A Pyrrhic victory? The ECJ upholds the EU law on relocation of asylum-seekers

Professor Steve Peers

How should the EU deal with the perceived ‘migrant/refugee crisis’? It has done a number of things, but back in September 2015, when the numbers of arrivals were peaking, it did something truly remarkable – requiring Member States to relocate 160,000 asylum-seekers from the ‘frontline’ states of Italy and Greece, which were bearing most of the burden of new arrivals.

In fact, this took the form of two separate decisions, as I discussed in detail at the time. The first decision was relatively uncontroversial, since it concerned only 40,000 people and Member States had agreed to admit them by consensus. But the second decision, concerning the other 120,000 people, was adopted against the objection of several Member States and set out mandatory quotas for admission. This led to legal action by Slovakia and Hungary to challenge this decision before the ECJ (see discussion of the Slovak challenge here).

This week, the ECJ ruled against this legal challenge, following soon after the opinion of its Advocate-General, who took the same view. As we shall see, this case brings into sharp relief the conflict between effectiveness and legitimacy in EU law – and indeed between effectiveness as a legal principle and practical effect on the ground.

The Court’s judgment

The Court gathered the legal arguments into three main areas: the ‘legal base’ (ie whether the EU had the power to adopt the second relocation decision at all); the procedure followed to adopt the decision; and the substance of the decision, in particular as regards the principle of proportionality.

Legal base

The ‘legal base’ for the adoption of the decision was Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). This clause has been around since the Maastricht Treaty, being amended by the Amsterdam and Lisbon Treaties; but it had never been used before September 2015. It says that if ‘one or more Member States’ face ‘an emergency situation characterised by a sudden inflow’ of non-EU citizens, the Council (Member States’ interior ministers) may ‘adopt provisional measures’ to benefit those Member States, on a proposal from the Commission after consulting the European Parliament (EP). The default rule of qualified majority voting in the Council implicitly applies. So do the opt-outs for the UK, Ireland and Denmark.

First of all, the Court rejected the argument that the relocation decision was a ‘legislative act’, sticking to the strict definition of legislative acts set out in the Treaties. In short, the decision was not a legislative act because the Treaty doesn’t define it as one. It followed from this that there was no obligation for the Council to consult national parliaments or to meet in public when adopting the decision.

Next, the Court ruled that it was possible for this non-legislative act to amend existing legislation, namely the Dublin III Regulation on responsibility for asylum-seekers. Taking a broad view of the power conferred by Article 78(3), ‘provisional measures’ could amend legislative acts for a limited period, as long as they do not amend legislation permanently. That was the case here, since the decision only applied for two years and related to a specified and limited number of people.

The Court also ruled that the decision was ‘provisional’ in that it only applied for two years. A shorter period might not have been enough time to address the crisis, and the previous limitation to six months had been removed when the Treaty was amended, suggesting an intention by Treaty drafters to give the EU more flexibility. While anyone who obtained refugee status would in principle keep that status after the decision ceased to apply, that did not mean the decision wasn’t provisional, since obtaining long-term status is inherent in the idea of asylum policy. The amount of time it might take to adopt legislation by comparison was irrelevant.

Then the Court ruled that the influx of asylum-seekers was sufficiently large to count as ‘sudden’ for the purposes of Article 78(3), and the link between the influx of people and the emergency was strong enough to say that that emergency was ‘characterised’ by the influx. 

Procedural issues

First, the Court rejected the argument that the decision breached the guidelines set by the European Council (Member States’ leaders), which have a specific power to set such guidelines as regards Justice and Home Affairs (JHA) law. It pointed out that those guidelines only related to the first, uncontested, relocation decision, then went on to point out that the European Council could not constrain either the Commission’s power to propose measures or the Council’s power to adopt them by a qualified majority. As for the alleged breach of the EP’s prerogatives, while it must be reconsulted if there is an essential change to the Commission’s proposal – and the removal of Hungary from the list of beneficiaries was such an essential change – it had been informed of that essential amendment to the text before it voted.

Moreover, the Commission had consented informally to the Council’s change to its text – which is a requirement for the Council to vote by qualified majority. Also, the Court took a flexible view of the rules on languages used in the Council. Only the main texts under consideration, not all amendments to them, need to be available in all EU languages.

Substantive issues

The Court rejected the arguments that the decision was not suitable to obtain its objectives. True, as Commission reports have pointed out, not many asylum-seekers have actually been relocated, but that could not be foreseen at the time – and that was implicitly partly the fault of the plaintiff Member States for not implementing the decision in practice. (The Advocate-General’s opinion dismisses this “I killed my parents, give me sympathy as a poor orphan” line of argument more bluntly).

In the Court’s view, the Council could not be limited to financial support alone and so had the power to set mandatory quotas against Member States’ wishes. Also the Court claimed that the EU’s existing temporary protection Directive (which was adopted in 2001 to deal with future crises, but never actually used) could not have worked as an alternative, since it only provided for protection where asylum-seekers are located – so implicitly did not provide for relocations between member States.

Next, the Court rejected Hungary’s argument that given the large numbers of asylum-seekers it was receiving, it should not have been allocated any more – given that Hungary had expressly argued that it did not want any relocation of asylum seekers from its territory, it was in effect estopped from arguing that it was overburdened that it could not accept any more of them. (The Opinion sets out the hilarious argument that while Hungary ‘continues to form part of the Member States that support’ Italy and Greece, it ‘does so in a different way from the other Member States’ by, er, not actually helping Italy and Greece at all.)

Furthermore, the Court rejected the argument that the EU rules violated the Geneva (Refugee) Convention by potentially forcing asylum seekers to leave the country where they were located, pointing out that this did not subject them to refoulement to an unsafe country but only changed which Member State their application for asylum would be considered by.

Finally, the Court rejected Poland’s arguments as an intervener. In particular, the argument that Member States which are ‘virtually ethnically homogeneous, like Poland’ should not receive migrants was rejected, both because it infringed the principle of solidarity and because considering ‘the ethnic origin of applicants for international protection’ would be ‘clearly contrary to EU law and, in particular, to Article 21 of the Charter of Fundamental Rights of the European Union’, which guarantees non-discrimination on grounds of (among other things) ethnic origin.

Comments

The Court’s judgment is suffused by the principle of solidarity between Member States on asylum and immigration matters, as set out in Article 80 TFEU (the Advocate-General’s opinion, even more so). To that end, it gives the EU broad powers, and wide discretion to use them, to address the perceived crisis. 

Most of the Court’s arguments are convincing. It would indeed be hard to address a large influx of people without amending EU legislation temporarily, given the wide scope of that legislation and the broader context of establishing a ‘common European asylum system’.  But the Court is right to ensure that this power is not unlimited, by insisting that any emergency measure can only be temporary and limited in scope. This means that any future measure more ambitious than the 2015 decision might be challenged for going beyond the limits set out by the Court. 

Note that the Court was not asked if Article 78(3) decisions can amend the Treaties temporarily, since the contested decision did not do so. The answer must surely be no, given the hierarchy of norms in EU law. So the general rules on EU asylum law set out in Article 78(1) TFEU – including the obligation to respect non-refoulement, the Geneva Convention, and other relevant (human rights) treaties – continue to apply when emergency measures are adopted. (This is implicitly confirmed by the Court’s willingness to consider the validity of the decision in light of the Geneva Convention). Article 78(3) cannot therefore be a route to address perceived crises by means of (for instance) detentions, interceptions or expulsions which would violate that Convention or the non-refoulement rule, or which would otherwise breach human rights law – including the EU Charter of Rights, which has the ‘same legal value’ as the Treaties.

