Responsibility in Joint Returns after WS and Others v Frontex: Letting the Active By-Stander Off the Hook

 

Melanie Fink and Jorrit J Rijpma

Melanie Fink is APART-GSK Fellow of the Austrian Academy of Sciences, Central European University and Assistant Professor, Europa Institute, Leiden University

Jorrit Rijpma is Professor of EU law, Europa Institute, Leiden University

Photo credit: Влада на Република Северна Македонија, via Wikimedia Commons

See also analysis of the human rights aspects of the judgment, by Francesca Romana Partipilo 

On 6 September 2023 the General Court delivered its long-awaited ruling in WS and others v Frontex. In a short and matter-of-fact judgment, it dismissed an action for damages by a Syrian refugee family against the European Border and Coast Guard Agency (Frontex). The family, escaping Aleppo at the height of the Syrian war in 2016, was returned to Turkey just days after their arrival in violation of the principle of non-refoulement. Their return was carried out as a joint return operation between Greece and Frontex. With the action brought before the General Court, they sought compensation from Frontex for its role in the violation of the principle of non-refoulement, as well as their degrading treatment in the return process.

After the many reports of fundamental rights violations at the external borders, including pushbacks, this was the first case in which Frontex came under judicial scrutiny for its role in potential violations. Earlier, a damning OLAF-report, demonstrating that the Agency had turned a blind eye to pushbacks in the course of operations it coordinated, had led to the resignation of its Executive Director.

Since its establishment, successive legislative amendments have consistently increased Frontex’s powers, short of transferring command and control over border guards and return officers. Yet, Frontex has always maintained that it cannot be held responsible for violations of fundamental rights as it merely acts as coordinator and facilitator in joint (return) operations. Wrongdoings in the context of joint operations, so Frontex, would be exclusively on the Member State in charge.

In an unsatisfactory judgment that fails to do justice to the plight of a refugee family that turned to the European Union for protection, the General Court now seems to confirm that stance. Doing so, it failed to acknowledge the role and obligations of Frontex during joint operations. Adopting an unreasonably and unnecessarily high threshold for the establishment of the causal link requirement, it also excludes almost any prospect of Frontex being accountable for any breaches of its obligations. After a brief overview of the judgment, we will discuss each of these points in turn. We refer to Regulation 2016/1624, which governed the activities of Frontex at the time of the return, even though it has been replaced with Regulation 2019/1896 in the meantime. However, the relevant provisions have not substantially changed.

 

The judgment

On admissibility, the Court rejected two arguments advanced by Frontex. First, it did not consider that it was called upon to make general statements of principle by ruling on the applicants’ damages claim. Second, it did not accept the argument that the applicants were barred from bringing an action for damages, as they could have brough an action for annulment against the letter of the Agency’s fundamental rights officers dismissing their complaint under the individual complaints’ mechanism. The Court held that these two actions do not preclude each other as they pursue different objectives, but explicitly left the question whether the actions of the Agency’s Fundamental Rights Officer within the framework of that administrative procedure constitute challengeable acts under Article 263 TFEU, which if they are would subject this procedure to judicial review by the Court.

On substance, non-contractual liability arises when three cumulative conditions are met: a sufficiently serious breach of a rule of EU law conferring rights on individuals, damage, and a causal link between the unlawful conduct and the damage. Reversing the order in which it assessed the conditions, the General Court dismissed the action based solely on the absence of a sufficiently direct causal link between the conduct of the Agency and the damage that was invoked. At the outset it had already recalled that the unlawful conduct would need to be the determining cause of the damage. It considered that the applicants wrongly departed from the presumption that without the alleged conduct by Frontex they would not have been returned. Here the General Court repeats Frontex’s mantra that it only provides technical and financial support. Most importantly, it emphasizes Frontex’s lack of competence to adopt a return decision or decide applications for international protection, leaving any liability with the responsible Member State.

The General Court skipped the question whether the return of the applicants and their treatment during the return procedure constituted a violation of EU law altogether. Although this may be interpreted as a sign of judicial economy, it is also a way to avoid having to pronounce itself on the behaviour of the Member State in question. In addition, the Court may have otherwise been required it to address the limits of its own jurisdiction under Article 276 TFEU, which precludes it from assessing the validity or proportionality of Member States’ law enforcement authorities.

 

The Role, Obligations, and Responsibility of Frontex

By virtue of Article 28 Regulation 2016/1624, Frontex is prohibited from ‘entering into the merits of return decisions’ because these ‘remain the sole responsibility of the Member States’. The Court rightly held that Frontex cannot be responsible for any potential unlawfulness of the return decision itself. As with any other national administrative decision, it would be for the Member State authorities to ensure its lawfulness.

Aside from the question whether a return decision was even taken under the Return Directive, and whether this decision was then lawful, the applicants’ allegations in the case go well beyond the decision itself. Frontex’s alleged wrongdoing concerns the implementation of the decision, despite clear indications of a risk of refoulement, and the degrading treatment of the applicants as the expulsion was carried out. This phase of the return process, i.e. the implementation of return decisions in the form of joint return operations, is a core competence of Frontex, which by virtue of Article 28(1) Regulation 2016/1624 renders ‘the necessary assistance’ to return operations and ensures their ‘coordination or […] organisation’.

This coordinating role comes with obligations. Concretely, Article 28(3) Regulation 2016/1624 explicitly states that ‘Agency shall ensure that the respect for fundamental rights, the principle of non-refoulement, and the proportionate use of means of constraints are guaranteed during the entire return operation’ (see also generally Article 34 Regulation 2016/1624). In addition, as an EU body, Frontex is bound by the EU Charter of Fundamental Rights, including the absolute prohibitions of refoulement in Article 19 and of inhuman or degrading treatment in Article 4. These rights are widely understood under European human rights law to include positive obligations that require authorities to actively ensure the protection of a right, for example by taking practical steps to protect a person against interferences by others. Frontex has a whole toolbox of means available to meet these obligations, including reporting and communication duties. As a last resort, Article 25(4) Regulation 2016/1624 requires the agency to withdraw, should violations of fundamental rights or international protection obligations occur that are serious or likely to persist.

Frontex conducts joint return operations together with the Member States. However, if it violates its own obligations under EU law, it bears responsibility that may be invoked through an action for damages. This responsibility is independent from any possible responsibility of the Member State who in turn bears responsibility for its own failures in the process (see also here). Not separating the return decision from its implementation, the Court failed to acknowledge the role of Frontex in the latter. In addition, shielding the agency from responsibility for a violation of its obligations in joint return operations emasculates these provisions, which also negatively affects the credibility of the EU as a rule of law advocate.

 

Causation and Joint Liability

An important complicating factor in this case, is the interplay between the actions of Frontex and the host Member State. Situations where more than one actor is involved in causing harm are not uncommon, but incredibly complex when it comes to allocating legal responsibility (see also here).

