EU Asylum Law Research Articles

Multiple sources of right to an effective remedy in EU migration and asylum law: Towards common standards on judicial protection?

Along with the progressive insertion of the right to an effective remedy in instruments of secondary legislation in different sub-areas of EU migration and asylum law, the question of interplay between the right to an effective remedy guaranteed at the level of primary law (Article 47 of the EU Charter of Fundamental Rights) and secondary law has been gaining more and more importance for the determination of boundaries between matters covered by EU law and those governed by national legislation. The present contribution will seek to examine the interactions between Article 47 of the Charter and the relevant provisions of secondary law in the field of migration and asylum. It will demonstrate that despite dense codification of the right to an effective remedy in different instruments of secondary law, Article 47 of the Charter continues to play a significant role in the case law of the Court of Justice of the EU concerning procedural guarantees conferred upon migrants and asylum seekers. A particular emphasis will be put on the analysis of recent case law developments that reveal the potential of Article 47 of the Charter to serve as a main tool for readjustment of national procedural rules.

Mapping EU Externalisation Devices through a Critical Eye

Abstract The purpose of this article is to scope, map and critique EU externalisation devices in asylum law. The article first evaluates the internal dimension of externalisation in EU asylum law, with the Dublin system being an internal device of externalisation supported by the securitisation of asylum law. The article then maps EU border externalisation manifested in border violence and critically discusses judicial responses to it. Finally, the article scrutinises EU externalisation beyond its borders, as realised by the outsourcing of asylum responsibilities or border controls to non-European countries. EU externalisation is here studied in a multi-faceted way, taking stock of devices from across the spectrum of EU asylum law. It is argued that EU externalisation is wholly underpinned by a neo-colonial narrative of emergency and repulsion that is harmful to refugees as it does not sit comfortably with principles of refugee law or EU and international human rights law.

‘Judicial Passivism’ in EU Migration and Asylum Law Revisited

‘Judicial Passivism’ in EU Migration and Asylum Law Revisited

“Systemic Violations” in EU Asylum Law: Cover or Catalyst?

AbstractThe concept of a systemic fundamental rights violation refers to a particular set of violations that are both widespread and embedded, so their reoccurrence may be assumed to be likely. It takes on at least two distinctive roles in EU asylum law and policy. One role is linked with the functioning of the principle of mutual trust, a principle that obliges Member States to recognise each others’ systems and decisions, presuming them to be legal, apart from exceptional cases. In this context, the principle sets the standard from when the presumption of legality is rebutted. In its conceptualisation and application, it is in tension with European human rights law, and, for a period, set up frictions between the CJEU (in NS/ME and Opinion 2/13) and the ECtHR (in MSS and Tarakhel). This tale of judicial frictions is not merely of historical interest. Its legacy is, we conclude, a thin concept of systemic breach, characterised by an over-individualized approach to assessing the human rights risks. The second role for the concept of systemic violations relates to embedded violations, including at the EU’s external borders. We demonstrate the utility of this other invocation, in particular as systemic breaches often signal deeper rule of law issues both within particular national systems and embedded within the Common European Asylum System (CEAS). We illustrate that the CEAS itself brings about systemic human rights violations. Identifying and responding to the “systemic” in asylum increasingly relates to the credibility of the EU as a Union based on the respect for fundamental rights and the rule of law.

Questioning legal personhood: a critique of the legal and jurisprudential underpinnings of EU immigration and asylum law

AbstractUsing the lens of immigration and asylum, this Article develops a new understanding of legal personhood on the basis of equal human dignity, as the interface between legal personhood, equality and human rights, in order to address the dual-faceted and opposing reality of immigrants and asylum claimants in relation to their equality as humans in the order of nature and their inequality within the social/political order of Europe, where they are subjected to a constant process of depersonification and reification. This reformulated approach to legal personhood not only seeks to remove the debasement and dehumanisation that has come to characterise European Union (EU) immigration and asylum law but also intends to address the limitations of the Common European Asylum System (CEAS) as a valid platform for translating the EU’s own self-proclaimed commitment to human rights into justiciable normative claims.

Complementary Pathways: Pledging Protection at the Edges of EU Law

Abstract In September 2020, the EU Commission published the New Pact on Migration and Asylum in order to offer ‘fresh start’ for EU migration law and policy. Complementary pathways for admission to EU territory were among the proposals set out in the Pact. This article takes stock of the different measures suggested by the Commission to create such complementary pathways. It suggests that the aim of creating complementary pathways remains to a large extent declaratory, it is devised in discretionary operational measures with loose grounding in EU law, and reproduces systemic deficiencies that have characterized EU asylum law in the past decades.

