Conference Review: ‘The EU Asylum Directives: Is Opting in Necessary?’

December 19, 2011 § Leave a comment

On the 24th November 2011 I attended a conference at the Bingham Centre for the Rule of Law titled ‘The EU Asylum Directives: Is Opting in Necessary?’ The event was created to consider the general implications of the UK’s opt out of the amended EU Asylum directives and the effect this could have on the UK’s position in the Common European Asylum System (CEAS).

There were three speakers at the event; Valsamis Mitsilegas, Director at Criminal Justice Centre, Queen Mary; Elspeth Guild, Professor of law at Queen Mary and David Saville, Head of EU Asylum Policy Team, UK Home Office. Chairing the discussion was The Hon. Mr Justice Blake.

I have outlined the discussions of each of the speakers in my own words below:

First to speak was Valsamis Mitsilegas:

Valsamis outlined his intentions to discuss whether opting in to the amended protocols was necessary, and whether the UK could afford not to participate in the amended directives without being excluded from the CEAS as a whole. I have briefly summarised his considerations below:

Valsmais used the history of the Schengen agreement to form his theory that the UK would not be able to participate in the CEAS if they continue to pick and choose which protocols to implement. The Schengen Agreement aimed to abolish internal EU border controls, allowing for passport free movement of EU nationals. Currently 25 countries are part of the Schengen agreement. However the UK only partially opted in to the measures, approving inter-police co-operation, whilst refusing to adopt the abolition of border checks and the common visa policy in favour of maintaining its own border. Despite being resistant to sacrifice national border controls, the UK was keen to take part in the Visa Information System (VIS) which shares visa data for security purposes between the participating Schengen states, however the other EU states blocked the UK’s attempt to use the VIS which was upheld by the European Court of Justice in UK v EU Council (Case C-482/08). During the case the UK claimed that because it had an opt-in measure and had adopted inter-police co-operation, it was entitled to use the VIS system, despite refusing to abolish border controls.  The Court rejected this argument stating that the VIS measure needed to be looked at objectively, taking into account its context, purpose and effectiveness as a whole, rather than the specific wording of the protocol.

The purpose of the VIS was to support the removal of national border controls whilst maintaining state security, as the UK refused to abolish their own border agency they could not participate in the establishment of the European Border Agency and consequently the VIS measure. The Court held that as well as the strict legal basis of the measure, the logic of the Schengen agreement as a whole must be taken into account and as the UK does not contribute to that purpose it is not allowed access to the VIS.

Valsmais also drew attention to Article 4a of Protocol 21 of the Treaty of the Functioning of the European Union (TFEU), which he believes allows for ejection of the UK from the CEAS if the UK’s refusal to adopt certain measures renders the directives inoperable.

In light of this interpretation, Valsmais asserted that it is unlikely that the UK will be able to participate in the Dublin Regulations if they refuse to adopt the Procedural and Reception protocols.

The objective of the Amsterdam treaty is to achieve a common asylum system between all European Union member states to ensure high quality decision making and treatment of refugee claimants. The four directives; Dublin, Procedures, Qualification and Reception (described in detail in my previous blog post) are all contingent upon one another in achieving the aim of the CEAS and therefore when viewing the directives objectively as a whole, and taking into account the Schengen ruling, the UK should not be able to participate in one of the directives if it refuses to adopt the others.

The second speaker was Elspeth Guild.            

To begin with Elspeth outlined the numbers of people whom the UK decisions would affect, namely asylum seekers, and summarised the numbers of asylum applications that are lodged within the EU.

In 2010 there were half as many asylum applications within the European Union as there were in 2001/2002. The Eurostat figures show that in 2010 the UK received 23,715 applications- lower than France who received 52,725; Germany 48,490; Sweden 31,875 and Belgium 26,130, all of whom are part of the CEAS. To put the UK figure into perspective, in 2010 only 6,500 people were granted asylum and approximately 20,000 claims were rejected.

Elspeth asserted that:

The UK has thus far only opted in to the recasts of the Dublin and Eurodac measures, rejecting the reforms of the Qualification, Reception and Procedures directives. The purpose of the Dublin regulation is to determine the liability of state responsibility towards asylum applicants, placing responsibility on the state first sought by the asylum applicant. The Eurodac measure is a fingerprint database, its sole purpose being to determine whether asylum applicants have been apprehended or sought asylum in another European country.  Eurodac checks are not automatic, they can be performed upon suspicion and if the applicant is found to have been in another country the responsibility will pass to that state.

