The new Screening Regulation – part 5 of the analysis of new EU asylum laws

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Rock Cohen, via Wikimedia Commons

(Amended on 14 May and 10 and 18 June 2024 - changed sentences marked with an asterisk)

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications (also known as the 'Asylum and Migration Management Regulation', or AMMR), the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are a ‘package’ of new or revised EU asylum laws.* All the legislation was formally adopted on 14 May 2024, and published in the EU Official Journal on 22 May 2024.*

I’ve looked at all the new legislation on this blog in a series of blog posts, which are based on a forthcoming article.* This is the fifth post in the series, on the new Regulation on screening of migrants (mostly) at the external borders. The other blog posts in the series concern the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the revised Dublin rules on responsibility for asylum-seekers/AMMR (Part 6), the Regulation on asylum procedures (part 7), and the crisis Regulation plus general comments (Part 8).*

The 2024 asylum package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The Screening regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package is in effect a third phase, although for some reason the EU avoids calling it that.*

However, unlike most of the 2024 package of legislation, the Screening Regulation is entirely new – although to some extent it may provide a legal basis for things that were already going on in practice before its adoption. So unlike most of the other laws in the asylum package, there is no current version of the law to compare the new version to – and therefore no prior CJEU case law to consider either.

Having said that, the Screening Regulation amended a number of other EU measures, to ensure their consistency with it, namely the Regulations on: the Visa Information System; the entry-exit system; ETIAS (the travel authorisation system); and interoperability of databases.* Furthermore, a parallel Regulation amended two EU criminal law measures to ensure that they are also consistent with the main Screening Regulation.*

Why two parallel Regulations? Because the Screening Regulation, unlike the rest of the package of EU asylum law measures, is technically a law on external borders, not asylum. As such, it ‘builds upon the Schengen acquis’, and so is applicable in principle to the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) too.* Ireland must opt out (as it does not participate in Schengen) and Denmark is formally excluded (although it may apply the Regulation as a matter of national law). In contrast, the parallel amendment to EU criminal law is only relevant to Member States (but again, there will be an Irish and Danish opt out from it).

In this context, the preamble to the Regulation makes special provision for Cyprus, which has not yet fully applied Schengen; that country must apply the Regulation to those crossing the line separating the areas controlled by the Cypriot government and the Turkish Cypriot administration, even though it is not legally an international border from the perspective of EU law.  As for Denmark and Schengen associates, the preamble states that for them, references to the EU’s reception conditions Directive in the Screening Regulation should be understood as references to the relevant national law.   

As with all the new EU asylum measures, each must be seen in the broader context of all the others – which I discuss over the course of this series of blog posts.* Furthermore, the new Screening Regulation has links with the Schengen Borders Code, the main law governing crossing of external EU borders – although the Regulation did not formally amend the Code.* It will also link with (but again, not amend) the EU’s Returns Directive.

The legislative process leading to the agreed text of the screening Regulation started with the Commission proposal in 2020, as part of the attempt to ‘relaunch’ the process of amending EU asylum law, started back in 2016.* The proposal was subsequently negotiated between EU governments (the Council) and then between the Council and the European Parliament. But this blog post will look only at the final text, leaving aside the politics of the negotiations.

Like most of the other measures in the asylum package, the application date of the Screening Regulation will be about two years after adoption - namely 12 June 2026.* However, the provisions on queries of other EU information systems will only start to apply once those information systems enter into operation.

Scope

The Regulation applies to four categories of people, namely those who: 

without fulfilling the entry conditions [in the Schengen Borders Code], have crossed the external border in an unauthorised manner, have applied for international protection during border checks, or have been disembarked after a search and rescue operation

and of

third-country nationals illegally staying within the territory of the Member States where there is no indication that those third-country nationals have been subject to controls at external borders, before they are referred to the appropriate procedure.

The Regulation distinguishes between the first three categories, who are all connected with the external borders, and the fourth category (illegal staying where is there is no indication of having been controlled at external borders). For simplicity’s sake, this blog post refers to the first three categories as ‘external cases’, and the fourth category as ‘internal cases’. Both the first and third groups must be screened regardless of whether they apply for asylum or not.

Member States ‘may refrain’ from screening the fourth category of people (on the territory, having entered without authorisation), if they send the non-EU citizen back, ‘immediately after apprehension, to another Member State under bilateral agreements or arrangements or under bilateral cooperation frameworks.’ In that event, the other Member State must apply a screening process.

The Screening Process

For external borders cases, screening must be ‘carried out without delay’, and in any event completed within seven days of apprehension, disembarkation, or presentation at the border. For internal cases, the deadline is three days. Screening must end if the person concerned is authorised to enter the territory. Screening may end if the person concerned ‘leaves the territory of the Member States, for their country of origin or country of residence or for another third country’ to which they voluntarily decided to return to and were accepted by. In any case, screening ends once the deadline to complete it is reached.

Screening must take place at an ‘adequate and appropriate’ location decided by Member States; for external cases, that location should be ‘generally situated at or in proximity to the external borders’, although it could be at ‘other locations within the territory’. It must entail (referring in part to checks under other EU laws): checks on health, vulnerability, and identity; registration of biometric data ‘to the extent that it has not yet occurred’; a security check; and filling out a screening form.

For those who have made an asylum application, the registration of that application is governed by the asylum procedures Regulation. The preamble to the Screening Regulation explicitly states that an asylum application can be made during the screening process. Furthermore, the Screening Regulation is ‘without prejudice to’ the Dublin rules; and it ‘could be followed by relocation’ (ie movement to a Member State not responsible for the application) under the Dublin rules ‘or another existing solidarity mechanism’.