Nor was the Court asked about the separate proposal to amend the Dublin III Regulation to set up a permanent system for addressing emergencies. This has a different legal base than Article 78(3), so perhaps an outvoted Member State could re-run the arguments that failed in this week’s judgments. However, the Advocate-General’s opinion supports the legality of this proposal too.

The Court’s rulings on the decision-making issues are also convincing, and are an implicit rebuke to those non-lawyers who argue that the European Council is the fount of all EU power. Then again, given Member States’ unwillingness to apply these decisions in practice, this saga confirms the argument that it is politically unrealistic for the EU to undertake very controversial ‘high politics’ policies – no matter how legally secure they are – without all participating Member States’ consent.

Odd as it may seem, there’s also a possible Brexit relevance to this judgment, since the EU’s negotiation position takes the form of guidelines adopted by the European Council and then negotiation directives adopted by the Council, and the Council ultimately concludes the withdrawal agreement by qualified majority. In the event that a Member State is outvoted when concluding the withdrawal agreement and so challenges the agreement arguing that the reference to the European Council requires acting by consensus, this judgment suggests by analogy that it’s the Council’s power to act by a qualified majority vote which is legally decisive.

On the substance of the legal challenge, it’s notable that the Court misinterpreted the temporary protection Directive, which does provide for potential transfers of beneficiaries between Member States. The real distinction between the two – as the Advocate-General’s opinion points out – is that the Directive makes such transfers conditional on the voluntary consent of Member States, whereas the contested relocation decision sets out mandatory quotas. In any event, there’s nothing in the decision to give priority to the ‘emergency’ route over the ‘temporary protection’ route: it’s the Council’s discretion which path (if any) to choose in the event of a perceived crisis.

It’s also striking that the Court rejected Hungary’s argument about the Geneva Convention, confirming judicially the view long implicit in EU legislation (but contested by some refugee advocates) that sending an asylum-seeker to another country which is sufficiently ‘safe’ to consider their application is not a breach of the Convention. (Cynics might suggest that Hungary advanced this argument in the hope that the ECJ would in fact reject it in these terms). Of course, this begs the question as to when a country is sufficiently ‘safe’ – an issue frequently litigated in the ECJ as regards other Member States but not (yet) as regards non-Member States.

That brings us to the Court’s response to the Polish intervention. The Court didn’t have to respond to that intervention, since it ruled that it was inadmissible. But it clearly wanted to, and did so in the strongest terms, ruling that Poland's argument would breach the principle of non-discrimination on grounds of ethnic origin. The Court’s approach comes across as a kind of ‘reverse dog whistle’ – saying “Get lost, you’re racist” as subtly as it could to a Member State. And it follows from the Court’s ruling on this point that any kind of Trump-like ‘Muslim ban’ would violate EU law too, since the Charter equally bans religious discrimination.

But such arguments won’t convince those with a frenzied obsession about ‘white genocide’, just as ruling that the quotas are legal won’t convince Member States (and not just the plaintiff Member States in this case) to apply the relocation decision, which is about to expire anyway. As noted above, this saga shows the tension between legitimacy and effectiveness in EU law sharply: the Court defends the decision’s legal legitimacy in light of the principle of effectiveness, but that decision’s political legitimacy has been ebbing away since it was first adopted. That latter form of legitimacy was not bolstered by adopting the decision against the opposition of several Member States – and indeed the Court’s ruling has now given them another stick with which to beat the EU in particular and ‘scary Muslim migrants’ more generally.  Meanwhile the EU has taken a different course towards the perceived crisis, working with Turkey and now Libya to reduce the numbers who reach the EU to start with – although nothing will satisfy those who believe that ‘none is too many’.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Business Insider

The new EU law on refugees takes shape: More Harmonisation but Less Protection?

Professor Steve Peers

At the heart of the contested issue of asylum in the EU – including the current perceived ‘refugee/migrant crisis’ – is the definition of who is a ‘refugee’, or is at least entitled instead to a form of ‘subsidiary protection’ for those fleeing threats of ‘serious harm’. Refugees and people with subsidiary protection receive more legal protection and status than many other non-EU citizens, in particular irregular migrants.

Unsurprisingly then, the proposed revision of the EU legislation on this issue forms part of the broader overhaul of all EU asylum laws proposed in 2016, as a response to the perceived crisis. Recently the EU governments agreed their position on the proposal, which must now be negotiated with the European Parliament (its negotiating position is set out here).

Most of the other 2016 proposals are still under negotiation (I’ll discuss them as part of an update of recent EU immigration and asylum developments, coming soon). But since the ‘qualification’ rules are a cornerstone of EU asylum law, the latest development calls for a more in-depth analysis. In particular, will the new law meet the Commission’s objectives for dealing with the ‘crisis’: more harmonisation, an overall reduction in protection standards, and deterrents for ‘secondary’ movements between Member States?

The proposal aims to implement the UN Refugee Convention (which the EU refers to as the ‘Geneva Convention’) in more detail, as regards both the definition of ‘refugee’ and the rights which refugees receive. It also defines ‘subsidiary protection’ and sets out the rights which subsidiary protection beneficiaries are entitled to.

It will replace the existing EU law on the subject. As part of the ‘first phase’ of the Common European Asylum System (CEAS), an initial Qualification Directive was adopted in 2004. A ‘second phase’ Qualification Directive replaced it in 2011. (I analysed the negotiation of the latter Directive here; there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno Lax in EU Immigration and Asylum Law: Text and Commentary). The UK and Ireland opted in to (and are still bound by) the first phase Directive, but not the second phase Directive or the 2016 proposal; Denmark is not bound by any of them. After Brexit, UK citizens will be able to apply for asylum in the EU.

Basic legal framework

To give effect to the objective of further harmonisation, the 2016 proposal will replace the 2011 Directive with a Regulation, with the consequence that EU law on this subject will be directly applicable, rather than applying through the medium of national legislation giving effect to a Directive. To the same end, the Regulation will also eliminate Member States’ power in the current law to set more favourable standards as long as they are compatible with the Directive – although this power has already been curtailed by the ECJ’s judgments in B and D and M’Bodj (the latter ruling is discussed here). The new Regulation will reflect that case law, by noting that Member States are free to retain or establish a separate status of humanitarian protection, as long as there is no confusion with the (EU harmonised) notions of refugee or subsidiary protection status.

This shift toward harmonisation is also manifested by a removal of most options under the Directive, with the effect of lowering standards overall, since most of the options are possibilities for Member States to offer less protection than under the standard rules. On the other hand, the Commission’s desire to have the new law play a role in immediate ‘crisis management’ would be thwarted by Member States, who want the law to apply in two years’ time – rather than the six months desired by the Commission. (Note that the EP wants it to apply even more quickly than the Commission, though).

Turning to the details of the proposal, there are four main elements to the law: common rules (applying to both refugee and subsidiary protection status); the definition of ‘refugee’; the definition of subsidiary protection; and the content of status (ie the benefits people with status receive).

Common rules

Family members of refugees and people with subsidiary protection will be given extra rights in the new law (see below), and they will be defined slightly more broadly. A ‘family member’ will now include relationships formed outside the country of refuge, not just those formed inside the country or origin. This means, for instance, that the spouse of a Syrian refugee who married him while in Turkey or Lebanon, and the children of that couple born in such countries, would now be defined as ‘family members’.

