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Summary

 

During the period of 2011–2014, the European Union (EU) reformed its legislation on asylum in order to achieve its overarching objective to establish a Common European Asylum System (CEAS).  The refugee crisis has impeded further development of the CEAS.  The Schengen system of passport-free travel throughout Europe is on the verge of collapse because of temporary border controls reinstated by a number of EU Members States.  The Member States, especially countries of first entry like Greece and Italy, have faced extraordinary pressure in this crisis, severely testing their asylum systems.

The migrants who enter the EU are a mixed group composed of asylum seekers and economic migrants.  Under CEAS, international protection is granted to those migrants who qualify as refugees due to a well-founded fear of persecution.  Subsidiary protection status is granted to those who would face a real risk of suffering serious harm if returned to his/her country of origin.  Member States are required to return illegal economic migrants to their country of origin; however, implementation of returns is difficult due to a lack of travel documents, a lack of detention facilities, and other factors.

At the core of CEAS is the right to asylum and the prohibition of refoulement, as guaranteed by the Charter of Fundamental Rights and the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol.  Both instruments bind EU Members, who must also comply with the case law of the Court of Justice of the European Union and the European Court of Human Rights (ECHR).  The ECHR has held against several Member States for violating the EU’s legal regime on refugees on issues of detention, status of reception facilities, and lack of legal remedies.  Greece, in particular, was found by the ECHR to have “serious deficiencies” in its asylum system and Member States are prohibited from sending refugees back to Greece, as the first country of entry, in compliance with the Dublin Regulation.  The Dublin system has been identified as the key structural problem of CEAS because it places an undue burden on countries of first entry.

The CEAS is composed of a number of directives and regulations that require action by the EU Member States or are directly applicable within their national legal systems.  The European Commission follows closely the full and correct implementation of CEAS and has adopted many decisions related to the application of asylum rules.  

During 2015, the EU sought to ensure a coordinated European response to the refugee crisis.  Various EU agencies provided assistance, financing, training, and experts to the Member States to implement CEAS.  The Commission also allocated over €10 billion to address the refugee crisis and assist Member States, particularly those most impacted.  To ensure better security of its external borders, the EU proposed the creation of a European Border and Coast Guard with new powers and shared responsibility for the EU borders with Member States.  In November 2015, the Commission signed an Action Plan with Turkey designed to reduce the migration flow entering EU through Greece.  

I.  Introduction

During the period of 2011–2014 the European Union (EU) reformed the Common European Asylum System (CEAS) that was initiated in 1999.  The EU was prompted to do so by a number of factors, such as an increased influx of migrants arriving at the borders; harsh conditions in reception facilities in some EU countries; a lack of uniform standards for assessing asylum applications; and vague rules contained in the Dublin Regulation[1] as to which EU Member is responsible for handling asylum applications.  The migratory crisis threatened the very existence of the Schengen area, an area of open internal borders, with free movement of persons guaranteed to EU citizens and those legally present.[2]  A common set of rules, as contained in the Schengen Borders Code, apply to persons at crossing points of the external borders of the EU.[3]  

CEAS is composed of several directives and regulations, which have been recast.[4]  It guarantees a set of common standards and requires stronger cooperation by EU Members to ensure that asylum seekers are treated fairly and equally wherever they apply.[5]

Several EU agencies, such as the European Asylum Support Office (EASO),[6] Europol, and Eurojust, assist the EU Members—especially those which, due to their geographic location are disproportionally affected—in handling asylum requests through various funds,[7] materials, and experts.  In addition, the European Agency for the Management of Operational Cooperation at the External Borders, commonly known as FRONTEX, which was created in 2004 to support the EU Members through joint operations on land, air, and sea,[8] was recently the subject of a Commission proposal[9] to replace FRONTEX with a new European Border and Coast Guard Agency (EBCGA), which would have increased powers, including the right to intervene in Member States’ border control functions, a monitoring and risk analysis center, and a European Return Office, in addition to increased funding and staff.[10]

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II.  General Principles of CEAS

CEAS is based on the Geneva Convention Relating to the Status of Refugees of 1951, as amended by the New York Protocol of January 1967 Relating to the Status of Refugees.[11]  CEAS affirms the principle of nonrefoulement, enshrined in article 33 of the Geneva Convention, under which states are prohibited from returning refugees or asylum seekers back to countries where they face persecution due to race, religion, nationality, membership in a particular social group, or political opinion.[12]  

Article 18 of the Charter of Fundamental Rights of the European Union guarantees a right to asylum based on the Geneva Convention, and article 19 contains a ban on returning a person to a country where he/she has a well-founded fear of being persecuted or faces a real risk of being tortured or subjected to inhuman or degrading treatment.[13] 

The Court of Justice of the European Union (CJEU) ensures the correct interpretation and application of asylum law through the adoption of preliminary rulings, infringement proceedings against Member States who fail to comply with obligations laid down in EU asylum law, or actions for annulment when the legality of a provision of EU legislation is challenged.  In particular, the CJEU is required to ensure the application of the Charter of Fundamental Rights of the EU, which establishes the right to asylum (art. 18) and provides for the prohibition of torture and inhuman or degrading treatment or punishment (art. 4); the right to protection in the event of removal, expulsion, or extradition (art. 19); rights of the child (art. 24); the right to good administration (art. 41); and the right to an effective remedy and a fair trial (art. 47).

Furthermore, the EU Members, as members of the Council of Europe, are also bound by Council of Europe treaties, the case law of the European Court of Human Rights (ECHR), and other ratified international agreements that may apply, such as the Convention on the Rights of the Child in the case of minors.  The ECHR is competent to judge human rights violations committed by state parties of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention), including provisions such as the prohibition of inhuman or degrading treatment (art. 3), prohibition of collective expulsions (art. 4 of Protocol 4), right to liberty and security (art. 5), right to respect of family and private life (art. 8), and right to an effective remedy (art. 13).  These rights remain closely related to asylum—in particular, the principle of nonrefoulement and reception/detention conditions.

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III.  Arrival at the Border

A. Procedural Aspects

Third-country nationals who reach the EU borders, including territorial waters and transit zones,[14] and who wish to apply for international protection are subject to national legislation, which must comply with EU asylum legislation.  Member States must guarantee the right to effectively make a claim for international protection  without obstructions or undue delay.  EU Members are allowed to adopt or retain more favorable standards as to who qualifies as a person in need of international protection and on reception conditions, as long as such rules and standards are, in general, compatible with EU rules.[15]

1.  Registration

Directive 2013/32/EU on Common Procedures for Granting and Withdrawing International Protection[16] (the Common Procedures Directive) applies to all applications for international protection made in the EU territory, including its borders, territorial waters, or transit zones of the Member States.[17]  It also applies to the withdrawal of international protection. 

Registration of applications for international protection must be made within three days after they are filed.[18]  The three-day deadline may be extended to an additional three days if the application is made to authorities who have no competence to effect registration.  If faced with a large number of applicants who need to file for international protection, the registration deadline can be extended to ten days.[19]  Member States must ensure that applicants are able to file their applications with the appropriate authorities.[20]

“International protection” is defined as a request made by a third-country national or a stateless person who seeks refugee status or subsidiary protection.[21]

The Common Procedures Directive requires EU Member States to designate personnel who are well-equipped to handle all incoming requests.[22]  In addition, staff must be well-trained under the guidelines and training developed of the European Asylum Support Office (EASO); for example, they must be aware that interviewees may have difficulty speaking about their case due to torture.[23]  Member States must ensure that the examination procedure is concluded within a six-month deadline from the time the application was submitted.[24]

Member States may designate another national authority to be responsible for processing a case, based on the Dublin Regulation, or for granting or refusing permission to enter.[25] 

2.  Fingerprinting

The EURODAC Regulation, which became applicable July 20, 2015, established a computerized, encrypted, and centralized fingerprint database for asylum seekers and irregular border crossers known as EURODAC (for “European Dactyloscopy”), which consists of a Central Unit and a communications infrastructure between the Central System and Member States.[26]  Designated authorities, such as the law enforcement authorities of the Member States who are responsible for the prevention, detection, or investigation of terrorist offenses or other serious criminal offenses, are authorized to request comparison of fingerprinting through EURODAC. 

