THE THIRD CIRCLE: EU ASYLUM AND REFUGEE STATUS LAW

1. TREATY PROVISIONS ON ASYLUM AND REFUGEE STATUS

1.1 Article 78 TFEU envisages a common EU policy on:

a) asylum in respect of persecution;

b) subsidiary protection in respect of harm; and

c) temporary protection in respect of an emergency sudden and massive

displacement of peoples;

all with a view to offering appropriate status to any third-country national requiring

international protection and ensuring compliance with the principle of non-refoulement.1

1.2 This EU asylum policy must not contravene the requirements of the 1951 Refugee

Convention (as amended) and any other relevant treaties. The EU legislator is given power to

adopt EU secondary laws on:

1 See Art 33(1) of the 1951 Geneva Convention on Refugees:

'No contracting State shall expel or return ("refouler") a refugee in any manner whosoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.'

See also R v Secretary of State for the Home Department, ex p Adan [2001] 2 AC 477, holding that the principle of non-refoulement applied to prevent a transfer of an asylum seeker within the EU so as to allow the Member State of entry to consider his asylum claim. The principle of non-refoulment applied on the basis that, at the time, the Member States in question (France and Germany), in contrast to the UK, did not recognise the principle that persecution by private non-State bodies could amount to persecution for the purposes of an asylum claim. See now H Battjes, 'In search of a fair balance: the absolute character of the prohibition of refoulement under article 3 ECHR reassessed' (2009) 22 Leiden Journal of International Law 583.

a) an EU-wide standard on 'asylum status' for third-country nationals2;

b) an EU-wide standard on 'subsidiary protection status' for third country nationals

who, without obtaining European asylum, are in need of international protection;

c) a common system of temporary protection for displaced persons in the event of a

massive inflow;

d) common procedures for the granting and withdrawing of EU asylum or subsidiary

protection status;

e) criteria and mechanisms for determining which Member State is responsible for

considering an application for asylum or subsidiary protection;

f) minimum standards concerning the conditions for the reception of applicants for

asylum or subsidiary protection;

g) partnership and cooperation with third countries for the purpose of managing

inflows of people applying for asylum or subsidiary or temporary protection. The Council

may also adopt appropriate provisional measures for the benefit of a Member State in the

event of a sudden emergency inflow of people into it.

2. THE EU CHARTER OF FUNDAMENTAL RIGHTS AND ASYLUM AND INTERNATIONAL

PROTECTION

2 The Lisbon Treaty Protocol 24 envisages that asylum will not be able to be claimed – other than in the most exceptional circumstances involving a complete breakdown of democratic and fundamental rights protection – from one Member State against another. As the Court of Justice notes in Case C-306/09 Criminal Proceedings against IB, 21 October, [2010] ECR I-nyr at para 44:

“Protocol No 24 annexed to the TFEU provides inter alia that, given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States are to be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters.”

2.1 Article 18 of the EU Charter of Fundamental Rights (“CFR”) is a new provision in EU law,

expressly guaranteeing the right to asylum

with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).

2.2 Article 19(1) CFR prohibits 'collective expulsions' in the same terms as Article 4 of Protocol

4 to the ECHR. It is intended to underline the point that any expulsion decision has to be

made on an individual and individualised basis; and in particular, general expulsion measures

pronounced on the basis of particular ethnicity (for example, Roma) or nationality cannot

lawfully be pronounced. Article 19(2) CFR – in accordance with the established Article 3

case law of the European Court of Human Rights3 – asserts that

no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

3. SECONDARY EU LEGISLATION ON ASYLUM AND REFUGEE STATUS

The Dublin Regulation

3.1 The Dublin (EC) Regulation 343/20034 sets out criteria for determining which Member State

is the responsible State for the purposes of the examination and determination of an asylum

claim made within the territory of the EU, which is not necessarily the State in which the

asylum claim was lodged or made (factors such as family member residence, or the earlier

3 See, eg, Ahmad v United Kingdom (Admissibility) (2010) EHRR SE6; NA v United Kingdom (2009) 48 EHRR 15; Saadi v Italy (2009) 49 EHRR 30; Mamatkulov v Turkey (2005) 41 EHRR 25; Chahal v United Kingdom (1997) 23 EHRR 413; Soering v United Kingdom (1989) 11 EHRR 439.4 [2003] OJ L50/1.

grant of a visa or residence permit come into play first).5 If an asylum application is refused

by the Member State responsible, this refusal binds all Member States.6

3.2 There appears, however, to have been a breakdown in the asylum processing system in

Greece. In MSS v Belgium and Greece 7 the Grand Chamber of the European Court of

Human Rights held – effectively overruling the earlier Strasbourg non-admissibility decision

in KRS v United Kingdom 8 – that there has been a violation by Belgium of Art 3 ECHR

because, by sending an asylum seeker back to Greece under and in terms of the Dublin

