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 Constantin Hruschka, senior researcher at the Max Planck Institute for Social Law and Social Policy Munich.

In its judgement N.D. and N.T. of 13 February 2020, the Grand Chamber of the European Court of Human Rights (ECtHR) rejected the finding that Spain had violated the ban on collective expulsions enshrined in Article 4 Protocol No. 4 of the European Convention on Human Rights (ECHR). To conclude from this that the practice of so-called hot returns, i.e. the direct deportations without individual examination directly at the border, was approved by the ECHR, is understandable in view of the press statement of the ECHR but wrong. The practice of hot returns was and remains illegal.

In the case before it, the ECtHR merely interpreted the wording of article 4 of Protocol 4 to the EHCR (“Collective expulsions of foreign persons are not permissible”) – in a legally questionable manner – by adding a (narrowly limited) exception in a case that resulted in the aftermath of “an attempt by a large number of migrants to cross that border in an unauthorised manner and en masse.” Consequently, the ECtHR did not find any violation in the specific individual cases. However, the Spanish border control measures (or even “Fortress Europe“) have thus neither been approved nor has the principle of non-refoulement or the question of access to an asylum procedure been made dependent on the person first trying to enter Europe legally. Rather, hot returns are still prohibited, not according to Article 4 of Protocol No. 4 to the ECHR, but according to Art. 3 ECHR prohibiting inhuman and degrading treatment or punishment. One could also interpret the judgment as meaning that the ECHR did try to avoid a political statement on the issue before it.

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By Daniel Thym, Universität Konstanz

In times of twitter and social media, we get used to quick reactions and clear-cut opinions that lend themselves to intuitive approval or rejection. Not surprisingly, the immediate response to the Grand Chamber’s N.D. & N.T. judgment rectifying the Spanish policy of ‘hot expulsions’ of irregular migrants was met with ‘shock’ – a ‘slap in the face’ of human rights law that “refutes the raison d’être” of the European Convention on Human Rights (ECHR). These first analyses are correct insofar as they express the utter disappointment of the authors at the immediate outcome of the case and the initial conclusion that judges backtracked from an earlier dynamic interpretation of the prohibition of collective expulsion.

This blogpost presents a different reading. It will highlight that the ruling is defined by a series of inbuilt ambiguities that combine restrictionist tendencies with dynamic elements, which are bound to cause heated debates of both principle and practice in the coming years. These uncertainties concern the scope and the meaning of the novel exception for those entering illegally and the normative contours of the – potentially wide-ranging – judicial insistence on legal pathways for refugees and migrants. Moreover, greater emphasis should be put on the statutory guarantees of EU asylum law, which are better placed to assess the situation at the external borders. Such technical issues would gain further relevance if follow-up cases confirmed the intuitive impression that the N.D. & N.T. judgment heralds an endpoint to 25 years of migrant-friendly human rights case law.

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By Jessica Schultz, Post-Doctoral researcher,

University of Bergen, Faculty of Law

With increasing enthusiasm, European states are reviving the Refugee Convention’s cessation provisions in service of their return-oriented refugee policies. This practice threatens the careful balance established by refugee law between the security of refugee status, on the one hand, and its impermanence on the other.

This post reviews the legal requirements for cessation of refugee status as well as how the focus on return distorts their application. Through the lens of Norwegian practice, it is possible to see how reliance on an internal protection alternative (IPA) and non-state actors of protection dilute the requirement of durable protection, especially for women and children.

As cessation practice becomes a more normalized part of refuge administration in Europe and elsewhere, it is essential that decision-makers uphold the distinction between protection from return or non-refoulement, and cessation of refugee status. As described below, cessation application requires authorities to consider factors beyond the risk of persecution or serious harm.

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By Catherine Warin, PhD (University of Luxembourg), co-founder and president of Passerell, vice-president of the Luxembourg Bar’s immigration and asylum commission; author of Individual Rights under European Union Law. A study on the relation between rights, obligations and interests in the case law of the Court of Justice (Nomos, 2019).

Individual rights have been a key concept of EU law ever since the CJEU laid down its methodology for identifying such rights in Van Gend en Loos and Defrenne. These founding cases made clear that individual rights are correlatives of obligations laid down by EU law, and are triggered into existence by individual interests in the fulfilment of these obligations. Awareness of this relationship between rights, obligations and interests allows to think about rights in a flexible and coherent manner, which is essential in the increasingly complex field of EU migration law. 

The dynamic correlation between rights and obligations 

The correlation between rights and obligations is key for identifying rights in primary and secondary EU law. Just like in the legal theory of rights inspired by Hohfeld’s influential work, one obligation and the corresponding right can be characterized as two sides of the same coin: rights can be deduced from obligations, and conversely, the ‘obligational’ aspect of a norm can be deduced from the right that it expressly grants. When considering rights in EU law, however, it is important to stress that this correlation functions in a dynamic way. It is not a tool for abstractly determining whether a given provision gives rise to rights; rather, it means that the degree of discretion allowed by the provision (assessed by looking at clues such as clarity, unconditionality, and precision) is inversely proportional to the probability of identifying a right in concrete circumstances. 

