The EU Right to Asylum: An Individual Entitlement to (Access) International Protection
The EU Right to Asylum: An Individual Entitlement to (Access) International Protection
Abstract and Keywords
This chapter analyses the right to asylum enshrined in Article 18 CFR and its relevance in relation to access to international protection in the EU. It sets out the origins and evolution of the notion. The chapter shows the impact of the CSR51 and the ECHR on the classic understanding that the right of asylum is a matter exclusively belonging to the sovereign. The rights to leave any country and to seek asylum implicit in those instruments are assessed, together with the principle of proportionality and the limits it imposes on State discretion, and the intersection with the absolute prohibition of refoulement. The ‘right to gain effective access to the procedure for determining refugee status’ established by the Strasbourg Court as well as developments within the Common European Asylum System are also given attention. Comparisons are made with the approach adopted by the CJEU in the areas of free movement, legal/illegal migration, and EU citizenship. This serves as a basis for the clarification of the meaning of the right to (leave to seek) asylum inscribed in the Charter that Member States must ‘guarantee’ and its implications for mechanisms of ‘integrated border management’.
Keywords: Right to asylum, Article 18 CFR, right of asylum, right to leave any country, right to seek asylum, State discretion, proportionality, principle of non-penalisation, right to flee, opposability, right of entry, admission to refuge, implicit obligations, asylum procedure, good faith, effectiveness, CEAS, effet utile
1. Introduction: Only a Right of Asylum?
The (passive) right to non-refoulement is cardinal to refugee protection, but it represents only one side of the story regarding access to asylum. This chapter complements the investigation undertaken in Chapter 8 by illuminating the extent to which there may also be an (active) right for an individual to seek and obtain asylum under EU law that necessarily implies a related entitlement to gain effective access to international protection.1
‘Asylum’—literally meaning ‘what cannot be seized’—has deep roots in the Greco-Roman tradition.2 It gained paramount importance in the context of the medieval Christianitas, as a way for the Church to shelter expellees and people suffering religious persecution.3 The institution has been practised throughout history in various guises and for different purposes.4
Early modern theorists insisted on the existence of a natural right for the individual to seek hospitality in a foreign land to escape injustice or political oppression.5 Grotius, for instance, wrote in 1625 that ‘a permanent residence [ought not] to be refused to foreigners, who, driven from their own country, seek a place of refuge’.6 But since the fall of the Holy Roman Empire and the emergence of the nation-State, asylum has been linked to civil powers and configured as an attribute of the Sovereign, regulated by State legislation.7
Although, at certain points in time, the approach to the movement of persons across international borders has been more liberal,8 the traditional position in Western (p.338) countries from the late nineteenth century onwards has been that the right of exclusion of aliens constitutes a State prerogative.9 Most instruments at domestic and international level dealing with asylum in the inter-war period thus codify the prevailing position that ‘[t]he right of asylum is that of the State voluntarily to offer asylum, not that of the fugitive to insist upon it’.10 Since then, passports have been introduced and immigration restrictions have become commonplace. The power to decide on the entry, stay, and expulsion of foreigners has been conceived of as an almost absolute power of the State.11
This is the context in which the ‘right of asylum’ has developed in contemporary international law—on which the EU legal order draws. The right to grant refuge has been taken to belong to the Sovereign, while the individual is usually only accorded the opportunity to request it as a privilege, but not to obtain it as a matter of legal entitlement.12
However, the ‘right of asylum’ has no definition in international law. Its content is disputed. Numerous efforts have been made in the literature to apprehend the main characteristics of the notion.13 According to a definition formulated in 1950 by the Institute of International Law, the ‘right of asylum’—as a right of the State—consists, at a minimum, of the right to admit a person to its territory, the right to allow her to remain there, the right not to prosecute or restrict her liberty, and the right to refuse to (p.339) expel or to extradite her to another State.14 But, this definition has never been codified in a legal instrument of global reach.
Reflecting the approach that control over the admission and expulsion of aliens belongs to the exclusive province of State sovereignty, the Universal Declaration of Human Rights (UDHR) recognizes merely a right to leave any country—but to enter only one’s own—and a right to seek and enjoy asylum—but not to be granted it.15 In particular, the drafting process of Article 14 UDHR reveals a profound divide between those countries willing to accept at least a moral obligation to grant asylum to those fleeing persecution and those opposed to curtailing their prerogatives in any such way.16
The first draft proposed to the Commission on Human Rights in 1947 established the right of everyone ‘to escape persecution on grounds of political or other beliefs or on grounds of racial prejudice by taking refuge on the territory of any State willing to grant him asylum’.17 The wording, however, was subject to a heated debate, antagonizing the French and British positions.18 René Cassin, representing France, submitted a draft proposing a ‘right to seek and be granted, in other countries, asylum from persecution’.19 He claimed that, otherwise, Article 14 would be devoid of any real meaning. This was fiercely opposed by Britain, which claimed that, while the UK ‘had often had occasion to offer asylum to political refugees … it [had] not done so under any obligation’.20 A motion to replace the words ‘and be granted’ with the innocuous formulation ‘and to enjoy’ was eventually retained by the majority.21 In support of the amendment, it was argued that ‘no foreigner could claim the right of entry into any State unless that right were granted by treaty’. Therefore, the milder version was preferred. It was maintained that, ‘… while limiting the obligation of the State, [it] would indicate that there was a right of asylum to which persecuted persons could have recourse’.22
In recognition of the serious limitations of that formulation,23 the Commission on Human Rights resolved to revisit the possibility to include ‘the right of asylum of refugees’ in an international instrument.24 This culminated in the adoption of a Declaration on Territorial Asylum by the UN General Assembly in 1967,25 which eventually, however, simply served to promote respect for existing rules of customary law. In particular, the Declaration recognized that ‘the grant of asylum by a State to persons entitled to invoke Article 14 [UDHR] is a peaceful and humanitarian act and (p.340) that, as such, it cannot be regarded as unfriendly by any other State’, thus reaffirming the view of the right of asylum as a right of the Sovereign.
A further attempt at codifying a right of refuge for the individual took place during the 1970s. A group of experts, gathering under the auspices of the Carnegie Endowment for International Peace, prepared a draft Convention on Territorial Asylum in consultation with UNHCR. Despite the soft formulation chosen, instigating States merely to ‘use [their] best endeavours to grant asylum’,26 the inter-governmental conference that considered the text in 1977 did not accept it. Deep divisions on points of principle proved insurmountable and no agreement was finally attained.27
As a result, no legal text of universal scope deals explicitly with the right of asylum of protection seekers. The recognition of its importance for exiles has been relegated to resolutions and declarations by different bodies.28 Yet, the advent of refugee law and the introduction of international human rights norms have come to progressively transform this landscape. The following sections will show the impact of the 1951 Refugee Convention (CSR51), the International Covenant on Civil and Political Rights (ICCPR), and the European Convention on Human Rights (ECHR) on the classic conception that asylum is exclusively a matter of State will. This will serve as a basis for the elucidation of the meaning of the ‘right to asylum’ inscribed in Article 18 of the EU Charter of Fundamental Rights (CFR). The implications of this right for IBM measures under EU law will be examined in detail, preluding some final conclusions at the end of the chapter. The ‘integrative interpretation’ method, formulated in Chapter 7, will be followed to determine the content of the right under EU law, relying on the bases of the CSR51, the ICCPR, and the ECHR. The importance of both the right to leave and the right to seek asylum from persecution will be pivotal in the argumentation of the right to asylum as an individual entitlement within the EU legal order in the framework of access to international protection in the Member States.
2. Access to Asylum and the 1951 Refugee Convention: The Aggregate ‘Right to Leave to Seek Asylum’ from Persecution
The traditional view that the 1951 Convention fails to recognize a right of the individual to refuge from persecution requires some deconstruction. The following sections will unveil the intricacies of the relationship between the Convention and the key rights regarding access to protection acknowledged on the global plane: the right to leave every country and the right to seek and enjoy asylum. The end-goal is to clarify whether there is a right to access refuge, stemming from the aggregation of both entitlements, resulting in a (composite) ‘right to leave to seek asylum’, which (together with the prohibition of refoulement examined in Chapter 8) underlies the entire system of international protection with binding force.
2.1.1 The right to leave every country including one’s own
All proposals to include the right to seek and enjoy asylum from persecution in the ICCPR roundly miscarried. The division between those countries taking it as a matter alien to a human rights instrument, belonging exclusively to the sovereignty of the State, and those considering it the natural corollary of the other rights recognized in the Covenant could not be bridged. Only the right to leave any country in Article 13(2) UDHR was accepted, which eventually became decoupled into Articles 12 and 13 of the Covenant, providing respectively for freedom of movement and protection of foreigners against arbitrary expulsion.29
Debates on the right to leave were marked by grave tensions too.30 The British delegation to the Commission on Human Rights proposed to strike it out, arguing that it did not constitute an individual right whatsoever.31 The final wording of Article 12 ICCPR is, thus, the product of a compromise. While the provision recognizes a right to leave, there is, however, no parallel entitlement to enter other countries, as control over admission was considered intrinsic to State sovereignty.32 To compensate for the imbalance, it was decided that the right to return to one’s own country, as reflected in the UDHR, should be retained.33
The inclusion of the ‘right to return to his country’ in the wording of Article 13(2) UDHR was the result of a proposal by the Lebanese delegate to the Commission on Human Rights, who noted that the ‘ideal would be that any person should be able to enter any country he might choose’, but that account had to be taken of ‘actual facts’.34 At the same time, the implementation of the right to emigrate would be difficult, considering that measures restricting immigration ‘were well known and generally accepted’.35 So, to strengthen the right to leave, a minimum duty fell on States to permit their own nationals to return to their territory, in case they were refused entry to (p.342) other countries.36 On the other hand, an earlier proposal on draft Article 13(2) UDHR by the USSR that ‘every sovereign State should have the right to establish whatever rules it considered necessary to regulate movement on its territory and across its borders’,37 as it would have defeated the purpose of the right to leave, was near-unanimously rejected.38
In turn, freedom of movement was divided into several components. Article 12(2) ICCPR, as opposed to Article 12(1), proclaims a right of universal scope.39 Indeed, while liberty to come and go attaches only to those ‘lawfully within’ the territory of a State, freedom to leave any country and emigrate ‘is available to everyone, i.e. to nationals and aliens alike, and is not conditioned on lawful residency within the territory of a State party’.40 The legal status of the person concerned under national law is irrelevant. Domestic provisions cannot be taken into account in this context—Article 27 VCLT expressly denies that a State may invoke its internal norms as justification not to perform its obligations under a treaty.41 The final element: to never be arbitrarily deprived of the right to enter one’s own country, rounds the circle in Article 12(4) ICCPR, benefiting also everyone without distinction.
In this guise, the right to leave is considered one of the key foundations of liberal/democratic States, ‘for the individual who finds his society intolerable, and who has made the difficult decision to extradite himself, denial of this right may be tantamount to a total deprivation of [personal] liberty’.42 In fact, it has been characterized by the Human Rights Committee as ‘an indispensable condition for the free development of a person’.43 It has been recognized in several other instruments of universal range, and in all regional systems of human rights protection.44 Its importance is so fundamental to the exercise of other human rights that it has, at times, been considered implicit in (p.343) other liberties.45 Length of time is not a factor, so the right covers both the freedom to travel briefly or to permanently settle abroad. It cannot be made dependent on any specific purpose and the right to determine the State of destination ‘is part of the legal guarantee’.46
2.1.2 Permissible limitations and interdiction measures
The right to leave has not been conceived as an absolute entitlement. Two international colloquia were organized to identify the extent of possible limitations, which resulted in two complementary declarations adopted in Uppsala and Strasbourg in 1972 and 1986 respectively.47 According to the final wording of Article 12(3) ICCPR, restrictions have to be ‘provided by law, [be] necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and [be] consistent with the other rights recognised in the … Covenant’. Following the pronouncements of the Human Rights Committee (HRC), ‘the application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality’.48 In practice, ‘States should always be guided by the principle that the restrictions must not impair the essence of the right’.49 Therefore, while limitations are permissible, they must not render the right ineffective—neither in law nor in practice.50
In light of this, exit visas and the denial or seizure of a passport constitute direct interferences with the right to leave, which, unless meeting the requirements for permissible restrictions, are incompatible with the Covenant.51 Safe conducts and laissez-passers have been considered insufficient in this regard, as they only facilitate travel to one specific destination.52 But an interference does not need to entail a complete inability to leave. It can equally result from it being a severe burden to exercise the right. Such measures must be provided for by norms that are accessible to all and foreseeable in their application, providing for adequate certainty and protection against arbitrariness.53 In addition, the condition of ‘necessity’ requires proportionality in every given case. It is not sufficient that the State believes the restriction in question serves one of the listed objectives. The measure must be objectively appropriate to achieve the legitimate aims enumerated in Article 12(3) ICCPR and be the least intrusive amongst those available. Its imposition should be the result of a balancing exercise between all interests at stake, without placing a disproportionate burden on the individual (p.344) concerned when compared to the objective to be attained.54 Following the HRC, ‘[t]he laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution’.55
There are several permissible purposes for interference. The Commission on Human Rights initially attempted to draw a detailed list of all grounds for restriction, but it soon became apparent that such an endeavour was pointless.56 On the other hand, the Soviet proposal to allow for complete discretion, inserting an open-ended provision, was discarded as well.57 Delegates met in the middle and agreed upon a list of grounds broadly corresponding to those in other limitation clauses in the Covenant.58 Most problematic in this framework are the ‘national security’ and ‘public order’ provisions, allowing wide discretion. Yet, also in these cases, the requirements of necessity and proportionality have to be observed in each individual case.59 Compatibility with the other rights of the Covenant—including the prohibition of ill-treatment and protection from refoulement—imposes an additional limit on State power, as does the fact that restrictions must be narrowly construed.60 Against this background, whether, as the British delegation suggested,61 States are allowed to restrict the right to emigrate with a view to assisting destination countries in controlling unauthorized immigration is doubtful. The proposal was specifically considered during the discussions in the Commission on Human Rights and was expressly rejected as being too far-fetched.62
The HRC has subsequently expressed concern in relation to interdiction policies used by countries of destination, requesting States Parties to ‘include information in their reports on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country’.63 The Committee has realized that ‘sanctions against passenger carriers and other pre-frontier arrangements … may [indeed] affect the rights of any person to leave any country including his or her own’.64 However, it has never gone so far as to openly condemn them, despite the specific impact they have on refugees, as they prevent all ‘irregular migrants from entering their territory without simultaneously putting concrete guarantees in place for those seeking international protection’.65
In Dixit v. Australia,66 concerning the denial of a visa to a foreign family applying for entry from abroad, the question of whether the issue fell at all within the scope (p.345) of application of the Covenant arose. Australia argued that the Communication was inadmissible because the author was neither on national territory nor under its jurisdiction at the relevant time.67 Dixit responded that he and his family were under Australian jurisdiction by virtue of the extraterritorial effect of its immigration laws and the operation of its visa system, according to which their rights and duties vis-à-vis Australia were to be determined.68 Australia counter-argued—rather incongruently—that ‘the term “jurisdiction” means that the State has rights “to control or interfere with a particular person or object”, [but] that the issuing or refusal of a visa does not fall into that category and that the Australian migration law does therefore not confer any sovereign authority to the State party over the author’.69 The HRC did not engage in that discussion and focused, instead, on the non-exhaustion of domestic remedies by the author and on the fact that, in the meantime, a later visa application had been successful. So, the Communication was declared inadmissible on those grounds.
Taking account of the vast jurisprudence of the HRC on the extraterritorial applicability of the ICCPR and of its further endorsement by international courts,70 Noll has suggested that the Committee in Dixit ‘implicitly accepted that the grant of visas to aliens abroad comes under the ambit of the Covenant. Had it thought otherwise, the case [would have] been declared inadmissible ratione loci, and any reasoning on the exhaustion of domestic remedies would have been superfluous’.71 His reasoning, therefore, goes in the direction of considering the right to leave as entailing a synallagmatic relationship between the individual claimant and the State imposing pre-frontier restrictions, a matter to which we turn in the next section.