Member States are obliged to inform the persons being screened about the screening process itself, as well as asylum law and returns law, the Borders Code, national immigration law, the GDPR, and any prospect of relocation. Otherwise, there is no explicit reference to procedural rights. Conversely, the people being screened have procedural obligations: they must ‘remain available to the screening authorities’ and provide both specified personal data and biometric data as set out in the Eurodac Regulation. Finally, after screening ends, the person concerned should be referred to the appropriate procedure – either the asylum process or the returns process.

Treatment During Screening

As regards immigration law status during the screening process, external cases must not be authorised to enter the territory of the Member States, even though the screening might be carried out on the territory de facto. This is obviously a legal fiction, which is exacerbated by the prospect (under the procedures Regulation) of continuing that legal fiction under the ‘borders procedure’ for up to 12 weeks.

Moreover, Member States must provide in their national law that persons being screened ‘remain available to the authorities carrying out the screening for the duration of the screening, to prevent any risk of absconding and potential threats to internal security resulting from such absconding.’ This wording looks like a euphemism for detention, which the Regulation goes on to refer to more explicitly – providing that where the person being screened has not applied for asylum, the rules on detention in the Returns Directive apply.

For those who have applied for asylum, the reception conditions Directive applies to the extent set out in it. This cross-reference is potentially awkward because that Directive applies to those ‘allowed to remain on the territory’ with that status, whereas the Screening Regulation decrees that the people covered by it are not legally on the territory. Logically the reception conditions Directive must apply despite the non-entry rule of the Screening Regulation, otherwise that Regulation’s references to that Directive applying would be meaningless (the preamble to the Regulation also says that the detention rules in the reception conditions Directive ‘should apply’ to asylum seekers covered by the Regulation). Screening is not as such a ground for detention in the exhaustive list of grounds set out in the reception conditions Directive – so Member States will have to find some other ground for it from that list. The preamble to the Regulation sets out general rules on limits to detention, borrowing some language from the reception conditions directive.

As for other aspects of treatment, the Screening Regulation states that Member States ‘shall ensure that all persons subject to the screening are accorded a standard of living which guarantees their subsistence, protects their physical and mental health and respects their rights under the Charter [of Fundamental Rights].’ For asylum-seekers, this overlaps with the more detailed rules in the reception conditions Directive, but for non-asylum seekers, it in principle goes further than the Returns Directive – although the case law on that Directive has required some minimum treatment of people covered by it. Of course, for many people subject to screening, it will be the provisions on detention conditions under those two Directives which will be relevant in practice. There is a more specific provision on health care, stating that those being screened ‘shall have access to emergency health care and essential treatment of illness.’

The Regulation includes specific provisions on minors. The best interests of the child must always be paramount; the minor must be accompanied by an adult family member, if present, during the screening; and Member States must ensure the involvement of a representative for unaccompanied minors (overlapping with the relevant provisions of the reception conditions Directive).

Finally, as for contact with the outside world, ‘[o]rganisations and persons providing advice and counselling shall have effective access to third-country nationals during the screening’, although Member States may limit that access under national law where the limit is ‘objectively necessary for the security, public order or administrative management of a border crossing point or of a facility where the screening is carried out, provided that such access is not severely restricted or rendered impossible’. Presumably such access can help check that the rules on treatment are being applied, including possible challenges to detention and offering advice as regards subsequent asylum or returns procedures, or potential challenges to screening as discussed above.

Human Rights Monitoring

The Regulation sets out an overarching obligation to comply with human rights obligations, including the principle of non-refoulement (not sending a migrant to an unsafe country), as well as a requirement to have an independent human rights monitoring mechanism, which is specified in some detail. Member States must: ‘investigate allegations of failure of respect for fundamental rights’ as regards screening; ensure civil or criminal liability under national law ‘in cases of failure to respect or to enforce fundamental rights’; and create an independent mechanism to monitor human rights compliance during the screening, ensuring that allegations of human rights breaches are triggered or dealt with effectively, with ‘adequate safeguards’ to ensure its independence. The preamble points out that judicial review is not enough to meet these standards. (Also, these rules will apply to monitoring the borders procedure in the procedures Regulation)

Assessment

To what extent has this Regulation ensured a balance between migration control and human rights? It does aim towards a greater degree of migration control by imposing new legal obligations as regards many asylum seekers; but the key point as regards their rights is that the Regulation provides for a filtering process, not a final decision. In other words, the screening process does not entail in itself a decision on the merits or admissibility of an asylum claim, or a return decision. Whilst it is based on a legal fiction of non-entry, that process is strictly and absolutely limited in time, with no prospect of extending the short screening period even as a derogation under the Exceptions Regulation. (In contrast, the border procedure under the procedures Regulation lasts for longer, and can be extended in exceptional cases). And the legal fiction does not in any event mean that no law applies at all to the persons concerned; obviously at the very least, the screening Regulation itself applies, as do other EU laws which it makes applicable. (So does the ECHR: see Amuur v France) For instance, the Regulation refers to detention on the basis of the returns and reception conditions Directives, and although the lack of authorisation to enter means that the right to remain on the territory as an asylum seeker is not triggered as such, nevertheless the Regulation precludes Member States taking return decisions to remove asylum seekers, as it only provides for a filtering process.

Despite the absence of any express procedural rights in the Regulation, it is arguable that in light of the right to effective remedies and access to court set out in Article 47 of the Charter, it should at least be possible to challenge the application of the screening procedure on the basis that (for example) there is no legal ground for the screening at all, or that the screening has exceeded its permitted duration. In any event, the absence of express procedural rights should be seen in the context of the screening process not determining the merits of an asylum application.

The drafters of the Regulation chose instead to focus on the prospect of non-judicial processes to protect human rights in the context of the screening process. While non-judicial mechanisms of course play an important role in protection of human rights in general, it is useful if parallel judicial processes can be relied upon too. And one area where the Regulation should have explicitly provided for both judicial and non-judicial mechanisms is pushbacks from the territory – illegal not only under human rights law but also under EU law, as recently confirmed by the CJEU.

