1
Q
Case X&X v Belgium
A
- Married couple with three children lived in Aleppo, Syria and applied for visas at the Belgium embassy in Beirut, Lebanon.
- One of them was abducted and tortured by terrorist group and they were persecuted for being orthodox Christians.
- Belgian government was forced to give them a visa by Belgian courts.
- Such application fell outside of the scope of the Visa Code, therefore the application fell solely within the scope of national law.
- Concluding otherwise would suggest that individuals could apply for asylum directly at EU member state representations abroad.
2
Q
Case MA (or ME) v Belgium
A
- Sudanese man was apprehended without documents by the Belgian police and detained pending removal, despite an order to suspend the measure.
- The court found a violation of Article 3 of the convention (inhuman and degrading treatment) due to the state’s failure to assess the applicant’s protection needs and risk of exposure to treatment contrary to Article 13 (right to an effective remedy).
This judgment is important for three reasons:
1. provides clarification on the real and effective access to asylum procedures, especially when applicants are held in pre-removal detention where they are more vulnerable.
2. sheds light on the guarantee that authorities need to contact the applicant’s country of origin to identity and issue documents for their return, before their protection needs have been assessed.
3. The Court rejected the state’s argument on the voluntary character of the applicant’s return to Sudan and provided guidelines to clearly distinguish voluntary departure from forcible return.
3
Q
Amuur v France (1996)
A
- A Kurdish family from Turkey sought asylum in France, but were refused by French authorities.
- The ECtHR held that France had violated Article 3 of the ECHR (Convention), which prohibits unhuman or degrading treatment, because the family faced a real risk of being subjected to torture when returned to Turkey.
- The significance lies with its reaffirmation of the principle of non-refoulement, which is a fundamental principle of international refugee law.
- The case established an important precedent for the interpretation and application of Article 3 of the ECHR in asylum and refugee cases within the jurisdiction of the Council of Europe. It reinforced the obligation of states to assess the individual circumstances and risks faced by asylum seekers before making decisions on deportation or return.
4
Q
Hirsi Jamaa e.a. v Italy
A
- In 2009 a group of African migrants attempted to cross the Mediterranean sea from Libya to Italy, but were pushed back by the Italian coastguard.
- The applicants stated that the authorities did not inform them of their destination and took no steps to identify them.
- The ECtHR examined whether their interception and pushback operations, known as “Operation Hermes”, violated the rights of the migrants under the ECHR.
- It held that Italy had violated Article 3; inhuman and degrading treatment, and Article 4; no collective expulsions, because the migrants were pushed back without any individual assessments.
- Its significance lies in its reaffirmation of those two articles.
5
Q
ND & NT v Spain
A
- on 13 August 2014, 600 migrants attempted to cross the border fence. Two succeeded (the names in the case), and were immediately handed over to Moroccan authorities.
- They alleged no identification procedures were carried out in Spain and that they were not given the opportunity to explain their individual circumstances before being removed.
- The court held that there were no violations on collective expulsions, and also that the lack of individual removal decisions could be because the applicants had not made use of the official entry procedures existing for that purpose, and therefore it had been a consequence of their own conduct.
- The significance is that the precedent had been set that states may refuse entry to migrants and even push back persons who have entered the state’s territory, if they provide a ‘genuine and effective’ access to means of legal entry.
6
Q
Teitiota v New Zealand
A
- A man from Kiribati named Ioane Teitiota sought asylum in New Zealand due to the impact of climate change in his home country.
- He argued that the rising sea levels in his country constituted climate change refugees, as he and his family’s life would be at risk if they were forced to return.
- NZ Courts and subsequently the UN Human Rights Committee dismissed his claims. They ruled that the situation in his country did not meet the criteria for the refugee status under international law.
- The ICCPR has a standard more open to climate refugees; the inherent right to life for everyone, which would include people whose life is in danger due to climate change. The HRC of this org still argued that there was insufficient evidence for his life to be in danger.
- The case highlighted the complexities and limitations in applying existing refugee frameworks to individuals who are displaced or forced to migrate due to climate change.
7
Q
Gap in the Refugee Convention for legal pathway to entry
A
- Not remedied in EU instruments
- Attempts to prevent irregular entry
- Leads to irregular border crossings; 188.200 of those in first 8 months 2022
8
Q
Regulation 2018/1806 of EU
A
- This regulation determines which third countries are subject to, or exempt from, the visa requirements
- on the basis of a case-by-case assessment of a variety of criteria relating to illegal immigration, public policy and security, economic benefit, in particular in terms of tourism and foreign trade, and the Union’s external relations.
- There is a particular consideration of human rights and fundamental freedoms, as well as the implication of regional coherence and reciprocity.
