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Accessing Asylum in EuropeExtraterritorial Border Controls and Refugee Rights under EU Law$

Violeta Moreno-Lax

Print publication date: 2017

Print ISBN-13: 9780198701002

Published to Oxford Scholarship Online: October 2017

DOI: 10.1093/oso/9780198701002.001.0001

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EU Pre-border Controls and Protection Seeker Flows

(p.1) 1 Introduction
Accessing Asylum in Europe

Violeta Moreno-Lax

Oxford University Press

Abstract and Keywords

This chapter presents the subject matter under scrutiny and provides a historical account of the development of extraterritorial strategies of migration management in Europe, coinciding with parallel changes in refugee movements and the composition of migratory flows on the global scale. The objective and research questions the study seeks to address are also introduced, together with a description of the methodology underpinning the research. In particular, the ‘cumulative standards’ or ‘integrated interpretation’ model employed to construe EU Charter of Fundamental Rights standards is canvassed. The concept of ‘jurisdiction’ and the alternative ‘Fransson paradigm’ applicable to interpret the scope of application of EU law is also briefly defined. The structure of the book is outlined at the end, providing an overview of the different chapters and their interrelation.

Keywords:   Global migration management, ‘new refugees’, asylum seeker flows, cumulative standards, integrated interpretation, jurisdiction, Fransson, pre-border controls, extraterritorial borders, refugee rights

1. Background and Subject Matter

In the course of the last decades, States the world over have increasingly closed their borders to permanent settlers.1 Several factors account for this development. Since the 1970s and 1980s, oil shortages and economic crises have led industrialized countries to discontinue ‘guest worker’ schemes and to erect barriers to family reunification. Territorial integrity and sovereignty concerns have also played a role.2 By contrast, wars following decolonization processes and the collapse of the USSR after the fall of the Iron Curtain have caused human displacement en masse.3 More recently, instability in the Middle East, especially the Syrian conflict in the aftermath of the Arab Spring, have produced an unprecedented surge. As a result, the number of persons in need of international protection has multiplied during this period.4 At the same time, reduced travel costs have greatly facilitated international mobility, resulting in increased migratory pressures on countries of destination.

The nature and composition of migratory flows has also changed. Alongside refugees,5 other persons move in search of access to developed States for different reasons so that the lines distinguishing the forcibly displaced from other migrants have progressively blurred.6 The ‘management’ of mixed migration flows has thus become a major concern.7 Yet, attention has not evenly distributed between rights (of refugees and migrants) and controls (exerted upon them to administer their movement). The (p.2) overwhelming emphasis has been on the pre-emption of unauthorized, ‘illegal’ arrivals through interdiction.8

The means of interdiction, and hence the obstacles an individual must overcome to reach safety, are manifold.9 Border controls have, indeed, been reinforced by a range of pre-border mechanisms implemented from abroad. Entry and pre-entry instruments align in a control continuum intended to provide for a system of surveillance capable of unfolding at the several stages of the migrant’s journey. And the problem is that these measures are applied indistinctively,10 with the result that refugees, like other migrants, encounter (an incarnation of) the external border numerous times, in different guises, while approaching the territory of countries of refuge, prior to arriving at the physical frontier.11 These measures of indistinct control have the effect of further mixing up migration flows.

Asylum has become one of the very few channels for legal settlement in the EU.12 In these circumstances, many are believed to misuse the refugee procedure. The rise in applications for international protection has been perceived as an indication of abuse of the asylum process for personal convenience.13 Although no conclusive evidence of this phenomenon exists,14 the tendency to characterize asylum seekers as profiteer economic migrants in disguise, using the asylum system to evade migration controls, has taken hold in recent years.15 So, fearing to attract a disproportionate amount of ‘unfounded’ claimants, a range of EU-sponsored interdiction measures, restricting access to the territory and to the international protection systems of the Member States, has been introduced in response, to ‘strengthen the protection of [external] borders’16—the object of protection shifting from the refugee to the frontier itself.

