal detention in the institutions and courts abiding by them is needed. Judicial scrutiny is crucial in ensuring that legal limits and procedural guarantees are respected in the practical and consistent application of detention standards.

The interactions between CJEU and ECtHR case law in national courts, and in particular different approaches of the two Courts to linking the detention of asylum seekers to a threat to public order were problematised starting from the case J.N. Article 5.1, f) ECHR covers the detention of asylum seekers only for reasons of removal, yet the CJEU ruled that the deprivation of liberty would be an appropriate way to protect the state on public order ground while in A. and Others v UK, the ECHR ruled that the individual right to liberty may not be equalled with general public order.

This also raises important questions with regard to the proper operationalisation of the principle of proportionality in individual cases, especially when keeping in mind Art. 5 ECHR. The problem becomes even more pressing when keeping in mind that the very diverse criteria used by Member States to determine the legality of return detention, have to be applied on a case by case basis.

The importance of considering detention cases on an individual basis instead of referring to members of a particular group was highlighted by Elina Pirjatanniemi in her analysis of the application of the concept of vulnerability. The ECtHR has increasingly relied on vulnerability in its reasoning and has certainly appreciated detained migrants’ and asylum seekers’ inherent vulnerability within the asylum system. Yet, the European legislator has applied the concept in over-exclusive way, for example in excluding young male asylum seekers from vulnerability criteria that specifically target other groups, such as women and children.

Workshop 5 – Why a third Generation of Asylum Legislation?

The question posed by this workshop may not come as a surprise, especially when considering the failure of the second generation of asylum legislation during the crisis. Workshop 5 raised the question of whether the third generation of asylum instruments will actually lead to reform or exacerbate the systemic flaws of the Common European Asylum System (CEAS).

The workshop discussed the most striking structural changes induced by the proposed legislation on the Dublin system, Eurodac, the Qualification Directive, the Reception Conditions directive and the Asylum Procedures Directive and placed those instruments in the wider context of an increasingly restricted access to asylum in European Member States. The proposals are based on a systematic approach to restricting asylum seekers’ movements between Member States, controlling their residence by linking it with a more complicated access to social welfare benefits, introducing more grounds for detention in relation to non-compliance with residence provisions, to name but a few.

Among the important reasons for asylum seekers being unable to assert their rights is the nature of the current asylum system, but also the lack of proper implementation, namely transposition and enforcement of EU law. One may ask whether more harmonisation as envisaged by the proposed regulations will actually lead to a system that will better respect asylum seekers’ rights during and after the application process.

On a greater scale, relying on debatable concepts such as safe country of origin or safe third country, is especially concerning as it sends worrying signals to third countries that host more refugees like Turkey or Jordan about the willingness of the EU to externalise protection responsibilities. Furthermore, the introduction of lower protection levels for safe third countries raises serious questions as to the effectiveness of the proposed legislation.

Workshop 8 – Dublin IV: The Way to Go?

Delving further into analysis of legislation, Workshop 8 scrutinised the Commission proposal for a Dublin IV Regulation. Within the wider context, the system of responsibility distribution was criticised for completely collapsing during the “crisis”, notwithstanding major malfunctions under normal circumstances such as irregular secondary movements of asylum seekers and excessive burdens on border Member States in particular. In this respect, both the European Parliament and the European Commission seem to be pushing for a greater inclusion of a solidarity clause between Member States in the proposal for a Dublin IV Regulation.

Against this background, the question was asked whether the Dublin IV proposal may in fact worsen such deficits currently included in Dublin III. Due to largely inefficient implementation mechanisms and a political unwillingness to control borders (implying a responsibility to process all asylum seekers intercepted at the border), in 2014 only 34% of agreed transfers of asylum applicants were eventually effected. Yet, the Commission seems to propose keeping this system that is broken beyond repair. Underlining the infeasibility of distributing individuals across the EU independently of their will or cooperation and according to a predetermined key of distribution of persons between the Member States that achieves only sluggish results, the question put is whether we should stick to an illusion of control or to try identifying and processing asylum applications as quickly as possible?

Sticking with the idea that smaller patch-ups may not be sufficient to tackle the basic problems inherent to the Dublin System, the main general and practical challenges faced were summarised: the overall duration of the procedure, the design of the responsibility criteria, the diverging standards between Member States’ asylum systems, absconding of persons, lengthy judicial procedures and a lack of coordination between Dublin states. Related to the absconding of asylum applicants are a number of human rights issues like the right to be heard, conditions during the accelerated procedure and the unaddressed situation faced by persons with special reception needs. In this sense, the proposed Dublin IV regulation should not succeed in actually establishing a common and cooperative system of processing asylum applications between Member States.

Stream 3 on the management of migration flows (video recording)

Workshop nº 3 on European Databases focused on the proliferation of databases used for migration monitoring in the EU. The three currently operational information systems in the EU – the Schengen Information System (SIS), the Visa Information System (VIS) and Eurodac – are to be accompanied by a series of new systems such as the Entry-Exit System, ETIAS and the PNR.