2.1.3 The ‘opposability’ of the right to leave vis-à-vis every Contracting Party
It has been argued that the right to leave is not a ‘full’ right, but an ‘imperfect’ entitlement with respect to ‘each particular country’.72 The fact that there is no right of entry into any other State but one’s own provides support to this interpretation. In that regard, the right to leave becomes subordinate to the whims of States of destination, which retain exclusive control over the admittance of foreigners into their territory. And this is not perceived as a negation of the substance of the right to leave. It is rather taken as a sort of collectivization of the responsibility of States ‘taken together’ to ensure access to at least one of them. This construction sees not the individual Contracting Parties to the Covenant, but the international community ‘as a whole’ to be under the duty to facilitate the realization of the right to leave.73
However, in the absence of specific wording to that effect in the text of the Covenant, this interpretation contradicts the principle of independent responsibility, which ‘reflects the position under general international law’, according to which, by default, each and every individual State is responsible for each and every of its own international obligations.74 The construction is systematically weird too, as it concerns only one section of one provision of the ICCPR, namely Article 12(2), whereas all other clauses of the (p.346) same instrument appear to follow the general rule under international law. So, the alternative view is to accept that, in principle, the right to leave is not ‘half a right’,75 which other States need to ‘ “complete” through a duty to admit; rather, it is simply a right each State must guarantee’.76 On this basis, it should be treated as any other right enclosed in the Covenant, hence opposable to any Contracting Party—independently of the conduct attributable to other Parties.
Through this lens, the absence of a right to immigrate does not per se suffice to justify the elimination by destination States of the right to leave as opposable to them—through the imposition of blanket visa requirements, carrier sanctions, or indistinct interdiction measures. The right to leave has a substance of its own, which must be distinguished from the right to liberty of movement, protection from expulsion and refoulement, and the entitlement to return to one’s own country, regulated separately by other provisions of the ICCPR.77 Indeed, ‘[n]othing is better settled, as a canon of interpretation in all systems of law, than that a clause must be so interpreted as to give it a meaning rather than so as to deprive it of meaning’.78 The presumption against redundancy requires that every provision in a treaty be given its own independent significance and effect. Therefore, the different aspects of the movement of persons cannot be collapsed and nullified by the non-existence of a right to immigrate.
And arguments based on State sovereignty should be approached ‘with the greatest caution’.79 It is a long-standing principle of international law that, although ‘[r]estrictions upon the independence of States cannot … be presumed’,80 once a State concludes a treaty it undertakes to exercise its sovereign rights in conformity with it. In 1923, the Permanent Court of International Justice observed that sovereignty had no independent relevance in the interpretation of treaties, ruling that
[t]he Court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation … places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them, to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty.81
Several other decisions have developed this reasoning, cautioning that ‘[t]he principle of restrictive interpretation, whereby treaties are to be interpreted in favour of State sovereignty in case of doubt, is not in fact mentioned in the provisions of the Vienna Convention’. What counts is ‘[t]he object and purpose of a treaty, [which] taken together with the intentions of the parties, are the prevailing elements of interpretation’.82 In Orakhelashvili’s view, ‘[t]he extent of sovereign freedom in casu is merely (p.347) a consequence of the position that obtains through and after the interpretation of a treaty by using normal interpretative methods’.83 Lauterpacht also denies the normative status of the in dubio mitius approach, which, unlike the principle of effectiveness of obligations, is not part of international law.84
Albeit ‘imperfect’—as per de Vattel’s judgment—the right to emigrate has been drafted in peremptory terms, thereby creating obligations on each and every Contracting Party to the Covenant that have to be implemented effectively and in good faith. According to accepted rules of interpretation, the entire system of international law is predicated on ‘the sovereign equality and independence of all States’ and on ‘the principles of free consent and of good faith’.85 The Vienna Convention on the Law of Treaties (VCLT) defines ‘Party’ as ‘a State which has consented to be bound by [a] treaty and for which the treaty is in force’. In turn, the pacta sunt servanda principle, whereby ‘[e]very treaty in force is binding upon the parties to it’, requires that international obligations ‘be performed by them in good faith’.86 As a result, Parties to the ICCPR cannot hide behind a ‘collectivized’ reading of the right to leave in order to negate its effects in their own case. Each contracting State remains ‘the guarantor of individual rights and freedoms … within its jurisdiction’ and is bound to guarantee them to everyone subject to its authority and control.87
It has already been accepted that the right to leave places obligations not only on the State of nationality, but also on the State of residence of those concerned. The so-called ‘Passport Cases’,88 regarding the issuance of travel documents to Uruguayan citizens living abroad, led the HRC to openly recognize that sovereign acts conducted extraterritorially fall within the purview of the Covenant and that ‘it … follows from the very nature of the right that, in the case of a citizen resident abroad, it imposes obligations both on the State of residence and on the State of nationality’.89 So, the issuance of an identity card by the State of residence does not release the State of nationality from its respective duty to issue or renew a passport.90
The same ought to apply in relation to the obligations of States of destination. The right to leave preserves its binary nature—Contracting Party/individual under its authority and control—and must be taken to produce effects on every Contracting Party exercising jurisdiction in each particular case (as any other right enshrined in the Covenant). The same person may be under the jurisdiction of several Contracting Parties simultaneously, as exemplified by the ‘Passport Cases’. Article 12(2) ICCPR (p.348) creates positive and negative obligations to ensure the effectiveness of the right to leave on all Parties concerned. So, while restrictions may be permitted, the essential content of the right must be preserved. A proportionality test needs to be undertaken in each case. Thus, the interference (in the form e.g. of pre-frontier arrangements, having their primary effect abroad) must be prescribed by law, be necessary for the realization of the objective invoked, which in turn must objectively serve one of the limited grounds that allow for restrictions under Article 12(3) ICCPR. This does not mean pre-border measures constitute necessarily a violation of the right to leave, but that they must be classified as an interference requiring specific justification to be lawful.
Yet, the specific significance of the right to leave for protection seekers requires consideration of all Article 12(3) conditions, and especially of the clause on ‘other rights recognised in the … Covenant’. Its intersection with the prohibition of refoulement, as the next section will show, renders the right of vital importance to those fleeing irreversible harm. Although the ICCPR does not recognize a right of aliens to enter another country, according to the HRC, in certain circumstances they may nonetheless enjoy the protection of the Covenant in relation to entry and residence, in particular when considerations of non-discrimination, family unity, or, indeed, the prohibition of inhuman treatment are at stake.91
2.2 The right to leave as a precondition for access to asylum
2.2.1 The right to leave and its intersection with other (refugee) rights
The Refugee Convention (CSR51) is contingent upon the existence of the right to leave one’s own country, for without the person being ‘outside the country of … nationality’ she will not qualify as a refugee under that instrument.92 The right to leave and the right to seek asylum are intertwined in the case of Convention refugees. As Hannum has noted, ‘[i]n order to “seek” asylum, a refugee must be able to present himself before the appropriate authorities of the country of refuge; by definition, this requirement presupposes that he must be able to leave his own country’.93 In this context, the denial of the right to leave may indirectly entail a denial of the right to seek asylum.94
While general international law does not expressly recognize a right to seek asylum in any legally binding form and no reference to Article 14 UDHR can be found in the letter of the 1951 Convention, its drafters seemingly considered it to be inherent. Citing Goodwin-Gill, ‘[t]he right of asylum was implicit in the Convention, even if it was not explicitly proclaimed therein, for the very existence of refugees depended on it’.95 The French delegation to the Ad Hoc Committee even suggested that ‘the right of asylum should be mentioned explicitly together with the reference to the [UDHR]’ made in the Preamble. Delegates from other countries felt that then the same should be done in respect of other provisions of the UDHR, since the object and purpose of the Convention was ‘to ensure the widest possible exercise of all fundamental rights (p.349) and freedoms’. Plausibly, it was finally decided that any singling out of particular rights would have been at the detriment of other rights not expressly referred to in the text. Thus, a generally encompassing reference to the entire UDHR was preferred.96
Therefore, for those escaping oppression, to the right to leave any country there joins the right to seek asylum from persecution as a fundamental factor in what can be denominated as ‘the right to flee’. And Article 14 UDHR does not establish any other limitation to the right to flee than those arising from legitimate prosecution in the country of origin.97 It hence appears that the aggregate right to leave to seek asylum entails a stricter limit on State discretion than the right to leave operating alone. Public order considerations will play a lesser role, if any at all, when constraining the right to leave of potential refugees, as the underlying motives of flight (and related obligations of non-refoulement) must be taken into account.
This is corroborated by a wealth of soft-law instruments adopted in consideration of the current state of development of international human rights and refugee law. For instance, the Sub-Commission on Human Rights issued a Resolution in 2000 on the right to seek and enjoy asylum, stating that
… restrictive policies and practices of many States may lead to difficulties for people to gain effective access to protection in the territory of asylum States while escaping persecution and serious human rights violations in their own countries … such policies and practices … may be incompatible with the principles of applicable refugee and human rights law.98
Similarly, the UNHCR Executive Committee, in an attempt to reconcile State interests in interdiction measures with the right to seek asylum of refugees, adopted eight Guiding Principles to ensure the ‘adequate treatment’ of intercepted persons. One of these principles requires States to take account of the fundamental differences between asylum seekers and other migrants and of the obligation to guarantee access to international protection. The primary concern is that ‘[i]nterception measures should not result in asylum-seekers and refugees being denied access to international protection, or result in those in need of international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground, or where the person has other grounds for protection based on international law’.99
The UNHCR Executive Committee also ‘reaffirms that the institution of asylum … derives directly from the right to seek and enjoy asylum set in article 14(1) [UDHR]’.100 The link between the right to leave, the right to seek asylum, and the right to protection against refoulement must, therefore, be duly operationalized when devising mechanisms of immigration control.101 The legal strength of the right to seek asylum is reinforced by that interaction. This has led some commentators to assert that, although there is no right (at the universal level) to be ‘granted’ asylum de jure, (p.350) there is an implied right to de facto asylum within refugee and human rights law—flowing from the right to leave and its interplay with the right to be protected from refoulement—that refugees must be able to access.102
2.2.2 Access to international protection under the 1951 Convention
During the negotiations of the 1951 Convention, discussions on access to refuge occupied significant space. Although the draft article on admission, initially proposed by France and the UN Secretariat, disappeared from the final text,103 relegating reception and asylum to exhortatory statements in the Final Act of the Conference of Plenipotentiaries that adopted the instrument,104 the Refugee Convention is not indifferent to the need of refugees to leave their countries of origin to escape persecution. Sympathy reached the drafters’ debate and crystallized in several provisions of the Convention.
As a result, while in general terms ‘every refugee has duties to the country in which he finds himself, which require in particular that he conforms to its laws and regulations’,105 the impossibility to which he or she may be confronted of fulfilling certain conditions was also taken into account. Therefore, Article 6 CSR51 on standards of treatment establishes that ‘any requirements … which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is incapable of fulfilling’.106 When discussing the wording of this provision, the (p.351) drafters referred to ‘requirements as to length and conditions of sojourn or residence’ with which compliance would generally be required. Some of these requirements were identified during the debate as conditions that refugees would generally not be able to fulfil. Such conditions included ‘the production of a national passport or a nationality certificate’.107 This is probably why it was decided that refugees once ‘in the territory’ of a State Party were to be issued identity papers by their hosts.108 Those ‘lawfully staying in the territory’ of a Contracting State would, in addition, receive ‘travel documents for the purpose of travel [abroad]’.109
From the final wording of Articles 27 and 28 of the Convention, read in the light of Articles 2 and 6, it may be inferred that the draftsmen did not expect refugees to flee carrying their identity and travel documents along—let alone to comply with normal entry formalities of States of refuge. While subsequent travel, after the regularization of their status by a host country, can be made conditional on obtaining a visa or any other condition the State of final destination may require,110 the same does not seem to apply to the flight from the country of persecution. The UNHCR Executive Committee has averred, in this respect, that ‘circumstances may compel a refugee or asylum-seeker to have recourse to fraudulent documentation when leaving a country in which his physical safety or freedom are endangered’.111
Article 31(1) CSR51, proclaiming the principle of non-penalization of irregular entry, reinforces this reading, providing that
Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The power to impose penalties on refugees on account of their unauthorized entry or presence has, therefore, been markedly restricted. As it ensues from the travaux préparatoires, the final goal was to provide an incentive to refugees for the regularization of their status upon arrival.112 During the drafting process, it was noted that ‘[t]here was no doubt that refugees must not be penalized because they were refugees’.113 It was considered that ‘a refugee, whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry into the country of refuge’ and that ‘[i]t would be in keeping with the notion of asylum to exempt from penalties a refugee, escaping from persecution, who after crossing the frontier clandestinely, presents himself as soon as possible to the authorities of the country of asylum and is recognized as a bona fide refugee’.114 There had, indeed, been a tradition, since the turn of the twentieth century, of waiving the application of immigration regulations in the case of refugees. In the US, e.g., ‘[s]uch persons applying for admission … as so-called political refugees [were] customarily admitted for a reasonable period under a liberal (p.352) interpretation of the Immigration Laws’.115 This was deemed necessary under the 1933 Refugee Convention, preceding the 1951 instrument, mandating Contracting Parties ‘not to refuse entry to refugees at the frontiers of their country of origin’.116
In the course of negotiations, it was also affirmed that ‘non-admission or expulsion had to be regarded as sanctions’.117 Considering their extremely severe nature if applied to refugees, it was recommended that recourse be had to them only as ultima ratio, ‘for very grave reasons, namely matters endangering national security or public order’.118 Following intense debate, expulsion and refoulement were eventually detached from those penalties that could possibly be imposed upon unauthorized entry, confined to separate provisions, and submitted to strict conditions of application. So, refugees entering the territory of a Contracting Party irregularly could neither be directly expelled nor remain unadmitted at the border. Otherwise, ‘measures of expulsion or non-admittance at the frontier, intended to protect law and order, [would] achieve opposite results when [applied] to refugees without taking into account their peculiar position’.119
2.2.3 The principle of non-penalization for unauthorized entry and admission to refuge
To avoid absurd results, it has been proposed that the requirements of Article 31 CSR51 should not be interpreted too rigidly, specially the ‘coming directly’ clause.120 As Hathaway notices, there was agreement among the drafters that, together with those coming straight from a country of persecution, two further categories of refugees should also be understood as ‘coming directly’: those transiting through or spending short periods of time in other countries as well as those compelled to leave a country of first asylum due to a threat of persecution.121 Goodwin-Gill explains how the drafting history confirms that the notion ‘[was] not intended to deny protection to persons in analogous situations’. Rather the opposite, ‘[it] shows clearly only a small move from an “open” provision of immunity … to one of slightly more limited scope, incorporating references to refugees “coming directly from a territory where their life or freedom was threatened” ’.122 The clause was introduced to meet the concern of France that those ‘who had already found asylum’ elsewhere should not be allowed ‘to move freely from one country to another without having to comply with frontier formalities’.123 A more extensive proposal to exclude refugees ‘having been unable to find even temporary asylum’ was (p.353) rejected in view of the unbearable burden it would place on refugees—having to prove not only their condition, but also their inability to find refuge anywhere else.124
Likewise, showing ‘good cause’, in the words of Grahl-Madsen, seems to require that the refugee, ‘apart from showing that he is a bona fide refugee’, justifies, ‘not why he has chosen to request asylum in any particular country, but why his entry or presence was illegal and could not be regularized beforehand’.125 In turn, the condition to report to the authorities of the State Party concerned, while arguably implying a voluntary act on the part of the refugee, should not be read to mean that the refugee has to present herself to a specific authority by a precise deadline. It would appear that ‘[i]f a refugee is apprehended on his way to present himself to the authorities, or even before he has had a chance to give himself up … he cannot be considered excluded from claiming the benefit of Article 31(1)’.126
The House of Lords has extended the benefit of Article 31(1) CSR51 to a refugee not trying to enter irregularly, but attempting to leave the UK on a false passport, after a brief stopover at Heathrow airport in search of asylum elsewhere. Although its wording does not expressly contemplate this situation, the majority of their Lordships agreed that ‘the Refugee Convention must be given a purposive construction consistent with its humanitarian aims’.127 An evolutionary interpretation of the terms of Article 31 was considered appropriate. The 1951 Convention, being a humanitarian agreement concluded for the purpose of protecting the most fundamental rights of individuals, ‘represent[s] a commitment of the States Parties to certain norms and values recognised by the international community’.128 So, even though the situation at hand fell outside what the framers had in mind when drafting the Convention, Article 31 was deemed applicable to the case. The impact, in this context, of Article 2 CSR51 was specifically assessed and it was agreed that it did not ‘deprive asylum seekers who were in transit of the benefit of Article 31’.129 The principle of non-penalization was held not to be limited to offences linked to a refugee’s illegal entry or presence, but to provide immunity also from penalties on attempted irregular exit for the (continued) purpose of escaping harm.130 Crucially, the situation was considered ‘one where the United Kingdom, having asserted jurisdiction … [had to] assume responsibility for affording [the applicant] the benefit of the article’.131 The fact that Britain was neither the country of nationality of the person, nor the State of residence or that of final destination did not preclude such consideration.