Regulation, the Belgian authorities exposed the applicant to risks linked to the deficiencies in

the asylum procedure in that State.9At the time of writing the decision of the CJEU in NS v

Secretary of State for the Home Department, 10 a preliminary reference from the Court of

Appeal of England and Wales, was awaited. The case is one in which an Afghan asylum

seeker is challenging his return from the United Kingdom to Greece. Against this

background, the referring court essentially asks whether, and if so in what circumstances, the

United Kingdom may be required under EU law to assume responsibility for examining

asylum applications itself, even though Greece is primarily responsible for the examinations

under Dublin Regulation No 343/2003. The specific issues raised include, among other

5 See too the European Asylum Support Office Regulation (EU) No 439/2010 [2010] OJ L132/11, which establishes an EU 'centre of expertise' on asylum based at Valletta Harbour in Malta, which is tasked with

'facilitating, coordinating and strengthening practical cooperation among Member States on the many aspects of asylum, so that Member States are better able to provide international protection to those entitled, while dealing fairly and efficiently with those who do not qualify for international protection, where appropriate.'

6 See Case C-19/08 Migrationsverket v Petrosian [2009] ECR I-495.

7 MSS v Belgium and Greece [2011] ECHR 30696/09 (Grand Chamber, 21 January 2011),8 KRS v United Kingdom (2009) 48 EHRR SE89 It should be noted that the Article 6(1) ECHR jurisprudence of the European Court of Human Rights affording a right to due process and a fair hearing is confined to disputes relating to 'civil law' rights and obligations, and does not apply to disputes which the Strasbourg institutions might otherwise characterise as public law matters falling outwith the civil limb of Article 6(1) ECHR, such as disputes in relation to immigration status: Maaouia v France (2001) 33 EHRR 4210 Case C-411/10 NS v Secretary of State for the Home Department. This case has been conjoined with Case C-493/10 ME and Others v Refugee Applications Commissioner and Minister for Justice and Law Reform a preliminary reference the High Court (Ireland)).

things, the scope of the Member State’s obligations to use Art 3(2) of the Dublin Regulation

to process an individual’s asylum claim in circumstances where there is a real risk of

breaches of fundamental rights protected by the CFR, including the right to asylum. The

Advocate General in an Opinion dated 22 September 2011 has suggested that the CJEU make

rulings to the following effect:

(1) A decision made by a Member State under Article 3(2) of the Dublin Regulation (EC)

No 343/2003 on whether to examine a claim for asylum which is not its responsibility

under the criteria set out in Chapter III of the regulation constitutes a measure

implementing European Union law for the purposes of Article 51(1) of the Charter of

Fundamental Rights.

(2) A Member State in which an asylum application has been lodged is obliged to exercise

its right to examine that asylum application under Article 3(2) of the Dublin

Regulation No 343/2003 where transfer to the Member State primarily responsible

under Article 3(1) in conjunction with the provisions contained in Chapter III of the

Regulation would expose the asylum seeker to a serious risk of violation of his

fundamental rights as enshrined in the Charter of Fundamental Rights.

(3) Serious risks of infringements of individual provisions of other EU law provisions

relevant in this are – for example the Receptions Directive 2003/9/EC, the

Qualifications Directive 2004/83/EC or the Procedures Directive 2005/85/EC - which

do not also constitute a violation of the fundamental rights of the asylum seeker to be

transferred are not sufficient, on the other hand, to create an obligation on the part of

the transferring Member State to exercise the right to assume responsibility for the

examination itself under Article 3(2) of the Dublin Regulation No 343/2003.

(4) The obligation to interpret the Dublin Regulation No 343/2003 in a manner consistent

with fundamental rights precludes the operation of any conclusive presumption

according to which the Member State primarily responsible for examining an asylum

application will observe the asylum seeker’s fundamental rights under European Union

law and all the minimum standards laid down in Directives 2003/9, 2004/83 and

2005/85.

(5) The Member States are not barred, on the other hand, from proceeding from the

rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s

human rights and fundamental rights will be observed in the Member State primarily

responsible for his asylum application.

(6) Under Article 52(3) of the Charter of Fundamental Rights it must be ensured that the

protection guaranteed by the Charter in the areas in which the provisions of the Charter

overlap with the provisions of the Convention for the Protection of Human Rights and

Fundamental Freedoms (‘ECHR’) is no less than the protection granted by the ECHR.

Because the extent and scope of the protection granted by the ECHR has been clarified

in the case-law of the European Court of Human Rights, particular significance and

high importance are to be attached to that case-law in connection with the

interpretation of the relevant provisions of the Charter of Fundamental Rights by the

Court of Justice.

(7)  National courts cannot apply any national law which obliges the national courts to

proceed from the conclusive presumption that another Member State is a safe country

in which asylum seekers are not exposed to the risk of expulsion to a persecuting State

which is contrary to the Geneva Convention or with the ECHR. To apply such a

presumption would be incompatible with Article 47 of the Charter of Fundamental

Rights.