Indeed, since the beginning of the Schengen collaboration,17 the project of abolishing formalities at the internal frontiers of the Member States has been perceived (p.3) as necessitating the coordination of checks at the common external borders and the pooling of efforts and resources in managing mixed migratory movements through strict controls. It is in this context, following the communautarisation of the Schengen acquis,18 that the notion of ‘integrated border management’ (IBM) emerged.19

IBM comprises a ‘four-tier access control model’ that translates into a system of constant surveillance, tracking the movement of third-country nationals (TCNs) from the point of departure in countries of origin, all throughout transit, and up to their arrival in the EU.20 The system thus includes measures to be implemented in third countries with their cooperation, border checks at the external frontiers of the Member States, control within the Union, and expulsion upon entry of those without adequate documentation.21 Accordingly, uniform visas22 and carrier sanctions23 have been introduced to secure pre-entry checks before departure. Immigration liaison officers (ILOs) are deployed in regions of origin and transit to assist in this task.24 In turn, joint patrols survey the sea borders via common action coordinated by Frontex.25 On presentation at border posts, migrants are subject to ‘thorough checks’.26 And, finally, those who do not fulfil the entry conditions stipulated in the Schengen Borders Code (SBC) are removed on the basis of readmission agreements.27

While most controls are implemented extraterritorially, domestic asylum systems have been considered to function in a territorially confined way. Hailbronner’s arguments illustrate this position. He has submitted that ‘it is doubtful whether the principle of non-refoulement implies … a general duty of States to organize their entry and immigration, visa and transport legislation in such a way that potential political refugees may use their right to seek and enjoy asylum effectively’. In his view, ‘[a]‌ legal duty arises only when and in so far as a potential refugee … has come within the scope of territorial jurisdiction of a State …’.28 Under this construction, pre-entry controls (p.4) may be performed independently from their impact on refugee rights abroad, with extraterritoriality working to dissipate State responsibility in this regard.29

Partly reflecting this approach, EU Member States have failed to fully recognize the extraterritorial dimension of their international protection obligations.30 Whereas a Common European Asylum System (CEAS) is being developed purportedly ‘in accordance with the [1951] Refugee Convention … and other relevant treaties’,31 Member States seem reluctant to provide unhindered access to it to those in need.32

The question of access to international protection has been obscurely regulated in EU law. On one hand, it seems that entry into the Schengen zone has been designed disregarding protection seekers’ entitlement ‘to special protection on account of their position’.33 Prior to admission, they have been assimilated to the broader class of  TCNs and thus constrained to comply with general entry conditions, including visas,34 to reach (regularly and safely) the territory of the Member States. Refugees are only properly distinguished from the immigrant mass once an asylum request has been filed,35 or when the principle of non-refoulement finds territorial application.36 This means their entry is treated as ‘illegal’ unless they can demonstrate compliance with general admission requirements, including proof of ability and willingness to exit the Schengen zone upon expiry of their visa—something they can, by definition, not do, as they only qualify for refugee status or subsidiary protection if they show, precisely, that return to their country of provenance entails a ‘well-founded fear of persecution’ or a ‘real risk of serious harm’. The outcome is a situation of non-differentiation in relation to other migrants prior to arrival that entails that, when fighting irregular flows, their movement is also affected. On the other hand, some border norms, directly referring to human rights and refugee law, give the impression that protection seekers should be exonerated from general admission rules as a matter of legal obligation—not only at the stage of entry, but at the pre-entry phase as well.37

The practical consequence of this mismatch—as pointed out by numerous observers—is that access to international protection has been made dependent ‘not on the refugee’s need for protection, but on his or her own ability to enter clandestinely (p.5) the territory of [a Member State]’.38 Maritime interdiction, visa requirements, and carrier sanctions have hence become ‘the most explicit blocking mechanism for asylum flows’.39 In fact, measures of ‘remote border control’40 leave protection seekers with no alternative but to have recourse to irregular means of migration to reach safe haven in the EU—with that same irregularity being then used to characterize their asylum claims as ‘abusive’.41

Under these circumstances, it is critical to clarify whether any duty exists under EU law for its Member States not to obstruct access to international protection; whether, as a matter of legal obligation, it is necessary to differentiate refugees from other aliens seeking admittance at the frontiers of the Union at every stage in which border controls are implemented. In such a case, it will emerge whether there is a ‘right to differentiation’ that requires the second set of rules to be furthered in a comprehensive way and implemented in accordance with the fundamental rights acquis of the EU.