Pursuant to the EURODAC Regulation, Member States are required to take the fingerprints of all fingers of every applicant for international protection who is at least fourteen years of age.  The competent national authorities must, as soon as possible and no later than seventy-two hours after the lodging of an application for international protection, forward the fingerprints together with certain specified data to the Central System.[27]  In the event that the seventy-two-hour deadline has passed, Member States are still required to submit the fingerprints of applicants.  

In addition, Member States are required to take the fingerprints of all fingers of every third-country national or stateless person who is at least fourteen years of age who is apprehended by border patrol authorities in connection with an irregular crossing by land, sea, or air of the border of that Member State.[28]

In addition to fingerprinting, other information added to EURODAC includes Member State of origin and information on any application for international protection.[29]

The EURODAC system is used by the competent authorities of the Member States to verify whether a third-country national or a stateless person who is illegally within its territory has filed an application for international protection in another Member State.[30] For this purpose, a Member State may transmit to the Central System any fingerprint data and, through a reasoned electronic request, ask for a comparison with fingerprints already in the system.[31]

3.  Allocation of Responsibility for Asylum Claim: The Dublin Regulation

Pursuant to article 3(1) of the Dublin Regulation 604/2013 (recast) (Dublin Regulation) the EU Member States must examine any application for international protection lodged by a third-country national or a stateless person and such application must be examined by one single Member State.  The Dublin Regulation is binding on Member States and Norway, Iceland, Liechtenstein, and Switzerland.[32]  

The Dublin Regulation covers applications for international protection lodged as of January 1, 2014, and all requests to take back applicants for international protection or take charge in case a Member State wishes to review an application irrespective of criteria after January 1, 2014.  An amended Dublin Implementing Regulation was adopted by the Commission on January 2014 and took effect in February 2014.[33]

The Dublin Regulation lays down the criteria and ways to determine which Member State of the European Union is responsible for reviewing an application for international protection.[34]  The criteria that are to be applied, in hierarchical order, are (a) the existence of a family in a Member State; (b) having a visa or residence permit in a Member State; and (c) entry into a Member State, whether illegally or not.[35]  They are designed to prevent the circumstance of one individual abusing the system by filing applications in more than one Member State, and to avoid having people sent from one Member State to another by national authorities.

The application must be examined by a single Member State which, based on the criteria established, is the Member State responsible.  If, based on the criteria listed above, no Member State can be designated as responsible, then, by default, the first Member State in which the application for international protection was lodged must take responsibility for examining it.[36]

Based on a discretionary clause in the Dublin Regulation, each Member State is permitted to examine an application for international protection, even if the criteria for determining responsibility have not been met.  In such a case, that Member State must notify the Member States concerned through the DubliNet electronic communications network.[37]

The Dublin Regulation established an Early Warning Mechanism to prevent pressure on the asylum systems of Member States which encounter problems due to a large number of incoming migrants.[38]  In such a case, the Commission in order to avert a danger to the application of the Dublin Regulation, in cooperation with the EASO will prepare a preventive action plan for the Member State facing difficulties in its asylum system.[39]  The Member State concerned must report back to the Commission on actions taken on the basis of the action plan.

There are specific provisions in the Dublin regulation and in other instruments of the CEAS concerning unaccompanied minors entering the EU.  Family reunification and the best interests of the child are the primary concerns.  The Commission was prompted to amend the rules of the 2013 Dublin Regulation because of a large number of unaccompanied minors entering the EU beginning in 2014 and continuing in 2015, and in order to comply with a relevant decision of the European Court of Justice issued in 2013. [40] The Court ruled that when an accompanied minor has filed an asylum application in more than one state, the Member State responsible for reviewing the asylum application is the one where the minor is located and has filed an application.  For this to apply, no member of the minor’s family may be legally present in another Member State.[41]

4.  Personal Interview

An applicant is subject to a personal interview by a person who is competent under national law to conduct interviews.[42]  In the case a large influx of migrants applying at the same time, Member States may designate personnel from another national authority to temporarily conduct interviews.[43]  Interviews are to be conducted in conditions that ensure confidentiality and without the presence of family members.[44]  The authority that conducts the interview on the substance of an application for international protection must provide the applicant with sufficient time to present evidence to substantiate his/her application.[45]

5.  Medical Examination

A medical examination can be ordered, with the applicant’s consent and paid by public funds, if the determining authority deems the examination necessary to confirm past persecution or serious harm.[46]

B. Substantive Rights

1.  Access to Legal Information

During the first-instance procedure, Member States are required to provide legal and procedural information in a language that a person understands, free of charge.  In the event of a negative decision, national authorities also provide information regarding the right of appeal.[47]

Member States must ensure that applicants have the opportunity to seek legal assistance at their own cost on issues related to their application, including in the case of a negative decision.

EU Members must ensure that applicants for international protection enjoy the following guarantees: (a) be informed in a language they understand of their rights and obligations during the procedure and receive the services of an interpreter, if necessary; (b) be given an opportunity to communicate with the United Nations High Commissioner for Refugees or other organization that provides legal assistance; and (c) be given notice of the decision of the determining authority within a reasonable time and the results of the decision.

2.  Right to an Effective Remedy

Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right to an effective remedy to everyone.  According to article 46 of the Common Asylum Procedures Directive, European Union law requires that asylum seekers must have the right to request a review of a negative asylum decision before a court or tribunal in the case of (a) an unfounded negative decision on the applicant’s application for international protection; (b) a decision that the application is inadmissible; (c) a decision to withdraw international protection; and (d) a decision taken at the borders or in a transit zone.[48]

3.  Right to Remain in the Member State

Applicants have the right to remain in the Member State where they applied until the competent authority decides on the case.  However, the right to remain does not entitle the applicant to a residence permit.[49]

4.  Freedom of Movement

Member States must allow applicants to move freely within their territory, or within an area assigned to them, and give them permission to leave the assigned area.[50]

5.  Material Reception and Health Care

Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 requires EU Members to provide “material reception conditions” (i.e., housing, food, clothing) and health care to ensure an adequate standard of living and to guarantee the physical and mental welfare of applicants for international protection.[51]  The health care provided must include at a minimum emergency care and treatment of sickness and serious mental disorders.[52]  Member States must ensure that applicants receive necessary health care, which must include at a minimum emergency care and the essential treatment of illnesses and serious mental disorders.

EU Members have the discretion to make the availability of material reception conditions and health care conditional on the lack of sufficient means by the applicants to secure for themselves an adequate standard of living.[53]  The material reception conditions may be provided in kind, in the form of vouchers, or via financial allowances, or by a combination of the three, including a daily expenses allowance.[54]  They also have the freedom to require that applicants cover or contribute to the material conditions and health care costs, if applicants are financially able to do so.[55]  Where housing is provided, it could be in the form of accommodation centers or premises used for the examination of applicants during border procedures, or even apartments, houses, or hotels converted to house applicants.[56]  When housing applicants, Member States must take into consideration applicants’ age and gender, and the needs of vulnerable people.[57]

6.  Schooling and Education for Minors

Member States are obliged to give the minor children of applicants and applicants who are minors access to the state educational system under similar conditions as their own nationals within three months from the date the application was made.[58]  National authorities must provide preparatory classes, including language classes, to minors where necessary to facilitate their participation in education.[59]

7.  Employment and Vocational Training

Member States are required to provide applicants access to the labor market no later than nine months from the date when the application for international protection was made.[60]  The conditions for access must be in compliance with national law.  Applicants must also have access to vocational training irrespective of whether they have access to the labor market.[61]

8.  Guarantees for Detained Applicants

In general, the detention of applicants seeking international protection is not allowed; Member States must consider alternatives to detention, where possible, in accordance with national law.  However, such applicants may be detained on the following specific grounds: (a) to verify the applicant’s nationality or identity; (b) to determine aspects on which the application for international protection was based; (c) to review whether the applicant has the right to enter the territory of a Member State; (d) where the applicant is subject to a return procedure; or (e) to protect national security or public order.[62]  The detention of applicants must be ordered in writing by the appropriate judicial or administrative authorities, stating the grounds for detention, and must be as short as possible.[63]  When detention is ordered by administrative authorities, it is subject to judicial review.[64]  Regardless of the authority that ordered it, the detention decision is subject to judicial review at reasonable intervals, either at the request of the applicant or ex officio.[65]  Moreover, applicants must have free access to legal representation and legal assistance.[66]  Member States may make such free access conditional on the lack of financial resources of the detained applicant and, with regard to legal services, may limit it to legal services designated for that purpose under national law.[67]

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IV.  Qualifications for International Protection

A.  Requirements

Applications for international protection submitted by third-country nationals or stateless persons are governed by Directive 2011/95/EU, which establishes common standards to grant international protection to those who qualify.[68]  Applicants must provide all documentation available and any statements made to the appropriate authorities, including information as to whether the applicant has been subjected, or may be subjected, to persecution or harm.[69]  The Directive allows for the possibility that an applicant may claim that he or she has a well-founded fear of being persecuted or a real risk of suffering serious harm for events that occurred after the applicant left the country of origin.[70]

The authorities must assess on a case-by-case basis whether an applicant for international protection is a refugee within the meaning of article 1(a) of the Geneva Convention or a person eligible for subsidiary protection.

