THE THIRD CIRCLE: EU ASYLUM AND REFUGEE STATUS LAW by eP7nKyhb

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									       THE THIRD CIRCLE: EU ASYLUM AND REFUGEE STATUS LAW

1. TREATY PROVISIONS ON ASYLUM AND REFUGEE STATUS


1.1 Article 78 TFEU envisages a common EU policy on:

         a)        asylum in respect of persecution;

         b)        subsidiary protection in respect of harm; and

         c)        temporary protection in respect of an emergency sudden and massive
         displacement of peoples;



         all with a view to offering appropriate status to any third-country national requiring
         international protection and ensuring compliance with the principle of non-refoulement.1
1.2 This EU asylum policy must not contravene the requirements of the 1951 Refugee
      Convention (as amended) and any other relevant treaties. The EU legislator is given power to
      adopt EU secondary laws on:

         a)        an EU-wide standard on 'asylum status' for third-country nationals2;


1
    See Art 33(1) of the 1951 Geneva Convention on Refugees:
           'No contracting State shall expel or return ("refouler") a refugee in any manner whosoever to the frontiers
           of territories where his life or freedom would be threatened on account of his race, religion, nationality,
           membership of a particular social group or political opinion.'
See also R v Secretary of State for the Home Department, ex p Adan [2001] 2 AC 477, holding that the principle of
non-refoulement applied to prevent a transfer of an asylum seeker within the EU so as to allow the Member State of
entry to consider his asylum claim. The principle of non-refoulment applied on the basis that, at the time, the
Member States in question (France and Germany), in contrast to the UK, did not recognise the principle that
persecution by private non-State bodies could amount to persecution for the purposes of an asylum claim. See now
H Battjes, 'In search of a fair balance: the absolute character of the prohibition of refoulement under article 3 ECHR
reassessed' (2009) 22 Leiden Journal of International Law 583.
       b)        an EU-wide standard on 'subsidiary protection status' for third country nationals
       who, without obtaining European asylum, are in need of international protection;

       c)        a common system of temporary protection for displaced persons in the event of a
       massive inflow;

       d)        common procedures for the granting and withdrawing of EU asylum or subsidiary
       protection status;

       e)        criteria and mechanisms for determining which Member State is responsible for
       considering an application for asylum or subsidiary protection;

       f)        minimum standards concerning the conditions for the reception of applicants for
       asylum or subsidiary protection;

       g)        partnership and cooperation with third countries for the purpose of managing
       inflows of people applying for asylum or subsidiary or temporary protection. The Council
       may also adopt appropriate provisional measures for the benefit of a Member State in the
       event of a sudden emergency inflow of people into it.


2. THE EU CHARTER              OF    FUNDAMENTAL RIGHTS               AND    ASYLUM       AND    INTERNATIONAL
    PROTECTION

2.1 Article 18 of the EU Charter of Fundamental Rights (“CFR”) is a new provision in EU law,
    expressly guaranteeing the right to asylum


2
  The Lisbon Treaty Protocol 24 envisages that asylum will not be able to be claimed – other than in the most
exceptional circumstances involving a complete breakdown of democratic and fundamental rights protection – from
one Member State against another. As the Court of Justice notes in Case C-306/09 Criminal Proceedings against IB,
21 October, [2010] ECR I-nyr at para 44:
        “Protocol No 24 annexed to the TFEU provides inter alia that, given the level of protection of fundamental
        rights and freedoms by the Member States of the European Union, Member States are to be regarded as
        constituting safe countries of origin in respect of each other for all legal and practical purposes in relation
        to asylum matters.”
          with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31
          January 1967 relating to the status of refugees and in accordance with the Treaty on European
          Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the
          Treaties’).



2.2 Article 19(1) CFR prohibits 'collective expulsions' in the same terms as Article 4 of Protocol
      4 to the ECHR. It is intended to underline the point that any expulsion decision has to be
      made on an individual and individualised basis; and in particular, general expulsion measures
      pronounced on the basis of particular ethnicity (for example, Roma) or nationality cannot
      lawfully be pronounced. Article 19(2) CFR – in accordance with the established Article 3
      case law of the European Court of Human Rights3 – asserts that

          no one may be removed, expelled or extradited to a State where there is a serious risk that he or
          she would be subjected to the death penalty, torture or other inhuman or degrading treatment or
          punishment.


3. SECONDARY EU LEGISLATION ON ASYLUM AND REFUGEE STATUS


The Dublin Regulation

3.1 The Dublin (EC) Regulation 343/20034 sets out criteria for determining which Member State
      is the responsible State for the purposes of the examination and determination of an asylum
      claim made within the territory of the EU, which is not necessarily the State in which the
      asylum claim was lodged or made (factors such as family member residence, or the earlier
      grant of a visa or residence permit come into play first). 5 If an asylum application is refused
      by the Member State responsible, this refusal binds all Member States.6



