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

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

I. The Twenty-Day Crisis

This note was written after the events surrounding the opening of the Turkish borders on 28. February 2020 to migrants who wanted to enter Greece and the EU had come into a close. We can now take a more detached view of the crisis and its implications. On 13. March, it was reported that Turkey was scaling back its actions and on 18. March it announced that it was closing its borders to Greece and Bulgaria because of COVID-19. Nonetheless, so far, the tensions between Greece and Turkey endure.

The crisis offers the opportunity for a sober assessment of the relationship between asylum law and the geopolitical state of affairs. Geopolitics indicates more than just the quality of relations between two or more States. It includes the broader landscape of factors and actors, such as the structured national and transnational interests across a broader region, the physical and human geography, the power resources, the struggle for influence, and the conflict potential among States, as well as between State and non-state actors. Mass migration influxes constitute a major geopolitical factor that can rearrange the constellation of power in a broader region and have long-term consequences for governance and the foreign affairs of the States implicated.

This note does not aim to discuss in detail the legality or otherwise of the actions of the Greek authorities at the Greek-Turkish land and maritime border regions, but will take, instead, a broader look at the relationship between law and geopolitics and suggest an alternative to the mainstream position. The suspension of the right to request asylum for one month, as decided by Greece, was sharply criticized by the UNHCR, the UN Special Rapporteur on the human rights of migrants and by human rights groups, perhaps with good reasons and certainly with good intentions. A detailed analysis of the points raised in these statements, and of the underlying facts would require a different study. Here, it suffices to note that the critique of the Greek action does not take account of the complexities of the EU-Greece-Turkey triangle. Thus, they appear to be made in a geopolitical vacuum.

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By Dr Melanie Fink, Postdoctoral Researcher, Europa Institute, Leiden University; author of Frontex and Human Rights: Responsibility in ‘Multi-Actor Situations’ under the ECHR and EU Public Liability Law (Oxford University Press 2018).

Ever since Frontex’s establishment, the question of its human rights responsibility has been a source of contention and uncertainty. This has a number of drawbacks. On the one hand, if no clear consequences follow from unlawful conduct, this undermines the law’s preventive effect. If Frontex and the Member States participating in its operations can shift the blame among each other, they may be less ‘motivated’ to ensure their own compliance with human rights law. On the other hand, uncertainty also weakens the position of the victim of a breach because bringing legal action requires knowledge of the role each actor played with respect to a particular violation and the extent to which that is relevant for responsibility.

Drawing on some of the findings published in my book, this post discusses whether Frontex is responsible for human rights violations that occur in the context of its activities and how individuals’ access to mechanisms to invoke that responsibility can be improved.

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By Jonas Bornemann, Research Assistant and PhD candidate, Chair of Public, European and International Law, Universität Konstanz .

We thank the European Law Blog for authorising the re-publication of this post.

After the CJEU rendered judgment on the matter, headlines were quick to announce that Poland, Hungary and Czech Republic broke Union law by disavowing the refugee relocation mechanism; one of the major policy responses to the so-called refugee crisis. The judgment of 2^nd April 2020 (Joined Cases C‑715/17, C‑718/17 and C‑719/17) adds another chapter to a dispute that simmered for years, even after the relocation mechanism’s two year lifespan had expired. Against that background, Commission President Ursula Von der Leyen reportedly noted that the ruling ‘is referring to the past but it will give us guidance for the future.’ How did the Court solve the dispute? And which ramifications may the judgment yield for EU migration law?

This post intends to discuss these questions, focussing in particular on the canny yet vain invocation of Article 72 TFEU as a legal avenue to depart from binding Union law (I.) and the emphasis of the relocation mechanism’s administrative nature (II.). On the basis of these considerations, it will be argued that the judgment seeks salvation in administrations’ wide discretion as a politically sensible solution, albeit with legal repercussions (III.). Thus, the post takes the view that the judgment allows both the defendant Member States and the Commission to come to terms with the relocation mechanism. Yet, it raises unresolved legal questions, which may motivate follow-up litigations.

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by Eugénie Delval, PHD candidate at the Université Libre de Bruxelles

In a recent landmark ruling, the United Nations Human Rights Committee found that climate-induced displaced persons can’t be sent back to their home countries where their right to life is threatened because of the effects of climate change. Climate conditions can thus trigger the non-refoulement obligations of sending states. The decision has been applauded by human rights and refugee rights advocates as a “ground-breaking” ruling that opens the doorway to future protection claims for individuals whose life is threatened due to the climate change.

The petitioner, Ioane Teitiota, is a citizen of the Republic of Kiribati, located in the Central Pacific Ocean and considered as one of the countries most threatened by rising sea levels. In 2012, he applied in New-Zealand for protection as a refugee and/or protected person, arguing that the sea level rise and other effects of climate change have rendered the living conditions in Kiribati unstable and precarious. The author claimed that life in Kiribati has become so untenable that returning him would violate his right to life under New Zealand’s Immigration Act. Teitiota’s asylum application was denied subsequently by New Zealand’s Immigration and Protection Tribunal, High Court, Court of Appeal and Supreme Court and he was removed to Kiribati, with his family, in 2015 (For a review of New Zealand climate change cases, see here). Ioane Teitiota finally filed an individual communication with the UN Human Rights Committee (“Committee”) under the Optional Protocol to the International Covenant on Civil and Political Rights (“ICCPR”), asserting that, by sending him back to Kiribati, New Zealand has violated his right to life under Article 6 of the ICCPR. 

On January 7th 2020, the Committee upheld New Zealand’s decision and ruled that Teitiota’s return had not taken place in violation of his right to life. The Committee nevertheless recalls that States must refrain from deporting an individual when there are substantial grounds for believing there is a real risk of irreparable harm such as that contemplated by Article 6 (right to life) and Article 7 (prohibition of torture or cruel, inhuman or degrading treatment or punishment) of the ICCPR (§ 9.3). The question that was raised before the Committee was whether Teitiota was exposed to a “real risk of irreparable harm” to his right to life in Kiribati. The Committee specifies that “there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists” (§ 9.3) (on the relevance of applying the test of a “real risk of irreparable harm” to the present case, see here). It concluded that the applicant had not provided sufficient evidence demonstrating that he faces any real chance of being the victim of a situation that would result in life-threatening conditions.

While Ioane Teitiota lost his case as his claim was ruled not to be strong enough based on the specific circumstances and evidence of the case, the Committee did issue strong statements on States’ responsibility when it comes to climate-induced displaced persons. It recognises that if climate change impacts worsen in the future, governments may not return people to their home countries where their life is threatened or where they would face inhuman or degrading treatment due to these impacts. The non-refoulement obligations imposed on States, would, thereby, be triggered. 

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