P.R. “Monitoring of Implementation of International Protection Law by Judicial Organs”
Online Seminar “Asylum and Refugee Law: Recent European Developments”
5th Meeting: “Monitoring of Implementation of International Protection Law by Judicial Organs”
On Thursday 25 May 2023 the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens held via the Webex platform the fifth and last meeting of the online seminar “Asylum and Refugee Law: Recent European Developments”. The specific theme treated in this meeting was the “Monitoring of Application of International Protection Law by Judicial Organs”.
The meeting was coordinated by Ms Chrysafo Tsouka, Associate Professor at the Law School of the University of Athens, who first welcomed the speakers and attendees to the session, and then made a short introduction to the above subject.
The first speaker, Ms Maria Kontou – Durande, former Legal Adviser to the European Commission, Brussels, overviewed the CJEU case law in respect of the protection of the external EU borders and access to asylum. Ms Kontou commented that there exists a by default contradiction between the two: the sovereign right of states to control entry and stay of third-country nationals in their territory on the one hand, and access to asylum, which is protected by international conventions and the acquis communautaire, on the other. In order for relevant proposals on the control and management of migratory flows to be properly assessed, one must first fully comprehend the rationale behind the common policies on border checks and asylum and immigration, both emanating from the creation of the AFSJ by the Lisbon Treaty.
The common policy on the control of the external EU borders is laid down in art. 77 TFEU and in Regulation 2016/399/EU, as amended by Regulation 2017/458/EU. Its overarching aim is the protection of all member states -as a consequence of the abolition of checks at the internal borders- by means of fighting irregular migration and human smuggling, and of preventing threats against member states’ internal security and public order.
The common policy on asylum and subsidiary protection is laid down in art. 78 TFEU, and is in accordance with the 1951 Geneva Convention and the Council of Europe Convention on Human Rights. Art. 78 TFEU is the basis of secondary EU legislation (Regulations 2013/604/ΕU Dublin ΙΙΙ, 2013/603/ΕU Eurodac, Directives 2011/95/ΕU, 2013/32/ΕU, 2013/33/ΕU, 2001/55/ΕC), whose goal is the quick examination of asylum demands by only one member state according to the Dublin III criteria and the principle of legitimate expectations, with a view to minimize secondary flows.
The above policies’ common denominator is the observance of the 1951 Geneva Convention and international treaties on human rights. The EU Charter of Fundamental Rights, which makes an integral part of the Treaties, also holds an important role in relation to these policies, with its art. 52.3 providing that, to the extent that the rights recognized in the Charter correspond to rights guaranteed by the Council of Europe Convention on Human Rights, the meaning and scope of those rights shall be the same as those laid down by the said Convention. And this is why the two respective Courts are noticeably harmomised with each other in their interpretation of international protection law.
Next, Ms Kontou analyzed the right to access the international protection procedure. It is regulated in detail in articles 6 and 7 of the Directive on procedures (2013/32/ΕU), and in relation with art. 31 of the 1951 Geneva Convention which prohibits states from imposing penalties on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in the states’ territory without authorization, provided they present themselves without delay to the Authorities. The term asylum seeker comprises all third-country nationals who express before any Authority at the land or sea border or in the interior of a country their intention to submit an asylum application. From the moment when this willingness is externalized, even if the formal procedure has not been completed, the person is considered an asylum seeker and enjoys all relevant rights, and in specific those provided in the Directive on reception. The speaker then briefly outlined the notion of beneficiary of international protection (asylum and subsidiary).
The CJEU case law on the above matters was also presented. Due to migratory pressure, some member states took measures in order to protect -as they argued- their internal security and public order. In 2015 Hungary amended its law on access to asylum, which resulted in significantly restricting it (only two transit zones, administrative practice of daily entry of 1 – 2 persons, only one center for the submission and examination of applications, restriction of stay at the border without right to leave the zone, systematic practice of detention, rejection of the majority of applications as inadmissible on the grounds that the asylum seekers had entered the Hungarian territory from Serbia -a recognized safe third country, penalization of NGO assistance to newcomers). These measures have made the subject of four references for preliminary rulings, and of two proceedings against Hungary before the CJEU. The Court reminded that access to asylum is a fundamental right enshrined in the Directive on procedures in accordance with the Geneva Convention, that the obligation to ensure access to the asylum process is incumbent upon member states, and that expulsion from the border without prior examination of the asylum demand or following rejection on the grounds that the third country from which the asylum seeker entered the country is safe, is refoulement and is strictly prohibited.
