Area Of Freedom, Security And Justice

Question 1

Why is the area of freedom, security and justice so controversial?

Answer 1

The Migrant Crisis - an ‘existential crisis’ for the EU.

Angela Merkel has described the migration crisis as the biggest challenge the Union has ever faced.

In 2015, 3,700 people were recorded to have died attempting to cross the Mediterranean.

Question 2

What do Aas and Grundhus say about the migrant crisis?

Answer 2

Frontex is failing to adequately record the amount of deaths on the border crossings in Greece and Italy - this is a political failure.

Lives that are diverted back to third countries are seen as lives saved, but this is not the case, as they are more than likely to attempt to return.

Question 3

Which articles give the EU competence on border checks, asylum and immigration?

Answer 3

Article 77 TFEU - prohibits border checks.

Article 78 TFEU - works towards creating a common asylum policy.

Article 79 TFEU - works towards creating a common immigration policy.

Question 4

How is the EU’s border policy managed?

Answer 4

By use of the Schengen Borders Code - under the Schengen Acquis.

The U.K. And Ireland will not be bound by any measure on Articles 77-79 TFEU unless they wish to opt in and there are no objections.

Denmark is bound to any such measures as a matter of international, not EU law.

Question 5

How many non-EU citizens reside in the EU and how many irregular migrants are there?

Answer 5

20 million non-EU citizens live in the EU.

It is estimated that 2-3 million irregular migrants reside in the UK (although very likely more).

Question 6

What are the important parts of the Schengen Borders Code?

Answer 6

Article 20 - allows citizens to travel freely.

Article 21 - border controls are abolished, but frontier policing, involving ID checks and police presence is still essential.

Article 23 - states can put border controls in place with the agreement of the Commission I.e. France following the Paris attacks.

Question 7

Why was Melki/Abdeli so important?

Answer 7

Melki/Abdeli - the French put in place passport checks 20km from the border.

Border checks are outlawed, however, if the checks are not on whether people can or can’t enter, they are not border checks.

‘Making sure that people hold ID’ is not a border check, a border check would be a general stop and search power.

Question 8

What did Adil do to the Judgement in Melki?

Answer 8

It allowed for even more aggressive frontier policing.

Adil had not even entered the Netherlands yet but the search was deemed lawful.

The result of Melki and Adil is to create border zones. This does not really respect Article 77 TFEU or Article 21 Schengen Borders Code.

Question 9

How are the external borders managed? What is the effect of this?

Answer 9

Schengen Borders Code Article 5 manages the external borders of the EU, outlining common Visa policy.

This extra-territorialises boundaries. Without a Visa, a person cannot board a plane to the EU (and this decision is not judicially reviewable).

When a visa application has been refused, it is entered on the Visa Information System, making it unlikely that another EU state will issue one.

This is an aggressive way of keeping people from poor states from entering the EU as they simply cannot satisfy the criteria for visas.

Question 10

What other measure extra-territorialises frontier control?

Answer 10

The Carriers Sanctions Directive - carriers transporting illegal migrants are liable for a hefty fine, £2,000 in the UK.

This deters people from trafficking irregular migrants into the EU.

Question 11

How does the Dublin Regulation operate?

Answer 11

It creates a ‘one-stop shop’ for international protection.

Once application for asylum has been made in one EU country it cannot be made in another.

The application must be made to the first country of entry.

Question 12

Why is the Dublin Regulation so controversial?

Answer 12

1. It is inhumane (And expensive) to transfer people back to the countries they have left.
2. Residence permits are hardly ever granted.
3. It penalises periphery states such as Greece and Italy which receive many migrants and states which are liberal with their visa policies.

Question 13

How is humanitarianism included in the area of freedom, security and justice?

Answer 13

Article 67 TFEU states that the area of freedom, security and justice must respect fundamental rights.

Article 78 TFEU - The principle of non-Refoulement applies; non-EU citizens cannot be deported to countries where their life or freedom is threatened.

This humanitarian strand does not appear to be working hard enough - Aas and Grundhus note that some Frontex officials liken the situation in Lampedusa to scenes in WWII

Question 14

Which case outlines Article 78 and non-Refoulement in action?

Answer 14

X, Y and Z case - 3 gay men from East Africa sought asylum in the Netherlands as if they returned they would face life imprisonment.

The ECJ found that this excessive measure was sufficient to warrant granting asylum.

Question 15

Which case made its way around the Dublin Regulation?

Answer 15

ME - 3 unaccompanied children made asylum claims in the UK after having made claims in Italy and the Netherlands.

The Court would not allow the UK to deport them as it would offend their Article 24 EUCFR right to have regard to the best interest of the child.

This exception for unaccompanied minors seems fair and just.

Question 16

Which two cases challenged the Dublin Regulation on grounds of inhuman and degrading treatment? What was found?

Answer 16

NS - an Afghan man had made an asylum application in Greece but had moved to the UK. There would have to be systemic flaws (a very high standard) in the procedures considering asylum or reception conditions for the Dublin Regulation not to apply. As NS would have to live on the streets there was inhuman and degrading Treatment.

Tarakhel - 8 Afghans originally entered in Italy but made their way to Switzerland. The Court applied a more humane test. Switzerland could send them back to Italy if Italy could guarantee sufficient accommodation.

Question 17

What rules govern irregular migrants?

Answer 17

The ‘Unwelcome foreigners’ Returns Directive means that any person staying illegally in the EU must be returned to their home state or a safe state of transit.

Voluntary return comes first, and forced return if voluntary return fails.

In the case of forced return, an automatic ban on re-entry and detention may occur. But the detention cannot be a criminalisation of immigration - Achugbabian.

Question 18

What is the first important case on return of irregular migrants?

Answer 18

M’Bodj - M’Bodj was resident in Belgium where he had been beaten up. He claimed that he should be able to stay to receive treatment.

The court ruled that there are only 2 situations in which ill irregular migrants can remain And M’Bodj did not satisfy either;

1. Where a state intentionally deprives someone of health care.
2. Exceptional circumstances where they are very ill.

Question 19

What is the second important case on the return of irregular migrants?

Answer 19

Abdida - a Nigerian in Belgium had a serious medical condition. He claimed he would die if he returned as there were no facilities to treat his condition.

The court found that this was an exceptional circumstance. Returning him to a place where the medical infrastructure would lead to his death would be inhuman and degrading.