- Article 3 outlines which countries have requirement of visa when crossing external borders of MS
- Article 4 which countries do not need a visa for stays less than 90 days each 180 day period
9
Q
Carrier Sanctions
A
According to Article 26, Convention implementing the Schengen Agreement:
- If people are refused at the border, the carrier which brought them there is obliged to assume responsibility for them again and return them to the third state
- The carrier is obliged to ensure that the person they carry is in possession of the travel documents required for entry
- If last point is not the case, in accordance with the Geneva Convention, the carrier will be imposed with penalties
10
Q
Non-refoulement
A
prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.
11
Q
De facto and de jure
A
De facto
“in fact” or “in reality.” It refers to a situation or condition that exists in practice or effect, regardless of whether it is officially recognized or legally valid.
De jure
“by law” or “according to law.” It refers to a situation or condition that is recognized or established as a matter of law. De jure status is based on legal authority, legitimacy, or formal recognition.
12
Q
Extra-territorial effect
A
Article 1 ECHR, obligation to respect human rights
- All members shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this convention
- Extraterritorial application of the ECHR is the exception: de facto or de jure effective control outside the territory of the contracting state
13
Q
Visa Code
A
The Visa Code is a regulation known as Regulation (EC) No 810/2009, which was adopted by the European Union (EU) in 2009. It establishes the common procedures and conditions for issuing short-stay visas, known as “Schengen visas,” which allow travelers to enter and stay in the Schengen Area for up to 90 days within a 180-day period.
Sets out the requirements for visa applications, including the necessary documents, processing times, and visa fees. It also defines the criteria for assessing visa applications, such as the purpose of the visit, means of subsistence, and the applicant’s intention to leave the Schengen Area before the visa expires.
14
Q
Article 3(1) UN Declaration on Territorial Asylum (UNGA, 1967)
A
No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.
15
Q
Art. 3(1) Procedures Directive
A
This Directive shall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection.
16
Q
Article 1 ECHR, Obligation to respect human rights
A
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
17
Q
Pushbacks
A
- the practice of forcibly preventing or returning individuals or groups of migrants, asylum seekers, or refugees from entering or crossing a border.
- No internationally agreed legal definition of the term “pushbacks”
- The special rapporteur on the human rights of migrants at the OHCHR defines it as:
“Various measures taken by states which result in migrants, including asylum seekers, being summarily forced back to the country from where they attempted to or have crossed an international border without access to international protection or asylum procedures or denied of any individual assessment on their protection needs which may lead to a violation of the principle of non-refoulement” - Pushbacks could also violate other fundamental rights, such as the right to life, the prohibition of torture and inhuman or degrading treatment or punishment, the right to property, and respect for private and family life.
18
Q
New Pact on Migration and Asylum
A
- On 23 September 2020, the Commission published its “new pact” on migration and asylum.
- “all necessary guarantees will be put in place to ensure that every person would have an individual assessment and essential guarantees remain in full, with full respect for the principle of non-refoulement and fundamental rights”.
- One of the legislative proposals accompanying the New Pact was the proposal for a new regulation on the screening of third-country nationals at external borders.
- It aims to “clarify and streamline the rules on dealing with third-country nationals who arrive at the EU borders in an irregular manner, including following disembarkation after SAR”, and introduces a pre entry screening procedure allowing national authorities at external borders to channel irregular third country national to the appropriate procedure, i.e. asylum or return procedures.
- Article 7 of the proposed regulation envisages the creation of a new “Independent Mechanism for monitoring fundamental rights”. They must ensure that allegations of non-respect for fundamental rights in relation to screening, including as regards access to the asylum procedure and non-compliance with the principle of non-refoulement, are dealt with effectively and promptly.
19
Q
Article 43 Procedures Directive, Border Procedures
A
MS may provide for procedures, in accordance with the basic principles and guarantees of Chapter II, in order to decide at the border or transit zones of the MS on:
- the admissibility of an application, pursuant to Article 33, made at such locations; and/or
- the substance of an application in a procedure pursuant to Article 31(8).
MS shall ensure that a decision in the framework of the procedures is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant shall be granted entry to the territory of the MS in order for their application to be processed.
In the event of arrivals involving a large number of TCN or stateless persons lodging applications for international protection at the border or in a transit zone, which makes it impossible in practice to apply, it may be done where that person is in proximity to the border or transit zone.
20
Q
Article 9(1) Procedures Directive, Right to remain
A
- Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. That right to remain shall not constitute an entitlement to a residence permit.
21
Q
The Temporary Protection Directive (TPD), I.E. Council Directive 2001/55/EC
A
- The TPD is a 2001 European Union directive that provides a legal framework for the provision of temporary protection to displaced persons from outside the external border of the EU.