(8) The interpretation of Protocol (No 30) on the application of the Charter of

Fundamental Rights of the European Union to Poland and to the United Kingdom has

not produced any findings which could call into question the validity for the United

Kingdom of the provisions of the Charter of Fundamental Rights which are relevant in

the present case.

The Reception Directive

3.3 The Asylum Application (Material Benefits) Directive 2003/9/EC11 (also known as the

'Reception Directive' and in which the UK, but not Ireland, participates) sets out the material

benefits which Member States must provide to any asylum seeker in their territory, and

provides certain procedural protections to the asylum seeker against refusal or restriction of

such benefits. These material benefits should be adequate for the health and subsistence of

any asylum seeker, and include food, clothing and accommodation, as well as access to

health care.12 Access to these benefits may in principle be means-tested. If a first instance

decision on the asylum seeker’s status has not been taken within one year of the application –

and this delay cannot be attributed to the applicant – then Member States must allow the

asylum seeker the possibility of (albeit unequal) access to its labour market. Benefits under

this Directive may be withdrawn for various reasons, including non-compliance by the

applicant with the requirements of the process.

The Qualification Directive

3.4 The Refugee and Subsidiary Protection Directive 2004/83/EC13 (also known as the

'Qualification Directive', and in which the UK and Ireland are each fully participating)

effectively implements, as a matter of EU law,14 the 1951 Geneva Convention on the status of

11 [2003] OJ L31/18.12 See too R (on the application of Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 (HL) on the obligation to provide material assistance to prevent breaches of Art 3 ECHR due to lack of food and shelter.13 [2004] OJ L304/12.14 See Ahmed v United Kingdom [2008] ECHR 31668/05 (Fourth Section, 14 October 2008):

'[The applicant] relied on Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted). The Directive meant Article 3 ECHR had now to be regarded as a civil right within the meaning of Article 6 ECHR. The Directive required Member States of the European Union to give subsidiary protection to a third country national when his removal would infringe Article 3 ECHR and subsidiary protection status entitled that person to a number of rights including access to employment, welfare payments and accommodation. The applicant had been deprived of those benefits. No redress had been provided. ... [T]he Court reiterates that it is not its task to apply directly the level of protection offered in other international instruments. The applicant’s submissions on the basis of Directive 2004/83/EC are outside the scope of its examination of

refugees,15 although a request in one Member State for the grant of refugee status or

subsidiary protection by a national of another Member State does not fall within the scope of

the international protection mechanism established by Directive 2004/83/EC.16

3.5 As well as mirroring the Geneva Convention definition of 'refugee', the Directive allows for

the possibility of subsidiary protection from a real risk of suffering harm if the individual is

returned to the former country of origin or residence from which he has fled. The Directive

sets out the procedure for establishing entitlement to refugee or subsidiary status, with the

onus placed upon the applicant to substantiate his case for such status protection. It

specifically allows for the idea for the acts of persecution to include non-State actors, if it can

be demonstrated that the State, or parties in effective control (of a substantial part) thereof or

international organizations are unable or unwilling to provide protection against the

complained of persecution or harm. The acts of persecution have to be sufficiently serious to

constitute a serious violation of human rights, or adversely to affect the individual in a

similar manner. Article 10 of the Directive expands on the original Geneva criteria of the

grounds or basis for persecution: ‘race’ is said to include ethnicity; ‘religion’ also includes

conscientious non-participation in religious rituals; ‘nationality’ includes cultural, ethnic or

the present application (NA v the United Kingdom (2009) 48 EHRR 15 at paragraph 107).'15 In Case C-31/09 Bolbol v Bevándorlási és Állampolgársági Hivatal, 17 June, [2010] ECR I-nyr, the Grand Chamber observed (at paras 36–38):

'The Directive was adopted on the basis of, inter alia, point (1)(c) of the first subparagraph of Article 63 EC [now Article 78 TFEU] which required the Council of the European Union to adopt measures on asylum, in accordance with the Geneva Convention and other relevant treaties, within the area of minimum standards with respect to the qualifications of nationals of third countries as refugees. … It is apparent from recitals 3, 16 and 17 in the preamble to the Directive that the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and that the provisions of the Directive for determining who qualifies for refugee status and the content thereof were adopted to guide the competent authorities of the Member States in the application of that convention on the basis of common concepts and criteria … The provisions of the Directive must for that reason be interpreted in the light of its general scheme and purpose, while respecting the Geneva Convention and the other relevant treaties referred to in point (1) of the first subparagraph of Article 63 EC. Those provisions must also, as is apparent from recital 10 in the preamble to the Directive, be interpreted in a manner which respects the fundamental rights and the principles recognised in particular by the Charter of Fundamental Rights of the European Union.'

