The Emergence of the Entry Human Rights Principle. Looking Beyond the X.X. Case

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Thursday, April 6, 2017

1. Introduction 

On 7 March, the CJEU in the X.X. case decided that Member States were not obliged under Article 25(1)(a) of Regulation (EC) No 810/2009 (CCV) to issue a short-term visa for humanitarian purposes as the applicants planned to stay for more than 90 days. Since such a request does not appear to fall within the scope of EU law as it currently stands but only within national law, the situation in question is not governed by EU law and the provisions of the Charter do not apply.

The main reason for this technical decision was that the CCV’s scope was to establish the procedures and conditions for issuing visas not exceeding 90 days while long-term visas were excluded. Since the applicants were seeking entry to apply for asylum and intended to overstay the 90-day limit (Art. 32(1)(b)), this was a legitimate ground for refusal (see also Koushkaki). Advocate General (‘AG’) Mengozzi’s non-binding opinion instead suggested that the applicants’ intentions cannot alter the nature of their claim under Article 25. The AG went on to opine that Article 25(1) permits the Member States to exclude for humanitarian reasons all the grounds for refusal listed in Article 32(1)(a) and (b). As such, humanitarian visas are foreseen by the CCV but it is left to the discretion of individual states to consider them on the merits (i.e. on admissibility). Article 25 provides that Member States "shall" issue a visa with limited territorial validity, with the State discretion being limited only by international obligations.

Regardless of whether the humanitarian visa falls within EU or national law, it is not an absolute obligation and the debate here will focus on the State’s margin of appreciation as both the CCV and national law as regards admissibility must simply abide by international obligations without further guidelines. This post will focus on the AG’s opinion as it suggested some useful guidelines in this regard (listed here as G1-G6). It will provide a brief insight into how the "duty to admit" derives by analogy from the EU jurisprudence on non-return and the positive obligation under the non-refoulement principle. It focuses on the proportionality test regarding undeniable humanitarian reasons as a ground for admission. It then demonstrates how the "duty to admit" derives from EU values, wider international obligations and the effective enjoyment of fundamental rights. It concludes that, despite the final decision, the question of admission based on undeniable humanitarian grounds is beyond the visa regime and EU law. Instead this derives from the effective enjoyment of the rights under CFR, the ECHR and the 1951 Refugee Convention which leads inevitably to the emergence of the duty to admit, the so-called “entry human rights principle”.

2. Connecting the Dots: From The "Exit" to the "Entry" Human Rights Principle

The jurisprudence regarding the "exit human rights principle” (non-return) pertains to the landmark cases M.S.S, N.S/ME and Tarakhel in which it was established that it is forbidden to return applicants to a country where deficiencies in the asylum system can lead to a violation of Article 3 ECHR, and indeed Article 33 Geneva Convention (GC), as the protection under Article 3 is complementary to Article 33 GC (M.S.S.[55-56]).

(G1) In this regard, the X.X. opinion confirms that in certain circumstances the discretion of Member States is limited. X.X. refers by analogy to NS/ME but the ECtHR case law also confirmed that Member States have limited power to exercise external migration control measures when they are incompatible with fundamental rights (Hirsi). As such, similarly to the non-return case, the refusal to issue a visa or admit in general should not expose the applicant to a real risk of violation of the rights enshrined in the Charter or the ECHR. As in all return cases, State discretion can be limited. In the case of admission this may result in an obligation to become responsible for processing an asylum claim under the CCV or the national visa regime. A number of Member States have issued or are still issuing humanitarian visas on grounds related to the violation of Article 3 (report [44-48]). Italy issues visas to relocate vulnerable people under Article 25 CCV from Lebanon and Ethiopia. Following the Italian initiative, France has also opened its first humanitarian corridors to Middle Eastern refugees

The State discretion can be limited by the fact that Article 3 of the ECHR or Article 4 of the Charter (the same is valid for Art. 33 GC) can impose both negative and positive obligations because the boundary between the two is faint. It can prohibit return and impose a duty to ensure that a person is not subjected to a violation, but it can also impose a duty to take reasonable measures to prevent (for the preventive purpose of Art. 3, see Paposhvili v Belgium [186]) the negative consequences of an act of omission which might put an applicant at risk, even if not an imminent one (see Vilvarajah & Ors v United Kingdom). In the joined case Aranyosi and Căldăraru [90], it was held that Article 3 of the ECHR can impose a positive obligation. In M.S.S [252-253], the ECtHR recalled that Article 3 might even be engaged where an individual finds himself faced with a situation incompatible with human dignity. The same was confirmed in Cimade [56].