2. Objectives

On the basis of the foregoing, this study focuses on the interface between border surveillance, migration management, and refugee protection under EU law. The aim is to determine the content of the specific responsibilities of the EU Member States in the context of extraterritorial entry control, thereby identifying the legal limits to this approach. Against this background, the final goal is to establish the compatibility of the measures carried out in this realm with the fundamental rights acquis as consolidated in the Charter of Fundamental Rights (CFR).42 So, the focus will not just be on exposing the incongruence between policy design and political discourse, but, rather, on elucidating the legal implications of this gap. And although the geographical centre will be the EU, conclusions to be arrived at should have a wider remit, with potential global repercussions on how migration governance is presently being operationalized.

Instruments of pre-border control (as practised in Europe and elsewhere) give rise to a series of questions linked to their extraterritorial nature, the multiplicity of actors they involve, and the number of legal systems relevant to their implementation, which ought to be thoroughly appraised. Other works have contributed to a better understanding of the underlying tensions.43 However, a number of questions still remain open, particularly in relation to the EU system of pre-entry control from a EU legal perspective. The first objective of this research is, therefore, to elucidate the precise functioning of IBM mechanisms, both in law and in practice, focusing on their effects on asylum seeker and refugee rights. This will allow us to establish the exact legal (p.6) consequences of the ‘extra-territorialization’ of EU border and migration surveillance under EU law itself.44

On account of current developments, there are doubts that the extraterritorial governance strategy of the EU is taking sufficient account of international and European legal standards of refugee and human rights protection.45 Some authors have, indeed, argued that these measures constitute, in reality, a way of ‘evading’ international responsibilities.46 The principle of non-refoulement, the right to asylum, the right to leave any country including one’s own, as well as the right to judicial protection and to effective remedies seem to militate against these initiatives. The second objective of this research is, hence, to frame the content of the most important rights that protection seekers derive from EU law—based on international standards. The purpose is to determine the implications of these entitlements for extraterritorial mechanisms of border control.

In close connection with the above, a number of related issues surface. Extraterritorial measures of migration governance are frequently implemented jointly by several EU countries, acting either alone, in collaboration with fellow Member States, or under the auspices of Frontex. Third countries may also participate in these initiatives, by merely authorizing the measures concerned to be carried out on their territories—for example, by permitting the deployment of ILOs—or through their active involvement by contributing human and other resources to the operation in question—such as in the case of several Frontex-coordinated missions. On the other hand, the introduction of carrier sanctions and the possibility of collaborating with private contractors during the visa issuing procedure has the effect of enlisting private entities as substitute consular officials or surrogate border guards. Entry checks are thus implemented pre-emptively, through delegated enforcement. The multiplication of actors creates significant uncertainty concerning the specific attribution of legal responsibility for the migrants intercepted, often leading to complex diplomatic standoffs between the countries concerned or to the outright denial of responsibility when the command-and-control chain is diluted too far.47

In addition, several legal regimes regulate this kind of situation simultaneously, including not just EU law but also general international law, international refugee law, maritime conventions, and human rights. The simultaneous applicability of different legal regimes creates complications for the actors concerned in identifying their specific legal obligations in each particular case. In this context, a related objective of this project is to establish the responsibility of the EU Member States participating in these operations on the basis of general international rules on the responsibility of States for internationally wrongful conduct.48 The issue of attribution of legal responsibility in case of de jure or de facto organs of the State acting on its behalf as well as of organs of one State placed at the disposal of another State; the question of independent (p.7) responsibility (in cases of joint action); and the case of delegation of power to private entities will be considered in detail.

Extraterritoriality is taken into account throughout the investigation, especially with regard to the determination of the scope of protection seeker rights under EU law, which in turn serves to specify the extent of the international protection obligations of the Member States. While it is accepted that ‘States enjoy an undeniable sovereign right to control aliens’ entry into and residence in their territory’,49 the pronouncements of international courts and human rights bodies concerning the extraterritorial applicability of human rights instruments are also taken in consideration. The analysis of the doctrine of ‘effective control’—over an area in foreign territory50 or over persons abroad51—occupies an important place in this volume. But an argument will be advanced, regarding existing bases of extraterritorial de jure authority as determinant of (international) extraterritorial obligations, complementing the prevailing paradigm of de factopower. Instances of ‘cause-and-effect’ responsibility and functional conceptions of jurisdiction will equally be explored.

