15 January 2025
The Branch That Finally Snapped
The story goes: a Polish politician, after allegedly committing a crime, leaves Poland and settles in Hungary. While historically not uncommon, the act of Hungary granting “asylum” to Marcin Romanowski generates crucial legal questions regarding the EU’s legal order. More specifically, what kind of asylum is at play here, whether this act was lawful from the perspective of the EU law, and what impact it has on the Union’s legal system. Continue reading >>
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18 October 2024
The Strictest Asylum Policy Ever?
On 13 September 2024, ahead of the presentation of the State Budget, the new Dutch coalition presented their finalized plan to implement what it has labelled as the strictest admission regime ever in the field of asylum law. To implement its Outline Agreement, titled ‘Hope, Courage and Pride,’ the government plans to rely on an derogation provision in the Dutch Aliens Act 2000. We argue that the provision does not apply to the current situation and that the Dutch government therefore does not have the jurisdiction to render parts of the Dutch Aliens Act 2000 inoperative. Continue reading >>
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16 September 2024
Flying Blind
A quarter of a billion euros. That was the final price tag the last time German politicians and constitutional law professors assured us that a controversial German idea was compatible with EU law. Yet the Autobahn car toll for foreigners only pushed through by the Bavarian regional conservatives (CSU) and passed by the Federal government grand coalition of Conservatives and Social Democrats was – quite predictably from the outset – contrary to European law and cost German taxpayers many millions of euros in contractual penalties following clarification by the ECJ in 2019. The way the current refugee debate in Germany is handled could end up costing Germany, i.e. all of us, much more – not so much in euros, but in trust in the reliability of Germany in general, as an EU Member State, and more generally trust in the reliability of the law. Continue reading >>
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24 April 2024
Pushbacks From Europe’s Borders Enter the Mainstream
The Polish reckoning with the illiberal turn of the past years seemingly does not apply to the unlawful practice of pushbacks on the Poland-Belarus border. The unlawful practices, best exemplified by pushbacks, have come to be accepted in the European mainstream. The humanitarian crisis on the Poland-Belarus border and its handling by the new government, together with its rejection of the New Pact on Migration and Asylum, vividly illustrates this point. Continue reading >>
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28 February 2024
Asylum-Seekers’ Right to Free Movement
Restricting the freedom of movement of unwanted asylum seekers is the conceptual core of the CEAS 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. Why did we fail to make asylum-seekers’ right to free movement relevant in context of the CEAS reform? Continue reading >>
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30 January 2024
Shielding Frontex 2.0
In Hamoudi v Frontex, the General Court dismissed another action that could have clarified if, when, and how independent or joint human rights responsibility would arise when Frontex is engaged in shared operational conduct with the Member States. This time not on the basis of an obscure re-interpretation of the Applicant’s claim, but instead, on the basis of an unattainably high and unrealistic burden, standard and method of proof. In doing so, the General Court again eschews from clarifying the nature, conditions and consequences of both independent and joint human rights responsibility of Frontex. Taken together, these cases raise the question whether there are any viable forms of judicial recourse for fundamental rights violations committed or contributed to by the EU’s Border and Coastguard Agency. Continue reading >>
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15 January 2024
Legislating fiction
Members of Parliament in the UK will on 16 and 17 January 2024 debate the Safety of Rwanda (Asylum and Immigration) Bill, which ‘gives effect to the judgement of Parliament that the Republic of Rwanda is a safe country’ for asylum-seekers. The Supreme Court unanimously ruled in November 2023 that Rwanda was manifestly not safe as asylum seekers sent to the country would face a real risk of ill-treatment due to insufficient guarantees against refoulement. The Bill thus aims to use law to determine a factual situation for as long as the law is in force. This blog discusses the risks inherent in creating such a ‘legal fiction’ and how the Bill could be revised to mitigate this risk, before assessing the chances of it becoming law in the currently turbulent political context. Continue reading >>
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01 December 2023
A Borderline Case
On 28 November 2023, Finland decided to close all its land border crossing stations to Russia due to the latter's apparent instrumentalization of migrants. That a foreign power, which conducts war elsewhere in Europe, directly engages in unfriendly acts against the EU’s (as well as NATO’s) eastern flank highlights the issues of national security involved. The situation is part of a broader European dilemma but presents certain idiosyncracies. How is an EU Member State such as Finland, respectful of the rule of law, to respond to such unfriendly acts which intrumentalize the vulnerable position of asylum seekers whose rights must, in principle, be observed at all times? This brief post addresses some of the legal issues involved in the currently unfolding situation. Continue reading >>
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19 June 2023
On the Pylos Shipwreck
Only 104 out of the 750 passengers who travelled on the fishing boat, which capsized on June 14 and sank in the Ionian Sea, were rescued. The bodies of 80 have been recovered so far and the remaining passengers, an estimated total of as many as 500 people, including large numbers of women and children, remain missing. The boat had departed from Libya the previous Friday and was heading towards Italy. The tragic shipwreck, which immediately became yet another icon of the never-ending catastrophe of asylum seeking in the Mediterranean, occurred on the high seas, 87 kilometres from the Greek Coast. As long as the overarching policy aim is to deter racialized migrants from entering the EU, tragedies like the one in Pylos are bound to continue. Continue reading >>
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26 April 2023
Flexible Responsibility or the End of Asylum Law as We Know It?
On March 21 2023, the Council released a revised draft proposal for an Asylum and Migration Management Regulation (AMMR). It reintroduces the concept of ‘flexible responsibility’ — or ‘adaptable responsibility’ — into the EU’s migration management. Already included in the controversial Instrumentalisation Regulation of 14 December 2021, flexible responsibility is the idea that Member States should be allowed to derogate from normally applicable asylum standards when faced with sudden migratory pressures. While the Instrumentalisation Regulation was rejected in December 2022, this post will detail how the new AMMR draft threatens to reintroduce the idea of flexible/adaptable derogations — including, potentially, those originally foreseen in the Instrumentalisation Regulation — into the EU’s asylum framework and why we should reject it. Continue reading >>
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