Human rights, asylum and European community law

Refugee Survey Quarterly

Volumn 24, Issue 2, 2005, Pages 24-38

  Peers, Steve ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; REFUGEE;

EASTERN HEMISPHERE; EURASIA; EUROPE; WORLD;

EID: 21344461876     PISSN: 10204067     EISSN: None     Source Type: Journal    
DOI: 10.1093/rsq/hdi024     Document Type: Article

References (100)

1. On these issues, see respectively: Peers, 'Procedural Rights and Data Protection Rights in EC Immigration and Asylum Law' (forthcoming);
2. Cholewinski, 'Economic and Social Rights of Refugees and Asylum Seekers in Europe', 14 GILJ (2000) 709;
3. and Peers, 'EC law on family members of persons seeking or receiving international protection', in Shah, ed., The Challenge of Asylum to Legal Systems (Cavendish, forthcoming).
4. See OJ 1997 C 254 (Dublin Convention); the 1992 'London Resolutions' published in Bunyan, ed., Key Texts on Justice and Home Affairs in the European Union (Statewatch, 1997), 64-66; Resolution on asylum procedures (OJ 1996 C 274/13); Joint Position on the definition of 'refugee' (OJ 1996 L 63/2).
5. Arts. 9-12 of Directive 2003/86 (OJ 2003 L 251/12). Member States must apply this Directive by 3 October 2005. However, refugees or others needing international protection are not covered by Directive 2003/109 on the status of long-term resident third-country nationals (Art. 3(2)(b), (c) and (d) of the Directive: OJ 2004 L 16/44), which had originally included refugees (and pursuant to a separate proposal, persons with subsidiary protection) within its scope (Art. 3 of the initial proposal for the long-term residents' Directive (COM (2001) 127, 13 March 2001) and Art. 22 of the initial proposal for a Directive on refugee and subsidiary protection status (COM (2001) 510, 12 Sep. 2001)). The Commission has committed itself to propose a measure extending Directive 2003/109 to refugees and persons with subsidiary protection (see Statement 220/03 in the summary of Council acts in Nov. 2003, Council doc. 16382/03, 7 Jan. 2004), but this proposal has since been delayed (COM (2004) 534, 30 July 2004, Annex II).
6. EC measures on this issue comprise: Directive 2001/40 on mutual recognition of expulsion decisions (OJ 2001 L 149/34), with a subsequent Decision on financing (OJ 2004 L 60/55); Directive 2001/51 on carrier sanctions (OJ 2001 L 187/45); Reg. 2424/2001 and a parallel third-pillar Decision on funding and managing the development of SIS II (OJ 2001 L 328/4); a Framework Decision on trafficking in humans (OJ 2002 L 203/1; implementation deadline 1 Aug. 2004); Directive 2002/90 and a parallel third-pillar Framework Decision on the facilitation of unauchorised entry, movement and residence (OJ 2002 L 328/17; implementation deadline 5 Dec. 2004); Directive 2003/110 on assistance for expulsion via air (OJ 2003 L 321/26; implementation deadline 6 Dec. 2005); Reg. 377/2004 on an immigration liaison officers' network (OJ 2004 L 64/1); Reg. 378/2004 on amending the Sirene manual (OJ 2004 L 64/5); Reg. 871/2004 on future functionalities for the SIS (OJ 2004 L 162/29); Directive 2004/82 on transmitting passenger information by carriers (OJ 2004 L 261/24; implementation deadline 5 Sept. 2006); a Decision on joint expulsion flights (OJ 2004 L 261/28); and Directive 2004/81 on residence permits for victims of trafficking or facilitation of irregular migration (OJ 2004 L 261/19; implementation deadline 6 Aug. 2006). There are also two EC readmission treaties in force (Hong Kong: OJ 2004 L 17/23; Macao: OJ 2004 L 143/97), two agreed (Sri Lanka: SEC (2003) 255, 21 Mar. 2003; Council doc. 7831/1/03, 9 Apr. 2003; Albania: COM (2004) 92, 12 Feb. 2004) and seven under negotiation (with Russia, Ukraine, Morocco, China, Turkey, Algeria and Pakistan).