3
 See, eg, Ahmad v United Kingdom (Admissibility) (2010) EHRR SE6; NA v United Kingdom (2009) 48 EHRR 15;
Saadi v Italy (2009) 49 EHRR 30; Mamatkulov v Turkey (2005) 41 EHRR 25; Chahal v United Kingdom (1997) 23
EHRR 413; Soering v United Kingdom (1989) 11 EHRR 439.
4
    [2003] OJ L50/1.
5
 See too the European Asylum Support Office Regulation (EU) No 439/2010 [2010] OJ L132/11, which establishes
an EU 'centre of expertise' on asylum based at Valletta Harbour in Malta, which is tasked with
        'facilitating, coordinating and strengthening practical cooperation among Member States on the many
        aspects of asylum, so that Member States are better able to provide international protection to those
3.2 There appears, however, to have been a breakdown in the asylum processing system in
                                                           7
      Greece.       In MSS v Belgium and Greece                the Grand Chamber of the European Court of
      Human Rights held – effectively overruling the earlier Strasbourg non-admissibility decision
                                       8
      in KRS v United Kingdom              – that there has been a violation by Belgium of Art 3 ECHR
      because, by sending an asylum seeker back to Greece under and in terms of the Dublin
      Regulation, the Belgian authorities exposed the applicant to risks linked to the deficiencies in
      the asylum procedure in that State.9At the time of writing the decision of the CJEU in NS v
                                                                10
      Secretary of State for the Home Department,                    a preliminary reference from the Court of
      Appeal of England and Wales, was awaited.                 The case is one in which an Afghan asylum
      seeker is challenging his return from the United Kingdom to Greece. Against this
      background, the referring court essentially asks whether, and if so in what circumstances, the
      United Kingdom may be required under EU law to assume responsibility for examining
      asylum applications itself, even though Greece is primarily responsible for the examinations
      under Dublin Regulation No 343/2003. The specific issues raised include, among other
      things, the scope of the Member State’s obligations to use Art 3(2) of the Dublin Regulation
      to process an individual’s asylum claim in circumstances where there is a real risk of
      breaches of fundamental rights protected by the CFR, including the right to asylum.                          The
      Advocate General in an Opinion dated 22 September 2011 has suggested that the CJEU make
      rulings to the following effect:

           entitled, while dealing fairly and efficiently with those who do not qualify for international protection,
           where appropriate.'
6
    See Case C-19/08 Migrationsverket v Petrosian [2009] ECR I-495.
7
    MSS v Belgium and Greece [2011] ECHR 30696/09 (Grand Chamber, 21 January 2011),
8
    KRS v United Kingdom (2009) 48 EHRR SE8
9
  It should be noted that the Article 6(1) ECHR jurisprudence of the European Court of Human Rights affording a
right to due process and a fair hearing is confined to disputes relating to 'civil law' rights and obligations, and does
not apply to disputes which the Strasbourg institutions might otherwise characterise as public law matters falling
outwith the civil limb of Article 6(1) ECHR, such as disputes in relation to immigration status: Maaouia v France
(2001) 33 EHRR 42
10
  Case C-411/10 NS v Secretary of State for the Home Department. This case has been conjoined with Case C-
493/10 ME and Others v Refugee Applications Commissioner and Minister for Justice and Law Reform a
preliminary reference the High Court (Ireland)).
(1) A decision made by a Member State under Article 3(2) of the Dublin Regulation (EC)
   No 343/2003 on whether to examine a claim for asylum which is not its responsibility
   under the criteria set out in Chapter III of the regulation constitutes a measure
   implementing European Union law for the purposes of Article 51(1) of the Charter of
   Fundamental Rights.

(2) A Member State in which an asylum application has been lodged is obliged to exercise
   its right to examine that asylum application under Article 3(2) of the Dublin
   Regulation No 343/2003 where transfer to the Member State primarily responsible
   under Article 3(1) in conjunction with the provisions contained in Chapter III of the
   Regulation would expose the asylum seeker to a serious risk of violation of his
   fundamental rights as enshrined in the Charter of Fundamental Rights.

(3) Serious risks of infringements of individual provisions of other EU law provisions
   relevant in this are – for example the Receptions Directive 2003/9/EC, the
   Qualifications Directive 2004/83/EC or the Procedures Directive 2005/85/EC - which
   do not also constitute a violation of the fundamental rights of the asylum seeker to be
   transferred are not sufficient, on the other hand, to create an obligation on the part of
   the transferring Member State to exercise the right to assume responsibility for the
   examination itself under Article 3(2) of the Dublin Regulation No 343/2003.

(4) The obligation to interpret the Dublin Regulation No 343/2003 in a manner consistent
   with fundamental rights precludes the operation of any conclusive presumption
   according to which the Member State primarily responsible for examining an asylum
   application will observe the asylum seeker’s fundamental rights under European Union
   law and all the minimum standards laid down in Directives 2003/9, 2004/83 and
   2005/85.

(5) The Member States are not barred, on the other hand, from proceeding from the
   rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s
              human rights and fundamental rights will be observed in the Member State primarily
              responsible for his asylum application.

          (6) Under Article 52(3) of the Charter of Fundamental Rights it must be ensured that the
              protection guaranteed by the Charter in the areas in which the provisions of the Charter
              overlap with the provisions of the Convention for the Protection of Human Rights and
              Fundamental Freedoms (‘ECHR’) is no less than the protection granted by the ECHR.
              Because the extent and scope of the protection granted by the ECHR has been clarified
              in the case-law of the European Court of Human Rights, particular significance and
              high importance are to be attached to that case-law in connection with the
              interpretation of the relevant provisions of the Charter of Fundamental Rights by the
              Court of Justice.

          (7) National courts cannot apply any national law which obliges the national courts to
              proceed from the conclusive presumption that another Member State is a safe country
              in which asylum seekers are not exposed to the risk of expulsion to a persecuting State
              which is contrary to the Geneva Convention or with the ECHR. To apply such a
              presumption would be incompatible with Article 47 of the Charter of Fundamental
              Rights.

          (8) The interpretation of Protocol (No 30) on the application of the Charter of
              Fundamental Rights of the European Union to Poland and to the United Kingdom has
              not produced any findings which could call into question the validity for the United
              Kingdom of the provisions of the Charter of Fundamental Rights which are relevant in
              the present case.