The rules on assessment of asylum applications will be extended to include refugees resettled directly from non-EU countries, assuming that a separate proposal on resettlement is agreed. It will now be mandatory, not optional, for the main burden of proof to rest upon the applicant to show why the claim for refugee or subsidiary protection status is justified; and a new clause in the preamble will reflect the ECJ’s 2014 case law (discussed here) which limits the intrusiveness of Member States’ questioning of the credibility of LGBTI asylum-seekers.  

Next, the new law will harmonise the use of an exception to the rules – and lower the standards of protection. While the Regulation will retain the notion of an application for refugee or subsidiary protection status ‘sur place’ – meaning the asylum seeker left the allegedly unsafe country of origin before it became unsafe – the exception to this rule will become mandatory. At present, this exception gives Member States an option to ‘normally’ refuse refugee status to an asylum seeker who has made a repeat application for asylum and created her own risk of persecution due to her activities after leaving the country of origin. The Commission proposal would extend this to subsidiary protection applications, and Member States want to go further – extending the (now mandatory) exception to initial applications as well, subject to a new threshold (the asylum-seeker’s activities were for the ‘sole or main purpose’ of making a claim for protection). For its part, the EP would keep the exception optional and limited to repeat applications, while also adding a safeguard for those asylum-seekers who (for example) ‘come out’ after arriving in the EU, having been previously afraid to express their sexuality.

Similarly, the option to refuse claims because the asylum seeker had an ‘internal flight alternative’ – ie he could have fled to a safe part of the country of origin, like a supposed ‘safe zone’ in Syria – would become mandatory. (The possibility of rejecting a claim because an asylum seeker would arguably have been safe in a different country is the subject of other proposals). The proposal makes this subject to safeguards: more elaborate explanation of the substance of the idea; applying the main rules on qualification first; shifting the burden of proof to the authorities; and not requiring the asylum seeker to show that he exhausted all possibilities to move within the country of origin. However, the Member States’ position would drop the latter two safeguards. For its part, the EP would keep this clause optional, drop the ‘sequencing’ rule, but add further safeguards.

Definition of ‘refugee’

The EU is bound by the Treaties to follow the UN Refugee Convention, so the proposed law retains the basic idea from that Convention that a ‘refugee’ is someone persecuted because of their race, religion, political opinion, nationality or particular social group, elaborating upon each of these concepts. The Commission proposal would clarify in the preamble that LGBT people can form part of a ‘particular social group’ (confirming ECJ case law), while the main text would confirm case law that asylum seekers can’t be expected to hide (for instance) their sexuality or religion in their countries of origin. The proposal would also tighten the definition of ‘particular social group’ in that asylum-seekers would have to show in all Member States that they both perceived themselves as part of a distinct group and were perceived as different by the rest of society. This would quash the discretion that Member States now have to set higher standards, so that only one of those elements is necessary to prove refugee status. Member States agree with this latter change, but the EP is resisting it.

As for exclusion from refugee status, where the current Directive elaborates a little on the relevant provisions of the Refugee Convention, the new Regulation would enshrine the basic elements of ECJ case law on the special status of some Palestinians (Bolbol and El Kott), and on the exclusion of persons strongly linked to terrorism (B and D; the preamble Member States’ version also takes account of the recent ECJ judgment in Lounani on the exclusion of foreign fighters, discussed here).

In contrast, the proposals on withdrawal of refugee status would tighten the existing law, making withdrawal mandatory in more cases and clarifying the link with similar provisions in the rest of the law (on that point, see the ECJ’s T judgment, discussed here). There would be a grace period to apply for another legal status and a mandatory review of status at least the first time a refugee’s residence permit came up for renewal. However, Member States reject the latter ideas (and the EP also rejects the review clause).

Definition of subsidiary protection

The core definition of subsidiary protection (a threat of serious harm deriving from the death penalty, torture or similar treatment, or facing a specified threat from armed conflict) would not be affected by the 2016 proposal – although the preamble would entrench the relevant ECJ case law (Elgafaji and Diakité). However, the rules on exclusion from and withdrawal of subsidiary protection status would be amended to (for the most part) match the parallel changes related to refugee status; and the Council and EP take a comparable view of these proposals. On one distinct point – withdrawing subsidiary protection status due to less serious crimes – the Member States reject the Commission’s proposal to make this ground mandatory, preferring to leave it optional for Member States.

Content of status

The 2016 proposal would make a number of interesting changes in this area. First of all, the Commission’s ambitious attempt to overturn the ECJ judgment in T, and make all benefits for refugees and persons with subsidiary protection contingent upon getting a residence permit, has been rejected by Member States and the EP.

Secondly, an amendment in the opposite direction: the family members of refugees or persons with subsidiary protection who don’t qualify themselves for international protection would be entitled to a residence permit. This would replace an ambiguous reference in the current law to preserving ‘family unity’. However, there are already special rules concerning the admission of family members of refugees set out in the EU’s family reunion Directive. So do two new sets of rules conflict? No, because a clause in the preamble to the agreed Qualification Regulation says that the family reunion Directive applies in the event of overlap (ie if the family member is ‘within the scope’ of the Directive).

Usually, the two laws will not overlap, for several reasons. A) the family reunion Directive does not apply to family reunion with sponsors with subsidiary protection, at least if that protection was granted on the basis of national or international law (sponsors with subsidiary protection on the basis of EU law are not expressly excluded, however). B) that Directive in principle only applies to family members who are outside the territory, whereas the Regulation conversely will only apply to family members who are present on the territory. However, Member States have an option to apply the Directive where family members are already present; only in that case would there be an overlap, decided in favour of the Directive where the family members are within the scope of it.

Thirdly, the Commission aimed for more harmonisation of the rules on renewal of residence permits, although the Member States prefer to leave themselves with more flexibility. It will be expressly mandatory to use the EU’s standard residence permit format for refugees and others covered by the Regulation though.

Fourthly, there will also be more harmonisation of the rules related to travel documents, which are issued by Member States to beneficiaries of international protection in place of passports, given that it would probably be unsafe for them to contact officials from their country of origin. They will be valid for at least one year and will be expressly subject to the EU’s passport security rules.

Fifthly, the provisions on movement within the territory and benefits would be redrafted, to take account of the ECJ case law in Alo and Osso (discussed here), which permits a link between limiting movements and the grant of benefits in some cases.

Sixthly, the rules on access to employment are strengthened by an obligation to ensure equal treatment as regards work-related matters, including taking account of experience in an occupation obtained outside the country of refuge.

Finally, there are further changes designed to entrench control over beneficiaries of international protection: Member States may make integration measures compulsory, and any unauthorised movement between Member States can be punished by ‘resetting the clock’ on acquisition of long-term residence status under the relevant EU law. Both Member States and the EP aim to soften these proposals by ensuring that integration courses are accessible and by allowing Member States to make exceptions from the changes to the long-term residence rule.

Assessment

What impact will the agreed proposal (still subject to further negotiation) have on the perceived ‘refugee crisis’? Will it meet the objectives of deterring protection-related migration as well as secondary movements, while harmonising national law further?

Certainly there are significant steps towards harmonisation: the use of a Regulation; the removal of the right to set more favourable standards; the disappearance of many options; and the integration of relevant ECJ case law into the legislative text (making it more visible for national authorities, courts, and legal advisers). However, the European Parliament is still battling to keep some key rules optional, rather than mandatory.

This goes to the second point: will the new Regulation reduce standards as much as the Commission had hoped? Here, the result is a mixed bag: some of the changes in the definition of refugee will have that effect – unless the European Parliament successfully resists them. However, the idea of mandatory reviews of status has been dropped.

