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

Read another post on our blog about this issue “Of Carrots and Sticks: A Punitive Shift in the Reform of the Visa Code” by Niovi Vavoula.

The EU legislature has agreed about a substantial reform of the Visa Code which still needs to be adopted officially. It will tie the cost, processing time of visas and availability of multiple entry visas to the success rate of Member States’ return efforts to the relevant country. The idea, proposed by the Commission and accepted both by the Council and the Parliament, is that nationals of countries on the EU’s visa black list, should be punished for the inability of EU Member States to return people (both nationals of the state and where permitted non-nationals who travelled through) to their state.

This collective punishment would take the form of a doubling of the cost of a visa (from the proposed € 80 to € 120 or even € 160) or exclusion from:

(a) simplified visa application procedures,

(b) waivers for holders of diplomatic and service passports,

(c) the 15 day visa processing time and

(d) access to multiple entry visas. Further, the penalties would not necessarily apply to all nationals of the ‘offending’ country but possibly only to some categories (unspecified) of them.

This principle could constitute discrimination on the basis of nationality within the class of States which are on the EU’s visa black list and discrimination on the basis of economic, social and/or educational status in the delivery and cost of EU visas for nationals of the same state. While the international community is becoming increasingly intolerant of discrimination on the basis of nationality in immigration procedures (see for instance No 2018/36 Qatar v UAE ICJ Provisional Measures decision of 23 July 2018 where the ICJ gave provisional relief to Qatar regarding the threatened collective expulsion of its nationals from UAE in reliance on the Convention on the Elimination of All Forms of Racial Discrimination), the EU appears to be embracing it in a particularly arbitrary form. The vast majority of the people the proposal would punish have no control over or influence on the rates of expulsion of their fellow countrymen and women from EU states, yet would be the objects of this discrimination.

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by Vera Wriedt, European Center for Constitutional and Human Rights (ECCHR) 

The decision of the UN Committee on the Rights of the Child in the case of D.D. v. Spain sets a precedent that strongly condemns the policy and practice of push-backs, called “rechazos” by the Spanish authorities. As the first case on summary expulsions in front of the Committee, D.D. v. Spain plays a crucial role for future jurisprudence on individual communications. The Committee’s decision clearly affirms the rights of unaccompanied minors at Europe’s borders and beyond.

Push-backs are a longstanding policy and practice at the Spanish-Moroccan border with fences around the enclaves of Ceuta and Melilla, the only land border between the European and the African continent. Spanish authorities immediately apprehend those who manage to cross the fences and return them to Moroccan forces, including the return of unaccompanied minors without access to any procedure to safeguard their fundamental rights. In March 2015, the Spanish Parliament created a legal basis for indiscriminate automatic deportations from Ceuta and Melilla. The Organic Law 4/2015 on the “Protection of Public Safety” introduced a special legal regime for Spain’s terrestrial borders with Morocco, stipulating that “foreigners detected on the territorial border line of Ceuta and Melilla while trying to cross irregularly the border may be rejected in order to prevent their illegal entry into Spain”. These amendments do not contain procedures to protect unaccompanied minors from immediate expulsions to Morocco.

The Spanish-Moroccan border regime has served as a laboratory for push-backs, with other Member States such as Hungary, Croatia, Greece, Bulgaria and Poland replicating this practice of indiscriminate automatic returns. More recently, border controls and push-backs have also surged at Europe’s internal borders, such as between France and Italy. Some States root these practices in national law, some issue semi-formalised paperwork in fast-track procedures and some take informal measures without any record. The underlying common denominator is the denial of access to any effective possibility to explain personal circumstances and to present arguments against the measures taken. At Europe’s multiple borders, unaccompanied minors encounter institutionalized violence instead of protection.

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by Ellen Lefley, Vrije Universiteit Amsterdam

The editors of the blog thank Thomas Spijkerboer and Jordan Dez for their revision of this post.

A recent case challenged successfully part of the UK’s ‘hostile environment’, the self-titled immigration policy created by Theresa May when she was Home Secretary to deter irregular migration to the UK. R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department was handed down by the High Court of England and Wales on 1 March 2019. In dispute was the so-called ‘right to rent’ scheme (‘the Scheme’) which stipulated that certain ‘disqualified persons’ (those who need but do not have leave to enter or remain in the UK) were prohibited from renting or occupying private residential accommodation (section 21(2) Immigration Act 2014). Notably the Scheme deputised landlords by prohibiting them from authorising any occupation of their privately owned properties by disqualified persons and obliging them to conduct ‘reasonable enquiries (i.e. documentary checks) into the immigration status of tenants (section 22). Failure to do so incurred a civil penalty of up to £3,000 (section 23) and any landlord who knew or had reasonable cause to believe that the premises were being occupied by a disqualified person committed a criminal offence (section 33A) punishable by up to five years in prison or an unlimited fine (section 33C).