The CJEU reiterated its above position in its response to the preliminary reference about Lithuania. In 2021 and due to the mass influx of third-country nationals from Belarus, Lithuania declared a national emergency. The country adopted a law which departed to a large degree from the Directive on procedures, significantly restricting access to asylum. In a case brought before a national court (appeal against a rejection decision on asylum demand), the Lithuanian judge, in doubt about the legality of the measures introduced by Lithuania, referred to the CJEU for a preliminary ruling. The Court reaffirmed that the Directive on procedures allows no derogation of national legislation from the right of a person to request asylum.
Αll of the above mentioned measures, that have been judged illegal by the CJEU, are premised on the assumption on the part of states that mass arrivals cause disturbance of public order and security. Art. 72 TFEU (Title V) defines that Title V shall not affect the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security. By invoking art. 72 TFEU, some states, such as Hungary, thought they could avoid the implementation of the Directive on asylum procedures. The Court rejected these arguments and gave a strict and narrow definition of the notion ‘disturbance of public order and security’. In other words, the Court rejected the general and inconclusive invocation of the notion, and demanded well-founded evidence to support the reasons that would justify deviation from EU law. It furthermore ruled that art. 72 TFEU does not allow any infringement of the Directive, or else EU law would have been applied in a non uniform manner, and the Directive’s binding nature would have been compromised.
By virtue of art. 43 of the Directive on procedures, member states are given the option to apply the accelerated border procedure in order to decide on the admissibility of applications for international protection, thus rejecting the manifestly unfounded or abusive ones. The Court has ruled that, by means of the speedy procedure at the external borders, states will be able to safeguard their public order and internal security while fully complying with EU law.
Next, the specific measures for the protection and control of the external border were discussed. Τhese include the identification and assessment of potential threats posed by newcomers, reception and accommodation of the latter, detention of those who have entered illegally and are likely to be returned, fingerprinting and data entering in Eurodac, systematic monitoring of legal crossings of the external borders through the SIS, the VIS and a new system in which all relevant information is registered (dates, duration of stay, ban of entry) and public order and security risk analysis. The countries at the external EU border are responsible for carrying out the above procedures.
In 2015-16 thousands of external border crossings went uncontrolled. These persons continued their journey towards EU mainland. The CJEU ruled that they had illegally entered from the external EU border, that the Dublin Regulation applies and that first-entry states are accountable for not conducting the required controls. However, and with due regard to the fact that the fulfillment of the above obligation is unfeasible in conditions of mass arrivals, the Court emphasized the prospect of solidarity measures by other member states (unilaterally or in coordination as per the Dublin Regulation), and according to art. 80 TFEU which sets forth the solidarity principle. This principle pertains to migration, asylum and border control policies, and imposes on EU organs, i.e., the lawmaker, the obligation to introduce solidarity measures, but does not specify them. As a result, EU decisions 2015/1523 and 2015/1601 on mandatory relocation measures not only did they not come into effect, but also revealed the division among member states that deemed solidarity of this kind to be necessary, and those that rejected it.
In sum, EU law imposes upon member states the obligation to take all necessary measures towards unobstructed access to asylum by determining adequate, legal entry zones, and by appointing sufficient staff. Border control is in essence the examination of reasons and of the legality of border crossing, as well as of the potential risk from each specific person’s entry in the territory of an EU member state. Even if solidarity measures are not effectuated, the affected countries at the external EU border are not entitled to unilaterally take measures that diverge from EU law and the Council of Europe Convention on Human Rights.
The second speaker, Dr. Ekaterini Koutsopoulou, Judge, First Instance Administrative Court, Ph.D. in Law and postdoctoral researcher at the Law School of the University of Athens, presented indicative case law by Greek judicial organs, as well as a selection of decisions by Appeal Committees. In her introductory remark she stressed the fact that there is no well-established case law, nor a fixed position by Authorities on matters of international protection law.