Pursuant to the Directive, persecution can be committed by the state, parties or organizations controlling the state, or parties or organizations having under their control a substantial part of the territory.  It may also include non-state actors if they cannot or are unwilling to protect victims of persecution.[71]

The principle of nonrefoulement is not absolute.  Under certain circumstances, a person, whether formally recognized or not, may be removed from the EU territory, if he/she poses a threat to the security of an EU Member State, or if he/she is deemed a threat to the host country after the commission of a crime.[72]

1.  Refugee Status

To be granted refugee status, an applicant must meet the following criteria:

  • Face a well-founded fear of persecution.
  • The grounds for persecution must be related to the applicant’s race, religion, nationality, or membership in a particular social group.
  • A causal link must exist between the well-founded fear of persecution on the grounds of one’s race, religion, nationality, political opinion, or membership in a particular social group and the acts of persecution.[73]
  • The acts of persecution may take a variety of forms, such as physical or mental violence, including sexual violence, and in the case of a minor may also include acts of a gender-specific or child-specific nature.[74] 

2.  Subsidiary Protection Status

In order to grant subsidiary protection status, there must be substantial grounds to believe that an applicant who does not otherwise qualify for refugee status would face a real risk of suffering serious harm if returned to his/her country of origin.  The qualification for subsidiary protection from a “real risk of suffering serious harm” includes the death penalty or execution, torture or other inhuman or degrading treatment or punishment, or a serious and individualized threat to the minor due to violence in the case of internal armed conflict.[75]

The applicant must provide information pertaining to his/her age, background, country of origin, relatives, travel documents (if any), and reasons for applying for international protection.[76]  Each application is examined individually.

B.  Rights Granted to Refugees and to Persons Given Subsidiary Protection Status

Applicants, after being granted refugee status or subsidiary protection, must be given information about their rights and obligations arising from obtaining a new status.  Member States are obliged to retain family unity.[77]  Member States are required to provide the following entitlements to those who are given refugee status or subsidiary protection:

1.  Residence Permit

Those who are accorded refugee status must be given a residence permit valid for three years, which can be renewed.[78]  Those accorded subsidiary protection receive a renewable residence permit valid for one year.[79] 

2.  Travel Documents

Travel documents are given to refugees to enable them to travel outside the territory of the host country, unless there are security reasons or public order concerns that require otherwise.[80]  Those who are granted subsidiary protection status and who are unable to obtain a national passport are given documents for the purpose of traveling outside the country.[81]

3.  Access to Employment

Member States must authorize refugees and those with subsidiary protection status access to be employed or self-employed, subject to rules generally applicable to the profession and to public service, immediately after they are granted refugee status.[82]  Refugees must be paid in accordance with the applicable laws on remuneration and have access to social security systems relating to employed or self-employed activities and other conditions of employment.[83]

4.  Education

All minors who have been given international protection must have full access to the education system, under the same conditions as nationals.[84]  Adults must be given access to the general education system, training, or retraining, under the same conditions as third-country nationals who are legal residents.[85]

5.  Social Welfare and Health Care

Individuals who are granted international protection must receive in the Member State that has granted such protection necessary social assistance comparable to that received by nationals of the Member State.[86]  Member States are free to limit the social assistance granted to core benefits, which will then be provided at the same level and under the same eligibility conditions as apply to nationals.[87]

Such individuals must also have access to healthcare under the same eligibility conditions as nationals of the Member State that has granted protection.[88]

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V.  Long-Term Status Granted to Refugees

Directive 2011/51/EU allows refugees and beneficiaries of international protection to be able to acquire long-term resident status on a similar basis as other third-country nationals legally living in the EU for more than five years.[89]  Member States had to comply by 2013.  The UK, Ireland, and Denmark did not take part in the application of this Directive and they are not bound by it.  After five years, those accorded long-term status will be able to enjoy freedom of movement within the EU and the right to become a resident in another Member State.  Under certain conditions, they will also enjoy equality of treatment with citizens of the EU Member State in which they reside in a wide range of economic and social matters.  These include education, access to the labor market, and social security benefits.

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VI.  Temporary Protection in the Case of a Mass Influx of Displaced Persons

Council Directive 2001/55/EC establishes minimum standards for temporary protection to be applied in the case of a large influx of displaced persons from third countries who cannot return to their countries of origin.[90]  The Directive is designed to come into play in grave situations of unrest in a particular country—for instance, when due to armed conflict or endemic violence people are at serious risk of, or have been the victims of, “systematic or generalised violations of their human rights.”[91]

Immediate and temporary protection is given to avoid overburdening the asylum system of countries and to ensure the smooth operation of such systems during a crisis.[92]  The duration of temporary protection is one year, with the possibility of extending it to a maximum of an additional year.[93]  EU Members are required to provide medical and other support for people with special needs, such as minors or those who have been subjected to rape, torture, or other physical or psychological abuse.[94]  Minors under the age of eighteen must also have access to the education system of the host country.[95]  Persons under temporary protection must have access to apply for asylum at any time.[96]  After temporary protection has ended, the national laws on aliens of the EU Members becomes applicable.[97]  The individual EU Members are responsible for taking measures to ensure the voluntary return of persons.[98]

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VII.  Court Cases

Even though there is no right to asylum as such under the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention on Human Rights), which binds all EU Members, the European Court of Human Rights has dealt with a large number of cases involving asylum seekers whose human rights have been violated—for example, for maltreatment while being kept in detention centers or in reception facilities.  The Court has also examined whether national authorities, by sending back individuals seeking asylum, put those asylum seekers at risk of being tortured or subjected to inhuman or degrading treatment or punishment, which is contrary to article 3 of the Convention on Human Rights.  In such cases, national authorities can be found guilty for violating the human rights of the asylum seekers.  This particular issue was dealt with favorably for the asylum seekers in the case of Hirsi Jamaa and Others v. Italy, which involved persons intercepted in international waters.[99]

Another illustrative case, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, involved the two-month detention at a Brussels airport transit center intended for adults of a five-year-old child traveling unaccompanied to join her mother, who had obtained refugee status in Canada.  No one was assigned to represent or counsel the child.  The ECHR found a violation of article 3, which prohibits inhuman and degrading treatment under the Convention on Human Rights.  The Court took into account the fact that the child was in great distress because of her very tender age, that she was alone in a foreign land, and that the Belgian authorities ignored their obligation to take care of her, and determined that any measures taken by Belgian authorities were inadequate.[100] 

The case of M.S.S. v. Belgium and Greece involved living conditions in reception centers in Greece.  An Afghan national entered the EU through Greece and then went to Belgium, where he applied for asylum.  On the basis of the Dublin Regulation he was sent back to Greece as the first country of entry into the EU.  There he was kept in detention in a small room with twenty other detainees with limited access to restroom facilities.  The Grand Chamber of the ECHR in 2011 found that Greece violated article 3 of the Convention on Human Rights, as well as article 13, on the right to an effective remedy, because of flaws in Greece’s asylum procedures.  It found that Belgium violated article 3, because the applicant’s transfer to Greece exposed him to harsh living conditions and to flawed Greek asylum procedures.[101]