In her keynote presentation, Niovi Vavoula analysed the proliferation of information and surveillance systems in the EU in light of the recent case law of the CJEU, in particular the principle of proportionality. Applying this line of jurisprudence to Eurodac, there is no doubt that this system constitutes an interference with the fundamental rights to privacy and data protection as guaranteed in the EU Charter of Fundamental Rights. The use of this database constitutes mass surveillance: it contains extensive personal data and allows authorities to draw precise conclusions about individuals whose data are contained therein. This will become even more of a concern in the future, when the information systems will become inter-operable, allowing the authorities which have access to create profiles of data subjects with ease. Given the particularly serious nature of this interference in fundamental rights and the sensitivity of the data collected, a particularly strict proportionality test should be applied by the Court of Justice.

Instead of being disproportionate, the Commission argued that these systems are governed by the principle of purpose limitation, each database having a strictly delimited purpose for which it can be used. Moreover, according to Monika Hohlmeier, Member of the European Parliament, these databases protect security and human rights, allowing law enforcement authorities to operate effectively and protecting the interests of victims of trafficking. She argued in particular that Eurodac is ideally suited to finding missing children. Niovi Vavoula replied that a system which is of a disproportionate nature cannot be justified by one positive element, such as the use of the database for finding missing children and that it is difficult to reconcile the principle of purpose limitation with the future interoperability of the information systems.

Workshop nº 6 on Legal Migration

There was a general agreement amongst the speakers that the original Blue Card scheme is a failure. As discussed elsewhere on our blog, EU Member States issued in 2014 a total of 13,612 Blue Cards, compared to 572,000 first residence permits issued for employment purposes. Taking the specific example of Belgium, a mere 19 Blue Cards were issued in 2015. So what went wrong, and what will the Commission’s proposal do to improve the attractiveness of the scheme to highly skilled third country nationals?

Following Philippe De Bruycker’s presentation, the failure of the original Blue Card scheme can be explained by the existence of more attractive parallel national schemes for the admission of highly skilled workers. In a lot of Member States, those schemes provide for shorter processing times, fewer document requirements, lower salary thresholds and greater flexibility, all of which make them more attractive to businesses. The new Commission proposal of 7 June 2016 is much more ambitious. It aims to abolish all national schemes competing with the Blue Card, thus alleviating one of the major flaws of the current scheme. Keeping or forbidding national schemes remains one of the key elements of the negotiation as on this point the Council is opposed  to the views of the Commission and of the European Parliament.

However, this abolition will only make the Blue Card a success if it is the best scheme possible with a real added value as compared to existing national schemes. One such element of added value is the possibility for intra-EU mobility. The current Blue Card provides almost for no facilitation of intra-EU mobility, and so the new proposal, which facilitates short-term mobility for business activities as well as long-term mobility after 12 months, is ambitious. However, the proposal does not go far enough by providing short-term mobility only for a list of “business activities” which is too restrictive.

The added value of the new Blue Card ultimately depends on the outcome of the institutional dialogue between the Council and the Parliament. The failure of the original Blue Card resulted from the intergovernmental method that was still applicable in the area of legal migration when Directive 2009/50/EC was adopted. Nowadays, the role of the European Parliament in the co-decision procedure should allow the Union to put in place a real European Blue Card, overcoming the objections of the Member States which prefer to keep their parallel national schemes. This is a real test for the supranational method compared to the intergovernmental one.

Workshop n°9 on the EU Migration Partnership Framework

The external dimension of the refugee crisis has been the subject of much discussion on the Odysseus blog and elsewhere, and so workshop nº 9 focused on the very topical question of the new EU Migration Partnership Framework with third countries, presented by the European Commission in its Communication of 7 June 2016, replacing the Global Approach to Migration and Mobility. As Georgia Papagianni noted, migration is not a problem, but a reality. It is a global phenomenon that must be managed, and such management must be multidimensional, combining both short-term and long-term measures. She pointed out that, due to its complexity, migration can only be managed through partnership with third countries, and it is against this backdrop that the EU has adopted the Migration Partnership Framework approach. The success or otherwise of the Migration Partnership Framework in limiting migration flows to the EU is, however, difficult to evaluate at this stage as the results should be assessed in terms of a marathon, and not a sprint.

Following the workshop’s convenor Céline Bauloz, agreements with third countries follow a “carrot and stick” approach, providing both positive and negative incentives to third countries to help to stem the flow of migrants to the EU. This approach revives the old idea of development conditionality that was prevalent at the start of the 21st century, and undermines the idea of a “solid partnership based on mutual trust” that supposedly underpins such agreements. Such approach is not entirely one-sided as it does allow the partner country to gain some benefits, such as development aid, visa facilitation, and trade, yet the interests of migrants themselves get lost in this trade-off. This is particularly due to the deterrent strategy that is central to the Migration Partnership Framework.

However, Sergo Mananashvili argued that the Migration Partnership Framework does not have a disproportionate focus on irregular migration, return and readmission, noting that only 30% of the money sent to Niger, for example, is designated for this purpose, and that of this 30%, a proportion is spent on reintegration programmes. Despite Céline Bauloz’ criticism, the Migration Partnership Framework is actually not at odds with the sustainable development goal of facilitating safe, orderly and regular migration. As seen in the New York Declaration on Refugees and Migrants of 13 September 2016 adopted at the UN Summit for Refugees and Migrants, return and readmission policies play a central role in this goal.