When Their Need is Bigger Than Our Will: Making a Case for Secondary Movements

Guest post by Paolo Biondi, School of Advanced Study, University of London. Paolo is an independent consultant on migration and refugee law policy and a PhD Candidate at the School of Advanced Study, University of London. His research focusses on responsibility-sharing in the EU as an interest-based obligation. Paolo is an affiliate to the Refugee Law Initiative and an associate member of the International Association of Refugee Judges with whom he is currently working on a project that explores the way judges must interpret and apply the best interest of the child under the EU law for the purpose of family unity. Paolo is on Twitter @PaoloBiondi82.

Responsibility allocation rather than solidarity and fair-sharing of responsibility is the primary scope of the Dublin Regulation; an issue which has made the headlines again amid the recent migratory pressure on Southern Europe. Greece and Italy, due to their geographical location, are at the frontline of the so called ‘migration crisis’, and both have found their asylum systems under increased pressure, despite technical and practical support from the European Asylum Support Office (EASO). The EU has also provided some solidarity measures to Greece and Italy through the promotion of a small-scale relocation scheme and the EU humanitarian response but neither achieved any noteworthy results. The relocation of asylum seekers from Italy is even slower and less efficient than the one from Greece. As the key routes to Greece and central Europe have been closed or made more difficult to cross, more people have travelled through Libya to Italy. While they arrive in the south, Italy’s northern neighbouring Member States, Austria and France, are sealing their borders.

In the past, the European Court of Human Rights (ECtHR) (see here and here) and the Court of Justice of the European Union  (CJEU) both held that it was unlawful to return asylum seekers to Member States under pressure such as Greece and Italy (Dublin non-return case law); thus suspending transfers to Greece. However, the EU and some Member States  recently decided to reinstate returns to Greece under the Dublin Regulation, despite the fact that the Greek asylum system continues to display systematic failures and  arrivals from Turkey seem unabated. It is very likely that some, if not most, of these return requests will be challenged before the EU courts.

The returns are very likely to be challenged because some national courts recently issued decisions regarding requests for admission which rebut the EU presumption of equivalent protection once again. Much alike the non-return cases, but with a reverse mechanism, these requests are based on the foreseeable negative impact that denying entry may pose; thus, suggesting that the asylum procedure and conditions in some member states are inappropriate to safeguard the fundamental rights of vulnerable persons, such as unaccompanied children, so they must be speedily transferred to another Member State bypassing the Dublin initial procedure as a whole or only in part, depending on the existence of compelling circumstances.

The UK courts started addressing this emerging stream of jurisprudence on the entry human rights principle, by interpreting the positive and preventive obligations intrinsic in the non-refoulement principle and the right to family unity in the landmark ZAT case, following other decisions, which took the same approach (e.g. MK, IK, HK  UK – AT and another, RSM and SA & AA). In these cases, the obligations related to the respect of fundamental rights and the right to seek asylum in a safe EU Member State, have limited the discretion to regulate admission from one Member State to another, i.e. closing the borders or slowing down transfers from Member States under pressure.

In RSM, the UK court stressed that the application of the Dublin Regulation’s criteria in a transfer request from Italy to the UK must be compatible with the principles of solidarity and mutual trust. This means that in regulating entry to their territories, Member States are bound by positive obligations stemming from the principles of solidarity and mutual trust. The CJEU in NS/ME took a similar stance with regard to returns to Greece pointing to the fact that Member States can exercise some discretion on the allocation of responsibility, but they must always comply with the EU Charter of Fundamental Rights, the rules of the 1951 Convention and the principle of solidarity entrenched in Article 80 TFEU.

Moreover, in Karim and Ghezellbash the CJEU also recognised an individual right to the correct application of the Dublin criteria and recently in Mengesteab the CJEU underlined that the Dublin Regulation not only regulates inter-states relations, but also generates subjective rights for asylum seekers. So responsibility allocation depends on state-refugee relations (capacity to guarantee basic human rights) rather than solely on inter-states policy and politically-driven decisions.