7. The EC's powers over visas and border controls conferred by Art. 62 EC, along with the provisions of the previously adopted Schengen Convention and its implementing measures (OJ 2000 L 239), also impact upon the ability of asylum-seekers to reach EU Member States' territory.
8. OJ 2003 L 50/1. Member States were obliged to apply the Reg. by 1 September 2003. An implementing Reg. was adopted by the Commission (Reg. 1560/2003, OJ 2003 L 222/3, in force 7 Sept. 2003).
9. N. 2 above. The Convention still governs the issue of asylum responsibility as between Denmark and the other Member States (except for those Member States joining the EU in 2004). A treaty between the EC and Denmark on asylum responsibility, applying the revised rules for responsibility set out in Reg. 343/2003, has now been agreed and awaits ratification: COM (2004) 594, 17 Sep. 2004.
10. OJ 2000 L 316/1, applied from 15 Jan. 2003 (OJ 2003 C 5/2).
11. OJ 2003 L 31/18. Member States must apply the Directive by 6 Feb. 2005.
12. OJ 2004 L 304/12. Member States must apply the Directive by 10 Oct. 2006.
13. The text agreed in principle by the JHA Council on 29 April 2004 is in Council doc. 8771/04, 30 April 2004; the revised text agreed in November 2004 is in Council doc. 14203/04, 9 Nov. 2004. This text will undergo some technical editing before its formal adoption by the Council, including changes in the numbering of its Articles. Member States will have two years to apply the Directive after its adoption and publication. Adoption is likely to take place in spring 2005.
14. OJ 2001 L 212/12. Member States were obliged to implement the Directive by 31 December 2002, except Ireland, which opted in to the Directive subsequently and had to apply it by 31 December 2003 (Commission Decision 2003/690, OJ 2003 L 251/23).
15. Ireland has not opted in to the reception conditions Directive, and opted into the temporary protection Directive only after its adoption (ibid). Both the UK and Ireland opted in to Reg. 859/2003 on third-country nationals' social security (n. 17 below).
16. N. 7 above.
17. See treaty with the EC (OJ 2001 L 93/38), in force since 1 April 2001 (OJ 2001 L 112/16).
18. A treaty to this effect between the EC and Switzerland was agreed in May 2004, but has not yet been ratified. For the text, see COM (2004) 593, 14 Sep. 2004.
19. See Joined Cases C-95/99 to 98/99 Khalil and others and C-180/99 Addou [2001] ECR 1-7413 and Reg. 859/2003 (OJ 2003 L 124/1). It is not clear whether asylum-seekers are governed by the rules applying to refugees.
20. See the Opinion and judgment in Khalil and Addou (ibid), where the point was relevant but was not referred to the Court of Justice by the national court; see further case note by Peers, 39 CMLRev. (2002) 1395.
21. For the Constitution as agreed by the 'Giscard Convention' in July 2003, see OJ 2003 C 169 (Art. III-167 concerns asylum powers). For the Constitution as agreed in June 2004 at the end of the subsequent Intergovernmental Conference, see OJ 2004 C 310 (Art. III-266 confers asylum powers).
22. From a huge literature, see for example, T. Tridimas, The General Principles of EC Law (OUP 1999), 202-243;
23. U. Bernitz and J. Nergelius, eds., General Principles of European Community Law (Kluwer, 2000), s. 2;
24. Alston, ed., The EU and Human Rights (OUP, 1999).
25. Case 222/84 Johnston [1986] ECR 1651.
26. See Peers, 'The European Court of Justice and the European Court of Human Rights: Comparative Approaches' in Orucu, ed., Judicial Comparativism in Human Rights Cases (UKNCCL, 2003), pp. 107-129.