The case of Conka v. Belgium[102] involved four applicants, a couple and their two minor children of Roma origin who had fled their country of origin, Slovakia, because of violence and threats directed at them by skinheads, from whom the police refused to protect them.  Their subsequent application for asylum in Belgium was declared inadmissible for lack of sufficient evidence to qualify them as refugees, and the family was ordered to leave the country within five days.  Before the ECHR, the applicants asserted a violation of Protocol 4, article 4, of the Convention on Human Rights, which prohibits the collective expulsion of aliens.[103]  The ECHR reviewed the applicable domestic law, including a guidance document on immigration policy approved by the government in the aftermath of a large number of asylum seekers from Slovakia.  The Note contained the following statement: 

A plan for collective repatriation is currently under review, both to send a signal to the Slovakian authorities and to deport this large number of illegal immigrants whose presence can no longer be tolerated.[104]

The ECHR reaffirmed the definition of collective expulsion as including any measure that orders aliens as a group to leave a country, without “reasonable and objective examination of the particular case of each individual alien of the group.”[105]  The Court found that authorities had announced that deportations would take place and had given instructions and orders to that effect, and that the applicants were deprived of the opportunity to contact a lawyer.[106]  Based on these grounds, the ECHR found a violation of Protocol 4, article 4.[107]

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VIII.  Return Proceedings

A.  Returns Directive

All migrants who are illegally present in the EU and who are not in the process of obtaining an authorization to stay must be deported.  Under the Returns Directive,[108] EU Members are obliged to regularize illegal migrants who meet the requirements or to issue a “return decision.”[109]  Return decisions, which can be administrative or judicial, declare the stay in the EU illegal and order that the person concerned leave the EU.  Return decisions must contain a period for voluntary departure of between seven and thirty days.[110]  When an illegally present third-country national overstays the period for voluntary return, or when no such period was set, an administrative or judicial order can be issued to effect a removal.[111] 

Return decisions are not automatic, since the Directive provides a number of exceptions to the rule.  For instance, Member States may not issue a return decision under bilateral agreements to accept the return of third-country nationals.[112]  In addition, EU Members may issue an autonomous residence permit or other authorization to a third-country national who stays illegally in their territory based on compassionate or humanitarian reasons, or for other reasons.[113]

Return decisions must be accompanied by an entry ban in two instances: (a) if no period for voluntary departure has been granted, or (b) if the obligation to return has not been complied with.  In other cases return decisions may be accompanied by an entry ban.[114]  In October 2015, the CJEU determined that Directive 2008/115/EC does not preclude a Member State from imposing criminal sanctions on illegal migrants who re-enter its territory, following a deportation order and a prohibition on their re-entry.[115]

B.  Readmission Agreements

Even though, under international law, third countries are required to readmit their nationals, the EU experiences difficulties in implementing its return policy.  There are a number of readmission agreements between the Member States and the EU that become operational when a return decision has been issued by national authorities.[116]  These agreements set forth the reciprocal obligations of the parties involved to take back their own nationals or third-country nationals who transit through their respective territories.[117]  So far, the EU has concluded seventeen readmission agreements with third countries, and others are being negotiated.[118]

Currently, the EU focuses on certain third countries that have a low level of admitting their nationals and with whom negotiations to conclude readmission agreements progress very slowly.  The EU has identified Algeria and Morocco in this category.  On the other hand, the readmission agreement with Pakistan has not been properly implemented, due to lack of cooperation by Pakistani authorities.[119]

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IX.  Resettlement

Resettlement is deemed an integral part of CEAS.  In June 2015, the Commission came up with a Recommendation to resettle 22,504 persons who are in third countries and need international protection.[120]  Implementation will begin after the High Commissioner for Refugees makes a referral and will extend for a period of two years.  The following EU Members have made pledges to resettle refugees: Belgium (123), Czech Republic (16), Ireland (163), Italy (96), the Netherlands (220), the United Kingdom (1,000), Liechtenstein (20), and Switzerland (387).[121]  The Commission intends to propose an EU-wide resettlement initiative by April 2016.[122]

As noted below, the Asylum, Migration and Integration Fund provides some financial support to Member States to assist them with resettlement of refugees.

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X.  Financial Instruments

A number of EU financial programs provide assistance to EU Members in dealing with asylum procedures and the reintegration or return of minors to their country of origin:

  • The European Fund for the Integration of Third-Country Nationals provides for the integration of third-country nationals who reside legally in the EU with the objective to achieve economic and social cohesion.[123]
  • The EU provides assistance to the EU Members to return illegal migrants to their country of origin through the European Return Fund (ERF).  During the period of 2008–2013, the ERF provided more than €600 million (about US$802 million).  The ERF covers specific expenditures connected with the return of unaccompanied minors, such as the cost of travel and food for returnees, information on return, family reunification in the country of origin, and other matters.  The ERF can also be used to implement the Returns Directive.[124]  
  • The Asylum, Migration and Integration Fund (AMIF), adopted on April 16, 2014, runs until 2020 and replaces three funds—the ERF, the European Fund for the Integration of third-country nationals, and the European Return Fund.  With a current budget of €3.137  billion, AMIF  provides support such as material aid, education, training, special assistance for vulnerable persons, health and psychological care, assistance with judicial matters, and assistance with national resettlement programs.  For the period between 2014 and 2020 the AMIF will spend a total of €3.137 billion on asylum, migration, and integration of third-country nationals in the EU.  The European Parliament intends to request that the Court of Auditors oversee the expenditure of funds by the Member States.
  • The assistance provided by the EU to littoral states, such as Greece, Italy and Malta, who receive the majority of illegal migrants due to their geographic proximity to the sea and based on the Dublin Regulation as the first countries of entry, has been criticized as inadequate relative to the amount spent by those countries.[125]

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XI.  Measures to Respond to Refugee Crisis

On September 9, 2015, the European Commission adopted a Communication that contains short- and long-term measures to address the current migrant crisis, to assist countries of entry through the creation of “hotspots,” and to address the root causes of irregular migration.  The concrete operational, budgetary, and legal proposals are annexed to the Commission’s Communication and were published on the same date.[126]  On February 10, 2016, the Commission followed up on the status of implementation with the adoption of a Communication on the State of Play of Implementation of the Priority Actions Under the European Agenda on Migration.[127]  The most significant measures contained in these Communications are highlighted below.

A.  Creation of “Hot Spot” Areas

The Commission recommended that Greece and Italy, because of the extraordinary pressure on their borders from migratory inflows, create “hotspot” areas, to be able to expand reception capacities for proper registration and fingerprinting of refugees.  The Commission cited as examples the areas of Sicily and Lampedusa in Italy and the islands of Lesbos and Kos in Greece.  These hotspots are where most migrants have been entering the EU during the current crisis.[128]  The Commission also recommended that the EU provide operational support to Italy and Greece through the EU Agencies FRONTEX, the European Asylum Support Office, and Europol, to ensure that migrants are registered and to prevent them from moving to other Member States without registration.  As the Commission pointed out in its 2016 Communication, only three hotspots are fully operational—one in Greece and two in Italy.[129]  The Greek government promised to render the other hotspot areas fully operational as soon as possible.[130]

B.  Temporary Relocation Plan

On September 22, 2015, the EU Justice and Home Affairs Council adopted a relocation plan in order to improve the situation of those EU Member States, such as Greece and Italy, that have been most affected.[131]  The plan to relocate 120,000 people was strongly opposed by the Czech Republic, Hungary, and Slovakia.  Poland initially was against it, but finally endorsed the decision.  In the initial proposal, the Commission had also included Hungary as a third country to benefit from the relocation proposal by relocating 54,000 people in need of international protection; however, Hungary refused to participate.[132]

The 120,000 persons who would be relocated are in addition to the 40,000 for whom relocation was already proposed in May 2015, for a total number of 160,000.  The decision provides that 66,000 persons will be relocated from Italy and Greece (15,600 from Italy and 50,400 from Greece).  The remaining 54,000 persons will be relocated from Italy and Greece in the same proportion one year after the entry into force of the decision.[133]  The relocation would be carried out pursuant to a mandatory distribution scheme based on the following proportional criteria: 40% on the size of the jurisdiction’s population, 40% on GDP, 10% on past acceptance of asylum applications, and 10% on the unemployment rate.[134]

Slovakia and Hungary filed court proceedings against the EU plan.  On December 2, 2015, Slovakia initiated legal action before the CJEU.[135]  The Prime Minister of Slovakia, Robert Fico, said he wanted the CJEU to declare the EU’s mandatory quota invalid, characterizing the plan as “nonsensical and technically impossible.”[136]  Hungary filed a similar lawsuit.[137]