Although Article 31 CSR51 does not literally amount to a right to leave to seek asylum from persecution, and even if, strictly speaking, it is of no avail to persons who (p.354) do not qualify as refugees,132 it follows from the above that a contextual reading of the right to leave in Article 12(2) ICCPR, ‘interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’,133 shall be construed as benefiting protection seekers in a meaningful way. Borrowing from McAdam, there may be occasions in which Contracting Parties—including transit States and countries of final destination—‘must permit movement on a temporary basis and enable the rights with which it is connected to be fulfilled’.134 Especially in respect of those in need of international protection, they are under a duty ‘not to frustrate the exercise of that right in such a way as to leave individuals exposed to persecution or other violations of their human rights’.135
This is all the more true when the curtailment of the right to leave is tantamount to (extraterritorial) refoulement, as described in Chapter 8, which is prohibited in absolute terms under IHRL. Such limitations become automatically ‘[in]consistent with the other rights recognized in the … Covenant’.136 State regulation of the right to leave, when applied to protection seekers, must take due account of their related entitlements, so as to comply with Article 12(2) ICCPR effectively and in good faith. As it will be further elaborated below with regard to Article 18 CFR, the aggregate ‘right to leave to seek asylum’ of refugees thus represents a lex specialis of absolute nature (through its intersection with non-refoulement) to the lex generalis embodied in the qualified right of everyone to leave for whatever other purpose.137
3. Access to Asylum and the European Convention On Human Rights: A Right to Enter a Procedure for Determining Protection Needs
As in the case of the ICCPR, the ECHR recognizes the right of everyone to leave any country including one’s own, but it fails to incorporate a right to either seek or receive asylum. A proposal to introduce a right to seek, receive, and enjoy asylum in the Second Protocol to the Convention was defeated.138 This, however, has been no obstacle to the Strasbourg Court finding a right of access to international protection as being implicit in the Convention system, at least in its procedural form. Linked to the prohibitions of refoulement and collective expulsion and drawing on the Soering technique of ‘inherent obligations’,139 ECHR case law has elaborated upon the measures of pre-border control that may be incompatible with the right to leave to seek international protection, in so (p.355) far as they ‘prevent migrants from reaching the borders of the State’140 and impede their ‘access to an asylum procedure’.141 The bases and implications of this development is what the next sections focus on.
3.1 The (qualified) right to leave in the ECHR
Both the right of asylum of States and the right to seek and enjoy asylum of individuals were excluded from the final text of the ECHR. But the instrument did not purport to give effect to the full range of freedoms recognized by the UDHR. It intended simply to ‘take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’.142 The desirability of codifying State practice with regard to asylum has subsequently been noted in numerous Resolutions and Recommendations by the Council of Europe organs,143 on the basis that ‘the right of asylum is an integral part of the common heritage of European traditions’ and that ‘Article 3 [ECHR], by prohibiting inhuman treatment, binds Contracting Parties not to return refugees to a country where their life or freedom would be threatened’.144
In 1961, the Parliamentary Assembly of the Council of Europe proposed a provision on the right of asylum for inclusion in the Second Protocol to the Convention, which was being prepared at the time. The wording was modelled on Article 14 UDHR and on the protection from expulsion and refoulement enshrined in Articles 32 and 33 CSR51.145 But the proposal was of no avail. The Committee of Experts drafting the protocol favoured instead either a separate Convention or a non-binding Resolution on the matter. Then, in 1967, the Committee of Ministers of the Council of Europe urged governments to ‘act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum in their territory’.146 The principles it promulgated were restated in the Declaration on Territorial Asylum adopted in 1977, where the Governments of the countries belonging to the Council of Europe reaffirmed ‘their right to grant asylum’ as a peaceful act inspired by the humanitarian designs of the Refugee Convention.147 Consequently, Article 2 of Protocol 4 ECHR recognizes the right of freedom of movement and the right to leave any country in a similar tenor to that of Article 12 ICCPR, but without incorporating any explicit references to asylum.148
(p.356) While freedom of movement is reserved to those ‘lawfully within the territory’ of a Contracting Party, the right to leave any country belongs to ‘everyone’ without qualification, comprising nationals and non-nationals alike. Interference with the enjoyment of these rights by the public authorities is admissible, but it must be construed narrowly and according to the express terms of the Convention.149
Pursuant to paragraph 3 of Article 2, worded similarly to other limitation clauses in the ECHR,150
[n]o restriction shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ‘ordre public’, for the prevention of crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.
The denial or seizure of a passport, the confiscation of travel documents, or a ban on exit have all been declared to constitute direct interferences with the right to leave.151 Indirect restrictions, such as the imposition of high costs to obtain permission to leave or limitations on the export of foreign currency linked to that right, may fall within the scope of the ECHR as well.152 To be acceptable, they have to meet the requirements of Article 2(3) of Protocol 4. Therefore, interferences must be prescribed by law, in instruments that are generally accessible, clear, and foreseeable in their application.153 They must be necessary to achieve one of the interests enumerated in that provision. In the words of Partsch, ‘circumstances which may fall under one of the categories would not in itself be a legitimate reason for limitation. Rather, it should be necessary to show, in addition, that the restrictions are required in a democratic society …’.154 Their legitimacy and proportionality cannot be presumed and must be measured on a case-by-case basis.155
National authorities must ‘take appropriate care to ensure that any interference with the right to leave one’s country remains justified and proportionate throughout its duration in the individual circumstances of the case’.156 Blanket restrictions, for (p.357) indeterminate reasons or for an indefinite period of time, amount to de facto punishment and are incompatible with the Convention.157 Following the Strasbourg judges, ‘[t]he Court cannot consider such … blanket and indiscriminate measure[s] as being proportionate’; ‘the automatic imposition of such … measure[s] without any regard to the individual circumstances of the person concerned [cannot] be characterised as necessary in a democratic society’158—whether this applies to the imposition of visa requirements by Schengen law will be further explored in Section 5 below.
3.2 Permissible limitations and immigration control: A right to leave but only if pre-authorized?
Article 2(3) of Protocol 4, as seen above, enumerates several legitimate purposes that may justify restrictions on the right to leave. These, as in the case of other Convention provisions, include national security, public order, the prevention of crime, the protection of health or morals, and the protection of the rights and freedoms of others. But those most usually invoked to substantiate pre-border controls are the first two.
National security and public order,159 although allowing considerable latitude to Contracting States, remain subject to proportionality conditions and must be read in conformity with the Convention as entailing ‘all those universally accepted fundamental principles, consistent with respect for human rights, on which a democratic society is based’.160Automatic restrictions, without consideration of the particular case and without striking a ‘fair balance’ between the State interest at stake and the right of the individual to leave, are inadmissible. ‘The restriction may be justified in a given case only if there are clear indications of a genuine public interest which outweighs the individual’s right to freedom of movement’.161 Thus, ‘a general measure preventing almost the entire population of a State from leaving’ cannot be considered ‘necessary to protect [national] security’.162 Whether this applies not only to measures restricting exit, but also to arrangements of pre-entry control implemented abroad remains an open question in the jurisprudence of the Strasbourg Court.
Doubts have, however, been expressed in Stamose as to restrictions introduced to preserve the public order/national security of other States, presumably based on grounds of (p.358) ‘international comity and practical reasons’, to assist them in the enforcement of their immigration rules.163 It is thus questionable that the interests of the State of destination can serve as proper grounding to justify restrictions on the right to leave—and it must be recalled that, as far as protection seekers are concerned, Article 31 CSR51 forbids the penalization of irregular entry.164
Economic welfare considerations have not been listed in Article 2(3) of Protocol 4 ECHR. The Committee of Experts drafting the Protocol was against their inclusion, despite significant insistence by some States.165 According to the Explanatory Report to the Protocol, this is the reason why the notion of ‘public interest’ was inserted in paragraph 4 instead, so that with regard to internal freedom of movement within the territory of a Contracting State restrictions may be imposed ‘in accordance with law and justified by the public interest in a democratic society’. ‘Public interest’ in this context has never been judicially tested.166 Although it would appear to allow a broader basis upon which to justify interference with the rights enshrined in paragraph 1 (possibly including economic terms), it does not affect the rights protected by paragraph 2, and is accordingly inapplicable to our case.
Conversely, the absence of a right of entry has been read expansively by the Strasbourg organs. While the right to leave has been considered to include a right for the individual to choose the country of destination, this has been established to be dependent on the consent of the State of destination concerned to allow entry. The right is taken to imply ‘a right to leave for such a country of the person’s choice to which he may be admitted ’.167 So, if a foreigner wishes to leave for a country different from his own, he will be entitled to do so, but only ‘through legally permissible routes’.168 The formula has been consistently repeated in ECHR jurisprudence, although, as Den Heijer has pointed out, ‘[i]t does not transpire … that the question of whether another country is in fact prepared to allow entry is material as regards applicability of the right to leave’ in actual terms.169 Yet, the issue is arguably not one of applicability—which should be beyond doubt. It is rather one of scope and content, both of which appear to be defined as dependent on concrete options of regular admission.
This restriction, however, is nowhere to be found in the text of Article 2. As noted by Goodwin-Gill and McAdam, it has been ‘interpolated from the gap between the individual’s right to leave and the absence of a correlative duty on a third State to admit [him]’.170 However, reading words that are not there, imposing an additional condition not expressly provided for in Article 2, contravenes well-established norms of treaty interpretation. This ‘would be equivalent not to interpreting the treaty, but (p.359) to reconstructing it’.171 The reading proposed by the Strasbourg organs has the actual effect of narrowing down the scope of beneficiaries of the right to leave to those ‘legally permitted’ to travel—as authorized both by the State of origin and the country of destination—against the express wording of the provision, which, in principle, benefits ‘everyone’. This appears to exceed permitted parameters of treaty interpretation. Indeed, in the words of Fitzmaurice,
violence is done to the terms of a treaty … whenever the existence of a right, obligation, or procedure … not expressly provided for in the treaty or prima facie contemplated by it, and not a necessary consequence of the terms employed, is nevertheless read into it.172
With this, it should not be understood that countries of destination, as addressees of the obligation to respect the right to leave, cannot impose restrictions on exit in accordance with paragraph 3. The right to leave is, in fact, non-absolute. But any limitations they wish to introduce, as for countries of origin, have to be tested against the principles of legality, legitimacy, and proportionality in each particular case. Otherwise, the effectiveness of the right to leave would be seriously impaired. Its independent substance would be made subordinate to some prior authorization of entry, accorded under terms beyond the express conditions of the Convention—presumably inverting the hierarchical relationship between international treaty norms and national law provisions, as contemplated in Article 27 VCLT.
Nonetheless, this is not how the Strasbourg organs appear to apprehend the right to leave in practice. In Xhavara—the first case in which the argument that extraterritorial measures of immigration control may violate the right to leave has been assessed—the Court adopted a particularly deferential approach towards the country of destination.173 The case concerned the operation by Italy of maritime patrols carried out with the authorization of the Albanian government, which led the Kater I Rades to sink, causing the death of 58 persons. The Court considered that the naval blockade in issue, although conducted entirely in Albanian waters and on the high seas, was not aimed at hindering the right to leave Albania, but at preventing irregular entry in Italy. Without entering into considerations on the legality and necessity of the measure, the application was declared incompatible ratione materiae with the Convention, as if the right to leave did not have any bearing on Italy, being the country of final destination. The Court concluded that
The measures at stake do not aim to deprive [the applicants] of their right to leave Albania, but to impede their entry into Italian territory. The second paragraph of Protocol 4 is, therefore, not applicable in the particular case.174
The intention with which measures were implemented, beside the alleged aim pursued, played a major role in the reasoning of the Court, with their concrete effects on the applicants demoted to a second plane.
Xhavara, however, seems to be an isolated pronouncement. The European Commission of Human Rights in a decision of 1959 formulated what has become the overarching principle inspiring Strasbourg jurisprudence in the realm of immigration law,175 establishing that
Under general international law a State has the right, in virtue of its sovereignty, to control the entry and exit of foreigners into and out of its territory. It is true that a right or freedom to enter the territory of States, Members of the Council of Europe, is not, as such, included among the rights and freedoms guaranteed in … the Convention. However, a State which signs and ratifies [it] must be understood as agreeing to restrict the free exercise of its rights under general international law, including its right to control the entry and exit of foreigners, to the extent and within the limits of the obligations which it has accepted under that Convention …176
Along these lines, in the case of Amuur, concerning a group of asylum seekers placed in administrative detention in the international zone of Paris-Orly airport, the Court endorsed the opposite approach to the one adopted in Xhavara, engaging thoroughly in the analysis of the arguments of the applicants that such confinement prevented them from seeking asylum.177 The Court opened its reasoning by recognizing that ‘Contracting States have the undeniable sovereign right to control aliens’ entry into and residence in their territory’. But it emphasized that ‘this right must be exercised in accordance with the provisions of the Convention’.178 Integrating considerations regarding the particular position of the applicants as persons presumably in need of international protection, it went on to establish that it was acceptable for Contracting Parties to prevent irregular immigration, provided that compliance ‘with their international obligations, particularly under the 1951 Geneva Convention and the [ECHR]’ was guaranteed. The Court insisted that ‘States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum-seekers of the protection afforded by these conventions’.179
The argument advanced by the defendant—that had found favour with the Commission—that the applicants could leave the international zone at any time they wished was forcefully rejected by the Court. Taking into account the special significance the right to leave (to seek asylum) had for the applicants in this context, without condemning France directly on this count, the Court underlined that ‘the mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on … the right to leave any country, including one’s own’.180 It further remarked that ‘this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in’.181 The Court recognized in this way the opposability of the right to leave vis-à-vis a country of destination on account of the special consideration that the motives of those who leave in search of international protection deserve, in light of the obligations contracted upon under the CSR51 and the ECHR (taken together).
(p.361) The reasoning of the Court continued and went so far as to ascertain the existence of a ‘right to gain effective access to the procedure for determining refugee status’,182 implicit in the CSR51, that immigration control measures had to preserve.183 The procedural dimension of ‘the right to leave to seek asylum’, to be discussed in Chapter 10, was thus acknowledged.
In Hussun the Court, extending this line of jurisprudence, considered that the claim of some 100 irregular immigrants, collectively expelled from Lampedusa to Libya after having been rescued by the Italian authorities in 2005, was admissible. The applicants alleged they had been summarily returned to Libya before being granted access to an asylum determination procedure, which raised prima facie issues under Articles 2 and 3 ECHR and Article 4 Protocol 4.184 However, due to loss of contact with the applicants and to formal irregularities in their representation, the case was struck out in 2010.185 But two analogous applications, in Hirsi and Sharifi, disclosed similar concerns, offering an opportunity for the Court to shed light on the interpretation of the ECHR in relation to extraterritorial measures of migration control.186
The case of Hirsi concerned the 2009 push-backs orchestrated by Italy, in cooperation with Libya—described in Chapter 6 and analysed in Chapter 8. And despite Xhavara, the Court concluded that Italy could not ‘circumvent its “jurisdiction” under the Convention by describing the events at issue as rescue operations’. The aim and underlying motives of Italy’s actions were irrelevant. ‘Speculation as to the nature and purpose of the intervention of the Italian ships … would not lead … to any other conclusion’.187 The focus instead was on the effects of Italian conduct, on its impact on the rights of applicants, whatever the declared goal of the operation.
Although the Court did not assess the case through the lens of the right to leave, its findings are nevertheless illuminating. The issue was framed as one of collective expulsion construed teleologically to ensure the effet utile of the Convention, so that Article 4 Protocol 4 could apply to the removal of aliens performed outside national territory.188 Relying on the wording and the object of the provision, as confirmed by its drafting history, the Court considered that restricting protection to expulsions from within national borders would exclude from scrutiny ‘a significant component of contemporary migratory patterns’, allowing States to exploit the literal wording of the relevant provisions and thereby escape Convention obligations.189 The consequence would be that migrants caught in extraterritorial pre-entry controls, ‘often risking their lives, and not having managed to reach the borders of the State concerned, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land’ detected upon arrival.190 This would have introduced an arbitrary distinction in the protection afforded by the Convention, distinguishing rights on the basis of migration routes and extraterritoriality, leaving those most exposed to non-entrée policies without coverage. So, the final conclusion was that (p.362) ‘interceptions … the effect of which is to prevent migrants from reaching the borders of the State … constitute an exercise of jurisdiction … which engages the responsibility of the State in question under Article 4 Protocol 4’.191 The opposite would have gone against the very purpose of Article 4 Protocol 4, allowing the very conduct the prohibition of collective expulsion is intended to preclude—inviting States to undertake it outside national domain.192
Drawing on Hirsi, Sharifi went further. The case concerned the implementation of a bilateral readmission treaty between Italy and Greece through summary rejections at the border—to facilitate the execution of Dublin transfers, before the applicants could file an asylum claim.193 The Court averred that the ‘readmissions’ at issue ‘deprive[d] the persons concerned of any effective opportunity to submit an application for international protection and of any other procedural and material guarantee’.194 Instead, protection against (individual and collective) expulsion, the Court continued, entails ‘an examination of the personal circumstances of the applicant, including his protection needs’.195 The same derives from effective remedy standards that Chapter 10 will scrutinize. Suffice to say in this connection that the ‘automatic refoulement’ to which the Italian action amounted,196 immediately transferring applicants to the custody of captains of ferry boats operating the commercial route between Patras and Bari/Ancona/Venice for their direct return to the point of departure, impeded access to the asylum procedure to which the Court implied they were entitled by virtue of Article 3 (combined with 13 and 4 Protocol 4) ECHR.197
The sequence started in Amuur and developed in Hirsi and Sharifi thus allows the conclusion that, implicit in the ECHR, there is an individual entitlement of asylum seekers to have their rights guaranteed on consideration of their particular situation, by means of a procedure that permits assessment of their protection needs—even in extraterritorial situations.