 

Migration in Europe and the Problems of Undercriminalisation

 

By Amanda Spalding, Lecturer in Law, University of Sheffield

Photo credit: Gzen92, via wikicommons media

Introduction

As five million refugees enter Europe having fled Ukraine, Denmark and the UK prepare for off-shore processing of asylum applications and Frontex tells us that in the first half of 2022 irregular entries to the European Union are up 84%, it is difficult to keep up with rapid and ever-changing laws and policies on migration. However, it is important to continue to reflect on the broader legal context that these developments are situated within, especially the human rights framework that will be crucial in providing some level of protection. This protection, though, is far from robust and subject to being increasingly undermined by other trends in the law.

The following blog post summarises some of the main themes of my new book, The Treatment of Immigrants in the European Court of Human Rights.

The Criminalisation of Immigration

The criminalisation of immigration has long been noted by scholars across Europe and beyond. The criminalisation of immigration – sometimes called ‘crimmigration’- refers to the increased entwining overlap of the criminal justice system and the immigration system. This entwining takes multiple different forms including the law. The legal framework surrounding immigration increasingly draws on the criminal law by creating a huge number of immigration offences. This includes the criminalisation of the most basic immigration offences such as irregular entry or stay which is widely criminalised in Europe with varying levels of seriousness (see the Country Profiles by the Global Detention Project). For example, the level of fine for such an offence can be relatively low such as in the Czech Republic and Estonia where maximum fines are below €1,000 whereas in countries such as Austria, Cyprus, Italy and the UK maximum fines exceed €4,000. Most European states, including the UK, Sweden, Norway, the Netherlands, Ireland, Germany, France, Finland and Denmark, set the maximum prison term for these types of crime at between six months to one year. In practice though some states such as Germany and Finland rarely use imprisonment whereas in others such as Bulgaria and the Czech Republic there is evidence of extensive inappropriate use of imprisonment against asylum seekers.

Criminalisation is not confined to migrants themselves but also affects those who facilitate their irregular entry and stay. Article 1(1)(a -b) of the EU Facilitation Directive requires Member States to create appropriate sanctions for those who deliberately assist irregular entry to or stay in a Member State with Article 1(1)(b) requiring the imposition of sanction on anyone who does so for financial gain. The aim of these measures was, at least in part, to tackle organised crime. Article (1)(2) of the Facilitation Directive does allows Member States to provide exceptions for those who provide such assistance for humanitarian reasons but it does not require them to do so. Thus, there are varying standards across Europe as to when the facilitation of entry or stay is a punishable offence with some countries allowing for broad criminalisation including situations of humanitarian assistance. The prosecution of individuals providing help such as Lisbeth Zornig Andersen in Denmark, the criminalisation of rescue where those who aid migrant boats in distress as sea have faced criminal charges and extensive criminalisation of NGO organisations providing asylum and humanitarian assistance have all been incredibly controversial. Many states have also gone further and criminalised other interactions with migrants such as the letting of accommodation to those with irregular status.

Immigration and criminal law have become further entwined by the increased use of immigration measures as a consequence of criminal conviction. Although public security has long been a ground for deportation in many European countries, its use in recent years have become increasingly punitive and severe. Over the last twenty years states such as the UK, Denmark and Germany have all passed laws that make deportation an automatic result of many criminal convictions and the UK and Norway now have separate prisons to hold foreign national prisoners.

There has also been a significant increase in the immigration detention estate across the EU with varying types and uses as explored by Elspeth Guild in her ‘Typology of different types of centres in Europe’ for the European Parliament. There has also been a huge increase in surveillance of migration. The EU has created a ‘plethora of systems’ regarding border control including the EURODAC database which holds migrant fingerprint data, the Visa Information System (VIS) which stores the biometric information on all third country nationals who apply for a visa in the Schengen area and Eurosur which is a surveillance system which uses drones, sensors and satellites to track irregular immigration. The use of fingerprint and other surveillance technology in immigration control in and of itself has connotations with the criminal law but this is further compounded by Europol (European Police Office) and national law enforcement agencies being given access to some of this data.

The Problem of Undercriminalisation

There are thousands of other elements to the criminalisation of immigration trend, not least the rhetoric surrounding migration in many European states, but there is a possibility that focusing too much on criminalisation is actually a bit of red herring. The complex powers and systems in immigration law and policy mean that much of the stigma and severity of the criminal law is being endured by migrants but often without the concurrent procedural safeguards that the criminal law provides. The problem for immigrants may be then conceptualized as a problem of ‘undercriminalisation.’ Ashworth and Zedner offer a clear definition of this practice: “undercriminalisation can be said to occur when the state sets out to provide for the exercise of police power against citizens in alternative (non-criminal) channels which are subject only to lesser protections inadequate to constraining an exercise of power of the nature and magnitude involved… undercriminalisation occurs where the failure to designate a preventative measure as criminal deprives the citizen of what is due to her, in view of the substance of the restrictions on liberty and possible sanctions involved in the ostensibly preventative measure.”

Thus, in a perverse way, immigrants might be better off if the whole system was being criminalised as they’d benefit from far more procedural safeguards and judicial oversight than they do now. It is also possible that this is not simply ‘undercriminalisation’ but the beginnings of a two-tier system in both criminal justice and human rights. The intersection of these two can already been seen in the UK government’s proposed Bill of Rights Bill which seeks to severely limit certain human rights for migrants, particularly foreign national offenders.