In practice the UK is a ‘net sender’ of the database, regularly sending applicants finger prints for checking, which more often than not, results in a ‘hit’ allowing the UK to transfer responsibility. Comparatively other EU countries have very few ‘hits’ against the UK. These two measures have been adopted by the UK, allowing the government to offload responsibility on to other member states, which has recently facilitated the return of thousands of asylum applicants to Greece and Italy, which has the worst welfare provision for asylum seekers (See the report by the Guardian for further details). However the measures which actually provide increased protection to applicants, have been rejected by the UK.

In light of these measures it is clear why the system must be seen as a whole. If a state passes responsibility of an applicant to another member state, the state transferring responsibility needs to know that the receiving state will uphold the applicant’s rights and provide treatment and decision making of an equal standard to themselves i.e. a Common European Asylum System. Although positive individual asylum decisions do not have mutual recognition amongst member states, negative decisions do. Consequently the decision making process must be equal between member states to ensure fairness. Therefore the UK should not be able to adopt the Dublin measures (which offload responsibility) without adopting the qualification directive as there needs to be a common system for qualification.

Because the UK has opted out of the recast of the directive, it intends to implement the previous version of the directive, however this still causes the same problem of a differing qualification system between UK and other member states. On this basis it is likely that problems will arise in the courts and doubt is cast on the UK’s ability to participate in the Eurodac and Dublin regulation without accepting the other amended directives.

In consideration of this argument Elspeth therefore emphasised that the more legally preferable, legitimate and administratively practicable option is that the UK accepts the amendments.

The final speaker, in position to defend the Governments decision not to opt in, was David Saville from the Home Office.

David stressed that the government’s main aim in border control is security. The change in government has led to strong views on state sovereignty and the present government does not support the harmonisation of border controls. The UK believes that asylum claims should be decided by member states, which should retain sovereignty in matters of immigration. David asserted that the EU legislation is not effective in practice and means nothing if it is not implemented correctly, which was recently shown by the failings of Greece and Italy to provide a sufficient asylum system. In reality the UK upholds and will continue to uphold the rights of applicants above other countries, (like Greece and Italy who have opted in to the protocols) as the UK’s measures are practical and achievable. Despite rejecting the measures, the UK still provides some of the highest protection in Europe.

In defence of the decision not to opt in to the protocol David reasserted that through Protocol 21 the UK is entitled to opt in or out of any measures which they do not feel appropriate.

In defence of the assertion by Valsamis that the principle of the Schengen ruling could lead to the UK’s exclusion from the CEAS, David stated that the Schengen agreement is a specific and limited part of EU law which is excluded from the directives as it is a separate ring fenced agreement. In drawing attention to Article 4a of Protocol 21 David affirmed that it only allows for ejection from the directives, if the state completely refuses to accept the directive not just the veto of an amendment. Consequently the UK will continue to implement the original directives.

The UK is also not the only country to opt out of the amended protocols as Ireland has also chosen to do so. With reference to the Dublin regulations, David outlined that the regulation has been extended to non-EU countries with no expectation upon them to take part or uphold the other directives. Asylum applicants are protected by fundamental rights which would prevent extradition to countries where their rights would not be upheld and therefore the directives are not essential in supporting applicant’s rights.

My thoughts on the subject…

In conclusion the repeated reason for the government’s veto of the amendments was sovereignty. The arguments put forward by the panel were convincing and unfortunately David Saville and the Home Office appeared to be a victim to the well thought out questions and savvy opinions of the panel and audience. Sovereignty seemed to stand stoutly in the way of protection for asylum seekers, and reasons given by the government such as: the resistance to allow quicker access to the labour market and the desire for fast track detention, have not been supported by evidence to show that these measures are necessary. On the contrary, much evidence provided by NGO groups shows quite the opposite i.e. that the detention estate and restrictions on work are a huge expense to the state and cheaper alternatives could produce the same results.

The assertion of sovereignty does not address why the minimum standards put forward in the amendments could not be adopted by the UK. If the UK provides one of the highest standards of protection to asylum seekers, then why not implement the minimum safe guards to promote equal protection across Europe?  Surely if the UK refuses to uphold the protective measures granted by the amendments, they should be prevented from using the procedural measures to transfer responsibility on to other states.

At a time when the UK government continues to spout human rights rhetoric to North African and Middle Eastern countries, it is a self contradiction to reduce the human rights protection afforded to the most vulnerable group of people on the planet, refugees. 

– Katie Bales

Gbagbo & Al Bashir: The Role of the ICC and the Accountability of Senior State Officials.

December 14, 2011 § Leave a comment

An exploration of the lessons learned from Al Bashir and the Sudan concerning immunity and liability of former heads of state in the light of the pending prosecution of Laurent Gbagbo.

