The odd couple: Free choice of asylum and temporary protection

 

Dr. Esin Küçük, University of Essex

Photo credit: Silar, via wikicommons media

The idea of free choice of protection state in asylum law has been entertained in the literature, mostly as part of the debate surrounding the reform of the EU asylum regime. Maiani, for example, convincingly makes a case for a free choice of asylum state and proposes scaled-up solidarity instruments to offset the implications of such a model for the preferred states. Mitsilegasproposes the mutual recognition of positive asylum decisions, which would allow refugees (instead of asylum seekers) to choose their country of protection. The idea of allowing asylum seekers to choose their country of protection was also considered by the Commission in debates about a reform of the Dublin Regulation, although it failed to find enough support for the reason that it would not provide for solidarity or a fair sharing of responsibility, a highly sensitive issue.

With the escalation of armed conflict in Ukraine and the arrival of refugees, the EU has found itself employing a form of de facto free choice model, which seemed politically unfeasible before. As far as solidarity and responsibility sharing is concerned, the EU’s perception of free choice of asylum has changed substantially, at least for the time being. In the Council Implementing Decision introducing temporary protection, a free choice system is presented as a way of facilitating a balance of effort between the Member States (Preamble 16). Free choice of asylum practices can prevent pressure from building up in neighbouring states that may have limited capacity to host asylum seekers and process applications. From the perspective of refugees, free choice practices also have merits. Instead of forcing asylum seekers to remain in a country where they may have no or limited ties, the free choice model allows them to join social networks that support their integration. In brief, the recognition of the potential of free choice of asylum in meeting the demands of asylum solidarity is a welcome development. Its practical advantages, such as preventing smuggling and irregular movements, are noted here(p.46), and here(p.29).

The legal foundation of free choice of asylum is the Schengen visa waiver which exempts Ukrainian nationals from visa requirements for entry into the EU and provides them with the right to travel within the EU for 90 days within a 180-day period (Article 4, Annex II). This means that displaced Ukrainian nationals can decide in which Member State they wish to exercise their rights as beneficiaries of temporary protection. This scheme of free choice is considerably different from the proposed models mentioned above, not least because it is coupled with temporary protection with the activation of the Temporary Protection Directive, which is also being tested for the first time.

This de facto free choice model, or more precisely its unexpected union with temporary protection, raises a number of questions. The EU asylum acquis, including the Temporary Protection Directive, is based on the permanency of asylum jurisdiction. Asylum processing responsibilities are assigned to a single state, which is often the country of first arrival according to criteria set out under the Dublin Regulation (Article 7). Within this system, the only way for asylum seekers to choose the state of protection is to enter the EU territory through the country where they wish to lodge an application. In practice, such a choice is rarely available. Secondary movements of asylum seekers are, in principle, prohibited, and returns are facilitated pursuant to the take-back mechanism provided under the Dublinsystem (Article 23). Finally, protection statuses are not valid throughout the EU, meaning that asylum jurisdiction cannot be transferred to another state.

The Temporary Protection Directive is also underpinned by the permanency of asylum jurisdiction. Under Article 8(1) of the Directive, the beneficiary of protection can exercise her rights in the Member State that has issued a residence permit. Preamble 9 of the Directive clearly shows that transfer of jurisdiction is something undesired and to be countered. To that effect, the Directive (Article 11) requires the Member States to take back a person enjoying temporary protection in their territory in the case of secondary movements. How does this system, which is centred around pre-assigning responsibility to a single state and preventing secondary movements, align with a free choice scheme?

The Implementing Decision seeks to integrate the spontaneously created free choice model into the existing framework. An important step taken towards an integration of the two systems is the abolishment of returns. It is worth mentioning that the Temporary Protection Directive (Article 11) allows the Member States to relinquish take back obligations through a bilateral decision. In the Implementing Decision, the Member States took a step further and decided to relinquish returns across the EU (Implementing Decision, Preamble 15). This is an important and positive development that goes well beyond what the Directive already allowed through bilateral agreements. Does this mean that a transfer of asylum jurisdiction is possible for temporary protection holders? The Implementing Decision does not directly deal with the transfer of protection jurisdiction, but Preamble 16 of the Decision provides some insights.

‘Once a Member State has issued a residence permit in accordance with Directive 2001/55/EC, the person enjoying temporary protection, whilst having the right to travel within the Union for 90 days within a 180-day period, should be able to avail of the rights derived from temporary protection only in the Member State that issued the residence permit. This should be without prejudice to the possibility for a Member State to decide to issue, at any time, a residence permit to persons enjoying temporary protection under this Decision.’

It is clear from this statement that the permanency of residence principle remains in place. Protection responsibilities are assigned to the Member State that issued the residence permit. On the other hand, the transfer of asylum jurisdiction is not altogether prohibited. It is in the discretion of the Member States to grant a residence permit to protection seekers who are offered temporary protection elsewhere (discussed here). This leaves us with a limited free choice model. Ukrainian refugees have full freedom to choose their country of protection before they receive a residence permit in a Member State. Once they choose their protection jurisdiction, the possibility of transfer depends on the willingness of the transferee state.