At the same time, autonomous requirements deriving directly from EU law will also be given a prominent space. Indeed, the point of this investigation is not limited to showing how international law determines or influences the configuration of EU fundamental right norms, but to go a step further and unveil any ‘extra’ protection that EU law may entail. With this in mind, the relevance of territoriality for the determination of the scope of application of EU fundamental rights standards will be called into question. Instead, a functional approach will be embraced. Drawing on what has been named here the ‘Fransson paradigm’, the consequences of Article 51 CFR and the implications of Member State action when ‘implementing Union law’ will be thoroughly examined. It will be posited that the Charter is ‘applicable in all situations governed by European Union law’,52 regardless of location.

As Chapter 7 will extensively develop, following Articles 52 and 53 CFR, a technique of ‘integrative interpretation’ will be applied, whereby the Refugee Convention and the ECHR will be relied on as the main legal sources determining the content of protection-seeker rights under EU law. Upon identification of the meaning and scope of international commitments under those instruments (following Vienna Convention rules),53 a method of ‘aggregate standards’ will be adopted, whereby EU law rights will be considered to comprise, at a minimum, the content of the parallel entitlements recognized in the 1951 Convention alongside ‘other relevant treaties’ of human rights law.54 Taking Articles 18, 19, and 47 CFR—respectively on the prohibition of refoulement, the right to asylum, and the principle of effective judicial protection—as case studies, the intention is to provide a generally applicable grid of interpretation of the (p.8) Charter provisions, throwing light on the relationship between international law and EU law on a more general plane and clarifying the extent to which EU law may provide additional protection. This will hopefully constitute one of the core contributions of this work to the wider literature on EU law, beyond the sub-fields of migration, asylum, and border control.

Without departing from prevailing patterns of interpretation—on the teleological and meta-teleological approach adopted by the CJEU to interpret EU law—55 the ‘aggregate standards’ model is a novel method that provides a comprehensive interpretative framework for the Charter, consistent with the specificity of the EU legal order and the place it reserves to human rights.56 The requirements of effectiveness and good faith implementation of EU law obligations, pursuant to the principle of ‘sincere cooperation’, also apply in this terrain.57 Drawing on Articles 31 and 32 VCLT—as generally followed by the CJEU in ‘Europeanized’ form—58 a contextual, systematic, and evolutionary construction will be advanced, integrating international developments into EU law, in accordance with the dynamic nature of fundamental rights therein.59 The method thus entails a careful analysis of fundamental rights as well as of the relevant international standards on which they are based and their relation to the CFR.

The end result will be a configuration of an EU refoulement prohibition that consolidates Article 33 CSR51 + Article 3 ECHR as one composite standard. The application of this method to Article 18 CFR will, in turn, lead to a compound right to (leave to seek) asylum incorporating a substantive-procedural-physical entitlement to (flee and) access international protection under EU law. The effectiveness of both guarantees will, then, be ensured by a conception of Article 47 CFR as encompassing fair trial and due process safeguards, including appeal rights, reuniting international and European human rights protections in one provision, as a matter of EU law. And, again, this exercise, having an eminently international dimension, will hopefully contribute to the more general determination of the content of standards at international human rights and refugee law level, taking account of general developments in law and State practice. Indeed, the centrality of non-refoulement and its extraterritorial reach does have repercussions beyond the EU realm. The same applies to the elucidation of the right to asylum inscribed in the Charter. Article 18 CFR binds 28 countries and its configuration as a human right of the individual has the potential to expand the law of international protection, consolidating an understanding of refuge as a subjective entitlement on the global/cross-regional sphere.60

(p.9) 3. Structure

To address the key research questions recounted above, the book is divided into two main parts. The first examines the main measures of extraterritorial border and migration control adopted under the umbrella of IBM at EU level. This empirical/forensic section strives to place mechanisms of extraterritorial surveillance against their wider historical and policy context so as to determine the precise functioning of IBM tools in law and in practice, focusing on their effects on protection seekers’ access to international protection in the EU. This will then allow for the identification of the precise legal and practical repercussions of each of these mechanisms on refugee flows.