First, it might be unclear who is considered the ‘author’ of a violation, in other words, to whom the unlawful conduct is attributable. As a national administrative decision, the return decision is clearly attributable to the host state. Things are more complicated at the implementation level, where the actions of the host state and Frontex are more intertwined. However, since the Court did not separate the return decision from its implementation, the question of attribution played no role in the case.

The second difficulty concerns causation, that is the link between the unlawful conduct and the damage. The Court denies the existence of a sufficiently direct causal link between Frontex’s conduct and the harm complained of because Frontex lacks the competence to interfere with the return decision or grant international protection. In other words, in the Court’s view, the return decision is the cause for the applicants’ harm, not Frontex’s conduct. Underlying this argument seems to be an assumption that ‘exclusive’ causation might be required for liability to arise. This is also the view the General Court defended in the recent case Kočner v EUROPOL, a case currently under appeal with Advocate General Rantos suggesting the Court of Justice take a less restrictive approach to the causation requirement.

In the past, there have been cases in which the Court seemed accepting of the idea that the existence of an additional determining causes for a damage does not necessarily bar a finding of liability. In light of the coordinating nature of Frontex’s tasks, allegations of wrongdoing will usually, if not always, go hand in hand with (potential) wrongdoing by one or more Member States. If Frontex is not accountable simply because a Member State may have acted unlawfully too, this appears to exclude any reasonable prospect of Frontex being held accountable for breaches of its obligations. In fact, it would seem to stand in the way of joint liability between the Union and a Member State altogether, which has been recognised by the Court as early as 1967 and is a necessary means to ensure accountability in the EU’s multi-level administration (for more detail see here).

 

Conclusion

The Court, in limiting itself to an assessment of causality, failed to acknowledge a clear violation of one of the core tenants of EU refugee law, the prohibition of refoulement, as well as a range of safeguards laid down in EU secondary legislation. Frontex was present during this violation, and rather than intervened, contributed to it. All of this would not in itself have resulted in Frontex being held liable, but the argument that it is excluded because of a lack of competence regarding the decisions on return and international protection is flawed and lays bare a misconception of the practical reality of joint law enforcement operations as well as the role and obligations of Frontex under EU law in that context.

This judgment begs the question what Frontex’s fundamental rights obligations are worth in the absence of a meaningful way to enforce them. Even if a Member State could, at least in theory, be held responsible before the national judge, and ultimately before the ECtHR, that should not mean that the exercise of public power by a Union body should be allowed to escape judicial review. In a system of shared administration, which the management of the shared external borders has become, joint responsibility carries a need for joint liability.

This case shows how the ‘complete system of remedies’ fails to provide effective judicial control of public power in the EU's area of freedom, security and justice, which is characterised by integration through operational cooperation rather than law. Enforcement powers remain the Member States’ exclusive prerogative in name, but in practice are increasingly exercised jointly by the Member States and the EU. This judgment could have provided a welcome correction to this constitutional oversight. If upheld on appeal, it will reinforce the need for the long overdue accession of the EU to the ECHR.

 

Italian Court of Cassation: Vos Thalassa judgment acquits migrants who resisted return to Libya

 

Yasha Maccanico, Statewatch

 

Photo credit: Sergio D'Afflitto, via Wikimedia commons  

 

In December 2021, the Italian Court of Cassation (CoC) quashed the convictions and three-and-a-half-year sentences handed on 3 June 2020 by the Palermo court of appeal (CoA) to two men (from Ghana and Sudan) deemed the ringleaders of a protest on board of the Vos Thalassa tug boat to stop their return to Libya in July 2018. A group of 67 migrants of various nationalities was rescued from a wooden boat in distress in international waters (in the Libyan SAR zone), as communicated to the Italian maritime rescue coordination centre (IMRCC) at 15:18 on 8 July. The Libyan authorities were informed, but did not reply, so the Vos Thalassa was ordered to head towards Lampedusa to meet a support vessel. At 22:00, the Libyan Coast Guard instructed the tug boat to head towards the African coast to transfer its passengers onto a Libyan vessel, so the Vos Thalassa accordingly changed its route. At 23:34, the captain called the IMRCC requesting that an Italian military vessel be sent due to a situation of danger for the crew, following resistance from the rescued people.

The CoC’s arguments (and those of the original judgment in Trapani it upheld) contradict the strategy adopted by the EU and Member States against irregularised migration in the central Mediterranean, based on returns to Libya. A note reported the CoC’s decision in December:

 

“the conduct of resisting a public officer by the migrant who, rescued in the high sea and in support of the right to non-refoulement, opposes a transfer back to the Libyan state, is decriminalised”.

 

Hence, the threat of torture and mistreatment faced by the rescued people if they returned to Libya trumped the acts of insubordination on board that occurred when people realised where they were heading. The notion of “legitimate defence” used by the defendants to justify their actions should have been subjected to closer scrutiny by the CoA. The original acquittal noted that jus cogens norms like the non-refoulement principle and the related prohibition of torture do not allow any exceptions. This also applies when there are inter-state cooperation agreements and memoranda of understanding (MoUs) in force, like the 2017 MoU between Italy and Libya, because they are subordinate to jus cogens international law.

 

The CoC’s judgment has now been published. Its decision to annul the convictions on appeal centres on the CoA’s reasoning, a need to offer a “reinforced motivation” to turn an acquittal into a conviction and inadequate engagement with the original judgment. Hence, a mere reinterpretation of the facts in the case drawn from a premise that the plaintiffs, Tijani Ibrahim Mirghani Bichara (from Sudan) and Amid Ibrahim (Ghanaian), and the group they were part of voluntarily placed themselves in a dangerous situation in complicity with traffickers, is not sufficient. This approach led to convictions for committing acts to irregularly enter Italian territory by an unspecified number of “illegal migrants” [above five, a threshold for aggravating circumstances to apply] of various nationalities, who were transferred to the Diciotti military boat as a result of their conduct, before disembarking in Trapani. Further, the survivor’s use of violence and threats (including death threats and possible suicide at sea) in association with others to oppose the Italian vessel Vos Thalassa’s crew and captain, led the latter not to fulfil their duty to transfer them to the Libyan coast guard, as instructed. 

 

The plaintiffs appealed their conviction on grounds including their designation as smugglers rather than passengers; a lack of hearings to review the decriminalisation of their conduct due to fear of return to Libya; a presumption that migrants placed themselves in danger to enter the EU illegally, perhaps after a rescue, to explain their resistance (rather than resistance to and fear of return to Libya); and that non-refoulement does not protect people’s wish to migrate as much as a subjective right recognised at the national and supranational levels. On points of law: “irregular entry” does not apply to people disembarked after sea rescues; people are shipwreck survivors rather than irregular migrants until rescue operations end, self-smuggling is not equivalent to smuggling, and a humanitarian decriminalisation norm [art.12(2) of the immigration act] applies to this case.