Does this midway position make sense? One of the rationales that underpin permanency of asylum jurisdiction is the lack of uniform status determination. This ground, clearly, is not pertinent given that the protection status of Ukrainian nationals became valid throughout the EU with the activation of the Temporary Protection Directive. A more convincing reason could be the goal to mitigate the implications of free choice on the popular asylum destinations. The limitation on transfers allows the Member States to refuse issuing residence permits to those who are already under protection, and thus may serve to limit increased responsibilities for some Member States that are feeling under pressure. However, Member States are not required to justify their refusal of transfer requests. The fact that full discretion is accorded to the Member States in deciding whether to allow transfers sits uncomfortably with the narrative of facilitating a balance of efforts.

The marriage of two different systems begs further, intertwined, questions: When do protection responsibilities start and on which state do they fall? These questions prove to be relevant especially in cases of movements before obtaining temporary protection. By way of example, consider a displaced person who moves to a second state where she registers with the authorities and receives a temporary protection certificate, before moving to a third Member State where she requests a residence permit. The Implementing Decision does not explicitly address this scenario, and different interpretations are possible. Based on the link between the exercise of temporary protection rights and a residence permit established by Preamble 16 of the Implementing Decision, it would not be too far-fetched to argue that the protection obligations start when the residence permit is issued in the country that issued the permit.

Related to the above, there is another loose end that needs tying up. The Implementing Decision presumes that the applicant will apply for a residence permit within the 90 days of free travel. What if our displaced person, who travelled across several Member States, fails to apply for a residence permit within the visa free period? Does the responsibility fall on the country where she was residing at the time when the visa-free period came to an end? Can the applicant simply choose where she wants to apply?

These rather technical questions may not be relevant to the majority of cases. However, they show that the unplanned merger of the Temporary Protection Directive and free choice of asylum most certainly requires further modifications and clarification. Nevertheless, (limited) free choice of asylum has brought a much-needed fresh perspective on border management in the EU, which one hopes will inspire the future design of the EU asylum regime.

 

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Stateless people and refugees fleeing Ukraine

 

Chris Nash, Director of the European Network on Statelessness*

*Reblogged from the Network website

As the number of refugees fleeing Ukraine nears two million, we and our members on the ground have been mobilising to try to get a handle on the particular protection needs of stateless people forcibly displaced by the crisis.

We know from past experience, including research under our Stateless Journeys initiative, that stateless people fleeing conflict typically face additional issues and challenges crossing borders and accessing protection. We also know that statelessness is both a cause and a consequence of forced displacement.

Upon hearing anecdotal reports of difficulties experienced by stateless people trying to escape the war in Ukraine, we wanted to better understand the situation as quickly as possible. This week we have published an initial briefing to help inform refugee response actors on the ground so that problems can hopefully be anticipated and addressed before they become entrenched.

Statelessness in Ukraine

The last census in Ukraine in 2001 recorded 82,550 stateless people, and UNHCR estimated there to be 35,875stateless and people with ‘undetermined nationality’ in 2021. Other sources suggest there could be many tens of thousands more including a significant proportion of the Roma population as well as children born in Crimea, Luhansk and Donetsk since 2014. The World Bank recently estimated there to be 999,000 people aged over 15 in Ukraine without a national ID card. Although not all of these individuals will be stateless, many will be at increased risk of becoming so if the crisis becomes more protracted.

It is estimated that 10-20% of Romani people in Ukraine lack the civil documentation needed to acquire or confirm their Ukrainian citizenship. Other profiles of stateless people include former citizens of the USSR who were unable to demonstrate permanent residence in Ukraine in 1991 and so could not acquire Ukrainian nationality. Some, who have been unable to acquire any nationality, have since passed their statelessness on to their children. People living in non-Government controlled areas, Crimea, and those internally displaced in Ukraine have faced significant barriers to obtaining or renewing personal documents since 2014, leaving an estimated 60,000 children born in these areas without birth certificates and at risk of statelessness.

In addition to these significant in-situ stateless populations, there are asylum-seekers, refugees, and migrants (and their children) who were residing in Ukraine and were stateless before leaving their countries of origin (e.g., Palestinians, Kuwaiti Bidoon, Kurds); or who may have since become stateless due to displacement, discrimination or gaps in nationality laws, State succession, or deprivation of nationality practices.

In May 2021, Ukraine introduced a statelessness determination procedure to determine who is stateless on its territory and grant protection to stateless people, but this only recently became operational, and by 31 December 2021 only 55 people had been granted a temporary residence permit through the procedure. The vast majority of stateless people living in Ukraine will lack any documentation proving that they are stateless. This not only poses insurmountable barriers for stateless people trying to move within Ukraine given current circumstances, but also significantly impacts on their ability to move to relative safety within the country, cross borders, and access protection.

Current situation at Ukraine’s Western borders

The initial response of Ukraine’s western neighbours has been generous, with both government actors and civil society doing their utmost to welcome and receive unprecedented numbers of refugees. Hungary, Slovakia, Poland, Romania, and Moldova have all stated that they are currently admitting everyone fleeing the war in Ukraine, including stateless people, those at risk of statelessness and/or undocumented people. A brief summary of policies in each of these countries is available in our briefing.