The Commission noted that implementation of relocation moves very slowly.  As of February 8, 2016, only 218 people had been relocated from Greece, and 279 from Italy.  Five Member States have not yet made any places available for relocation.[138]

C.  Creation of a Permanent Relocation Mechanism for All EU Member States

The Commission has proposed a crisis relocation mechanism designed to apply in emergency situations when a Member State encounters a migration crisis.  The Commission will define when a particular situation meets the criteria for activation of the mechanism, based on the number of asylum applications any Member State has received during the past six months and on the number of irregular crossings of refugees into national territory during the same period.  The mechanism will take under consideration the needs of asylum seekers, their family situation, and their skills.[139]

D.  Adoption of a Common European List of Safe Countries of Origin

The Commission plans to introduce a regulation on a common list of safe countries of origin to enable a faster application process for requests for asylum that originate from such countries.[140]  The safe countries of origin concept means that asylum seekers from such countries will be subject to accelerated border procedures and their asylum requests will be denied.  The criteria for establishing a country as “safe” include ratification of major human rights treaties; conformity with the Copenhagen political criteria, such as being a democracy and in compliance with the rule of law; noninvolvement in armed conflict; and nonapplication of torture or degrading treatment as forms of punishment.  The Commission has recognized the countries of Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Kosovo, Montenegro, Serbia, and Turkey as safe countries.[141]

Currently, EU law does not contain an EU common list of safe countries of origin.  Many of the Member States have established their own list of countries considered to be safe.[142]

E.  Formulation of a Return Policy

The current EU system concerning the return of migrants who illegally stay in the EU to their countries of origin has been described by the European Commission as ineffective.  The Commission estimates that in 2014, less than 40% of the total number of return decisions issued by Member States was enforced.  In September 2015, the Commission presented an EU Action Plan on Return in an effort to address the underlying reasons for this, including ways to increase the acceptance of the standard travel document for the expulsion of third-country nationals.[143]  The Commission has found that the lack of valid travel documents issued by the country of destination of the returnee is the main barrier to successful return.  Currently, a substitute travel document (laisez passer) for return purposes is being used by the Member States; however, it is not being accepted by destination countries, due to its unsatisfactory security features and standards.[144]

On December 15, 2015, the Commission, in order to facilitate the return of those illegally present in the EU, proposed a new Regulation on a European travel document to effectuate the return of third-country nationals who stay illegally in the EU.[145]  The proposal aims to harmonize the format and technical specifications of a European travel document.[146]  The travel document will be in the language of the issuing Member State and translated into English and French.[147]

The Commission recommends that any readmission agreement concluded between the EU and third countries or bilateral agreements between the Member States and third countries should include in their clauses the recognition of the European travel document for return.  

The Commission has drafted a common Return Handbook,[148] which clarifies the procedures and standards that must be followed by national authorities responsible for return, such as the police, border guards, migration authorities, and staff of detention facilities and monitoring bodies.

F.  Agreement with Turkey

In November 2015, the European Union and Turkey agreed on an Action Plan to increase cooperation and coordinate of their actions on the refugee crisis, and to reduce the huge flow of immigrants who enter the EU through Turkey.  The Action Plan contains short- and long-term measures to tackle the refugee crisis.  Its twin objectives are to support the refugees and their host communities in Turkey and to boost cooperation to reduce migratory flows from Turkey.[149]  The European Commission announced €3 billion in assistance would be provided Turkey to deliver support to migrants in Turkey, and a legal framework, called the “Refugee Facility for Turkey,” would be established to coordinate and streamline the actions being financed.[150]

To date Turkey has provided a significant amount of humanitarian assistance, amounting to nearly €6.7 billion (about US$7.65 billion), to refugees coming from Syria and Iraq.  The number of asylum seekers who have reached Turkey is now about 2.58 million and Turkey has given them temporary status.[151]  The EU continues to provide immediate assistance in Turkey.  Since the beginning of the crisis, an overall amount of €365 million from the EU budget has been provided to directly support Syrian refugees and Turkish host communities.[152]

The EU has assumed a number of obligations, such as

  • providing an additional €1 billion (about US$1.14 billion) for the period 2015–2016 to help Turkey handle the challenges it faces, with certain activities being given high priority, such as humanitarian assistance; offers of legal, administrative, and psychological support; and measures related to the employment and education of refugees;
  • providing Turkey additional funds from the EU Regional Trust Fund for Syria and Iraq;
  • continuing assistance to Syrian refugees who are in Lebanon, Jordan, and Iraq, and to Syrians who are internally displaced, in order to eliminate the “push factors,” such as internal conflict, poverty, and civil war that force people to leave their countries; and
  • supporting resettlement schemes and programs in the EU and its Member States, with the objective of assisting refugees located in Turkey to enter the EU in a regulated and efficient way.[153]

For its part, Turkey has assumed a number of responsibilities, such as

  • implementing its laws on foreigners and those in need of international protection through the adoption of regulatory legislation;
  • ensuring that migrants are registered and given appropriate documents;
  • ensuring that asylum requests, once they are recognized, are completed within a short time; and
  • implementing policies to assist refugees to integrate into society and to promptly identify and provide care for vulnerable people, such as children or victims of trafficking.[154]

The two parties have also agreed to apply measures towards a visa liberalization dialogue, and the readmission agreement between Turkey and the EU.  The visa liberalization dialogue aims to work towards the elimination of the visa obligations currently imposed on Turkish citizens traveling to the Schengen area for short-term visits.[155]  The visa-free regime with Turkey presupposes, inter alia, the full implementation of the readmission agreement, which entered into force on October 1, 2014, and provides for the return of each party’s nationals who reside illegally in the EU or Turkey to their respective countries.

On February 3, 2016, the Member States agreed on how to finance the €3 billion EU refugee facility for Turkey, with €1 billion of this amount to be financed from the EU budget and the remaining €2 billion by contributions from the Member States according to their share in the EU gross national income (GNI).[156]  This agreement puts into practice the November 2015 commitment to provide €3 billion additional resources to assist Turkey in addressing the immediate humanitarian and development needs of refugees and their host communities, including food, health services, and education.[157]

In March 2016, because the number of illegal migrants reaching Greece from Turkey has remained very high, the European Council and the Prime Minister of Turkey held discussions regarding the following proposals:

  • The return of all new illegal migrants coming to the Greek islands from Turkey;
  • For every Syrian readmitted by Turkey from the Greek islands, resettling another Syrian from Turkey to the EU Member States;
  • Accelerating the implementation of the visa liberalization roadmap with all Member States with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016;
  • Facilitating earlier disbursement of the initially allocated 3 billion euros and decide on additional funding for the Refugee Facility for Syrians; and
  • Opening new chapters in the accession negotiations as soon as possible.[158]

G.  New European Border and Coast Guard

1.  Proposal for a Regulation to Establish a European Border and Coast Guard

Since there is no EU Coast Guard, EU Members are in charge of managing their external borders, which also constitute the EU’s borders based on the Schengen Borders Code.  The EU provides financial support to such Member States.  In 2004, FRONTEX was established to promote cooperation and coordination between the national border guard authorities through joint operations.

On December 15, 2015, the European Commission adopted a proposal for a Regulation to Establish a European Border and Coast Guard (EBCG), designed to ensure shared European management of the external borders of the European Union.  The proposal must be approved by the European Parliament and the Council of the European Union.  The proposal would establish a European Border and Coast Guard Agency (EBCGA), which would replace FRONTEX and have increased powers.  The EBCGA would share responsibility with national authorities responsible for border management; the EBCGA and the national border authorities together would constitute the EBCG.[159]  The Commission was prompted to take swift action due to the refugee crisis, which brought to the forefront the need to improve the security of the EU’s external borders.  The migrant crisis also demonstrated that FRONTEX, which had a limited mandate in supporting the Member States to secure their external borders, has inadequate staff and equipment and lacks the authority to conduct border management operations and search-and-rescue efforts.