 

The second plaintiff raised issues including exclusion of the legitimate defence argument; a failure to take further testimonies; the notion that the acts in question were to enable arrival in Europe rather than to avoid return to Libya; a misreading regarding people voluntarily placing themselves in danger; misinterpretation of the risk posed by return to Libya despite available evidence; and the order to return the people on board to Libya, due to the right to be taken somewhere safe.

 

The CoC deemed such complaints founded. Despite states’ right to control their borders, guarantee security and punish smuggling and trafficking in human beings, human rights compel them to rescue people whose lives at sea are in danger, respect their fundamental rights and comply with the non-refoulement principle. The CoC reiterated the applicable legal framework and order of events on 8/9 July 2018, as presented in the original judgment, due to a need for “reinforced motivation” by the CoA to overturn acquittals that must address and convincingly refute the court’s findings. The judgment raised aspects including a ban on returns, refusal of entry and extradition if there is a risk of torture and/or degrading and inhuman treatment, the non-refoulement principle not admitting exceptions, also under art.10 of the Constitution (thus subordinating the Italy-Libya memorandum), Libya being unsafe and the concrete risk that caused the plaintiffs’ reaction on board.

 

The reinforced motivation doctrine is outlined by the CoC, including a need for exhaustive analysis of the original judgment, explanation of why it is not upheld, and the foundational reasons for the new decision. Reinterpretation of the same facts is inadequate, because errors in the first instance judgement’s assessment must be identified. The duty of rescue and to disembark people in a place of safety are established in international maritime law and in the International Maritime Organization’s (IMO) guidelines on the treatment of people rescued at sea.

 

The CoA should have addressed five points: a) people’s fundamental right to non-refoulement; b) definition of “place of safety”; c) what authority should have coordinated rescue operations; d) application of the 2017 Italy-Libya MoU; and e) the concrete risk of violating a subjective right. According to the CoC, these points were not adequately addressed and resolved. Regarding point e), a state’s duty rather than a personal subjective right was liable to be violated, according to the CoA, due to the plaintiffs and their fellow passengers having voluntarily placed themselves at risk to accomplish a migratory project. Regarding the “legitimate defence” argument (art. 52 of the code of penal procedure), the CoA lent weight to the idea that voluntarily giving rise to a condition of danger excludes its applicability. Hence the rebellion on board was not in defence of a subjective right, but rather, the final act of a preordained criminal conduct whose success was jeopardised by the Vos Thalassa following orders given by a competent authority to coordinate the rescue.

 

The CoC viewed this rationale as flawed, because the prosecuting magistrate had not doubted that the plaintiffs were not part of the smuggling ring or of the organisation of the crossing, nor was it clear what elements had resulted in this idea being deemed to have been proven, alongside having colluded with smugglers to “contrive a situation of need” [to be rescued]. The CoA was deemed to have mistaken the danger on which the legitimate defence argument was based – by drawing on an idea of voluntarily placing oneself at risk that applies in cases involving challenges, fights or duels, entirely different situations from the matter at hand. Further, the CoA assimilated the risk of sinking to the risk of return to Libya. At the time of the revolt, the first risk (shipwreck) had ended, unlike the second hypothesis which may have entailed “a risk of unfair prejudice”, the migrants’ right not to be returned to a place where they were liable to be tortured or experience degrading and inhuman treatment, thus legitimating their reaction.

 

Legal sources and jurisprudence were drawn upon to support the CoC’s view, including the Hirshi Jama’a et al vs. Italy judgment [ECtHR’s Grand Chamber, 2012] concerning returns to Libya by an Italian navy ship in 2009, the 1951 Geneva Convention, UN and regional human rights instruments and bodies, notes and reports from UNHCR, and the absolute nature of the ban on torture (art. 3 ECHR). Although this ban does not grant permission to enter a state’s territory, it does forbid returns to places where there is a reasonable risk that their fundamental rights may be violated, including to their “life, freedom and psycho-physical integrity”. This limit also applies in extraterritorial waters despite EU frontline states’ difficulty in dealing with flows of migrants and refugees, as the Hirshi Jama’a case established.

 

The next question was whether Libya was still unsafe in the summer of 2018, to verify which the Trapani court asked UNHCR, whose damning findings on this point were cited in its judgment. Despite Italy and Libya signing an MoU in May 2017 and moves to support Libyan security structures including through technical support and by developing its coastguard authority (provision of vessels), UNHCR continued to consider Libya unsafe and the Italian safe countries list adopted in October 2019 does not include the north African country. Beyond the validity of this MoU, doubted in the original judgment, its contents would nonetheless be “neutral” regarding the matter at hand, because Libya was not safe, which meant the return order should not have been issued, nor executed. Further, this order caused a real and present danger that endangered people’s fundamental rights, resulting from an unlawful conduct. The CoA is not deemed to have addressed these issues, and neither did it explain why people whose attitude had not been oppositional changed when they became aware of the situation. The CoA did not specify whether there was any alternative conduct the plaintiffs could have used to defend their rights, all the more so as they warned that they may have jumped into the sea to elude the risk they ran by drowning.

 

A mere description of the plaintiffs’ unlawful actions to confirm their violent and threatening nature was inadequate, according to the CoC. This was due to the “reinforced motivation” requirement, the failure to evaluate if the reaction resulted from the risk of being returned to Libya, to consider that some passengers expressed their willingness to drown to avoid that outcome and that criminal excesses like threats resulted from people’s desperation and a lack of available alternative courses of action. “Legitimate defence” to decriminalise their conduct would not have applied if the reaction had been disproportionate, but this was not the case, and the CoC also supported the original judgment’s finding that the plaintiffs and the other passengers had not colluded with traffickers.

 

Hence, the appeal judgment was annulled because the facts of the case did not amount to criminal conduct.   

Can a Member State be expelled or suspended from the EU? Updated overview of Article 7 TEU

 

Professor Steve Peers, University of Essex

With the re-election of the Orban government in Hungary, some of its critics are calling for Hungary to be expelled from the EU. But is that even possible? And if not, what other sanctions can be imposed against a Member State by the EU?

Back in 2019, I wrote two blog posts on this theme: first, on the ‘Article 7’ process for sanctioning Member States for breach of the rule of law or other EU values; second, on the alternative processes (ie other than Article 7) for sanctioning Member States. This is an update of the first of those blog posts; I hope to update the second one at some point too.

The legal framework for sanctions

Although many people refer to Article 7 TEU, there are other Treaty provisions which are inextricably linked: Article 2 TEU sets out the values which Article 7 is used to enforce; Article 354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU provides for limited jurisdiction for the CJEU over the sanctions procedure.  All of this must be distinguished from the normal rules of EU law, discussed in the second blog post.