27. Opinion 2/94 [1996] ECR I-1759.
28. See Cases 374/87 Orkem [1989] ECR 3283, Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763 and Case C-249/96 Grant [1998] ECR I-649, referring to International Covenanton Civil and Political Rights. However, the Grant judgment takes a dismissive approach to the Human Rights Committee's role interpreting the Covenant.
29. Case law since Case 5/88 Wachauf[1989] ECR 2609 and Case C-260/89 ERT[1991] ECR I-2925.
30. See for instance, Joined Cases C-465/00, C-138/01 and C-139/01 Osterreichischer Rundfunk [2003] ECR I-4989, concerning the EC's data protection Directive.
31. See particularly Case C-112/00 Schmidberger [2003] ECR I-5659, Case C-7/98 Krombach [2000] ECR I-1935 and judgment of 14 Oct. 2004 in Case C-36/02 Omega, not yet reported.
32. For examples, see Case C-280/93 Germany v Council (bananas I) [1993] ECR I-4973;
33. Case C-122/95 Germany v Council (bananas II) [1995] ECR I-973;
34. and Case T-30/99 Bocchi Foods v Commission [2001] ECR II-943.
35. For instance, see judgment in Case C-293/97 Standley [1999] ECR I-2603, para. 54.
36. On this issue, see generally S. Peers, 'Taking Rights Away? Limitations and Derogations' in S. Peers and A. Ward, The EU Charter of Fundamental Rights: Politics, Law and Policy (Hart, 2004), 141-179.
37. Decision in T.I. v U.K. (Reports of Judgments and Decisions 2000-III).
38. For the Charter, see OJ 2000 C 364. In the asylum legislation, see para. 20 of the preamble to the definitions Directive (which 'respects the fundamental rights and observes the principles recognised in particular by the Charter....[i]n particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members'), para. 5 of the preamble to Dir. 2003/9 (identical wording, up to '...seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the said Charter') and para. 15 of the preamble to Reg. 343/ 2003: ('observes the fundamental rights and principles which are acknowledged in particular in the Charter....[i]n particular it seeks to ensure full observance of the right to asylum guaranteed by Article 18'). The preamble to the agreed text of the asylum procedures Directive is not yet available.
39. For instance, see the Opinions in Cases C-173/99 BECTU [1001] ECR I-4881 and C-377/98 Netherlands v Council and EP [2001] ECR I-8575.
40. Joined Cases T-377/00, T-379/00, T-260/01 and T-272/01, Phillip Morris and others v Commission [2003] ECR II-1, paras. 121 and 122.
41. On Art. 51, see P. Carozza, 'The Member States' in S. Peers and A. Ward, eds., n. 30 above, 34-58
42. and P. Eeckhout, 'The EU Charter of Fundamental Rights and the Federal Question' (2002) 39 CMLRev. 945.
43. On Article 52, see S. Peers, 'Taking Rights Away?', n. 30 above.
44. On Art. 53, see J. Liisberg, 'Does the EU Charter of Rights Threaten the Supremacy of Community Law?' (2001) 38 CMLRev. 1171.
45. Generally, see Alonso Garcia, 'The General Provisions of the Charter of Fundamental Rights of the European Union', (2002) 8 ELJ 492.
46. Part II of the Constitution (Arts. II-61 to II-114).
47. Art. I-9 of the Constitution; there is also a Protocol (no. 32) and Declaration (no. 2) on specific issues of EU accession to the ECHR. See also the Fourteenth Protocol to the ECHR (not yet in force).
48. However, due to the Charter's insertion into the Constitution, Arts. 18 and 19 of the Charter would be renumbered Arts. II-78 and II-79 of the Constitution.
49. Amended Art. 51 of the Charter (which would become Art. II-111 of the Constitution).
50. Amended Art. 52 of the Charter (which would become Art. II-112 of the Constitution). On the first three of these amendments, see Peers, 'Taking Rights Away?' (n. 30 above). For the text of these explanations, see Declaration 12 to the Constitution (n. 37 above).
