Migration flashcards
Case X&X v Belgium
- Married couple with three children lived in Aleppo, Syria and applied for visas at the Belgium embassy in Beirut, Lebanon.
- One of them was abducted and tortured by terrorist group and they were persecuted for being orthodox Christians.
- Belgian government was forced to give them a visa by Belgian courts.
- Such application fell outside of the scope of the Visa Code, therefore the application fell solely within the scope of national law.
- Concluding otherwise would suggest that individuals could apply for asylum directly at EU member state representations abroad.
Case MA (or ME) v Belgium
- Sudanese man was apprehended without documents by the Belgian police and detained pending removal, despite an order to suspend the measure.
- The court found a violation of Article 3 of the convention (inhuman and degrading treatment) due to the state’s failure to assess the applicant’s protection needs and risk of exposure to treatment contrary to Article 13 (right to an effective remedy).
This judgment is important for three reasons:
1. provides clarification on the real and effective access to asylum procedures, especially when applicants are held in pre-removal detention where they are more vulnerable.
2. sheds light on the guarantee that authorities need to contact the applicant’s country of origin to identity and issue documents for their return, before their protection needs have been assessed.
3. The Court rejected the state’s argument on the voluntary character of the applicant’s return to Sudan and provided guidelines to clearly distinguish voluntary departure from forcible return.
Amuur v France (1996)
- A Kurdish family from Turkey sought asylum in France, but were refused by French authorities.
- The ECtHR held that France had violated Article 3 of the ECHR (Convention), which prohibits unhuman or degrading treatment, because the family faced a real risk of being subjected to torture when returned to Turkey.
- The significance lies with its reaffirmation of the principle of non-refoulement, which is a fundamental principle of international refugee law.
- The case established an important precedent for the interpretation and application of Article 3 of the ECHR in asylum and refugee cases within the jurisdiction of the Council of Europe. It reinforced the obligation of states to assess the individual circumstances and risks faced by asylum seekers before making decisions on deportation or return.
Hirsi Jamaa e.a. v Italy
- In 2009 a group of African migrants attempted to cross the Mediterranean sea from Libya to Italy, but were pushed back by the Italian coastguard.
- The applicants stated that the authorities did not inform them of their destination and took no steps to identify them.
- The ECtHR examined whether their interception and pushback operations, known as “Operation Hermes”, violated the rights of the migrants under the ECHR.
- It held that Italy had violated Article 3; inhuman and degrading treatment, and Article 4; no collective expulsions, because the migrants were pushed back without any individual assessments.
- Its significance lies in its reaffirmation of those two articles.
ND & NT v Spain
- on 13 August 2014, 600 migrants attempted to cross the border fence. Two succeeded (the names in the case), and were immediately handed over to Moroccan authorities.
- They alleged no identification procedures were carried out in Spain and that they were not given the opportunity to explain their individual circumstances before being removed.
- The court held that there were no violations on collective expulsions, and also that the lack of individual removal decisions could be because the applicants had not made use of the official entry procedures existing for that purpose, and therefore it had been a consequence of their own conduct.
- The significance is that the precedent had been set that states may refuse entry to migrants and even push back persons who have entered the state’s territory, if they provide a ‘genuine and effective’ access to means of legal entry.
Teitiota v New Zealand
- A man from Kiribati named Ioane Teitiota sought asylum in New Zealand due to the impact of climate change in his home country.
- He argued that the rising sea levels in his country constituted climate change refugees, as he and his family’s life would be at risk if they were forced to return.
- NZ Courts and subsequently the UN Human Rights Committee dismissed his claims. They ruled that the situation in his country did not meet the criteria for the refugee status under international law.
- The ICCPR has a standard more open to climate refugees; the inherent right to life for everyone, which would include people whose life is in danger due to climate change. The HRC of this org still argued that there was insufficient evidence for his life to be in danger.
- The case highlighted the complexities and limitations in applying existing refugee frameworks to individuals who are displaced or forced to migrate due to climate change.
Gap in the Refugee Convention for legal pathway to entry
- Not remedied in EU instruments
- Attempts to prevent irregular entry
- Leads to irregular border crossings; 188.200 of those in first 8 months 2022
Regulation 2018/1806 of EU
- This regulation determines which third countries are subject to, or exempt from, the visa requirements
- on the basis of a case-by-case assessment of a variety of criteria relating to illegal immigration, public policy and security, economic benefit, in particular in terms of tourism and foreign trade, and the Union’s external relations.