Chapter 2 traces the origins and development of the EU acquis of border integration. The basic history of IBM is detailed therein. Chapter 2 is also where some of the main contradictions of the European approach to forced migration will be exposed. The analysis in Chapters 3 to 6 of the main individual measures of pre-border management will, then, show the exact degree and significance of these contradictions. The recognition that the ‘strengthening of European border controls should not prevent access to protection systems by those people entitled to benefit under them’61 and that checks ‘shall fully respect human rights, the protection of persons in need of international protection and the principle of non-refoulement62 will provide the starting point. Chapter 3 scrutinizes the general rules on entry and pre-entry established in the SBC that the other measures of IBM seek to implement in practice, unveiling the equivocal design of the criteria applicable to protection seekers. Visa requirements, carrier sanctions, immigration liaison officers posted abroad, and joint maritime operations coordinated by Frontex are examined in Chapters 4 to 6. Their legal structure, specific content, and practical application on the ground are taken into account. Their individual impact on refugee flows—both de jure and de facto—is then established in detail.

The second part of the volume focuses, in turn, on the definition of the content of the main obligations binding upon the EU Member States in relation to exiles when they operate abroad. The determination of the scope of application of the rights that refugees and asylum seekers derive from EU law will constitute the key element assisting in this task. Indeed, the precise contours of Member States’ obligations are demarcated through the identification of the relevant rights that come into play in this framework. This will serve to establish the compatibility of IBM with the fundamental rights acquis and thus to ultimately determine the legal viability of pre-border controls under EU law.

As announced, Chapter 7 explores the fundamental rights acquis of the EU in general, establishing the basis for the ‘integrative’ interpretation of the CFR. The right to protection against refoulement, as enshrined in Articles 19 and 4 of the Charter, is thoroughly examined in Chapter 8, building on standards found in the ECHR, the ICCPR, and the CAT Conventions.63 The right to asylum, recognized in Article 18 of the same instrument, is analysed in Chapter 9. The starting premise is that, occupying a separate provision, the presumption against redundancy operating at international and EU law, requires an interpretation of this clause as having a separate (p.10) substance from the protection against refoulement already inscribed in Articles 19 (explicitly) and 4 (implicitly) CFR. Remedies and procedural guarantees, in particular the right to effective judicial protection, as recognized in Article 47 of the Charter, are scrutinized in Chapter 10, alongside the extra ‘good administration’ guarantees enclosed in Article 41 CFR. The implications of each of these entitlements for the practicability of the extraterritorial mechanisms of IBM investigated in Part I are considered separately at the end of each chapter. The requirements of effectiveness and good faith implementation of EU law, pursuant to the principle of ‘sincere cooperation’, will be applied in this regard.

On account of the obligations identified in Part II, the book will close with conclusions on the compatibility of extraterritorial entry controls with the (equally extraterritorial) rights that protection seekers enjoy under EU law, identifying thereby the legal limits on IBM. As a result, it will be argued, prevailing conceptions within border policy of what constitutes fraud and abuse should be revised and thoroughly adjusted to adequately reflect (the hierarchically superior) fundamental rights protection and rule of law standards that govern (the entirety of) EU law.


(1) See, e.g., Goodwin-Gill, International Law and the Movement of Persons between States (Clarendon, 1978); Nafziger, ‘The General Admission of Aliens under International Law’ (1982) 77 AJIL 804; Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’ (2004) 67 MLR 588; Juss, ‘Free Movement and the World Order’ (2004) 16 IJRL 289.

(2) See Saroléa, Droits de l’home et migrations (Bruylant, 2006); Geddes, ‘International Migration and State Sovereignty in an Integrating Europe’ (2001) 39 International Migration 21; Kostakopoulou and Thomas, ‘Unweaving the Threads: Territoriality, National Ownership of Land and Asylum Policy’ (2004) 6 EJML 5; Samers, ‘An Emerging Geopolitics of “Illegal” Immigration in the European Union’ (2004) 6 EJML 27; Dauvergne, Making People Illegal (CUP, 2008) chs 1 and 3.

(3) For an overview, see Joly and Cohen, ‘Introduction: The “New Refugees” of Europe’, in Joly and Cohen (eds), Reluctant Hosts (Avebury/Gower, 1990); and Joly, ‘A New Asylum Regime in Europe’, in Nicholson and Twomey (eds), Refugee Rights and Realities (CUP, 1999) 336.

(4) UNHCR Statistical Yearbooks (2011–16), available at: <http://www.unhcr.org/uk/statistical-yearbooks.html>.