The X.X. opinion made appropriate reference to the proportionality test relevant to Article 3 ECHR by drawing an analogy with the relevant line of jurisprudence on non-returns. In the Dublin context, where there is a real risk of violation of Article 3 ECHR, the EU presumption of equivalent protection (EM Eritrea) can be rebutted. Because such presumption underpins the Dublin responsibility allocation, it can create a positive obligation to admit (ZAT). (G2) In X.X., rather than the EU "solid" presumption of equivalent protection, the material circumstances prevailing in the country of presence pertinent to the risk of violation of Article 3 (or Art. 33 GC (Weis [341], Legomsky [673])) are relevant. These circumstances, due to their potential severe impact on the individuals, have to be weighed in the proportionality test relevant to Article 3 to consider whether or not they may impose a positive obligation.

As such, the "entry" human rights principle derives from the application by analogy of the jurisprudence relevant to non-return cases. Both the exit and the entry human rights principles suggest that the maintenance of migration control, whether internal or extraterritorial to the EU, can be outweighed by the rights under the ECHR/Charter/Convention. States have a genuine obligation to ensure compliance with those rights and individuals must be guaranteed a practical and effective enjoyment of their rights (See Gäfgen [213] and Murray [104])

3. The Undeniable Humanitarian Grounds

(G3) The X.X. opinion clarified that to correctly assess the margin of appreciation under a visa regime, it is essential to weigh the competing interests between protection of fundamental rights and migration control and to apply the proportionality test to the facts relevant to Article 3. As a consequence, the decision has to be based on information on the country of presence provided by objective sources. However, a number of other factors ought to be taken into account in this balancing exercise. (G4) Namely, the best interest of the child (BIC) and the risk of trafficking, which can serve to reinforce the risk of a violation of Article 3 on undeniable humanitarian grounds.

In the X.X. opinion, it was stressed that when it comes to the relevance of Article 3, the risk of violation of the rights of particularly vulnerable persons (such as children) must be a primary consideration. The ECtHR clarified that the BIC must always be a primary consideration (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium and MA, BT, DA) and, in line with AT and another, the BIC must be taken into account even in an extraterritorial application. A similar approach has been followed recently in the ZAT case where the refusal of the UK Home Office to accept the applicants infringed the general public law duties of reasonableness, proportionality and was incompatible with the domestic and international "best interests" duty as the applicants risked being trafficked or abused.

It was from the ZAT case that the soi-disant “entry human rights principle” emerged as a term of art. This is an approach that considers international protection in a way that limits the State’s margin of appreciation in regulating access to protection proportionally to the procedural and/or material conditions prevailing in a country or the risk the applicant must undergo to access effective and timely protection.

It therefore seems clear that both EU internal cases (ZAT) and extraterritorial cases (X.X, AT and another) must strive to achieve a balancing exercise of the interests involved. This must involve a proportionality test in order not to violate the effective exercise of the right to seek international protection, which would otherwise expose persons directly to treatment prohibited by Article 4 CFR or Article 3 ECHR, and which the Member State in question knew or ought to have known when adopting the decisions to refuse admission/visa (see also ECRE par. 50). If refusing to recognise a duty to admit would lead to a particularly strong and well-founded probability, either prospective or speculative (see Trabelsi v Belgium and Saadi v Italy), that the applicant would be exposed to a real risk of being subjected to treatment prohibited by Article 4 of the Charter or even Article 7, then that risk must be avoided by providing access en route.

In X.X. and AT and another, just as in ZAT, particular weight had to be given to the risk of trafficking or smuggling as a consequence of the refusal of entry. If a State prevents people from seeking protection legally without offering effective alternatives, it de facto forces people into illegality. This risks placing individuals in dangerous situations in which they may be exploited by criminal networks. Hence, the consequences of refusing entry must be assessed by considering how an applicant’s condition would evolve after the refusal of entry (by analogy reference is made to Paposhvili’s prospective and forward-looking assessment [188]). This approach is coherent with the forward-looking nature of the substantial examination of a refugee claim (UNHCR Handbook).

