Category: Asylum law

Case C-713/17 Ayubi: A refugee is a refugee is a refugee (even with temporary right of residence)

By Sarah Progin-Theuerkauf

Introduction

On 21 November 2018 the Court declared a provision of the Law on needs-based minimum income protection in Upper Austria which provides that refugees with a temporary right of residence are granted less social benefits than Austrian nationals and refugees with a permanent right of residence incompatible with Article 29 of the Qualification Directive (Directive 2011/95/EU). The case is important, as the Court also highlighted that the right of refugees to equal treatment with nationals of the respective state with regard to public relief and assistance directly stems from the Geneva Refugee Convention, which does not make the rights to which refugees are entitled dependent on the length of their stay in the respective State. The Court also emphasized that a refugee may directly rely on the incompatibility of the provision with Article 29 of the Qualification Directive before the national courts. Continue reading

Neues aus dem Elfenbeinturm: July 2018

Summer School «The External Dimension of EU Migration and Asylum Policies: Human Rights, Development and Neighbourhood Policies in the Mediterranean Area”

University of Barcelona, 17-21 September 2018. Deadline for applications: 20 July 2018.

Summer School “Cinema Human Rights and Advocacy”

Venice, 27 August- 5 July 2018. Deadline for applications: 31 July 2018.

Conference of the Court of the Eurasian Economic Union “International Justice and the Intensification of Integration Processes”

Minsk, 18-19 October 2018. Deadline for registration: 15 August 2018.

AALS Annual Meeting “Judicial Diversity in Transnational Courts”

New Orleans, 2-6 January 2019. Deadline for abstract submissions: 15 August 2018.

Call for papers “Irish Journal of European Law”

Deadline for submissions: 28 September 2018.

ESIL Research Forum “The International Rule of Law and Domestic Dimensions: Synergies and Challenges”

University of Göttingen, 4-5 April 2019. Deadline for abstract submissions: 30 September 2018.

Conference “Operational Cooperation in European Union Criminal Law”

University of Nantes, 1 February 2019. Deadline for abstract submissions: 1 October 2018.

K.A and others – The Zambrano Story Continues

By Sarah Progin-Theuerkauf

On 8 May 2018, with the judgment in K.A. and others vs. Belgium, the Court of Justice of the European Union (ECJ) has added another piece to the now quite big puzzle that surrounds the legal status of EU citizens (and their third country family members). It ruled that Article 20 TFEU can be violated if a Member State refuses to examine a request for family reunification of a EU citizen with a third country national solely on the basis of an existing entry ban against the third country national. The Court argued that if the refusal compels the EU citizen to leave the territory of the EU as a whole, it deprives EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status. Like in the Zambrano case, the EU citizens in K.A. had never exercised their right to free movement.

Just a quick reminder of the Court’s main findings in Zambrano: In that case, Belgium had denied a right of residence to a Colombian father of two Belgian minors. The Court held that, by not giving the father of a Belgian child a derived residence right, Belgium will oblige the child to leave the territory of the EU as a whole, and therefore deprive the child of the genuine enjoyment of the substance of the rights’ conferred by the EU citizenship status. It was argued – and here is the revolutionary aspect – that this even applies in purely internal situations, e.g. where the EU citizen has never exercised his or her right to free movement. Normally, EU law only applies in situations with a cross-border element. Continue reading

The Right to Family Reunification of Unaccompanied Minor Asylum Seekers before the Court of Justice of the EU

By Silvia Bartolini

Introduction

On 12 April 2018 the Court of Justice of the EU (hereinafter, the “Court”) delivered a key ruling in A & S (case C-550/16), which hopefully marks a conscious step towards the creation of an effective EU system for the protection of children in migration.

As the Commission points out, the protection of children in all stages of migration should be “first and foremost about upholding European values of respect for human rights, dignity and solidarity. It is also about enforcing European Union law and respecting the Charter of Fundamental Rights of the European Union and international human rights law on the rights of the child” (COM (2017) 211 final). Yet their vulnerability is often denied or forgotten by Member States, especially in the mist of the so-called ‘migratory crisis’.

