Blog of the Odysseus Network

by Galina Cornelisse, Vrije Universiteit Amsterdam & Madalina Moraru, Masaryk University Brno, authors of Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart Publishing, 2020)

The concept of judicial dialogue that is central to our book Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union shows that in times characterised by legislative stalemate and crisis driven governance, courts and judicial interactions serve as important guarantors for the rule of law. As such they also set standards for policy-making that the institutions would be wise to engage with in the ongoing legislative process.

The Covid and perceived refugee crisis have seen a relapse of asylum and immigration policies across Europe towards executive driven policy making – both on the European level as on the level of the Member States. In this context the role of courts becomes especially salient and as such, a close look at the contribution of courts to the implementation of the Return Directive is more than timely. The contributors to our book show that European and domestic courts have played a crucial role in transforming the Return Directive from a ‘Directive of Shame’ to a positive normative example for legal orders around the globe. Judicial interactions in particular have been key for this policy transformation by giving the courts tools to act as gatekeepers for human rights protection and effective implementation of the Directive.

This has not been easy, since the task of those courts involved striking the right balance between competing objectives: they have been required to reconcile the demands of an effective return policy with the protection of the human rights of third-country nationals, or they had to find a compromise between traditions of judicial deference to administrative prerogatives over migration and the enhancement of legal accountability that is the direct consequence of introducing European legislation in this area. The 2018 Proposal for the Recast of the Return Directive put forward by the European Commission has brought back the debate on the design of return management and the vertical and horizontal allocation of powers.

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By Boldizsár Nagy, Central European University

On 14 May 2020 the Grand Chamber of the CJEU delivered its judgment in the urgent preliminary ruling procedures concerning an Afghan couple (FMS and FNZ) and an Iranian father and son (SA and SA junior) all being held in the transit zone of Röszke in Hungary. The judgment (of which no English text exists yet) is of major importance for several reasons: it confirms that holding of asylum applicants at the external border in the transit zone is detention, clarifies that such detention must be necessary and proportionate, be ordered  in a formal decision and entail judicial review and must not go beyond the limits of the border procedure as defined by the Asylum Procedures Directive. It also rejects the extension of the inadmissibility grounds of the Procedures Directive, by adding the new ground of “safe transit country”.

Interestingly, it makes evident that the judgment of the Grand Chamber in the Ilias and Ahmed case of the ECtHR adopted in November 2019 was wrong in evaluating the facts and finding that the “waiting” in the transit zone was not detention and makes clear that the ECtHR judgment now is largely irrelevant as it would only apply to border-procedure cases which are absent from Hungary’s practice since 2017. This blog post reviews the judgment (I) as well as the Hungarian Government’s reaction to it (II) with the adoption of a procedure which presumes that asylum seekers get legal access to Hungary after applying for a travel document at Hungary’s embassies outside of the Schengen area.

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By Majd Achour & Thomas Spijkerboer, Amsterdam Centre for Migration and Refugee Law.

You can find here the Arab original and Majd Achour’s English translation of the writ of summons, the Arab original and Majd Achour’s English translation of the Tripoli Court of Appeal Judgement, the Arab original and Majd Achour’s English translation of the Libyan Supreme Court Judgement.

Introduction

The bilateral agreements between Italy and Libya which entered into force on 4 February 2009 were fatally undermined by the Strasbourg court’s ruling in Hirsi Jamaa and others against Italy. On 2 January 2017, a new Memorandum of Understanding  (Italian version here and English version here, analysed in this blog) was signed between Libya and Italy which aims at developing cooperation in different fields including the fighting against irregular migration. In this new agreement, Italy has changed its strategy from push-backs to pull-back operations to Libya. These operations are coordinated, equipped and funded by Italy while carried out by the Libyan coast guard which would also make sure that intercepted asylum seekers will be detained thereafter in Libya pending the voluntary or forced return to their countries of origin. In March 2017, a case was brought before the Tripoli Court of Appeal challenging the MoU. The Tripoli Court of Appeal suspended the MoU by way of interim injunction. In the appeal against that injunction, the Libyan Supreme Court declared the appeal admissible and ruled that the contested ruling, issued by the Tripoli Court of Appeal, was to be annulled due to the lack of functional jurisdiction. The Supreme Court thereby ended the entire lawsuit.

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 Thomas Gammeltoft-Hansen is a professor with special responsibilities in migration and refugee law at the Faculty of Law, University of Copenhagen and Nikolas Feith Tan is a researcher at the Danish Institute for Human Rights.