However, the picture is fast-moving and there is a need for vigilant monitoring given emerging evidence of inconsistent practices and racial profiling at different border crossings (e.g., in Hungary and Poland) with non-Ukrainians facing barriers to accessing the territory, or additional ‘secondary screening’ procedures, including in detention-like conditions in Poland.

Equally, early information from ENS members suggests that stateless people and those at risk of statelessness fleeing Ukraine are likely to face additional barriers and differential treatment depending on their residence, nationality, and/or documentation status. More time and further research are needed to understand the detailed picture in terms of how different profiles of stateless people are likely to be affected.

Application of the EU Temporary Protection Directive and protection owed to stateless people

A big question mark about the level of protection likely to be available to stateless refugees from Ukraine centres around how the EU Temporary Protection Directive (TPD) will be applied by different countries.

The Directive, invoked by EU Member States on March 4, grants immediate protection in the EU (other than Denmark) to Ukrainian nationals and those who had international protection in Ukraine prior to 24 February 2022. Stateless persons who can prove they held a permanent residence permit in Ukraine before 24 February and ‘cannot safely return to their country or region of origin’, are also entitled to temporary protection, but Member States can choose whether to apply the TPD or ‘adequate protection under national law’. Member States may also extend temporary protection to others, including stateless persons who were ‘residing legally’ in Ukraine. People granted temporary protection are entitled to a residence permit (initially for one year, extendable up to three years unless safe return is possible), access to the labour market, housing, social welfare, medical care, and access to education for children.

EU Member States are not currently required under EU law to extend temporary protection to most stateless people and those at risk of statelessness who are/were living in Ukraine. People without proof of permanent residence or international protection in Ukraine may need to apply for asylum or another form of protection according to the laws of their host country. This could pose serious issues in terms of their access to rights and services and their ability to obtain protection, if denied access to asylum procedures (e.g. as is the case in Hungary), or, for example, if Ukraine was disputed as their country of origin. So, even if able to escape Ukraine, stateless people are at particular risk of subsequently finding themselves excluded or left in limbo, and, in some cases, also at risk of arbitrary detention.

This in turn highlights the need for greater awareness of the rights owed to stateless people under international law. Almost all European States are Party to the 1954 Convention on the Status of Stateless Persons and so must afford specific rights and protections to stateless people on their territory. Some countries have established a statelessness determination procedure to determine who is due protection under the 1954 Convention and grant protection status or a residence permit to recognised stateless people (other than refugee status or another form of international protection). In other countries, stateless people may access another form of protection or regularise their stay through other routes. The situation in terms of access to protection for stateless people in countries across Europe is by no means uniform. Our Statelessness Index serves as a tool to help stateless people and their legal representatives to understand and advocate for their rights.

The way forward – addressing statelessness as part of the developing refugee response

Our briefing makes a series of recommendations to the EU, European States, international agencies and NGOs to ensure that stateless people from Ukraine can access protection in line with international law.

First and foremost, EU Member States should use their discretion under the TPD to extend temporary protection to all stateless persons and those at risk of statelessness regardless of prior residence status in Ukraine, or at least ensure access to equivalent forms of protection under national law. Linked to this, it is critical that lack of identity documents or other documentation does not prevent stateless people and people at risk of statelessness from accessing international protection or other forms of protection under national law.

Where access to temporary protection is not available, European States should ensure routes to protection and rights for stateless people on their territory in line with their obligations under the 1954 Statelessness Convention, as well as implement safeguards to prevent arbitrary detention.

Critical to this, will be enhancing the ability of border officials and refugee response actors to properly identify statelessness and risk of statelessness among those displaced from Ukraine so as to ensure their access to protection, including legal advice and other services. There is an urgent need to improve the availability of disaggregated data, using standardised guidelines and assessment tools at registration points, in protection procedures, and during legal counselling.

Training will also be key, and here there is a role for several actors, including UNHCR, the EU Asylum Agency, and NGOs and civil society experts. The EU Asylum Agency recently published a Registration Tool that has a section on identifying statelessness, which could be useful in this context. We are also in the process of developing a more extensive statelessness identification tool, which we will make available to all actors in the next few months.

Finally, reports on the ground suggest an important need for refugee response actors to identify and monitor statelessness and risk of statelessness among unaccompanied and separated children, as well as children born in transit and host countries, to ensure their right to a birth certificate, legal identity, and nationality is guaranteed. This is likely to become even more acute if the conflict and related displacement becomes more protracted. UNICEF and other child rights organisations will have a key role to play in this regard.

Next steps and looking beyond the conflict

Over the coming weeks and months, we will continue to monitor the situation, as well as seek to update and expand the scope of information available, including to understand how the Temporary Protection Directive is being implemented for stateless refugees displaced further across Europe. We will also explore other ways to support our members working tirelessly on the ground, including by trying to engage the donor community to support their efforts and to fund targeted assistance for stateless people who otherwise find themselves excluded from Europe’s refugee response.

Equally, there is still a lot we do not know about the situation facing stateless people inside Ukraine. We know from our Ukrainian member organisations working bravely and tirelessly inside the country that stateless people without documentation are unable to move internally or across checkpoints, so find themselves trapped. There have also been disturbing reports of racial discrimination, antigypsyism, and/or differential treatment based on documentation status at Ukrainian borders, which may be preventing some stateless/people at risk of statelessness from leaving Ukraine. More research is needed to better understand and try to address this situation.