This is what the Grand Chamber confirmed in M.S.S.198 M.S.S., an Afghan national escaping persecution in his country of origin, entered Belgium from Greece to seek asylum. Belgian authorities transferred the applicant under Dublin rules, against the advice of UNHCR and in complete disregard of the situation prevailing in Greece at the material time.199 The Court condemned both Greece and Belgium precisely for their failure to consider the special situation of the applicant.200 In particular, the (p.363) transfer to Greece had exposed him to degrading treatment and to a risk of onward removal to Afghanistan in breach of Articles 3 and 13 ECHR. The deplorable living and detention conditions the applicant endured in Greece constituted a separate violation of his rights under the Convention. In these circumstances, the Court reiterated that migration control measures are ‘acceptable only in order to enable States to prevent unlawful immigration while complying with their international obligations, in particular under the 1951 Geneva Convention … and the [ECHR]’. And, echoing Amuur, it insisted that ‘States’ legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions must not deprive asylum seekers of the protection afforded by these conventions’.201
In reaching its conclusions, the Court took particular regard of the fact that M.S.S. ‘did not, on the face of it, have the profile of an “illegal immigrant”’, but, on the contrary, ‘was a potential asylum seeker’.202 ‘The Court attache[d] considerable importance to the applicant’s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection’.203 In support of this assertion, the Court noted ‘the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the  Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the [CEAS]’.204 The Greek authorities were responsible for M.S.S.’ situation, not only for their actions, but above all ‘because of their inaction’.205 Their failure to take active steps to remedy the situation, adding to the applicant’s vulnerability as an asylum seeker, is what led the Court to find the Greek government at fault. With regard to Belgium, the Court considered that ‘it was in fact up to the Belgian authorities … not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice’.206
Not only did Greece fail to provide for adequate accommodation and other reception conditions, but also the absence of effective guarantees against arbitrary removal placed it in violation of its obligations under the Convention. The Greek authorities ‘ha[d] not taken any steps to communicate with the applicant or reached any decision in his case, offering him no real and adequate opportunity to defend his application for asylum’.207 Although the right to seek and enjoy asylum from persecution does not form part of the Convention, considerations regarding the particular situation of the applicant as an asylum seeker led the Court to establish that there had been a violation of Article 13 ECHR taken together with Article 3 ‘because of the deficiencies in the Greek authorities’ examination of the applicant’s asylum request and the risk he face[d] of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application and without having access to an effective remedy’.208 In turn, Belgium ‘knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek (p.364) authorities’.209 Procedural deficiencies in their own asylum procedure were to blame for the transfer to Greece in these circumstances.210
The emphasis on the procedural dimension of the right to seek international protection enunciated in Amuur, was hence powerfully restated in M.S.S. Although not explicitly promulgated in the ECHR, the Court deduced its existence from a systemic interpretation of the Convention, in light of other international instruments to which Contracting Parties have adhered that were relevant to the particular situation. It was not the first time the Court refused to apply the ECHR ‘in a vacuum’. On the basis of the VCLT, ‘any relevant rules of international law applicable in the relations between the Parties’ had been taken into account in previous decisions.211 The Court has, indeed, recognized on numerous occasions that the ‘Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part’.212 The ‘special character of the Convention as a treaty for the collective enforcement of human rights’ must be considered as well, which requires in addition ‘that its provisions be interpreted and applied so as to make its safeguards practical and effective’.213
On the other hand, the substantive-physical dimension of the right to leave to seek asylum (i.e. the right to escape) was not directly adjudicated upon in M.S.S., as this was not at stake in the specific case. Yet, the Court noted in obiter that ‘[t]he fact that … the applicant had been trying to leave Greece [irregularly] [could not] be held against him’. This was considered to be so, in particular, because ‘the applicant was attempting to find a solution to a situation the Court considere[d] contrary to Article 3 [ECHR]’.214 The link between the right to leave and the right to seek asylum from persecution was thereby established in passing, allowing for the conclusion that departure in order to avoid irreversible harm and seek protection—either through regular or irregular channels—shall be considered a legitimate ground for one to escape his own country, which States of destination ought to take into consideration when implementing migration policies and mechanisms of pre-border control.
The Stuttgart Administrative Court has confirmed this finding by describing the right to leave in Article 2(2) Protocol 4 with regard to protection seekers as ‘the foundation for any individual to escape power structures with which he disagrees’.215 Although the Strasbourg Court could have been more straightforward regarding the nature and implications of this ‘right to escape’ and its significance in the search for protection, the absence of a right to asylum in the ECHR coupled with the robust protection delivered through non-refoulement, may have determined its stance. Nonetheless, through its intersection with Article 3 (and 13) ECHR, it becomes quite clear that the necessity of adapting extraterritorial control measures to the (absolute) entitlement of protection seekers to flee irreversible harm constitutes an inescapable obligation of States to avoid infringements of their duty of non-refoulement—akin to that ensuing from parallel provisions of the ICCPR, as scrutinized above. The result is an enunciation of the right to (p.365) (leave to seek) asylum as a procedural entitlement, emanating directly from the (non-derogable/non-limitable) protection (of everyone) against ill-treatment and actionable both territorially and from abroad.
4. Access to Asylum under EU Law: A Subjective Entitlement to (Seek and be Granted) International Protection
EU law has also embraced the right to asylum of protection seekers, making explicit the entitlements implicit in the 1951 instrument and 1950 Convention systems. Drawing on a commonality of international obligations and constitutional traditions across Member States, the Charter of Fundamental Rights (CFR) has consolidated a right of the individual to international protection, including substantive, procedural, and physical/flight-related facets, as the next sections explain.
4.1 Asylum in Europe: From a right of States to (also) a right of the individual
Until the appearance of the CFR in 2000, Europe was, together with Asia,216 the only region in the world not to have acknowledged a right to asylum in any legal form. Indeed, Article 22(7) of the American Convention on Human Rights had established ‘the right to seek and be granted asylum’ in 1969.217 Likewise, Article 12(3) of the African Charter acknowledged the right of everyone ‘to seek and obtain asylum’ from persecution in 1981.218
The recognition in Europe of such an entitlement occurred, principally, at domestic level. Most States introduced a right to territorial protection in domestic legislation throughout the 1960s and 1970s.219 Certain States provided for asylum also in their national constitutions.220 France, Germany, Italy, Spain and Portugal are included in this group.221 Arguably, this followed the Republican tradition heralded by the 1793 Constitution, fruit of the French Revolution, framing asylum as a duty of the French People towards political exiles.222 As a general trend, all countries of the EU aligned their internal regimes with the 1951 Convention upon ratification, so that asylum (p.366) under domestic law was usually granted where a claimant fulfilled the qualification conditions for refugee status—although the State reserved to itself the sovereign power to grant territorial protection on other grounds as well.
Eventually, this led to the convergence of the grant of territorial asylum under municipal law with the provision of international protection under the terms of the Refugee Convention.223 As a result, conventional status was combined with the issuance of a residence permit. The prerequisites for recognition as a refugee came to coincide with those for permission to stay in the territory as an asylee for as long as the circumstances required. Against this background, some authors have argued that ‘[t]he basic legal rules for territorial asylum were laid down in the Geneva Convention’,224 despite international refugee law not explicitly recognizing a right of sojourn—beyond the protection from refoulement that the 1951 Convention guarantees.225 The practice arguably developed in recognition of the need to meet the requirements of Article 33 CSR51 effectively and in good faith.226
On this basis, Grahl-Madsen observed an ‘undeniable … evolution of international law and State practice in relation to refugee protection [that] allows one to speak of a right of the individual to (be granted) asylum’.227 More recently, Worster concurs and, in light of similar developments in other regions, submits that ‘[t]hese trends suggest an evolving international consensus on opinio juris and State practice that refugees must receive asylum’.228 For him, there is now enough grounding to proclaim the emergence of a new obligation of customary law. The fact that countless States around the world take refugee qualification criteria under the 1951 Convention as the source of a grant of (territorial) asylum and that, in turn, that grant is perceived as obligatory supports this conclusion.229 Specific application is not consistent, but international law does not require complete uniformity of State practice.230 What matters is the generalized commingling of refugee status with asylum, considering the latter as the forcible consequence of the former. Some States render this explicit in their legislation, articulating (p.367) asylum as the individual right of those who qualify as 1951 Convention refugees, including several EU Member States.231
But the assimilation of refugee status with asylum rights is not exclusive to EU Member States. Other organizations have followed suit. The definition in the Schengen Convention, which was taken up in EU border measures and asylum instruments arising during the first phase of harmonization, identified an ‘application for asylum’ as ‘any application submitted … by an alien … with a view to obtaining recognition as a refugee in accordance with the  Geneva Convention’.232 And the same applies to UN General Assembly resolutions, calling on States not to undermine the ‘institution of asylum’ through the removal of ‘refugees’.233 Even the Executive Committee of UNHCR fails to operate a stark division between asylum and refuge.234
This is not to say that asylum is reduced to refugee status as per the terms of the 1951 Convention in international practice, but there appears to be a consensus that, at least, those qualifying as Convention refugees ought to be granted asylum, as a matter of legal entitlement. This does not exhaust ‘the forms of persecution that can result in the granting of asylum, in contrast to the forms of persecution which open the way to refugee status’, to use the words of Kamto.235 Asylum is a much broader institution, which long predates the 1951 Convention system, given special standing as ‘a ruling principle of the State itself’. It is, as Gil-Bazo proposes, consubstantial to democracy and the rule of law; used in a dual function, to protect exiles and thereby preserve the fundamental values of the constitutional order.236
In fact, during the 1980s and 1990s, as refugee flows developed and became more complex and Europe closed its doors to permanent immigration,237 a system of complementary protection emerged in several European States on the basis of their international human rights obligations, flowing inter alia from accession to the ECHR and the ICCPR.238 As Den Heijer proffers, ‘asylum can no longer be meaningfully dissociated from general human rights standards’.239 This process saw the appearance of additional protection statuses, generally also accompanied with a temporary (p.368) authorization to remain in the host country.240 That grant of territorial protection was also understood as compulsory, ‘as a specific modality of asylum’.241 It constituted the only (meaningful) means of compliance with non-refoulement obligations. And outside the sphere of legal bounds, EU Member States have continued to extend territorial protection on other—compassionate, humanitarian, ideological—grounds.242 Indeed, they remain free, as Sovereign, to ‘grant a right of asylum under their national law to a person who is excluded from refugee status …’ and does not fall within the remit of other binding guarantees.243
Hence, while it is clear that the right of asylum of States is broader than the right to asylum of individuals, this does not detract from a finding that a duty to grant territorial protection has crystallized in European practice. The sense of obligatoriness with which asylum is granted to those who qualify for refugee protection or for a complementary status deriving from non-refoulement obligations preluded the harmonization of the Common European Asylum System (CEAS) to which the next section turns.
4.2 The evolution at EU level: Towards Article 18 CFR
At EU level, the humanitarian crises of Bosnia & Herzegovina and Kosovo gave a decisive impulse to the harmonization process inchoate under the Maastricht Treaty in 1993.244 The Tampere Conclusions, adopted by the European Council in October 1999,245 resolved on the creation of a CEAS as part of the AFSJ that the Union was committed to setting up.246 The idea was to proceed gradually. Full harmonization would not be achieved overnight.247 In the short term, ‘minimum standards’ had to be adopted with regard to reception and qualification conditions, subsidiary protection, the allocation of responsibility for examining asylum applications, and status determination procedures. The final objective, in the long run, is to establish ‘a common asylum procedure and a uniform status for those who are granted asylum valid throughout the Union’.248
The first stage of the system was (p.369) completed in December 2005.249 The negotiation of the second phase instruments took place under the Stockholm Programme. Recast instruments were adopted in 2011 and 2013,250 while a third phase of revision is currently underway.251
Although EU law does not expressly recognize either a right to leave,252 or a right to flee serious danger, all CEAS instruments seem to refer to the composite ‘right to leave to seek asylum’ implicitly in their Preambles. All of them begin by stating that ‘[a] common policy on asylum … is a constituent part of the European Union’s objective of progressively establishing an [AFSJ] open to those who forced by circumstances, legitimately seek protection in the Community’.253 This, in turn, reproduces the third and thirteenth Tampere Conclusions, where the Union recognized that
3. … [within the AFSJ] freedom should not, however, be regarded as the exclusive preserve of the Union’s own citizens. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. This in turn requires the Union to develop common policies on asylum and immigration … These common policies must be based on principles which are both clear to our own citizens and also offer guarantees to those who seek protection in or access to the European Union.
13. The European Council reaffirms the importance the Union and Member States attach to absolute respect of the right to seek asylum (emphasis added).
(p.370) The Preambles also ascertain that the asylum system the Union is gradually developing is ‘based on the full and inclusive application of the  Geneva Convention … thus maintaining the principle of non-refoulement’.254 Overall, the CEAS is predicated on the absolute respect for fundamental rights, as recognized ‘in particular by the Charter of Fundamental Rights’. One key final goal is precisely to ‘ensure full observance of the right to asylum guaranteed by Article 18 [CFR]’.255
The relevance of these statements in the interpretation and application of European asylum law has been repeatedly emphasized by the CJEU.256 The Court has also reiterated that ‘the Member States must not only interpret their national law in a manner consistent with [EU] law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the [EU] legal order or with the other general principles of [EU] law’.257
The importance in this framework of Article 18 of the Charter cannot be overstated. The provision enshrines the ‘right to asylum’, establishing that
The right to asylum shall be guaranteed with due respect for the rules of the  Geneva Convention … and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union.
Its wording was one of the most debated during the framers’ discussions. The inclusion of a provision on asylum in the Charter was both ‘difficult and necessary’.258 It was initially rejected by the Commission, but later reintroduced for its fundamental significance.259 It was grouped together with the prohibition of collective expulsion, at first, but then placed in a separate clause.260 Yet, the Presidium explanations accompanying the text, by merely referring to the Treaties, are not particularly enlightening as to its meaning.261
Article 78 TFEU requires the Union to ‘develop a [CEAS] with a view to offering appropriate status to any [TCN] requiring international protection and ensuring compliance with the principle of non-refoulement’. The provision adds that the policy ‘must (p.371) be in accordance with the  Geneva Convention … and other relevant treaties’. According to paragraph 2, the system should comprise a ‘uniform status of asylum’ and a ‘uniform status of subsidiary protection’ for those who, ‘without obtaining European asylum, are in need of international protection’. In addition, a series of common standards on reception and procedural conditions must be adopted. Partnership and cooperation with third countries for the purpose of managing refugee flows and a common system of temporary protection for cases of mass influx or emergency situations are also contemplated.262 But the provision fails to provide a precise definition of the content of these arrangements, which simply confer competence on the Union to act, without directly vesting rights in the individual. This is why a careful examination of source material is needed to elucidate the scope of Article 18 CFR.
4.3 The right to asylum in the Charter of Fundamental Rights
Commentators are profoundly divided as to the precise meaning of the asylum provision in light of the reference to the Lisbon Treaty. Some authors see in Article 18 CFR a full-fledged right to be granted asylum,263 while others reduce its content to the right to be recognized as a refugee already established in the 1951 Convention, without Article 18 adding any new substance264—following the Preambular statement that the Charter ‘reaffirms’ existing rights.265 Intermediate positions submit that the right to seek asylum in its procedural facet is implicit in Article 18,266 while still others—as subsequently recognized by the CJEU itself—emphasize that the right to asylum forms part of the general principles of EU law.267
The Court of Justice was asked to adjudicate the scope of Article 18 in relation to Dublin transfers in the case of N.S. and M.E,268 and subsequently also in Halaf.269 But in both instances it was considered unnecessary to elucidate its content. Both cases concerned the removal of asylum seekers to Greece from another EU Member State and the main question was to clarify the meaning of the so-called ‘sovereignty clause’ (Article 3(2) of the Dublin Regulation) in light of possible violations of asylum-seeker rights under EU law.