By way of illustration, consider Baumbast, a classic case on the free movement and residence of EU citizens: the CJEU therein held that the right to reside within the territory of the Member States under Article 18(1) EC (now 21(1) TFEU) ‘is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty’ and that Mr Baumbast could rely on this provision, ‘purely (as) a citizen of the Union’. This right is not unconditional, since it ‘is conferred subject to the limitations and conditions laid down by the Treaty and by the measures adopted to give it effect’; however, ‘those limitations and conditions must be applied in compliance with the limits imposed by Community law (…)’. I.e., the provisions on EU citizenship give rise to rights in so far as they are clear and precise, and, if they are not unconditional, when the required conditions are satisfied.

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Niovi Vavoula*

*I am indebted to Prof. Kees Groenendijk for his valuable comments on a previous draft of this blog post. Many thanks also to Teresa Quintel for reading through this blog post. An annotation in Dutch will be published by Evelien Brouwer in issue 16 of Jurisprudentie Vreemdelingenrecht.

Introduction

In the aftermath of Digital Rights Ireland -the landmark ruling that invalidated Directive 2006/24/EC on the retention of telecommunications metadata for law enforcement purposes– Steve Peers heralded a new era of ‘privacy spring’. Indeed, since then, a series of important judgments –such as Schrems Tele2 and Opinion 1/15– have been released, affirming the prime importance of the rights of private life and personal data protection particularly in the law enforcement context. However, the Luxembourg Court’s judgment of 3 October 2019 in the case of A, B and P  leads us to wonder whether in the case of third-country nationals we are still amidst the ‘privacy winter’.

Facts

The facts of the case involve two Turkish nationals. The first one, Mr A, required a temporary residence permit after taking up employment in the Netherlands. The second one Mr B, married to dual national (Turkish—Dutch) Ms Pa, applied for a temporary residence permit for family reunification. In both cases, in accordance with Article 106a(1) of the Vreemdelingenwet 2000 (Law on Foreign Nationals), the issuance of the permit was made conditional upon the collection, recording and retention of specific biometric data -a full set of fingerprints and facial image- in a central filing system. The applicants lodged appeals concerning this requirement, which the Staatsecretaris dismissed. As a result actions were brought before the District Court of The Hague. While that Court declared those actions well founded, on appeal, the Dutch Council of State decided to stay the proceedings and refer the case to the Court of Justice.

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The Odysseus Network organised with the European Policy Centre (EPC) and the EMN Finland its annual conference “From Tampere 20 to Tampere 2.0: Towards a new programme (2020-2024) for EU Migration and Asylum Policies 20 years after the Tampere conclusions” in Helsinki on 24 and 25 October in connection with Finlands EU Presidency. The outcome is presented this Monday 2 December to the Libe Committee of the European Parliament and will be available on our website as from the 11th of December after the publication’s launch. The present post is part of the contribution of Philippe De Bruycker to the conference. The author warmly thanks Jean-Louis De Brouwer for his contribution and precious advice, as well as Marie De Somer for her review of the text.

Philippe DE BRUYCKER

The crisis of 2015-16 challenged the entire migration and asylum policies of the EU and its member states. The rules patiently built over 15 years tumbled down like a house of cards. Despite the European Commission’s 2015 Agenda on Migration launched in reaction, the EU plunged into a multi-dimensional – political, moral, legal, institutional, financial – crisis:

• Some member states openly refused to apply some of the solidarity measures, like the relocation of asylum seekers, despite it being adopted as a legally binding decision, thereby violating the rule of law upon which the EU is built.
• Member states re-established within the Schengen area which is one of the foundations of the EU, internal border controls without consideration of the limitations imposed by the Schengen Borders Code.
• The EU and member states’ support to third countries of transit for migrants led to violations of their basic human rights, involving inhuman or degrading treatments and arbitrary detention like in the case of Libya.

Nonetheless, the crisis is over, and the issue of the disembarkation of some hundreds of persons rescued at sea should not be instrumentalised to convince the public that it is still ongoing. Despite its negative effect on the political climate, the crisis acted as a catalyst and can be transformed into an opportunity as it has often been the case for the EU in the past. It is therefore more than welcome that the new President of the European Commission Ursula von der Leyen has announced her willingness to propose the conclusion of a “New Pact on Migration and Asylum”. Due to the existential character of this crisis, rather than another impetus, it is a new European consensus that is needed and should be concluded between the member states and the EU institutions. After a brief assessment of the implementation of the Tampere conclusions (1), we present the building blocks upon which this new consensus could be established in order to build migration and asylum policies sustainable for the future (2) before making a proposal regarding the methodology that could be used (3).

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