The legal grounds for the proposal are article 77, paragraph 2(b) and (d), and article 79, paragraph 2(c), of the Treaty on the Functioning of the European Union.  Article 77 grants competence to the EU to adopt legislation on a “gradual introduction of an integrated management system for external borders,” and article 79 authorizes the EU to enact legislation concerning the repatriation of third-country nationals residing illegally within the EU.[160]

2.  Powers of the Proposed EBCG

Under the proposal, the EU and the Member States would share responsibility in securing the external borders of the EU.  The EBCG would unite the EBCGA and the Member States’ authorities responsible for border management, including coast guards.  National authorities would continue to exercise the day-to-day management of their respective external borders.

The EBCGA’s enhanced features would include the following elements:

  • The right to intervene.  Member States would be able to request joint operations, rapid border interventions, and deployment of the EBCG Teams to support national authorities when a Member State experiences an influx of migrants that endangers the Schengen area.  In such a case, especially when a Member State’s action is not sufficient to handle the crisis, the Commission would have the authority to adopt an implementing decision on whether a situation at an external border requires urgent action at the EU level.  Based on this decision, the EBCGA would be able to intervene and deploy EBCG Teams to undertake necessary measures.
  • A Monitoring and Risk Analysis Center.  The proposed Center would be authorized to carry out mandatory vulnerability assessments concerning the capacities of the Member States to face current or upcoming challenges at their external borders.
  • A European Return Office.  The proposed European Return Office would enable the deployment of European Return Intervention Teams composed of escorts, monitors, and return specialists to return illegally present third-country nationals.  These nationals would be given a uniform European travel document for return.  The Office would also establish and deploy EBCG Teams for joint operations and rapid border interventions, as needed.

3.  Funding

To enable the EBCGA to complete its tasks, its budget would be gradually increased from the €143 million originally planned for FRONTEX in 2015 to €238 million in 2016, €281 million in 2017, and €322 million (about US$350 million) by 2020.  The Agency would gradually increase its staff members from 402 in 2016 to 1,000 by 2020.[161]

4.  Member State Perspectives

The right to intervene is a point of contention between a number of EU Members and the Commission, especially those Members whose borders form the external borders of the EU, such as Cyprus, Greece, Hungary, Italy, and Poland.  These countries want to ensure that intervention by the proposed EBCGA would be possible only with the consent of the affected Member States.[162]  A Greek Minister stated that while Greece is supportive of a common European action and of changing FRONTEX’s mandate, it wants the EBCGA to take complete charge of migration and refugee flows.[163] As the proposal goes through the legislative process, discussions are likely to be contentious.

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Prepared by Theresa Papademetriou
Senior Foreign Law Specialist
March 2016


[1] Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-country National or a Stateless Person (recast), 2013 O.J. (L 180) 31, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013 R0604&from=EN, archived at https://perma.cc/96R5-L8SL.

[2] The Schengen area is composed of the twenty-eight EU Members, except Ireland and the United Kingdom. Bulgaria, Croatia, Romania, and Cyprus, although in the EU, are not yet full-fledged members of Schengen.  In addition, four non-EU countries, Iceland, Liechtenstein, Norway, and Switzerland, also participate in the Schengen area.  Schengen Area, European Commission, Migration and Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm (last updated Jan. 29, 2016), archived at https://perma.cc/LE59-EMYJ.  The United Kingdom, Ireland, and Denmark have opted out of almost all EU instruments on asylum and immigration.  Denmark participates in Schengen; however, it has the right to decide within six months on a proposal that constitutes a development of the Schengen acquis (Schengen existing legislation) whether it will implement the new measure into national law.  Protocol No. 22 on the Position of Denmark art. 4, attached to the Treaty on the Functioning of the European Union, Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2012 O.J. (C 326) 47, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=en, archived at https://perma.cc/EUD9-LUZC

[3] Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 Establishing a Community Code on the Rules Governing the Movement of Persons Across Borders (Schengen Borders Code), as amended, 2006 O.J. (L 105) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri= OJ:L:2006:105:0001: 0032:EN:PDF, archived at https://perma.cc/LX5K-LJTD.

[4] Recasting is a single new act that consolidates the previous legislative act and all the amendments made to it.  The new act passes through the full legislative process and repeals all the acts being recast.  Recasting, European Commission, Legal Service, http://ec.europa.eu/dgs/legal_service/recasting_en.htm (last visited Feb. 29, 2016), archived at https://perma.cc/E5EH-XK3K.

[5] A 2014 report on immigration and asylum prepared by the European Migration Network highlights the changes made by the EU Member States to comply with the recast asylum legislation.  European Migration Network, EMN Annual Report on Immigration and Asylum 2014: A Synthesis of Annual Policy Reports 2014 Submitted by EU Member States and Norway (June 2015), http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/docs/annual-policy/2014/00.emn_annual_report_on_ immigration_and_asylum_synthesis_report.pdf, archived at https://perma.cc/6HZD-DHSV.

[6] Press Release, European Commission, Memo/11/415, Frequently Asked Questions: The European Asylum Support Office (EASO) (June 17, 2011), http://europa.eu/rapid/press-release_MEMO-11-415_en.htm?locale=fr, archived at https://perma.cc/HEG5-WMHX.

[7] The Asylum, Migration and Integration Fund (AMIF) was established for the period 2014–2020, with a total of €3.137 billion (about US$3.414 billion) for the seven years to ensure full implementation of the EU asylum system by the Member States, to assist them in their efforts to integrate third-country nationals legally staying in the EU and return illegal migrants to their countries of origin.  Regulation (EU) No. 516/2014 of the European Parliament and of the Council of 16 April 2014 Establishing the Asylum, Migration and Integration Fund, Amending Council Decision 2008/381/EC and Repealing Decisions No. 573/2007/EC and No. 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC, 2014 (L 150) 168, http://ec.europa.eu/dgs/home-affairs/financing/ fundings/pdf/overview/regulation_eu_no_5162014_of_the_european_parliament_and_of_the_council_en.pdf, archived at https://perma.cc/HS6G-DJ6J

[] Council Regulation (EC) No. 2007/2004 of 26 October 2004 Establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, 2004 O.J. (L 349) 1, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004R2007&from=EN, archived at https://perma.cc/LD5S-LX8Z, as amended by Regulation (EU) No. 1168/2011 of the European Parliament and of the Council of 25 October 2011 Amending Council Regulation (EC) No. 2007/2004, 2011 O.J. (L 304) 1, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011R1168&from=EN, archived at https://perma.cc/3LYN-QXCD.

[9] Commission Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard and Repealing Regulation (EC) No. 2007/2004, Regulation (EC) No. 863/2007 and Council Decision 2005/267/EC, COM (2015) 671 final (Dec. 15, 2015), http://ec.europa.eu/dgs/ home-affairs/what-we-do/policies/securing-eu-borders/legal-documents/docs/regulation_on_the_european_ border_and_coast_ guard_en.pdf, archived at https://perma.cc/KW9Z-LF2W.

[10] See Part XI(G), below. 

[11] Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, 150, https://treaties.un.org/doc/ Publication/UNTS/Volume%20189/v189.pdf, archived at https://perma.cc/A6MN-JB7K; Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, https://treaties.un.org/doc/Publication/UNTS/Volume%20606/ v606.pdf, archived at https://perma.cc/594H-T6U6.

[12] The nonrefoulement principle is incorporated into EU primary law in article 78, which provides for a Common European Asylum System of the Treaty on the Functioning of the European Union.  TFEU, supra note 2, art. 78.

[13] Charter of Fundamental Rights of the European Union, 2012 O.J. (C 326) 391, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN, archived at https://perma.cc/SU9H-GRDL.

[14] Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection (recast) art. 3, para. 1, 2013 O.J. (L 180) 60, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0032&rid=1, archived at https://perma.cc/3HBT-LCUG.

[15] Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted art. 3, 2011 O.J. ( L 337) 9, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0095, archived at https://perma.cc/EX3D-62JJSee also Directive 2013/32/EU, supra note 14, art. 5.

[16] Directive 2013/32/EU, supra note 14, art. 5.

