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

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Thomas Spijkerboer & Elies Steyger

Elies Steyger is professor of European administrative law at the Vrije Universiteit Amsterdam. Thomas Spijkerboer is professor of migration law at the Vrije Universiteit Amsterdam and Raoul Wallenberg visiting professor of human rights and humanitarian law at Lund University; his research for this article was funded by the Marianne and Marcus Wallenberg Foundation

The Spanish translated version of this blog can be found here. 

In 2014-2015, the European Union adopted three financial measures in order to cooperate with neighbouring countries in the field of migration policy. By July 2019, the Trust Fund in response to the Syrian crisis, also called the Madad Fund, was worth a total of €1.8 billion; the European Union Emergency Trust Fund for stability and addressing root causes of irregular migration and displaced persons in Africa was worth €4.6 billion; and the Facility for Refugees in Turkey €5.6 billion. The European external migration funds are subject to the ordinary public procurement rules to which both the member states and EU institutions themselves are subject. This requires open, transparent and objective procedures so as to open up markets for public contracts, stimulating competition and therefore quality of contractors and the proper spending of public money.

However, for the projects implemented through these financial measures, there is often no open competition. Instead, potential implementing partners bring their projects to the attention of EU delegations in the country concerned and the European Commission. These carry out a first scrutiny of potential projects. Subsequently, an informal expert group carries out an examination of the project proposals. In the background, there is an on-going negotiation between the Commission, the EU Member States, the third country involved and sometimes the potential implementing partner. In the words of the European Court of Auditors, the selection of projects is “not fully consistent and clear.” Others have called it “opaque.”

In light of these concerns about the transparency of the way in which public funds are spent, we have analysed in an article published in European Papers how expenditure under the migration funds relates to European public procurement law.

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Minos Mouzourakis, ECRE, and Refugee Support Aegean (RSA)

Unlawful deprivation of liberty is a longstanding and amply highlighted concern in the Greek asylum system. Greece consistently resorts to systematic detention of people seeking international protection at its borders and on its soil. In 2018, during which 66,969 applicants registered claims with the Asylum Service, the Hellenic Police detained 18,204 asylum seekers in pre-removal detention centres alone, while holding many more in unsuitable police stations. This is almost double the number of asylum seekers held in pre-removal centres in 2017 (9,534). Albeit reflecting only part of detention landscape in the country, these figures reveal the continuation of a policy of migration management largely based on coercion.

Against that backdrop, the latest iteration of hasty reform of asylum legislation introduced by the Greek government to “amend the detention regime in order to avoid thousands of foreigners evading authorities’ oversight” should give one pause. The International Protection Act (Greek IPA), approved by the Parliament on 31 October 2019 within two weeks of presentation of a bill to a truncated public consultation, has attracted deep concerns from the United Nations High Commissioner for Refugees (UNHCR) and civil society organisations (e.g. Refugee Support Aegean, Greek Council for Refugees, Médecins Sans Frontières, Amnesty International, Human Rights Watch). Critiques point to the government’s doubling down on coercive measures and weakening procedural guarantees in the areas of reception and asylum procedures. They also flag the lack of prior evaluation of the successive asylum reforms carried out in recent years and of due justification for new legislation.

Various provisions of the Greek IPA further undermine the right to liberty in Greece by pushing the legal boundaries of detention of asylum seekers, by entrenching previously blurred boundaries  as well as  by seemingly introducing new places of detention. While the exact impact of the reform is yet to be seen in practice, the changes made to the domestic framework are liable to expose more people seeking refuge to the damaging effects of detention.

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By Daniel Thym, Universität Konstanz

Notwithstanding a lack of popular support, the German government managed to bring a rather extensive set of eight bills on immigration through parliament before the 2019 summer break. This blogpost aims at introducing the core piece of legislation of Germany’s recent migration package to a transnational audience: the Skilled Immigration Act, which indicates the determination of the largest Member State not to confine migration policy reform to supranational harmonisation, even though the reform step may reinforce the international debate about legal migration and its interaction with the asylum system. Closer inspection of the Skilled Immigration Act also offers insights into specificities of the German debate.

By contrast, other elements of the migration package do not raise many issues that are relevant for the pan-European debate, since they essentially implement or complement existing EU rules. Some measures were however politically contested and raise important legal questions, but their effects are often specific to the German context. Those who want to learn more about corresponding measures on the regularisation of illegal stay, return and detention, the residence requirement for beneficiaries of international protection or deprivation of nationality are invited to consult the reports submitted by experts to the parliamentary hearing.

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By Silvia Bartolini, PhD King’s College London, Academic Assistant at Université Saint Louis Bruxelles and Visiting Professor Université Catholique de Lille

Introduction

On 19 March 2019, the Court of Justice of the EU (hereinafter, the “CJEU”) delivered its long-awaited ruling in the Arib case, where it was asked once again to verify the compatibility of Article L. 621-2 of the Ceseda (the French code on foreigners and asylum as amended by the law of 31 December 2012), which penalizes with a term of imprisonment the irregular entry of third country nationals, with Directive 2008/115 (hereinafter, the “Return Directive”).