Finally, if we allow ourselves to try to be optimistic in looking beyond this unspeakably awful conflict, there will be a critical need to address legal identity, documentation, and nationality issues as part of re-building efforts. The current situation is a sobering reminder of how stateless people routinely suffer from being forgotten and their needs ignored, especially in times of conflict. We cannot allow this to happen, and we and our members stand ready to work with all actors to guard against this.

Photo: Mirek Pruchnicki, Creative Commons

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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 Ahmedcase. 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 Országoscase, 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

 

 

 

 

 

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

The New Pact on Migration and Asylum: Turning European Union Territory into a non-Territory

 

 

Jean-Pierre Cassarino* and Luisa Marin**

 

 

Externalization policies in 2020: where is the European Union territory?  

 

In spite of the Commission’s rhetoric stressing the novel elements of the Pact on Migration and Asylum (hereinafter: the Pact – summarized and discussed in general here), there are good reasons to argue that the Pact develops and consolidates, among others, the existing trends on externalization policies of migration control (see Guild et al). Furthermore, it tries to create new avenues for a ‘smarter’ system of management of immigration, by additionally controlling access to the European Union territory for third country nationals (TCNs), and by creating different categories of migrants, which are then subject to different legal regimes which find application in the European Union territory.  

 

The consolidation of existing trends concerns the externalization of migration management practices, resort to technologies in developing migration control systems (further development of Eurodac, completion of the path toward full interoperability between IT systems), and also the strengthening of the role of the European Union executive level, via increased joint management involving European Union agencies: these are all policies that find in the Pact’s consolidation.

 

This brief will focus on externalization (practices), a concept which is finding a new declination in the Pact: indeed, the Pact and several of the measures proposed, read together, are aiming at ‘disentangling’ the territory of the EU, from a set of rights which are related with the presence of the migrant or of the asylum seeker on the territory of a Member State of the EU, and from the relation between territory and access to a jurisdiction, which is necessary to enforce rights which otherwise remain on paper.

 

Interestingly, this process of separation, of splitting between territory-law/rights-jurisdiction takes place not outside, but within the EU, and this is the new declination of externalization which one can find in the measures proposed in the Pact, namely with the proposal for a Screening Regulation and the amended proposal for a Procedure Regulation. It is no accident that other commentators have interpreted it as a consolidation of ‘fortress Europe’. In other words, this externalization process takes place within the EU and aims at making the external borders more effective also for the TCNs who are already in the territory of the EU.

 

The proposal for a pre-entry screening regulation

 

A first instrument which has a pivotal role in the consolidation of the externalization trend is the proposed Regulation for a screening of third country nationals (hereinafter: Proposal Screening Regulation), which will be applicable to migrants crossing the external borders without authorization. The aim of the screening, according to the Commission, is to ‘accelerate the process of determining the status of a person and what type of procedure should apply’. More precisely, the screening ‘should help ensure that the third country nationals concerned are referred to the appropriate procedures at the earliest stage possible’ and also to avoid absconding after entrance in the territory in order to reach a different state than the one of arrival (recital 8, preamble of proposal). The screening should contribute as well to curb secondary movements, which is a policy target highly relevant for many northern and central European Union states.

 

In the new design, the screening procedure becomes the ‘standard’ for all TCNs who crossed the border in irregular manner, and also for persons who are disembarked following a search and rescue (SAR) operation, and for those who apply for international protection at the external border crossing points or in transit zones. With the screening Regulation, all these categories of persons shall not be allowed to enter the territory of the State during the screening (Arts 3 and 4 of the proposal). 

 

Consequently, different categories of migrants, including asylum seekers which are by definition vulnerable persons, are to be kept in locations situated at or in proximity to the external borders, for a time (up to 5 days, which can become 10 at maximum), defined in the Regulation, but which must be respected by national administrations. There is here an implicit equation between all these categories, and the common denominator of this operation is that all these persons have crossed the border in an unauthorized manner.

 

It is yet unclear how the situation of migrants during the screening is to be organized in practical terms, transit zones, hotspot or others, and if this can qualify as detention, in legal terms. The Court of Justice has ruled recently on Hungarian transit zones (see analysisby Luisa Marin), by deciding that Röszke transit zone qualified as ‘detention’, and it can be argued that the parameters clarified in that decision could find application also to the case of migrants during the screening phase. If the situation of TCNs during the screening can be considered detention, which is then the legal basis? The Reception Conditions Directive or the Return Directive? If the national administrations struggle to meet the tight deadlines provided for the screening system, these questions will become more urgent, next to the very practical issue of the actual accommodation for this procedure, which in general does not allow for access to the territory.

 

On the one side, Article 14(7) of the proposal provides a guarantee, indicating that the screening should end also if the checks are not completed within the deadlines; on the other side, the remaining question is: to which procedure is the applicant sent and how is the next phase then determined? The relevant procedure following the screening here seems to be determined in a very approximate way, and this begs the question on the extent to which rights can be protected in this context. Furthermore, the right to have access to a lawyer is not provided for in the screening phase. Given the relevance of this screening phase, also fundamental rights should be monitored, and the mechanism put in place at Article 7, leaves much to the discretion of the Member States, and the involvement of the Fundamental Rights Agency, with guidance and support upon request of the MS can be too little to ensure fundamental rights are not jeopardized by national administrations.