It was reported last month that ousted president of the Côte d’Ivoire Laurent Gbagbo was being held in custody and would be prosecuted before the international criminal court (ICC) on four counts of crimes against humanity allegedly committed between November 2010 and May of this year. The acts in question include murder, rape and other inhuman acts performed by pro-Gbagbo supporters following a contentious election in which Alassane Ouattara was eventually recognized as victor. In December of 2010 the Ivorian Constitutional Council initially named Gbagbo as president, despite the recognition by the electoral commission, the EU, US and UN of Ouattara’s victory. The refusal of Gbagbo to surrender power resulted in the extension of sanctions upon Gbagbo and his followers as well as the deployment of UN troops to aid and protect Ouattara, to whom the African Union confirmed legitimacy in March of this year. The following month Gbagbo’s palace was attacked by French helicopters under the auspices of the UN, resulting in his arrest.

Should the pre-trial chamber confirm the charges against him, Gbagbo will be the first former head of state to be tried at the ICC. The Guardian this week reported the stipulation by his arrest warrant that “there are reasonable grounds to believe that a plan existed between Mr Gbagbo and his inner circle [his co-perpetrators]” and that according to the prosecution “there is a sufficient basis to conclude that the pro-Gbagbo forces that put the policy into effect did so by almost automatic compliance with the orders they received.” (It should be noted that calls have been made by non-governmental organizations such as Human Rights Watch to investigate abuses on both sides if a just outcome is to be secured.)

In considering the arrest of Gbagbo I was reminded of the numerous concerns, many in respect of legal immunity, which arose from the issue of an arrest warrant for President Al Bashir of Sudan concerning a ‘counter-insurgency’ campaign that included an unlawful attack against a civilian population in Darfur. The ICC pre-trial chamber issued its first arrest warrant for Al Bashir in March 2009, labelling him an ‘indirect co-perpetrator’ of war crimes and crimes against humanity which raised several key questions regarding the immunity of serving state officials. There is scope under customary international law for serving heads of state to benefit from immunity from criminal jurisdiction of foreign states, as demonstrated by the ICJ in DRC v Belgium (Arrest Warrant Case). Despite indications in the jurisprudence of international tribunals such as the Special Court of Sierra Leone that heads of states may be prosecuted before international courts and tribunals where such forums have jurisdiction, in the cases considered thus far, such as those of Charles Taylor and Slobodan Milosevic, custody and trial proceedings have only been achieved after the head of state was removed from power. Article 27(1) of the Rome Statute seeks to impose jurisdiction regardless of official capacity, but while Sudan is a signatory of the Rome Statute, it has not yet provided ratification. The same is true of Côte d’Ivoire.

In the case of Gbagbo, it would appear any issues regarding the application of the Rome Statute have been avoided. In the ICC documentation authorizing an investigation in Côte d’Ivoire, it is mentioned that on April 18th 2003 the State lodged a declaration accepting the jurisdiction of the ICC in its territory since the events of 19 September 2002 “for an unspecified period of time”. In a letter received on 14th December 2010, the Prosecutor and Registrar of the ICC received a letter from Ouattara in his capacity of newly elected president confirming the continuing validity of the declaration.

In the case of the Sudan, the position is different and confounded by the fact that Al Bashir remains at large as serving head of state. Manisuli Ssenyonjo’s article on this subject provides fascinating analysis of the chamber’s attempts to demonstrate an implicit adoption of Article 27 through the Security Council’s referral of the Sudanese case to the ICC via Resolution 1593 (See in M. A. Baderin & M. Ssenyonjo, “International Human Rights Law: Six Decades after the UDHR and Beyond”, Ashgate 2010, pages 445-75). In spite of this potential justification, it is likely this issue will remain a challenge, should the case reach trial stage.

Despite this differentiation, it is likely that issues regarding indirect perpetration highlighted in the Al Bashir case – the first prosecution before an international tribunal to be based upon this concept – will be considered in respect of Gbagbo. Both indirect perpetration and indirect co-perpetration are recognised in Article 25(3)(a) of the Rome Statute, which provides that individuals may commit crimes “whether as an individual,  jointly with another or through another person, regardless of whether that other person is criminally responsible.” The chamber in Al Bashir considered the recent cases of Lubanga and Katanga & Ngudjolo in defining these elements. In respect of indirect perpetration, it was recognized that a leader must “use his control over the apparatus to execute crimes… [mobilising] his authority and power within the organization to secure compliance with his orders.” In respect of indirect co-perpetration it was recognized that the carrying out of essential individual contributions to the common plan through another person was necessary. (Further analysis of the development of this concept has been made by Jessberger and Geneuss.)