The Reception Directive

3.3 The Asylum Application (Material Benefits) Directive 2003/9/EC11 (also known as the
       'Reception Directive' and in which the UK, but not Ireland, participates) sets out the material

11
     [2003] OJ L31/18.
       benefits which Member States must provide to any asylum seeker in their territory, and
       provides certain procedural protections to the asylum seeker against refusal or restriction of
       such benefits. These material benefits should be adequate for the health and subsistence of
       any asylum seeker, and include food, clothing and accommodation, as well as access to
       health care.12 Access to these benefits may in principle be means-tested. If a first instance
       decision on the asylum seeker’s status has not been taken within one year of the application –
       and this delay cannot be attributed to the applicant – then Member States must allow the
       asylum seeker the possibility of (albeit unequal) access to its labour market. Benefits under
       this Directive may be withdrawn for various reasons, including non-compliance by the
       applicant with the requirements of the process.


The Qualification Directive

3.4 The Refugee and Subsidiary Protection Directive 2004/83/EC13 (also known as the
       'Qualification Directive', and in which the UK and Ireland are each fully participating)
       effectively implements, as a matter of EU law,14 the 1951 Geneva Convention on the status
       of refugees,15 although a request in one Member State for the grant of refugee status or

12
  See too R (on the application of Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 (HL)
on the obligation to provide material assistance to prevent breaches of Art 3 ECHR due to lack of food and shelter.
13
     [2004] OJ L304/12.
14
     See Ahmed v United Kingdom [2008] ECHR 31668/05 (Fourth Section, 14 October 2008):
           '[The applicant] relied on Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the
           qualification and status of third country nationals or stateless persons as refugees or as persons who
           otherwise need international protection and the content of the protection granted). The Directive meant
           Article 3 ECHR had now to be regarded as a civil right within the meaning of Article 6 ECHR. The
           Directive required Member States of the European Union to give subsidiary protection to a third country
           national when his removal would infringe Article 3 ECHR and subsidiary protection status entitled that
           person to a number of rights including access to employment, welfare payments and accommodation. The
           applicant had been deprived of those benefits. No redress had been provided. ... [T]he Court reiterates that
           it is not its task to apply directly the level of protection offered in other international instruments. The
           applicant’s submissions on the basis of Directive 2004/83/EC are outside the scope of its examination of
           the present application (NA v the United Kingdom (2009) 48 EHRR 15 at paragraph 107).'
15
  In Case C-31/09 Bolbol v Bevándorlási és Állampolgársági Hivatal, 17 June, [2010] ECR I-nyr, the Grand
Chamber observed (at paras 36–38):

           'The Directive was adopted on the basis of, inter alia, point (1)(c) of the first subparagraph of Article 63 EC
           [now Article 78 TFEU] which required the Council of the European Union to adopt measures on asylum, in
       subsidiary protection by a national of another Member State does not fall within the scope of
       the international protection mechanism established by Directive 2004/83/EC.16



3.5 As well as mirroring the Geneva Convention definition of 'refugee', the Directive allows for
       the possibility of subsidiary protection from a real risk of suffering harm if the individual is
       returned to the former country of origin or residence from which he has fled. The Directive
       sets out the procedure for establishing entitlement to refugee or subsidiary status, with the
       onus placed upon the applicant to substantiate his case for such status protection. It
       specifically allows for the idea for the acts of persecution to include non-State actors, if it can
       be demonstrated that the State, or parties in effective control (of a substantial part) thereof or
       international organizations are unable or unwilling to provide protection against the
       complained of persecution or harm. The acts of persecution have to be sufficiently serious to
       constitute a serious violation of human rights, or adversely to affect the individual in a
       similar manner. Article 10 of the Directive expands on the original Geneva criteria of the
       grounds or basis for persecution: ‘race’ is said to include ethnicity; ‘religion’ also includes
       conscientious non-participation in religious rituals; ‘nationality’ includes cultural, ethnic or
       religious identity: ‘political opinions’ might be held, but not acted upon; and being part of ‘a
       particular social group’ means may include a group constituted by its members’ shared
       sexual orientation.17 Further, relevant persecution for the purposes of the Directive may be
       founded on the persecutor’s subjective perception of, or attribution of characteristics to, the

           accordance with the Geneva Convention and other relevant treaties, within the area of minimum standards
           with respect to the qualifications of nationals of third countries as refugees. … It is apparent from recitals 3,
           16 and 17 in the preamble to the Directive that the Geneva Convention constitutes the cornerstone of the
           international legal regime for the protection of refugees and that the provisions of the Directive for
           determining who qualifies for refugee status and the content thereof were adopted to guide the competent
           authorities of the Member States in the application of that convention on the basis of common concepts and
           criteria … The provisions of the Directive must for that reason be interpreted in the light of its general
           scheme and purpose, while respecting the Geneva Convention and the other relevant treaties referred to in
           point (1) of the first subparagraph of Article 63 EC. Those provisions must also, as is apparent from recital
           10 in the preamble to the Directive, be interpreted in a manner which respects the fundamental rights and
           the principles recognised in particular by the Charter of Fundamental Rights of the European Union.'
16
     See Case C-306/09 Criminal Proceedings against IB, above n 144, at para 45.
17
     See now HJ (Iran) v Home Secretary [2010] 3 WLR 386, [2010] UKSC 31.
       persecuted individual, rather than on that individual’s objectively having those
       characteristics. Refugee protection may still nonetheless be refused on a variety of grounds,
       including:

          a)        there are serious reasons to believe that the applicant has been guilty of crimes
          against humanity or otherwise has acted against the UN principles or has committed other
          serious non-political crimes18; or

          b)        there are reasonable grounds for considering the applicant to be a danger to State
           security.