MIGRATION AND PUBLIC INTERNATIONAL LAW

Starting from the perception that international migration is a process that leads from the State of origin through transit countries and perhaps even the high sea up to the entry to the State of destination this paper discusses the impact of public international law on the various stages of migration. Relevant are in this respect the rules of customary and treaty law, but also the provisions of the Global Compact for Safe, Orderly and Regular Migration of 2018 which try to create a comprehensive frame-work for the multidimensional phenomenon of international migration. These provisions do not have the legal status of hard, i.e. legally binding law, but still intent to govern the said process of migration. On the first stage the right to leave the country of origin is decisive. On the second stage the rules established for the protection of the migrants’ safety are addressed and exemplified by the existing rules for the rescue of lives in danger on the sea. At the third stage the rules for entering the country of destination become crucial. Actually here the territorial sovereignty of the State is decisive, but sovereignty is not absolute but bound by relevant customary international law as the prohibition of non-refoulement or by treaty obligations entered by the State itself. In this context the EU asylum law and the policy of pushbacks is dealt with. Issues of integration and acquisition of nationality are likewise tackled. Finally the basic view of the Global Compact at migration as a necessity and cornerstone of sustainable development leading to overemphasizing the benefits of migration vis-à-vis the difficulties of many States, especially with irregular migration, is critically assessed. Keywords: Global Compact for Migration – State sovereignty – right to leave and enter a country – smuggling of migrants – non-refoulement – pushbacks

“Crisis Rhetoric” and Derogations from the AFSJ: Is EU Asylum Policy Discriminatory or does its Implementation Reflect the Rule of Law?

This paper analyses the language of EU leaders and its influence on the implementation of EU asylum law by triggering derogations, exceptions and amendments. It compares this process with regards to the 2015 refugee crisis, the Belarus border crisis and the current Ukrainian crisis to portray how the reaction to similar facts differs and, hence, to show how EU asylum policy suffers from a lack of rule of law. As the crisis in Ukraine unfolds, one can observe how strongly the narrative of EU leaders differs regarding these refugees compared to those from, e.g., Syria and Afghanistan in previous years. It shows a “U-turn” of the EU’s agenda since 2015. Hence, it has become clear that the problem lies less in sufficient contingencies for a sudden influx, but rather a feeling – or lack – of solidarity. From a legal perspective, there is no distinction between the responsibility for asylum applicants based on their nationality. To the contrary, refugee protection builds on the prohibition of discrimination. This has potentially negative implications for the rule of law in the EU. Hence, this paper investigates how EU leaders “talk” their way into applying or not applying EU law and even create EU law at their will simply by describing the arrivals as a security threat, a “hybrid attack” or instead as neighbors in need, as “family”.
 Received: 31 July 2022 Accepted: 13 October 2022

Lost in Translation? The Promises and Challenges of Integrating Empirical Knowledge on Migrants’ Vulnerabilities into Legal Reasoning

AbstractThe concept of “vulnerability” has become all-pervasive in EU asylum law and the ECtHR case law on asylum seekers and migrants, where it has acquired various legal meanings and functions. But many controversies remain on the legal nature, definition, and consequences of “vulnerability.” Based on lessons learned in the process of establishing the overall research design of the Horizon 2020 VULNER project and coordinating its implementation, this article identifies the contribution that anthropological knowledge can bring to ongoing legal debates and reflects on the conceptual and practical challenges that emerge when engaging in such an endeavor.First, the article shows the potential of anthropological research methods and concepts to shed light on the experiences of vulnerability as they are lived by migrants, and to reveal and question the underlying social and political dynamics behind the increased success of vulnerability in legal reasoning. Second, it argues that anthropology can only bring a useful contribution to legal debates on “vulnerability” if the knowledge it produces is adequately translated into legal reasoning—which requires acknowledging the differences between the goals of anthropological analyses, which are all-encompassing and seek to depict human experiences in all their complexities, and legal conceptualizations, which require establishing clearly defined notions that can be operationalized in—relatively—certain ways by decision-makers on the ground and that allow them to strike a balance between competing interests.

The Juridification of ‘Vulnerability’ through EU Asylum Law: The Quest for Bridging the Gap between the Law and Asylum Applicants’ Experiences

‘Vulnerability’ is flooding EU asylum law. Based on the analysis of the ECtHR’s case-law in deportation cases, the EU Directives’ provisions towards ‘vulnerable’ asylum applicants, and their implementation in the domestic legislations and practices of two EU member states that were studied as part of the VULNER project (Belgium and Italy), this contribution establishes a typology of the various legal and bureaucratic functions that ‘vulnerability’ has received in the EU. It also reflects on the ‘juridification’ trend at play, the implementation challenges that have emerged as a result, and how they are currently being addressed in the EU.

What Is Wrong with Solidarity in EU Asylum and Migration Law?