First of all then, what are the values of the EU, legally speaking? Article 2 TEU states:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 then sets out the process of enforcing those values. It begins with Article 7(1), which provides for a kind of ‘yellow card’ – a warning if there is there is ‘a clear risk of a serious breach’ of those EU values:  

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

Notice that the ‘yellow card’ process can be triggered by the European Parliament, or a group of Member States, or the Commission. There is no requirement of unanimity of Member States to approve a Council decision to issue a ‘yellow card’ (this is a common misunderstanding), but the threshold of four-fifths of Member States’ governments in the Council is nevertheless fairly high. 

In practice, this process has been triggered both against Poland (by the European Commission) and Hungary (by the European Parliament). So far neither has resulted in any action by the Council, despite holding a number of the hearings referred to in Article 7(1).. So obviously triggering the process does not, as some think, mean that the Council will agree to issue a ‘yellow card’, or has done so already. If the Council ever did issue a ‘yellow card’, note that this does not entail a sanction as such: it is only a finding of a risk to EU values, with possible recommendations. Nevertheless, the issue of a ‘yellow card’ is perceived as extremely politically serious.

This brings us to Article 7(2), which is the ‘red card’ of the process:

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

The procedure here is even tougher: unanimity of the Member States. The European Parliament cannot trigger the process, but could veto it if the Commission or a group of Member States trigger it. The threshold to be met is higher: not just the risk of a serious breach, but the ‘existence of a serious and persistent breach’ of those values. It’s likely that the EU would get to the ‘red card’ stage after issuing a ‘yellow card’, but that’s not a legal requirement: a ‘straight red’, for (say) a country which had suddenly undergone a military coup, is also conceivable.

What are the consequences of a ‘red card’? Article 7(3) sets them out:

…the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

Note that Member States don’t have to act unanimously in the Council when deciding exactly what sanctions to apply to the black sheep amongst them. The unanimity threshold only applies when taking the previous step of deciding whether there’s a serious and persistent breach of the EU values.  As for the specific sanctions which might be imposed, the Treaty mentions suspension of voting rights, but that’s just one example. The Council might instead (or additionally) impose other sanctions, such as suspension of MEPs’ voting rights (which raises the awkward question of whether they might also end up sanctioning any opposition MEPs from the Member State in question – whose voices would ideally need to be heard). However, there’s an obligation to consider the rights of individuals and businesses, which suggests that trade sanctions might be problematic. It might also be hard to justify restricting free movement rights, but in any event note that there are specific rules on asylum for EU citizens fleeing from a Member State subject to a ‘red card’. (see the second blog post).

Most significantly, there’s no provision to expel a Member State from the EU as such. Having said that, a Member State subject to suspension might be so outraged to be in that position that it triggers the process of leaving the EU under Article 50. The UK’s withdrawal process was complicated and controversial enough; now imagine the legal and political complexities of a Member State subject to an Article 7 ‘red card’ triggering Article 50. Should its political authorities’ actions be considered legally and morally valid? What if a group of exiles claim to be the legitimate government of that Member State (a la the USSR-era Baltic States), and that purported government does not wish to leave the EU?  What if a part of that Member State, at odds with the government in power over EU membership and its violation of EU values, attempts to secede?

Of course, the possibility of withdrawal (alongside concerns about sovereignty, and the workings of partisan politics) may also have influenced the pronounced reluctance of the EU to use the Article 7 process.

It’s sometimes suggested that the large bulk of Member States could just leave the EU, forming an “EU 2.0” copy of it among themselves, with only Poland and Hungary left in the original EU. Such a move would be risky for those who support EU membership in the departing Member States, as the critics of the EU would be given an opportunity to prevent their countries signing up to the new EU, or to demand renegotiation of the current terms of membership.

Article 7(4) TEU then provides that the Council, again by qualified majority, may ‘vary or revoke’ its sanctions against a Member State ‘in response to changes in the situation which led to their being imposed’. Article 7(5) notes that the rules on voting within the institutions when Article 7 is being applied are set out in Article 354 TFEU. The latter provides that the Member State which is the subject of potential sanctions has no vote at any stage of Article 7, as otherwise this would obviously have made the adoption of any decision on breach of EU values impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision. Where the Council votes to implement a ‘red card’ decision, a higher threshold for adopting EU laws applies (72% of participating Member States in favour, instead of the usual 55%). If a Member State’s voting rights are suspended, the usual rules on Council voting with only some Member States participating apply. For its part, the EP ‘shall act by a two-thirds majority of the votes cast, representing the majority of its component Members’.

Finally, Article 269 TFEU significantly limits the role of the CJEU over the sanctions procedure:

The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

 Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.

The legal issues

Given the limit on judicial control of the Article 7 process, it is almost entirely political. So the legal questions arising from it may be largely hypothetical in practice. However, they do exist.

The first important point is the wide scope of issues which can be the subject of the Article 7 process. It is sometimes claimed that the process can only be used to sanction Member States for breaches of EU law, but this is clearly false. There is no reference to EU law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7 would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet other provisions of the Treaties (discussed further in the second blog post) give the Court extensive jurisdiction over the enforcement of ordinary EU law.

This claim about the limited scope of Article 7 is also absurd if you consider the broader context. Imagine, for instance, a Member State placing LGBT citizens in concentration camps. A narrow interpretation of Article 7 would mean that the EU could only complain about this to the extent that being locked up in camps would have a discriminatory effect on the detainees’ access to employment (ie, an issue definitely within the scope of EU law). Yes it would; but that would hardly be the most outrageous aspect of detaining LGBT people in camps because of their sexual orientation. (EU law is also relevant to LGBT refugees, but the Article 7 process would have to be triggered first for it to be relevant to refugees who are EU citizens).

So obviously Article 7 is not intended to be limited in this way. Indeed, its broad scope partly explains why the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on issues which are not normally within the scope of EU law. (Another reason is the intention to keep the Article 7 process in the hands of politicians, not judges).

On the other hand, the Article 7 process and ordinary EU law can overlap. The Court can use its ordinary jurisdiction to rule on an issue being discussed in the Article 7 process, and vice versa – for example, in the string of rule of law judgments regarding the Polish courts.

Exactly how does the Court’s limited jurisdiction over Article 7 work? The wording of Article 269 TFEU definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At first sight, it also applies to the implementation of sanctions, since the text refers to any Council actions pursuant to Article 7 TEU. But on this point, the use of the word ‘determination’ is confusing, as Article 7 doesn’t use that word to refer to the implementation of sanctions,  but only the decisions on whether EU values have been (or might be) breached.

Note also that the only possible challenger is the Member State sanctioned under Article 7 – not any other Member State, an EU institution, or an individual or business. If individuals are barred from challenging the validity of Article 7 implementation decisions, even indirectly via national courts to the CJEU, how else can the Council’s obligation to ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’ be enforced? At any rate, there’s no limit on the Court being asked by national courts to interpret the decisions implementing sanctions, which could be significant in working out the impact of sanctions on individuals. In particular, if Council decisions under Article 7 disapply ordinary EU law in some way, there should be no objection to the Court’s ordinary jurisdiction to interpret such ordinary EU law applying.