- It is designed to address exceptional circumstances where the regular asylum system of the EU is overwhelmed by a significant influx of refugees or displaced individuals.
- When the TPD is invoked, it requires EU member states to offer immediate, temporary protection to eligible individuals in need. The directive establishes principles of solidarity and a “balance of efforts” among member states, ensuring that the responsibility for hosting and assisting displaced persons is shared across the EU.
- Activation threshold of the Directive was not deemed to be reached in a number instances such as during the Arab Spring and the large arrivals of Syrian refugees in 2015.
22
Q
The TPD for the Ukrainian refugee crisis
A
- On the 2nd of March 2022, the Commission presented its proposal for activating the application of the Directive
- On the 4th of March 2022, the Decision has been published in the Official Journal and entered into force
23
Q
Articles of the TPD
A
- Article 1: establishes a minimum standard for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin.
- Article 2: defines a ‘displaced person’: TCN who had to leave and are unable to return safely.
- Article 5(1): whether the threshold for a mass influx has been reached is determined by a Council decision adopted by QMV based on a proposal from the Commission.
- Article 5(2): The Commission proposal needs to include a description of the specific groups of persons to whom the temporary protection will apply.
24
Q
What rights are derived from TPD?
A
- Applicable to Ukrainians, TCN holders of international protection, TCN holders of permanent residence
- Immediate access to employment and self-employment activities
- Housing and suitable accommodation
- Social welfare and subsistence means
- Equal access to education
25
Definition of a climate refugee
There is no commonly accepted definition of a climate refugee, there are however, various proposed ones, such as:
“people “who moved [. . ] and who feel compelled to leave their usual place of residence because their lives, livelihoods and prosperity have been placed at serious risk due to adverse environmental, ecological and climatic processes and events,”
25
Definition of a climate refugee
There is no commonly accepted definition of a climate refugee, there are however, various proposed ones, such as:
“people “who moved [. . ] and who feel compelled to leave their usual place of residence because their lives, livelihoods and prosperity have been placed at serious risk due to adverse environmental, ecological and climatic processes and events,”
26
Positive Law
In legal terminology, "positive law" refers to the body of law that is created by a recognized authority or enacted by a legislative body. Positive law is contrasted with other forms of law, such as natural law or divine law, which are believed to derive from inherent moral principles or religious doctrines.
27
Positive laws on climate refugees
- Geneva (Refugee) Convention of 1951. Not part of the EU, but has EU MS as a part of it, the EU however acts in accordance with the Geneva Convention (Art. 78 TFEU and Art. 18 EU CFR). The problem is that the definition of a refugee given in this convention does not include climate refugees.
- International Covenant on Civil and Political Rights. A human rights treaty binding upon all state parties and applicable on their respective state territory. The Human Rights Committee can adopt “views”. Art. 6 guarantees the inherent right to life for everyone, therefore implicitly including the principle of non-refoulement and making climate refugees more a reality. In the case of Teitiota v New Zealand, the HRC established that environmental degradation is a valid reason for claims of being a refugee.
- European Convention on Human Rights
- European Charter of Fundamental Rights. Within these last two, there is no case in the EU context, where non-refoulement is linked with environmental degradation/effects of climate change in the country of origin.
- Temporary Protection Directive. This one is difficult for climate refugees, as it requires a mass influx of people, and climate change related problems often are slow-onset disasters.
- National law of MS. Some MS like Finland and Sweden offered protection on different legal grounds (up to national discretion). Any MS can offer protection on the basis of a humanitarian visa.
28
Frontex
The European Border and Coast Guard Agency responsible for coordinating border management and cooperation among EU member states.
29
Dublin Regulation
An EU regulation that determines which member state is responsible for processing an asylum application within the EU.
30
European Asylum Support Office (EASO)
An agency supporting EU member states in asylum-related matters.
31
Internal border controls
Temporary re-imposition of border checks within the Schengen Area in exceptional circumstances.
32
European Migration Network (EMN)
A network that provides up-to-date, objective, and comparable information on migration and asylum in the EU.
33
Platform for International Cooperation on Undocumented Migrants (PICUM)
network of organizations focused on promoting the rights of undocumented migrants.
34
European Citizenship
every person holding the nationality of a Member State (MS) shall be a citizen of the Union. Outlined in TFEU Art 20.
35
Tampere European Council of 1999
- A Council meeting which concluded that the EU must ensure fair treatment of third country nationals who reside legally on the territory of MS.
- A more vigorous integration policy should aim at granting them rights and obligations comparable to EU citizens.
- A person who has resided legally for a determined period of time, should be granted with the same rights as native citizens have.
36
Council Directive 2003/109/EC
- A directive that reminded MS of the conclusions of the Tampere EC of 1999.
