Tag: asylum

The Italy–Albania Protocol on migration management: between new schemes of asylum externalisation and risks of systematic violations

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Valentina Faggiani (Associate Professor of Constitutional Law at University of Granada)
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The trend towards the externalisation of migratory policy has been reaffirmed in the recent Italy–Albania Protocol, whose objective is to institute a new model. This Protocol aims at intervening to overcome a real problem: the systemic crisis of asylum that Italy is suffering. The idea that inspires it and the scheme are clear and have some original profiles: if the situation in the reception centres in Italy is unsustainable, why not transfer migrants in irregular situation and asylum seekers to reception centres instituted outside the Italian territory, but managed, controlled and financed by Italy? In this country, particularly in frontline areas such as Lampedusa, on the one hand, foreigners suffer serious and systematic violations of fundamental rights; on the other hand, there has been a strong feeling of uneaseamong the local population, who live in an unsafe environment characterised by the proliferation of criminality and situation of violence.

The idea has the characteristic of extrema ratio: the purpose of building a new model of migratory flux management. Regarding the innovation profiles, it is interesting to observe that in this case Italy does is not delegating, as it did in the Memorandum of Understanding with Libia, the liability for controlling the fluxes and for pushing back the migrants to their country of origin, but it assumes the management of all phases, and it extends the jurisdiction and the cost that it implies. It is a much more extensive and complex project. Indeed, the political and economic context of Albania apparently offers more guarantees than other countries.

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The New EU Pact on Migration and Asylum: from political (dis)agreements to a last chance

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Inês Neves (Lecturer at the Faculty of Law, University of Porto | Researcher at CIJ | Member of the Jean Monnet Module team DigEUCit ) and Rita Ferreira Gomes (Associate at Morais Leitão)
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Setting the scene

From 2020 onwards, migration and asylum have been central to both national and European Union (‘EU’) political agendas. 2023, however, was key and ended with major challenges for 2024.

By the end of 2023, the European Parliament and the Council had reached a political agreement on several key proposals included in the (New) Pact on Migration and Asylum[1] (‘New Pact’), in particular, Proposals for Regulations: i) introducing a screening of third country nationals at the external borders[2] (‘Screening Regulation’); ii) on the establishment of ‘Eurodac’[3] (‘Eurodac Regulation’); iii) on a common procedure for international protection in the Union[4] (‘Asylum Procedures Regulation’); iv) on asylum and migration management[5] (‘Asylum Migration Management Regulation’), and v) addressing situations of crisis and force majeure in the field of migration and asylum[6] (‘Crisis and Force majeure Regulation’).

Some question whether “the legislative proposals [will] have the same fate as the reform package that had been presented by the Commission in 2016”[7]. Others see the New Pact as a final opportunity to get it right, or at least deserving of “a chance to succeed”[8]. In her 2023 State of the Union speech, President von der Leyen referred to a “historic opportunity to get it over the line”, and compassionately, urged us all to get it done and prove that “Europe can manage migration effectively and with compassion”[9].

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Migration crisis in the European Union: a factual reflection

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GREECE-TURKEY-EUROPE-MIGRANTS

 by Teresa Alves, member of CEDU
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The migration crisis in European Union brings the necessity to reflect its own existence, implying the identification of its origin, i.e., the facts that may justify its emergence. This asks for a spatial and temporal localization and for a contextualization. The challenge in this article is to make a factual reflection to understand the essence of the crisis and consequently its implications in the human rights field as the EU and its Member States are bound to them.

The migration crisis remains and, from my point of view, is, on one hand, reflection of a common European policy in the asylum field, whose configuration always showed controversial aspects. It wasn’t ready, ab initio, to deal with a massive influx of applicants for international protection. On other hand, we are also talking about a crisis of solidarity because the Member States showed that they are not able to find a common approach, to respect the measures adopted by the institutions of the Union and to cooperate with the Member States more desired by the migrants and applicants of international protection. Article 67(2), of Treaty on the Functioning of the European Union (TFEU), binds the “common policy on asylum, immigration and external border control” to the “solidarity between Member States” and to be “fair towards third-country nationals” (stateless persons shall be treated as third-country nationals). Fulfilling this precept, Article 80 determines that this policy is governed by the solidarity principle and by the share of the responsibilities between Member States, including in the financial plan, and if necessary, the acts adopted by the EU in executing it policy “shall contain appropriate measures to give effect to this principle”.

The way that Member States and EU are managing the actual migratory context show their lack of preparation. However, the possibility of tens of thousands of refugees and immigrants to reach the coast of Europe was expected, “the official reports of Frontex and the United Nations agencies told it openly”[i].

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Humanitarian Visas and the X and X v. Belgium judgment (Case C-638/16 PPU)

On By officialblogunioIn Case notesLeave a comment

 

by Teresa Alves, masters' student at University of Minho
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The judgment in Case C-638/16 PPU, delivered by the Court of Justice of the European Union, on 7th March 2017[i] could represent a milestone in the history of the European Union, opening the door to an important legal path of access to international protection in the Member States and improving the Europe’s asylum policy. Particularly in a context of migration crisis that the European Union is trying to solve, adopting different measures. These measures include strengthening border controls, preventing human trafficking and trying to dismantle illegal forms of access to Member States’ borders through organized networks. Another measure is the EU-Turkey Statement that, despite some legal doubts, intends, not only, but also, to create a legal path of access to international protection in the Member States.

The story dates back to October 2016, when a Syrian family (mother, father – married to one another – and their three young children, from Aleppo) applied for a humanitarian visa at the embassy of Belgium in Lebanon. They hoped, with this, to legally enter in Belgium and to request asylum. They claimed that one of them had been abducted by an armed group, beaten and tortured, before being released on payment of a ransom. They emphasized, specially, the deterioration of the security situation in Syria, in general, and in Aleppo, in particular, as well as the fact that, as Orthodox Christians, they were at risk of persecution because of their religious beliefs. This family added that they could not register as refugees in neighboring countries, particularly in view of the fact that the Lebanese-Syrian border had been closed in the meantime.

The competent Belgian authorities promptly rejected the request, explaining that (i) the applicants planned to remain in Belgium for more than 90 days, and under the Visas Code, in accordance with Article 1, the issue of transit visas or visas within the territory of the Member States shall not exceed 90 days in a period of 180 days; (iii) in addition, Article 3 of the ECHR, according to which «no one shall be subjected to torture or inhuman or degrading treatment or punishment», shall not require States Parties to admit «persons living a catastrophic situation» and, lastly, they considered that (iii) Belgian diplomatic posts are not part of the authorities to which a foreigner may apply for asylum. For the reason that, authorizing an entry visa to the applicants in the main proceedings, for the purpose of submitting an application for asylum in Belgium, would be equivalent to allowing them to request this application for asylum in the diplomatic post.

The family appealed against the decision before the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium), which decided to refer to the Court of Justice questions relating to the granting of humanitarian visas. That is, «must Article 25(1)(a) of the Visa Code be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter or another international obligation by which it is bound is established?», «Does the existence of links between the applicant and the Member State to which the visa application was made (for example, family connections) affect the answer to that question?».
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