 

This screening phase, which has the purpose to make sure, among other things, that states ‘do their job’ as to collecting information and consequently feeding the EU information systems, might therefore have important effects on the merits of the individual case, since border procedures are to be seen as fast-track, time is limited and procedural guarantees are also sacrificed in this context. In the case the screening ends with a refusal of entry, there is a substantive effect of the screening, which is conducted without legal assistance and without access to a legal remedy. And if this is not a decision in itself, but it ends up in a de-briefing form, this form might give substance to the next stage of the procedure, which, in the case of asylum, should be an individualized and accurate assessment of one’s individual circumstances.   

 

Overall, it should be stressed that the screening itself does not end up in a formal decision, it nevertheless represents an important phase since it defines what comes after, i.e., the type of procedure following the screening. It must be observed therefore, that the respect of some procedural rights is of paramount importance. At the same time, it is important that communication in a language TCNs can understand is effective, since the screening might end in a de-briefing form, where one or more nationalities are indicated. Considering that one of the options is the refusal of entry (Art. 14(1) screening proposal; confirmed by the recital 40 of the Proposal Procedure Regulation, as amended in 2020), and the others are either access to asylum or expulsion, one should require that the screening provides for procedural guarantees.

 

Furthermore, the screening should point to any element which might be relevant to refer the TCNs into the accelerated examination procedure or the border procedure. In other words, the screening must indicate in the de-briefing form the options that protect asylum applicants less than others (Article 14(3) of the proposal). It does not operate in the other way: a TCN who has applied for asylum and comes from a country with a high recognition rate is not excluded from the screening (see blog post by Jakuleviciene).

 

The legislation creates therefore avenues for disentangling, splitting the relation between physical presence of an asylum applicant on a territory and the set of laws and fundamental rights associated to it, namely a protective legal order, access to rights and to a jurisdiction enforcing those rights. It creates a sort of ‘lighter’ legal order, a lower density system, which facilitates the exit of the applicant from the territory of the EU, creating a sort of shift from a Europe of rights to the Europe of borders, confinement and expulsions. 

 

 

The proposal for new border procedures: an attempt to create a lower density territory?

 

Another crucial piece in this process of establishing a stronger border fence and streamline procedures at the border, creating a ‘seamless link between asylum and return’, in the words of the Commission, is constituted by the reform of the border procedures, with an amendment of the 2016 proposal for the Regulation procedure (hereinafter: Amended Proposal Procedure Regulation).  

 

Though border procedures are already present in the current Regulation of 2013, they are now developed into a “border procedure for asylum and return”, and a more developed accelerated procedure, which, next to the normal asylum procedure, comes after the screening phase.

 

The new border procedure becomes obligatory (according to Art. 41(3) of the Amended Proposal Procedure Regulation) for applicants who arrive irregularly at the external border or after disembarkation and another of these grounds apply:

 

-          they represent a risk to national security or public order;

-          the applicant has provided false information or documents or by withholding relevant information or document;

-          the applicant comes from a non-EU country for which the share of positive decisions in the total number of asylum decisions is below 20 percent.  

 

This last criterion is especially problematic, since it transcends the criterion of the safe third country and it undermines the principle that every asylum application requires a complex and individualized assessment of the particular personal circumstances of the applicant, by introducing presumptive elements in a procedure which gives fewer guarantees.

 

During the border procedure, the TCN is not granted access to the EU. The expansion of the new border procedures poses also the problem of the organization of the facilities necessary for the new procedures, which must be a location at or close to the external borders, in other words, where migrants are apprehended or disembarked.

 

Tellingly enough, the Commission’s explanatory memorandum describes as guarantees in the asylum border procedure all the situations in which the border procedure shall not be applied, for example, because the necessary support cannot be provided or for medical reasons, or where the ‘conditions for detention (…) cannot be met and the border procedure cannot be applied without detention’.

 

Also here the question remains on how to qualify their stay during the procedure, because the Commission aims at limiting resort to detention. The situation could be considered de facto a detention, and its compatibility with the criteria laid down by the Court of Justice in the Hungarian transit zones case is questionable. 

 

Another aspect which must be analyzed is the system of guarantees after the decision in a border procedure. If an application is rejected in an asylum border procedure, the “return procedure” applies immediately. Member States must limit to one instance the right to effective remedy against the decision, as posited in Article 53(9). The right to an effective remedy is therefore limited, according to Art. 53 of the Proposed Regulation, and the right to remain, a ‘light’ right to remain one could say, is also narrowly constructed, in the case of border procedures, to the first remedy against the negative decision (Art. 54(3) read together with Art. 54(4) and 54(5)). Furthermore, EU law allows Member States to limit the right to remain in case of subsequent applications and provides that there is no right to remain in the case of subsequent appeals (Art. 54(6) and (7)). More in general, this proposal extends the circumstances where the applicant does not have an automatic right to remain and this represents an aspect which affects significantly and in a factual manner the capacity to challenge a negative decision in a border procedure.

