25 June 2023

Human Rights Violations to Deflect Refugees

The EU Council Agreement on Asylum Reform as an Intensification of Policies Tried and Failed

The Council of the European Union (EU) recently reached a negotiating position (‘mandate’) on two significant elements of the ‘reform’ of the Common European Asylum System (CEAS): the Asylum Procedures Regulation (APR) laying out rules on refugee status determination in national asylum systems, and the Asylum and Migration Management Regulation (AMMR) rehashing the Dublin System on allocation of responsibility for processing asylum claims.

Since the EU embarked on legislating in this field, it has sought to deflect refugees elsewhere, and generally failed, often spectacularly. In 2000, Gregor Noll identified the EU as a ‘common market of deflection’. In 2005, Cathryn Costello critiqued the first iteration of EU asylum procedures legislation for its expansion of ‘safe third country’ practices and creating more complex grounds of inadmissibility. Ten years later, in 2015, we saw containment practices backfiring, thousands of refugees drowning in their attempt to reach Europe, and over one million people recognised as refugees over that year and the next. Most refugees ended up in Germany – which had since 1993 sought to insulate itself from asylum claims by employing ‘safe third country’ (STC) practices. Now, in 2023, after a third attempt to ‘reform’ its asylum policy, the EU doubles down (should we say ‘triples down’) on containment, STC in particular.

It has been hard to find something new to say… except that the current developments reflect so poorly on EU politics that rather than learn some lessons from 2015, a distorted political narrative quickly took hold, and rather than question containment, EU governments seek more of the same.

The legislative process has been agonisingly slow – the proposals emerged in 2016, the third iteration since the EU first legislated on asylum procedures in 2005, building on the 1990 Dublin Convention that became an EU regulation in 2003. The foundational features remain the same – procedural complexity in the name of apparently enabling states to make refugees the responsibility of other states outside the EU, part of the general system of refugee containment, illegalising their attempts to travel into and across the EU in search of protection.

The adopted Council mandate paves the way for legislative negotiations (‘trilogues’) with the European Parliament (EP), whose positions on all pending asylum reform proposals had been agreed by March 2023. The aim is to conclude the legislative reforms by the next European elections in early June 2024.

The vision hailed as a ‘historic’ agreement by national governments is a direct threat to the right to asylum. The Council not only maintains all structural flaws of the CEAS intact but proposes a quagmire of asylum procedures marred by unworkable, unnecessarily complex rules, that are in clear violation of key human rights standards.

The flaws of CEAS & drivers of perpetual ‘crisis’ mode

Access to asylum does not have to be illegalised. The EU has demonstrated that safe passage for refugees is both possible and workable: Those fleeing the war in Ukraine may enter the EU without a visa, as the EU entered into a visa waiver agreement with Ukraine back in 2017. This means that people may flee temporarily as they seek respite or work, and since March 2022, avail of the formal EU status of Temporary Protection. This has enabled people to choose their country of refuge in the EU – moving freely for a period. The result is that nearly 4 million have swiftly received protection in the past year.

For most other refugees – those from Africa and the Middle East in particular – the EU’s visa and carrier sanction regulations mean that there is no legal route to claim protection. Their entry is illegalised and rendered dangerous by EU policies that have become embedded since the end of the Cold War. Carrier sanctions measures and intensified border controls have made irregular entry more costly and dangerous for protection seekers. Those who do reach European waters or soil face state-sponsored violence, enforced disappearance, refoulement and even death under push-back policies pursued by all too many European governments and apparently tolerated by the EU. Scholars have analysed these ‘containment’ measures and the resultant lack of legal access to asylum for decades. The EU’s unique response to those fleeing Ukraine leads to serious accusations that the EU’s borders for refugees are racialised, or even discriminatory on grounds of race.

Containment is also a feature of the asylum processes once protection seekers reach the EU. Even those who manage to physically reach the territory of an EU Member State often face long delays in registering a protection claim, subjected to truncated border procedures and denied asylum without being heard on the reasons for fleeing their home countries. The CEAS reform endorsed by the EU Council exacerbates these elements, seeking to enable states more in their pursuit to deny protection and deflect asylum seekers elsewhere.

Unlawful doubling down on containment

Refugee containment comes at a rule-of-law cost and already leads to violations of EU and international legal obligations, both the Charter of Fundamental Rights of the European Union (‘Charter’) and the Refugee Convention.