3.6 In terms of 'subsidiary protection', 'serious harm' includes the possibility of the death penalty
       or execution, torture or degrading treatment, or serious and individual threat to a civilian’s
       life by reason of indiscriminate violence in situations of international or internal armed
       conflict. In Elgafaji v Staatssecretaris van Justitie,19 the Grand Chamber of the Court of
       Justice went beyond the jurisprudence of the European Court of Human Rights on Article 3
       ECHR20 in holding that the requirement that there be in existence a serious and individual
       threat to the life or person of the applicant, is not subject to the condition that that applicant
       adduce evidence that he or she is specifically targeted by reason of factors particular to his or
       her personal circumstances but may, instead, be found to be established where there is shown
       to be indiscriminate violence implicating civilians characterising the armed conflict in the
       territory from which refuge is sought.21 Whereas the rights granted on refugee status in effect

18
  See Joined Cases C-57/09 & C-101/09 Germany v B and D, 9 November, [2010] ECR I-nyr, in which the Grand
Chamber holds that mere membership and support of a militant organisation is not sufficient to pray in aid this
exemption. Specific evidence of an individual being involved in serious non-political crime against UN principles is
necessary.
19
     See Case C-465/07 Elgafaji v Staatssecretaris van Justitie [2009] ECR I-921.
20
     Contrast with the decision of the ECtHR in FH v Sweden (2010) 51 EHRR 42.
21
  See also QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620; 971; [2010] Imm. AR
132 holding that the Qualification Directive was aimed at individuals who needed protection but who did not
necessarily qualify under either the Geneva Convention 1949 or the European Convention on Human Rights 1950.
Among those were people whose lives or safety, if returned to their home area, would be imperilled by endemic
violence. But the existence of a serious and individual threat to the life or person of an applicant for subsidiary
protection was not subject to the condition that that applicant adduce evidence that he was specifically targeted by
reason of factors particular to his personal circumstances; the existence of such a threat could exceptionally be
       seek the integration of the individual into the home State, the subsidiary protection against
       serious harm is envisaged to be more limited and transient pending the return of the
       individual to his or her country of origin once the risk of harm has receded, albeit that
       refugee status may be withdrawn if there are no longer grounds for fearing persecution on the
       basis of which refugee status was accorded.22


                              23
3.7 In HM and Others               the Upper Tribunal considered whether the situation in Iraq (and in
       particular parts of Iraq) was sufficiently severe to give rise to a need for protection under
       Article 15(c). It considered a wide variety of evidence and concluded that the current
       situation in the parts of Iraq it had regard to was not now sufficiently severe to give rise to a
       right of protection under Article 15(c). That decision is currently subject to appeal before the
       Court of Appeal.


                                                          24
3.8 By contrast in Yearbook No. KHO: 2010:84                   the Finnish equivalent of the Court of Appeal
       was required to decide whether a person who had claimed asylum in Finland was entitled to
       protection in terms of the Directive. Having rejected the Applicant’s claim to be at personal
       risk of persecution or a breach of his Article 2 or 3 rights if he were to be returned to Iraq the
       Court went on to consider whether he was entitled to protection under Article 15(c) of the
       directive. It ruled that he was. The basis of that decision was that although the Finnish
       Appeal Court had concluded that the situation in Iraq had improved significantly and there
       was not now the level of violence that there had been in the past, the very high levels of
       violence in the past had been prevalent for many years and although this had diminished it

considered to be established where the degree of indiscriminate violence, as assessed by the competent national
authorities, reached such a high level that substantial grounds were shown for believing that a civilian, returned to
the relevant country or region, would, solely on account of his presence in that territory, face a real risk of being
subject to that threat
22
  See Joined Cases C-175/08, C-176/08, C-178/08 & C-179/08 Salahadin Abdulla and Others, 2 March, [2010]
ECR I-nyr, paras 65–76
23
  HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) Upper Tribunal (Immigration and Asylum
Chamber, 22 September 2010)
24
     Yearbook No. KHO: 2010:84 Date 30/12/2010 Taltionumero 3963 Registration 2667/1/10 and 2719/1/10
   was too soon to say that the diminution was other than temporary. Article 15(c) protection
   was therefore an entitlement for the Applicant.



3.9 There would therefore appear to be a difference in the factual assessment and legal
   conclusions reached by the Upper Tribunal in an English case and the Finnish Appeal Court.
   The CJEU in Elgafaji had held that it was for the domestic courts of member states to reach
   conclusions on whether the level of violence in a particular state or area reached the 15(c)
   level. Different courts within different Member States would seem therefore to be reaching
   diametrically opposed conclusions on broadly the same evidence in respect of whether Iraq
   (and in particular Baghdad) meets the criteria for a grant of protection. That difference may
   be thought to run counter to a fundamental aim of the Directive, which are to have a common
   approach to who is and is not entitled to protection across the EU in order to prevent ‘forum
   shopping’. As it currently stands an applicant for asylum from Iraq would be well advised to
   make his way to Finland and claim asylum there.           It would be surprising if, within a
   framework of a common approach and the discouragement of forum shopping, EU law
   allowed that the courts in each Member State might independently reach their own
   conclusion on the applicability of Article 15(c). That could result in 27 different answers to
   whether a person should be granted residence in a member state. It should be recalled that
   the Finnish Court said that the reason for 15(c) being applicable was that although looking at
   the situation in Baghdad today it did not meet the 15(c) criteria, it had done for so long in the
   past that it could not be said that the situation there was other than temporary. If that is the
   correct approach each Member State will also require to reach its own view on the stability of
   the new improved situation. That does not seem to be a recipe for a stable EU wide approach
   to asylum seekers. It may be that a further preliminary reference on this issue to the CJEU
   might result in the Luxembourg Court reaching its own view on the stability or otherwise of
   Iraq and instructing a common approach on this issue among the courts of the Member
   States.
3.10       On the issue of the relationship between Article 15(c) of the Qualifications Directive and
       Article 3 ECHR the European Court of Human Rights has recently observed in Sufi and Elmi
       v. UK:

