On 23 September 2020, the European Commission presented its New Pact on Migration and Asylum. A key element of this legislative package is the broader use of border procedures. The rationale is that by ‘keeping’ certain asylum seekers at the borders or in transit zones, return policies would become more effective. This blog post argues that the proposal conflicts with legal obligations arising from the Human Rights to liberty and freedom movement.
In the European Union, the increased use of so-called border procedures is one of the major recent trends in terms of hostile policy measures towards asylum seekers. Such procedures allow for asylum applications that are made by persons who arrive without a valid visa to be processed directly at the border or in transit zones.
Border procedures are already an element of the EU asylum acquis, and the broader reliance on border procedures is a key element of European Commission’s New Pact on Migration and Asylum. Presented on 23 September 2020, this package of legislative proposals seeks to overcome the political impasse in reform efforts towards a more ‘well-managed’ and ‘effective’ EU migration policy. It amends and expands earlier legislative proposals in an attempt to reconcile conflicting interests of different Member States.
Among the legislative proposals of the New Pact is that for an Asylum Procedures Regulation, as amended in September 2020, in which the European Commission proposes a more extensive use of integrated border procedures. The rationale is that by ‘keeping’ certain asylum seekers at the borders or in transit zones, return policies would become more effective. Although the proposal does not prescribe closed asylum centres, it is clear that these border procedures will have to rely on restrictions of movement of asylum seekers at border or transit zones, which may in some – and maybe most – cases amount to detention.
The Commission’s proposal is yet to undergo the legislative procedure, and the involvement of the co-legislators (the Council of the EU and the European Parliament) will likely lead to significant changes. The EU Home Affairs Ministers met on Monday, 14 December 2020 to discuss the proposal further, and there is no agreement in sight. In their recently leaked joint comment on the proposal, Greece, Spain, Malta and Italy warn that ‘although the Commission’s proposal does not explicitly include this possibility, we need to be sure that the final regulation of procedures at the border does not pave the way to undesirable effects. Setting-up large closed centers at the external borders is not acceptable. The management of asylum must fully respect Human Rights and the rights of asylum-seekers, which are to be reflected in the regulation of the relevant procedures.’
Drawing on the REMAP study, this blog post assesses the proposed border procedures to show that they might in fact conflict with legal requirements from Human Rights law in at least two areas. Following a brief introduction of relevant parts of the Commission’s proposal, the blog post first discusses the Human Rights standards for detention of asylum seekers, and then reflects on the imposition of other forms of area-based restrictions.
The Commission’s Proposal on Border Procedures in a nutshell
The procedure proposed by the Commission is very complex. The image below represents a simplified overview that I put together. Essentially, the proposal introduces a ‘pre-entry phase’ during which the asylum seekers’ entry into the territory of EU Member States has not yet been authorised.
The pre-entry phase consists of a screening procedure, which is regulated in its own Screening Regulation (see here for a critique), an Asylum Border Procedure and a Return Border Procedure. Each of the border procedures can take no longer than 12 weeks such that in total migrants may remain in the area above the red line for a maximum of 6 months. Preventing the crossing of the red line in the image is central to the proposal.
The proposal is constructed around unauthorised entry
During the pre-entry phase, the Commission proposal conceives of these persons as not lawfully on territory. It is important to note that this does not prevent their protection under Human Rights law. As soon as they cross the border, asylum seekers are under the territorial jurisdiction of the EU Member State that conducts the border procedure. It does not matter under international law how the national legal system defines ‘entry’. Once persons are on state territory, they enjoy the protection of Human Rights to which this state is bound. The European Commission’s proposal recognises this fact.
However, some Human Rights are limited in scope to those persons who have entered or are present lawfully. For example, and importantly for present purposes, Art 5(1)(f) ECHR provides for detention in order to ‘prevent unauthorised entry’, and the right to freedom of movement in Art 12 ICCPR and Art 2 Protocol 4 ECHR is reserved for ‘[e]veryone lawfully within the territory’. In this regard, the legal designation of entry as unlawful in EU law may indeed have legal consequences and the Commission proposal on border procedures is constructed around these (see further below).
Member States must ‘keep’ people in ‘locations’ at the border or transit zone
But the red line of authorised entry does not only legally classify asylum seekers’ entry as unauthorised. It also has much more visibly tangible consequences, because during border procedures, Member States also have to ‘keep’ people in ‘locations’, ‘at or in proximity to the external border or transit zones’. The legal non-authorisation of entry is coupled with an area-based element. But how are people to be ‘kept’ in ‘locations’ at the border or transit zone?
The Commission proposal does not outline concrete measures as to how this is to be achieved. It can only be inferred that it must involve some kind of mobility restriction – in the very least in the form of area-based restrictions, which may or may not amount to detention. In other words, Member States must implement area-based restrictions, and can decide to detain.