51. See Schmidberger, n. 27 above.
52. The EU Court of Justice has never ruled on whether or not Art. 307 EC applies to human rights treaties. There is nothing in Art. 307 to suggest any exclusion of any type of treaty from its scope, unless it could be argued that Art. 6(2) EU is lex specialis as regards the legal effect of the ECHR. The weakness of using Art. 307 is that it cannot apply to France as regards the ECHR (since France ratified the ECHR after joining the Communities) or a number of ECHR Protocols which a number of Member States ratified after membership, and there is an obligation on Member States to amend or denounce the pre-existing treaty which conflicts with EC law in certain cases (see most recently Opinion of 8 July 2004 in Case C-203/03 Commission v Austria, pending).
53. See para. 4 of the preamble to and Art. 3(1) of the Decision on the first European Refugee Fund (OJ 2000 L 252/12); para. 5 of the preamble to and Art. 3(1) of the Decision on the second Fund (OJ 2004 L 381/52); para. 10 of the preamble to and Arts. 2(b), 2(c), 2(e) and 3(1) of Directive 2001/55; paras 2 and 16 of the preamble and Arts. 2(a), 2(b), 2(e) and 3(4) of Directive 2003/9; para 2 of the preamble to and Art. 2(b), 2(c), 2(g), 3(3), of Reg. 343/2003; paras 2, 3, 8, 16, 17 and 24 of the preamble to and Arts. 2(b), 5(3), 9(1), 12(1)(a), 14(6), 20(1), 20(6) and 25(1) of Directive 2004/83; and points 2, 7 and 13 of th preamble to and Arts. 2(a), 2(b), 2(f), 3(3), 27(1)(b), 27(1)(d), 30(2), 30A(5), 35A(2)(a) and 35A(4) of, and point (c) of Annex II to, the agreed asylum procedures Directive.
54. See Khalil and Addou judgment (n. 17 above), although this judgment did not concern human rights issues or challenge the compatibility of the EC legislation with the Convention.
55. See Kalin, 'Supervising the 1951 Convention relating to the Status of Refugees: Article 35 and Beyond' in Feller, Turk and Nicholson, eds., Refugee Protection in International Law: UNHCR's Global Consultations on Refugee Protection (CUP, 2003), 613.
56. See Declaration 17 to the Final Act of the Treaty of Amsterdam; para. 11 of the preamble and Arts. 3(3), 5(3)(d), 5(4)(c), 25(1) and 26(2) of Directive 2001/55; Arts. 14(2)(b) and 14(7) of Directive 2003/9; para. 15 of the preamble to Directive 2004/83; and para. 13 of the preamble to and Arts. 7(2)(b), 9(1)(c), 21 and 37(1)(c) of the agreed asylum procedures Directive.
57. See Case C-188/91 Deutsche Shell [1993] ECR I-363, para. 18 and Case C-162/97 Nilsson et al [1998] ECR I-7477, para. 49.
58. See n. 24 above.
59. See particularly para. 47 of the judgment.
60. See case law at n. 47 above.
61. See particularly Lauterpacht and Bethlehem, 'The scope and content of the principle of non-refoulement: an Opinion in Feller, Turk and Nicholson eds., (n. 45 above), 87
62. and de Wet, 'The prohibition of torture as as international norm of Jus Cogens and its implications for national and customary law' 15 EJIL (2004) 97.
63. See Case C-162/96 Racke [1998] ECR I-3655, paras. 45 and 46.
64. See Case C-286/90 Poulsen and Diva [1992] ECR I-6019 and Case T-115/94 Opel Austria [1997] ECR II-39.
65. See further Besselink, 'Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union' 35 CMLRev. (1998) 639.
66. The EU's Court of First Instance has recognised the ne bis in idem right in the Seventh Protocol as a general principle of EC law: see Case T-224/00 Archer Daniels Midland, judgment of 9 July 2003, not yet reported, para 85.