The challenge

The Joint Council for the Welfare of Immigrants (JCWI) asked the court to find that the measures were incompatible with the Article 14 ECHR prohibition of discrimination in conjunction with the Article 8 ECHR right to respect for private and family life, home and correspondence. The remedies sought were a declaration of incompatibility with Articles 14 and 8, and either the stopping of the roll out of the Scheme to Scotland, Wales and Northern Ireland, or delaying such roll out until proper research was done into the Scheme’s effects. JCWI’s specific allegation was as follows: the Scheme causes landlords to discriminate on the basis of nationality and or/race ‘against those who are perfectly entitled to rent with the result that they are less able to find homes than (white) British citizens’ [§6]. JCWI argued that landlords fearful of breaking the law would avoid renting to those with a complicated immigration history, those who did not have a passport and were not white, or whose status was not immediately clear. JCWI backed this up with empirical evidence including ‘mystery shopper’ data [§27-34] and surveys of landlords, of whom 42% said they were less willing to let to people without a British passport because of the Scheme and 27% said they were reluctant to rent to people who ‘appeared foreign’ [§20].

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By Dr Eleni Karageorgiou and Dr Vladislava Stoyanova, Lund University

Read the translation of this post in Spanish.

The New Asylum and Transit Countries in Europe During and in the Aftermath of the 2015/2016 Crisis edited by Vladislava Stoyanova and Eleni Karageorgiou discusses the state of asylum at a national and sub-regional level, and respective realities and legal challenges. The situation captured across the book’s varied contributions suggests that the Common European Asylum System is beyond repair or reform, and that a radical rethink is needed. This short piece highlights three main dynamics that are critically reflected upon to consider a radical rethink of a new base for European asylum law and policy.  

THREE MAIN DYNAMICS

• NEW EU ASYLUM COUNTRIES

Exploring the formation of asylum at the national level in Hungary, Slovenia and Croatia, it may be noted that not long ago these EU Member States had nothing close to a developed asylum system in place, this is why their EU membership had to be followed by the absorption of the relevant EU legislation in their legal orders. Unlike many of the older Member States who had the chance to participate in the negotiations and adoption of the main asylum instruments, these states accepted a pre-existing legal and policy reality which was not necessarily meant to accommodate the asylum demands and migration issues specific to their region. What is addressed in the contributions is the degree of autonomy enjoyed by the domestic legislator and the practical consequences stemming from this discretion, especially in relation to three areas: access to territory, access to asylum procedures, and application of the safe-third country rules. In reviewing the legislative changes in Hungary, Slovenia and Croatia since 2014, it can be noted that these are heavily modelled on the restrictive policy measures undertaken by other EU Members. As a result, although firmly embedded in international and European law, asylum law remains insufficiently implemented in the domestic legal systems in question.

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by Jessica Schultz, Researcher, Chr. Michelsen Institute.

This is the second post in a two-part series on the internal protection alternative (IPA) based on Jessica Schultz ’s new book on the topic.

The surrogate role of refugee law: a principle or preoccupation?

As described in the previous post, the ‘internal protection alternative’ (IPA) is a limit on refugee status used to exclude claimants with access to adequate protection somewhere within their countries of origin. For example, an Afghan who fled Taliban recruitment in Helmand province may be returned to Kabul if conditions are sufficiently safe there. In most jurisdictions, return must also be reasonable for the person concerned.

Although there is no mention of the IPA in the 1951 Refugee Convention or its 1967 Protocol, this implied limit spread in state practice during the mid-1980s as a response to several factors, including the prominence of non-state persecution as a basis for refugee claims. Today, the concept has firmly taken root in many jurisdictions despite continued debate about the exact criteria for IPA application.

The IPA is also sometimes applied to justify decisions relating to the cessation of refugee status when some area of the country of origin is deemed secure enough to accommodate returning refugees. The migration of the IPA concept from the inclusion to the cessation analysis is not broadly endorsed (see UNHCR’s position and UK jurisprudence), but there is little doubt that states are increasingly interested in identifying some safe space – anywhere – to which refugees or refugee claimants may return within their countries of origin.

My book analyzes various ways that states and scholars have framed the IPA limit in refugee law. This post examines a common element of these efforts, the observation that international protection is ‘surrogate’, or subsidiary, to national protection provided by countries to their own citizens. As Zimmermann and Mahler explain, ‘the evolution of the [IPA] concept draws heavily on the notion of surrogacy as a basic principle of refugee law, according to which international protection only comes into play when national protection within the country of origin is not available.’ If national protection exists somewhere, the back-up remedy of protection abroad is not (or no longer) needed.

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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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