The ECtHR and Migration

In order to appreciate the risk of this two-tier system, it is important to understand how the European Court of Human Rights has responded to the increasingly harsh immigration system and where there are significant gaps in protection. For example, the lack of a proper necessity and proportionality test when considering the arbitrariness of immigration detention means it has the lowest level of protection of any form of detention and as Professor Costello put it: has been left “in its own silo.” Likewise the failure of the Court to apply the right to a fair trial contained in Article 6 to immigration decisions has barely been discussed by academics and advocacy organisations despite the fact that this is an incredibly powerful and fundamental right that would serve as a crucial check on state power. The fact that immigration decisions and detention are becoming increasingly bound up with the criminal law means that we should be especially careful to scrutinise the legal approach to such issues, with many criminological and sociological scholars challenging the long-held legal conception of immigration measures as non-punitive.

Finally, it is important to continuous reflect on the fact that the criminalisation phenomenon is part of a wider trend of very harsh immigration regimes in Europe and the two are often related. The criminalisation phenomenon may increase the harshness with which immigrants are dealt with and exacerbate existing issues, but it is not always the root problem in the failure of the Court to protect migrants fully.  As already demonstrated in depth by others such as Professor Costello and Professor Dembour, there are significant issues with how the European Court of Human Rights approaches migrants’ rights and that to truly understand the treatment of immigrants in Europe, the criminalisation of immigration framework may be insufficient. This is a trend that must be subject to rigorous scrutiny. Beyond the clear moral issues with having a two-tier human rights and criminal justice system, the Court’s approach poses other dangers. The general failure of the Court to engage in proper scrutiny of state immigration power and policies means that it may allow racial discrimination to go unchecked. The approach of the Court to immigration matters may also seep into other areas of its case-law and mean a general erosion of rights for everyone, immigrants and citizens.

 

 

 

Creating procedural obligations under EU law: a way forward to enhanced protection of fundamental rights in the field of migration?

 

Opinion of AG de la Tour in Joined Cases C, B (C‑704/20) and X (C‑39/21)

Alicja Słowik, Assistante de recherché, Centre d’études juridiques européennes (CEJE), Université de Genève

Photo credit: Abouttt, via Wikimedia commons

 

Striking a fair balance between the principle of national procedural autonomy and the necessity to guarantee effective judicial protection of rights derived from EU law has never been an easy task for the European Court of Justice (‘the ECJ’/’the Court’). Yet, the task becomes particularly complex when what is at stake is effective judicial protection of rights of fundamental nature.  How could the concern for protection of EU fundamental rights affect the application of national procedural rules? Can national rules limit the power of the judge to assess the lawfulness of detention of foreign national or would such a limitation lead to serious encroachment on the fundamental right to liberty? The recent Opinion of AG Jean Richard de la Tour in the Joined cases Staatssecretaris van Justitie en Veiligheid v. C, B (C‑704/20, ‘Case C, B’) and X v. Staatssecretaris van Justitie en Veiligheid (C‑39/21, ‘Case X’) concerning the issue of ex officio review of detention measures provides for precious insights on the possible answers to these questions.

 

Legislative background and facts of the Joined cases

The two Joined cases at hand concern the scope of powers of national judges to examine the lawfulness of detention of third country nationals. In EU law, such a detention may be exceptionally imposed with regard to asylum seekers or migrants staying illegally on the EU territory. Articles 15 to 17 of the Return Directive, 8 to 11 of the Reception Conditions Directive and Article 28 of Dublin III Regulation provide for legal basis and conditions pertaining to detention. It is thus by reference to these provisions that the judge examines the lawfulness of detention of third country nationals (‘TCNs’).

In the Netherlands, detention of foreign nationals is governed by administrative procedural law which does not allow national courts to examine the conditions of the lawfulness of detention of their own motion (ex officio). This means that it is impossible for a national judge to review detention measure on the grounds other than those relied on by the foreign national during the proceedings. Moreover, the judge cannot release the detainee even after having found that the detention is unlawful on grounds different than those put forward by the person concerned. The preliminary questions addressed by two Dutch jurisdictions: the Council at State (Raad van State) and the District Court in the Hague (Rechtbank Den Haag) related to the problem of compatibility of Dutch legislation with EU law, especially, with the right to an effective remedy and right to liberty.

The first case, C and B, concerned detention measures imposed with regard to two TCNs. The first individual concerned was put in detention for the purpose of determining the elements necessary for the examination of his application for international protection. The second applicant was placed in detention with the aim of securing his transfer to Italy in accordance with Dublin III Regulation. Both contested the detention orders before the District Court which ordered their release on the ground relating to the non-respect of the obligation of due diligence. Importantly, the argument concerning the non-respect of due diligence obligation was not raised by the detainees during the proceedings.

The Secretary of State brought an appeal against the judgements ordering the release of two foreign nationals before the Council of State. The two TCNs argued that, by virtue of EU law, the national jurisdictions had a duty to examine the lawfulness of detention measure of its own motion. Yet, as explained above, such an ex officio review of detention was impossible to perform under the Dutch legislation. In these circumstances, the Council of State decided to ask the ECJ for clarifications on the interpretation of Article 15, paragraph 2, of Return Directive and Article 9 of the Reception Conditions Directive in light of Article 6 of the Charter of Fundamental Rights of the EU (‘the Charter’) which guarantees the right to liberty.

The second case, X, concerned the application of the Return Directive. A TCN had been put in detention on grounds relating to the maintenance of public order. The applicant challenged the decision on the continuation of detention before the District Court. The judge again had doubts on the compatibility of Dutch legislation prohibiting the ex officio review of detention with EU law.

 

Opinion of the Advocate General

At the very beginning of the Opinion, the AG noticed that the role of the judge does not differ much depending on whether he assesses the lawfulness of the detention order or of the order on the continuation of detention (§68). Further, relevant provisions of Return Directive, Reception Conditions Directive and Dublin III Regulation embody the same key principles concerning the power of the judge called upon to assess the lawfulness of detention (§68). For this reason, it was possible to jointly examine the compatibility of Dutch legislation with regard to all these three instruments.