As for sanctioning secondary movements, the reset of the clock as regards obtaining long-term residence status might have some impact, although the main thrust of the planned sanctions against secondary movement are found in separate proposals for amendment of other asylum laws.

The deferral (at least by Member States) of the impact of the new law for two years means that the new law would (if this delay is accepted) have no immediate impact on the current perceived crisis. However, the changes it would make to the definition of refugee status may lead to fewer refugees being recognised – although again this is subject to the success or failure of the EP’s attempts to resist such changes. In any event, since many of the plans to deter both the initial and secondary movement of people arguably needing international protection appear in other 2016 proposals (on reception conditions, the Dublin system and procedural rules), the overall assessment of whether the EU is moving in a dramatically more restrictive direction as regards asylum law depends more upon what happens with those proposals over the months to come.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Pinterest

*Disclaimer: I was an independent adviser for a consultancy advising the European Commission on the implementation of and possible amendment of the current Directive.

Immigration detention and the rule of law: the ECJ’s first ruling on detaining asylum-seekers in the Dublin system

Tommaso Poli, LL.M. candidate in Human Rights and Humanitarian Law at the University of Essex, School of Law.

One of the most controversial issues in immigration law is the detention of asylum-seekers. This issue was not initially addressed by the European Common Asylum System (CEAS), but is now addressed in some of the second-phase CEAS measures (the CEAS consists of the Asylum Procedures Directive, the Reception Conditions Directive, the Qualification Directive, the Dublin Regulation and the EURODAC Regulation).

In particular, the second-phase CEAS measures contain detailed rules on detaining asylum-seekers in two cases:  a) general rules in the Reception Conditions Directive, which were the subject of a first ECJ ruling in 2016 (discussed here) and a recent opinion of an Advocate-General; and b) more specific rules in the Dublin III Regulation, applying to asylum-seekers whose application is considered to be the responsibility of another Member State under those rules. Recently, the ECJ ruled for the first time on the interpretation of the latter provisions, in its judgment in the Al Chodor case.

As we will see, the Court took a strong view of the need for the rule of law to apply in detention cases. Moreover, its ruling is potentially relevant not just to Dublin cases, but also detention of asylum-seekers and irregular migrants in other contexts too.

The rules on detaining asylum-seekers in the context of the Dublin process are set out in Article 28 of the Dublin III Regulation. First of all, Article 28(1) states that asylum seekers can’t be detained purely because they are subject to the Dublin process. Then Article 28(2) sets out the sole ground for detention: when there is a ‘significant risk of absconding’. If that is the case ‘Member States may detain the person concerned in order to secure transfer procedures in accordance with’ the Dublin rules, ‘on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively’.

Next, Article 28(3) sets out detailed rules on time limits for ‘Dublin detention’; these are the subject of the pending Khir Amayry case. Finally, Article 28(4) states that the general rules on guarantees relating to procedural rights and detention conditions set out in the Reception Conditions Directive apply to asylum-seekers detained under the Dublin rules.

Al Chodor concerned the interpretation of the grounds for detention under Article 28(2): what is a ‘serious risk of absconding’?  The Dublin III Regulation offers some limited clarity, defining ‘risk of absconding’ as ‘the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond.’ (Article 2(n) of the Regulation). 

Facts

The case relates to an Iraqi man and his two minor children who were travelling from Hungary in the Czech Republic, without any documentation to establish their identity, with the aim of joining family members in Germany. After stopping the Al Chodors, the Czech Foreigners Police Section (FPS) consulted the Eurodac database and found that they had made an asylum application in Hungary. As a consequence, the Al Chodors were subjected to the transfer procedure according to Article 18(1)(b) of the Dublin III Regulation. In addition, the FPS took the view that there was a ‘serious risk of absconding’, given that the Al Chodors had neither a residence permit nor accommodation in the Czech Republic, while they were waiting for their transfer to Hungary.

So, they placed the Al Chodors in detention for 30 days pending their transfer pursuant to Paragraph 129(1) of the national law on the residence of foreign nationals, read in conjunction with Article 28(2) of the Dublin III Regulation. The Al Chodors brought an action against the decision ordering their detention to the regional Court, which annulled that decision, finding that Czech legislation does not lay down objective criteria for the assessment of the risk of absconding within the meaning of Article 2(n) of the Dublin III Regulation. That Court accordingly ruled that the decision was unlawful. Following the annulment of the decision of the FPS, the Al Chodors were released from custody.

The FPS brought an appeal on a point of law before the Supreme Administrative Court against the decision of the Regional Court. According to the FPS, the inapplicability of Article 28(2) of the Dublin III Regulation cannot be justified by the mere absence in Czech legislation of objective criteria defining the risk of absconding. That provision subjects the assessment of the risk of absconding to three conditions, namely an individual assessment taking account of the circumstances of the case, the proportionality of the detention, and the impossibility of employing a less coercive measure. The FPS has submitted that it satisfied those conditions.

The Supreme Administrative Court was uncertain whether the recognition by its settled case-law of objective criteria on the basis of which the detention of persons pursuant to Paragraph 129 of the Law on the residence of foreign nationals may be carried out can meet the requirement of a definition 'by law' within the meaning of Article 2(n) of the Dublin III Regulation, in so far as that case-law confirms a consistent administrative practice of the FPS which is characterised by the absence of arbitrary elements, and by predictability and an individual assessment in each case. So the Court decided to refer to the European Court of Justice for a preliminary ruling asking whether Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring Member States to establish, in a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond, and whether the absence of those criteria in a national law leads to the inapplicability of Article 28(2) of that regulation.

Judgment

The Court of Justice first of all ruled that Article 2(n) of the Dublin III Regulation explicitly requires that objective criteria defining the existence of a risk of absconding be defined by the national law of each Member State (paragraph 27-28). Then, determining whether the word ‘law’ must be understood as including settled case-law, the Court reaffirmed that in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part (judgment of 26 May 2016, Envirotec Denmark, paragraph 27).

So with regard to the general scheme of the rules of which Article 2(n) of Dublin III Regulation forms part, the Court, referring to recital 9 of that regulation, states that the regulation is intended to make necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection of fundamental rights afforded to applicants under that system. This high level of protection is also clear from Articles 28 and 2(n) of that regulation, read in conjunction. As regards the objective pursued by Article 2(n) of the Dublin III Regulation, read in conjunction with Article 28(2) thereof, the Court recalls that, by authorizing the detention of an applicant in order to secure transfer procedures pursuant to that regulation where there is a significant risk of absconding, those provisions provide for a limitation on the exercise of the fundamental right to liberty enshrined in Article 6 of the Charter.

In that regard, it is clear from Article 52(1) of the Charter that any limitation on the exercise of that right must be provided for by law and must respect the essence of that right and be subject to the principle of proportionality. Furthermore, it is worth noting that in this ruling the European Court of Justice explicitly aligns its interpretation to the European Court of Human Rights (ECtHR), reaffirming that any deprivation of liberty must be lawful not only in the sense that it must have a legal basis in national law, but also that lawfulness concerns the quality of the law and implies that a national law authorizing the deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application in order to avoid risk of arbitrariness (judgment of the European Court of Human Rights of 21 October 2013, Del Río Prada v Spain, paragraph 125).

The Court then concluded by stating that taking account of the purpose of the provisions concerned, and in the light of the high level of protection which follows from their context, only a provision of general application could meet the requirement of clarity, predictability, accessibility and, in particular, protection against arbitrariness. It follows that Article 2(n) and Article 28(2) of the Dublin III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In the absence of such criteria, the detention was unlawful.