- There is a particular consideration of human rights and fundamental freedoms, as well as the implication of regional coherence and reciprocity.
- Article 3 outlines which countries have requirement of visa when crossing external borders of MS
- Article 4 which countries do not need a visa for stays less than 90 days each 180 day period
Carrier Sanctions
According to Article 26, Convention implementing the Schengen Agreement:
- If people are refused at the border, the carrier which brought them there is obliged to assume responsibility for them again and return them to the third state
- The carrier is obliged to ensure that the person they carry is in possession of the travel documents required for entry
- If last point is not the case, in accordance with the Geneva Convention, the carrier will be imposed with penalties
Non-refoulement
prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.
De facto and de jure
De facto
“in fact” or “in reality.” It refers to a situation or condition that exists in practice or effect, regardless of whether it is officially recognized or legally valid.
De jure
“by law” or “according to law.” It refers to a situation or condition that is recognized or established as a matter of law. De jure status is based on legal authority, legitimacy, or formal recognition.
Extra-territorial effect
Article 1 ECHR, obligation to respect human rights
- All members shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this convention
- Extraterritorial application of the ECHR is the exception: de facto or de jure effective control outside the territory of the contracting state
Visa Code
The Visa Code is a regulation known as Regulation (EC) No 810/2009, which was adopted by the European Union (EU) in 2009. It establishes the common procedures and conditions for issuing short-stay visas, known as “Schengen visas,” which allow travelers to enter and stay in the Schengen Area for up to 90 days within a 180-day period.
Sets out the requirements for visa applications, including the necessary documents, processing times, and visa fees. It also defines the criteria for assessing visa applications, such as the purpose of the visit, means of subsistence, and the applicant’s intention to leave the Schengen Area before the visa expires.
Article 3(1) UN Declaration on Territorial Asylum (UNGA, 1967)
No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.
Art. 3(1) Procedures Directive
This Directive shall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection.
Article 1 ECHR, Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
Pushbacks
- the practice of forcibly preventing or returning individuals or groups of migrants, asylum seekers, or refugees from entering or crossing a border.
- No internationally agreed legal definition of the term “pushbacks”
- The special rapporteur on the human rights of migrants at the OHCHR defines it as:
“Various measures taken by states which result in migrants, including asylum seekers, being summarily forced back to the country from where they attempted to or have crossed an international border without access to international protection or asylum procedures or denied of any individual assessment on their protection needs which may lead to a violation of the principle of non-refoulement” - Pushbacks could also violate other fundamental rights, such as the right to life, the prohibition of torture and inhuman or degrading treatment or punishment, the right to property, and respect for private and family life.
New Pact on Migration and Asylum
- On 23 September 2020, the Commission published its “new pact” on migration and asylum.
- “all necessary guarantees will be put in place to ensure that every person would have an individual assessment and essential guarantees remain in full, with full respect for the principle of non-refoulement and fundamental rights”.
- One of the legislative proposals accompanying the New Pact was the proposal for a new regulation on the screening of third-country nationals at external borders.
- It aims to “clarify and streamline the rules on dealing with third-country nationals who arrive at the EU borders in an irregular manner, including following disembarkation after SAR”, and introduces a pre entry screening procedure allowing national authorities at external borders to channel irregular third country national to the appropriate procedure, i.e. asylum or return procedures.
- Article 7 of the proposed regulation envisages the creation of a new “Independent Mechanism for monitoring fundamental rights”. They must ensure that allegations of non-respect for fundamental rights in relation to screening, including as regards access to the asylum procedure and non-compliance with the principle of non-refoulement, are dealt with effectively and promptly.
Article 43 Procedures Directive, Border Procedures
MS may provide for procedures, in accordance with the basic principles and guarantees of Chapter II, in order to decide at the border or transit zones of the MS on:
- the admissibility of an application, pursuant to Article 33, made at such locations; and/or
- the substance of an application in a procedure pursuant to Article 31(8).
MS shall ensure that a decision in the framework of the procedures is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant shall be granted entry to the territory of the MS in order for their application to be processed.
In the event of arrivals involving a large number of TCN or stateless persons lodging applications for international protection at the border or in a transit zone, which makes it impossible in practice to apply, it may be done where that person is in proximity to the border or transit zone.