The EU courts, therefore, not only need to remain against returns to Greece and possibly to Italy, but they also need to adopt the UK jurisprudence on the entry human rights principle. A promising case is already pending before the ECtHR concerning Greece and Germany. However, the issue has been recently addressed further in the cases C-490/16 and C-646/16 before the CJEU. Regarding the latter, Advocate General (AG) Sharpston in her opinion stressed that the Dublin Regulation is not designed to achieve solidarity and fair sharing of responsibility, in particular, in response to an exceptional influx of persons. Border countries are responsible for an excessive burden with a resulting risk that they will simply be unable to cope with the situation and to comply with their obligations under EU and international law.

For this reason, the Advocate General has suggested to facilitate secondary movements from countries under pressure and transit across Member States in order to promote a more equitable distribution of people and avoid violation of basic human rights. Member States should derogate to the Dublin Regulation’s irregular entry criterion –  to allow border crossing on humanitarian grounds or under international obligations. This interpretation is consistent with both the non-return case law and the entry human rights principle which require that – when the respect of fundamental rights cannot be granted – the Dublin Regulation’s criteria imposing pressure must be derogated from to favour other criteria that promote a more balanced allocation of responsibility and the respect of human rights.

In what seems to be  a much discussed judgement, the CJEU in contrast to the Advocate General’s opinion, ruled that irregular crossings cannot be allowed on humanitarian grounds. This was possible because the CJEU did not take the opportunity to clarify the positive obligations intrinsic in the non-refoulement principle in line with its own jurisprudence and that of the ECtHR (see Hirsi and the CJEU non-return case law). While the CJEU encouraged unilateral or bilateral solidarity reminding that the transfer to the responsible Member States is subject to their capacity to comply with the EU and international obligations, this is not enough.

The CJEU missed to address the question as to whether in some circumstances, the denial to perform secondary movements might have the same effect of returns. Since the EU presumption of equivalent protection can be rebutted by the actual circumstances prevailing in the Member States, it should be possible to rebut it both in the case of return requests and denial of admission (denied right to perform secondary movements), as the impact on the individuals affected by both decisions may be the same and result in the violation of basic human rights. So if fundamental rights are at risk, an alternative allocation of responsibility must take place, even if this means allowing secondary movements.

The CJEU’s recent decision in Slovakia and Hungary v Council, confirmed this narrow approach. The court established that the principle of solidarity is an entirely binding EU rule, from which derive enforceable legal obligations to EU Institutions and Member States: (§256, 251, 252). However, by affirming the binding nature of solidarity and relocation but at the same time dismissing alternative temporary derogations, it limited the solidarity obligation to a centralised discretional decision, going against its own precedent. The CJEU failed to remind that when fundamental rights are at risk, as an obligation, an alternative allocation of responsibility must take place, generating subjective rights for individuals independent from inter-state agreements. So a right to perform secondary movements according to objective criteria may become a temporary derogation from the Dublin Regulation’s irregular entry criterion, legally and individually enforceable whenever fundamental rights are at risk.

By confirming that the right to allocate responsibility and limit secondary movements is not absolute but rather conditional upon the respect of basic human rights, the courts can prompt a much-needed shift towards a more coherent and realistic EU responsibility allocation system.

Member States and the EU institutions can choose how to promote more shared responsibility. However, they need to keep in mind that the discretion is not absolute as it must comply with the EU Charter of Fundamental Rights.

The judges in the impending decisions of the ECtHR and CJEU will play a key role moving towards a fairer EU responsibility allocation policy. Judges do not need to create new laws: the entry human rights principle is inherent in the non-refoulement principle. Judges just need a more dynamic approach to its interpretation. In so doing, they can protect the effectiveness of the right to seek asylum in a safe country where the dignity of a person is respected.

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How to cite this blog post (Harvard style)

Biondi, P. (2017) When Their Need is Bigger Than Our Will: Making a Case for Secondary Movements. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/09/when-their-need (Accessed [date])