A Court judgment under Article 269 TFEU can only address procedural issues, not substance. In other words, the Court cannot be asked to rule on the question of whether the Member State concerned has actually breached EU values (or seriously risks breaching them). As we will see in the second blog post, however, the developing case law on the overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little diffuse. Also, one can imagine that a Member State may make arguments about the fairness of the hearings, even where (as in the case of Poland and Hungary) some hearings have been held (note that the Council's internal rules on Article 7 hearings have been published). Finally, the time limits in Article 269 require significant fast-tracking: the challenge must be made one month after the determination (the usual deadline to bring an action to challenge an EU act is two months after publication) and (uniquely in EU law) one month for the Court to give its ruling.  

Even though Article 7 has not resulted in any sanctions decision yet, the CJEU did address some issues about its scope in 2021, when it ruled on a legal challenge by Hungary to the European Parliament’s decision merely to trigger Article 7. In the Court’s view, the special rules in Article 269 did not exclude a legal challenge to the decision to trigger the process, because those special rules only apply to acts of the Council or European Council. The European Parliament’s resolution had legal effect, because it also triggered the protocol on asylum for EU citizens; therefore it could be challenged (non-binding EU acts, ie with no legal effect, cannot be challenged). Nor did the Court agree with the European Parliament that its resolution was a purely intermediate step.

However, the Court ruled that some aspects of Article 269 did apply to legal actions against the triggering of an Article 7 procedure: only the Member State concerned could bring a challenge, and it could only raise the procedural issues referred to in Article 269, not the substance of whether the body which started the process had wrongly claimed that the Member State was breaching (or risked breaching) EU values to the thresholds set out in Article 7. However, that Member State was entitled to the usual two months to bring the legal action, not the one month referred to in Article 269. Ultimately the Court rejected the Hungarian government’s argument on the merits, finding that European Parliament correctly counted the votes cast (and abstentions) to trigger the Article 7 process.

One key legal and political question is the interpretation of the unanimity requirement to issue a ‘red card’ determination of a serious breach of EU values. Some have suggested that since two Member States are facing Article 7 procedures, and they would have a natural tendency to stick together and vote for each other, unanimity can never be reached. Therefore, for the ‘red card’ procedure to be effective, it must be interpreted to mean that any Member State facing an Article 7 procedure must lose its vote even as regards issuing a ‘red card’ against another Member State.

With respect, this interpretation is untenable. Article 354 TFEU refers to ‘the Member State in question’ not voting in its own case – clearly using the singular, as well as the definite article. There is no way to stretch the canons of interpretation for this to refer to multiple Member States. Such wild leaps of legal fancy are particularly inappropriate when a main point of the process is to ensure protection of the rule of law in the European Union.

Conclusions

Article 7 TEU was conceived as a political process par excellence, and it remains supremely political. Due to its impact on national sovereignty, and the web of transnational partisan politics in which the governments concerned are embedded, Article 7 has long been seen as a ‘nuclear weapon’ – only to be used as a last resort, in a political emergency such as a military coup. Although the attempt to nuance Article 7, by adding a ‘yellow card’ process, dates from 2003, in practice this version of the process is perceived as politically ‘nuclear’ too.

The obvious problem here – which the ‘yellow card’ reform sought but failed to address – is that democracy rarely collapses overnight. In the famous words of Michael Rosen, ‘people think that fascism arrives in fancy dress’, but in fact ‘it arrives as your friend’ – promising to:

…restore your honour, 

make you feel proud, 

protect your house, 

give you a job, 

clean up the neighbourhood, 

remind you of how great you once were, 

clear out the venal and the corrupt, 

remove anything you feel is unlike you...

And to that end, and for those reasons, it often gains a foothold through the democratic process. Yet the values of the EU to be protected also include democracy – and the Article 7 process is in the hands of the governments of fellow Member States. All have some skeletons in their own closet; and all have backs that might need some scratching by the governments of the States being criticised. While recent Hungarian elections have been criticised as undemocratic, Member States seem reluctant to pursue the route of defining what they consider to be acceptable democratic standards and sanctioning other Member States for breaching them.

So is the Article 7 process doomed? In fact, the expansion of EU law in areas with significant relevance to human rights, the willingness of the CJEU to rule on the judicial independence of national courts in general, and the creation of new means to address ‘rule of law’ concerns within the EU budget system means that recourse to the nuclear option may arguably not be necessary. In effect, the conflict over the protection of human rights and the rule of law in Member States can also be fought by conventional means: the ordinary EU law system, discussed in the second blog post.

 

Barnard & Peers: chapter 9

Photo credit: Steve Peers

First analysis of the EU’s new asylum proposals

Professor Steve Peers, Law School, University of Essex*

This week the EU Commission published its new package of proposals on asylum and (non-EU) migration – consisting of proposals for legislation, some ‘soft law’, attempts to relaunch talks on stalled proposals and plans for future measures. The following is an explanation of the new proposals (not attempting to cover every detail) with some first thoughts.  Overall, while it is possible that the new package will lead to agreement on revised asylum laws, this will come at the cost of risking reduced human rights standards.

Background

Since 1999, the EU has aimed to create a ‘Common European Asylum System’. A first phase of legislation was passed between 2003 and 2005, followed by a second phase between 2010 and 2013. Currently the legislation consists of: a) the Qualification Directive, which defines when people are entitled to refugee status (based on the UN Refugee Convention) or subsidiary protection status, and what rights they have; b) the Dublin III Regulation, which allocates responsibility for an asylum seeker between Member States; c) the Eurodac Regulation, which facilitates the Dublin system by setting up a database of fingerprints of asylum seekers and people who cross the external border without authorisation;  d) the Asylum Procedures Directive, which sets out the procedural rules governing asylum applications, such as personal interviews and appeals; e) the Reception Conditions Directive, which sets out standards on the living conditions of asylum-seekers, such as rules on housing and welfare; and f) the Asylum Agency Regulation, which set up an EU agency (EASO) to support Member States’ processing of asylum applications.

The EU also has legislation on other aspects of migration: (short-term) visas, border controls, irregular migration, and legal migration – much of which has connections with the asylum legislation, and all of which is covered by this week’s package. For visas, the main legislation is the visa list Regulation (setting out which non-EU countries’ citizens are subject to a short-term visa requirement, or exempt from it) and the visa code (defining the criteria to obtain a short-term Schengen visa, allowing travel between all Schengen states).  The visa code was amended last year, as discussed here.

For border controls, the main legislation is the Schengen Borders Code, setting out the rules on crossing external borders and the circumstances in which Schengen states can reinstate controls on internal borders, along with the Frontex Regulation, setting up an EU border agency to assist Member States. On the most recent version of the Frontex Regulation, see discussion here and here.

For irregular migration, the main legislation is the Return Directive. The Commission proposed to amend it in 2018 – on which, see analysis here and here.