 

Overall, it can be argued that the asylum border procedure is a procedure where guarantees are limited, because the access to the jurisdiction is taking place in fast-track procedures, access to legal remedies is also reduced to the very minimum. Access to the territory of the Member State is therefore deprived of its typical meaning, in the sense that it does not imply access to a system which is protecting rights with procedures which offer guarantees and are therefore also time-consuming. Here, efficiency should govern a process where the access to a jurisdiction is lighter, is ‘less dense’ than otherwise. To conclude, this externalization of migration control policies takes place ‘inside’ the European Union territory, and it aims at prolonging the effects of containment policies because they make access to the EU territory less meaningful, in legal terms: the presence of the person in the territory of the EU does not entail full access to the rights related to the presence on the territory.

 

 

Solidarity in cooperating with third countries? The “return sponsorship” and its territorial puzzle

 

Chapter 6 of the New Pact on Migration and Asylum proposes, among other things, to create a conditionality between cooperation on readmission with third countries and the issuance of visas to their nationals. This conditionality was legally established in the 2019 revision of the Visa Code Regulation. The revision (discussed here) states that, given their “politically sensitive nature and their horizontal implications for the Member States and the Union”, such provisions will be triggered once implementing powers are conferred to the Council (following a proposal from the Commission).

 

What do these measures entail? We know that they can be applied in bulk or separately. Firstly, EU consulates in third countries will not have the usual leeway to waive some documents required to apply for visas (Art. 14(6), visa code). Secondly, visa applicants from uncooperative third countries will pay higher visa fees (Art. 16(1) visa code). Thirdly, visa fees to diplomatic and service passports will not be waived (Art. 16(5)b visa code). Fourthly, time to take a decision on the visa application will be longer than 15 days (Art. 23(1) visa code). Fifthly, the issuance of multi-entry visas (MEVs) from 6 months to 5 years is suspended (Art. 24(2) visa code). In other words, these coercive measures are not aimed at suspending visas. They are designed to make the procedure for obtaining a visa more lengthy, more costly, and limited in terms of access to MEVs.

 

Moreover, it is important to stress that the revision of the Visa Code Regulation mentions that the Union will strike a balance between “migration and security concerns, economic considerations and general external relations”. Consequently, measures (be they restrictive or not) will result from an assessment that goes well beyond migration management issues. The assessment will not be based exclusively on the so-called “return rate” that has been presented as a compass used to reward or blame third countries’ cooperation on readmission. Other indicators or criteria, based on data provided by the Member States, will be equally examined by the Commission. These other indicators pertain to “the overall relations” between the Union and its Member States, on the one hand, and a given third country, on the other. This broad category is not defined in the 2019 revision of the Visa Code, nor do we know what it precisely refers to.

 

What do we know about this linkage? The idea of linking cooperation on readmission with visa policy is not new. It was first introduced at a bilateral level by some member states. For example, fifteen years ago, cooperation on redocumentation, including the swift delivery of laissez-passers by the consular authorities of countries of origin, was at the centre of bilateral talks between France and North African countries. In September 2005, the French Ministry of the Interior proposed to “sanction uncooperative countries [especially Morocco, Tunisia and Algeria] by limiting the number of short-term visas that France delivers to their nationals.” Sanctions turned out to be unsuccessful not only because of the diplomatic tensions they generated – they were met with strong criticisms and reaction on the part of North African countries – but also because the ratio between the number of laissez-passers requested by the French authorities and the number of laissez-passers delivered by North African countries’ authorities remained unchanged.  

 

At the EU level, the idea to link readmission with visa policy has been in the pipeline for many years. Let’s remember that, in October 2002, in its Community Return Policy, the European Commission reflected on the positive incentives that could be used in order to ensure third countries’ constant cooperation on readmission. The Commission observed in its communication that, actually, “there is little that can be offered in return. In particular visa concessions or the lifting of visa requirements can be a realistic option in exceptional cases only; in most cases it is not.” Therefore, the Commission set out to propose additional incentives (e.g. trade expansion, technical/financial assistance, additional development aid).

 

In a similar vein, in September 2015, after years of negotiations and failed attempt to cooperate on readmission with Southern countries, the Commission remarked that the possibility to use Visa Facilitation Agreements as an incentive to cooperate on readmission is limited in the South “as the EU is unlikely to offer visa facilitation to certain third countries which generate many irregular migrants and thus pose a migratory risk. And even when the EU does offer the parallel negotiation of a visa facilitation agreement, this may not be sufficient if the facilitations offered are not sufficiently attractive.”

 

More recently, in March 2018, in its Impact Assessment accompanying the proposal for an amendment of the Common Visa Code, the Commission itself recognised that “better cooperation on readmission with reluctant third countries cannot be obtained through visa policy measures alone.” It also added that “there is no hard evidence on how visa leverage can translate into better cooperation of third countries on readmission.”

 

Against this backdrop, why has so much emphasis been put on the link between cooperation on readmission and visa policy in the revised Visa Code Regulation and later in the New Pact? The Commission itself recognised that this conditionality might not constitute a sufficient incentive to ensure the cooperation on readmission.