Article L. 621-2 of the Ceseda had already come under the spotlight in the Affum case. There the CJEU held that the imprisonment of third-country nationals on the sole basis of their irregular entry would only be possible when the return procedure has come to its formal end (Affum at [63]). In particular, the CJEU singled out two specific circumstances where Member States are allowed to impose such term of imprisonment. Firstly, when the return procedure has been applied and the third-country national continues to stay in the territory without justified reasons for non-return. Secondly, when the third-country national re-enters the territory of that Member State in breach of an entry ban (Affum at [54], [64]). 

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By Dr. Niovi Vavoula, Lecturer at Queen Mary, University of London

1.Introduction

Since the past few decades, legal scholars and practitioners have been progressively acquainted with a series of abbreviations: SIS II, VIS, Eurodac, EES, ETIAS, ECRIS-TCN and the concept of interoperability has arisen prominently in the EU agenda. Behind the abbreviations lies an elaborated and complex legal framework of Europe-wide databases, whereby millions of personal data collected by different groups of third-country nationals are stored and further processed for a variety of purposes. For the sake of convenience and to inform the subsequent analysis, find here a table summarizing the key characteristics of each system.

This table is illustrative of the different logics and objectives underpinning each database, but also of an array of common characteristics.

1. First, their scope ratione personae is primarily different categories of third-country nationals, with EU citizens personal data only processed in an incremental manner (by the law enforcement branch of the SIS II; by the VIS, as regards sponsors or family members of visa applicants, or in the future ECRIS-TCN in relation to dual nationals); 
2. Second, those databases process a wide range of personal data, including biometrics (photographs and fingerprints, except for the ETIAS), which constitute a special category of personal data under Article 9 of the General Data Protection Regulation; 
3. Third, law enforcement authorities and Europol are allowed to have access to the records, either under specific conditions (VIS, Eurodac, EES, ETIAS) or because of the law enforcement (security) mandate (SIS II and ECRIS-TCN); 
4. Fourth, personal data are retained for a significant period of time; 
5. Fifth, databases are multi-purpose, dynamic and flexible in nature, as evidenced by the increasing objectives attached to each system. These purposes range from modernising immigration control to (disturbingly) law enforcement, thus blurring the boundaries between immigration and criminal law. 

Crucially, databases are compartmentalised; even though in the future all third-country nationals will be effectively captured by at least one database, the data pots are separate from each other. This will soon change; the final step towards an EU ‘Big Brother’ is the interconnection of the different ‘data pots’ under the umbrella term of interoperability. Against this background, this blog post aims at critically evaluating this important legal development from a privacy and data protection standpoint.

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By Evelien Brouwer, Vrije Universiteit Amsterdam

This blog has already been published on 25 May 2019 on Verfassungsblog and we thank the editors of Verfassungsblog for their kind permission to re-publish this contribution.

On 14 May 2019, the Council adopted two regulations, Regulation 2019/817 and Regulation 2019/818, establishing a framework for the interoperability between EU information systems in the Area of Freedom, Security, and Justice. The new rules on interoperability, upon which the European Parliament agreed in April 2019, will allegedly provide for easier information sharing and ‘considerably improve security in the EU, allow for more efficient checks at external borders, improve detection of multiple identities and help prevent and combat illegal migration’. All this, according to the press release of the Council, ‘while safeguarding fundamental rights’.

It is questionable whether this commitment made by the EU legislator is justified. Interoperability only ‘works’ as long as the reliability and trustworthiness of data in the databases involved are sufficiently guaranteed. Considering the number of states and the large-scale databases involved, the consequences of decision-making based incorrect or even unlawful data will be detrimental not only for the protection of fundamental rights but also for the effectiveness of interoperability as a data and border surveillance tool as such.

‘Interoperability’ and ‘interstate trust’ is a perilous combination if this would allow national authorities to rely on data stored in EU data systems, instead of making a careful examination of each individual case. Despite formal safeguards in the regulations and the applicable data protection standards, it will be hard for data subjects to oppose decision-making based on incorrect data, when the source or the author of that information is unknown or when states can ‘hide’ behind the back of interstate trust without providing access to effective legal remedies. The problems which may arise for individuals through the ‘blind’ use of large-scale databases will be illustrated with two recent case-studies:

the first concerns the entry of a human rights activist into SIS II, and the second one the reliance on Eurodac/DubliNet to determine the age of a minor asylum seeker. Considering the extensive scale of data processing, the fact that interoperability affects mainly third-country nationals, and because of the complexity of rules, the adopted instruments fail to meet the standards defined by the CJEU and the ECtHR on the basis of the rights to privacy and data protection.

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