           “The Court’s assessment
           225. In Elgafaji the ECJ held that article 15(c) would be violated where substantial grounds were
           shown for believing that a civilian, returned to the relevant country, would, solely on account of
           his presence on the territory of that country or region, face a real risk of being subjected to a
           threat of serious harm. In order to demonstrate such a risk he was not required to adduce evidence
           that he would be specifically targeted by reason of factors particular to his personal circumstances
           (Elgafaji, cited above, § 35). Nevertheless, the ECJ considered that such a situation would be
           “exceptional” and the more the applicant could show that he was specifically affected by reason
           of factors particular to his personal circumstances, the lower the level of indiscriminate violence
           required for him to be eligible for subsidiary protection (Elgafaji, cited above, § 39).

           226. The jurisdiction of this Court is limited to the interpretation of the Convention and it would
           not, therefore, be appropriate for it to express any views on the ambit or scope of article 15(c) of
           the Qualification Direction. However, based on the ECJ’s interpretation in Elgafaji, the Court is
           not persuaded that Article 3 of the Convention, as interpreted in NA, does not offer comparable
           protection to that afforded under the Directive. In particular, it notes that the threshold set by
           both provisions may, in exceptional circumstances, be attained in consequence of a situation of
           general violence of such intensity that any person being returned to the region in question would
           be at risk simply on account of their presence there.” 25

The Procedures Directive

                                                                                         26
3.11       The Asylum (Application Procedures) Directive 2005/85/EC                           (also known as the
       'Procedures Directive') sets out in Article 7 the right of an applicant for asylum to remain in
       the Member State while her asylum application is being considered, except where the
                                                                                                                27
       applicant comes from what is deemed to be a safe third country, whether of origin                             or
       neighbouring it or of transit. A safe country is a democratic one where there is generally and




25
     Sufi and Elmi v. UK [2011] ECHR 8319/07 and 11449/07 (Fourth Section, 28 June 2011).
26
     [2003] OJ L50/1.
27
   See, however, Case C-133/06 Parliament v Council [2008] ECR I-3189, in which the Court annulled the
provision allowing for the EU to draw up a list of safe countries of origin, leaving it to individual Member States to
grapple with this matter.
     consistently no persecution (as defined in Article 9 of the Refugee Directive 2004/83/EC) i.e.
     constituting a severe violation of human rights.


Proposals for new EU asylum directives

3.12    It should be noted that at the time of writing the troika of EU asylum directives – the
     Reception Directive,28 the Qualification Directive and the Procedures Directive – were
     subject to updating proposals from the EU legislator.29 The UK Government had indicated
     that it would not opt in to any new Qualification Directive, but as that new proposed directive
     contains the provisions for superseding the current qualification directive this has the
     potential of leading to different EU law provisions applying at the same time in different
     parts of the EU.

4.     THE SCHENGEN ACQUIS AND ITS RELEVANCE TO THE UK

4.1 The 'Schengen acquis' refers to those Agreements aimed at implementing the gradual
     abolition of checks at common internal borders in the EU which were entered into by a


28
   See, e.g., European Parliament legislative resolution of 7 May 2009 on the proposal for a directive of the
European Parliament and of the Council laying down minimum standards for the reception of asylum seekers
(recast) (COM(2008)0815 – C6-0477/2008 – 2008/0244(COD)) [2010] OJ C/212 E/51.

29
  See Report from the Commission to the European Parliament and Council, First Annual Report on Immigration
and Asylum (2009) COM(2010)214 final (Brussels, 6 May 2010) at para 2.4:
        'Main commitment: Construct a Europe of asylum
        EU level: The Commission presented all the legislative initiatives requested by the Pact and others which
        had been announced in the June 2008 Policy Plan on Asylum. The amendments to the Directives on
        Asylum Procedures and Qualification, in particular, answer the Pact’s call for a single procedure and
        uniform status, and are expected to improve coherence between EU asylum instruments. They should
        simplify, streamline and consolidate substantive and procedural standards of protection across the EU and
        lead to more robust determinations at first instance, thus preventing abuse and improving efficiency of the
        asylum process.
        Amendments to the Dublin and Eurodac Regulations and to the Directive on Reception Conditions were
        also proposed, and there were proposals for a Joint EU Resettlement Scheme, and a European Asylum
        Support Office (EASO) to facilitate, coordinate and strengthen practical cooperation.'
See also the Commission Staff Working Paper accompanying the First Annual Report on Immigration and Asylum
(2009), SEC(2010) 535 final (Brussels, 6 May 2010).
     number of EU States (initially only Benelux, Germany and France) in June 1985 and June
     1990, and to the subsequent subsidiary agreements and rules adopted within that framework.


