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, Max Planck Institute for Social Law and Social Policy, Munich

Introduction

During the summer of 2018, a fierce debate on how to counter “secondary movements” (to Germany) of potential asylum seekers took place inside the German government. The discussions nearly put an end to the parliamentary group between the CDU and the (Bavarian) CSU, which had existed with a very short interruption in 1976 since 1949. The CSU, in particular the Federal Minister of the Interior (MoI), Horst Seehofer, opted for full controls at the German-Austrian border and the refusal of entry for all persons that are not in the possession of valid documents for an entry to Germany. The MoI claimed that the German constitution as well as immigration and asylum law would require/allow for a refusal of entry and push-backs of asylum seekers due to their entry from a safe third country (Austria). In this regard, German law should be applicable and so no Dublin procedure would be necessary. The CDU and in particular Chancellor Angela Merkel preferred a “European solution” in cooperation with the other Member States based on agreements under Article 36 Dublin III Regulation. This provision allows for Administrative Arrangements only for the purpose of “the exchange of liaison officers” and the “simplification of the procedures and shortening of the time limits relating to transmission and the examination of requests to take charge of or take back applicants.”

As a compromise it was decided to extend the “fiction of non-entry” (Fiktion der Nichteinreise) that applies to the (non-Schengen) transit zones of international airports to this border area. This fiction of non-entry should allow for controls on German soil and the refusal of entry would (legally speaking) push the person that had already reached German soil outside the territory into a perceived no man’s land between the controlling officer and the Austrian border. This effect might be called a “border spell” as the persons – unlike in the non-Schengen zone of an international airport under Annex VI of the Schengen Borders Code  – have already legally and physically crossed the border between the two states and had previously already entered the Schengen territory (as Austria is also a Schengen Member State). According to its construction the zone that lies between the controlling officer and the physical Austrian border would be transformed by the refusal of entry into a non-Schengen territory and an EU Law free zone, where German national law and not the Schengen Border Code (SBC) or the Dublin III Regulation would be applicable.

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By Eugénie Delval, Teaching Assistant at ULB Faculty of Law

On se souvient de la vive polémique survenue en Belgique fin 2016, à propos de visas dits “humanitaires” sollicités par une famille syrienne en vue de rejoindre le territoire belge de façon sûre et légale pour y demander l’asile. La Cour de Justice de l’Union européenne (CJUE) était intervenue par son arrêt X et X c. Etat belge du 7 mars 2017 , décidant que de telles demandes de visas relèvent du seul droit national et non du droit de l’UE, de sorte que la Charte des droits fondamentaux de l’UE (CDFUE) ne trouve pas à s’appliquer. Bien que cet arrêt fut accueilli avec soulagement par le gouvernement belge et les 13 Etats intervenants, loin de clore la polémique, il a suscité de nombreuses réactions virulentes, certains allant jusqu’à dénoncer l’opportunisme politique de la Cour. Aujourd’hui, la saga continue devant la Cour européenne des droits de l’homme, la Grande Chambre ayant été saisie d’une affaire similaire, M.N. et autres c. Belgique, le 26 novembre 2018. La Cour de Strasbourg prendra-t-elle le même chemin prudent de la CJUE, ou bousculera-t-elle le système européen d’asile ?

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This is the first post in a two-part series on the internal protection alternative (IPA) based on Jessica Schultz ’s new book on the topic. We start with a case study on Norway and will follow up with a post reflecting on refugee law’s ‘surrogate’ role which states use to justify IPA practice.

By Jessica Schultz, Researcher, Chr. Michelsen Institute.

A post mortem on the demise of the reasonableness requirement: The IPA in Norway

It might surprise some readers that Norway, normally viewed as a human rights stalwart, is at the forefront of efforts to push the boundaries of refugee law in a restrictive direction. Like other European States, Norway responded to the influx of refugee claims in 2015 with a barrage of policies intended to deter and divert refugee flows. Border controls, safe third country transfers, time limits on residence, and restricted family reunification were among the measures adopted to ensure that Norway’s policies at a minimum were not more generous than those of its neighbors.  

In one area, however, Norway’s restrictions surpassed those of other states: it lowered the threshold for applying the ‘internal protection alternative’ (IPA) as a basis for denying refugee claims. IPA practice is premised on the view that refugee law comes into play when the claimant’s country of origin cannot or will not provide protection itself. If a domestic alternative to asylum abroad is accessible, safe, and reasonable, UNHCR and many states accept that a refugee claim may be refused.