A & S brings forward the issue as to whether a Member State can deny both the status of being a child and the corresponding protection under EU law to a young refugee who entered its territory as an unaccompanied minor and turned eighteen while waiting for their application for international protection to be processed. In particular, could Member States be left to ‘use’ delays in the processing of children’s applications for the refugee status as a mechanism to thwart their fundamental right to family reunification?

In its children’s rights centred ruling, the Court made clear that Article 10 (3) (a) of Family Reunification Directive (Directive 2003/86/EC) creates an enforceable right to unaccompanied minor refugees to be reunited with their parents; a right which cannot be thwarted by the ‘negligent’ behaviour of the national authorities. In particular, an unaccompanied child who has turned eighteen while waiting for their refugee status application to be processed should still be considered as an ‘unaccompanied minor’ and therefore be entitled to a right to family reunification if their application is successful. Continue reading

Cases C-643 and C-647/15: Enforcing solidarity in EU migration policy

By Daniela Obradovic

The duty of solidarity between EU Member States

Although the Court of Justice of the European Union (CJEU) long ago characterised the deliberate refusal of a Member State to implement EU law as a ‘failure in the duty of solidarity’ that ‘strikes at the fundamental basis’ of the EU legal order (Case 39/72, para. 25), it has not been clear whether the principle of solidarity among Member States can be enforced in European courts. The recent response of the CJEU to the Slovakian and Hungarian challenge (C-643 and C-647/15, the migrant quotas verdict) to the Council decision on the relocation of migrants from Italy and Greece (the relocation decision)  seems to establish that the principle of solidarity between Member States in the area of EU immigration policy can be a source of EU obligations susceptible to judicial enforcement. Continue reading

Neues aus dem Elfenbeinturm: March 2017

Doctoral Workshop “The EU as a Global Actor in …”

University of Geneva, 6-7 July 2017. Deadline for abstract submissions: 27 March 2017.

Conference “Article 7 TEU, the EU Rule of Law Framework and EU Values: Powers, Procedures, Implications”

University of Warsaw, 13-15 September 2017. Deadline for abstract submissions: 30 April 2017.

Conference “Economic Evidence in Competition Law and the Future of the ‘More Economic Approach’”

University College London, 12 May 2017. Deadline for registration: 10 May 2017.

Call for Papers “Comparative Constitutional Law and Administrative  Law Quarterly”

Deadline for submissions: 10 May 2017.

Summer School on EU Immigration and Asylum Law and Policy

Brussels, 3-14 July 2017. Deadline for applications: 10 June 2017.

Summer School “People on the Move in an Evolving Europe – EU Law and Policy on Mobility, Migration and Asylum”

University of Fribourg, 21-25 August 2017. Deadline for applications: 15 April.

CJEU Case C-638/16 PPU, X and X – Dashed hopes for a legal pathway to Europe

By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf 

On 7 March 2017, the CJEU announced its judgement in case C-638/16 PPU (X and X / Belgium) and dashed all hopes for an extensive interpretation of the EU Visa Code in the light of the EU Charter of Fundamental Rights. To summarize the facts of the case, X and X and their three small children are an Orthodox Christian family living in rebel-held Aleppo. In October 2016 X leaves Aleppo to apply for a visa with limited territorial validity ex Article 25(1) of the EU Visa Code at the Belgian embassy in Beirut (Lebanon). The application states that the aim of entry into Belgium is to apply for asylum. X returns to his family in Aleppo immediately after lodging the application. Less than a week later, they are served with a negative decision from the Belgian authorities, against which they appeal. The court of appeal refers the case to the Court of Justice for a preliminary ruling on the interpretation of Article 25 of the Visa Code. In its rather short judgment the CJEU determines, contrary to what AG Mengozzi (see detailed analyses of this Opinion here and also here) argued with regard to this case, that the applications of X and X fall outside the scope of the EU Visa Code, even if they were formally submitted on its basis. Continue reading

Terror and Exclusion in EU Asylum Law Case – C-573/14 Lounani (Grand Chamber, 31 January 2017)