For legal migration, the main legislation on admission of non-EU workers is the single permit Directive (setting out a common process and rights for workers, but not regulating admission); the Blue Card Directive (on highly paid migrants, discussed here); the seasonal workers’ Directive (discussed here); and the Directive on intra-corporate transferees (discussed here).  The EU also has legislation on: non-EU students, researchers and trainees (overview here); non-EU family reunion (see summary of the legislation and case law here) and on long-term resident non-EU citizens (overview – in the context of UK citizens after Brexit – here). In 2016, the Commission proposed to revise the Blue Card Directive (see discussion here).

The UK, Ireland and Denmark have opted out of most of these laws, except some asylum law applies to the UK and Ireland, and Denmark is covered by the Schengen and Dublin rules. So are the non-EU countries associated with Schengen and Dublin (Norway, Iceland, Switzerland and Liechtenstein). There are also a number of further databases of non-EU citizens as well as Eurodac: the EU has never met a non-EU migrant who personal data it didn’t want to store and process.

The Refugee ‘Crisis’

The EU’s response to the perceived refugee ‘crisis’ was both short-term and long-term. In the short term, in 2015 the EU adopted temporary laws (discussed here) relocating some asylum seekers in principle from Italy and Greece to other Member States. A legal challenge to one of these laws failed (as discussed here), but in practice Member States accepted few relocations anyway. Earlier this year, the CJEU ruled that several Member States had breached their obligations under the laws (discussed here), but by then it was a moot point.

Longer term, the Commission proposed overhauls of the law in 2016: a) a Qualification Regulation further harmonising the law on refugee and subsidiary protection status; b) a revised Dublin Regulation, which would have set up a system of relocation of asylum seekers for future crises; c) a revised Eurodac Regulation, to take much more data from asylum seekers and other migrants;  d) an Asylum Procedures Regulation, further harmonising the procedural law on asylum applications; e) a revised Reception Conditions Directive; f) a revised Asylum Agency Regulation, giving the agency more powers; and g) a new Resettlement Regulation, setting out a framework of admitting refugees directly from non-EU countries.  (See my comments on some of these proposals, from back in 2016)

However, these proposals proved unsuccessful – which is the main reason for this week’s attempt to relaunch the process. In particular, an EU Council note from February 2019 summarises the diverse problems that befell each proposal. While the EU Council Presidency and the European Parliament reached agreement on the proposals on qualification, reception conditions and resettlement in June 2018, (Update, 1 October 2020: for the texts of the deals reached on qualification and reception conditions, see the Statewatch website). Member States refused to support the Presidency’s deal and the European Parliament refused to renegotiate (see, for instance, the Council documents on the proposals on qualification and resettlement; see also my comments on an earlier stage of the talks, when the Council had agreed its negotiation position on the qualification regulation).

On the asylum agency, the EP and Council agreed on the revised law in 2017, but the Commission proposed an amendment in 2018 to give the agency more powers; the Council could not agree on this. On Eurodac, the EP and Council only partly agreed on a text. On the procedures Regulation, the Council largely agreed its position, except on border procedures; on Dublin there was never much prospect of agreement because of the controversy over relocating asylum seekers. (For either proposal, a difficult negotiation with the European Parliament lay ahead).

In other areas too, the legislative process was difficult: the Council and EP gave up negotiating amendments to the Blue Card Directive (see the last attempt at a compromise here, and the Council negotiation mandate here), and the EP has not yet agreed a position on the Returns Directive (the Council has a negotiating position, but again it leaves out the difficult issue of border procedures; there is a draft EP position from February). Having said that, the EU has been able to agree legislation giving more powers to Frontex, as well as new laws on EU migration databases, in the last few years.

The attempted relaunch

The Commission’s new Pact on asylum and immigration (see also the roadmap on its implementation, the Q and As, and the staff working paper) does not restart the whole process from scratch. On qualification, reception conditions, resettlement, the asylum agency, the returns Directive and the Blue Card Directive, it invites the Council and Parliament to resume negotiations. But it tries to unblock the talks as a whole by tabling two amended legislative proposals and three new legislative proposals, focussing on the issues of border procedures and relocation of asylum seekers.

Screening at the border

This revised proposals start with a new proposal for screening asylum seekers at the border, which would apply to all non-EU citizens who cross an external border without authorisation, who apply for asylum while being checked at the border (without meeting the conditions for legal entry), or who are disembarked after a search and rescue operation. During the screening, these non-EU citizens are not allowed to enter the territory of a Member State, unless it becomes clear that they meet the criteria for entry. The screening at the border should take no longer than 5 days, with an extra 5 days in the event of a huge influx. (It would also be possible to apply the proposed law to those on the territory who evaded border checks; for them the deadline to complete the screening is 3 days).

Screening has six elements, as further detailed in the proposal: a health check, an identity check, registration in a database, a security check, filling out a debriefing form, and deciding on what happens next.  At the end of the screening, the migrant is channelled either into the expulsion process (if no asylum claim has been made, and if the migrant does not meet the conditions for entry) or, if an asylum claim is made, into the asylum process – with an indication of whether the claim should be fast-tracked or not. It’s also possible that an asylum seeker would be relocated to another Member State. The screening is carried out by national officials, possibly with support from EU agencies.

To ensure human rights protection, there must be independent monitoring to address allegations of non-compliance with human rights. These allegations might concern breaches of EU or international law, national law on detention, access to the asylum procedure, or non-refoulement (the ban on sending people to an unsafe country). Migrants must be informed about the process and relevant EU immigration and data protection law. There is no provision for judicial review of the outcome of the screening process, although there would be review as part of the next step (asylum or return).

Asylum procedures

The revised proposal for an asylum procedures Regulation would leave in place most of the Commission’s 2016 proposal to amend the law, adding some specific further proposed amendments, which either link back to the screening proposal or aim to fast-track decisions and expulsions more generally.  

On the first point, the usual rules on informing asylum applicants and registering their application would not apply until after the end of the screening. A border procedure may apply following the screening process, but Member States must apply the border procedure in cases where an asylum seeker used false documents, is a perceived national security threat, or falls within the new ground for fast-tracking cases (on which, see below).  The latter obligation is subject to exceptions where a Member State has reported that a non-EU country is not cooperating on readmission; the process for dealing with that issue set out under the 2019 amendments to the visa code will then apply. Also, the border process cannot apply to unaccompanied minors or children under 12, unless they are a supposed national security risk. Further exceptions apply where the asylum seeker is vulnerable or has medical needs, the application is not inadmissible or cannot be fast-tracked, or detention conditions cannot be guaranteed. A Member State might apply the Dublin process to determine which Member State is responsible for the asylum claim during the border process. The whole border process (including any appeal) must last no more than 12 weeks, and can only be used to declare applications inadmissible or apply the new ground for fast-tracking them.