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by Mauro Gatti, Research Associate, University of Luxembourg, Faculté de Droit, Economie et Finance

The Global Compact for Safe, Orderly and Regular Migration (hereinafter, Global Compact) has become the focus of heated discussion in Europe. The Global Compact is a seemingly inoffensive UN document, approved by more than 150 states at the Intergovernmental Conference of Marrakesh on 10-11 December 2018. The EU and all its Member States supported the Compact since 2016, but several European leaders lately criticised it, alleging that it violates national sovereignty and prevents countries from controlling their borders. The Compact thus became the object of political attention, parliament debates, and even a government crisis. Several EU states decided not to participate in the adoption of the Compact in the intergovernmental conference of Marrakesh and at least seven announced that they would not support it in the UN General Assembly.

How did we come to EU States’ exit from the Global Compact? Is there anything the EU may do about it? To answer these questions, this post describes the Compact (1) and shows that all EU Member States initially supported it (2), but some EU countries later opposed it (3). While this fragmentation is potentially in breach of EU law (4), there is little the EU can do at this stage, either at the judicial level (5) or at the political one: The opposition to the Compact has propagandistic objectives, that cannot be negotiated away (6).

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By Elspeth Guild, Jean Monnet Professor ad personam, Radboud University Nijmegen and Queen Mary University of London

The determination of the British Government to follow the ‘voice of the people’ after the referendum of 23 June 2016 and trigger Article 50 Treaty on European Union (the provision which permits a Member State to leave the EU) has resulted in an inordinate number of very lengthy documents which seek to nail down the terms of the UK’s departure scheduled 29 March 2019 and set a path for the future. Negotiations regarding the terms of the UK’s departure started in September 2016 and among the most important issues was the treatment of EU citizens in the UK and British citizens in the EU after departure. By 19 March 2018 a UK-EU Withdrawal Agreement had been hammered out. This remained the state of the art until negotiations re-commenced in November 2018 and resulted in the final version of the Agreement on 25 November 2018 endorsed by the EU leaders. At the same time as the Withdrawal Agreement, EU leaders also endorsed a Political Declaration setting out the Framework for the Future Relationship between the EU and the UK.

The agreement requires adoption by both Houses of the British Parliament and the European Parliament. This process will commence in the UK on 11 December 2018. The British Parliament is highly divided about the agreement. The Government which relies on the (Northern Irish) Democratic Unionist Party (DUP) for a majority in the House of Commons, faces particular difficulties convincing the DUP members to vote for the agreement as they are dissatisfied with the clause keeping Northern Ireland in the EU Customs Union in order to avoid a hard border between the Republic of Ireland and Northern Ireland. The purpose of this blog is to examine the importance of the Agreement for EU citizens living in the UK and British citizens in the EU 27 and the consequences for these people of the agreement failing to be passed. It also very briefly examines the future of movement of persons between the UK and the EU after 29 March 2019 on the basis of the Political Declaration.

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By Marie De Somer, Head of the Migration & Diversity Programme at the European Policy Centre (EPC) and Guest Professor at the KU Leuven Centre for Public Law.

Dr. Marie De Somer is author of the book ‘Precedents and Judicial Politics in EU Immigration Law’. This blogpost elaborates on one of the arguments developed in the book.

The Court’s Fluctuating Case Law

Much has been written about the role of the Court of Justice of the European Union (CJEU) in processes of European integration. It is clear that the progressive expansion of EU competences into ever more areas of law owes a lot to Court-driven dynamics. What is less clear, however, is the extent to which these dynamics took place at the expense of Member States’ intentions.

This question has long occupied both legal and political science scholarship. Academic debates on whether or not the Court acts independently from Member States’ political preferences can be traced back as far as the 1980s for legal scholarship (see e.g., famously, Weiler’s or Rasmussen’s early work) and the early 1990s for political science (see Garrett and Burley & Mattli). In spite of this long academic lineage, neither of the two disciplines has thus far produced much consensual understanding on the topic (see the book’s second chapter for further detail).

Instead, recent legal scholarship continues to discuss questions on the Court’s legitimacy – or whether or not it is an ‘activist’ institution – in light of observations of case law outcomes that reverberate beyond the strictly legal sphere (see Adams et al. or De Witte et al.). Similarly, political science on the Court remains occupied with, and divided on, the degree of interpretative leeway the EU judiciary enjoys relative to Member States’ preferences (see for a recent contribution e.g., Blauberger et al.)

The salience of these debates has increased significantly in recent years. Writing against the background of the Brexit vote and a generally increasing politicisation of European governance, the topicality of understanding the Court’s precise role and autonomy could hardly be greater.

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