In this article, we explore why solidarity has not worked according to expectation in EU migration and asylum law and why it is unlikely to work in the future. First, we consider discourses of burden-sharing and solidarity in EU law from the 1990s up to the Lisbon Treaty in 2009 to identify emergent path dependencies. This period saw the introduction of primary law provisions on solidarity, such as Article 80 TFEU, as French and Dutch electorates had rejected a European constitution. Second, we perform an analysis of Article 80 through the conceptual history of solidarity, in particular, the dominant Roman law tradition of obligation in solidum and the French tradition of solidarism. We submit that the term ‘solidarity’ is actually a misnomer: already on structural grounds, Article 80 should be read as an alliance clause, countering a threat of irregular immigration. Third, we find that the practice under Article 80 as it develops during the period between 2015 and the 2020 European Commission Pact on Migration and Asylum corroborates this finding. Overall, we find that the concept of solidarity in EU asylum and migration law engenders outcome expectations that it cannot deliver as the defence alliance it is.

Czy Trybunał otworzył uchodźcom bramę do Europy? Analiza wyroku Trybunału Sprawiedliwości Unii Europejskiej w sprawie EZ przeciwko Republice Federalnej Niemiec (C-238/19)

In the judgment in question, the Court of Justice of the European Union (CJEU) for the first time ever carried out such broad interpretation of Article 9 (2) (2) (e) of Directive 2011/95/EU in the context of non-formalized refusal to perform military service by a young Syrian who escaped from his country of origin. The paper analyses the impact of the CJEU judgment on the functioning of the guarantee of the right to conscientious objection to military service within the EU asylum law. It also asks two key questions. First, in the light of the analysed judgment, should any potential Syrian conscript who in reality does not support the government (non-opportunist) and who evades military service be granted protection? Secondly, do all Syrian conscripts who join the army make themselves subject in the future to automatic exclusion from protection?

Addressing a Crisis through Law: EU Emergency Legislation and its Limits in the Field of Asylum

The Common European Asylum System (CEAS) has been in a situation of protracted crisis. This has hampered its process of reform and has urged the European Commission to launch a new Pact on Migration and Asylum, in order to offer a ‘fresh start’ to ‘build a system that manages and normalises migration for the long term.’ While an emergency-driven approach has surfaced as a mandatory route for the future of the CEAS, what does constitute a situation of emergency in EU asylum law? In an attempt to unpack the evolution and understanding of the concept of ‘emergency’ in EU asylum law, the paper argues that the parameters to determine the existence of a situation of emergency have been politically controversial and purposefully left open-ended. This has consequences at the level of EU legislative responses. In particular, the paper will illustrate the potential and limits of the EU emergency legislation in the field of asylum and aims to explain how this legislation impacts both the ordinary legislation at the regulatory level as well as the legislative autonomy of the Member States in situations of emergency. Ultimately, the paper discusses whether the recently proposed legislative instruments, which are designed to address situations of crisis in the field of asylum, are well suited for this role.

Questioning legal personhood in EU migration and asylum law

Questioning legal personhood in EU migration and asylum law

Solidarity as Normative Rationale for Differential Treatment: Common but Differentiated Responsibilities from International Environmental to EU Asylum Law?

Solidarity as Normative Rationale for Differential Treatment: Common but Differentiated Responsibilities from International Environmental to EU Asylum Law?

The Evolution of EU Law on Refugees and Asylum

In this contribution, we explore evolution and stasis in EU asylum law and policy. We identify two tensions at the heart of the CEAS, between the commitment to protection and deflection of protection obligations, and between internal mobility within the EU and the immobilization of asylum seekers and refugees. We note the role of these foundational tensions in generating and exacerbating the ‘refugee crisis’ of 2015/16. This chapter is premised on a widely-shared understanding of the role of EU asylum policy in that crisis, namely that by illegalizing the travel of asylum seekers and refugees in search of protection, it contributes to the dangerous mass flight, which in turn generates humanitarian and political crises. We then analyse four key dimensions of EU asylum policy in light of these tensions: access to asylum, responsibility-allocation, legislative harmonisation, and institutionalised practical co-operation. Across these four fields, we identify the limits of EU law, and its general stasis, in spite of changes in Treaty telos, law-making processes, and EU enlargement. We briefly consider the role of the CJEU, still very much in the shadow of the ECtHR in asylum, in spite of its numerous rulings on the CEAS. Overall, we demonstrate its fairly minimalist approach in this area, avoidance of controversial cases by dubious use of inadmissibility findings, and failure to catalyse policy changes. Against this backdrop of legislative, political and judicial caution and inertia, we identify two key trends: a move towards greater institutional cooperation, including through the creation of a dedicated agency, the European Asylum Support Office (EASO), and a general flight from law in this policy field. We conclude by considering the likely impact of these trends on EU asylum law.