The international protection applicant is first and foremost required to establish his/her fear of persecution. The 1951 Geneva Convention does not provide on how such claims shall be assessed, and in general the degree of certainty according to which the competent Authority will decide upon the endangerment of the applicant in his/her country of origin, is not regulated.
Judge Koutsopoulou presented the case of two Sierra Leone applicants whose asylum demand was rejected by a Committee because they did not provide an answer to the question whether the Party they supported in their country of origin was left or right. The rejection was challenged before the First Instance Administrative Court of Athens, which annulled the decision as not constituting a reasonable judgment. The applicants were not able to comprehend what is ‘left’ and ‘right’ because political life in Sierra Leone is deeply divided, but on the basis of ethnicity and not on the basis of ideology-shaped politics, as is the case in Europe.
A selection of decisions by Appeal Committees was offered next. By these decisions international protection requests have been:
– judged as credible (from data contained in the application dossier, the interview or international sources)
– deemed impossible to cross-check with international sources due to their private nature
– judged as having gaps, but which did not affect credibility
– characterized as vague with gaps (justified by young age, considerable time distance between events and account of events, low level of educational attainment), but credible nonetheless.
The ambiguity of a homosexuality claim has been judged as not as significant as to negatively impact credibility. In another case, the claim has been found credible because of the detailed account of events, while a different Committee has rejected an application also based on homosexuality because of a very unclear and nebulous description.
Matters of religious convictions, such as conversion to Christianity, are equally difficult to substantiate. A certain Committee has rejected a conversion claim as unspecific, while another one has accepted a similar assertion due to its coherence and by giving the benefit of the doubt. An asylum applicant’s contention that he/she was tortured by troops, was accepted after taking into account international information and the benefit of the doubt. Judge Koutsopoulou reminded the audience of the well-established -since 2009- Council of State case law that, in order for the benefit of the doubt to be given, the applicant’s claims need to be substantial (4044/2009).
Regarding exclusion from refugee status (art. 1F of the 1951 Convention and art. 12 of Directive 2011/95), the Council of State has ruled that criminals are excluded (3328/2011), that the examination of the exclusion clauses follows the examination of the clauses on the recognition of refugee status (3328/2011), that a ‘political crime’ is not determined on the basis of domestic legislation of the country where asylum is sought, but on the basis of autonomous (in-context) interpretation (1661/2012), that the legal bases of extradition and asylum law are different (1694/2018, Plenary), that a political crime is directly intended against the State (1661/2012), that a military misconduct for which extradition does not apply, cannot be considered a serious criminal offense (1694/2018, Plenary), that ‘good reasons’ is the benchmark for the level of proof of the exclusion clauses, that they must be evidenced by means of clear and credible proof, and that the absence of ‘good reasons’ results in the non implementation of the exclusion clauses (1694/2018, Plenary). Rape and participation in a terrorist organization have been determined by Committees as serious non-political crimes.
Recent decisions issued by a considerable number of Committees, and by which decisions exclusion clauses were applied to serious crimes committed on Greek soil, appear to be problematic, since the Geneva Convention as well as the Directive on recognition of refugee status and Greek Law 4636/2019, they all provide that such crimes lead to exclusion only if committed outside the country where asylum is sought. The CJEU has repeatedly ruled that the exclusion clauses shall be interpreted narrowly.
The Asylum Service, and not the Committees, is responsible for recognizing vulnerability, according to decisions by Committees. The latter have also decided that unaccompanied minors and pregnant women are exempted from the fast-track border procedure, regardless of the applicable procedural guarantees.
Brief mention was made of two decisions on returns by First Instance Administrative Courts (revokement of return decision due to the fact that a voluntary departure deadline had not been set prior to the return, revokement of return decision because an individual assessment had not taken place and the different nationalities of mother and child were not taken into consideration), and of other Committees’ decisions on more specific issues. The indicative case law presentation was followed by the speaker’s concluding remark that there is no well-established case law on matters of international protection.