By Stephen Coutts

The on-going conflict in the Middle East has profound implications for the global legal order in two areas of law in particular: asylum law and anti-terrorist law. The European Union and EU law have not been immune from this development and in many respects are closely affected by these geopolitical developments and their legal impact. After a fitful start, the EU has become a major actor in the area of criminal law, and in particular anti-terrorist law, on the one hand and in asylum law on the other.[1] The two fields meet in Article 12(2)(c) of the Qualification Directive, itself reflecting Article 1F of the Geneva convention,[2] providing that an individual shall be excluded from eligibility for refugee status for acts contrary to the principles and purposes of the United Nations, acts which have been held to include acts of terrorism. Furthermore, Article 12(3) of the Qualification Directive extends that exclusion to ‘persons who instigate or otherwise participate in the commission of the the crimes or acts’ mentioned in Article 12(2). The status of terrorist and refugee are legally incompatible and mutually exclusive; one simply cannot be a terrorist and also a refugee. What, however, constitutes a terrorist for the purposes of Article 12 of the Qualification Directive? That essentially is the question at stake in Lounani. Continue reading

AG Mengozzi’s Opinion On Granting Visas to Syrians From Aleppo: Wishful thinking?

By Margarite Zoeteweij-Turhan and Sarah Progin-Theuerkauf 

Introduction

The opinion of AG Mengozzi in the case of X and X v. Belgium, so far only available in French, has created quite a stir throughout the European Union. In a nutshell, the AG found that, when third country nationals apply for a visa with limited territorial validity (‘LTV’) under Article 25 of the Visa Code with the aim of applying for international protection once they have arrived in a Member State’s territory, the Member State’s immigration authority should take the circumstances of the applicant into account and assess whether a refusal would lead to an infringement of the applicant’s rights as protected by the Charter of Fundamental Rights. Although the AG makes an effort to cover all the arguments brought up by the parties, this blogpost focuses mainly on the issues directly related to the margin of discretion left to the Member States by Article 25(1) of the Visa Code. Continue reading

Hungary’s Referendum on the Migrant Quota: a ‘no’ sought to do what?

By Márk Némedi

“Do you want the European Union to be able to prescribe the mandatory settlement of non-Hungarian nationals to Hungary even in lack of the consent of the National Assembly?”[i] – this is the question Hungarian voters will be asked to respond to on 2 October 2016. Speculations and verbal sparring have been strengthening about what may lie ahead, and not without reason. It appears that the possible legal and political implications of a valid vote could be broader than usual. At the least, referenda should pose concrete questions which invite an answer giving political institutions a well-circumscribed mandate. They should not give national governments a blanket authorisation and a political salvus conductus to freely choose what the will of the people requires. This contribution will look at how these principles fare in the upcoming referendum on the migrant quota and what the broader implications may be for both Hungary and the Union. Continue reading

Neues aus dem Elfenbeinturm: August 2016

PhD Forum “Law and Governance in a Crisis-Ridden Union

Netherlands Institute for Law and Governance, Vrije Universiteit Amsterdam, 17 November 2016. Deadline for abstract submissions : 4 September 2016.

Call for papers “The Migration Crisis as a Challenge for Democracy

Centre for Direct Democracy Studies, University of Białystok. Deadline for abstract submissions : 10 September 2016.

Neues aus dem Elfenbeinturm: July 2016

Conference “The Concept of International Constitutional Law”

Vienna University of Economics and Business, 23 September 2016. Deadline for (free) registration : 16 September 2016.

Conference “Movement of People – A Comparative Conference on Migration

University of Hamburg, 23-24 September 2016. (Free) registration necessary.

Conference “An Administrative Procedure Act for the EU?”

University of Lund, 24 November 2016. Deadline for (free) registration : 10 November 2016.

