Asylum-Seekers’ Right to Free Movement
How to Make it Relevant in EU Law
‘Hora est!’ A few days after this post goes online, the Master of Ceremony (the pedel, in local academic language) will exclaim these words to mark an important moment in the life of Juan Ruiz Ramos. He will have defended his doctoral thesis at the VU University Amsterdam, jointly supervised by Lieneke Slingenberg from the VU and Javier Roldán Barbero from the University of Granada. The PhD thesis is about ‘The freedom of movement of asylum-seekers within the host State under international and European human rights law’. It provides a comprehensive legal analysis of Articles 26 and 31(2) of the Refugee Convention (RC), Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR), and Article 2(1) of Protocol No. 4 to the European Convention on Human Rights (ECHR).
Why should the Verfassungsblog’s readers care about these remote events and obscure provisions? Even try to gain access to one of the copies of the proefschrift in the VU’s library, or else, eagerly wait for the book to appear with an international publisher? I argue that the topic of the book addresses one of the academic and political blind spots on which the conveners of the present symposium have invited us to reflect on. If you are not familiar with the cited Articles, you are in good company of many specialists in the field of migration law who have spent much of their professional time in recent years to prevent the deal on the new Common European Asylum System (CEAS) from being struck in its present form. All of the above provisions proclaim freedom of movement within the territory of a State as a fundamental right of refugees or ‘everyone’ respectively, subject to variable conditions and limitations.
The Conceptual Core of the CEAS Reform
Restricting the freedom of movement of unwanted asylum seekers is the conceptual core of the reform package politically agreed upon by the EU’s legislative institutions in December 2023. Large groups of the people seeking international protection in the EU will be subject to so-called border procedures. Their claims will be processed while being ‘kept at or in proximity to the external border or transit zones’ (Commission proposal) in order to prevent their onward movement and to facilitate ensuing deportations. Introducing such confinement measures will be mandatory for all Member States, provided that an asylum seeker meets certain criteria, in particular a low rate of success of earlier protection claims made by his or her fellow nationals, calculated on an EU-wide average.
Civil society organizations and many colleagues of the scholarly community have strongly criticized this conception on political and legal grounds from the point of view of human rights. They are of the opinion that border procedures cannot function without imposing detention on a large scale. Accordingly, the CEAS reform builds on deprivation of liberty as a regular means of asylum policy rather than a measure of last resort, thus infringing upon one of the oldest human rights firmly protected by treaties, custom and constitutions. In many instances, the measures taken by EU Member States will fail to meet the procedural and substantive requirements of lawful detention. After all, filing an asylum claim with a statistically low rate of success is not listed among the grounds of detention recognized in international or EU law. De facto detention and hence systematic violations of international human rights and the corresponding provisions of EU law are to be expected. The accompanying academic debate has focused on the controversial Saadi and Ilias and Ahmed judgments of the European Court of Human Rights (ECtHR). Its lenient standards apparently have encouraged the EU legislature, although both the UN Human Rights Committee and the EU Court of Justice have taken a firmer stance on the limits of detention (for an overview, see here).
Paper Walls Around Camps
These arguments are to the point. And yet, the almost exclusive focus on detention has set a discursive trap for the cause of defending the human rights of migrants. What if a measure imposed on asylum seekers at certain sections of the border actually does not amount to a deprivation of liberty? If, for example, the physical space of confinement is a small Mediterranean island just large enough not to qualify as a detention facility? If the facility is not physically locked during the day but rather guarded by the threat of imposing administrative sanctions, such as the loss of access to essential services, or worse, by the threat of detaining the person in response to any violation of the residence requirement? There is plenty of room for creativity on the part of the authorities to build paper walls around camps and design ‘semi-carceral spaces’ (Guild et al 2015: 34-35) that fall short of amounting to detention in the legal sense but restrict spatial mobility just as harshly and effectively.
Aren’t there any human rights limits to area-based restrictions short of detention? Strangely enough, almost everybody (notably including the EU Commission) seems to assume that these types of restrictive measures are purely within the discretion of States (or the EU legislature) ‒ in other words, that the distinction between de facto detention and non-detention marks the borderline between unlawful and lawful measures, between human rights protection and unlimited State power. They couldn’t be more wrong. Exclusively referring to the right to liberty fails to recognize the very existence of the related but distinct human right to move freely within the territory of a State enshrined in the provisions cited above. While the former enjoys a higher level of protection, this does not mean that measures limiting intra-territorial movement may be imposed for mere administrative convenience or in response to populist demands to be tough on ‘bogus’ (or simply too many) asylum seekers.
Rethinking “Freedom of Movement”
Why did we fail to make asylum-seekers’ right to free movement relevant in context of the CEAS reform? In EU law, the notion of ‘freedom of movement’ is closely associated with the cross-border movement of Union citizens, and hence, with the privileged status of citizens rather than human rights. Moreover, Article 2(1) of Protocol No. 4 is one the rare norms of the ECHR that is not mirrored in the text of the EU Charter of Fundamental Rights. This does not rule out that it is part of the unwritten general principles of Union law, which provide an additional source of EU fundamental rights (see Article 6(3) TEU). Nevertheless, the absence of the right to intra-territorial movement from the Charter text contributes to it being overlooked.
Perhaps the most important reason for the current lack of relevance of asylum-seekers’ right to free movement is its uncertain scope in international law itself. ECtHR case law on Article 2(1) of Protocol No. 4 is sparse and inconclusive. This applies all the more to the other sources. Ruiz Ramos’ book informs us that practically every detail of legal construction is contested in legal scholarship.
The crucial element is the personal scope of application. An asylum seeker who has just entered irregularly can only rely on the weaker protection of Article 31(2) RC. The other three provisions presuppose some kind of formal authorization by the host State. In slightly different language and context, they require that the person is ‘lawfully [with]in the territory’. Arguably, this concept covers all asylum seekers whose claim to international protection has been registered and who enjoy a provisional right to remain during the status determination procedure (currently Art. 9(1) of the Asylum Procedures Directive). But this view is far from being uncontested. Legal dispute lies ahead over how the status of being assigned to a border procedure under the forthcoming Asylum Procedures Regulation is to be assessed.
Other issues of interpretation include the legitimate grounds of justifying an interference with the right provided in Article 12(3) ICCPR and Article 2(3) and (4) Protocol No. 4 ECHR, which do not entirely overlap. Moreover, the contours of the proportionality requirement that applies to all restrictions are far from clear. Does this requirement include a right to an individual decision that considers the particular circumstances of each case, as in expulsion cases under Article 8 ECHR? Or is the competent legislature entitled to ‘legislative balancing’, that is, to weigh the relevant interests itself, e.g., when assigning certain classes of asylums seekers to border procedures cum area-based restrictions, using the asylum-seekers’ nationality as the sole selection criteria?
Back to the Desk!
At some point, these questions will have to be answered by the CJEU or the ECtHR when the first cases emerge from implementing the EU’s reformed asylum system. Are we well equipped to win these cases? I am not so sure about that. Before strategic litigation can enter the scene, both the campaigners and legal scholars would have to do their job. Ruiz Ramos’ thesis is a good start. Dear colleagues, back to the desk. Hora est!