[17] Sea and rescue operations involve individuals in boats seeking to enter the territorial waters of the EU Members.  The maritime national authorities often engage in rescue operations for vessels in distress or push them back in other countries.  In addition to international law of the sea agreements applicable in such cases, the EU Members are also bound by the nonrefoulement principle in rescue operations.  The European Court of Human Rights (ECHR) has held that individuals in boats may fall within the jurisdiction of a Member State of the Council of Europe, when that Member State exercises control over them on the high seas.  A case on point is Hirsi Jamaa and Others v. Italy, in which the Italian Coast Guard intercepted a boat with two hundred people on the high seas, but within Malta’s search and rescue area.  Based on a bilateral agreement between Italy and Libya the migrants were returned to Libya without having an opportunity to apply for asylum.  The Court found against Italy for returning them to Libya and exposing them to ill and degrading treatment in Libya.  In addition Libya did not provide adequate guarantees that these people would not be sent back to their countries of origin in Somalia and Eritrea.  The ECHR reaffirmed that the fact that the applicants did not ask for asylum or mention the dangers they faced in Libya due to the lack of an asylum process did not free Italy from its obligations under article 3 of the European Convention on Human Rights and Fundamental Freedoms.  European Union Agency for Fundamental Rights, Handbook on European Law Relating to Asylum, Borders and Immigration 38 (2014), http://fra.europa.eu/sites/default/files/ handbook-law-asylum-migration-borders-2nded_en.pdf, archived at https://perma.cc/R3ZP-U473See also European Union Agency for Fundamental Rights, Fundamental Rights at Europe’s Southern Sea Borders § 2.2 (2013), http://fra.europa.eu/sites/default/ files/fundamental-rights-europes-southern-sea-borders-jul-13_en.pdf, archived at https://perma.cc/4Q5A-JEPK.

[18]Directive 2013/32/EU, supra note 14, art. 6, para. 1.

[19] Id. art. 6, para. 5.

[20] Id. art. 6, para. 2.

[21] Id. art. 2(i); Directive 2011/95/EU, supra note 15, art. 2(a).

[22] Directive 2013/32/EU, supra note 14, art. 4, para. 1.

[23] Id. art. 4, para. 3.

[24] Id. art. 31, para. 3.

[25] Id. art. 4, para. 2.

[26] Regulation (EU) No. 603/2013 of the European Parliament and of the Council of 26 June 2013 on the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (EU) No. 604/2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-country National or a Stateless Person and on Requests for the Comparison with Eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes, and Amending Regulation (EU) No. 1077/2011 Establishing a European Agency for the Operational Management of Large-scale IT Systems in the Area of Freedom, Security and Justice (EURODAC Regulation), 2013 O.J. (L 180) 1, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013R0603&from=EN, archived at https://perma.cc/UJK5-VKF9.

[27] Id. art. 9, para. 1.

[28] Id. art. 14, para. 1.

[29] Id. art. 11.

[30] Id. art. 17, para. 1.

[31] Id. arts. 17, 19.

[32] Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-country National or a Stateless Person (recast), 2013 O.J. (L 180) 31, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013 R0604&from=EN, archived at https://perma.cc/96R5-L8SL.

[33] Commission Implementing Regulation (EU) No. 118/2014 of 30 January 2014 Amending Regulation (EC) No. 1560/2003 Laying Down Detailed Rules for the Application of Council Regulation (EC) No. 343/2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-country National, 2014 O.J. (L 39) 1, http://eur-lex.europa. eu/LexUriServ/LexUriServ.do?uri=OJ:L:2014:039:0001:0043:EN:PDF, archived at https://perma.cc/J7ZP-BW3P.

[34] Regulation (EU) No. 604/2013, supra note 32, arts. 7, 8, 12 & 13.

[35] Id.

[36] Id. art. 3, paras. 1 & 2.

[37] Id. art. 17.

[38] Id. art. 33.

[39] Id.

[40] Proposal for a Regulation of the European Parliament and of the Council Amending Regulation (EU) No. 604/2013 as regards Determining the Member State Responsible for Examining the Application for International Protection of Unaccompanied Minors with No Family Member, Sibling or Relative Legally Present in a Member State, COM (2014) 382 final, http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-382-EN-F1-1.Pdf, archived at https://perma.cc/PK35-M5HK.

[41] Press Release No. 71/13, Court of Justice of the European Union, Case C-648/11 MA, BT, DA v. Secretary of State for the Home Department (June 6, 2013), http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-06/cp130071en.pdf, archived at https://perma.cc/675M-V4LA.

[42] Directive 2013/32/EU, supra note 14, art. 14, para. 1.

[43] Id.

[44] Id. art. 15, paras. 1 & 2.

[45] Id. art. 16.

[46] Id. art. 18, para. 1.

[47] Regulation (EU) No. 604/2013, supra note 32, art. 2, paras. 1 & 2. 

[48] Directive 2013/32/EU, supra note 14, art. 3, para. 1.

[49] Id. art. 9, para. 1.

[50] Id. art. 7, para. 1.

[51] Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection, 2013 O.J. (L 180) 96, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0033, archived at https://perma.cc/H6EY-BE5B.

[52] Id. art. 19.

[53] Id. art. 17, paras. 1–3.

[54] Id. art. 2(g).

[55] Id. art. 17, para. 4.

[56] Id. art. 18, para. 1. 

[57] Id. art. 18, para. 3.

[58] Id. art. 14.

[59] Id. art. 14, paras. 1 & 2.

[60] Id. art. 15.

[61] Id. art. 16.

[62] Id. art. 8.

[63] Id. art. 9, paras. 1 & 2.

[64] Id. art. 9, para. 3.

[65] Id. art. 9, para. 5.

[66] Id. art. 9, para. 6.

[67] Id. art. 9, para. 7(a) & (b).

[68] Directive 2011/95/EU, supra note 15 (applicable as of Dec. 21, 2013).

[69] Id. art. 4, paras. 1 & 3(b).

[70] Id. art. 5, paras. 3–5.

[71] Id. art. 6.

[72] Id. arts. 17 & 21.

[73] Id. art. 9, para. 3.

[74] Id. art. 9(a) & (c).

[75] Id. art. 15.

[76] Id. art. 4, para. 2. 

[77] Id. art. 23.

[78] Id. art. 24, para. 1.

[79] Id. art. 24, para. 2.

[80] Id. art. 25, para. 1.

[81] Id. art. 25, para. 2.

[82] Id. art. 26. para. 1.

[83] Id. art. 26, para. 4.

[84] Id. art. 27, para. 1.

[85] Id. art. 27, para. 2.

[86] Id. art. 29, para. 1.

[87] Id. art. 29, para. 2.

[88] Id. art. 30.

[89] Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 Amending Council Directive 2003/109/EC to Extend Its Scope to Beneficiaries of International Protection Text with EEA Relevance, 2011 O.J. (L 132) 1, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32011L0051, archived at https://perma.cc/FV7F-AMJR.

[90] Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between Member States in Receiving such Persons and Bearing the Consequences Thereof, 2001 O.J. (L 212) 12, http://eur-lex. europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001L0055&from=en, archived at https://perma.cc/8M28-9BNH.

[91] Id. art. 2(c).

[92] Id. art. 2(a).

[93] Id. art. 4(1).

[94] Id. art. 13(4).

[95] Id. art. 14(1).

[96] Id. art. 17(1).

[97] Id. art. 20.

[98] Id. art. 21(1).

[99] Handbook on European Law Relating to Asylum, Borders and Immigration, supra note 17, at 38 (discussing Hirsi Jamaa and Others v. Italy, App. No. 27765/09 (ECHR Feb. 23, 2012), http://hudoc.echr.coe.int/ sites/eng/pages/search.aspx?i=001-109231, archived at https://perma.cc/5FXC-C6T2).  See also case discussion, supra note 17.

[100] Case of Mubilanzila Mayeka & Kaniki Mitunga v. Belgium, App. No. 13178/03 (ECHR Oct. 12, 2006), http://hudoc.echr.coe.int/sites/eng/pages/ search.aspx?i=001-77447, archived at https://perma.cc/7XAE-DTDL.

[101] Grand Chamber Decision, Case of M.S.S. v. Belgium and Greece, App. No. 30696/09 (ECHR Jan. 21, 2011), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx? i=001-103050, archived at https://perma.cc/P9GT-HTBU.

[102] Case of Čonka v. Belgium, App. No. 51564/99 (ECHR final judgment, May 5, 2002), http://hudoc.echr.coe. int/sites/eng/pages/search.aspx?i=001-60026, archived at https://perma.cc/Q59T-F3TU.