On 5 May 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) handed down its long-awaited decision in MN and Others v. Belgium, a case testing whether a Syrian family’s humanitarian visa application at the Belgian embassy in Beirut triggered the state’s human rights law obligations. In a majority decision, the Court held that the process of applying for a visa in person did not bring the applicants within European Convention on Human Rights (ECHR) jurisdiction, declaring the case inadmissible.

The decision has already been the subject of a number of scholarly reactions, ranging from reflections on refugees’ exclusion from the international legal order (here), the strategic value of the case and implications for legal pathways to protection (here), the exercise of public powers and conduct of diplomatic agents (here) and a comparison of the approaches of the Inter-American and European human rights courts’ on diplomatic asylum (here).

But the underlying question – whether asylum-seekers applying for a visa at an embassy or consulate trigger the non-refoulement principle – is also a long-standing and contested issue in refugee law scholarship. Following a short recapitulation of the facts and conclusions of the ECtHR, we address the contribution of MN and Others to this question and suggest some implications for future extraterritorial jurisdiction jurisprudence. Continue reading »

Andreina De Leo and Juan Ruiz Ramos, 

LL.M Candidates in International Migration and Refugee Law,

Vrije Universiteit Amsterdam

From Wikileaks to the San José Court

In 2012, more than 355 thousand individuals applied for asylum in Europe. Yet no other asylum application resonated in the media as much as the one filed by Julian Assange at the embassy of the Republic of Ecuador in London. Faced with a criminal investigation in the United States and an arrest warrant in Sweden, the famous Wikileaks founder was soon granted diplomatic asylum by the Government of Ecuador, who shared Assange’s perception that the United States was “orchestrating” a political persecution against him. Although the risk of his extradition to the United States is more tangible now that he is detained by the British authorities, the debate around whether Assange could be considered a political refugee was served at the time. Be it as it may, after several years hiding in the embassy, the UK Government refused to grant Assange safe passage to go to the hospital for a check-up. The UK asserted that, if he left the diplomatic premises, he would be immediately arrested, thus “forcing him to choose between the human right to asylum and the human right to health”, according to Assange’s lawyers.

It was this situation of impasse which led the Ecuadorian Government to request an Advisory Opinion to the Inter-American Court of Human Rights (IACtHR) in August 2016. In a clear reference to the behaviour of the UK in all but name, Ecuador asked, amongst others, whether a non-party State to the Organisation of American States (OAS) could adopt a conduct which would undermine the right to asylum of a person who had been granted asylum by a State party. The 30th of May 2018 the Advisory Opinion OC-25/18 was issued, and Wikileaks hailed it as a victory. While the Court did not consider itself competent to establish the obligations of non-party States to the OAS (para. 32), it did make several findings which Ecuador could have used to back its position in diplomatic talks with the United Kingdom. Unfortunately for Assange, by that time the Government of Ecuador was not the same that had protected him all those years. New President Lenin Moreno was reticent to prolong the political tensions with the UK, and eventually revoked his asylum status in April 2019.

The 65-pages-long Advisory Opinion, however, could have an impact on the protection of human rights of refugees well beyond the Assange case. Moreover, it proves that a different interpretation of the rights of asylum seekers in embassies is possible, despite the recent decision M.N. and Others v. Belgium, where the ECtHR considered that the Convention does not apply to applications for humanitarian visas in diplomatic premises.

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By Achilles Skordas, Professor of International Law, University of Bristol; Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg.

In the first part of the blogpost, I discussed the Twenty-Day Greek-Turkish Border Crisis in its legal and geopolitical context. Assuming that prima facie the decisions of Greece to block the mass influx of migrants into the country (and into the EU) and to suspend the right to request asylum for a month were inconsistent with EU refugee law, I explored whether these measures could be justified under the ‘necessity clauses’ of Arts. 72 and 347 TFEU. Indeed, considering the confrontational posture of Turkey against  Greece, Cyprus, and the EU over a longer period of time, and the multifaceted conflict systems in the Southern and Eastern Mediterranean (Turkey-Libya-Greece, Greece-Cyprus-Israel-Turkey, Turkey-Israel, Turkey-Greece, Turkey-Cyprus, EU-Turkey-Syria-Russia) the guided exodus was the final straw in a much bigger and labile geopolitical antagonism. The course of events created a national security emergency for Greece because of the unpredictability of the quickly evolving situation, including in particular the uncertainty over Turkey’s strategic objectives and the enormous socio-economic consequences of a mass influx. For the EU, the fear over a ‘new 2015’ was the primary reason for its support to the Greek action. I argued that Greece could justify its actions, taken for a relatively short period of time, on the basis of the necessity clauses, which were conceived for this kind of crises.

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