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

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By Vera Wriedt, PhD researcher at Hertie School’s Centre for Fundamental Rights.

This blog post was first published by Strasbourg Observers.

The closure of the Greek-Macedonian border on 8 March 2016 entailed systematic pushbacks. The largest operation occurred on 14-15 March 2016, when more than 1500 refugees were summarily returned from North Macedonia to Greece. The complaint of AA and others v North Macedonia addressed this large-scale pushback operation. However, instead of condemning these pushbacks, the European Court of Human Rights expanded the exception from the prohibition of collective expulsions created in the case of ND and NT v Spain and found the applicants culpable of circumventing legal pathways, ignoring that these were clearly not available in practice. Thereby, the Court reproduces exclusionary reasoning that has shaped the European Convention on Human Rights since its inception.

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By Stéphane Saurel, Professor at Université Saint-Louis (Bruxelles), at Université catholique de Louvain, and author of the book Le budget de l’Union européenne (La Documentation française, 2018)

The budgetary scrutiny is one of the most powerful cards the European Parliament can play to make effective its oversight over a decentralised agency. The budgetary discharge procedure is indeed an instrumental tool to enhance the political accountability of the agencies. The European Border and Coast Guard Agency (Frontex) provides a good illustration of how the European Parliament uses this power as, from the second year in a row, it withheld its approval of the management of the agency’s budget. By contrast, the budgetary procedure offers to the European Parliament less possibility to influence the functioning of an agency.

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By Nikolas Feith Tan, Senior Researcher at the Danish Institute for Human Rights.

Introduction

The UK-Rwanda Asylum Partnership Agreement (APA) is the latest in a line of cooperative asylum arrangements that seek to shift asylum responsibility from destination states in the Global North to countries in the developing world. Such arrangements are generally for the purpose of deterring and deflecting protection seekers and, as such, the APA should be understood as a form of externalisation, an umbrella concept for the efforts of certain states to externalise certain basic functions (in this case asylum processing and protection) in the areas of border control and asylum.

It is important to locate the APA in its broader practice of related (but not identical) arrangements, which include US third country processing of intercepted asylum seekers at Guantanamo Bay, Australian-led attempts at third country processing and protection in Nauru and Papua New Guinea (PNG), the EU-Turkey Statement, Israel’s ‘voluntary departure’ programmes involving the transfer of Eritrean and Sudanese asylum seekers to Rwanda and Uganda, and the short-lived US-Guatemala Asylum Cooperation Arrangement. Almost 20 years on, the APA also resonates with the UK’s ‘New Vision for Refugees’, which included the processing of asylum seekers in transit states after arrival in the EU. And most recently, the UK would appear to have beaten Denmark to the line in announcing a transfer arrangement with Rwanda, a policy vision reflected in Danish legislation since June 2021.

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By Janine Prantl, Visiting Scholar at the Zolberg Institute on Migration and Mobility, and Ian Matthew Kysel, Visiting Assistant Clinical Professor of Law at Cornell Law School

This blog post was first published by The European Journal of International Law.

More than 5 million refugees have recently fled Ukraine, the fastest-growing mass displacement in this century. About a quarter of Ukraine’s population and half of its children have fled their homes. The European Union (EU) responded with a first-time activation of the Temporary Protection Directive (TPD). Lurking behind tremendous generosity, States have treated arrivals from Ukraine differently than other recent flows of forced migrants and have also treated some fleeing Ukraine differently than others. Although differential treatment is not always discriminatory under human rights law, some State responses to the current crisis arguably have been. Fortunately, the law creates myriad ways to challenge these violations. Using this law in the courts, we argue, could foster better protection of refugees and other migrants in the current crisis and in the future, strengthening non-discrimination’s rightful place as a key tool for advancing the rights of people crossing borders.

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By Dr. Maja Grundler, PhD researcher at Queen Mary University of London, and Elspeth Guild, Professor at Queen Mary University of London

On 14 April 2022, the UK government published a Memorandum of Understanding (MoU) concluded with the government of Rwanda for the provision of an asylum partnership arrangement. The MoU foresees the transfer ‘of asylum seekers whose claims are not being considered by the United Kingdom, to Rwanda, which will process their claims and settle or remove (as appropriate) individuals after their claim is decided.’ 

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By Tamás Molnár, Legal research officer, European Union Agency for Fundamental Rights, Visiting lecturer, Corvinus University of Budapest.

Setting the scene

In the field of border management, following the concept of European Integrated Border Management as set out in Article 3 of the new European Border and Coast Guard (EBCG) Regulation (EU) 2019/1896, EU Member States have been intensifying their cooperation either with third countries, or under the authority of third countries, or even operating in third countries. 

As a recent report by the EU Agency for Fundamental Rights outlined, these diverse forms of cooperation include: 

1) posting document experts or immigration liaison officers at third country airports to assist airlines in checking passengers before embarkation; 

2) the presence of EU Member State officials on third-country vessels patrolling the sea; 

3) EU Member State vessels patrolling the territorial waters of a third country based on a bilateral agreement (e.g. Spain has concluded such agreements with Senegal and with Mauritania); 

4) sharing information with the neighbouring third country and requesting it to intercept people before they cross the border; as well as 

5) providing border management capacity building activities (e.g. training, technical assistance with equipment, intelligence and even financing) in third countries (e.g. Italy supporting the Libyan Coast Guard and Navy under their bilateral Memorandum of Understanding).

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