[103] Protocol No. 4 to the European Convention on Human Rights, as amended by Protocols Nos. 11 and 14, supplemented by Protocols Nos. 1, 4, 6, 7, 12, http://www.echr.coe.int/Documents/Convention_ENG.pdf, archived at https://perma.cc/XGA9-FACR.

[104]Case of Čonka v. Belgium para. 31.

[105] Id. para. 59.

[106] Id. para. 62.

[107] Id. para. 63.

[108] Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, 2008 O.J. (L 348) 98, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008L0115, archived at https://perma.cc/UL6R-AC9R.

[109] Id. art. 6, para. 1.  

[110] Id. art. 7, para. 1.

[111] Id. art. 8.

[112] Id. art. 6, para. 3.

[113] Id. art. 6, para. 4.

[114] Id. art. 11, para. 1.

[116] Return and Readmission, Common Rules for Managing the Return of Irregular Migrants, European Commission, Migration & Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/irregular-migration-return-policy/return-readmission/index_en.htm (last updated May 6, 2015), archived at http://perma.cc/B28F-F6VL.

[117] Id.

[118] Id.

[119] Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions Under the European Agenda on Migration, COM (2016) 85 final (Feb. 10, 2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/managing_the_refugee_crisis_state_of_play_20160210_en.pdf, archived at https://perma.cc/S577-U2HM.

[120] Commission Recommendation of 8.6.2015 on a European Resettlement Scheme, COM (2015) 3560 final (June 8, 2015), http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/asylum/general/docs/recommendation_ on_a_european_resettlement_scheme_en.pdf, archived at https://perma.cc/Y86W-V574.

[121] Id.

[122] Id.

[123] Council Decision 2007/435/EC of 25 June 2007 Establishing the European Fund for the Integration of Third-country Nationals for the Period 2007 to 2013 as Part of the General Program ‘Solidarity and Management of Migration Flows,’ 2007 O.J. (L 168) 18, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:3200 7D0435&rid=2, archived at https://perma.cc/3WKS-MXJH.

[124] Return Fund, European Commission, Migration & Home Affairs, http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-borders/return-fund/index_en.htm (last updated June 20, 2014), archived at https://perma.cc/MDU8-6SUM.

[125] See, e.g., Europe’s Huddled Masses: Rich Countries Must Take on More of the Migration Burden, The Economist (Aug. 16, 2014), http://www.economist.com/news/leaders/21612152-rich-countries-must-take-more-migration-burden-europes-huddled-masses (registration required).

[126] Communication to the European Parliament, the European Council and the Council, Managing the Refugee Crisis: Immediate Operational, Budgetary and Legal Measures Under the European Agenda on Migration, COM (2015) 490 final (Sept. 9, 2015), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/communication_on_managing_the_refugee_crisis_en.pdf, archived at https://perma.cc/2WD4-LX7Q.

[127] Communication on the State of Play, COM (2016) 85 final, supra note 119, at 8. 

[129] Communication on the State of Play, COM (2016) 85 final, supra note 119, at 8.

[130] Id. at 9.

[131] Council Decision (EU) 2015/1601 of 22 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece, 2015 O.J. (L 248) 80, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015D1601&from=EN, archived at https://perma.cc/Z3HA-YH6M.

[133] Id.

[134] For a chart indicating the commitments of EU Members to accept refugees from Greece and Italy, see the Annex to the Communication on the State of Play, COM (2016) 85 final, supra note 119.

[136] Hans von der Burchard & Jacopo Barigazzi, Slovakia Files Lawsuit Against EU’s Refugee Relocation, POLITICO (Dec. 2, 2015), http://www.politico.eu/article/slovakia-files-lawsuit-against-eus-refugee-relocation-september, archived at https://perma.cc/4VDA-HBPV.

[138] Communication on the State of Play, COM (2016) 85 final, supra note 119, at 11.

[139] Proposal for a Regulation of the European Parliament and of the Council, Establishing a Crisis Relocation Mechanism and Amending Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third Country National or a Stateless Person, COM (2015) 450 final (Sept. 9, 2015), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/proposal_for_regulation_ of_ep_and_council_establishing_a_crisis_relocation_mechanism_en.pdf, archived at https://perma.cc/2EUK-T7PV.

[140] Regulation of the European Parliament and of the Council, Establishing an EU Common List of Safe Countries of Origin for the Purposes of Directive 2013/32/EU of the European Parliament and of the Council on Common Procedures for Granting and Withdrawing International Protection, and Amending Directive 2013/32/EU, COM (2015) 452 final, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2015:0452:FIN, archived at https://perma.cc/M6X6-6NG3.

[142] Id.

[143] Communication from the European Commission to the European Parliament and to the Council, EU Action Plan on Return, COM (2015) 453 final (Sept. 9, 2015), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/ european-agenda-migration/proposal-implementation-package/docs/communication_from_the_ec_to_ep_and_ council_-_eu_action_plan_on_return_en.pdf, archived at https://perma.cc/T2PL-ZKAD.

[144] Id. at 2.

[145] Commission Proposal for a Regulation of the European Parliament and of the Council on a European Travel Document for the Return of Illegally Staying Third-country Nationals, COM (2015) 668 final (Dec. 15, 2015), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/securing-eu-borders/legal-documents/docs/ european_travel_document_for_the_return_of_illegally_staying_third-country_nationals_en.pdf, archived at https://perma.cc/7X47-96V7.

[146] Id. art. 3.

[147] Id.

[150] Press Release, European Commission, EU-Turkey Cooperation: A €3 Billion Refugee Facility for Turkey (Nov. 24, 2015), http://europa.eu/rapid/press-release_IP-15-6162_en.htm, archived at https://perma.cc/G877-3EPB.

[151] For statistical data of asylum seekers reaching EU from Turkey, see Annex 1 to the Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration EU-Turkey Joint Action Plan – Implementation Report, EU-Turkey Joint Action Plan: Implementation Report, Period: 17 December 2015 to 31 January 2016, COM (2016) 85 final (Feb. 10, 2016), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/ proposal-implementation-package/docs/managing_the_refugee_crisis_state_of_play_20160210_annex_01_en.pdf, archived at https://perma.cc/6V3N-PWRS.

[152] Id. at 5.

[153] Id. at 8.

[154] Id. at 6.

[155] Press Release, Delegation of the European Commission to Turkey, Cecilia Malmström Signs the Readmission Agreement and Launches the Visa Liberalisation Dialogue with Turkey, http://www.avrupa.info.tr/resource-centre/news-archive/news-single-view/article/cecilia-malmstroem-signs-the-readmission-agreement-and-launches-the-visa-liberalisation-dialogue-wit.html (last visited Feb. 29, 2016), archived at https://perma.cc/WX39-6VQ7.

[156] Press Release, Council of the EU, Refugee Facility for Turkey: Member States Agree on Details of Financing (Feb. 3, 2016), http://www.consilium.europa.eu/en/press/press-releases/2016/02/03-refugee-facility-for-turkey, archived at https://perma.cc/V47R-D97X.

[157] Id.

[158] Statement of the EU Heads of State or Government, 07/03/2016, European Council (Mar. 7, 2016), http://www.consilium.europa.eu/en/meetings/international-summit/2016/03/07/, archived at https://perma.cc/VSP2-S39R.

[159] Commission Proposal for a Regulation of the European Parliament and of the Council on the European Border and Coast Guard and Repealing Regulation (EC) No. 2007/2004, Regulation (EC) No. 863/2007 and Council Decision 2005/267/EC, COM (2015) 671 final (Dec. 15, 2015), http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/securing-eu-borders/legal-documents/docs/ regulation_on_the_european_border_and_coast_ guard_en.pdf, archived at https://perma.cc/YFE4-JWM9.

[160] TFEU, supra note 2.

[161] Press Release, European Commission, European Agenda on Migration: Securing Europe’s External Borders (Dec. 15, 2015), http://europa.eu/rapid/press-release_MEMO-15-6332_en.htm, archived at https://perma.cc/GA2J-QL4Z.

[162] Sarantis Michalopoulos, Greek Minister: New EU Border Force Should Assume Full Control of Refugees, EurActiv.com (Dec. 18, 2015), http://www.euractiv.com/section/justice-home-affairs/interview/greek-minister-new-eu-border-force-should-assume-full-control-of-refugees/, archived at https://perma.cc/P8EC-36DX.

[163] Id.