There would also be a new border expulsion procedure, where an asylum application covered by the border procedure was rejected. This is subject to its own 12-week deadline, starting from the point when the migrant is no longer allowed to remain. Much of the Return Directive would apply – but not the provisions on the time period for voluntary departure, remedies and the grounds for detention. Instead, the border expulsion procedure would have its own stricter rules on these issues.

As regards general fast-tracking, in order to speed up the expulsion process for unsuccessful applications, a rejection of an asylum application would have to either incorporate an expulsion decision or entail a simultaneous separate expulsion decision. Appeals against expulsion decisions would then be subject to the same rules as appeals against asylum decisions. If the asylum seeker comes from a country with a refugee recognition rate below 20%, his or her application must be fast-tracked (this would even apply to unaccompanied minors) – unless circumstances in that country have changed, or the asylum seeker comes from a group for whom the low recognition rate is not representative (for instance, the recognition rate might be higher for LGBT asylum-seekers from that country). Many more appeals would be subject to a one-week time limit for the rejected asylum seeker to appeal, and there could be only one level of appeal against decisions taken within a border procedure.

Eurodac

The revised proposal for Eurodac would build upon the 2016 proposal, which was already far-reaching: extending Eurodac to include not only fingerprints, but also photos and other personal data; reducing the age of those covered by Eurodac from 14 to 6; removing the time limits and the limits on use of the fingerprints taken from persons who had crossed the border irregularly; and creating a new obligation to collect data of all irregular migrants over age 6 (currently fingerprint data for this group cannot be stored, but can simply be checked, as an option, against the data on asylum seekers and irregular border crossers). The 2020 proposal additionally provides for interoperability with other EU migration databases, taking of personal data during the screening process, including more data on the migration status of each person, and expressly applying the law to those disembarked after a search and rescue operation.  

Dublin rules on asylum responsibility

A new proposal for asylum management would replace the Dublin regulation (meaning that the Commission has withdrawn its 2016 proposal to replace that Regulation). The 2016 proposal would have created a ‘bottleneck’ in the Member State of entry, requiring that State to examine first whether many of the grounds for removing an asylum-seeker to a non-EU country apply before considering whether another Member State might be responsible for the application (because the asylum seeker’s family live there, for instance). It would also have imposed obligations directly on asylum-seekers to cooperate with the process, rather than only regulate relations between Member States. These obligations would have been enforced by punishing asylum seekers who disobeyed: removing their reception conditions (apart from emergency health care); fast-tracking their substantive asylum applications; refusing to consider new evidence from them; and continuing the asylum application process in their absence.

It would no longer be possible for asylum seekers to provide additional evidence of family links, with a view to being in the same country as a family member. Overturning a CJEU judgment (see further discussion here), unaccompanied minors would no longer have been able to make applications in multiple Member States (in the absence of a family member in any of them). However, the definition of family members would have been widened, to include siblings and families formed in a transit country.  Responsibility for an asylum seeker based on the first Member State of irregular entry (a commonly applied criterion) would have applied indefinitely, rather than expire one year after entry as it does under the current rules. The ‘Sangatte clause’ (responsibility after five months of living in a second Member State, if the ‘irregular entry’ criterion no longer applies) would be dropped. The ‘sovereignty clause’, which played a key part in the 2015-16 refugee ‘crisis’ (it lets a Member State take responsibility for any application even if the Dublin rules do not require it, cf Germany accepting responsibility for Syrian asylum seekers) would have been sharply curtailed. Time limits for detention during the transfer process would be reduced.  Remedies for asylum seekers would have been curtailed: they would only have seven days to appeal against a transfer; courts would have fifteen days to decide (although they could have stayed on the territory throughout); and the grounds of review would have been curtailed.

Finally, the 2016 proposal would have tackled the vexed issue of disproportionate allocation of responsibility for asylum seekers by setting up an automated system determining how many asylum seekers each Member State ‘should’ have based on their size and GDP. If a Member State were responsible for excessive numbers of applicants, Member States which were receiving fewer numbers would have to take more to help out. If they refused, they would have to pay €250,000 per applicant.

The 2020 proposal drops some of the controversial proposals from 2016, including the ‘bottleneck’ in the Member State of entry (the current rule, giving Member States an option to decide if a non-EU country is responsible for the application on narrower grounds than in the 2016 proposal, would still apply). Also, the sovereignty clause would now remain unchanged.

However, the 2020 proposal also retains parts of the 2016 proposal: the redefinition of ‘family member’ (which could be more significant now that the bottleneck is removed, unless Member States choose to apply the relevant rules on non-EU countries’ responsibility during the border procedure already); obligations for asylum seekers (redrafted slightly); some of the punishments for non-compliant asylum-seekers (the cut-off for considering evidence would stay, as would the loss of benefits except for those necessary to ensure a basic standard of living: see the CJEU case law in CIMADE and Haqbin); dropping the provision on evidence of family links; changing the rules on responsibility for unaccompanied minors; retaining part of the changes to the irregular entry criterion (it would now cease to apply after three years; the Sangatte clause would still be dropped; it would apply after search and rescue but not apply in the event of relocation); curtailing judicial review (the grounds would still be limited; the time limit to appeal would be 14 days; courts would not have a strict deadline to decide; suspensive effect would not apply in all cases); and the reduced time limits for detention.

The wholly new features of the 2020 proposal are: some vague provisions about crisis management; responsibility for an asylum application for the Member State which issued a visa or residence document which expired in the last three years (the current rule is responsibility if the visa expired less than six months ago, and the residence permit expired less than a year ago); responsibility for an asylum application for a Member State in which a non-EU citizen obtained a diploma; and the possibility for refugees or persons with subsidiary protection status to obtain EU long-term resident status after three years, rather than five.

However, the most significant feature of the new proposal is likely to be its attempt to solve the underlying issue of disproportionate allocation of asylum seekers. Rather than a mechanical approach to reallocating responsibility, the 2020 proposal now provides for a menu of ‘solidarity contributions’: relocation of asylum seekers; relocation of refugees; ‘return sponsorship’; or support for ‘capacity building’ in the Member State (or a non-EU country) facing migratory pressure. There are separate rules for search and rescue disembarkations, on the one hand, and more general migratory pressures on the other. Once the Commission determines that the latter situation exists, other Member States have to choose from the menu to offer some assistance. Ultimately the Commission will adopt a decision deciding what the contributions will be. Note that ‘return sponsorship’ comes with a ticking clock: if the persons concerned are not expelled within eight months, the sponsoring Member State must accept them on its territory.

Crisis management

The issue of managing asylum issues in a crisis has been carved out of the Dublin proposal into a separate proposal, which would repeal an EU law from 2001 that set up a framework for offering ‘temporary protection’ in a crisis. Note that Member States have never used the 2001 law in practice.