It is here that the proposal may conflict with Human Rights law. The remainder of this contribution discusses two such conflicts: It shows that the proposal is constructed around the wrong Human Rights standard for detention and that it fails to require individual justifications for the impositions of area-based restrictions.
Applying the wrong legal standard for detention
The first legal issue concerns the applicable Human Rights standard for detention. The proposal does not prescribe detention, but does not preclude it either. And if Member States were to detain asylum seekers during border procedures, the relevant provisions on which such detention would be based are constructed around Art 5(1)(f) ECHR. This Article permits for the detention of a person to ‘prevent his effecting an unauthorised entry’ as well as with a view to deportation. In a controversial line of case law, since the judgment in Saadi v UK, the European Court of Human Rights has interpreted this provision to mean that an assessment of necessity in the individual case is not required if an asylum seeker is detained in order to prevent their unauthorised entry. This is contrary to universal Human Rights law, by which the EU is equally bound, and which does not allow for detention based on illegal entry.
The Commission proposal appears to be modelled against the Strasbourg Court’s Art 5 ECHR standard
Taking a closer look at the wording of those provisions that would serve as grounds for detention for both the Asylum border procedure (Art 8(3)(d) Commission proposal for a recast RCD) and the Return border procedure (Art 41a(5) APR proposal as amended in 2020) very much reflect the wording of Art 5(1)(f) ECHR with regards to preventing unauthorised entry. It appears that the proposal is modelled against that standard. In this context, the red line of unauthorised entry from the Commission proposal is relevant: If detention is to be possible during border procedures on the basis of Art 5(1)(f), it is important that entry has not yet been declared as authorised.
Note that unlike the first leg of Art 5(1)(f) ECHR, which is reflected in the Art 8(3) RCD, the second leg which allows for detention for action with a view to return is not mirrored in EU legislation. Hence, there is a distinction in the Commission proposal for the return border procedure for those who were not detained during the asylum border procedure; the Commission was apparently reluctant to fall below the standards of the Return Directive (see Art 41a(6) APR).
Unauthorised entry by migrants does not itself justify detention
However, as the REMAP study shows, it is well-established that the Strasbourg Court’s Art 5 ECHR standard is not in line with universal human rights law. The prohibition of arbitrary detention is a well-established rule of customary international law and is codified in a broad range of treaties, such as Art 9 ICCPR. In both its jurisprudence on immigration detention and its General Comments, the Human Rights Committee has clarified that detention of asylum seekers is permissible only for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. (As a side note, detention during the proposed screening procedure for a maximum of 5 days might be covered by this, although it stretches the terms “brief” and “initial” to their maximum.) But to detain asylum seekers further while their claims are being processed during border procedures would be arbitrary if there are no particular reasons specific to the individual, such as a likelihood of absconding or a risk of acts against national security. So importantly, illegal entry by migrants does not itself justify their detention.
Detention is permissible only based on particular reasons specific to the individual
The EU is bound by this standard. The lower standard provided in the ECHR is superseded by the higher level of protection at the universal level such that the relevant EU fundamental right in Art 6 EU Charter (see second sentence Art 52(3) EU Charter) is to be construed in line with Art 9 ICCPR and the jurisprudence of the HRC. In any case, the EU is legally bound to follow rules of customary international law, which are an integral part of the EU legal order and binding also on its legislative bodies. However, based on the Art 5(1)(f) standard and via Art 8(3)(d) APR, the proposal would permit for the detention of groups of people for the purposes of assessing their claims – such as those coming from countries of origin which have a recognition rate lower than 20% – without particular reasons specific to the individual.
The Commission proposal on border procedures is unlawful to the extent that it provides for detention based on Art 5 ECHR
From this perspective, the Commission proposal on Border Procedures is unlawful to the extent that it provides for detention on the basis of Art 5 ECHR. In order to comply with the EU’s legal obligations, the EU co-legislators must amend the proposal.
Area-based restrictions are also constrained and governed by Human Rights law
The second area where the Commission proposal conflicts with Human Rights law relates to the imposition of area-based restrictions. The Commission proposal makes the use of area-based restrictions mandatory – Member States ‘shall keep’ persons subject to Border Procedures in locations at or in proximity of the border. It is at least conceivable that the measures that Member States adopt in that regard do not amount to detention.