4.2 This corpus of materials, furthering a Schengen 'Europe without Frontiers',30 has been
     integrated into EU law since the conclusion of the Treaty of Amsterdam in October 1997,
     creating a 'Schengen-track' Europe with the notable exceptions of the UK, Ireland and
     Denmark. Protocol 19 to the Treaty of Lisbon makes further provision in relation to this.
     Article 4 of this 'Schengen Protocol' provides that the UK and Ireland may at any time
     request to take part in some or all of the provisions of the Schengen acquis, but that this
     request may be granted only if all the other Schengen States agree.31 Article 6 envisages the
     possibility of Schengen agreements being concluded with Norway and Iceland, and Article 7
     of the Schengen Protocol prohibits the possibility of any further Schengen opt-out by any
     new accession States.


4.3 The “Schengen Acquis” also provides for a series of mechanisms on matters of common
     interest in respect of asylum and immigration issues, for example the exchange of
     fingerprints and intelligence between member states regarding immigrants, including asylum
     seekers and the mutual recognition of a right to reside in members states where one member
     state has granted a right to reside (the United Kingdom has opted in to some of the provisions
     of this but not others, as part of its EU law obligations).


The Removals Directive

4.4 The most recent of this series of Schengen acquis provisions is the Removals Directive
     2008/115/EC, a provision which the United Kingdom has not opted into.                   Member States

30
  The Schengen frontiers-free area is now made up of: Bulgaria, The Czech Republic, Germany, Estonia, Greece,
Spain, France, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, The Netherlands, Austria, Poland,
Portugal, Romania, Slovenia, Slovakia, Finland, Sweden and, half in/half-out, Denmark.


31
  See Case C-482/08 UK v Council, 26 October, [2010] ECR I-nyr, for an example of the Schengen States not
agreeing to UK participation in a Schengen measure, namely the Visa Information System Regulation (EC)
767/2008 providing for a database detailing all persons who have applied for a short-term visa to enter the EU.
       bound by this directive will have to transpose it in their national legislation for the most part
       by 24 December 2010, except for certain provisions for which the transposition date is 24
       December 2011. The Recitals to the Removals Directive note inter alia that:

           “(4) Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a
           necessary element of a well-managed migration policy...
           (16) The use of detention for the purpose of removal should be limited and subject to the
           principle of proportionality with regard to the means used and objectives pursued. Detention is
           justified only to prepare the return or carry out the removal process and if the application of less
           coercive measures would not be sufficient...
           (17) Third-country nationals in detention should be treated in a humane and dignified manner
           with respect for their fundamental rights and in compliance with international and national law
           ...
           (20) Since the objective of this Directive, namely to establish common rules concerning return,
           removal, use of coercive measures, detention and entry bans, cannot be sufficiently achieved by
           the Member States and can therefore, by reason of its scale and effects, be better achieved at
           Community level, the Community may adopt measures, in accordance with the principle of
           subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of
           proportionality, as set out in that Article, this Directive does not go beyond what is necessary to
           achieve that objective...”



4.5 The Removals Directive requires (rather than allows) Member States to expel non-EU
       nationals who have irregularly entered or illegally remained or over-stayed in their
       territory,32 unless there are strong countervailing compassionate factors weighing in favour of
       allowing an individual to stay. Thus, one of the results of the Directive is to prevent Member
       States (for example Italy and Spain) granting general amnesties to over-stayers or illegal
       entrants.


4.6 Where there is a risk of absconding or of non-cooperation with the return process, the
       Removals Directive also envisages the possibility of detention of the irregular intrant, albeit
       for as short a period as possible, and in any event for an initial period of no more than six
       months which can be extended for a further 12 months.33 Persons so detained are to be placed

32
     See Joined Cases C-261/08 & C-348/08 Zurita Garcia [2009] ECR I-10143.
33
   In Case C-357/09 PPU Said Shamilovich Kadzoev (Huchbarov) [2009] ECR I-11189, the Court of Justice held
that where the maximum period of detention laid down by that Directive has expired, the person concerned has to be
       in a specialised centre and, in any event, are to be kept separated from ordinary prisoners;
       and the Directive precludes national rules imposing a prison term on an illegally staying
                                                                                                          34
       third-country national who does not comply with an order to leave the national territory.
       There is a right of appeal and review against the decision before an independent judicial or
       administrative body. The individual so threatened with removal must also be provided with
       legal advice and any necessary linguistic help. If the removal is an enforced one rather than
       consensual one then an automatic banning order applies against the individual's return to the
       EU for up to five years (or more if there is a risk to public policy or public security). Such a
       banning order may also be imposed at the discretion of the Member State even in cases
       where return is voluntary.


4.7 The Removals Directive makes provision in Article 2 allowing Member States to “decide not
       to apply this Directive to third-country nationals who: … are subject to return as a criminal
       law sanction or as a consequence of a criminal law sanction, according to national law, or
       who are the subject of extradition procedures.” It is clear that member states can therefore
       exclude person awaiting deportation as a foreign national prisoner from the protections
       provided by the Directive. It will be seen that there is a remarkable similarity between the
       domestic law of the United Kingdom (in particular the “Hardial Singh principles”) and
       Article 15(1) – (4) of the Directive. Unlike the situation in UK law however, Article 15(5)
       and 15(6) of the Removals Directive provide for an express ‘bright line’ in respect of the
       maximum periods of detention that is to say: 6 months in respect of most cases and an
       extension to 18 months if there is (a) a lack of cooperation by the third-country national
       concerned, or (b) delays in obtaining the necessary documentation from third countries.          By
       virtue of these provisions of the Removals Directive all EU member states except the UK and
       Ireland are now bound by the maximum periods detailed above but may (in their domestic
       laws) set maximum periods of a shorter period than 18 months. It is clear that the Directive


released immediately and cannot continue to be detained on the grounds that he is not in possession of valid
documents, his conduct is aggressive, or that he has no means of supporting himself and no accommodation or
means have been supplied by the Member State for that purpose.
34
     Case C-61/11 PPU Hassen El Dridi alias Soufi Karim v. Italy 28 April [2011] ECR I-nyr.
       is being interpreted by the CJEU in a strict manner and imposing an obligation upon member
       states to adhere to its terms precisely.         It is also of note that the CJEU regarded the
       mechanism of the Directive as a means for “the attainment of the objective of introducing an
       effective policy for removal and repatriation in keeping with fundamental rights”.