16 See Case C-306/09 Criminal Proceedings against IB, above n 144, at para 45.

religious identity: ‘political opinions’ might be held, but not acted upon; and being part of ‘a

particular social group’ means may include a group constituted by its members’ shared

sexual orientation.17 Further, relevant persecution for the purposes of the Directive may be

founded on the persecutor’s subjective perception of, or attribution of characteristics to, the

persecuted individual, rather than on that individual’s objectively having those

characteristics. Refugee protection may still nonetheless be refused on a variety of grounds,

including:

a) there are serious reasons to believe that the applicant has been guilty of crimes

against humanity or otherwise has acted against the UN principles or has committed other

serious non-political crimes18; or

b) there are reasonable grounds for considering the applicant to be a danger to State

security.

3.6 In terms of 'subsidiary protection', 'serious harm' includes the possibility of the death penalty

or execution, torture or degrading treatment, or serious and individual threat to a civilian’s

life by reason of indiscriminate violence in situations of international or internal armed

conflict. In Elgafaji v Staatssecretaris van Justitie,19 the Grand Chamber of the Court of

Justice went beyond the jurisprudence of the European Court of Human Rights on Article 3

ECHR20 in holding that the requirement that there be in existence a serious and individual

threat to the life or person of the applicant, is not subject to the condition that that applicant

adduce evidence that he or she is specifically targeted by reason of factors particular to his or

her personal circumstances but may, instead, be found to be established where there is shown

to be indiscriminate violence implicating civilians characterising the armed conflict in the

17 See now HJ (Iran) v Home Secretary [2010] 3 WLR 386, [2010] UKSC 31.18 See Joined Cases C-57/09 & C-101/09 Germany v B and D, 9 November, [2010] ECR I-nyr, in which the Grand Chamber holds that mere membership and support of a militant organisation is not sufficient to pray in aid this exemption. Specific evidence of an individual being involved in serious non-political crime against UN principles is necessary.

19 See Case C-465/07 Elgafaji v Staatssecretaris van Justitie [2009] ECR I-921.20 Contrast with the decision of the ECtHR in FH v Sweden (2010) 51 EHRR 42.

territory from which refuge is sought.21 Whereas the rights granted on refugee status in effect

seek the integration of the individual into the home State, the subsidiary protection against

serious harm is envisaged to be more limited and transient pending the return of the

individual to his or her country of origin once the risk of harm has receded, albeit that

refugee status may be withdrawn if there are no longer grounds for fearing persecution on the

basis of which refugee status was accorded.22

3.7 In HM and Others 23 the Upper Tribunal considered whether the situation in Iraq (and in

particular parts of Iraq) was sufficiently severe to give rise to a need for protection under

Article 15(c). It considered a wide variety of evidence and concluded that the current

situation in the parts of Iraq it had regard to was not now sufficiently severe to give rise to a

right of protection under Article 15(c). That decision is currently subject to appeal before the

Court of Appeal.

3.8 By contrast in Yearbook No. KHO: 2010:84 24 the Finnish equivalent of the Court of Appeal

was required to decide whether a person who had claimed asylum in Finland was entitled to

protection in terms of the Directive. Having rejected the Applicant’s claim to be at personal

risk of persecution or a breach of his Article 2 or 3 rights if he were to be returned to Iraq the

21 See also QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620;   971;  [2010] Imm. AR 132 holding that the Qualification Directive was aimed at individuals who needed protection but who did not necessarily qualify under either the Geneva Convention 1949 or the European Convention on Human Rights 1950. Among those were people whose lives or safety, if returned to their home area, would be imperilled by endemic violence. But the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection was not subject to the condition that that applicant adduce evidence that he was specifically targeted by reason of factors particular to his personal circumstances; the existence of such a threat could exceptionally be considered to be established where the degree of indiscriminate violence, as assessed by the competent national authorities, reached such a high level that substantial grounds were shown for believing that a civilian, returned to the relevant country or region, would, solely on account of his presence in that territory, face a real risk of being subject to that threat22 See Joined Cases C-175/08, C-176/08, C-178/08 & C-179/08 Salahadin Abdulla and Others, 2 March, [2010] ECR I-nyr, paras 65–7623 HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) Upper Tribunal (Immigration and Asylum Chamber, 22 September 2010)24 Yearbook No. KHO: 2010:84 Date 30/12/2010 Taltionumero 3963 Registration 2667/1/10 and 2719/1/10

Court went on to consider whether he was entitled to protection under Article 15(c) of the

directive. It ruled that he was. The basis of that decision was that although the Finnish

Appeal Court had concluded that the situation in Iraq had improved significantly and there

was not now the level of violence that there had been in the past, the very high levels of

violence in the past had been prevalent for many years and although this had diminished it

was too soon to say that the diminution was other than temporary. Article 15(c) protection

was therefore an entitlement for the Applicant.

3.9 There would therefore appear to be a difference in the factual assessment and legal

conclusions reached by the Upper Tribunal in an English case and the Finnish Appeal Court.