Subsequently, the AG presented briefly a set common rules concerning the judicial control of detention orders. He recalled in particular that detention of the TCN ordered by an administrative or judicial authority shall be subject to judicial review (§70). The requirement of judicial control serves primarily to protect the TCN against arbitrary deprivation of liberty (§72). Nonetheless, the rules concerning the extent of judicial control have not been harmonised so far at the EU level. The modalities of such a control are therefore covered by the principle national procedural autonomy of Member States (§73). The national legislation determining the extent of judicial control must nonetheless comply with the principles of effectiveness and equivalence. (§75).

Focusing on the assessment of  compatibility of national rule with the principle of effectiveness the AG briefly referred to the so called ‘procedural rule of reason test’ . According to this test, while examining the question of whether national procedural rule renders the application of EU law ‘impossible’ or ‘excessively difficult’, the judge must take account of ‘the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies’ (see eg. XC and Others, C‑234/17, §49). In that context, must be considered, in particular, ‘the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure’ (XC and Others, C‑234/17, §49)

Yet, this test was not of particular relevance in the cases at hand, as the AG indicated that the ‘effectiveness requirement’ would not be satisfied if a procedural rule at stake was incompatible with the right to an effective judicial protection enshrined in Article 47 of the Charter (§78). The central problem in the Joined cases boiled down to the question of whether a national rule prohibiting ex officio assessment of conditions pertaining to detention infringed the right to an effective judicial protection.

The Court has ruled on different occasions that the principle of effectiveness ‘does not preclude a national provision which prevents national courts from raising of their own motion an issue as to whether the provisions of Community law have been infringed, where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves’ (Van Schijndel, C-430/93 and C-431/93,§22). Yet, none of the so-far examined situations on ex-officio application of EU law has dealt directly with protection of the right to liberty guaranteed by Article 6 of the Charter (§80).

Relying on Mahdi case (C-146/14 PPU), the AG recalled that the Court assessing the lawfulness of the detention measures ‘must be able to take into account both the facts stated and the evidence adduced by the administrative authority and any observations that may be submitted by the third-country national’ (Mahdi, §62). He then drew attention to the paramount importance of the right to judicial protection in guaranteeing respect of the right to liberty (§86). Detention ordered on the basis of Return Directive, Reception Conditions Directive or Dublin III Regulation must respect the principle of proportionality and fundamental rights of the individuals concerned (§87).   

Plunging into the analysis of possible infringements on fundamental rights, the AG observed that the limitation on the scope of judicial control of detention measures constitutes a restriction of fundamental right to a remedy which shall be examined under Article 52 of the Charter. He underlined that the very essence of the right to effective judicial protection as well as protection against arbitrary detention would be infringed if the judge could not release a person detained even after having come to conclusion that detention was illegal (§91).

The impossibility for a judge to examine all relevant issues concerning the lawfulness of detention, may result in person being detained in situation where the conditions pertaining to detention are not (or are no longer) met (§92). This is inadmissible given that Article 15, paragraph 2, of the Return Directive and Article 9, paragraph 3, of the Reception Conditions Directive state clearly that when the detention is unlawful, the person concerned shall be released immediately. The release shall be thus an immediate consequence of finding that detention is illegal (§92).

The AG insisted again on the importance of the right to liberty and underlined that national procedural rules shall not allow doubts as to the lawfulness of detention to persist (§95). In a nutshell, the jurisdiction called upon to assess the lawfulness of detention order must control respect of general and abstract rules setting the conditions and modalities of detention. The limitation on the possibility for a judge to examine the issues and arguments which were not raised by the parties does not respect the principle of effectiveness. The Dutch legislation is incompatible with Article 15 of the Return Directive, Article 9 of the Reception Conditions Directive and Article 28 of the Dublin III Regulation read in conjunction with Articles 6 and 47 of the Charter.

 

Comments

The Opinion of AG de la Tour deserves attention for several reasons. Most importantly, the Joined cases would be the first occasion for the Court to directly adjudicate upon the question of an obligation to apply EU law ex officio in the context of detention of TCNs. Should the Grand Chamber follow the solution proposed by the AG, the judgement will be another example of the increasing influence of EU law on shaping national procedural rules in the field of migration (I). Furthermore, the Opinion sheds more light on the potential of EU fundamental rights to play a key role in setting limits of national procedural autonomy (II). 

 

Obligation of ex officio review of detention: a sign of ‘progressive revolution’ in the ECJ’s approach towards national procedural rules?  

The AG underscored the unprecedented nature of the subject-matter in the cases at hand.  This will be the first time when the Court will rule on the obligation of ex officio application of EU law in the context involving the application of the fundamental right to liberty (§1 and §80). As mentioned above, the Court has already stated that, in principle, national courts do not have obligation to raise points of EU law of their own motion. There are some exceptions to this rule, for instance in the field of consumer law (see eg. case Mostaza Claro, C-168/05). The AG proposed that in the situations concerning fundamental right to liberty the judge must proceed to assessment of all conditions pertaining to detention of his own motion, establishing thus a new exception to the rule on the lack of obligation to apply EU law ex officio. Importantly, the AG referred to obligation rather than a simple possibility for a national judge to review the lawfulness of detention on the grounds different from those relied on by the parties. In this regard, he opted for a more intrusive interference with the national procedural rules.

The creation of positive obligations and direct intervention into national procedures are a fairly rare phenomenon in the ECJ’s case law which has nonetheless become more visible in the recent years, at least as far as the field of migration and asylum law is concerned. Suffice it to mention for instance Országos (C‑924/19 PPU and C‑925/19 PPU) case in which Court stated that the national judge had to declare himself competent to examine detention measures decided by administrative body even though he did not have such a power under national law. In that judgement, the right to fundamental remedy enshrined in Article 47 of the Charter as well as in the relevant provisions of secondary law (Article 15 of Return Directive and Article 9 of Reception Conditions Directive 2013/33) played an eminent role in the Court’s reasoning.