Comments

First of all, the Court’s ruling is likely relevant to the interpretation of other EU measures concerning immigration detention. In the Returns Directive, which inter alia concerns the detention of irregular migrants (as distinct from asylum seekers), the ‘risk of absconding’ forms part of the ground for detention (as well as one of the grounds for refusing to allow the irregular migrant a period for voluntary departure); and it is defined exactly the same way as in the Dublin III Regulation. As for asylum seekers who are detained on grounds other than the Dublin process, a ‘risk of absconding’ is an element of one of the grounds for detention under the Reception Conditions Directive, but is not further defined. But a recent Advocate-General’s opinion notes (at para 73) that this clause aims to prevent ‘arbitrary’ detention, which was a key feature of the reasoning in the Al Chodor judgment. This surely points to a consistent interpretation of the two asylum laws. It follows that arguably the Court’s judgment should be relevant not just to Dublin cases but to any immigration detention of non-EU citizens in any Member State bound by the relevant EU legislation.

Secondly, this ruling has reiterated the principle by which although regulations generally have immediate effect in national legal systems without it being necessary for the national authorities to adopt measures of application, some of those provisions may necessitate, for their implementation, the adoption of measures of applicability by the Member States (judgment of 14 April 2011, Vlaamse Dierenartsenvereniging and Janssens, paragraphs 47 and 48).

Most significantly, the Court has reaffirmed the primacy of Human Rights law in EU asylum law implementation, highlighting that the development of the EU asylum law itself depends on its compliance with Human Rights law. In particular, the ECJ’s ruling in this case first of all reflects the ECtHR’s interpretation of the ‘arbitrariness’ of detention, which extends beyond the lack of conformity with national law. Notably, it states that a deprivation of liberty that is lawful under domestic law can still be arbitrary and thus contrary to the general principles, stated explicitly or implied, in the Convention (judgment of the European Court of Human Rights of 9 July 2009, Mooren v. Germany, paragraphs 73-77).

The Court’s ruling also reflects UN human rights norms. The Human Rights Committee’s General Comment No. 31 related to the nature of the general legal obligation imposed on State parties to the UN Covenant on Civil and Political Rights, which all EU Member States are State parties to, which reads that ‘in no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right’ (paragraph 4). Furthermore, the Human Rights Committee’s General Comment No. 35 points out that “arbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality” (paragraph 12, see also HRC, Van Alphen v. Netherlands, paragraph 5.8).

Finally, the Court’s ruling has confirmed the constitutional value of the Charter of Fundamental Rights of the European Union, which assumes a critical value in this historical period, since, as with any constitutional instrument, the more society as a whole is going through difficult times (such as the perceived ‘migration crisis’ in Europe), the more important it is to reaffirm its principles and values.

Likewise Article 52 of the EU Charter states that in no case may restrictions be applied or invoked in a manner that would impair the essence of a Charter right; in the context of detention, a fortiori it can be also affirmed that essential elements of guarantee for that right, as the requirement of lawfulness and non-arbitrariness for the right of liberty, cannot be disregarded in any circumstance. The Al Chodor ruling puts meat on the bones of that fundamental principle.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Amygdaleza detention centre in Greece, credit: www.metamute.org

Non-refoulement: is part of the EU’s qualification Directive invalid?

By Pieter Boeles, visiting professor migration law, VU University Amsterdam, emeritus professor University Leiden

Introduction

The absolute character of the principle of non-refoulement – the ban on removal to an unsafe country – is widely acknowledged. Still, there is confusion and insecurity on this point with regard to the Qualification Directive, which defines how to determine if someone enjoys refugee or subsidiary protection status within the EU. On 14 July 2016, a Czech Court (the Nejvyšší správní soud) asked the Court of Justice EU whether Article 14(4) of the EU Qualification Directive, allowing for revoking, ending or refusing to renew refugee status for reasons of criminal behaviour or a security risk, is invalid in the light of the principle of non-refoulement (Case C-391/16). In its explanation, the Czech Court points out that ‘the binding nature of the prohibition on the return of persons in contravention of the principle of non-refoulement forms part of the obligation not to subject anyone to torture or inhumane or degrading treatment or punishment under Article 3 ECHR and Article 4 and Article 19(2) of the Charter, and it applies whenever there is a real risk of such treatment occurring as a result of forced deportation or extradition’.

The question of the Czech court is important. In my view, a well-reasoned answer can only be given if the ambivalent structure of the Qualification Directive on this point is acknowledged and addressed.  In this comment I will try to analyse the problems to be solved. 

One sole principle of non-refoulement in EU law

Basically, the dogmatic point of departure is simple: the EU principle of non-refoulement is anchored in Article 19(2) of the Charter of Fundamental Rights of the EU, which contains a prohibition to remove, expel or extradite any person to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. The Charter should govern the uniform interpretation of the principle of non-refoulement in Union law, both in the Treaties and in secondary legislation (like the Returns Directive and the Qualification Directive). As the prohibition of refoulement is absolute in the ECHR, it should universally be interpreted to be absolute regardless of the legal context of EU law in which it appears. Article 19(2) of the Charter corresponds to Article 3 ECHR, and so must be interpreted the same way (Article 52(3) of the Charter). See the ECtHR ruling in Chahal, and more case law in Kees Wouters, International Legal Standards for the Protection from Refoulement, Intersentia, 2009, p. 307 – 314. The Court of Justice has recognized the absolute nature of the rule in its judgment in Aranyosi (paras 85-87).  

Article 19(2) Charter, derived from Article 2 and 3 ECHR, is not only relevant for persons with subsidiary protection but equally for refugees. Refugees are protected against a danger, formulated (in Article 1.A of the Refugee Convention, as well as the EU Qualification Directive) as persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group. The persecution feared must be of a certain level of severity, which will normally coincide with death penalty, torture or other inhuman or degrading treatment or punishment. Under the uniform meaning of non-refoulement in Article 19(2) of the Charter, absolute protection against refoulement must be granted on an equal basis to both refugees and subsidiary protected persons. As the principle of non-refoulement is a prevailing general principle of EU law in the sense of Article 6 TEU, secured by the Charter, it follows that the Qualification Directive grants stronger protection to refugees than the Refugee Convention alone does.  This is also what the Czech court asserts.

The stronger protection does not undermine any of the rights for refugees granted in the Refugee Convention.  But it may mean that non-refoulement has a wider meaning for refugees within the scope of EU law. Although the wording of Article 14(4) of the Qualification Directive matches the exception to the non-refoulement rule in the Refugee Convention, the Charter sets a higher standard for non-refoulement (as confirmed by reference to Chahal).

This is not unequivocally visible in the text of the Qualification Directive  The seminal Article 21(1) of the Directive, which deals with non-refoulement directly, does not say straightforwardly that Member States shall respect ‘the absolute principle of non-refoulement’, or ‘the principle of non-refoulement in accordance with Article 19(2) the Charter of Fundamental Rights’. True, the present text of the first paragraph of this article, stating that Member States shall respect the principle of non-refoulement ‘in accordance with their international obligations’, can be interpreted that way, especially because the ‘international obligations’ must be deemed to include those under Article 2 and 3 ECHR. But if that is the correct interpretation, it is difficult to understand what the reasonable meaning can be of the second paragraph of Article 21, stating that refoulement of a refugee is nevertheless allowed in some cases, ‘where not prohibited by the international obligations’. In suggesting that refoulement would nevertheless be allowed under certain conditions, Article 21(2) Qualification Directive is confusing. Obviously, Article 21(2), like Article 14(4) of the Directive, implicitly refers to the exception to the non-refoulement rule set out in Article 33(2) of the Refugee Convention, as it is phrased nearly identically.  Article 21 thus begs the question what must be considered  to be the prevailing norm informing the ‘principle of non-refoulement’. The absolute norm of Article 19(2) in the Charter - or the non-absolute norm of the Refugee Convention?