N.S. inquired into whether transferring countries are obliged to assess compliance with fundamental rights by the country responsible for the examination of the asylum application under Dublin rules before proceeding with the removal. The Court opened its reasoning by underscoring the importance of the ‘principle of mutual confidence’ underlying the entire CEAS and the AFSJ.270 In the Court’s view, it is on the basis of that confidence that the Dublin system was set up ‘in order to rationalise the treatment (p.372) of asylum claims … avoid blockages … increase legal certainty … [and] avoid forum shopping’. The main objective pursued in this context is ‘to speed up the handling of claims in the interests both of asylum seekers and the participating Member States’.271 And considering that all Member States are bound by EU law to observe fundamental rights,272 the Court understood that ‘it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR’.273 This ‘presumption of compliance’ was described as ‘the raison d’être of the European Union’.274
In practice, though, there can be ‘major operational problems in a given Member State’ provoking a ‘substantial risk’ that asylum seekers transferred there will not be treated in a manner compatible with their fundamental rights.275 So, referring to M.S.S., the Court accepted that where ‘substantial grounds’ have been shown for believing that there are ‘systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of article 4 of the Charter … the transfer would be incompatible with that provision’.276
Considering the situation in Greece and the Strasbourg ruling in M.S.S.,277 the Luxembourg Court accepted that transfers must be suspended ‘where [Member States] cannot be unaware’ of the fact that systemic deficiencies in other Member States ‘amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’.278 When information of this sort is widely available in the public domain, originating from reliable sources, it cannot be ignored.279 Therefore, the ‘presumption of compliance’ can be rebutted in the specific case. The application of the Dublin Regulation on the basis of a ‘conclusive presumption that the asylum seeker’s fundamental rights will be observed’ is incompatible with the duty of the Member States to interpret secondary legislation in light of fundamental rights. It must thus be possible to reverse the presumption and mere ratification of conventions or EU membership per se cannot result in the automatic assumption that a Dublin transfer is safe.280 If the presumption is displaced, the Member State with which the request has been lodged ‘must’ ultimately assume responsibility.281
Leaving aside concerns about the incompatibility of the CJEU’s interpretation of ‘systemic deficiencies’ (as a legal threshold, instead of as a mere descriptor of reality) with the Soering test and the explicit rejection by Strasbourg of Luxembourg’s approach (as discussed in Chapter 7),282 what matters is that the question about the extent of the Charter’s right to asylum was left unresolved. The Court simply stated that Article (p.373) 18 CFR ‘d[id] not lead to a different answer’ than that delivered under Article 4 CFR, insisting in Halaf that ‘there is no need to answer the … question’.283
Implicitly, the finding endorses the compatibility, in principle, of ‘safe third country’ clauses with Article 18 in relation to Dublin transfers.284 In this specific framework, the content of Article 18 encompasses the protection against refoulement contained in Article 4 of the Charter. But, without an explicit elaboration, it is not possible to infer a reduction of the substance of Article 18 CFR to that of Article 4 CFR in general terms. At face value, the provisions are not coextensive. Taking them as such would exhaust the content of Article 18 and make it redundant, going against the principle of effectiveness recognized in EU law. Yet, ultimately, as the Court asserted in a related case, ‘not only … the effectiveness of the [asylum] system but also [that of] the protection afforded [to] applicants under that system’ must be ensured.285 Therefore, a full analysis of the provision becomes necessary.
4.3.1 Personal scope of application
The first point to clarify is whether Article 18 CFR, lacking a specific subject, enshrines a sovereign prerogative of the State or a right of the individual to asylum. In principle, its insertion in an instrument that intends to ‘strengthen the protection of fundamental rights in the light of changes in society … by making those rights more visible’ is indicative of the latter.286 The fact that the Charter seeks to ‘reaffirm’ individual rights as they result ‘from the constitutional traditions and international obligations common to the Member States’, flowing from the ECHR and the 1951 Convention, among others texts, points in the same direction.287 The travaux préparatoires confirm that, from the outset, the drafters intended to codify an individual liberty.288 Disagreements focused on other points. Some delegates favoured a right of universal application, whereas others wanted to restrict the scope of beneficiaries to TCNs alone. But the nature of the provision as a subjective entitlement was never in dispute.289
The first drafts submitted to the Presidium, in an attempt to ensure consistency with the Protocol on asylum for nationals of Member States of the European Union,290 expressly limited the personal scope of application of Article 18 CFR to ‘persons who are not nationals of the Union’ or to ‘nationals of third countries’.291 These proposals were met with the disapproval of several delegations, human rights organizations, and other qualified observers, including UNHCR.292 The Presidium advocated a compromise formula, where the subject of the right would disappear from the wording of the provision.293 This was received positively by the members of the Convention and was thus (p.374) adopted in the final version of the text.294 However, the Explanations to the Charter specify that the article should be interpreted as being ‘in line with the Protocol on Asylum annexed to the Treaties’, which de facto excludes EU citizens from the personal scope of application of the provision, by making their asylum claims inadmissible by default. This is also what transpires from the Asylum Protocol itself and is consistent with the approach adopted by the EU legislator in the CEAS instruments.295
The Protocol was first proposed to the 1996 Inter-Governmental Convention that negotiated the Treaty of Amsterdam by the Spanish government.296 The objective was to eradicate abuse of refugee proceedings by suspected Basque terrorists applying for asylum in other Member States.297 The idea was to introduce a provision in the body of the EC Treaty ‘with direct effect which all the authorities in a Member State, whatever their character, [would] have to respect’,298 so that ‘every Union citizen [would], for all legal purposes in connection with the granting of refugee status and asylum matters, be regarded as a national of the Member State to which he or she makes application for asylum’.299 It was considered illogical ‘that nationals of one Member State need[ed] to ask for asylum in another Member State’, the reason being that ‘the Member States of the European Union are all States which observe the rule of law, democracy and human rights’.300 Asylum for EU citizens appeared as ‘completely unnecessary’ and ‘inconsistent with the close cooperation which Member States try to develop’.301 Although the conference did not accept the drastic approach of the Spanish proposal, its spirit permeates the final text of the Protocol. As a result, only in very limited circumstances will a Member State consider an asylum application by a EU national as admissible.302
The incompatibility of this approach with the principle of non-discrimination among refugees ‘as to country of origin’, specifically recognized in Article 3 of the Refugee Convention, has been heavily criticized.303 An indirect exclusion from refugee status founded on the nationality of the refugee leads, in fact, to a reduction of the scope of application of the instrument in disregard of express exclusion clauses and in direct contravention of the prohibition contained in Article 42 CSR51. Indeed, Article 3 is so essential to the overall object and purpose of the Convention that it admits no limitations, derogations, or reservations of any kind.304 The approach also ignores ‘obligations under [other] instruments of international law … including in (p.375) particular those that [specifically] prohibit discrimination’, which are equally binding on Member States.305
On the other hand, the very fact that the Asylum Protocol regulates the question implicitly acknowledges the universality of the right by encompassing, albeit in restrained form, EU nationals as potential beneficiaries of international protection. Despite the (unlawful) nationality division introduced by the Asylum Protocol, it is clear that, in principle, anyone (including EU citizens) can invoke Article 18 CFR. The inadmissibility/unfoundedness limitation affects the exercise of the right, not its titularity. As Den Heijer has noted, this does not mean Article 18 CFR brings EU citizens within the remit of CEAS legislation, but obliges Member States to take account of the Asylum Protocol’s wording when applying the Charter in their domestic systems. The Protocol does bring the right to asylum of EU citizens within the remit of primary law.306 As a result, it should be concluded that the omitted subject of the right to asylum, when reading Article 18 CFR on account of the Protocol and in light of ‘the constitutional traditions and international obligations common to the Member States’,307 encloses everyone.308
4.3.2 Material scope of application
The most controversial point in relation to Article 18 CFR is its material ambit. The text provides that asylum shall be ‘guaranteed with due respect’ for both the rules of the Refugee Convention and the EU Treaties. The verb ‘guarantee’ appears a fortiori to impose positive obligations on the Union and its Member States309—the former being in charge of the adoption of the necessary rules for the completion of the CEAS and the latter required to implement them in good faith.310 Carlier has argued that the formula ‘with due respect for’ does not restrict the content of Article 18 to that of the Refugee Convention—‘with due respect for’ is not synonymous with ‘in application of’.311 The wording rather suggests an obligation that the rules of the Refugee Convention be respected,312 but does not require compliance with the 1951 to the exclusion of any other instrument of international law. The travaux préparatoires exhibit a clear resistance to reserving asylum only to persons covered by the 1951 Convention.313 Other texts of IHRL alongside national constitutions and domestic legislation have actually enlarged the terms of conventional refuge, which the Charter consolidates and Member States must presumably also observe.314
The reference to the TFEU should not have a limitative effect either. Article 78 reiterates the need for the CEAS to comply with the 1951 Convention, without reducing (p.376) EU action to the strict implementation of that instrument. The fact that the Union is free to provide more extensive protection has been acknowledged in the Charter itself.315 EU law, as an independent system, may expand human rights protection within its own scope of application, particularly on account of ‘the constitutional traditions and international obligations common to the Member States’.316 By referring to ‘other relevant treaties’, Article 78 TFEU suggests that EU asylum policy must incorporate other elements as well. References therein to subsidiary protection reinforce this understanding.317 And the fact that the prohibition of refoulement is contained in a separate provision evidences the autonomous nature of the right to asylum and the value it adds to the protection ensuing from Article 19 CFR—impeding a reduction of Article 18 CFR to Article 33 CSR51 or Article 3 ECHR.
Arguments drawing on a hierarchical subordination of Article 18 CFR to Article 78 TFEU,318 whereby Article 18 would not add anything to what Article 78 provides for, are also unjustified. Although Article 18 CFR is arguably ‘based on’ Article 78 TFEU according to the Presidium explanations, Article 78 TFEU does not appear to constitute the legal basis of Article 18 of the Charter. They are both placed at the same normative level. Indeed, after the Lisbon Treaty entered into force, the instruments in which these provisions are contained have ‘the same legal value’.319 Fundamental rights constitute, in addition, general principles of EU law in light of which the Treaties must be construed.320 Therefore, although the spirit of Article 78 TFEU may have inspired the framers of the Charter to draft the asylum provision, there appears to be no structural submission of Article 18 CFR to Article 78 of the Treaty. On the contrary, both provisions should be regarded as complementary and be taken together.321 Arguably, Article 18 translates the individual right to asylum that is implicit in Article 78 TFEU, while Article 78 TFEU provides the legal basis for the rules of secondary legislation necessary to develop the system through which Article 18 CFR is to be realized.322
This is precisely how the Administrative Court of Sofia responded on receipt of the CJEU decision in Halaf. It understood that
The right to asylum guaranteed under Article 18 of the Charter and the [TFEU] includes the right of every [TCN] that the Member State where he has applied for asylum fulfil its obligation of achieving the purpose of Article 78(1) TFEU ‘to offer appropriate status to any [TCN] in need of international protection’.323
Building on the above, Teitgen-Colly has affirmed that the integration in the CEAS—by virtue of Article 78 TFEU—of international protection statuses whose purpose is, precisely, to provide for territorial protection within the territory of the EU Member States ‘confirms that the system entails a right to territorial asylum for its beneficiaries’.324 Gil-Bazo has argued, along these lines, that the right to seek and obtain asylum has already been codified in secondary legislation.325
The main objective of the Qualification Directive is, indeed, ‘to lay down standards for the qualification of [TCNs] … as beneficiaries of international protection … and for the content of the protection granted’.326 For the purposes of the Directive, ‘international protection’ means refugee status and subsidiary protection.327 In turn, ‘refugee status’ means the recognition by a Member State of a TCN as a refugee, whereas ‘subsidiary protection status’ means the recognition by a Member State of a TCN as a person eligible for subsidiary protection.328 Under Articles 13 and 18 QD, Member States ‘shall grant’ the relevant status to the individual meeting the qualification standards defined therein.329 No margin of appreciation is left in that regard. The obligation has been acknowledged by the ECJ itself, noting in Abdulla that ‘[u]nder Article 13 of the Directive, the Member State is required to grant refugee status to the applicant if he qualifies …’.330 The same applies, from M’Bodj, to Article 18 QD, according to which ‘Member States are to grant that status to a [TCN] eligible for subsidiary protection’.331
The content of these statuses has been defined in Articles 20 to 35 QD and is ‘without prejudice to the rights laid down in the  Geneva Convention’.332 The final goal is to offer appropriate protection to any TCN requiring asylum—including, but not limited to, non-refoulement.333 And among the rights attached to each of the statuses there is a right to a residence permit, which ‘Member States shall issue’.334 To avoid misconstructions, the instrument defines ‘residence permit’ as the ‘authorisation issued by the authorities of a Member State, in the form provided for under that State’s law, allowing a [TCN] … to reside on its territory’.335 That ‘obligation imposed by Article 24(1) of [the] Directive … to issue … a residence permit’ has been expressly recognized in H.T.336 Exceptionally, Member States may refuse to issue the permit on (p.378) ‘compelling reasons of national security or public order’, provided that they are ‘not prohibited [from doing so] by international [non-refoulement] obligations’.337 Thus, it appears that, although not completely unconditional, a right to be granted territorial protection exists under EU law.338 The obligation to issue a permit ‘as soon as possible after international protection has been granted’ and for a period of validity of ‘at least 3 years’ follows directly from the Directive,339 reinforcing the understanding that the EU right to asylum entails a subjective claim to territorial protection—as a matter of legal entitlement—that Member States are obliged to fulfil. ‘Member States exercise no discretion in that respect’.340
The fact that it would not be accorded instantly to everyone requesting it,341 but only to those meeting the qualification criteria, without falling within any of the exclusion clauses contemplated in the Directive, does not preclude this interpretation. Many other rights in the Charter have been conceived as non-automatic.342 This is why the claim by Battjes that ‘the provision does not impose an obligation to “grant asylum” ’ or that a distinction must be drawn ‘between the refugee’s claim to asylum, which the Charter recognizes, and the obligation to grant asylum, which the Charter does not impose’ cannot be accepted.343 That a claim may not be honoured in a particular case will not result from a discretionary decision of the Member State concerned, but from the objective application of the relevant provisions in the CEAS instruments, construed and applied in conformity with fundamental rights—similarly to what happens with Schengen visas or Local Border Traffic permits.344
This is the approach followed by the Court in analogous situations. For instance, in the case of Chakroun, the Court interpreted Article 4(1) of the Family Reunification Directive (FRD)345 as requiring the Member States to authorize the entry and residence of family members of TCNs in accordance with the conditions laid down in the Directive,346 which ‘impose[d] precise positive obligations, with corresponding clearly defined individual rights, on the Member States’.347 The wording of Article 4(1) FRD (p.379) is very similar to that of Articles 13 and 18 QD. Both introduce non-automatic obligations on the Member States, whose application depends on the individual fulfilling the particular criteria contemplated in the relevant instrument. With regard to Article 4(1) FRD, the Court considered that, nonetheless, the provision required Member States ‘in the cases determined by the Directive, to authorize family reunification of certain members of the sponsor’s family, without being left a margin of appreciation’.348 This meant that, when the conditions specified in the Directive are met, Member States cannot refuse to recognize the existence of the right in the particular case. The faculty provided for in Article 7(1) FRD, according to which the right of the sponsor could be made conditional upon him having suitable accommodation, sickness insurance, and stable and regular resources to provide for himself and the members of his family, was to be construed narrowly. The Luxembourg judges established that, ‘[s]ince authorisation of family reunification is the general rule … the margin for manoeuvre which the Member States are recognized as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification and the effectiveness thereof’.349 The importance of ‘the obligation to protect the family, and respect family life enshrined in many instruments of international law’ was taken into account in arriving at this conclusion. The Directive had, indeed, to be interpreted ‘in the light of the fundamental rights … the [EU] recognises’.350 The reasoning was imported by the Court from its case law on free movement of EU citizens and extended, by analogy, to the interpretation and application of TCN rights351. Also in those cases, the need to fulfil certain conditions did not negate the existence and the character of the right concerned as an individual legal entitlement.
Leaving this understanding of the right to asylum in the Charter as a right to be granted territorial protection aside, there are further aspects of Article 18 that need also be clarified.