(5) The notion of ‘refugee’ is used to encompass not only recognized refugees but also asylum seekers outside their countries of origin. ‘Protection seeker’, in turn, captures their plight during (or while attempting) flight. On the declaratory nature of refugee status recognition, see UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR, 1979), para. 28.

(6) Sztucki, ‘Who is a Refugee?’, in Nicholson and Twomey (n 3) 69. See also Guild, ‘Who is an Irregular Migrant?’, in Bogusz et al. (eds), Irregular Migration and Human Rights (Martinus Nijhoff, 2004) 3. The General Affairs Council of the EU introduced the term ‘illegal refugees’ in Action Plan on the influx of migrants from Iraq and the neighbouring region, Council doc. 5573/98.

(7) Ghosh (ed.), Managing Migration (OUP, 2000); Betts (ed.), Global Migration Governance (OUP, 2011); Geiger and Pécoud (eds), The Politics of International Migration Management (Palgrave Macmillan, 2010).

(8) ‘Interception’ usually denotes the various ‘measures applied by a State, outside its national territory, in order to prevent, interrupt or stop the movement of persons without the required documentation … and making their way to the country of prospective destination’. See UNHCR, Interception of Asylum-Seekers and Refugee, EC/50/SC/CRP.17, 9 Jun. 2000, p. 10. An expanding notion, capturing also ‘interdiction-upon-arrival’ measures, is crystallizing in Strasbourg case law. See Hirsi (n 36), para. 180; and Sharifi v. Italy and Greece, Appl. 16643/09, 21 Oct. 2014, paras 215, 219, and 242.

(9) Hathaway, ‘The Emerging Politics of Non-Entrée’ (1992) 91 Refugees 40; and Gammeltoft-Hansen and Hathaway, ‘Non-Refoulement in a World of Cooperative Deterrence’ (2015) 53 Columbia Journal of Transnational Law 235. See also Den Heijer, Europe and Extraterritorial Asylum (Hart, 2012).

(10) Noll and Vedsted-Hansen, ‘Non-Communitarians: Refugee and Asylum Policies’, in Alston (ed.), The EU and Human Rights (OUP, 1999) ch 11, at 368, noting that: ‘immigration control and asylum policies are gradually merging. Having defined the prevention of “irregular” arrivals as the overall rationale, this seems to be a process in which the control strategy is bound to take over from the exigencies of refugee protection’.

(11) Guild, Moving the Borders of Europe, Inaugural Lecture 2001, Radboud Universiteit Nijmegen.

(12) Berger, La politique européenne d’asile et d’immigration, enjeux et perspectives (Bruylant, 2000); Carlier, La condition des personnes dans l’Union Européenne (Larcier, 2007), at 137ff. Depicting this as a problem, see Towards a Reform of the Common European Asylum System, COM(2016) 197, at 5.

(13) The European Commission has repeatedly pointed to the necessity of providing ‘national asylum administrations with adequate tools enabling them to efficiently manage asylum flows and effectively prevent fraud and abuse, thereby preserving the integrity and credibility of the asylum system’. See Green Paper on the Common European Asylum System, COM(2007) 301, p. 3 (emphasis added).

(14) For discussion, see Goodwin-Gill, ‘Editorial: Asylum 2001—A Convention and a Purpose’ (2001) 13 IJRL 1.

(15) Van der Klaauw, ‘Irregular Migration and Asylum-Seeking: Forced Marriage or Reason for Divorce?’, in Bogusz et al. (n 6) 116. See also Gammeltoft-Hansen, Access to Asylum (CUP, 2011).

(16) The Bratislava Roadmap, 16 Sept. 2016, at 3.

(17) Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany, and the French Republic on the Gradual abolition of checks at their common borders of 14 June 1985; and Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany, and the French Republic on the gradual abolition of checks at their common borders, [2000] OJ L 239/13 (‘CISA’).

(18) Protocol integrating the Schengen acquis into the framework of the European Union, [1997] OJ C 340/96.

(19) Art. 77 TFEU.

(20) EC Conclusions of 4–5 Dec. 2006, Press Release 15801/06, at 27. See also Recital 3 EBCG (n 25).

(21) Austrian Presidency, Strategic Paper on Immigration and Asylum Policy, Council doc. 9809/98, para. 85. See also The Hague Programme, [2005] OJ C 53/1, para. 1.7.2. See also Art. 4 EBCG (n 25).