I cannot help suspecting that the Court of Justice was captured in this confusion, when earlier answering the questions asked in the case of H.T. (C-373/13), discussed here. The Court of Justice described the system of Article 21 Qualification Directive in paragraphs 41 – 44 of that judgment. In that description any explicit referral to the absolute character of the principle of non-refoulement is lacking. Strictly, the Court says nothing wrong, stating in paragraph 42 that Article 21(2) Qualification Directive, ‘whose wording essentially repeats that of Article 33(2) of the Geneva [Refugee] Convention, nevertheless provides for a derogation from that principle, allowing Member States the discretion to refoule a refugee where it is not prohibited by those international obligations (…)’.

It may be telling that the Court notes in para 65 that the principle of non-refoulement is guaranteed as a fundamental right by Articles 18 and 19(2) of the Charter of Fundamental Rights of the European Union. But the Court does not elaborate on that. Then again, I do not understand the extensive attention drawn to the alleged leeway granted by Article 21(2) of the Directive. Why suggest that there can be meaningful room for refoulement at all? Why make mention of ‘Member States, enjoying the discretion whether or not to refoule a refugee’ in paragraph 43? Why talk of a ‘derogation’ in paragraphs 42, 55, from this non-derogable principle? Why state in paragraph 72, that the consequences of applying Article 21(2) may be “very drastic” because the refugee ‘might be returned to a country where he is at risk’? Why keep secret that the whole exercise of explaining Article 21(2) is essentially futile because of the absolute character of the principle at stake?

Crucial impact of the case

The answer of the Court of Justice to the Czech court’s questions will be crucial for the future development of EU law. If the absolute character of the principle of non-refoulement is not clearly upheld now, we might be witnessing a gradual process of interpreting away the absolute character of non-refoulement. The first step could be, to frame the refugee status in the Directive as the primary status. The protection granted by Article 3 ECHR could then be downgraded as subsidiary and less important and only to be used as a safety net for persons who are not eligible for the first class protection. In such a construction, it could be argued that the international obligations referred to in Article 21 Qualification Directive are essentially obligations under Article 33 of the Refugee Convention.  This would grant Member States room for refoulement of refugees under Article 21(2) of the Directive in cases of criminal behaviour or security risks.  Then, if the ‘primary’ status would not be deemed connected to an absolute protection of non-refoulement, it could be considered weird to grant any better protection to the ‘lesser’ status.  

On the other hand, such a downgrading process may less easily develop if the importance of Article 19(2) of the Charter in this respect is acknowledged. In that respect, it is striking that the referral to the principle of non-refoulement in point 3 of the preamble of the Qualification Directive is solely linked to the Refugee Convention and not to Article 19(2) Charter. It is further conspicuous that point 16 of the Preamble mentions a whole range of relevant Charter provisions except for precisely Article 19(2).  

Complications: status, residence permit, expulsion

The discussion on this topic is complicated by a number of circumstances. First, refoulement only refers to deportation to the country where the person is in danger. Non-refoulement as such does not stand in the way of expulsion to other countries (as can be seen in Article 32 of the Refugee Convention allowing a limited possibility of removals to other countries, even if a refugee is ‘lawfully in [the] territory’). Further, the protection granted by the Qualification Directive takes the form of issuing statuses and residence permits, among other things, to protected persons.  What follows from this? Status and residence permit are two different things, as can be seen in Article 24 Qualification Directive. Revoking a residence permit cannot lead to the revocation of the refugee status (H.T. judgment, para. 74). Neither will the status of subsidiary protection be affected by revocation of the residence permit. What does the distinction between status and residence permit mean? And what is the relationship between a status and the obligation of non-refoulement?

Status

Principally, a status is recognition. Under Article 2(e) Qualification Directive, ‘refugee status’ means the recognition by a Member State of a third-country national or a stateless person as a refugee, and under Article 2(g) ‘subsidiary protection status’ means the recognition by a Member State of a third-country national or a stateless person as a person eligible for subsidiary protection.  As a status is equated with recognition, a status can only be terminated together with the recognition. The status intrinsically comprises recognition of the existence of an obligation of non-refoulement with respect to the person concerned.

(When I use the term ‘recognised refugee’ I am only dealing here with recognised refugees under the Qualification Directive. A recognised refugee under the Qualification Directive is in a different position from a person who is not recognised but who might still be a refugee under the Convention of 1951. It is the recognition under the Qualification Directive which puts beyond doubt that an the absolute EU principle of non-refoulement is applicable to the refugee as well).

Now, if a ‘status’ should be equated with ‘recognition’ of the danger threatening the person involved, it would be an anomaly to revoke a status in cases where the danger continues to exist, just because of criminal behaviour. That would amount to an arbitrary refusal to acknowledge the real and continuing risk against which the person seeks protection. More or less like revoking the medical acknowledgement of pregnancy of a woman because she stole a book, not because the pregnancy was over. However, under the Qualification Directive, termination of a status is made possible in cases where it is not established that an absolute prohibition of refoulement is no longer applicable to the person concerned. This is especially so with refugees. On the same grounds as set out in Article 21(2), but without the proviso of the ‘international obligations’ override, Article 14(4) Qualification Directive allows for revoking, ending or refusing to renew a refugee status. 

The wordings of Article 14(4) obviously refer to Article 33(2) Refugee Convention which also inspired the creation of a possibility of ‘refoulement’ under Article 21(2). In the beginning of my exploration, I stated that a correct interpretation of Article 21(1) compels non-application of the second (and consequently the third) paragraph. So, if the second and third paragraphs of Article 21 should be declared ‘dead letters’, is there still room for applying Article 14(4)?

The answer may depend on how consistency of the system of the Directive is valued. It is strange to refuse or terminate a status on grounds that have nothing to do with the danger against which the status is meant to offer protection. But, as long as there is no refoulement, the refusal or termination of the refugee status as cannot violate the principle of non-refoulement. 

Residence permit

In the H.T. judgment, para. 95, it is claimed that, even without his residence permit, the person concerned remains a refugee and as such remains entitled to the benefits guaranteed by Chapter VII of the Qualification Directive to every refugee, including protection from refoulement, maintenance of family unity, the right to travel documents, access to employment, education, social welfare, healthcare and accommodation, freedom of movement within the Member State and access to integration facilities. The same must be true for a person with the status of subsidiary protection (Article 20(2)).

However I have some difficulties with this passage. A number of rights mentioned in Chapter VII – like travel documents for travelling abroad, freedom of movement within the territory of the host state, access to employment -  would, under the Refugee Convention only be granted to ‘lawfully’ present refugees. I doubt it whether the Court took this aspect fully into account. In Chapter VII no clear distinction has been made between the rights correlating to the ‘status’ alone and rights specifically connected to ‘lawful residence’.  

I am therefore not convinced that para. 95 of the H.T. judgment is tenable. Is it really true that a ‘status’ alone already implies lawful presence? Is it not rather so, that a ‘status’ differs from a ‘residence permit’ precisely because a ‘status’ does not in itself regulate a right to lawful presence on the territory?