The direct consequence of the refusal to admit must not jeopardise applicants’ lives or integrity, forcing them to stay or encourage them to choose alternative dangerous routes in order to exercise their right to seek international protection. The paramount interest of maintenance of effective and orderly immigration control, which is central to determining whether the refusal could be legitimate, must be balanced with the proportionate means of achieving this aim. Namely by measuring proportionality with the foreseeable consequences, including the BIC and the undeniable violation of absolute rights under the ECHR or the CFR.

4. Access to Protection Through Wider Obligations

(G5) Even if one argues that the Charter does not apply because a Member State is not implementing EU law (secondary legislation) but rather issuing a visa on the basis of national law, the EU treaties, the ECHR and the 1951 Convention (GC) are still relevant.

Regarding the EU treaties, Articles 2 and 3 of the TEU respectively state that the Union "is based on the values ​​of respect for human dignity ... and respect for human rights" and that it has "the purpose of promoting ... its values", including its relations with the rest of the world. Whether we talk about Member States’ implementation of EU law or simply national legislation, Article 6(3) TEU provides that the fundamental rights guaranteed by the ECHR constitute general principles of the Union’s law, but these principles are the same found in international law and are common to the laws of all Member States. Hence, some fundamental rights apply the same way independently from the source of law.

It cannot also be forgotten that there is a tendency to read the right to seek asylum in terms of non-refoulement only, avoiding its transformative potential as an individual right to seek asylum and forgetting that protection is premised on entry. The ECHR in the M.S.S declared that protection under Article 3 is complementary to Article 33 GC as they are both aimed at safeguarding persons from inhumane and degrading treatments.

Both Article 3 ECHR and Article 33 GC apply extra-territorially (Soering, Hirsi) as the problem is not from where refugees are being refouled but to where – a safe or unsafe country (Xhavara). The protection against refoulement is anchored within the theory of positive obligations (Chetail). Entry is a corollary of the principle of non-refoulement and the obligation to take preventive measures so Article 33 requires States to refrain from violating human rights through an act of omission. This imposes a positive obligation to prevent violations by admitting persons that are at risk of violation of fundamental rights because in certain circumstances non-admission can have the same effect of return, so in that it amounts to de facto refoulement.

It is also unlawful to use Article 31(1) GC or any measure that can amount to a penalty to forfeit the protection under Article 33 and limit access to protection by exercising controls on entry when this may expose people to the risk of an Article 3 or 33 violation. Article 33 GC is reinforced by Article 31(1) GC which exempts asylum seekers from having "good causes" from the entry requirements generally imposed on immigrants (R v Asfaw [136-141]). The purpose of Article 31(1) is to provide immunity from penalties on secondary movements and, combined with the principle of non-refoulement, can challenge the State’s margin of appreciation in migration control (Chetail). This combined reading of Article 33 and 31(1) reinforces the right to seek asylum and its effective enjoyment.

5. The Law Requires it

In a previous EDAL post, it was argued that in a case similar to ZAT before a European court, due to the absolute nature of Article 3 ECHR alone or in conjunction with Article 8, a duty to admit could not easily be dismissed in "well-founded cases".

This was, to a certain extent, confirmed in the X.X. opinion which suggests that, only in cases of undeniable humanitarian conditions and the foreseeable violation of the absolute right under Article 3, a duty to admit cannot be easily dismissed even in absence of any family link. Given that, like the ECHR, the Charter seeks to protect rights that are not theoretical or illusory but are tangible and effective, individuals must be able to effectively enjoy them as much on exit as on entry.

(G6) It should be noted that such an interpretation does not imply the abolition of borders nor an obligation to issue prima facie visas because it still requires a protection need and a well-founded case. Nor does it undermine the Dublin Regulation as this permits the allocation of responsibility through the ECHR’s rights and the humanitarian visas are likely to mitigate some responsibility-allocation shortcomings of the Regulation, thus relieving the pressure on the external countries.

As such, access to protection must take place through the genuine and effective enjoyment of the right to seek asylum as well as the effective enjoyment of rights under the ECHR and the 1951 Convention as the international obligations command. In the words of the AG, it is not because emotion dictates it but because the law, from whatever perspective we look at it, requires it.

Paolo Biondi, PhD candidate at the School of Advanced Study, University of London. 

The author would like to thank Amanda Taylor (ECRE) and Eleni Karageorgiou (University of Lund) for their comments on a previous version of this post.

(This journal entry is an expression of the authors' own views, and not those of EDAL or ECRE)

Inhuman or degrading treatment or punishment