The CJEU in Elgafaji had held that it was for the domestic courts of member states to reach

conclusions on whether the level of violence in a particular state or area reached the 15(c)

level. Different courts within different Member States would seem therefore to be reaching

diametrically opposed conclusions on broadly the same evidence in respect of whether Iraq

(and in particular Baghdad) meets the criteria for a grant of protection. That difference may

be thought to run counter to a fundamental aim of the Directive, which are to have a common

approach to who is and is not entitled to protection across the EU in order to prevent ‘forum

shopping’. As it currently stands an applicant for asylum from Iraq would be well advised to

make his way to Finland and claim asylum there. It would be surprising if, within a

framework of a common approach and the discouragement of forum shopping, EU law

allowed that the courts in each Member State might independently reach their own

conclusion on the applicability of Article 15(c). That could result in 27 different answers to

whether a person should be granted residence in a member state. It should be recalled that

the Finnish Court said that the reason for 15(c) being applicable was that although looking at

the situation in Baghdad today it did not meet the 15(c) criteria, it had done for so long in the

past that it could not be said that the situation there was other than temporary. If that is the

correct approach each Member State will also require to reach its own view on the stability of

the new improved situation. That does not seem to be a recipe for a stable EU wide approach

to asylum seekers. It may be that a further preliminary reference on this issue to the CJEU

might result in the Luxembourg Court reaching its own view on the stability or otherwise of

Iraq and instructing a common approach on this issue among the courts of the Member

States.

3.10 On the issue of the relationship between Article 15(c) of the Qualifications Directive and

Article 3 ECHR the European Court of Human Rights has recently observed in Sufi and Elmi

v. UK:

“The Court’s assessment

225.  In Elgafaji the ECJ held that article 15(c) would be violated where substantial grounds were shown for believing that a civilian, returned to the relevant country, would, solely on account of his presence on the territory of that country or region, face a real risk of being subjected to a threat of serious harm. In order to demonstrate such a risk he was not required to adduce evidence that he would be specifically targeted by reason of factors particular to his personal circumstances (Elgafaji, cited above, § 35). Nevertheless, the ECJ considered that such a situation would be “exceptional” and the more the applicant could show that he was specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection (Elgafaji, cited above, § 39).

226.  The jurisdiction of this Court is limited to the interpretation of the Convention and it would not, therefore, be appropriate for it to express any views on the ambit or scope of article 15(c) of the Qualification Direction. However, based on the ECJ’s interpretation in Elgafaji, the Court is not persuaded that Article 3 of the Convention, as interpreted in NA, does not offer comparable protection to that afforded under the Directive. In particular, it notes that the threshold set by both provisions may, in exceptional circumstances, be attained in consequence of a situation of general violence of such intensity that any person being returned to the region in question would be at risk simply on account of their presence there.” 25

The Procedures Directive

3.11 The Asylum (Application Procedures) Directive 2005/85/EC 26 (also known as the

'Procedures Directive') sets out in Article 7 the right of an applicant for asylum to remain in

the Member State while her asylum application is being considered, except where the

applicant comes from what is deemed to be a safe third country, whether of origin 27 or

neighbouring it or of transit. A safe country is a democratic one where there is generally and

25 Sufi and Elmi v. UK [2011] ECHR 8319/07 and 11449/07 (Fourth Section, 28 June 2011).26 [2003] OJ L50/1.

consistently no persecution (as defined in Article 9 of the Refugee Directive 2004/83/EC) i.e.

constituting a severe violation of human rights.

Proposals for new EU asylum directives

3.12 It should be noted that at the time of writing the troika of EU asylum directives – the

Reception Directive,28 the Qualification Directive and the Procedures Directive – were

subject to updating proposals from the EU legislator.29 The UK Government had indicated

that it would not opt in to any new Qualification Directive, but as that new proposed directive

contains the provisions for superseding the current qualification directive this has the

potential of leading to different EU law provisions applying at the same time in different

parts of the EU.

4. THE SCHENGEN ACQUIS AND ITS RELEVANCE TO THE UK

27 See, however, Case C-133/06 Parliament v Council [2008] ECR I-3189, in which the Court annulled the provision allowing for the EU to draw up a list of safe countries of origin, leaving it to individual Member States to grapple with this matter.

28 See, e.g., European Parliament legislative resolution of 7 May 2009 on the proposal for a directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers (recast) (COM(2008)0815 – C6-0477/2008 – 2008/0244(COD)) [2010] OJ C/212 E/51.

29 See Report from the Commission to the European Parliament and Council, First Annual Report on Immigration and Asylum (2009) COM(2010)214 final (Brussels, 6 May 2010) at para 2.4:

'Main commitment: Construct a Europe of asylum

EU level: The Commission presented all the legislative initiatives requested by the Pact and others which had been announced in the June 2008 Policy Plan on Asylum. The amendments to the Directives on Asylum Procedures and Qualification, in particular, answer the Pact’s call for a single procedure and uniform status, and are expected to improve coherence between EU asylum instruments. They should simplify, streamline and consolidate substantive and procedural standards of protection across the EU and lead to more robust determinations at first instance, thus preventing abuse and improving efficiency of the asylum process.