Whatever the right answer to that question is, even if we fully accept para. 95 of the H.T. judgment, a ‘status‘ only protects against refoulement, not against any form of expulsion to a safe country. That is why the residence permit offers more security. As long as a residence permit is granted to a status holder, the Member State guarantees not only non-refoulement to the country of origin but also non-expulsion to any other country and a full right to inclusion in society. This applies both to refugees and to subsidiary protected persons. With a residence permit the legal position of the person may become stronger through time and eventually lead to a permanent status or to nationality of the host state.

The principle of non-refoulement is, at least in abstracto, reconcilable with revoking, non-extending or refusing a residence permit.  Under Article 24 Qualification Directive, as explained in the H.T. judgment, a non-renewal or revocation of a residence permit is possible both for a refugee and for a subsidiary protected person in case of compelling reasons of national security or public order, while the status remains unaffected. So, measures to protect public order and public security may take the form of terminating or refusing a residence permit, but they may, according to what I said above never lead to refoulement as long as it is prohibited under Article 19(2) Charter.

Exclusion

A thorny issue is how the concept of exclusion (as distinct from revocation of refugee status, and/or a residence permit) must be positioned under an absolute norm of non-refoulement.

The exclusion clauses of the Refugee Convention are transposed in Article 12 of the Qualification Directive. Further, in Article 17 of the Directive, the concept of exclusion is also applied to persons with subsidiary protection – a novelty. According to the wording of the Directive, exclusion may mean something different for refugees compared to subsidiary protected persons. In Article 12, a third-country national or a stateless person is excluded from being a refugee.  Thus, an excluded person ‘is’ not a refugee.  He is excluded from the definition. In the wording of the Court of Justice in B and D (paras 89, 91, 98, 100, 104 and 106), the person is excluded from refugee status. In contrast, under Article 17, a third-country national or a stateless person is excluded from being eligible for subsidiary protection. Here, the person is excluded from the ’eligibility’ to be protected, which may not be exactly the same as a status. However, for reasons of consistency with the language of the B. and D. judgment, it is perhaps preferable to see Article 17 as dealing with exclusion of the status of subsidiary protection, just like Article 12 is about exclusion from the status of refugee.

Anyhow, regardless of the potential differences between the two provisions, their common effect is that they prevent or undo the creation of a legal moment in which it must be assessed under the Qualification Directive whether the person concerned is in a situation where refoulement is prohibited, either because of well-founded fear for persecution or because of a real risk for life or of torture, inhuman or degrading treatment or punishment. Of course, non-assessment of a risk does not mean that it does not exist. Therefore, exclusion under the Qualification Directive leaves open that the principle of non-refoulement may still apply to excluded persons. Under Article 5 of the Returns Directive they still are protected against refoulement. So, it is not a priori allowed to send excluded persons back to their countries.

Above, I stated that the status embodies a recognition of an obligation of non-refoulement with regard to the person concerned. Accordingly, an exclusion from a status is equivalent to exclusion from recognition of an obligation of non-refoulement. As a consequence, there is no right to a residence permit either.

In fact, excluded persons are thrown out of the field of application of the Qualification Directive and are referred to the Returns Directive for further protection against refoulement. In accordance with the Abdida judgment, Court of Justice 18 December 2014, C-562/13, para 50 (discussed here), they must be able to avail themselves, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement of the principle of non-refoulement laid down in Article 5 Returns Directive and Article 19(2) of the Charter.

Conclusions

In spite of its confusing content, Article 21 Qualification Directive is not invalid because it can be interpreted in accordance with the absolute prohibition of refoulement thanks to the words ‘in accordance with their international obligations’  in the first section. The effect of the correct interpretation is that refoulement of refugees is not allowed even in the cases formulated in paragraph 2. Consequently, neither the third paragraph of Article 21, dealing with revoking, ending or refusing to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies, can ever be applied. Correctly interpreted, the second and third paragraph of Article 21 must be regarded dead letters.

It is difficult to conclude what the ‘dead letter’ position of Article 21(2)(3) means for the validity of Article 14(4) which was based on the same Article 33(2) Refugee Convention. At any rate, Article 14(4) is not invalid for violating the absolute prohibition of refoulement as long as Article 21(2) is not applied. Still, there is something anomalous about Article 14(4). It compels Member States (‘shall’) to refuse or terminate a refugee status in cases where there is still an obligation to acknowledge the absolute prohibition of refoulement. If it would be accepted that a ‘status’ is equivalent to ‘recognition’, the ‘status’ should be maintained, also for persons committing crimes, as long as the ‘recognition’ has solid ground.    

In answering the questions of the Czech Court, the Court of Justice may also have to clarify (as it did in Abdida) how the protection against refoulement is divided between the Qualification Directive and the Returns Directive. Exclusion in the sense of Articles 12 and 17 of the Qualification Directive has the effect of throwing the applicants out of the protection system of the Qualification Directive and leaving their protection against refoulement to the Returns Directive, which entitles them to a remedy with suspensive effect for the examination of a claim of non-refoulement.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

Photo credit: Bryan Denton, New York Times

EU Referendum Briefing 4: Immigration

Steve Peers

Introduction

What impact does the UK’s membership of the European Union (EU) have on immigration and asylum? This post examines that controversial issue, looking in turn at migration to the UK by non-EU and EU citizens.

Non-EU migration

It’s central to distinguish between non-EU and EU migration in the referendum debate for two reasons. First of all, because while EU migration is obviously closely connected to the UK’s membership of the EU, non-EU migration is not. That’s simply because the UK has negotiated and used opt outs from EU laws on non-EU migration and asylum, particularly from the EU’s borderless Schengen zone. This means that the UK can control its borders with the rest of the EU as regards non-EU citizens, applying its own law to admit them or to refuse them entry. So it’s false to say that the UK has ‘lost control of its borders’ as far as non-EU migration is concerned.

As I noted in the first EU Referendum Briefing, these opt-outs could only be removed by a Treaty amendment which the UK government and parliament agreed to. Moreover, the Schengen opt-out can only be removed by a public referendum.   

Secondly, the distinction is important because non-EU migration actually accounts for a greater share of net migration to the UK than EU migration does, as demonstrated here:

Moreover, for those who would like to see net migration to the UK reduced to the level of (say) 50,000 or below 100,000, it is self-evident from this graph that leaving the EU will not, by itself, accomplish this. Even with no EU migration, non-EU migration alone would still be well above the 100,000 level, as we can clearly see. Conversely, some would like to see more non-EU migrants admitted to the UK. Fine: the UK can admit them any time it likes. It’s entirely the government’s decision not to. But doing so would clearly move the UK further away from a target of 100,000 migrants, even if the UK leaves the EU.

A small minority of non-EU citizens in the UK are covered by EU law. First of all, non-EU family members of EU citizens are covered by EU free movement law. However, the UK’s renegotiation deal (as discussed here) would allow it to restrict their numbers considerably, by tightening the rules on their entry.

Secondly, the UK opted into the ‘first phase’ of EU asylum law, in 2003-05. At that time, though, it had a veto over asylum law proposals, and used it to insist that the EU rules would not change UK law. Although the ‘Leave’ side claims that the EU court ‘controls Britain’s asylum system’, in fact the only British asylum cases which the EU court has decided concern the ‘Dublin’ system of allocating responsibility for asylum applications between EU countries.

This system allows the UK to insist that other Member States take back asylum-seekers who have entered their territory before they got to the UK. If the UK left the EU, it would no longer be subject to these Dublin rules, unless the EU agreed to sign a treaty with the UK to that effect. This is pretty unlikely, since the EU has only signed such treaties with countries like Norway and Switzerland, for the sole reason that those countries also signed up to be part of the Schengen area at the same time.