Whether measures restricting movement amount to detention is a question of fact
To be sure, area-based measures can amount to detention even if they are not labelled as such – in which case they would regularly be unlawful for failing to be in line with material and procedural standards. It is well-established that the distinction between deprivation of liberty amounting to detention and restrictions on movement which do not is one of degree rather than substance. And it is to be expected that Member States would regularly claim that the measures imposed are not detention. The difficulty that arises is the fact that the question of whether or not that is the case would have to be determined in lengthy proceedings as regards each specific place and person – as most recently, and with conflicting and partly controversial outcomes regarding the Hungarian transit zones. Here, the European Court of Human Rights held that the fact that asylum seekers could – physically, if not legally – re-enter Serbia by walking back across the border meant that accommodation in transit zones did not amount to detention, a view not shared by the Court of Justice of the European Union.
Measures that do not amount to detention also constitute interferences with Human Rights
Member States and/or the EU seem to assume that restrictions on the liberty of movement of migrants, and asylum-seekers specifically, are unproblematic once it is established that they do not amount to detention in the technical sense. This could be an unintended effect of the discussions surrounding so-called alternatives to detention.
However, the crucial difference is that alternatives to detention are always a milder means in situations where a person could otherwise be detained. Area-based restrictions, however, explicitly apply when there is no ground for detention. They represent an interference with Human Rights in their own right and must be justified as such. The relevant Human Right is the right to freedom of movement as laid down, among others, in Art 12 ICCPR and Art 2 of Protocol 4 ECHR. In this case, unlike in the context of deprivations of liberty discussed above, for present purposes there is no relevant substantive difference in the standards between the ICCPR and the ECHR (for further details, see the REMAP study).
When looking at Art 12 ICCPR and Art 2 Prot. 4 ECHR there are two points to highlight. The first relates to the permissible justifications and the second relates to the question of lawful stay.
Public interest cannot justify area-based restrictions
Firstly, as for permissible justifications, it is clear that public interest considerations cannot justify area-based restrictions. Art 12 ICCPR does not foresee public interest as a justification for any kind of area-based restrictions. Regarding Art 2 Prot. 4 ECHR, the Strasbourg Court has established that the type of area-based restrictions that would be relevant to asylum seekers during border procedures cannot be justified with public interest considerations according to paragraph (4), but only based on the narrower grounds provided for in paragraph (3), such as ordre public. However, Art 7(2) of the Reception Conditions Directive, both in its current version and it the proposed amendment allows for area-based restrictions of asylum seekers based on public interest considerations.
All impositions of area-based restrictions must be individually justified
Secondly, under both the ICCPR and the ECHR, the right to freedom of movement is limited to those who are lawfully within the territory. This is another area where the question of having crossed the red line of authorised entry as proposed by the Commission may become legally relevant. Whether or not asylum seekers would be lawfully staying for the purposes of Human Rights law during the border procedures is subject to legal debate (and many would say that they would be). But the point to be made here is that even for those who are not lawfully within the territory, area-based restrictions must be justified – in this case under the right to private life as laid down in Art 8 ECHR. The Strasbourg Court considers the right to freedom of movement as laid down in Art 2 Protocol 4 ECHR and the right to private life according to Art 8 ECHR to be closely linked and regularly considers them together, to the extent that Art 8 ECHR applies to restrictions on movement where Art 2 Protocol 4 ECHR is not applicable. Art 8 ECHR is not conditioned on lawful stay, and in the Judgment in Jeunesse the Strasbourg Court has clarified that Art 8 ECHR applies irrespective of migration or other status, so also to those not lawfully present.
The proposal is unlawful to the extent that it does not foresee an individual proportionality test for area-based restrictions
The Commission proposal makes a blanket use of area-based restrictions mandatory for border procedures. It does not provide for an individual decision with a proportionality test for the imposition of such restrictions – and is therefore unlawful in that regard and must be amended in order to comply with Human Rights obligations.
A race to ‘down under’?
In its reform efforts for a more well-managed and effective migration policy, the European Commission is faced with the difficult task of reconciling diverging interests of EU Member States with legal obligations under Human Rights law. In response, the Commission proposed what in some ways appears to be a much more delicate and legally refined EU version of the heavily criticised (and unlawful) Australian ‘excision’ policy. To be sure, the Commission proposal does not deny the applicability of Human Rights law to asylum seekers subject to border procedures generally. But the proposal seeks to create and employ gaps in the international Human Rights framework by qualifying the entry of asylum seekers in the pre-entry phase as unauthorised. On that basis, it presumes that physical restrictions to certain areas on the ‘fringes’ of the territory, including those amounting to detention, are lawful. As the above showed, however, in so doing, the proposal overlooks the correct human rights standard for detention as well as the fact that blanket impositions of area-based restrictions are not permissible. In order for border procedures to be lawful, the co-legislators will have to amend the proposal in these regards.
This blog post is simultaneously published on the RLI Blog on Refugee Law and Forced Migration. It is based on the open-access REMAP study on ‘Human Rights Challenges to European Migration Policy’ which Janna Wessels co-authored with Jürgen Bast and Frederik von Harbou.
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