Restriction of the freedom of movement for beneficiaries of international protection (Joined Cases C‑443/14 and C‑444/14, Alo and Osso v Region Hannover)

By Margarite Helena Zoeteweij

Introduction

On 1 March 2016 the Court of Justice of the European Union gave its judgment in the joined cases of Ibrahim Alo and Amira Osso, Cases C-443/14 and C-444/14, ruling that the EU’s Qualification Directive does not sanction the imposition of restrictions of the freedom of movement for beneficiaries of subsidiary protection, and that such a limitation is not justifiable for reasons of territorial sharing of social assistance burdens, while at the same time leaving it up to the referring German Federal Administrative Court to decide whether the limitation can be justified for  reasons of migration and integration policy. The judgment comes in the midst of Europe’s biggest migrant crisis since World War II, and affects especially the rights of the beneficiaries of subsidiary protection status – those seekers of international protection that do not qualify as ‘refugees’, – the number of which is currently booming in Europe. The judgment will have instant and far-reaching consequences on the leeway of the national authorities in their dealings with beneficiaries of subsidiary protection status, especially since the Court confirms that, in principle, refugees and beneficiaries of subsidiary protection status are entitled to the same catalog of rights contained in Chapter VII of the Qualification Directive. Continue reading

Rétention d’un demandeur d’asile et droits fondamentaux – L’ arrêt J.N. de la CJUE (C-601/15 PPU)

Par Sarah Progin-Theuerkauf et Samah Posse-Ousmane

Dans un arrêt important du 15 février 2016 dans l’affaire J.N., la Cour de justice de l’Union européenne a confirmé la validité de l’art. 8 par. 3, premier alinéa, sous e), de la directive 2013/33/UE (directive « accueil »). La Cour s’est notamment prononcée sur sa compatibilité avec l’art. 6 de la Charte des Droits fondamentaux de l’Union européenne (UE) et l’art. 5 CEDH (tel qu’interprété par l’arrêt Nabil). Si le raisonnement de la Cour dans le cas d’espèce paraît judicieux, il laisse ouvertes certaines questions relatives à la détention des demandeurs d’asile en général. Continue reading

Neues aus dem Elfenbeinturm: February 2016

Conference “The European Convention on Human Rights and the Crimes of the Past”

European Court of Human Rights, Strasbourg, February 26 2016. Deadline for registration: 19 February 2016.

Conference “Searching for Solidarity in EU Asylum and Border Policies”

Brussels, 26-27 February 2016. (Paid) registration needed.

Conference “Reforms in UN Treaty Bodies and the European Court of Human Rights: Mutual Lessons?”

University of Oslo, 29 February 2016. (Free) registration needed.

Conference “Mapping the challenges in economic and financial criminal law: a comparative analysis of Europe and the US”

University of Luxembourg, 17 March 2016. (Free) registration needed.

Workshop “Austerity and Law in Europe”

University of Amsterdam, 16-17 June 2016. (Free) registration needed.

EUI Summer Courses on Human Rights and on the Law of the European Union

European University Institute, Florence, 20 June-1 July/4-15 July 2016. Deadline for applications: 4 April 2016.

Conference “Adjudicating international trade and investment disputes: between interaction and isolation”

University of Oslo, 25-26 August 2016. Deadline for abstract submissions: 1 March 2016.

Neues aus dem Elfenbeinturm: January 2016

Seminar „Rethinking EU Competences“

Inter-University Center, Dubrovnik, 17-23 April 2016. Deadline for abstract submissions: 31 January 2016.

Conference „Europe’s crisis: What future for immigration and asylum law and policy“

Queen Mary University of London, 27-28 June 2016. Deadline for abstract submissions: 15 February 2016.

LCII Conference „Regulating Patent ‘Hold-up’“

Brussels, 29 February 2016. Deadline for (paid) registration: 25 February 2016.

ASIL Interest Group Meeting „Regional Approaches to International Adjudication“

Washington, 30 March-2 April 2016 (exact date TBD). Deadline for abstract submissions: 1 February 2016.

POMFR: Reviewing Protecting Vulnerable Groups – what about Hector Salamanca and Donald Gately?

By Thomas Burri

Francesca Ippolito/Sara Iglesias Sánchez (eds.), Protecting Vulnerable Groups – The European Human Rights Framework, Hart Publishing 2015

Hector Salamanca was vulnerable. The Mexican was old and, after having suffered a stroke, tied to the wheel chair. He had no means of communication save a tiny bell he barely managed to ring. After most of his family was dead, he lived the life of a lonesome vegetable in a nursing home.