Let’s think about what all this means in practice. Some non-EU migrants who have travelled through the rest of the EU do attempt illegal entry into the UK, or would probably like to do so (those in Calais and Dunkirk, for instance). But why would that change if the UK left the EU? The people concerned wouldn’t suddenly lose all desire to come to the UK. Their intended illegal entry would not become harder in any way. It would be against the law – but it already is now. Brexit would not actually move the UK further away from the continent geographically. People do attempt illegal entry into non-EU countries, like the USA; and refugees flee to and stay in non-EU countries (like Turkey, Kenya or Lebanon) too.

Some on the Leave side have suggested that the UK is vulnerable to sexual assault from non-EU migrants on the continent. Let’s unpack that. None of the non-EU migrants concerned have the right of entry into the UK. The UK can simply refuse them entry at the border. In contrast, the Orlando killer was a US citizen, who could have come to the UK without a visa, on the basis of the UK’s visa waiver for US citizens.

It’s sometimes suggested that non-EU migrants in the rest of the EU will all gain EU citizenship and come to the UK shortly afterward. But as shown in three separate analyses – by Full Fact, BBC Reality Check, and Open Europe – gaining EU citizenship is very difficult for non-EU citizens. It requires a long wait, a clean criminal record and satisfaction of many other criteria. If non-EU citizens don’t have legal residence status, or their asylum application fails, they can be deported. Nearly 200,000 non-EU citizens are in fact expelled from the EU every year.  

Finally, let’s apply this analysis to this poster produced by some on the Leave side, unveiled last week:

No one on the poster has any right to enter the UK. All of them can be refused at the border. Brexit would change nothing in this regard – besides making it harder to remove to the EU those who do manage to enter illegally and apply for asylum. The prospect that many of them would gain EU citizenship and move to the UK is remote. 

So the poster is essentially unrelated to the referendum. As such, it is not an attempt at rational argument - but rather an appeal to irrational fear.

EU migration

In contrast, as noted already, the migration of EU citizens is indeed relevant to the referendum debate. Much of this debate is about the economic impact of EU migration, including its impact on public services. I’ll leave that side of the debate to the economists. But there are some important legal issues that should be clarified, related to access to benefits and exclusion on grounds of criminality. The key point is that the free movement of EU citizens, while generous compared to ordinary immigration laws, is not unlimited.

What are these limits? First of all, EU citizens have to meet the criteria to stay. The main legislation on the free movement of EU citizens – known as the ‘Citizens’ Directive’ – provides that EU citizens and their family members can move to another member state initially for a period of three months. But it also says explicitly that the EU citizen has no right to any social assistance benefits during this time. Indeed, the UK has removed EU job-seekers’ access to job-seekers’ allowance during the first three months of their stay.

After three months, the Citizens’ Directive says that EU citizens and their family members can stay subject to further conditions: they are either workers or self-employed; or have ‘sufficient resources’ not to burden the social assistance system, along with health insurance; or are students in a post-secondary institution, if they have health insurance and declare that they will not be a burden to the social assistance system. The EU court has confirmed that there is no right to stay just to obtain social assistance without ever working in the host country. Recently it also confirmed the UK government’s refusal to pay child benefit or child tax credit to those who did not qualify to stay.

It’s sometimes suggested that ‘500 million people can move to the UK’ under EU free movement law. Yes – if there were 500 million jobs for them to come and do. Or 500 million university places available. Or if all of those 500 million people had a small fortune stashed away. Obviously nothing like those numbers of jobs, university places or self-sufficient people exist.

What about EU migrants who come to the UK and look for work? David Cameron has suggested they can be automatically removed after six months if they don’t find work. This isn’t correct: the Citizens’ Directive says that they can stay if they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. But as mentioned already, they are not entitled to any benefits from the UK while looking for work. Also, they must meet the criteria of self-sufficiency, otherwise they would not be entitled to stay after three months anyway.

What if an EU migrant works in the UK for a time, then becomes unemployed? It is possible that they can retain status as a (former) worker, and therefore keep access to social assistance benefits. There are limits to this, however.  In particular, if the EU worker has been employed for less than one year in the UK, he or she would only retain ‘worker’ status for six months after becoming unemployed. At that point the UK can cut off access to their benefits, as the CJEU has confirmed.

Workers are entitled to equal treatment as regards benefits, including top-up benefits paid to those in work, which are a large part of the UK tax and benefit system. However, the deal on the renegotiation of the UK’s EU membership specifies that if the UK votes to stay in the EU, the current EU rules will be changed so that the UK can apply a four-year ban for workers from other EU member states on in-work benefits.

There renegotiation deal also says that the UK will be able to limit on the child benefit exported to EU workers with children in other member states, fixing the rate of that child benefit to the cost of living in the country of the children’s residence.

After five years’ legal stay on the basis of the Citizens’ Directive, EU citizens and their family members can obtain permanent residence status, meaning that they no longer have restricted access to social benefits.

As for criminality, it is sometimes suggested or inferred that the UK cannot refuse entry or expel EU migrants on criminal law grounds at all. This is clearly false. The Citizens’ Directive allows for expulsion, entry bans or refusal of entry for those who are a threat to ‘public policy, public security or public health’. There are limits, however. Restrictions must be proportionate and ‘based exclusively on the personal conduct of the individual concerned’. People cannot be excluded on general preventive grounds, but on ‘personal conduct’ which ‘must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

British authorities can check on an individual’s police record after entry, and can also issue an entry ban preventing that person from coming to the UK in the first place. For those who are on the territory, there is greater protection against expulsion over time, but there is never any absolute ban on expulsion.

It has been suggested that the EU court has prevented 50 EU criminals from being removed from the UK. This is false. Any such judgments were made by UK courts or the European Court of Human Rights.

To prove that point, let’s look at a list of all the cases which the EU court decided on EU citizenship in the last five years. There are 53 cases, and only five of them concern expulsion or exit bans of EU citizens due to criminality. Of those five cases, just three concern the UK.  

In those five cases, the Court decided that: 

a) time spent in prison in the UK  by an EU citizen’s family member did not count toward getting permanent residence under EU law (Onuekwere); 

b) an EU citizen convicted of child cruelty could not count prison time toward a ten-year threshold giving extra protection against expulsion (G case);

c) the UK does not have to give an EU citizen information which could compromise national security during an expulsion proceeding (ZZ case);

d) people with a drug trafficking conviction can be banned from leaving the country (Gaydorov); and 

e) child abusers can be expelled on grounds of ‘public security’ even if they have been resident for over ten years (I case).

So in every single relevant judgment in the last five years, the EU Court confirmed that Member States could limit the rights of convicted criminals or terrorist suspects.

The ‘Leave’ side has referred to another supposed EU court ruling, about the daughter-in-law of a terrorist in the UK. In fact there is no ruling in that case yet – only the non-binding opinion of an ‘Advocate-General’. And according to that opinion, the person concerned can indeed be expelled, if a British court believes that she is a risk to public security.

It is also possible to expel EU citizens on grounds that they rely on social assistance.

One final point about the free movement of EU citizens. The Leave side has referred several times to the possibility of Turkey joining the EU. It’s sufficient to point out, as I discussed in a previous Referendum Briefing, that: a) every Member State has a veto on this; Turkey has agreed 1 out of 35 negotiating chapters, in 11 years of talks; and there would also be a lengthy period after Turkish accession before the free movement of persons applied.

Barnard & Peers: chapter 13

Credits - Meme: Pawel Swidlicki; Graph: The Independent; Photo: home.bt.com