Importantly, the developments regarding the significance of the right to an effective remedy in protection of procedural rights of migrants are not confined to the cases dealing with detention: they are also present in other areas of EU migration law. In a relatively recent case H. A. v État belge (C‑194/19)  concerning the scope of the right to a judicial remedy as guaranteed under Dublin III Regulation, the Court ruled that, when examining the lawfulness of transfer decision, the national judge shall be able to take due account of circumstances subsequent to the adoption of that decision. These findings were similarly the fruit of generous interpretation of the right to an effective remedy and a limited application of the doctrine of national procedural autonomy. Earlier, in the context involving the application of the Visa Code, building on the potential of Article 47 of the Charter, the Court interpreted the provision on the right to bring appeal against the refusal of visa (Article 32(3)) as requiring the establishment of judicial (and not solely administrative) remedy (El Hassani, C‑403/16). On several occasions, Article 47 of the Charter has thus served as a tool for unearthing the ‘creationist’ side of the principle of effective judicial protection which allows the Court to readjust or directly establish new remedies for the protection of rights guaranteed by EU law.

Given that, in the past, the Court directly conferred to national judges’ power to review the legality of detention (Országos), the imposition of duty to raise the point of EU law of their own motion would not constitute a revolutionary move in the Court’s case law on national procedural rules. Yet, cumulatively, case law on procedural rights and obligations is a significant step forward for enhanced protection of fundamental rights which may lead to renewal of the Court’s approach towards the doctrine of national procedural autonomy.

 

Concern for protection of fundamental rights as a key rationale for further limitation of national procedural autonomy in EU migration law

The principle of national procedural autonomy has traditionally been subject to requirements resulting from the principles of equivalence and effectiveness, subsequently complemented by the principle of effective judicial protection currently enshrined in Article 47 of the Charter. It has been argued that analysis focused on the respect of Article 47 of the Charter had a vocation to replace the ‘traditional test’ of effectiveness. The present opinion does not provide much clarification on the blurred relationship between effectiveness and effective judicial protection. The principle of national procedural autonomy, effectiveness and the ‘procedural rule of reason test’ are the starting point of the AG’s examination of compatibility of national legislation with EU law. Yet, very quickly the focus shifts towards the assessment of the effects the said legislation may have on the protection of fundamental right to liberty and right to a judicial remedy. All in all, fundamental rights-based analysis trumps the ‘procedural rule of reason test’. Whereas Article 47 constitutes a natural benchmark for assessing the compatibility of national procedural rules with EU law, the extensive reliance on the fundamental right to liberty in the AG’s reasoning illustrates a new trend in the field.

At the very beginning of his Opinion, AG de la Tour underlined that the importance of the right to liberty and the essential role of judges in protection of the latter justify a certain distrust (‘une certaine méfiance’) towards national procedural rules limiting the powers of judges (§1). The reasoning of the AG conspicuously marked by the concern for protection of the fundamental right to liberty (see in particular §86 and following).

On many occasions the AG refers to Article 6 of the Charter and to the provisions of secondary law concerning the detention conditions. The intrinsic links between the effective access to judge and adequate protection against arbitrary detention underlie a more demanding approach towards national procedural rules. The prominent role of the right to remedy in the protection of fundamental right to liberty justified the creation of obligation for national judge to examine the respect of all detention conditions of his own motion.

The Opinion illustrates that the concern for protection of fundamental rights may significantly affect the process of drawing the boundaries of national procedural autonomy. Presumably, in the future, the Court will leave less margin of manoeuvre for the application of national procedural rules in situations where the protection of EU fundamental rights is at stake. Such a stricter approach towards national rules could have been observed in previous case law. In the aforementioned cases Mahdi and Országos, the extension of powers of national judges served primarily as a mean of protection of fundamental right to an effective remedy and right to liberty. In those two cases however, the Court relied mostly on the sources of secondary law, making only minor references to Article 6 of the Charter. By contrast, the latter provision, together with Article 47 of the Charter constituted the very basis of the AG’s analysis. The Opinion confirms that the limitation of constantly shrinking area of national procedural autonomy may result not solely from the large scope Article 47 of the Charter but also, the necessity to protect substantive fundamental rights such as the right to liberty.

Finally, it is worth noting that, as the Council of State accurately pointed out (§39), ex officio examination of the conditions of lawfulness of detention has not been so far imposed by the European Court of Human Rights (‘ECtHR’). Assuming that the Court will follow the solution proposed by the AG, the standard of protection of fundamental right to liberty and right to an effective remedy under EU legal framework will be arguably higher than the one guaranteed within the system of the European Convention of Human Rights. In this regard, the joined cases at hand have potential to become another example of judgement in which the CJEU did not hesitate to go further than the ECtHR in terms of protection of basic freedoms of migrants.

It will be interesting to observe whether the Grand Chamber’s judgement in C, B and X will be, alike the AG’s Opinion, centred around the concern for protection of fundamental rights and whether such an approach would result in a more thorough review of national procedural rules. Should the ECJ decide to impose a new duty to national judges, the judgement will confirm the tendency in recent case law on adjusting the application of national procedural rules for the sake of protecting the fundamental rights. Independently of the of the outcome of the judgement, the Opinion of AG de la Tour confirms that Article 47 of the Charter has already become as a powerful tool for boosting effective judicial protection, in particular in situations where it is relied upon for purposes of securing the respect of substantive fundamental rights. 