The third speaker, Ms Eleni Micha, Ph.D. in Law, Laboratory Teaching Staff at the Law School of the University of Athens, overviewed the case law on international protection by the European Court of Human rights (ECHR) as the principal overseeing judicial organ of the Council of Europe Convention on Human Rights. The Court has decided that its territorial jurisdiction is exercised on the territories of all signatory states where it is incumbent upon them to implement the Convention’s provisions. The latter are responsible for the Convention’s implementation not only within their national borders, but on all territories where they exercise effective control, and in some cases on the High Seas as well (protection of life, non refoulement), that is, in areas that are under no country’s jurisdiction. In M.N. and others v. Belgium (2020) the Court clarified that the state has no jurisdiction, hence no obligation, to examine an asylum request that is submitted on soil outside its territory, such as the Belgian Embassy in Lebanon.
The Council of Europe Convention on Human Rights does not establish a distinct individual right to asylum, but this right is based on other individual rights enshrined in the Convention. With these other rights serving as starting point, the Court interpreted the Convention in such a manner so as to include in its protection asylum seekers too. Additional Protocol No. 4, which does not make part of the Convention, and art. 4 in particular, is the only provision that refers to aliens, prohibiting their collective expulsion.
Refugees and persons fearing persecution are entitled to international protection, while all vulnerable individuals are potential asylum seekers, according to the ECHR. In order to verify whether a person is entitled to asylum or subsidiary protection, the Court investigates if there is present, future, predictable and personal endangerment, as general assertions are insufficient. However, the general situation in the country of origin is taken into consideration in deed, as well as statements by witnesses and evidence from other sources that can establish fear and vulnerability, e.g., data by NGOs (Médecins Sans Frontières, Human Rights Watch, Reports by the International Committee of the Red Cross). Strict and complete evidence is not required, and strong indications suffice.
The ECHR has classified state obligations in positive and negative ones. In relation to the right to asylum, a fundamental negative obligation is the prohibition of refoulement and endangerment of the applicants. Dr. Micha outlined the very important judgment delivered by the Court in 2022 in the Safi and others case against Greece (shipwreck off the coast of Farmakonisi island, Greece). The Court explained what prohibition of refoulement and substantive protection of human rights according to the Convention mean. The substantive part of the proceedings referred to Greece’s non-abidance by its obligations under the Convention (protection of life, protection from degrading treatment, non refoulement to Turkey). The Court furthered its explanation by noting that the prohibition of non refoulement is not directly connected with protection per se. It is a self-standing right for which the applicant must provide strong evidence. It decided that such evidence did not exist, therefore Greece was found not to have violated its obligation. However, the Court decided that Greece violated the Convention, and more specifically its obligation to protect life, because of oversights and delays in the rescue operation. In addition to the above, due to loss of life, Greek Authorities should conduct an investigation in order to determine if deficiencies, oversights and inadequate fulfillment of obligations had occurred. The Court found a lack of thorough and effective investigation, that the participation of applicants in it was not adequate, and that the survivors were subjected to degrading treatment (body-searched after being made to disrobe together as a group in front of at least thirteen people).
The positive obligations of state parties with regard to international protection, include the provision of substantive and procedural guarantees, namely, state obligation to provide a procedure for the examination of international protection requests which guarantees protection of life, a set level of living and detention conditions, prohibition of arbitrary detention, family reunification and protection from accelerated and collective expulsion. Other positive obligations are the respect of private and family life (Ghadamian v. Switzerland, 2022, where the Court ruled that the art. 8 criteria were not in-depth inquired into), and the provision of real and effective legal remedies (right to effective recourse, art. 13 of the Convention). Last, the speaker presented the Abu Salem v. Portugal case (2023). Abu Salem, suspected of participation in a terrorist attack in Mumbai, was residing in Portugal, by which he was deported to his country of origin, although an extradition agreement was in force between Abu Salem’s country of origin and India. When Portuguese Authorities deported him, they at the same time asked for diplomatic assurances from India that he will not be subjected to torture or inhuman or degrading treatment (India, unlike Portugal, is a third country to the Convention, therefore under no obligation to abide by it). Abu Salem lodged a complaint with the ECHR claiming his expulsion to be illegal because he was tortured by Indian Authorities and Portugal should grant him asylum (art. 3 and 13 of the Convention). The Court responded that Portugal was not in breach of the Convention because it had obtained diplomatic assurances, it was following up and monitoring the case, and especially Abu Salem’s detention conditions, while there was an understanding at Ministers of Foreign Affairs level.
The discussion that followed was coordinated by Professor Tsouka.