Compared to the 2001 law, the new proposal is integrated into the EU asylum legislation that has been adopted or proposed in the meantime. It similarly applies in the event of a ‘mass influx’ that prevents the effective functioning of the asylum system. It would apply the ‘solidarity’ process set out in the proposal to replace the Dublin rules (ie relocation of asylum seekers and other measures), with certain exceptions and shorter time limits to apply that process.

The proposal focusses on providing for possible exceptions to the usual asylum rules. In particular, during a crisis, the Commission could authorise a Member State to apply temporary derogations from the rules on border asylum procedures (extending the time limit, using the procedure to fast-track more cases), border return procedures (again extending the time limit, more easily justifying detention), or the time limit to register asylum applicants. Member States could also determine that due to force majeure, it was not possible to observe the normal time limits for registering asylum applications, applying the Dublin process for responsibility for asylum applications, or offering ‘solidarity’ to other Member States.

Finally, the new proposal, like the 2001 law, would create a potential for a form of separate ‘temporary protection’ status for the persons concerned. A Member State could suspend the consideration of asylum applications from people coming from the country facing a crisis for up to a year, in the meantime giving them status equivalent to ‘subsidiary protection’ status in the EU qualification law. After that point it would have to resume consideration of the applications. It would need the Commission’s approval, whereas the 2001 law left it to the Council to determine a situation of ‘mass influx’ and provided for the possible extension of the special rules for up to three years.

Other measures

The Commission has also adopted four soft law measures. These comprise: a Recommendation on asylum crisis management; a Recommendation on resettlement and humanitarian admission; a Recommendation on cooperation between Member States on private search and rescue operations; and guidance on the applicability of EU law on smuggling of migrants – notably concluding that it cannot apply where (as in the case of law of the sea) there is an obligation to rescue (see further analysis here).

On other issues, the Commission plan is to use current legislation – in particular the recent amendment to the visa code, which provides for sticks to make visas more difficult to get for citizens of countries which don’t cooperate on readmission of people, and carrots to make visas easier to get for citizens of countries which do cooperate on readmission. In some areas, such as the Schengen system, there will be further strategies and plans in the near future; it is not clear if this will lead to more proposed legislation.

However, on legal migration, the plan is to go further than relaunching the amendment of the Blue Card Directive, as the Commission is also planning to propose amendments to the single permit and long-term residence laws referred to above – leading respectively to more harmonisation of the law on admission of non-EU workers and enhanced possibilities for long-term resident non-EU citizens to move between Member States (nb the latter plan is separate from this week’s proposal to amend this law as regards refugees and people with subsidiary protection already). Both these plans are relevant to British citizens moving to the EU after the post-Brexit transition period – and the latter is also relevant to British citizens covered by the withdrawal agreement.

Comments

This week’s plan is less a complete restart of EU law in this area than an attempt to relaunch discussions on a blocked set of amendments to that law, which moreover focusses on a limited set of issues. Will it ‘work’? There are two different ways to answer that question.

First, will it unlock the institutional blockage? Here it should be kept in mind that the European Parliament and the Council had largely agreed on several of the 2016 proposals already; they would have been adopted in 2018 already had not the Council treated all the proposals as a package, and not gone back on agreements which the Council Presidency reached with the European Parliament. It is always open to the Council to get at least some of these proposals adopted quickly by reversing these approaches.

On the blocked proposals, the Commission has targeted the key issues of border procedures and allocation of asylum-seekers. If the former leads to more quick removals of unsuccessful applicants, the latter issue is no longer so pressing. But it is not clear if the Member States will agree to anything on border procedures, or whether such an agreement will result in more expulsions anyway – because the latter depends on the willingness of non-EU countries, which the EU cannot legislate for (and does not even address in this most recent package). And because it is uncertain whether they will result in more expulsions, Member States will be wary of agreeing to anything which either results in more obligations to accept asylum-seekers on their territory, or leaves them with the same number as before.

The idea of ‘return sponsorship’ – which reads like a grotesque parody of individuals sponsoring children in developing countries via charities – may not be appealing except to those countries like France, which have the capacity to twist arms in developing countries to accept returns. Member States might be able to agree on a replacement for the temporary protection Directive on the basis that they will never use that replacement either. And Commission threats to use infringement proceedings to enforce the law might not worry Member States who recall that the CJEU ruled on their failure to relocate asylum-seekers after the relocation law had already expired, and that the Court will soon rule on Hungary’s expulsion of the Central European University after it has already left.

As to whether the proposals will ‘work’ in terms of managing asylum flows fairly and compatibly with human rights, it is striking how much they depend upon curtailing appeal rights, even though appeals are often successful. The proposed limitation of appeal rights will also be maintained in the Dublin system; and while the proposed ‘bottleneck’ of deciding on removals to non-EU countries before applying the Dublin system has been removed, a variation on this process may well apply in the border procedures process instead. There is no new review of the assessment of the safety of non-EU countries – which is questionable in light of the many reports of abuse in Libya. While the EU is not proposing, as the wildest headbangers would want, to turn people back or refuse applications without consideration, the question is whether the fast-track consideration of applications and then appeals will constitute merely a Potemkin village of procedural rights that mean nothing in practice.

Increased detention is already a feature of the amendments proposed earlier: the reception conditions proposal would add a new ground for detention; the return Directive proposal would inevitably increase detention due to curtailing voluntary departure (as discussed here). Unfortunately the Commission’s claim in its new communication that its 2018 proposal is ‘promoting’ voluntary return is therefore simply false. Trump-style falsehoods have no place in the discussion of EU immigration or asylum law.

The latest Eurodac proposal would not do much compared to the 2016 proposal – but then, the 2016 proposal would already constitute an enormous increase in the amount of data collected and shared by that system.

Some elements of the package are more positive. The possibility for refugees and people with subsidiary protection to get EU long-term residence status earlier would be an important step toward making asylum ‘valid throughout the Union’, as referred to in the Treaties.  The wider definition of family members, and the retention of the full sovereignty clause, may lead to some fairer results under the Dublin system. Future plans to improve the long-term residents’ Directive are long overdue. The Commission’s sound legal assessment that no one should be prosecuted for acting on their obligations to rescue people in distress at sea is welcome. The quasi-agreed text of the reception conditions Directive explicitly rules out Trump-style separate detention of children.

No proposals from the EU can solve the underlying political issue: a chunk of public opinion is hostile to more migration, whether in frontline Member States, other Member States, or transit countries outside the EU. The politics is bound to affect what Member States and non-EU countries alike are willing to agree to. And for the same reason, even if a set of amendments to the system is ultimately agreed, there will likely be continuing issues of implementation, especially illegal pushbacks and refusals to accept relocation.

Barnard & Peers: chapter 26

JHA4: chapter I:3, chapter I:4, chapter I:5, chapter I:6, chapter I:7

Photo credit: DW

*I have worked as an independent consultant for the impact assessment regarding the background of some of this week’s proposals. My views are, however, independent of any EU institution or Member State.