 

 

But What’s Detention After All? Strasbourg, Luxembourg and the Hungarian Transit Zones

 

Victor Davio,* PhD Researcher at the Institute for European Law, KU Leuven and Assistant in Constitutional Law at University Saint-Louis Brussels

That Europe has gone from one crisis to another over the past decade has become almost self-evident. Since the economic and financial crisis of 2008-2010, the European continent has been shaken not only by an identity crisis through the British departure, but also by a rule of law crisis and an unprecedented sanitary crisis. Most of these crises have called for drastic measures on the part of governments to address these unexpected situations, frequently putting fundamental rights under severe strain.

The migration crisis is a case in point. In response to the influx of asylum-seekers into Europe in the mid-2010s, the EU institutions and the Member States introduced highly questionable measures. If the EU-Turkey deal might be a telling example, another that has recently been in the spotlight is that of the so-called ‘transit zones’ in Hungary. In the last two years, the European Court of Human Rights (‘ECtHR’) and the Court of Justice of the European Union (‘CJEU’) have rendered several groundbreaking judgments on this issue.

At first glance, it is perhaps not surprising that both courts have had to deal with this highly sensitive question. Depicted as a crowded house, the European fundamental rights architecture is characterised by the coexistence of several layers of norms and institutions that protect fundamental rights. In recent years, EU law has become a prominent source of fundamental rights. Since 2000 for instance, the EU has its own Bill of Rights, the Charter of Fundamental Rights (‘Charter’). This has inevitably led to an intensification of fundamental rights litigation before the EU courts and an ever-growing overlap with Strasbourg. 

More striking in the judicial saga surrounding the Hungarian transit zones is that, for once, the EU legal order seems to offer a higher level of protection of fundamental rights than the ECHR system. As will be discussed below, this appears to be the case in particular with regard to the concept of detention, a major component of the right to security and liberty protected by Article 5 of the ECHR and Article 6 of the Charter. This may seem somewhat unexpected. Traditionally, the EU legal order has lagged behind the ECHR system as regards the protection of fundamental rights and has often sought to accommodate its specificities, such as the principle of mutual trust.

The aim of this short contribution is twofold. Firstly, I will highlight the differences in the interpretation of the concept of detention between Strasbourg and Luxembourg in their case-law on the Hungarian transit zones. Secondly, I will take this judicial saga as an invitation to reflect on the interactions between the ECHR and the EU in light of the growing role of the latter in the field of fundamental rights.

The Start of the Journey: From Hungary to Strasbourg

Our legal journey starts in Hungary in 2015. Amidst the rise of asylum applications in Europe, Hungary adopted a series of measures to limit drastically migrants’ access to its territory. One of these measures consisted of the establishment of transit zones. Located on the southern border between Hungary and Serbia, these no-man’s-lands were not only the place where asylum-seekers had to apply for asylum but also where they were accommodated during their asylum application. The living conditions in these areas were spartan, to say the least. The largest transit zone, Röszke, was reported to be ‘a compound with mobile containers and a narrow open-air area surrounded by approximately four-metre high fencing with barbed wire on the top. The entire zone was guarded by police officers and armed security guards.’ (ECtHR(GC) Ilias and Ahmed, §15)

It was not long before the legality of stay in these transit zones was contested before the ECtHR in the Ilias and Ahmed v. Hungary case. Ilias and Ahmed, two Bangladeshi nationals, arrived in Hungary from Serbia and entered the Röszke transit zone. On the day of their arrival, their asylum requests were rejected as being inadmissible since Serbia was deemed to be a safe third country. Following an appeal against these decisions, they spent 23 days in the transit zone while the procedure was underway. The rejections were upheld on appeal and the applicants were then escorted out of the transit zone. One of the most significant legal issues was whether the stay of asylum-seekers in the transit zone was to be considered as ‘detention’ under Article 5 of the ECHR, thereby triggering a series of important procedural guarantees.

While the Chamber of the European Court of Human Rights found this to be the case, the Grand Chamber of the Court, in a landmark judgment of 21 November 2019, held that Article 5 of the ECHR was not applicable since the applicants could not be deemed in detention. To reach this conclusion, the Grand Chamber gave special emphasis to the following elements:

-          The applicants entered the Röszke transit zone of their own initiative, with the aim of seeking asylum in Hungary (ECtHR(GC) Ilias and Ahmed, §220);

-          The duration of the stay, namely 23 days, was not unreasonable for the purpose of examining the asylum applications (ECtHR(GC) Ilias and Ahmed, §226-227);

-          The applicants had a concrete and effective possibility to leave the transit zone and go to Serbia (ECtHR(GC) Ilias and Ahmed, §237).

This part of the judgment was fiercely criticised. Not only is it difficult to grasp how one may consider that migrants chose to come to Hungary or that they were free to leave, but the ruling is also hardly reconcilable with the previous case-law of Strasbourg. In particular, in its well-known Amuur v. France (1996) judgment on stay in airport transit zones, the ECtHR held that: ‘The mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty, the right to leave any country, including one’s own’ (ECtHR Amuur v. France, §48).

The Bumpy Road: From Strasbourg to Luxembourg

Shortly afterwards, the legal journey resumed and arrived in Luxembourg in 2020 in the Országos case. The facts were fairly similar to those in the Ilias and Ahmed case. In late 2018 and early 2019, two Iranian and two Afghan nationals arrived in Hungary from Serbia and submitted applications for asylum from the Röszke transit zone. All four applications were rejected as inadmissible and return decisions to Serbia were adopted. However, Serbia refused the readmission of these persons, which led the Hungarian authorities to change the country of destination mentioned in the original return decisions to the country of origin of the persons. Subsequently, the four persons brought an action before a Hungarian court where they argued among other things that their stay in the Röszke transit zone constituted unlawful detention. The Hungarian court referred several preliminary questions to the CJEU, including one on the concept of detention.