(22) Council Regulation (EC) 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, [2001] OJ L 81/1 (as amended) (‘VR’); and Regulation (EC) 810/2009 establishing a Community Code on Visas, [2009] OJ L 243/1 (‘CCV’).

(23) Art. 26 CISA and Council Directive 2001/51/EC supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, [2001] OJ L 187/45 (‘CLD’).

(24) Council Regulation (EC) 377/2004 on the creation of an immigration liaison officers network, [2004] OJ L 64/1 (as amended) (‘ILOR’).

(25) Regulation (EU) 2016/1624 on the European Border and Coast Guard, [2016] OJ L 251/1 (‘EBCG’).

(26) Art. 8(3), Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), [2016] OJ L 77/1, (‘SBC’).

(27) Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals, [2008] OJ L 348/98.

(28) Hailbronner, ‘Comments on the Right to Leave, Return and Remain’, in Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (Martinus Nijhoff, 1996), at 115 (emphasis added).

(29) See, generally, Wilde, ‘Legal “Black Hole”? Extraterritorial State Action and International Treaty Law on Civil and Political Rights’ (2005) 26 MichJIL 739. Cf. Milanovic, Extraterritorial Application of Human Rights Treaties (OUP, 2011).

(30) UKHL, EU Select Committee, Proposals for a European Border Guard, Session 2002–3, 29th Report, para. 13, noting that EU visa requirements together with carrier sanctions have virtually ‘pushed back’ the common external borders of the Member States to the countries of origin of refugees.

(31) Art. 78(1) TFEU. See also Arts 6(1) and 2 TEU.

(32) See, e.g., Towards a Reform of the CEAS (n 12), at 14–16.

(33) Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Recommendation ‘D’, International co-operation in the field of asylum and resettlement, Geneva, 28 Jul. 1951.

(34) Art. 2(1) CCV.

(35) Art. 1 CISA: ‘Asylum seeker shall mean any alien who has lodged an application for asylum within the meaning of this Convention and in respect of which a final decision has not yet been taken’. In this vein, see Art. 2(c), Regulation (EU) 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, [2013] OJ L 180/31 (‘DR III’).

(36) See, inter alia, arguments by the French Government in ECtHR, Amuur v. France, Appl. 19776/92, 25 Jun. 1996; and arguments by the Italian Government in Hirsi v. Italy, Appl. 27765/09, 23 Feb. 2012.

(37) Art. 3(b) SBC stipulates that Schengen entry requirements ‘shall apply … without prejudice to the rights of refugees and persons requesting international protection, in particular as regards non-refoulement’.

(38) Mutatis mutandis, UNHCR, ‘Brief as Amicus Curiae’, filed on 21 Dec. 1992, in McNary v. Haitian Centers Council Inc., US Supreme Court Case No. 92-344, para. 18.

(39) Morrison and Crosland, ‘Trafficking and Smuggling of Refugees: The End Game in European Asylum Policy’, New Issues in Refugee Research, Working Paper No. 39 (UNHCR, 2001), at 28.

(40) Guiraudon, ‘Before the EU Border: Remote Control of the “Huddled Masses” ’, in Groenendijk, Guild, and Minderhoud (eds), In Search of Europe’s Borders (Kluwer, 2002), at 191.

(41) ECRE, Defending Refugees’ Access to Protection in Europe, 14 Dec. 2007, retrievable from: <http://www.ecre.org/wp-content/uploads/2016/07/ECRE-Defending-Refugees-Access-to-Protection-in-Europe_December-2007.pdf>. See also Moreno-Lax, Europe in Crisis (EU Red Cross, Feb. 2016), at: <http://www.redcross.eu/en/News-Events/NEWS-ROOM/Migration-Europe-in-Crisis/>.

(42) Charter of Fundamental Rights of the European Union, [2010] OJ C 83/389 (‘CFR’).

(43) See, in particular, Noll, Negotiating Asylum (Brill, 2000); Gammeltoft-Hansen (n 15); and Den Heijer (n 9).

(44) Rijpma and Cremona, ‘The Extra-Territorialisation of EU Migration Policies and the Rule of Law’, EUI LAW Working Paper No. 2007/01.