4.8 Although as a matter of EU law the United Kingdom is not bound by the terms of this directive
       it may be that its provisions can still be prayed in aid in relation to establishing the existence of a
       common European consensus for the purposes of the interpretation and application of provisions
       of the ECHR. There is a long line of cases of the European Court of Human Rights, where it
       has referred to and taken into account in interpreting Convention rights other international
       agreements, even those which not all contracting States of the Council of Europe have
                                              35
       signed. Thus in Marckx v Belgium,           a case which concerned the legal status of illegitimate
       children, the European Court of Human Rights based its interpretation of the requirements of
       Article 8 ECHR on, among other things, two international conventions of 1962 and 1975 that
       Belgium, like other States Parties to the ECHR, had not yet ratified at the time of the
       judgment.      In the cases of McElhinney v Ireland,36 Al-Adsani v United Kingdom37 and
       Fogarty v United Kingdom,38 the European Court of Human Rights had regard to the
       European Convention on State Immunity, which had been ratified at the time only by eight
       contracting States. In its judgment in Glass v United Kingdom, the European Court of
       Human Rights had regard to the standards enshrined in the Council of Europe’s Oviedo
       Convention on Human Rights and Biomedicine of 4 April 1997, even though that instrument
       had not been ratified by all the States parties to the Convention, and had not even been
       agreed to by the United Kingdom.39          In Taşkın and Others v Turkey, the European Court of
       Human Rights referred to and relied upon the UNECE Aarhus Convention on Access to


35
     Marckx v Belgium (1979-80) 2 EHRR 330.
36
     McElhinney v Ireland (2002) 34 EHRR 13 (Grand Chamber).
37
     Al-Adsani v United Kingdom (2002) 34 EHRR 11 (Grand Chamber).
38
     Fogarty v United Kingdom (2002) 34 EHRR 12 (Grand Chamber).
39
     Glass v United Kingdom (2004) 39 EHRR 15.
       Information, Public Participation in Decision-making and Access to Justice in Environmental
       Matters, again even although Turkey had not signed the Aarhus Convention and had not
       acceded to it.40        And in Demir and Baykara v Turkey, the European Court of Human Rights
       relied upon provisions of the European Social Charter 1961, a treaty concluded under the
       auspices of the Council of Europe which Turkey had not ratified, as well as on the terms of
       the EU Charter of Fundamental Rights, to which Turkey was not (entitled to be) a party, the
       Strasbourg Grand Chamber made the following observations:

             “85.     The Court, in defining the meaning of terms and notions in the text of the Convention,
             can and must take into account elements of international law other than the Convention, the
             interpretation of such elements by competent organs, and the practice of European States
             reflecting their common values. The consensus emerging from specialised international
             instruments and from the practice of Contracting States may constitute a relevant consideration
             for the Court when it interprets the provisions of the Convention in specific cases.
             86.       In this context, it is not necessary for the respondent State to have ratified the entire
             collection of instruments that are applicable in respect of the precise subject matter of the case
             concerned. It will be sufficient for the Court that the relevant international instruments denote a
             continuous evolution in the norms and principles applied in international law or in the domestic
             law of the majority of member States of the Council of Europe and show, in a precise area, that
             there is common ground in modern societies.”41



4.9 The detention of an individual facing deportation or expulsion is permitted by Article 5(1)(f)
                                                            42
       of ECHR. In Louled Massoud v. Malta                       the Strasbourg Court held that the right to liberty
       under and in terms of Article 5 ECHR was engaged and breached in respect of a detention
                                                                                                                  43
       pending deportation that there had been an infringement of Article 5(1)(f) ECHR                                 even
       though attempts to repatriate the applicant were frustrated by the applicant’s refusal to
       cooperate and the third country not being prepared to issue the necessary documents, noting:

40
     Taşkın and Others v Turkey (2006) 42 EHRR 50.
41
     Demir and Baykara v Turkey (2009) 48 EHRR 54 at paras 85 and 86.
42
     Massoud v. Malta [2010] ECHR 24340/08 (Fourth Section, 27 July 2010)
      43
           Article 5 of the Convention, which in so far as relevant reads as follows:
              “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in
              the following cases and in accordance with a procedure prescribed by law: …. (f) the lawful arrest or
              detention of a person to prevent his effecting an unauthorised entry into the country or of a person against
              whom action is being taken with a view to deportation or extradition.”
       “60. Article 5 § 1 (f) does not demand that detention be reasonably considered necessary, for
       example to prevent the individual from committing an offence or fleeing. Any deprivation of
       liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as
       deportation or extradition proceedings are in progress. If such proceedings are not prosecuted
       with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal
       v. the United Kingdom, 15 November 1996, § 113, Reports 1996-V).