The current proposals (both the Commission and the Council’s) are remarkably complex and seek to obscure the clearly intended effects. Ghezelbash’s characterisation of hyper-legalism and obfuscation is apt.

The Council mandate on the APR, for instance, is presented as a ‘modernisation’ step ‘streamlining’ asylum procedures. The contents of the mandate, however, reveal far-reaching changes to procedural standards, in likely breach of the right to asylum (Article 18 Charter) and in direct contradiction of legal standards set by the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) on non-refoulement.

We focus on the APR and just two of the many problematic features: obstructed access to the asylum process and expanded use of STC practices. For analysis of other elements, see here.

Unlawful restrictions on access to asylum procedures

The Council seeks to both dilute states’ duty to facilitate entry into the asylum process and limit refugees’ access thereto. Member States are no longer required to provide information and interpretation services to enable access to the procedure where there are ‘indications’ of people wishing to seek asylum at border points or detention places (Article 30 APR), in spite of unequivocal admissions e.g. by Greece that almost all entrants arrive in search of protection.

On the other hand, the Council mandate would impose strict conditions on the ‘making’ of an asylum claim – that is the act of expression of a person’s intention to seek refuge upon on which they acquire ‘asylum seeker’ status under EU law. The Council text indicates that people can only ‘make’ an asylum application ‘in person’ before designated ‘competent authorities’. States may limit those to police, border guards and detention authorities (Articles 5(3aa) and 25(1) APR). Refugees would therefore run prolonged risks of arbitrary arrest and refoulement in countries which require a prior online or telephone appointment to access the asylum process e.g. France or Greece, as they would not hold ‘asylum seeker’ status while awaiting the date of their appointment in person. These new administrative barriers would, based on current caselaw, amount to prohibited ‘administrative formalities’ on the exercise of the right to asylum and undermine the effectiveness of EU asylum procedures (C-36/20 PPU Ministerio Fiscal, C-808/18 Commission v Hungary, C-72/22 PPU Valstybės sienos apsaugos tarnyba).

The procedural barriers facing refugees under the Council mandate go even further. Member States are allowed to declare inadmissible any asylum claim made more than seven working days from a previous return decision if no new elements have arisen in the meantime (Article 36(1a)(g) APR). Member States may dismiss those cases within ten working days without any assessment on the merits. Challenging those decisions will not protect people from deportation until their appeal is concluded (Article 54(3)(b) APR).

This reflects a formalisation of the existing barriers to the asylum procedure, which put refugees at risk of refoulement. Greece already has a mandatory screening procedure in place for identification of irregular entrants and referral to asylum procedures but it continues to systematically issue deportation orders to thousands of newly arrived refugees who have expressed their will to receive international protection, before their claims are registered. This includes survivors of shipwrecks whom police authorities routinely hold in pre-removal detention in the absence of appropriate post-rescue protocols.

Wide expansion of Safe Third Country (STC) procedures

Deflecting responsibility for refugee protection through broader use of STC has been a primary demand of EU countries over the past seven years of tortuous negotiations on the CEAS reform. Interior ministers have attempted successive tweaks at the STC definition in an effort to render it readily available for Member States, just as EU leaders recently tasked the bloc’s Asylum Agency to ‘provide guidance to increase the use of the concepts of safe third countries’.

The agreement reached in Council responds to these political demands by thoroughly watering down the current EU STC definition and removing the legal safeguards for its use:

  • It allows Member States to implement STC based on an EU list, a national list, or no list at all (Article 45(2) APR).

  • Designation of STC can be done with exceptions on parts of their territory or particular categories of refugees (Article 45(1a) APR).

  • STC need only offer ‘effective protection’ and are not required to afford refugees legal status, full access to health care or guarantee their family unity (Article 43a(2) APR).

  • The safety of a country is explicitly to be assessed with reference to ‘non-nationals’ (Article 45(1) APR). STC could therefore apply to countries persecuting their own citizens and producing refugees themselves.

  • Though the Council ultimately resisted previous efforts to eliminate the requirement of a connection between a refugee and a STC, the ‘connection criterion’ is to be assessed at the discretion of Member States and may be established based on previous ‘settlement’ or ‘stay’ (Article 45(2b)(b), Recital 37 APR). Unsuccessful proposals included references to ‘transit’ as conclusive evidence of a connection, in an attempt to overturn CJEU case law (C-564/18 LH, C-924/19 PPU FMS, C-821/19 Commission v Hungary). Removing the ‘connection’ requirement altogether is seen as an attempt to pave the way for ‘deals’ such as the UK-Rwanda one, which envisages refugees sent to far away countries with which they have no connections.