With regard to Al Bashir, the chamber considered there to be reasonable grounds to believe that as president of the Sudan, Al Bashir played an essential role in coordinating the design and implementation of core components of a common plan which included an unlawful attack on a civilian population. As such, the chamber found there were reasonable grounds to believe that Al Bashir was criminally responsible as an indirect perpetrator or indirect co-perpetrator for offences similar to those alleged against Gbagbo.

The matters considered by the chamber in respect of Al Bashir who remains at large may find their first practical application in the case of Gbagbo. Ssenyonjo states in his analysis of the Al Bashir case that pursuing liability through indirect (co)perpetration represents the “best way to ensure accountability of such leaders” and as such, the future application in the respect of Gbagbo could prove to be an important step in securing recognition of the international criminal responsibility of senior state officials.

– Lee McConnell

The Common European Asylum System and the UK

December 13, 2011 § 1 Comment

At a time of increasing hostility towards immigration and asylum and with a euro-sceptic government at the helm, we examine what the Common European Asylum System is and what it means for the UK.

 The CEAS and its purpose:

Introduced in the treaty of Amsterdam (1997), the Common European Asylum System (CEAS) seeks to harmonize the treatment of asylum applicants between European Union member states. It aims to establish a common system that will standardise the protection afforded to asylum applicants through a unified qualification system; high quality criteria for the reception and processing of applicants and definitive responsibility of member states. The European Asylum Support Office will standardise practical considerations such as the Country of Origin Information and will deploy support teams to states in need of asylum support.

The CEAS has so far been implemented in two phases. Phase one took place from 1999 to 2004 and established a number of measures, the four most important ones being: the ‘Dublin’ regulation, the ‘Reception Conditions’ Directive, the ‘Qualification’ Directive and the ‘Procedures’ Directive. A period of reflection and consultation was then given as to the quality of the measures, then in 2008 phase 2 began, aiming to improve and build upon the measures already implemented. Amendments were made to three of the most important directives; the procedural, qualification and reception directives.

The UK took part in all of the original ‘first phase’ measures, however the country has an option to opt in or out of the directives (Protocol 21) and has thus far rejected the revisions, choosing only to fully opt in to the Dublin regulations. The government claim that they will continue to implement the old directives, yet the whole premise of a ‘common’ European asylum system could be undermined if the UK chooses to implement differing standards to other EU states, calling into question the UK’s participation in the system.

The meaning of the Directives:

The ‘Dublin’ Regulation: To determine state responsibility for asylum applicants and prevent ‘asylum shopping’; where applicants travel across different EU states to obtain the most preferential treatment. The responsible state is the state which is most central to the asylum seekers application. It is normally the first state which was entered illegally or legally, where the latest visa was issued or where the applicant’s family are legally resident.

The Qualification Directive: To give a common definition of the meaning of ‘refugee’ across member states and reduce ambiguity regarding the terminology that is currently used in defining refugee status. (Full name: The ‘Directive laying down minimum standards for the qualification and status of non-EU nationals and stateless persons as refugees or as persons who otherwise need international protection)

The Reception Conditions Directive: To ensure a common standard of treatment for applicants across all member states. This includes common:

  • Access to information upon arrival
  • Time restrictions on access to the labour market
  • Access to education
  • Access to housing
  • Access to medical care

(Full name: The Directive on reception conditions for asylum-seekers)

The Procedures Directive: Provides minimum procedural guarantees across member states, such as access to legal advice and the existence of a personal interview in the application process. It also sets minimum requirements for decision making such as independent, qualified decision makers; conditions for notification of the decision and rights to appeal. It also gives a unified understanding of claims which are ‘manifestly unfounded’ and countries which are regarded as ‘safe countries of origin’.

For further information on the directives, or the system as a whole, see the Europa website on European Commission Home Affairs:

What do the revisions mean for the UK?

Beginning with the…

Reception Conditions Directive: the biggest change (and hence the Government’s refusal to adopt) would be to the detention of asylum seekers.

The UK has one of the largest immigration detention estates in Europe. Approximately 26,000 people were held in immigration detention in 2010, the majority of whom were asylum applicants. Most people are held in detention for over two months, in 2010 the cost for one individual for one night was £120.00, a costly exercise for the government and a further promotion for the prohibition of detention of asylum applicants.  (See ‘Bail for Immigration Detainees’ for further details)

In short the new measures (Article 8) included in the amended directive codify the grounds for detention to four circumstances:

  • to determine or verify nationality
  • to determine the basic protection elements on which the claim is based
  • to verify the procedural right to enter the territory and
  • on grounds of national security.