67. See n. 32 above.
68. The Court of Justice has already interpreted EC legislation and ruled on its validity in light of the Geneva Convention (see Khalil and Addou judgment, n. 17 above), although this judgment did not concern human rights issues or challenge the compatibility of the EC legislation with the Convention.
69. The Court recognised the existence of the right in Netherlands v EP and Council (n. 33 above).
70. Art. 18 of the Charter; Art. II-78 of the proposed Constitution.
71. Art. 19(2) of the Charter; Art. II-79(2) of the proposed Constitution.
72. Art. II-61 of the proposed Constitution.
73. See Peers, 'Immigration, Asylum and the European Union Charter of Fundamental Rights' 2 EML (2001) 141, and the editorial by Cullen in the same volume, 135 at 137.
74. N. 10 above.
75. Art. 15 of the Directive; see also Arts. 16-18 on cessation, exclusion, granting and forms of withdrawal of status, which are based on (but not identical to) the parallel rules for Convention refugees in the Directive.
76. Arts. 9-10 of the Directive; see also Arts. II-14 on cessation, exclusion, granting and forms of withdrawal of refugee status.
77. Arts. 4-8 of the Directive, concerning principles of assessment, the sur place principle, actors of persecution or serious harm, actors of protection and internal protection.
78. Arts. 19-34 of the Directive; but note that the Directive gives Member States the option to draw substantial distinctions between the benefits which Convention refugees can receive and the benefits which beneficiaries of subsidiary protection can receive.
79. See Art. 9(1) of the Directive.
80. Art. 15 of original proposal (COM (2001) 510, 12 Sep. 2001).
81. It is arguable, however, that any threat to 'safety or freedom' constitutes a threat to the 'person'. For a detailed analysis of the definition of subsidiary protection in the proposed and agreed text, see Piotrowicz and van Eck, 'Subsidiary Protection and Primary Rights', 53 ICLQ (2004) 107.
82. Since the Directive does not distinguish between cases where the death penalty would be imposed in wartime or imposed in peacetime, it must be taken to apply the subsidiary protection principle in either case, regardless of whether Member States have ratified the Thirteenth Protocol or not.
83. On this issue, see the detailed and convincing analyses by Piotrowicz and van Eck (n. 69 above) and by the House of Lords judgment in R. v Special Adjudicator ex parte Ullah and Do [2004] UKHL 26.
84. There is of course, a distinction between the mere application of the Soering effect, which, according to the Strasbourg case law to date, only confers a right to non-removal to a State presenting the relevant risk (or another State which would return the person to the State presenting the risk: see T.I. v U.K., n. 31 above), and the right to a fully-fledged immigration status such as that provided for subsidiary protection beneficiaries in the Directive.
85. Art. 37 of the Directive.
86. Para. 25 of the preamble.
87. Para. 11 of the preamble; see also Dir. 2001/55 (para. 16), Dir. 2003/9 (para. 6), Reg. 343/2003 (para. 12) and the agreed Directive on asylum procedures (para. 9).
88. Art. 21(1).
89. Art. 21(2).
90. Art. 21(3).
91. Art. 14(4) to (6).
92. Art. 17 of the Directive.
93. On these issues, see Lambert, 'Protection Against Refoulement from Europe: Human Rights Law comes to the rescue' 48 ICLQ (1999) 513;
94. Fabbricotti, 'The Concept of Inhuman or Degrading Treatment in International Law and its Application in Asylum Cases', 10 IJRL (1998) 637;
95. Ingelse, The UN Committee against Torture: An Assessment (Kluwer, 2001), ch. 10;
96. and Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 2nd edition (OUP 2004), 203-208 and 230-248.
97. See s. 3 above.
98. See text at n. 52 and 53 above.
99. See Lauterpacht and Bethlehem (n. 51 above).
100. Art. 33(1), Geneva Convention. On interpretation of the clause, see ibid.