 

To reply to this question, we need first to question the oft-cited reference to third countries’ “reluctance”[n1] to cooperate on readmission in order to understand that, cooperation on readmission is inextricably based on unbalanced reciprocities. Moreover, migration, be it regular or irregular, continues to be viewed as a safety valve to relieve pressure on unemployment and poverty in countries of origin. Readmission has asymmetric costs and benefits having economic social and political implications for countries of origin. Apart from being unpopular in Southern countries, readmission is humiliating, stigmatizing, violent and traumatic for migrants,[n2] making their process of reintegration extremely difficult, if not impossible, especially when countries of origin have often no interest in promoting reintegration programmes addressed to their nationals expelled from Europe. 

 

Importantly, the conclusion of a bilateral agreement does not automatically lead to its full implementation in the field of readmission, for the latter is contingent on an array of factors that codify the bilateral interactions between two contracting parties. Today, more than 320 bilateral agreements linked to readmission have been concluded between the 27 EU Member States and third countries at a global level. Using an oxymoron, it is possible to argue that, over the past decades, various EU member states have learned that, if bilateral cooperation on readmission constitutes a central priority in their external relations (this is the official rhetoric), readmission remains peripheral to other strategic issue-areas which are detailed below. Finally, unlike some third countries in the Balkans or Eastern Europe, Southern third countries have no prospect of acceding to the EU bloc, let alone having a visa-free regime, at least in the foreseeable future. This basic difference makes any attempt to compare the responsiveness of the Balkan countries to cooperation on readmission with Southern non-EU countries’ impossible, if not spurious.

 

Today, patterns of interdependence between the North and the South of the Mediterranean are very much consolidated. Over the last decades, Member States, especially Spain, France, Italy and Greece, have learned that bringing pressure to bear on uncooperative third countries needs to be evaluated cautiously lest other issues of high politics be jeopardized. Readmission cannot be isolated from a broader framework of interactions including other strategic, if not more crucial, issue-areas, such as police cooperation on the fight against international terrorism, border control, energy security and other diplomatic and geopolitical concerns. Nor can bilateral cooperation on readmission be viewed as an end in itself, for it has often been grafted onto a broader framework of interactions.

 

This point leads to a final remark regarding “return sponsorship” which is detailed in Art. 55 of the proposal for a regulation on asylum and migration management. In a nutshell, the idea of the European Commission consists in a commitment from a “sponsoring Member State” to assist another Member State (the benefitting Member State) in the readmission of a third-country national. This mechanism foresees that each Member State is expected to indicate the nationalities for which they are willing to provide support in the field of readmission. The sponsoring Member State offers an assistance by mobilizing its network of bilateral cooperation on readmission, or by opening a dialogue with the authorities of a given third country where the third-country national will be deported. If, after eight months, attempts are unsuccessful, the third-country national is transferred to the sponsoring Member State. Note that, in application of Council Directive 2001/40 on mutual recognition of expulsion decisions, the sponsoring Member State may or may not recognize the expulsion decision of the benefitting Member State, just because Member States continue to interpret the Geneva Convention in different ways and also because they have different grounds for subsidiary protection. 

 

Viewed from a non-EU perspective, namely from the point of view of third countries, this mechanism might raise some questions of competence and relevance. Which consular authorities will undertake the identification process of the third country national with a view to eventually delivering a travel document? Are we talking about the third country’s consular authorities located in the territory of the benefitting Member State or in the sponsoring Member State’s? In a similar vein, why would a bilateral agreement linked to readmission – concluded with a given ‘sponsoring’ Member State – be applicable to a ‘benefitting’ Member State (with which no bilateral agreement or arrangement has been signed)? Such territorially bounded contingencies will invariably be problematic, at a certain stage, from the viewpoint of third countries. Additionally, in acting as a sponsoring Member State, one is entitled to wonder why an EU Member State might decide to expose itself to increased tensions with a given third country while putting at risk a broader framework of interactions.

 

As the graph shows, not all the EU Member States are equally engaged in bilateral cooperation on readmission with third countries. Moreover, a geographical distribution of available data demonstrates that more than 70 per cent of the total number of bilateral agreements linked to readmission (be they formal or informal[n3]) concluded with African countries are covered by France, Italy and Spain. Over the last decades, these three Member States have developed their respective networks of cooperation on readmission with a number of countries in Africa and in the Middle East and North Africa (MENA) region.

 

 

Given the existence of these consolidated networks, the extent to which the “return sponsorship” proposed in the Pact will add value to their current undertakings is objectively questionable. Rather, if the “return sponsorship” mechanism is adopted, these three Member States might be deemed to act as sponsoring Member States when it comes to the expulsion of irregular migrants (located in other EU Member States) to Africa and the MENA region. More concretely, the propensity of, for example, Austria to sponsor Italy in expelling from Italy a foreign national coming from the MENA region or from Africa is predictably low. Austria’s current networks of cooperation on readmission with MENA and African countries would never add value to Italy’s consolidated networks of cooperation on readmission with these third countries. Moreover, it is unlikely that Italy will be proactively “sponsoring” other Member States’ expulsion decisions, without jeopardising its bilateral relations with other strategic third countries located in the MENA region or in Africa, to use the same example. These considerations concretely demonstrate that the European Commission’s call for “solidarity and fair sharing of responsibility”, on which its “return sponsorship” mechanism is premised, is contingent on the existence of a federative Union able to act as a unitary supranational body in domestic and foreign affairs. This federation does not exist in political terms.