These circumstances may only be invoked when necessary and ‘if other less coercive measures cannot be applied’ creating a further requirement of proportionality. It also asserts that applicants will not be detained on the sole basis of an application for asylum being lodged.

This is a problem for the UK government as the majority of applicants held in UK detention are held under ‘fast track’ measures also known as administrative detention, which allows for detention of claimants whose case can be decided quickly, this is normally based on the person’s country of origin. If a claim is ‘fast tracked’ the applicant will be detained whilst they wait for their claim to be determined, if the claim is rejected, fast track applicants have no right of appeal in the UK and will be deported. Applicants from certain countries which are listed by the Home Office as being ‘safe’ will automatically be placed on the fast track system unless they can prove that their claim is obviously not unfounded. However, worryingly the UK Government do not always have the most up to date country of origin information, although Congolese applicants were not fast tracked, the Guardian reports that recent decisions made by the Government to deport applicants back to the Congo were based on dated country information from 2008. The consequences of this are detailed in a report ‘Unsafe Return’ by Justice First: which provides case studies of seventeen adults and nine children, the majority of whom were subjected to inhuman or degrading treatment upon their return to the Congo, including imprisonment, rape, sexual assault, beatings and electric shock treatment.

In conclusion if the government opted in to the amended directive they would not be able to use the fast track system for detention as the border agency would have to prove detention necessary in each individual case and that no alternative methods of control could be used. They would also have to establish that detention was not based upon an application for asylum being lodged. If the directive were implemented the majority of those currently in fast track detention would be released and granted temporary admission.

The amended Reception Directive also requires all detention to be confirmed by a judicial authority within 72 hours from the beginning of detention (Article 9). Currently the decision to detain in the UK is decided by a UKBA officer with the authority of the Secretary of State, consequently if the UK opted in to the directive, the administration for decisions to detain would have to change, which is viewed by the Government as an unnecessary administrative burden on the judiciary. However, as many have pointed out, the criminal justice system bears the administrative weight easily and in comparison the numbers for immigration prove insignificant.

The other change (and one which was cited in the government’s rejection of the amendment) is to the time length restriction placed on asylum seekers to access the labour market. The previous time restriction to work was 12 months, which is what the UK currently has in place. The new amendment creates a maximum of six months restriction. The immigration minister Damien Green stated: ‘Signing up to the Reception Conditions Directive would have forced the UK to allow asylum seekers to work after six months, even if their claims had been refused and they were appealing the decision…This would have sent out the wrong message, encouraging those who do not need our protection to make unfounded asylum claims’ The result? Asylum seekers in the UK will be forced to claim benefits for an extra six months. The government have offered no evidence to show that early access to the labour market encourages ‘unfounded asylum claims’ and this assertion contradicts the government rhetoric that welfare benefits also attracts ‘unfounded asylum claims’. Contrary to popular opinion NGO evidence provides that welfare is rarely a factor in decisions regarding where to lodge an asylum application. Often asylum seekers pay an agent to smuggle them out of their country and have no choice in where they will be taken and if they do, the location of family or friends is the paramount concern. For further information see the Still Human Still Here website.

The Procedures Directive: The main change to the Procedures Directive is the right to in-country appeals and further restrictions to the use of accelerated procedures or ‘fast track’ decisions.

As already stated if a fast track applicant has their claim rejected, in current UK law they have no right of appealing the decision whilst remaining in the UK and can consequently be deported. Article 46(5) of the amended procedures directive gives applicants the right to in country appeals which conflicts with current UK practice.

Again relating to the UK ‘fast track’ procedure, any case can be considered suitable. Approximately 70% of UK asylum applications are allocated to the fast track procedure. However the directive specifies seven limited situations in which fast track or accelerated procedures can be used, which would greatly reduce the UK’s use of fast track decision making and create further administrative burden. Yet when one considers the extortionate costs involved in detaining asylum applicants, it is unlikely that greater administration would necessarily equate with greater cost.

For further information about how the UK’s refusal to accept the amended directives will affect its place in the Common European Asylum System, see my forthcoming blog post titled ‘Conference Review: The EU Asylum Directives: Is Opting in Necessary?’

– Katie Bales

Hello World!

December 13, 2011 § Leave a comment

Welcome to the Northumbria Law Blog.

This blog is maintained by postgraduate research students currently engaged in study at Northumbria University Law School. The purpose of this blog is to provide a forum for discussion, to update readers on research events taking place within the school, and to float ideas on our active research as well as other areas of interest.

Our intention is to provide regular updates throughout the month, to engage with developing issues which arise in the course of our research. Any and all feedback is welcome.

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