- legal status of TCN should be approximated to that of MS' nationals
- after a long-term residence, should be granted a set of uniform rights which are as near as possible to those enjoyed by citizens of the EU.
37
Council Directive 2003/86/EC
- on the right of family reunification
- The EU should ensure fair treatment of TCN residing lawfully on the territory of the MS
- A more vigorous integration policy should aim at granting them rights and obligations comparable to those of citizens of the EU
38
C-673/16 Coman
- two gay men married and moved around the EU.
- case ruled that if two gay people marry in an EU country that recognizes same sex marriage, they have the same right to move as an opposite sex marriage would.
- Romania, where this happened, still has not implemented the verdict.
39
C-85/96 Martinez Sala
- Ms. Sala is Spanish and lived in Germany, she had a child, but was not given child allowance because she did not have Germany nationality and did not work.
- The Court held that she should have gotten the allowance.
- It is discriminatory to require an EU citizen to produce a residence permit for which the national did not need to provide.
40
C-184/99 Grzelczyk
- A French man studied in Belgium and in his final year he applied for minimum income. He was refused for not being Belgian.
- The Court held that he was entitled to the minimum income.
- Even if a student is required to have sufficient resources, there is no requirement to preclude students from receiving social security.
41
Case C-370/90 Surinder Singh
- An Indian citizen married a British one. After they moved back to the UK, they divorced which led to him being removed from the country.
- The Court held that EU free movement rules overrode domestic legislation and as such he was entitled to remain in the UK.
- EU free movement rules override domestic legislation.
42
C-291/05 Eind
- Surinamese man moved to the UK from the Netherlands. While there he had his daughter from Suriname move to him and they then moved back to the Netherlands together. The Netherlands wanted to remove her from the country.
- The Court ruled she had the right to install herself with her father, even if the father is economically inactive.
- When a citizen lives (does not need to work) in another country and then comes back, they have the right to bring over their TCN family members they brought over when living in that other country.
43
C-145/09 Tsakouridis
- a Greek national who was born and raised in Germany. After being prosecuted for dealing in narcotics he was removed from the country and back to Greece for being a threat to public security.
- The Court had to clarify some things about determining whether this was justified or not.
- Under directive 2004/38 citizens have the right against expulsion measures being taken against them. Whether this applies to someone is based on a variety of factors; the duration of each period of absence from the host MS, the cumulative duration and the frequency of those absences, while also taking into account the reasons why the person left the host MS.
- One can be expelled from a MS, when one is an ‘imperative danger to public security’. For this to succeed a high degree of seriousness was required; trafficking narcotics as part of an organized group that could reach a level of intensity that might directly threaten the calm and physical security of the population as a whole.
44
C-348/09 P.I.
- Mr. P.I. had lived in Germany since 1987. He raped his former partner's daughter from 8 years onward. In 2008 he was convicted for 7 years and lost the right to reside in Germany.
- A preliminary reference was about the extent to which being a threat to public security could expulsion.
- Getting expelled required one to be a serious threat to public security. According to the court, a criminal offense needs to constitute a serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population, capable of justifying an expulsion measure. This is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.
45
C-400/12 M.G.
- A Portuguese couple entered the UK where they had three sons. She gave up her work for the children with the husband supporting till the separation. She was sentenced to 21 months for abusing the children. While in prison she applied for permanent residence in the UK, but they deported her instead.
- The Court said that her time spent in prison does not count to the total time lived in another MS.
46
C-456/02 Trojani
- French man lived at the salvation army in Belgium. He worked odd jobs around the hostel for some pocket money and lodging. He applied for minimum income, but was refused on the ground of not being a citizen of Belgium.
- the ECJ clarified some stuff about how to determine such a case.
- One can live and become a part of another country, including gaining its social benefits if one works in that country. The court specified what this exactly means; first one needs to be subordinate to someone and then gain payments in remuneration from that. Second, the paid activity would have to be real and genuine.
47
C-140/12 Brey
- a German couple moved to Austria in 2011. He required an invalidity pension, but was excluded because he did not have sufficient resources to live in Austria.
- EU law would work to prevent national legislation which would bar the grant of a benefit to a national of another Member State who was not economically active.
48
C-333/13 Dano
- A Romanian mother and son claimed unemployment benefits at the Leipzig social court. She was denied because she had to be able to earn a living.
- When someone moves to another country without being able to work and therefore integrate oneself into the new country, they do not have the right to invoke the principle of non-discrimination when applying for social assistance.
- Citizens must not become an unreasonable burden on the social assistance of the host Member State. If one lives in another MS, but is not able to financially sustain themselves, they do not have the right of obtaining social benefits.
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