       61. The deprivation of liberty must also be “lawful”. Where the “lawfulness” of detention is in
       issue, including the question whether “a procedure prescribed by law” has been followed, the
       Convention refers essentially to national law and lays down the obligation to conform to the
       substantive and procedural rules of national law. The words “in accordance with a procedure
       prescribed by law” do not merely refer back to domestic law; they also relate to the quality of this
       law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the
       Convention. Quality in this sense implies that where a national law authorises deprivation of
       liberty, it must be sufficiently accessible and precise in order to avoid all risk of arbitrariness (see
       Dougoz v. Greece, no. 40907/98, § 55, ECHR 2001-II, citing Amuur v. France, 25 June 1996, §
       50, Reports 1996-III).
       62. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition
       that any deprivation of liberty should be in keeping with the purpose of protecting the individual
       from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be
       compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond a
       lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of
       domestic law but still arbitrary and thus contrary to the Convention (see Saadi v. the United
       Kingdom, cited above, § 67). To avoid being branded as arbitrary, detention under Article 5 § 1
       (f) must be carried out in good faith; it must be closely connected to the ground of detention
       relied on by the Government; the place and conditions of detention should be appropriate; and the
       length of the detention should not exceed that reasonably required for the purpose pursued (see A.
       and Others v. the United Kingdom [GC], cited above, § 164).
       ….
       68. Moreover, the Court finds it hard to conceive that in a small island like Malta, where escape
       by sea without endangering one's life is unlikely and fleeing by air is subject to strict control, the
       authorities could not have had at their disposal measures other than the applicant's protracted
       detention to secure an eventual removal in the absence of any immediate prospect of his
       expulsion.

       69. In the light of the above, the Court has grave doubts as to whether the grounds for the
       applicant's detention – action taken with a view to his deportation – remained valid for the whole
       period of his detention, namely, more than eighteen months following the rejection of his asylum
       claim, owing to the probable lack of a realistic prospect of his expulsion and the possible failure
       of the domestic authorities to conduct the proceedings with due diligence.




4.10   Arguably then, in interpreting Article 5 ECHR, the Strasbourg Court the ECtHR could
   also have regard to the fact that the Removals Directive is now in force across the EU and
   despite the fact that the United Kingdom and Ireland are excluded from its specific scope its
     provisions may yet be regarded as establishing a broad Europe wide consensus on the
     acceptable time limits for detention pending removal or deportation.                         In so doing the
     Strasbourg Court would be following its settled and well established practice.


4.11     It may therefore be open to litigants before UK courts similarly to rely upon EU law
     provisions which form part of the Schengen acquis even where they have not been adopted
     by the UK on the basis that these are indicative of a European wide consensus which should
     properly inform the Convention rights which one may seek to pray in aid.44


44
  See however R (on the application of SM) v Secretary of State for the Home Department [2011] EWHC 338
(Admin) Mr Justice Beatson said:
        “75 At the hearing in November Mr de Mello relied on Article 15(5) and (6) of Directive 2008/115/EC , a
        Directive of the European Parliament and the Council “on common standards and procedures in Member
        States for returning illegally staying third-country nationals”, the “Returns Directive” for a submission that
        immigration detention over 18 months is unlawful. I considered this ground to be utterly unarguable and
        refused permission. I now give my reasons for doing so.

         76 The Returns Directive is a very unpromising basis for any submission in English Courts. First (see
         recital 26), the United Kingdom has opted out it. Secondly, in R (WL (Congo)) v Secretary of State for the
         Home Department [2010] 1 WLR 2668 at [107], although the Court of Appeal stated the point had not been
         raised in the grounds of appeal, after referring to the opt-out it also stated the Claimant in that case could
         not rely on the Directive. As Miss Candlin observed, and contrary to paragraph 46 of Mr De Mello's
         skeleton argument, it is not clear how his argument on this matter differs from that advanced and rejected
         by the Court of Appeal in WL (Congo) .

         77 Mr de Mello's submission appeared to be that the Directive could be regarded as setting out international
         norms for limiting immigration detention which might inform both the common law and the interpretation
         of Article 5(1)(f) of the European Convention on Human Rights . This too is unarguable. The Directive is
         not the only Directive containing provisions about immigration detention (see for example Articles 6(2),
         7(3) and 16(3) of Directive 2003/9/EC and Article 18 of Directive 2005/85/EC ). To regard the Returns
         Directive as setting out any general international norms for limiting immigration detention which might
         inform the common law or the interpretation of Article 5(1)(f), its provisions would have to be part of
         customary international law; that is (see R (European Roma Rights) v Prague Immigration Officer [2005] 2
         AC 1 at [23]) a general and consistent practice of states followed by them from a sense of legal obligation.
         There was no material before me which supported that proposition. It seems highly unlikely that a general
         and consistent state practice of a fixed time limit for immigration detention regardless of the circumstances
         of a particular case could be shown.

         78 Mr de Mello sought to deploy a number of decisions of the Strasbourg court on Article 5(1)(f), including
         Application 30471/08 Abdulkhani and Karimnia v Turkey , and Application 6909/08 Alipour v Turkey, and
         a paragraph in the Opinion of the Advocate-General in the decision of the European Court of Justice in
         Case C-357/09 PPU Proceedings Concerning Kadzoev [2010] 3 WLR 477 . The Article 5 cases relied on
         do not, in my judgment, assist. In Abdulkhani and Karimnia the relevant provisions of the Act on the
         Residence and Travel of Foreigners in Turkey provided that foreigners whose stay in Turkey is considered
         to be incompatible with inter alia the administrative requirements of the Ministry of the Interior shall be
                                                                                            6 December 2011
Matrix Chambers
Griffin Building
Gray’s Inn
London WC1R 5LN                                                                AIDAN O’ NEILL QC




       invited to leave Turkey “within a fixed time limit”. The violation in that case arose because no such time
       limit had been fixed. Alipour 's case simply applied the decision in the earlier case.”

								
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