The fundamental rights of unaccompanied minors in EU asylum law: a dubious trade-off between control and protection

The current Common European Asylum System (CEAS) includes several measures to protect unaccompanied minors. New CEAS proposals launched in 2016 continued to expand some of the existing safeguards but also introduced a more punitive approach towards asylum-seekers, sanctioning and preventing secondary movements and possible abuse of the asylum system. These measures need to be viewed against the backdrop of the so-called ‘refugee crisis’, creating a policy climate more focussed on control and deterrence. This equally affects unaccompanied minors, who struggle to enjoy the rights granted to them, as EU member states move towards an increasingly restrictive interpretation of the CEAS.

No Solidarity without Loyalty: Why Do Member States Violate EU Migration and Asylum Law and What Can Be Done?

Abstract The aim of this paper is twofold. First, it will display an ever-increasing phenomenon of Member States’ infringements of EU migration and asylum law as an instance of the violation of the principle of solidarity and discuss the reasons behind it. It will be suggested that EU inter-state solidarity is just as much about respecting EU law, as it is about helping each other, as the latter cannot subsist without the former. Second, the paper will consider whether the existing mechanisms of reducing the number of violations are sufficient and discuss the new mechanisms that are being developed—particularly the rule of law conditionality and other conditionality instruments. When addressing the reasons behind the frequent violations, the text will identify two groups of reasons, the first group being applicable to the whole of EU law, and the second one specifically to EU migration and asylum law. In this context, Member States’ violations will be construed as the process of political withdrawal or retrenchment from certain parts of the commonly adopted EU migration and asylum law. This will be explained by relying on the notion of “spillback” or disintegration (as opposed to further European integration based on the neofunctionalist concept of “spillover” effect into more policy areas) and on the concepts of “exit” and “voice” conceived by Albert Hirschman and developed further by Joseph Weiler in his seminal work “The Transformation of Europe”.

Waiting (and Paying) for Godot: Analyzing the Systemic Consequences of the Solidarity Crisis in EU Asylum Law

Abstract What is left of the principle of solidarity in the context of EU asylum law? The aim of this article is to analyze the follow-up of the solidarity crisis the EU has experienced with the failure of relocation schemes. Relocation schemes have tried to alleviate the consequences of the so-called migration crisis of 2015–2016, but did not prove to be successful, because of the low relocation rates, in addition to open contestation by states of the Visegrad group. Against the background of the stalemate of the reform of the Dublin Regulation, the article analyzes ‘measures’ adopted after the failure of relocation schemes, focusing in particular on administrative arrangements to counter secondary movements and ‘ad hoc’ temporary disembarkation schemes. Both measures are aiming at fixing longstanding questions (e.g., limiting secondary movements, providing safe disembarkation for irregular migrants): in the first case, States proceed at bilateral level with arrangements creating fast-track returns and stopping secondary movements; in the second case, the EU is trying to support states’ arrangements for disembarkation of migrants after SAR operations. The article shows that, while reforms of legislative instruments are not progressing, Member States and, to some extent, also EU institutions are going down the lane of ‘operational and informal arrangements’, which are ‘bricolage solutions’ to counterbalance undesired effects of the status quo, while waiting for structural solutions that are necessary but not in sight. The article discusses the dangers of such a trend toward informal operational solutions, as a challenge to the EU as a system of governance based on the rule of law.

EXTREME MATERIAL POVERTY AS A NEGATIVE PREREQUISITE FOR THE TRANSFER OF AN APPLICANT FOR INTERNATIONAL PROTECTION TO THE COMPETENT MEMBER STATE AND FOR THE REJECTION OF AN APPLICATION FOR THE GRANT OF REFUGEE STATUS AS BEING INADMISSIBLE


 The essential measures for a common European asylum system adopted by the EU institutions include the Regulation (EU) No 604/2013 and the Directive 2013/32/EU. These acts relate to the various stages of the functioning of the common European asylum system, however, there may be a risk of a violation of the fundamental rights of applicants as set out in the Charter of Fundamental Rights of the EU, including the prohibition of inhuman or degrading treatment (Article 4 of the Charter), at both stages. Such a risk may arise as a result of deficiencies in asylum systems of the Member States. If these deficiencies are to fall within the scope of Article 4 of the Charter, they must attain a particularly high level of severity, which depends on all the circumstances of the case. An example of attaining this particularly high level of severity is the situation of extreme material poverty. As acts of the EU asylum law do not contain the terms “particularly high level of severity” and “extreme material poverty” and all the more they do not define them, guidelines on how to interpret and apply Article 4 of the Charter in the context of the common European asylum system should be sought in the case law of the Court of Justice of the EU. Therefore, the aim of the article is to explore and attempt to generalise and develop the basis and the criteria indicated by the CJEU for assessing the actual nature of deficiencies in the asylum system of the Member State in question from the point of view of the prohibition laid down in Article 4 of the Charter, with particular emphasis on the criterion of a particularly high level of severity and the situation of extreme material poverty which meets this criterion.