Amendments to the Dublin and Eurodac Regulations and to the Directive on Reception Conditions were also proposed, and there were proposals for a Joint EU Resettlement Scheme, and a European Asylum Support Office (EASO) to facilitate, coordinate and strengthen practical cooperation.'

See also the Commission Staff Working Paper accompanying the First Annual Report on Immigration and Asylum (2009), SEC(2010) 535 final (Brussels, 6 May 2010).

4.1 The 'Schengen acquis' refers to those Agreements aimed at implementing the gradual

abolition of checks at common internal borders in the EU which were entered into by a

number of EU States (initially only Benelux, Germany and France) in June 1985 and June

1990, and to the subsequent subsidiary agreements and rules adopted within that framework.

4.2 This corpus of materials, furthering a Schengen 'Europe without Frontiers',30 has been

integrated into EU law since the conclusion of the Treaty of Amsterdam in October 1997,

creating a 'Schengen-track' Europe with the notable exceptions of the UK, Ireland and

Denmark. Protocol 19 to the Treaty of Lisbon makes further provision in relation to this.

Article 4 of this 'Schengen Protocol' provides that the UK and Ireland may at any time

request to take part in some or all of the provisions of the Schengen acquis, but that this

request may be granted only if all the other Schengen States agree.31 Article 6 envisages the

possibility of Schengen agreements being concluded with Norway and Iceland, and Article 7

of the Schengen Protocol prohibits the possibility of any further Schengen opt-out by any

new accession States.

4.3 The “Schengen Acquis” also provides for a series of mechanisms on matters of common

interest in respect of asylum and immigration issues, for example the exchange of

fingerprints and intelligence between member states regarding immigrants, including asylum

seekers and the mutual recognition of a right to reside in members states where one member

state has granted a right to reside (the United Kingdom has opted in to some of the provisions

of this but not others, as part of its EU law obligations).

The Removals Directive

30 The Schengen frontiers-free area is now made up of: Bulgaria, The Czech Republic, Germany, Estonia, Greece, Spain, France, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, The Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland, Sweden and, half in/half-out, Denmark.

31 See Case C-482/08 UK v Council, 26 October, [2010] ECR I-nyr, for an example of the Schengen States not agreeing to UK participation in a Schengen measure, namely the Visa Information System Regulation (EC) 767/2008 providing for a database detailing all persons who have applied for a short-term visa to enter the EU.

4.4 The most recent of this series of Schengen acquis provisions is the Removals Directive

2008/115/EC, a provision which the United Kingdom has not opted into. Member States

bound by this directive will have to transpose it in their national legislation for the most part

by 24 December 2010, except for certain provisions for which the transposition date is 24

December 2011. The Recitals to the Removals Directive note inter alia that:

“(4) Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well-managed migration policy...

(16) The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient...

(17) Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law

...

(20) Since the objective of this Directive, namely to establish common rules concerning return, removal, use of coercive measures, detention and entry bans, cannot be sufficiently achieved by the Member States and can therefore, by reason of its scale and effects, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective...”

4.5 The Removals Directive requires (rather than allows) Member States to expel non-EU

nationals who have irregularly entered or illegally remained or over-stayed in their territory,32

unless there are strong countervailing compassionate factors weighing in favour of allowing

an individual to stay. Thus, one of the results of the Directive is to prevent Member States

(for example Italy and Spain) granting general amnesties to over-stayers or illegal entrants.

4.6 Where there is a risk of absconding or of non-cooperation with the return process, the

Removals Directive also envisages the possibility of detention of the irregular intrant, albeit

for as short a period as possible, and in any event for an initial period of no more than six

32 See Joined Cases C-261/08 & C-348/08 Zurita Garcia [2009] ECR I-10143.

months which can be extended for a further 12 months.33 Persons so detained are to be placed

in a specialised centre and, in any event, are to be kept separated from ordinary prisoners;

and the Directive precludes national rules imposing a prison term on an illegally staying

third-country national who does not comply with an order to leave the national territory. 34

There is a right of appeal and review against the decision before an independent judicial or

administrative body. The individual so threatened with removal must also be provided with

legal advice and any necessary linguistic help. If the removal is an enforced one rather than

consensual one then an automatic banning order applies against the individual's return to the

EU for up to five years (or more if there is a risk to public policy or public security). Such a

banning order may also be imposed at the discretion of the Member State even in cases

where return is voluntary.