 

Beyond these practical aspects, it is important to realise that the cobweb of bilateral agreements linked to readmission has expanded as a result of tremendously complex bilateral dynamics that go well beyond the mere management of international migration. These remarks are crucial to understanding that we need to reflect properly on the conditionality pattern that has driven the external action of the EU, especially in a regional context where patterns of interdependence among state actors have gained so much relevance over the last two decades. Moreover, given the clear consensus on the weak correlation between cooperation on readmission and visa policy (the European Commission being no exception to this consensus), linking the two might not be the adequate response to ensure third countries’ cooperation on readmission, especially when the latter are in position to capitalize on their strategic position with regard to some EU Member States.

 

 

Conclusions  

 

This brief reflection has highlighted a trend which is taking shape in the Pact and in some of the measures proposed by the Commission in its 2020 package of reforms. It has been shown that the proposals for a pre-entry screening and the 2020 amended proposal for enhanced border procedures are creating something we could label as a ‘lower density’ European Union territory, because the new procedures and arrangements have the purpose of restricting and limiting access to rights and to jurisdiction. This would happen on the territory of a Member State, but in a place at or close to the external borders, with a view to confining migration and third country nationals to an area where the territory of a state, and therefore, the European territory, is less … ‘territorial’ than it should be: legally speaking, it is a ‘lower density’ territory.  

 

The “seamless link between asylum and return” the Commission aims to create with the new border procedures can be described as sliding doors through which the third country national can enter or leave immediately, depending on how the established fast-track system qualifies her situation. 

 

However, the paradox highlighted with the “return sponsorship” mechanism shows that readmission agreements or arrangements are no panacea, for the vested interests of third countries must also be taken into consideration when it comes to cooperation on readmission. In this respect, it is telling that the Commission never consulted third states on the new return sponsorship mechanism, as if their territories were not concerned by this mechanism, which is far from being the case. For this reason, it is legitimate to imagine that the main rationale for the return sponsorship mechanism may be another one, and it may be merely domestic. In other words, the return sponsorship, which transforms itself into a form of relocation after eight months if the third country national is not expelled from the EU territory, subtly takes non-frontline European Union states out of their comfort-zone and engage them in cooperating on expulsions. If they fail to do so, namely if the third-country national is not expelled after eight months, non-frontline European Union states are as it were ‘forcibly’ engaged in a ‘solidarity practice’ that is conducive to relocation.

 

Given the disappointing past experience of the 2015 relocations, it is impossible to predict whether this mechanism will work or not. However, once one enters sliding doors, the danger is to remain stuck in uncertainty, in a European Union ‘no man’s land’ which is nothing but another by-product of the fortress Europe machinery. 

 

Barnard & Peers: chapter 26

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

Photo: asylum seekers arriving at Lesbos, by Ggia - Own work, via WikicommonsCC BY-SA 4.0

 

* College of Europe, Warsaw, Poland.

** European University Institute, San Domenico di Fiesole, Italy. Luisa Marin acknowledges funding from the European Union’s Horizon 2020 research and innovation programme, Marie Skłodowska-Curie grant agreement No 891762: “Controlling Escapes from Law. Re-designing accountability in the externalisation of migration control policies”.

 

While the introduction and the concluding remarks are common, sections a) and b) have been written by Luisa Marin, and section c) by Jean-Pierre Cassarino. Both Authors are affiliated to ADIM, Accademia ‘Diritto e Migrazioni’, of the University of Tuscia. The usual disclaimer applies.

 

 

[n1] For a critical approach to the use and abuse of the notion of “reluctance” in the West, see A. Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism”, International Organization, 2004, 58(2), pp. 239-275; J.-P. Cassarino, “Beyond the Criminalisation of Migration: A Non-Western Perspective”, International Journal of Migration and Border Studies, 2018 4(4), pp. 397–411; M. Cebeci, Deconstructing "Ideal Power Europe": The EU and the Arab Change, 2019, London: Lexington Books.

 

[n2] Among many others, see U. Von Lersner, Th. Elbert and F. Neuner, “Mental health of refugees following state-sponsored repatriation from Germany”, BMC Psychiatry2008 8:88. L. Schuster and N. Majidi, “Deportation stigma and re-migration”, Journal of Ethnic and Migration Studies, 2015 41(4): 635–652. J. Alpes, Ch. Blondel, N. Preiss and M. Sayos Monras, “Post-deportation risks for failed asylum-seekers”, Forced Migration Review, 2017 54.

 

[n3] On the informalization of agreements linked to readmission at bilateral and supranational levels, see J.-P. Cassarino, “Informalising Readmission Agreements in the EU Neighbourhood”, The International Spectator, 2007, 42 (2): 179-196, J.-P. Cassarino, “Informalizing EU Readmission Policy” In A. Ripoll Servent and F. Trauner (eds.), The Routledge Handbook of Justice and Home Affairs Research. 2018, London: Routledge, pp. 83-98. On its implications for access to fundamental rights, see M. Giuffré, The Readmission of Asylum Seekers under International Law. 2020, Oxford: Hart, pp. 160-170. See also, S. Carrera, Implementation of EU Readmission Agreements: Identity Determination Dilemmas and the Blurring of Rights. 2016, Heidelberg: Springer International Publishing.

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