In this respect, both the CJEU, sitting in Grand Chamber, and the Advocate General Pikamaë depart from the ECtHR approach in the Ilias and Ahmed case. The CJEU does so implicitly: it mentions the Strasbourg judgment (CJEU Országos, §71) but does not take into account the interpretation of Article 5 of the ECHR proposed in it. The AG is more explicit and states, for instance, that: ‘The Court can therefore leave aside the case-law of the [ECtHR] and examine the questions referred in the light of the Charter, provided its interpretation of the rights (…) leads to a higher level of protection than that guaranteed by the ECHR. I invite the Court to take that approach in the present case.’ (AG Országos, §150-151)

In a nutshell, the CJEU defines the concept of detention, both within the meaning of the Receptions Conditions Directive and the Return Directive, as a ‘coercive measure that deprives [the] applicant of his or her freedom of movement and isolates him or her from the rest of the population, by requiring him or her to remain permanently within a restricted and closed perimeter’ (CJEU Országos, §223). The obligation imposed on a third-country national to remain permanently in a transit zone with a restricted and closed perimeter, within which the movements of that national are limited and controlled, and which he or she cannot legally leave voluntarily meets this definition (CJEU Országos, §231).

 

The CJEU expressly rejects the idea that the applicants were free to leave the Röszke transit zone to go to Serbia (CJEU Országos, §228-231). In this regard, the CJEU relies on two arguments, namely that any entry of these applicants into Serbia would be considered illegal (CJEU Országos, §229), and that, if they had left Hungarian territory, they would have risked losing any chance of obtaining refugee status in Hungary (CJEU Országos, §230). This is in stark contrast to the approach of Strasbourg which acknowledges these two elements but considers them not to be decisive (ECtHR(GC) Ilias and Ahmed, §238 and §247).

The consequences of characterising the stay in the Hungarian transit zones as detention are not minor. From that moment onwards, the numerous guarantees regarding detention, provided for in particular in the above-mentioned directives, are applicable. In the Országos case, the CJEU judged, for instance, that the Receptions Conditions Directive precludes an applicant for international protection from being detained on the sole ground that he or she is unable to provide for his or her needs (CJEU Országos, §256).

The Next Journey: Back to Strasbourg?

A few days after the Országos case on 21 May 2020, Hungary decided to dismantle its transit zones. More recently, the CJEU has reiterated its reasoning on the concept of detention in the Commission v. Hungary (C-808/18) case. Taken together, the overall picture is that of a happy ending. Yet, one may be a little sceptical about this conclusion. In particular, it can be argued that significant risks may arise from the discrepancies between Strasbourg and Luxembourg case-law. Not only may these rulings create conflicting signals for national judges who are bound to apply both EU law and the ECHR, but they can also serve as a ‘false excuse’ for recalcitrant States to refuse to comply with the judicial decision unfavourable to them, arguing that they respect the other one.

While the issue of diverging fundamental rights standards is by far not new in Europe, the specific feature of the transit zones judicial saga is that EU law seems to offer a higher level of protection than the ECHR system. This phenomenon is likely to increase in the future given the proactive stance of the EU legislator in the field of fundamental rights. Although the EU does not have a general competence dedicated to fundamental rights, the EU legislator has increasingly developed fundamental rights standards in areas ranging from criminal law to data protection. The recent Whistleblower Directive is one example among many.

 

How should Strasbourg (re)act in such a situation? The most logical way might be to align itself with the CJEU case-law, which would allow for a process of mutual enrichment between the two legal orders. The ECtHR has already taken this path. For instance, in its landmark Bayatyan v. Armenia (2011) case, it referred to several instruments, including Article 9 of the Charter, to establish an emerging consensus on the right of conscientious objection to military service. Similarly, Article 49(1) of the Charter was the key factor in recognising the retroactivity of the more lenient criminal law under Article 7 of the ECHR in the Scoppola v. Italy (No. 2) (2009) case. Yet, despite its power of attraction, the incorporation of EU fundamental rights standards into the Strasbourg case-law is not an obvious process. In particular, the reception of these standards entails the risk of marginalisation of the non-EU Council of Europe States. If EU standards were to be incorporated systematically into the definition of the ECHR rights, these States would be bound by EU standards without having been able to participate in the deliberative process, which points to a clear danger of majority hegemony. This is all the more so given that the value of EU fundamental rights standards as an indicator of consensus at pan-European level is not limitless. By way of illustration, it suffices to recall that the Charter binds the EU Member States only when they are implementing Union law (Article 51(1) of the Charter).

An avenue that could be used as a way out in the event of such a conflict is Article 53 of the ECHR, which reads as follows: ‘Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party.’ In light of the proliferation of EU fundamental rights standards, there is nothing to prevent national judges from considering EU law as one of the sources that can go further than the ECHR within the meaning of this provision. Although this could lead to the development of a ‘differentiated Europe’ of fundamental rights where the EU and non-EU Council of Europe States abide by different rules, relying on this provision would ensure that one of the foundational principles of the ECHR system is respected, namely the principle of subsidiarity. The latter entails not only that the Council of Europe States have the primary responsibility to guarantee the ECHR rights, but also that they enjoy a certain discretion to regulate and restrict these rights according to their national preferences. Given the high sensitivity of fundamental rights, it may sometimes be preferable for the EU and non-EU Council of Europe States to move at different speeds.

 

[*] I would like to thank Prof. Elise Muir, Cécilia Rizcallah, Gérald Fierens and Alicja Slowik for their insightful comments. This blog post is part of the RESHUFFLE research project, supported by the European Research Council (European Union’s Horizon 2020 research and innovation programme, grant agreement No 851621).

 

JHA4: chapter I:6

Barnard & Peers: chapter 26

Photo credit: Rebecca Harms, via Wikimedia Commons

Photographer: Bence Jardany