126.96.36.199 The right to access an asylum procedure
Most writers accept that the ‘right to seek asylum’, as per Article 14 UDHR, makes up part of the substance of Article 18. This is not to say that the right to asylum only entails a procedural claim—attempts at restricting Article 18 to a mere entitlement to ‘request’ protection were defeated during negotiations.352 But, if the earlier analysis of IHRL instruments is correct, the procedural dimension of the right to asylum should be considered to inhere in Article 18 as well—alongside the material obligation to grant it when the conditions are met.353
As elaborated in Chapter 10, this procedural facet also follows from Article 47 of the Charter and has already been developed in the Procedures Directive.354 The latter instrument literally stipulates that ‘Member States shall ensure that each adult with legal capacity has the right to make an application for international protection on his/her own behalf’.355 An ‘application for international protection’ is, in turn, defined as (p.380) ‘a request made by a [TCN] … who can be understood to seek refugee status or subsidiary protection status’.356 And the case law of the Luxembourg Court on the matter corroborates that the key objective of the Directive is precisely to ‘ensure that there is effective access to asylum procedures’.357
The procedural facet of the right to asylum has also been recognized in the Dublin Regulation. One of the explicit goals of the instrument is, again, ‘to guarantee effective access to the procedures for granting international protection’.358 As a result, ‘Member States shall examine any application by a third-country national … who applies on the territory of any one of them …’.359 The CJEU’s jurisprudence has implicitly upheld a reading of Article 18 CFR in this procedural sense through its endorsement of M.S.S. in its decision on N.S.
On this occasion, the Court noted that ‘there existed in Greece, at the time of the transfer of the applicant M.S.S., a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers’, in fact, ‘he had no guarantee that his asylum application would be seriously examined by the Greek authorities’.360 The point in issue in both cases was precisely the lack of any real possibility of the applicants concerned having their asylum applications thoroughly assessed. Therefore, as the law stands, the fact that Article 18 of the Charter entails a right to seek asylum as a right to access the relevant status determination procedure should be uncontroversial.
The final point on the elucidation of the scope of application of Article 18 CFR regards the delimitation of its territorial reach.
4.3.3 Territorial scope of application
The Dublin Regulation, the Procedures Directive, and the Reception Directive explicitly reduce their scope of application ratione loci to ‘applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States’. Each of these instruments specifies that they ‘shall not apply to requests for diplomatic or territorial asylum submitted to representations of Member States [abroad]’.361 By contrast, the Qualification Directive is silent on this point.
During the debates that led to the adoption of the now repealed 2004 version of the Directive the issue was discussed at some length. The 2001 Commission proposal included a provision defining the geographical scope of the instrument in territorial terms.362 But a number of delegations observed that ‘the place where applicants lodge their application [was] a matter for the Directive on asylum procedures’, establishing that ‘[a]nyway, the scope of the present Directive must be consistent with the one to be established in the aforementioned Directive on procedures’.363 Article 3 of the Commission Proposal was initially amended.364 But at a later stage in the negotiations (p.381) it disappeared without any explanation being provided.365 On consideration of these circumstances, Battjes has argued that it should be understood that ‘the restrictions on the territorial scope that apply to the Procedures Directive apply to the Qualification Directive as well’, founding his understanding on the fact that ‘the various pieces of legislation do form a “system” ’.366
Accepting the plausibility of this reading regarding the extent of the Qualification Directive,367 it should, however, be noted that Article 18 CFR itself is not subject to any express limitations on its territorial scope of application. It is suggested that the reasoning developed in Chapter 8 with regard to the extraterritorial applicability of Articles 4 and 19 of the Charter is relevant in this context too.368
The CEAS instruments adopted so far should be construed as components of a ‘common policy’ the Union ‘shall develop’, according to the explicit wording of Article 78(1) TFEU. They do implement the mandate of the EU legislator to adopt measures comprising a uniform status of international protection, common procedures, common reception standards, and common criteria to determine responsibility for asylum applications.369 But they do not regulate every detail. For example, they do not cover the management of ‘inflows’ of protection seekers (coming from abroad), as Article 78(2)(g) TFEU stipulates—which, by definition, have an extraterritorial nature. Existing measures are not, therefore, coextensive with Article 18 CFR and do not cover all aspects of its substance. They harmonize some (maybe even most) of the elements of the general right that Article 18 recognizes—which does not mean, contrariwise, that points yet to be harmonized automatically fall outside the remit of the CFR.370 So, their territorial focus should not be taken as capable of limiting the extraterritorial applicability of the (broader) right to seek international protection inherent in the Refugee Convention that Article 18 CFR makes explicit.
The opposite would amount to reducing the right to (seek and obtain) asylum in a manner that ‘would ignore [its] specific object … depriving it of any useful effect’.371 Indeed, if the right to seek ‘in other countries’ asylum from persecution is to produce any useful effect, it must be construed a fortiori as capable of extraterritorial force. The fact that current Article 78(2)(g) TFEU creates a new legal basis, vesting powers in the Union to establish ‘partnership[s] and cooperation with third countries for the purpose of managing inflows of people applying for asylum or temporary protection’, reveals that there is, in fact, an external—and per se extraterritorial—dimension of the CEAS.372 This dimension, like its internal counterpart, remains subject to compliance with ‘the  Geneva Convention … and other relevant treaties’, pursuant to both Article 78(1) TFEU and Article 18 of the Charter.373
(p.382) The constitutional structure and hierarchy of sources of EU law also pleads in favour of according primacy to primary law provisions over those of secondary law. It is, therefore, more proper to assume that the normative content of the right to asylum contained in the Charter does not derive from CEAS instruments, but the reverse, their purpose being to ensure the ‘full respect’/‘full observance’ and ‘to promote the application’ of Article 18 as their Preambles stipulate.374 Like in Mangold or Viamex, provisions in CEAS acts regarding asylum should be taken as specific manifestations of the larger right/principle enshrined in Article 18 CFR.375
The jurisprudence of the Luxembourg Court offers concrete examples of rules of primary law whose substance has been considered to be larger than that of the instruments of secondary legislation adopted to give them effect. Carpenter is one such example.376 Mr Carpenter was a British service provider established in Britain who travelled occasionally abroad for his business—selling advertising space to advertisers settled in other Member States. He was married to a TCN who had overstayed her leave to remain in the UK. Deportation proceedings were initiated against Mrs Carpenter on this ground. It was argued, however, that her removal would impinge upon Mr Carpenter’s rights under current Article 56 TFEU to provide services across the Union.377 She was taking care of his children and it was accepted that ‘she could be indirectly responsible for the increased success of her husband’s business’.378
Family rights of service providers who established themselves in a Member State different from their own were governed by Directive 73/148/EEC379—now repealed by the Citizenship Directive.380 Yet, in the absence of cross-border movement, Mr Carpenter was not covered by its explicit scope of application. The Court considered that ‘[s]ince the Directive [did] not govern the right of residence of members of the family of a provider of services in his Member State of origin, the answer to the question referred to the Court therefore depend[ed] on whether … a right of residence in favour of the spouse [could] be inferred from the principles or other rules of Community law’. The fact that the Directive did not apply to Mr Carpenter’s case (due precisely to territorial/cross-border considerations) was no bar to the direct application of Article 56 of the Treaty instead. Directive 73/148/EEC did not exhaust the broader substance of that provision. On the contrary, it was relied upon as evidence that ‘the Community legislature ha[d] recognised the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty’.381 Article 56, (p.383) read in conjunction with Mr Carpenter’s ‘right to respect for his family life within the meaning of Article 8 [ECHR], which is among the fundamental rights which … are protected in Community law’, was considered to prevent his wife’s deportation and to preclude the refusal to issue her a residence permit.382 The general principle of protection of family life, as partly codified in the Directive, was considered instrumental to maintaining the effet utile of primary law.
This approach has also been adopted with regard to the rights attached to EU citizenship.383 In the case of Baumbast, concerning a German ex-worker settled with his family in the UK, the Court recognized the possibility of relying on the EU citizenship provisions of the Treaty, regardless of the applicability of the instruments of secondary legislation adopted to give them effect.384 In particular, the right to reside freely within the territory of the Member States contained in Article 21(1) TFEU—formerly Article 18(1) EC—was considered to be ‘conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty’.385 The fact that the provision is ‘subject to the limitations and conditions laid down by the EC Treaty and by the measures contained to give it effect’386 was no obstacle to the recognition of both its separate content and its useful effect. The Court underlined that ‘the application of the limitations and conditions acknowledged in Article [21(1) TFEU] in respect of the exercise of that right of residence is subject to judicial review’ and did not prevent the provision ‘from conferring on individuals rights which are enforceable by them and which the national courts must protect’.387 The limitations and conditions at stake had an impact on the ‘exercise’ of the right recognized in Article 21 of the Treaty, but did not limit the scope of its substance. Quite the opposite, the Court established that, when implemented, ‘those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality’.388
Baumbast marked the starting point of a long line of cases in which primary law rules on EU citizenship have been decoupled from the secondary law instruments adopted to give them effect, thereby reaffirming the substantive independence of Treaty rights.389 Post-Zambrano, there may now be an incipient retreat, specially regarding the potential of Treaty provisions to sideline explicit restrictions in the Citizenship Directive.390 But these concern conditions on the ‘exercise’ of Treaty rights in particular circumstances, not the extent or the existence of the right itself. The substance of entitlements is one thing; the criteria for their enactment is quite another. The scope of possible limitations does not define the scope of the rights they concern—this is why (p.384) the very structure of the Charter separates rights from conceivable restrictions, subjecting the latter to strict proportionality requirements in Article 52 CFR.391
Considering that the Court has already had recourse to its jurisprudence on freedom of movement in cases regarding TCNs,392 there appears to be no impediment to applying the Carpenter/Baumbast reasoning by analogy to Article 18 CFR. If this technique is correct, the geographic limitations on the applicability of CEAS instruments of secondary law should leave the ambit of the primordial right to asylum untouched. As happens with Articles 4 and 19 of the Charter, a ‘functional’ approach to the determination of the scope of application of Article 18 is justified on the basis of Articles 6 TEU and 51 CFR.393 So, all areas of activity of the Union and its Member States falling within the scope of application of EU law, wherever they may be implemented, should take account of the EU right to seek and obtain international protection enshrined in primary law. That CEAS instruments be of little help in the specific regulation of extraterritorial situations provides no excuse not to comply with Charter commands, including those ensuing from Article 18 CFR, whenever/wherever EU law applies.
Indeed, what matters is whether a particular situation is ‘EU relevant’ and falls to be governed by EU law. Territoriality and jurisdiction are not decisive in determining the applicability of EU rules. The extraterritorial reach of the Charter and of the refoulement prohibitions contained therein has been established in the preceding Chapter. If Articles 4 and 19 CFR are capable of extraterritorial application, there is a priori no reason to exclude the same effect with regard to Article 18 of the same instrument. Paraphrasing the Strasbourg Court, ‘[t]o conclude otherwise, and to afford [the right to asylum] a strictly territorial scope, would result in a discrepancy between the scope of application of the [Charter] as such and that of [Article 18 CFR], which would go against the principle [of coherence]’, demanding that the Charter ‘be interpreted as a whole’.394 Consequently, provided that Member States ‘are implementing Union law’ or that the action/omission concerned is attributable to the EU itself, the Charter (including Article 18) becomes relevant.395 Because ‘situations cannot exist which are covered … by [EU] law without … fundamental rights being applicable’, echoing Fransson, ‘[t]he applicability of [EU] law entails applicability of the fundamental rights guaranteed by the Charter’.396
5. The Implications of the Right to Asylum for Extraterritorial Entry Controls
On the basis of the preceding analysis, measures of pre-entry control should be designed and applied in a way that conforms with the right to asylum as enshrined in Article 18 of the Charter. As acknowledged by the Council of Ministers itself, border management measures must ‘fully respect human rights, the protection of persons in need of international protection and the principle of non-refoulement’.397 The next sections will thus explore the situation under current rules and assess the extent to which (p.385) the operationalization of the right to asylum has been undertaken in fact to guarantee effective compliance with Article 18 CFR.
5.1 Pre-border regulations and Article 18 CFR: The status quo
The border legislation considered here takes, at least, formal heed of the right to asylum, as comprising a right to leave as well as a right to seek (and be granted) international protection.398 As elaborated in Part I of this work, the Schengen Borders Code (SBC) proposes to ‘respect fundamental rights and observe the principles recognised in particular by the Charter of Fundamental Rights’.399 Article 4 SBC further establishes that it should be applied ‘in full compliance with … the  Geneva Convention [and] obligations related to access to international protection …’. The Community Code on Visas expresses a similar understanding.400 And the same can be said of carrier sanctions and ILOs legislation.401 The introduction into national law by EU Member States of carrier sanctions is ‘subject to the obligations resulting from their accession to the  Geneva Convention’,402 and is ‘without prejudice to Member States’ obligations in cases where a [TCN] seeks international protection’.403 Frontex legislation prolongs this perspective. The EBCG Regulation provides for the Agency to ‘guarantee the protection of fundamental rights in the performance of its tasks … in accordance with … the Charter … the 1951 Convention … and obligations related to access to international protection’, with the Maritime Surveillance Regulation rehearsing these terms in the context of sea operations coordinated by Frontex.404
However, none of these instruments makes detailed provision for the observance of the right to asylum in practice. As already examined in Chapters 3 to 6, the SBC (p.386) establishes that entry ‘may be authorised’ by Member States so as to honour their ‘international obligations’.405 The Code acknowledges that ‘special provisions concerning the right of asylum and to international protection’ may be necessary for the purpose.406 But it then makes no specific arrangements in this respect.
The general rule is that visas must be obtained for legal admission.407De facto waivers that may be granted by ILOs and commercial carriers do not legalize entry at the pre-entry stage. This needs to be ratified by the relevant authorities at a border-crossing point. However, no concrete procedure has been codified to this effect either. Whether, when, and how refugees and asylum seekers may be exempt from visas by these actors has been left up to their subjective appreciation in each particular case.
With regard to Frontex, since the operational plans of the joint operations it coordinates remain secret, it is impossible to determine whether any measures are being taken to ensure effective compliance with Article 18 CFR. From the evidence available it appears that its activities do not properly differentiate between asylum seekers and other migrants at the pre-entry stage. Measures adopted to prevent unauthorized entries seem to be applied in a largely indiscriminate way. The Agency has claimed to ‘ignore’ whether there are persons in need of international protection among those it meets in the course of its operations.408 Senior officers have declared that the body ‘does not have the ability to confirm if the right to request asylum as well as other human rights are being respected’.409 Yet, annual reports and press releases show that many are prevented from leaving third countries (or summarily returned) before they can sail off to the EU.410 At least one operation has been launched with the explicit objective of ‘stop[ping] migrants from leaving the shores [of Senegal and Mauritania] on the long sea journey’.411
The procedure through which diplomatic authorities may issue Limited Territorial Validity (LTV) visas is equally unclear, as Chapter 4 has shown.412 This is so much so that, according to national courts, ‘he who wishes to obtain asylum … has the option of [either] [l]ying to the … authorities … in order to obtain a tourist or some other sort of visa, [or] obtaining a credible forgery of a visa …’.413 The House of Lords has acknowledged that ‘… those who are to claim to be refugees and who arrive in this country seeking asylum may well have to arrive armed with false documents and false passports. It may be that there is no other way in which they can leave the country from which they have come’.414 No official statistics have been collected on the number of recognized refugees and beneficiaries of subsidiary protection who arrive in the Union with false documents. But it has been estimated that up to 90 per cent of them have to rely on irregular channels to access the territory of the Member States.415
Whether the irregularity to which protection seekers are consigned in their attempt to access asylum in the EU is compatible with Article 18 CFR can be approached, at least, from three different perspectives. First, assuming that the right to asylum includes a non-absolute right to seek international protection and to leave other countries for the purpose, as some may still believe—disregarding links between the right to asylum and the prohibition of refoulement discussed above—measures that obstruct exit should, nonetheless, adjust to the requirements of the principle of proportionality, as explored in this section. A second option—still leaving aside the question of the absolute/non-absolute nature of the right to flee—is to focus, instead, on elucidating whether there is an embedded right to enter EU territory, implicit in the right to international protection—taking it as a corollary of Article 18 CFR, through an analogical reasoning based on Panayotova—as Section 5.3 will do.416 Lastly, drawing on findings from the foregoing and accepting that the right to flee does intersect with non-refoulement, it will finally be submitted in Section 5.4 that proportionality must play no role.
Taking the first position first, the investigation should start from the realization that proportionality generally structures the use by Member States of their sovereign powers, including those concerned with the administration of entry to their territories. Their discretion is not unfettered and must be exercised in compliance with ‘all those universally accepted fundamental principles, consistent with respect for human rights, on which a democratic society is based’.417 The measures concerned must, thus, be prescribed by law, pursue a legitimate objective, and be proportionate in each individual case to be acceptable.