Donald Gately is vulnerable. His sense of honour and duty as a staffer at Enfield House Drug and Alcohol Recovery House had practically compelled him to defend a drug addict who had got involved in a fight. In the fight, Don G. was shot in the shoulder. Now, he is tied to the hospital bed, suffering from inhuman pain, pain from which only opioids could bring relief – though not for him, for opioids had been the focus of his long history of substance abuse and now he is desperately abstinent.

Protecting Vulnerable Groups is a great book. It made me see all of the above (and more) in a new light. To be sure, Protecting Vulnerable Groups is not a book about Breaking Bad or Infinite Jest. It is not an economic, sociological, or socialist book either, despite the appearance the title creates. No, Protecting Vulnerable Groups is a rock solid book on the law, in particular case law. It explains how the European Court of Human Rights and the European Court of Justice attend to the vulnerable. Sometimes, the courts explicitly find persons vulnerable, as in MSS v Belgium and Greece when an asylum-seeker was declared “particularly vulnerable” (Protecting Vulnerable Groups, p. 249); sometimes the idea of vulnerability is merely inherent in the courts’ case law. Both occurrences are discussed extensively in the book. Continue reading

“The winter is approaching” – Juncker and his state of the union address – has it said enough regarding the refugee crisis?

By Kanad Bagchi

With each passing day scores of lives are either ended by bodies being washed ashore or are lost in the faceless congregation of ‘refugees/migrants’ on the peripheries of Europe and beyond. Both the ‘European family’ and the ‘European Fabric’ has laid itself bare in the face of the uncontainable refugee crisis brewing in the heart of Europe, uncovering the stark divide between the East and the West. Amidst the melancholy that has reached the shores of Europe, it is vital to take pause and query whether the present catastrophe could have been contained and what steps are being taken by the European Union (hereinafter referred to as “EU”) towards this end. In this regard, Juncker’s State of the Union address 2015 (hereinafter referred to as “Union address”/ “Address”) comes at an auspicious time and has been met with pensive eagerness. The Union address rightly devotes significant attention towards the refugee crisis and has proposed a slew of measures, both immediate and long term, to alleviate the present situation. This post looks through these developments and assesses whether the measures adopted thus far and proposed for the immediate future are sufficient to improve the current circumstances and prepare the EU and its member states (hereinafter referred to as “MS”) to effectively deal with the continuing crisis.

Continue reading

Neues aus dem Elfenbeinturm: June 2015

Summer Academy in Global Food Law and Policy

Bilbao, 20-24 July 2015. Deadline for application: 18 June 2015.

Conference “Constructive Links or Dangerous Liaisons? The Case of Public International Law and European Union Law”

Queen Mary University of London, 25-26 June 2015. Registration open.

Critical Legal Conference 2015 “Law, Space and the Political”

University of Wroclaw, 3-5 September 2015. Deadline for paper proposal submission: 30 June 2015.

Call for Papers “5es Journées des Doctorants du Centre de Droit des Migrations”

Muntelier-Leuwenberg, Universities of Bern/Fribourg/Neuchâtel, 26-27 November 2015. Deadline for abstract submissions: 19 August 2015.

Call for Papers for the PhD Forum “Law and Governance in the Digital Era”

University of Amsterdam, 20 November 2015. Deadline for abstract submissions: 4 September 2015.

Neues aus dem Elfenbeinturm: May 2015

Summer Schools “Dublin III: Two Years on”, “Venice School of Human Rights”, “Venice Academy of Human Rights”

European Inter-University Centre for Human Rights and Democratisation, Venice, 19-21 June/26 June – 4 July/6 – 15 July 2015. Deadline for application: 21 May 2015/check website.

Conference “The European Convention on Human Rights and General International Law”

European Court of Human Rights, Strasbourg, 5 June 2015. Deadline for registration: 28 May 2015.

Summer School “The Protection of Fundamental Rights in Europe”

University of Bologna, 28 June – 3 July 2015. Deadline for application: 10 June 2015.

Conference “20 Years Later: The Legacy of Bosman”

TMC Asser Institute, 18 June 2015. No deadline for registration.