4.7 The Removals Directive makes provision in Article 2 allowing Member States to “decide not

to apply this Directive to third-country nationals who: … are subject to return as a criminal

law sanction or as a consequence of a criminal law sanction, according to national law, or

who are the subject of extradition procedures.” It is clear that member states can therefore

exclude person awaiting deportation as a foreign national prisoner from the protections

provided by the Directive. It will be seen that there is a remarkable similarity between the

domestic law of the United Kingdom (in particular the “Hardial Singh principles”) and

Article 15(1) – (4) of the Directive. Unlike the situation in UK law however, Article 15(5)

and 15(6) of the Removals Directive provide for an express ‘bright line’ in respect of the

maximum periods of detention that is to say: 6 months in respect of most cases and an

extension to 18 months if there is (a) a lack of cooperation by the third-country national

concerned, or (b) delays in obtaining the necessary documentation from third countries. By

virtue of these provisions of the Removals Directive all EU member states except the UK and

33 In Case C-357/09 PPU Said Shamilovich Kadzoev (Huchbarov) [2009] ECR I-11189, the Court of Justice held that where the maximum period of detention laid down by that Directive has expired, the person concerned has to be released immediately and cannot continue to be detained on the grounds that he is not in possession of valid documents, his conduct is aggressive, or that he has no means of supporting himself and no accommodation or means have been supplied by the Member State for that purpose.

34 Case C-61/11 PPU Hassen El Dridi alias Soufi Karim v. Italy 28 April [2011] ECR I-nyr.

Ireland are now bound by the maximum periods detailed above but may (in their domestic

laws) set maximum periods of a shorter period than 18 months. It is clear that the Directive

is being interpreted by the CJEU in a strict manner and imposing an obligation upon member

states to adhere to its terms precisely. It is also of note that the CJEU regarded the

mechanism of the Directive as a means for “the attainment of the objective of introducing an

effective policy for removal and repatriation in keeping with fundamental rights”.

4.8 Although as a matter of EU law the United Kingdom is not bound by the terms of this directive

it may be that its provisions can still be prayed in aid in relation to establishing the existence of a

common European consensus for the purposes of the interpretation and application of provisions

of the ECHR. There is a long line of cases of the European Court of Human Rights, where it

has referred to and taken into account in interpreting Convention rights other international

agreements, even those which not all contracting States of the Council of Europe have

signed. Thus in Marckx v Belgium, 35 a case which concerned the legal status of illegitimate

children, the European Court of Human Rights based its interpretation of the requirements of

Article 8 ECHR on, among other things, two international conventions of 1962 and 1975 that

Belgium, like other States Parties to the ECHR, had not yet ratified at the time of the

judgment. In the cases of McElhinney v Ireland,36 Al-Adsani v United Kingdom37 and

Fogarty v United Kingdom,38 the European Court of Human Rights had regard to the

European Convention on State Immunity, which had been ratified at the time only by eight

contracting States. In its judgment in Glass v United Kingdom, the European Court of

Human Rights had regard to the standards enshrined in the Council of Europe’s Oviedo

Convention on Human Rights and Biomedicine of 4 April 1997, even though that instrument

had not been ratified by all the States parties to the Convention, and had not even been

35 Marckx v Belgium (1979-80) 2 EHRR 330.36 McElhinney v Ireland (2002) 34 EHRR 13 (Grand Chamber).37 Al-Adsani v United Kingdom (2002) 34 EHRR 11 (Grand Chamber).38 Fogarty v United Kingdom (2002) 34 EHRR 12 (Grand Chamber).

agreed to by the United Kingdom.39 In Taşkın and Others v Turkey, the European Court of

Human Rights referred to and relied upon the UNECE Aarhus Convention on Access to

Information, Public Participation in Decision-making and Access to Justice in Environmental

Matters, again even although Turkey had not signed the Aarhus Convention and had not

acceded to it.40 And in Demir and Baykara v Turkey, the European Court of Human Rights

relied upon provisions of the European Social Charter 1961, a treaty concluded under the

auspices of the Council of Europe which Turkey had not ratified, as well as on the terms of

the EU Charter of Fundamental Rights, to which Turkey was not (entitled to be) a party, the

Strasbourg Grand Chamber made the following observations:

“85. The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.

86. In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies.”41

4.9 The detention of an individual facing deportation or expulsion is permitted by Article 5(1)(f)

of ECHR. In Louled Massoud v. Malta 42 the Strasbourg Court held that the right to liberty

under and in terms of Article 5 ECHR was engaged and breached in respect of a detention

pending deportation that there had been an infringement of Article 5(1)(f) ECHR 43 even

39 Glass v United Kingdom (2004) 39 EHRR 15.40 Taşkın and Others v Turkey (2006) 42 EHRR 50.41 Demir and Baykara v Turkey (2009) 48 EHRR 54 at paras 85 and 86. 42 Massoud v. Malta [2010] ECHR 24340/08 (Fourth Section, 27 July 2010)

43 Article 5 of the Convention, which in so far as relevant reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …. (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against

though attempts to repatriate the applicant were frustrated by the applicant’s refusal to

cooperate and the third country not being prepared to issue the necessary documents, noting:

“60.  Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports 1996-V).