In the current situation, the condition of legality does not seem to be adequately met by IBM measures of pre-entry control. The ‘quality of the law’ criterion, inscribed in the principle of legality, as interpreted by the Strasbourg Court, implies that the applicable norms ‘must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness’. In particular, they ‘must afford adequate legal protection and the legal certainty necessary to prevent arbitrary interferences by public authorities’.418 Within the EU legal order ‘legal certainty’ has been defined in similar terms, as ‘the legal situation resulting from national implementing measures, [which are] sufficiently precise and clear to enable the individuals concerned to know the extent of their rights and obligations’.419 Accordingly, the conditions to proceed with a restriction on the right to leave to seek asylum should be ‘clearly defined’ and be ‘foreseeable in their application’,420 if the right is to be ‘guaranteed’ in good faith.421 On the face of the numerous indications to the contrary found with regard to the above provisions in Chapters 3 to 6, the (in-)compatibility test of IBM measures regarding refugees with proportionality rules should stop at this stage.
For the sake of completeness, we turn, however, to analyse the legitimacy and proportionality of the measures at stake. Regarding the declared objective that pre-border mechanisms pursue to avoid irregular immigration—especially of those without (p.388) sufficient means of subsistence and to ensure their return—the fact that, in the context of both Article 12(2) ICCPR and Article 2(2) Protocol 4 ECHR, arguments drawn from the economic welfare of the country concerned were considered and rejected by the drafters of these instruments as motives insufficient to allow for restrictions on the right to leave should be taken to mean that the prevention of irregular immigration on that basis alone does not provide a legitimate reason to prevent exit. Only if the prevention of unauthorized entry could be subsumed within a wide understanding of the notion of ‘public order’ could the condition of legitimacy be met. Otherwise, extraterritorial control instruments should be adjudged incompatible with the right of protection seekers to leave a country (in search of asylum) on legitimacy grounds.
Also, according to Article 52(1) CFR, limitations on EU rights may be made ‘only if they are necessary’. Denials of LTV visas, obstruction of voyages by ILOs and carriers, and maritime blockades by Frontex-led patrols must be appraised against this standard. This means that they must not only be appropriate to meet the objective pursued, but also be the least intrusive possible in relation to the fundamental rights they affect. Above all, ‘the essence’ of the rights concerned must be preserved. Where pre-border measures entail the ‘denial of the genuine enjoyment of the substance of … rights conferred [by EU law]’ they cannot be considered ‘necessary’.422 Completely ‘impeding the exercise’ (in law and/or in practice) of the rights concerned would have such an effect,423 possibly even reaching the level of an ‘abuse of rights’, contrary to Article 54 CFR, as it would virtually amount to a ‘destruction of … the right [to asylum] … recognised in [the] Charter’. So, condemning asylum seekers to action Article 18 through irregular means of access should be rejected against this backdrop.
The principle of proportionality requires, in addition, that the particular circumstances of each individual case be taken into consideration. Blanket restrictions applied automatically to particular categories of persons are not allowed. Chakroun is particularly illustrative in this respect. On that occasion, the interpretation of the ‘sufficient resources’ condition to which family reunification could be submitted by Member States in accordance with Article 7 FRD was in dispute. The CJEU ruled in that connection that, ‘[s]ince the extent of needs can vary greatly depending on the individuals’, the provision had to ‘be interpreted as meaning that the Member States may indicate a certain sum as a reference amount, but not as meaning that they may impose a minimum income level below which all family reunifications will be refused, irrespective of an actual examination of the situation of each applicant’.424 Pre-entry controls that fail to properly distinguish between asylum seekers and other migrants (particularly visa requirements and their anticipated enforcement by commercial carriers/ILOs/EBCGTs) ignoring the particular necessities of those in need of international protection, fall short of this requirement—and should, therefore, be discarded on that basis.
As a result, even in the event that the right to (leave to seek) asylum could be considered to entail a non-absolute entitlement to access international protection, the exploration above demonstrates that, as presently configured, IBM measures do not comply with proportionality rules. So, even ignoring the question of the non-derogable nature of Article 18 CFR due to its links to persecution and non-refoulement, the current situation discloses a structural incompatibility of the Schengen system with the fundamental rights acquis of the EU.
The second option to address the issue of access within Article 18 CFR is to concentrate on clarifying whether, in addition to comprising a right to leave to seek international protection (of whatever nature), it could also be understood to ultimately entail a right of entry as a corollary of the right to asylum. This position is most contentious and may appear to contradict the general tenor of Strasbourg jurisprudence in immigration cases, but it may be sustainable under EU law.
The decision on Panayotova demonstrates the viability of this construction.425 The case regarded the interpretation of Articles 45(1) and 59(1) of the Communities–Bulgaria Agreement prior to the accession to the Union of that country. Article 45(1) established that, save for certain matters referred to in an Annex, Member States ‘[had to] grant … for the establishment of Bulgarian companies and nationals … a treatment no less favourable than that accorded to its own companies and nationals’.426 Article 59(1) set out, in turn, that ‘nothing in the Agreement [could] prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons … provided that, in so doing, they [did] not apply them in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreement …’. The Netherlands, however, applied a strict policy, rejecting establishment applications by Bulgarian nationals who failed to apply for a particular temporary residence permit issued in advance by its consular services. Ms Panayotova—who was considered to be ‘legally resident’ in Dutch territory on a tourist visa427—claimed to satisfy ‘clearly and manifestly’ all the substantive requirements for the grant of such a permit. Although the Court considered the refusal of the establishment authorization by the Dutch authorities to be proportionate in the particular case, it reached this conclusion on the basis of a meticulous analysis.
First, notwithstanding the fact that national authorities remained competent to apply their laws on entry, stay and establishment, the Court stipulated that Article 45(1) of the Agreement had to be recognized as having direct effect.428 Then, the Court determined that the right of establishment contained in that provision ‘entail[ed] the conferral of rights of entry and residence as corollaries of that right’. The rights of entry and residence could not, however, be considered as ‘absolute privileges’ in this context, inasmuch as their ‘exercise’ could still be limited in light of Article 59 of the Agreement.429 Nonetheless, in the Court’s opinion, restrictions had to be ‘appropriate for achieving the objective in view and not constitute … measures which would strike at the very substance of the rights [recognized by the Agreement] by making exercise of those rights impossible or excessively difficult’.430
This principle was found to be compatible with the introduction of a ‘system of prior control’ run from Member States’ embassies in the country of origin which would make the grant of leave to enter and remain subject to the condition that the applicant showed a genuine intention to take up an activity as a self-employed person without entering into employment or having recourse to public funds at the same time,431 (p.390) again, provided that the exercise of the right to establishment was not rendered ‘impossible or excessively difficult’.432 The scheme had to be ‘easily accessible and capable of ensuring that the persons concerned ha[d] their applications dealt with objectively and within a reasonable time’. In addition, refusals to obtain a permit had to be ‘capable of being challenged in judicial or quasi-judicial proceedings’.433 Anything less would be incapable of affording sufficient guarantees against arbitrariness and run counter to the effet utile of the right to establishment recognized in the Agreement. Therefore, according to the findings of the Luxembourg Court in Panayotova, conditions on the exercise of rights conferred directly by EU law that the individual would never be in a position to fulfil—as happens to refugee visa applicants under current CCV rules—should be rejected.
In Bidar the Court had the opportunity of pronouncing precisely on this issue.434 The case concerned a French national studying in Britain who wished to request financial assistance to cover maintenance costs. Domestic rules made access to student grants subject to the applicant being ‘settled’ in the UK, while at the same time national law precluded the acquisition of ‘settled’ status while being a student. The Court concluded that the right to equal treatment contained in Article 18 TFEU benefiting EU citizens could not be made dependent on an impossible condition. Such position could not be justified—it was disproportionate, if not outright oxymoronic.435 Transposing this reasoning to Schengen entry rules, especially visas, and to the situation of protection seekers, the fact that delivery is conditional on the applicant showing her intention ‘to leave the territory of the Member States before the expiry of the visa applied for’,436 coupled with the impossibility for refugees, by definition, to show ‘willingness or ability’ to return to the country in which they risk persecution,437 should prompt the conclusion that ordinary visa requirements are untenable in this respect. The same is true in relation to persons qualifying for subsidiary protection who are incapable of returning to the country in which they run a ‘real risk’ of suffering ‘serious harm’.438
If this reading can be held applicable to Article 18 CFR, entry to the territory of the Member States should be granted for the purpose of exercising the right to asylum conferred by EU law on protection seekers. Entry would not be conceived of as an autonomous entitlement, but as an ancillary protection with the exclusive objective to enable the exercise of Article 18 CFR, respecting its effet utile. Relying on Panayotova by analogy, a pre-clearance system to administer such entry, premised on the condition that the applicant showed a genuine intention to apply for asylum upon arrival through the channels foreseen in the asylum acquis, could be accepted, provided the exercise of the right to asylum were not rendered ‘impossible or excessively difficult’.439 But such a system would be acceptable only if designed and applied in a manner consistent with the particular position of protection seekers and relevant protection standards.440
(p.391) 5.4 Links to non-refoulement: The right to (leave to seek) asylum as an absolute entitlement
Drawing on the above, there is a final point to bear in mind that makes proportionality considerations unsuited in the case of pre-border controls and protection seekers. As clarified earlier in Sections 2.2.3 and 3.3, the links between the right to (seek and obtain) asylum inscribed in Article 18 CFR and non-refoulement cannot be obviated. Such links between related freedoms have been expressly acknowledged, e.g. in Article 12(3) ICCPR, to the effect that any restrictions on them must be ‘consistent with the other rights recognized in the … Covenant’. As a result, when asylum is sought for protection against persecution and other forms of irreversible harm, the absolute nature of the prohibition of ill-treatment, with which it converges, disallows considerations of proportionality and triggers instead a duty to take positive action to avoid its occurrence. Here—at the junction between the rights to (leave to seek) asylum and to non-refoulement—legality, legitimacy, and necessity conditions cannot be given any weight.441 Any limitations, derogations, or restrictions on the right to flee and gain effective access to international protection become incompatible with Article 18 CFR.
There are examples illuminating this stance. With regard to visas, the Administrative Tribunal of Nantes has recently found that a refusal to deliver an entry visa to a Syrian family enabling them to travel to France to request international protection amounted to a violation of the right to asylum. While acknowledging that the issue of ‘asylum visas’ was not specifically addressed in the relevant legislation, the Court considered, given the fundamental character of the right, that the refusal to provide a visa constituted ‘a serious and manifestly unlawful violation of a fundamental freedom with serious consequences for the asylum seekers in question’.442 Although the reasoning concerned the right to asylum as recognized in the French Constitution, it can be transposed, for current purposes, to the right to asylum enshrined in the Charter and implicit also in other instruments.443 The circumstances with which protection seekers are faced under Schengen visas are comparable and their effect is very much the same. According to Judge Pinto de Albuquerque, ‘if a person in danger of being tortured in his or her country asks for asylum in an embassy of a State bound by the [ECHR], a visa to enter the territory of that State has to be granted’. Visa policy (as all other State action) remains ‘subject to … obligations under international human rights law’.444
A ‘transfer’ of responsibility to private carriers achieves similar results to visa denials. The question was dealt with by the Strasbourg Court in the case of Sharifi, concerning the automatic handover by Italian authorities of potential asylum seekers to the captains of ferryboats with a view to their immediate return to Greece. No individual analysis of the situation of any of the persons concerned was undertaken prior to their disposal in this way.445 The action, ultimately implemented by the carriers themselves, but attributable to Italy—on whose behalf it was performed—amounted to a violation of the guarantee against collective expulsion enshrined in Article 4 Protocol 4 ECHR. (p.392) But due to the risk of direct and indirect refoulement to Afghanistan, from where the applicants originated, the measure constituted a violation of Article 3 ECHR as well. Both Greece and Italy were independently condemned on that basis. The utter ‘absence of any access to the asylum procedure’ was determinant in this respect.446 And here again, an analogical reasoning would lead to an identical conclusion with regard to the non-refoulement protection embedded in Article 18 CFR.447 The delegation of pre-border controls on private transport companies introduced by EU carrier sanctions and the resulting refusals of boarding are indeed akin to the operation denounced in Sharifi, which exemplifies the usual working of carriers’ liability schemes.448
For their part, maritime interdictions like those in Hirsi—whether coordinated by Frontex or undertaken independently by Member States to enforce Schengen rules—are also incongruent with human rights protections, unless an opportunity to gain effective access to a procedure to exclude any chance of refoulement in the individual case is provided before their implementation. In the words of the Strasbourg Court, ‘where substantial grounds have been shown for believing that the person in question, if expelled [or interdicted], would face a real risk of being subjected to treatment contrary to Article 3 [ECHR] in the receiving country … Article 3 implies an obligation not to expel ’.449 The foreseeability of any such risk, as deduced from information provided by the applicant himself and/or from freely obtainable public materials, mandates restraint. Knowledge of the relevant facts will be imputed, so that reliable sources may determine responsibility in case of a violation.450 Given the ‘absolute character’ of the rights protected under Article 3 ECHR, even a mass influx or other commensurate difficulties ‘cannot absolve a State of its obligations under that provision’.451 And it does not matter whether the migrants in question ‘fail to expressly request asylum’, the State concerned is under a duty to investigate of its own motion, to ‘find out about the treatment to which the applicants would be exposed after their return’.452
The same proactive approach ought to apply to Article 18 CFR in so far as it also entails a prohibition of refoulement element, ‘incorporat[ing] the relevant case law of the European Court of Human Rights regarding Article 3 of the ECHR’.453 The specific procedural arrangements attached to the right to asylum and to protection against refoulement will be detailed in Chapter 10. Suffice it to say at this stage that a rigorous examination with effective guarantees of the individual situation of each person at stake must be undertaken prior to any removal/interdiction being enforced.454 A simple identification procedure is not enough.455 Clearly, ‘problems with managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations …’.456
As a result, IBM measures which amount to exposure to persecution or serious harm, devoid of specific guarantees to forestall their materialization, such as the ones currently in operation under Schengen rules, should be adjudged incompatible with the right to flee inscribed in Article 18 CFR. Proportionality considerations as per Article 52(1) CFR have no space in this realm. The links between Article 18 CFR and comparable entitlements ensuing from a systematic interpretation of the 1951 (p.393) Convention, the ECHR, and other relevant instruments, lead to the conclusion that where a real risk to life or freedom is at stake, no derogations or limitations on the right to flee can be accepted given the absolute nature of the prohibition of ill-treatment. It is the intersection between asylum and non-refoulement that configures the right to leave to escape harm for access to international protection in the Member States as a non-derogable/non-limitable entitlement.
6. Concluding Remarks: An EU ‘Right to Flee’
The foregoing sections have striven to clarify the content of Article 18 of the Charter of Fundamental Rights on account of the ‘aggregate standards’ approach presented in Chapter 7. On the basis of the requirements of the ‘ Geneva Convention … and other relevant treaties’,457 taking into consideration the current state of refugee law and human rights norms, the conclusion reached is that the right to asylum recognized within the EU legal order includes, as a minimum, the liberty to leave other countries in search of international protection, which Member States have to ‘guarantee’.458
This is not in contradiction with the classic conception of the ‘right of asylum’ as a prerogative of the State. EU countries preserve the power attached to their sovereignty to grant territorial protection to foreigners outside the scope of their obligations under EU law. Article 18 CFR and the instruments adopted to give it effect within the CEAS impose duties on Member States, under certain circumstances, only vis-à-vis specific categories of persons, who meet the qualification criteria for refugee or subsidiary protection status. Member States remain otherwise free to extend their protection to other individuals on compassionate, humanitarian, or other grounds.459
The right to leave to seek asylum entails procedural and substantive (including physical/flight-related) components requiring effective access to a procedure to determine protection needs and exclude refoulement risks. Although it may strike one, at first sight, as a non-absolute entitlement, which may furthermore be held not to include an ancillary right of entry, a close examination of the links between the right to international protection and the prohibition of ill-treatment reveals its fundamental character as a non-derogable/non-limitable guarantee when refoulement risks intervene.
Systems of pre-border control have, thus, to comply with Article 18 CFR without nullifying its substance or rendering its exercise excessively difficult in practice. Restrictions to that effect are not allowed. Where a limitation on the right to (leave to seek) asylum would amount to a measure of extraterritorial refoulement, it will be forbidden by the prohibition implicit in Article 18 CFR. This is why the EU system of pre-border controls, including Schengen visas, carrier sanctions, and interdiction at sea, is, as currently operationalized, in apparent disconformity with the fundamental rights acquis.