The most significant dilution is that Member States may presume the STC criteria to be met with the mere existence of an agreement between the EU and a third country and general assurances by that country that readmitted migrants will be ‘protected in accordance with the relevant international standards’ (Article 45(3) APR). The provision visibly draws on the precedent of the EU-Turkey deal which led Greece to arbitrarily deny protection to thousands of refugees on STC grounds relying solely on general assurances offered by Turkish diplomatic authorities in succinct letters to EU institutions.

Such a presumption, however, would breach non-refoulement standards as interpreted by the ECtHR and other human rights bodies. Under well-established human rights norms, states applying STC are obliged to carry out a ‘thorough’ assessment of the accessibility and effectiveness of a country’s asylum system (Ilias and Ahmed v. Hungary App No 47287/15) and may not rely on diplomatic assurances that are not specific and independently monitored (Othman v. United Kingdom App No 8139/09).

Ineffective doubling down on containment

Refugee containment has political implications beyond its human and rule of law costs. The evidence demonstrates that ‘containment fails as a policy in that it does not actually contain. When it fails, it may do so spectacularly’. In terms of deterrence, the empirical evidence demonstrates little impact, except to embroil states in massive human rights violations.

STC is a case in point. The concept, however arbitrarily applied, may offer states a shortcut to denying asylum but in no way will it guarantee return. The EU has grappled with this reality since the introduction of the Dublin System, most visibly since 2015. Hungary has massively invested in different iterations of STC and arbitrarily denied protection to any person arriving in its ‘transit zones’ from Serbia, without however finding a way around the Serbian authorities’ clear refusal to readmit them (Ilias and Ahmed v. Hungary App No 47287/15, C-564/18 LH, C-924/19 PPU FMS, C-821/19 Commission v Hungary). It has abandoned the policy following condemnation from the CJEU, and has since dismantled access to asylum on its territory altogether, leading to fresh cases before the Strasbourg and Luxembourg Courts.

As for Greece, not a single person out of over 12,000 asylum seekers rejected on STC grounds in the past three years has been returned to Turkey. The CJEU is set to rule on the legality of Greece’s designation of Turkey as a STC in the face of a clear absence of readmission prospects.

In the meantime, the policy of deeming claims inadmissible and leaving people in limbo leads to massive and systemic human rights violations, with people contained in inhumane conditions arbitrarily stripped of basic rights. On top of that, it is administratively counter-productive also: Time and resources are spent on STC interviews, decisions, appeals, and then fresh asylum claims may eventually lead to grant protection to people who clearly needed it from the outset.

Furthermore, the vision of seeking endlessly to make refugees the responsibility of other states increasingly empowers those few third states that are willing to play this EU game, often exacerbating and supporting autocratic tendencies therein. The EU itself becomes increasingly dependent on these regimes (Turkey, Libya, Belarus), who can easily ‘coercively engineer’ migration to extort the EU. These practices thus have the demonstrated capacity to distort other foreign policy priorities and any attempts to leverage better human rights protections in those states.

What comes next

The June 2023 agreement keeps EU co-legislators on track for intensive negotiations and continued pressure to deliver on the CEAS reform in the coming months, with ‘trilogues’ already underway on the AMMR and APR along with negotiations on the remaining proposals. In the meantime, the Council is yet to develop its mandate on arguably the most controversial piece of the reform, the Commission’s derogations package for circumstances of crisis, force majeure and ‘instrumentalisation of migrants’. The instruments are to be merged by Council into a catch-all derogation Regulation permitting states to circumvent registration and procedural obligations at large.

The European Parliament has historically been the defender of human rights in the EU legislative process. However, on this issue, the EP has converged with the Council in its March 2023 positions on the CEAS, compared to its earlier position on the Dublin reform. The political pressure to deliver an agreement before the next elections in June 2024 may contribute to less opposition to the procedures designed by Member States.

Parliament, however, remains cautious of undermining harmonisation of national systems and of defeating the established EU acquis. It should therefore insist at the very least on anchoring the reform in its stated objective to ‘streamline, simplify and harmonise’ asylum procedures, and on adapting EU legislation to an abundant body of asylum case law developed by the CJEU and ECtHR.

These proposals, if the European