61.  The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. The words “in accordance with a procedure prescribed by law” do not merely refer back to domestic law; they also relate to the quality of this law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise in order to avoid all risk of arbitrariness (see Dougoz v. Greece, no. 40907/98, § 55, ECHR 2001-II, citing Amuur v. France, 25 June 1996, § 50, Reports 1996-III).62. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond a lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi v. the United Kingdom, cited above, § 67). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom [GC], cited above, § 164).….68.  Moreover, the Court finds it hard to conceive that in a small island like Malta, where escape by sea without endangering one's life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant's protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion.

69.  In the light of the above, the Court has grave doubts as to whether the grounds for the applicant's detention – action taken with a view to his deportation – remained valid for the whole period of his detention, namely, more than eighteen months following the rejection of his asylum claim, owing to the probable lack of a realistic prospect of his expulsion and the possible failure of the domestic authorities to conduct the proceedings with due diligence.

whom action is being taken with a view to deportation or extradition.”

4.10 Arguably then, in interpreting Article 5 ECHR, the Strasbourg Court the ECtHR could

also have regard to the fact that the Removals Directive is now in force across the EU and

despite the fact that the United Kingdom and Ireland are excluded from its specific scope its

provisions may yet be regarded as establishing a broad Europe wide consensus on the

acceptable time limits for detention pending removal or deportation. In so doing the

Strasbourg Court would be following its settled and well established practice.

4.11 It may therefore be open to litigants before UK courts similarly to rely upon EU law

provisions which form part of the Schengen acquis even where they have not been adopted

by the UK on the basis that these are indicative of a European wide consensus which should

properly inform the Convention rights which one may seek to pray in aid.44

44 See however R (on the application of SM) v Secretary of State for the Home Department [2011] EWHC 338 (Admin) Mr Justice Beatson said:

“75 At the hearing in November Mr de Mello relied on Article 15(5) and (6) of Directive 2008/115/EC , a Directive of the European Parliament and the Council “on common standards and procedures in Member States for returning illegally staying third-country nationals”, the “Returns Directive” for a submission that immigration detention over 18 months is unlawful. I considered this ground to be utterly unarguable and refused permission. I now give my reasons for doing so.

76 The Returns Directive is a very unpromising basis for any submission in English Courts. First (see recital 26), the United Kingdom has opted out it. Secondly, in R (WL (Congo)) v Secretary of State for the Home Department [2010] 1 WLR 2668 at [107], although the Court of Appeal stated the point had not been raised in the grounds of appeal, after referring to the opt-out it also stated the Claimant in that case could not rely on the Directive. As Miss Candlin observed, and contrary to paragraph 46 of Mr De Mello's skeleton argument, it is not clear how his argument on this matter differs from that advanced and rejected by the Court of Appeal in WL (Congo) .

77 Mr de Mello's submission appeared to be that the Directive could be regarded as setting out international norms for limiting immigration detention which might inform both the common law and the interpretation of Article 5(1)(f) of the European Convention on Human Rights . This too is unarguable. The Directive is not the only Directive containing provisions about immigration detention (see for example Articles 6(2), 7(3) and 16(3) of Directive 2003/9/EC and Article 18 of Directive 2005/85/EC ). To regard the Returns Directive as setting out any general international norms for limiting immigration detention which might inform the common law or the interpretation of Article 5(1)(f), its provisions would have to be part of customary international law; that is (see R (European Roma Rights) v Prague Immigration Officer [2005] 2 AC 1 at [23]) a general and consistent practice of states followed by them from a sense of legal obligation. There was no material before me which supported that proposition. It seems highly unlikely that a general and consistent state practice of a fixed time limit for immigration detention regardless of the circumstances of a particular case could be shown.

6 December 2011

Matrix Chambers

Griffin Building

Gray’s Inn

London WC1R 5LN AIDAN O’ NEILL QC

78 Mr de Mello sought to deploy a number of decisions of the Strasbourg court on Article 5(1)(f), including Application 30471/08 Abdulkhani and Karimnia v Turkey , and Application 6909/08 Alipour v Turkey, and a paragraph in the Opinion of the Advocate-General in the decision of the European Court of Justice in Case C-357/09 PPU Proceedings Concerning Kadzoev [2010] 3 WLR 477 . The Article 5 cases relied on do not, in my judgment, assist. In Abdulkhani and Karimnia the relevant provisions of the Act on the Residence and Travel of Foreigners in Turkey provided that foreigners whose stay in Turkey is considered to be incompatible with inter alia the administrative requirements of the Ministry of the Interior shall be invited to leave Turkey “within a fixed time limit”. The violation in that case arose because no such time limit had been fixed. Alipour 's case simply applied the decision in the earlier case.”