(45) For an overview, see Goodwin-Gill and McAdam, The Refugee in International Law (OUP, 3rd edn, 2007); Carlier, Droit d’asile et des réfugiés: de la protection aux droits, Collected Courses of The Hague Academy of International Law Vol. 332 (2007); Hathaway, The Rights of Refugees under International Law (CUP, 2005); De Schutter, International Human Rights Law (CUP, 2nd edn, 2014); Harris et al., Law of the European Convention on Human Rights (OUP, 3rd edn, 2014); and White and Ovey, The European Convention on Human Rights (OUP, 6th edn, 2014).

(46) Hurwitz, The Collective Responsibility of States to Protect Refugees (OUP, 2009) ch 1.

(47) See, e.g., Moreno-Lax and Papastavridis (eds), ‘Boat Refugees’ and Migrants at Sea (Brill, 2016).

(48) ILC, Articles on State Responsibility for Internationally Wrongful Acts, UNGA Res. 56/83, 12 Dec. 2001.

(49) See, inter alia, ECtHR, Saadi v. UK, Appl. 13229/03, 29 Jan. 2008, para. 64 (references omitted).

(50) ECtHR, Bankovic v. Belgium, Appl. 52207/99, 12 Dec. 2001, para. 70; Al-Skeini v. UK, Appl. 55721/07, 7 Jul. 2011, para. 138 ff; HRC, General Comment No. 31 (2004); CATCom, General Comment No. 2 (2007).

(51) ECtHR, Al-Saadoon and Mufdhi v. UK, Appl. 61498/08, 2 Mar. 2010; Al-Skeini v. UK, Appl. 55721/07, 7 Jul. 2011, para. 133 ff; HRC, Munaf v. Romania, Comm. 1539/2006, 30 Jul. 2009; General Comment No. 31 (2004); Inter-AmCHR, Coard v. United States, Case 10.951, Report No. 109/99; CAT, J.H.A. v. Spain, Comm. 323/2007, 10 Nov. 2008; General Comment No. 2 (2007); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Gen. List No. 131, para. 111.

(52) Case C-617/10 Fransson ECLI:EU:C:2013:105, para. 19.

(53) Vienna Convention on the Law of  Treaties, 1155 UNTS 331 (‘VCLT’). For a recent account of Art. 31 VCLT, see Gardiner, Treaty Interpretation (OUP, 2nd edn, 2015) ch 5 and references therein.

(54) See Art. 78(1) TFEU. See also Arts 67(1) TFEU and 6 TEU.

(55) See, e.g., technique adopted in Case C-285/12 Diakité ECLI:EU:C:2014:39. For commentary, see Moreno-Lax, ‘Of Autonomy, Autarky, Purposiveness and Fragmentation: The Relationship between EU Asylum Law and International Humanitarian Law’, in Durieux and Cantor (eds), Refuge from Inhumanity (Brill, 2014) 295.

(56) See, among many others, Joined Cases C-402/05 P and C-415/05 P Kadi [2008] ECR I-6351.

(57) See Art. 4(3) TEU; and Art. 9 EBCG for a concrete manifestation in the IBM field.

(58) See, e.g., Case C-196 The Queen v. Minister of Agriculture [1998] ECR I-1251; Case C-540/03 Weber [2002] ECR I-2013; Case C-386/08 Firma Brita [2010] ECR I-1289. See also Moreno-Lax (n 55). Cf. Beck, ‘The CJEU and the VCLT’, in Moreno-Lax and Gragl (eds), EU Law and Public International Law (2016) OYEL (Special Issue) 484.

(59) This technique has substantively been followed by the CJEU on several occasions across policy fields: Joined Cases C-92/09 and C-93/09 Schecke [2010] ECR I-11063; Case C-357/09 PPU Kadzoev [2009] ECR I-11189; Case C-465/07 Elgafaji [2009] ECR I-921; Case C-432/05 Unibet [2007] ECR I-2271.

(60) On the impact of EU asylum law and practice around the world, see Lambert, McAdam, Fullerton (eds), The Global Reach of European Refugee Law (CUP, 2013).

(61) European Pact on Immigration and Asylum, Council doc. 13440/08, p. 11.

(62) Council Conclusions on 29 measures for reinforcing the protection of the external borders and combating illegal immigration, 2998th JHA Council meeting, Brussels 25–26 Feb. 2010, para. e.

(63) International Covenant on Civil and Political Rights, 999 UNTS 171 (‘ICCPR’); and Convention against Torture, 1465 UNTS 85 (‘CAT’).