In sum, good faith compliance with the Charter requires Member States to design and implement mechanisms of IBM in a way that does not frustrate the exercise by protection seekers of their fundamental rights under EU law and does not leave them (p.394) exposed to persecution or other serious harm against the object and purpose of Article 18 CFR.460
Good faith is not an independent source of obligations, but it assists in the identification of those that exist,461 particularly where State actions have the effect of circumventing treaty commitments.462 Reliance on a hyper-literal construction of the duties concerned, ‘if the mere focus on the wording would fall short of respecting the objects, purposes and spirit of the agreement’, breaches the pacta sunt servanda rule.463 Impeding the (safe and legal) exercise of explicitly recognized rights by engaging in extraterritorial conduct that would be forbidden if performed within territorial boundaries gives rise to an indefensible double standard. The ‘obstruction test’ and the ‘double standard test’, drawing on Judge Pinto de Albuquerque’s classification, should lead to the conclusion that interdiction without consideration of the individual needs and fundamental entitlements of protection seekers is unlawful. Not only does good faith adherence to Charter obligations entail a duty to enable the exercise of the rights it recognizes, including the right to asylum, but, as will be elaborated in Chapter 10, to action Article 18 CFR, EU Member States have also a specific ‘positive obligation’ to afford protection seekers ‘practical and effective access to an asylum procedure’, as a matter of EU law.464 The end result must be for the EU ‘right to flee’ to preserve its effet utile.
(1) On ‘inherent obligations’, see ECtHR, Soering v. UK, Appl. 14038/88, 7 Jul. 1989, deducing a duty on Contracting Parties not to extradite anyone to a country where there is a ‘real risk’ of exposure to serious harm as being implicit in Art. 3 ECHR. See extensively ch 8.
(2) Gorman, ‘Poets, Playwrights and the Politics of Exile and Asylum in Ancient Greece and Rome’ (1994) 6 IJRL 402.
(3) For a historical account of ‘religious asylum’, see Timbal Duclaux de Martin, Le droit d’asile (Sirey, 1939).
(4) See, among others, García-Mora, International Law and Asylum as a Human Right (Public Affairs Press, 1956), at 7–43; Bolesta-Koziebrodzki, Le droit d’asile (Sijthoff, 1962), at 27–46; Crépeau, Droit d’asile—De l’hospitalité aux contrôles migratoires (Bruylant, 1995), at 29–51; Alland and Teitgen-Colly, Traité du droit de l’asile (PUF, 2002), at 17–54.
(5) de Vitoria, Relectiones Theologicae XII, Section 53 (1557), Nys (ed.), (Carnegie Endowment transl., 1917); Grotius, De Jure Belli ac Pacis Libri Tres, Book II, ch 2 (1625), (Carnegie Endowment transl., 1925); Kant, Perpetual Peace, (transl. O’Brien, Sweet and Maxwell, 1927). For commentary, see Rigaux, ‘La liberté de mouvement dans la doctrine du droit des gens’, in Chetail (n 30) Vol. II, 137.
(6) Grotius, De Jure Belli ac Pacis Libri Duo (1625), (transl. Campbell, Batoche Books, 2001) ch 2, no XVI, 84.
(7) See, extensively, Gil-Bazo, ‘Asylum as a General Principle of International Law’ (2015) 27 IJRL 3.
(8) Christie Tait, ‘International aspects of Migration’ (1927) 6 Journal of the Royal Institute of International Affairs 25; Fields, ‘Closing Immigration throughout the World’ (1932) 26 AJIL 671; Fourlanos, Sovereignty and the Ingress of Aliens (Almqvist, 1986); Dowty, Closed Borders: The Contemporary Assault on Freedom of Movement (Yale University Press, 1987); Zolberg, ‘International Migrants and Refugees in Historical Perspective’ (1992) 91 Refugees 37. For a recent commentary on these developments, see Cornelisse, Immigration, Detention and Human Rights (Martinus Nijhoff, 2010), at 135–47.
(9) de Vattel, The Law of Nations (1758), (J. Chitty transl., Johnson, 1867). Cf. Nafziger, ‘The General Admission of Aliens under International Law’ (1983) 77 AJIL 804. On the ‘monopolisation of the right to regulate movement’ by nation States, see Torpey, The Invention of the Passport (CUP, 2000), at 4 ff.
(10) Chandler v. US (1948) 171 F. (2d) 921. See also Montevideo Treaty on Political Asylum, 4 Aug. 1939, Art. 11; Entscheidungen des Reichsgerichts in Strafsachen, 33 (1900) 99; Resolution of the Swiss Federal Council of 23 Feb. 1921 cited in (1943) 43 Columbia Law Review 944.
(11) See, for instance, the Chinese exclusion policy practised by the US in the late nineteenth century in, among others, Nishimura Ekiu v. US, 142 US (1892), 659, stating that: ‘It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in the sovereignty, and essential to its self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may seem fit to describe’.
(12) See Reale, Le droit d’asile, Collected Courses Vol. 63 (The Hague Academy of International Law, 1938); Simpson, The Refugee Problem (OUP, 1939), at 230; De Visscher, Théories et réalités en droit international public (Pédone, 1955), at 230; Green, The Right of Asylum in International Law, Inaugural lecture delivered on 19 Jul. 1961 in the New Lecture Theatre No. 2, University Grounds, Cluny Road (archives of the Library of the Peace Palace, The Hague, Reg. num. 30850); Grahl-Madsen, The Status of Refugees in International Law, Vol. II (Sijthoff, 1972), at 22 ff; April, ‘Examining the Right of Asylum: The Choices and the Limitations’, International Perspectives (May/Jun. 1974)The Canadian Journal of World Affairs 44; Weis, ‘The Present State of International Law on Territorial Asylum’ (1974) 31 Schweizerisches Jahrbuch für Internationales Recht 71; Grahl-Madsen, ‘The European Tradition of Asylum and the Development of Refugee Law’, in Macalister-Smith and Alfredsson (eds), The Land Beyond (Martinus Nijhoff, 2001) ch 4.
(13) See, among many others, Tiberghien, La protection des réfugiés en France (Economica, 2nd edn, 1988), at 15 ff; Zoller, ‘Le droit d’asile: Bilan de recherches de la section de langue française du Centre d’étude et de recherche de l’Académie’, in The Right of Asylum, The Hague Academy of International Law (Martinus Nijhoff, 1989), at 16; Stenberg, Non-Expulsion and Non-Refoulement (Iustus Foerlag, 1989), at 281.
(14) Institut de Droit International, Annuaire de l’Institut de Droit International, 1950, Vol. 43, II, at 375.
(15) Arts 13(2) and 14, Universal Declaration of Human Rights (‘UDHR’), A/RES/217(III).
(16) Lauterpacht, International Law and Human Rights (Stevens, 1950), at 421.
(17) For the Drafting Committee Report, see E/CN.4/21.
(18) For a detailed reconstruction of the drafting history, refer to Gammeltoft-Hansen and Gammeltoft-Hansen, ‘The Right to Seek—Revisited’ (2008) 10 EJML 439, at 442 ff.
(19) A/C.3/285/Rev.1, in UNGAOR Part 1 (3rd Sess. 1948), Annexes, 24.
(20) A/C.3/SR.121, at 4 (Mrs Corbet).
(21) A/C.3/253, in UN doc. A/C.3/285/Rev.1, in UNGAOR Part 1 (3rd Sess. 1948), Annexes, 24.
(22) UNGAOR Part 1 (3rd Sess. 1948), Summary Records of Meetings, 121st Meeting (3 Nov. 1948), at 330–331 (Mrs Corbet).
(23) For an overview, see Cassin, La déclaration universelle et la mise en œuvre des droits de l’homme, Collected Courses Vol. 79 (The Hague Academy of International Law, 1951). For a very critical position, see Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 354.
(24) E/600, at 48, in Weis, ‘Human Rights and Refugees’ (1971) 1 Israel Yearbook on Human Rights 35, at 38.
(25) Declaration on Territorial Asylum, A/RES/2312(XXII). For an insightful account, see Weis, ‘The United Nations Declaration on Territorial Asylum’ (1969) 7 Canadian Yearbook of International Law 92.
(26) A/8712 appx., Annexe 1. For this and further drafts, see Grahl-Madsen, Territorial Asylum (Almqvist, 1980), annexes KK ff.
(27) Weis, ‘The Draft Convention on Territorial Asylum’ (1979) 50 BYIL 176. For the general background, see also Goodwin-Gill and McAdam, The Refugee in International Law (OUP, 3rd edn, 2007), at 355–65.
(28) See, for instance, the Vienna Declaration and Programme of Action, A/CONF.157/23, para. 23.
(29) See Bossuyt, Guide to the travaux preparatoires of the International Covenant on Civil and Political Rights (Martinus Nijhoff, 1987), at 267–76. For commentary on the background discussions, refer also to Gil-Bazo, El derecho al asilo como derecho subjetivo del individual en Derecho Internacional (Universidad de Deusto, PhD Thesis, 1998), at 285–91.
(30) For a historical account, refer to Jagerskiold, ‘The Freedom of Movement’, in Henkin (ed.), The International Bill of Rights (Columbia University Press, 1981) 166, at 167 ff; Chetail, ‘Migrations, droits de l’homme et souveraineté: Le droit international dans tous ses états’, in Chetail (ed.), Mondialisation, migration et droits de l’homme, Vol. II (Bruylant, 2007) 13.
(31) E/CN.4/365. For discussion, see Lillich, ‘Civil Rights’, in Meron (ed.), Human Rights in International Law (Clarendon Press, 1984) 115, at 149; and Higgings, ‘Liberty of Movement within the Territory of a State: The Contribution of the Committee on Human Rights’, in Dinstein (ed.), International Law at a Time of Perplexity (Martinus Nijhoff, 1989) 325, at 329.
(32) On the power of exclusion as part of the reserved domain of domestic jurisdiction, see Oppenheim’s International Law, Lauterpacht (ed.), (Longmans, 1955), at 692; Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester University Press, 1984), at 35; Jean, ‘Le contenu de la liberté de circulation’, in Flory and Higgins (eds), (Economica, 1988), at 33; Plender, International Immigration Law (Kluwer, 1988), at 1–4.
(33) In this regard, see the commentary in Commission on Human Rights, Report of the Working Group on the Declaration of Human Rights, UN ESCOR, 2nd Sess., 10 Dec. 1947, Agenda Item 5, E/CN.4/57, at 9: ‘It was recognised that the right of emigration … would not be effective without facilities for immigration into and transit through other countries. The Working Group recommends that these corollaries be treated as a matter of international concern and that members of the United Nations co-operate in providing such facilities’.
(34) A/C.3/SR.120, at 316
(35) Summary Record of 120th Meeting, A/C.3/SR.120, at 319 (US delegate).
(36) McGrath Dale, ‘The Flying Dutchman Dichotomy: The International Right to Leave v The Sovereign Right to Exclude’ (1991) 9 Dickinson Journal of International Law 359. On this asymmetry, see further Noll, ‘Return of Persons to States of Origin and Third States’, in Aleinikoff and Chetail (eds), Migration and International Legal Norms (T.M.C. Asser Press, 2003) 61.
(37) Summary Record of the Fifty-Fifth Meeting, E/CN.4/SR.55, at 7.
(38) The motion was rejected by 24 votes, with 13 abstentions and 7 votes in favour: Summary Record of the 120th Meeting, A/C.3/SR.120. For commentary, see Grahl-Madsen, ‘Article 13’, in Eide et al. (eds), The Universal Declaration of Human Rights (Scandinavian University Press, 1992) 203.
(39) Higgins, ‘The Right in International Law of an Individual to Enter, Stay in and Leave a Country’ (1973) 49 International Affairs 341.
(40) Nowak, U.N. Covenant on Civil and Political Rights (Engel, 1993), at 204. On this point, see also Inglés, ‘Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including His Own, and to Return to His Country’, Report submitted by the Special Rapporteur (23 Nov. 1962), Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 15th Sess., E/CN.4/Sub.2/220/Rev.1; Mubanga-Chipoya, ‘Analysis of the current trends and developments regarding the right to leave any country including one’s own, and to return to one’s own country, and some other rights or consideration arising therefrom’, E/CN.4/Sub.2/1987/10.
(41) For an analysis, see Villiger, Commentary of the 1969 Vienna Convention of the Law of Treaties (Brill, 2010), at 369–75.
(43) HRC, General Comment No. 27: Freedom of Movement (Art. 12), (1999) CCPR/C/21/Rev.1/Add.9, para. 1.
(44) See, e.g., UN Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, Art. 5; UN Convention on the Rights of the Child, 1577 UNTS 3, Art. 10(2); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 2220 UNTS 3, Art. 8(1). At regional level, see American Declaration of the Rights and Duties of Man, Art. VIII; American Convention on Human Rights, 1144 UNTS 123, Art. 22; African Charter on Human and Peoples’ Rights, 1520 UNTS 217, Art. 12(2); Arab Charter on Human Rights, (2005) 12 IHRR 893, Art. 21.
(45) See, e.g., ECtHR, Nada v. Switzerland, Appl. 10593/08, 12 Sept. 2012, finding a violation of Art. 8 ECHR because of State actions preventing the applicant to leave. Art. 2 Prot. 4 ECHR could not be invoked, because Switzerland had not ratified it.
(47) The Right to Leave and the Right to Return: A Declaration Adopted by the Uppsala Colloquium, 21 Jun. 1972, (1973) 7 IMR 62; and Strasbourg Declaration on the Right to Leave and Return, 26 Nov. 1986, (1987) 8 HRLJ 481.
(49) Ibid., para. 13.
(50) On this point, see Harvey and Barnidge, ‘Human Rights, Free Movement, and the Right to Leave in International Law’ (2007) 19 IJRL 1, at 6.
(51) Nowak, UN Covenant on Civil and Political Rights (Engel, 2nd edn, 2005), at 270.
(52) HRC, Loubna El Ghar v. Libyan Arab Jamahiriya, Comm. 1107/2002, 15 Nov. 2004; El Dernawi v. Libyan Arab Jamahiriya, Comm. 1143/2002, 20 Jul. 2007. The Committee underscores the importance of passports as the vehicles of realization of the right to leave.
(53) Kiss, ‘Permissible Limitations on Rights’, in Henkin (n 30) 290, at 304 ff; Higgins, ‘La liberté de circulation des personnes en droit international’, in Flory and Higgins (n 32) 3. See also the ‘Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR’, E/CN.4/1985/4.
(54) HRC, González del Río v. Perú, Comm. 263/1987, 28 Oct. 1992, para. 5.3.
(57) E/CN.4/SR.106, at 9.
(58) Arts 18–21 ICCPR.
(59) See, generally, Sohn and Buergenthal, The Movement of Persons across Borders (ASIL, 1992), at 77 ff.
(60) HRC, Peltonen v. Finland, Comm. 492/1992, 29 Jul. 1994; Celepli v. Sweden, Comm. 456/1991, 2 Aug. 1994; Salah Karker v. France, Comm. 833/1998, 30 Oct. 2000. See also General Comment No. 27 (n 43), para. 13, according to which ‘the relation between right and restriction, between norm and exception, must not be reversed’.
(61) E/800, at 21 (Art. 11, para. 10).
(62) On the rejection of restrictions on grounds of ‘general welfare’ or the ‘economic and social well-being’ of a country, see Vasak, ‘Analytical Examination of Civil and Political Rights’, in Vasak and Alston (eds), The International Dimensions of Human Rights, Vol. I (UNESCO, 1982), 142, at 148.
(64) HRC, Concluding Observations on Austria, 19 Nov. 1998, CCPR/C/79/Add.103, para. 11.
(66) HRC, Dixit v. Australia, Comm. 978/2001, 28 Mar. 2003.
(67) Ibid., para. 4.2.
(68) Ibid., para. 5.2.
(69) Ibid., para. 6.2.
(70) See ch 8 for a detailed account.
(71) Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law’ (2005) 17 IJRL 542, at 561.
(72) de Vattel, The Law of Nations, Bk 1, ch XIX  (Liberty Fund, 2008), para. 230.
(73) Den Heijer, Europe and Extraterritorial Asylum (Hart, 2012), at 148–50.
(74) See ILC, ‘Commentary to the Articles on the Responsibility of States for Internationally Wrongful Acts’, (2001) YILC, Vol. II, Part 2 (‘ILC Commentary’), on Art. 47 ASR, at 124. See further discussion in ch 8.
(75) Juss, ‘Free Movement and the World Order’ (2004) 16 IJRL 289, at 293.
(76) Goodwin-Gill and McAdam (n 27), at 382 (emphasis added). The original argument has been extended. The authors seem to restrict its applicability to the country of departure that would police the requirements imposed by a third country of destination. Here, it is understood that the opposability of the right is not vis-à-vis the country of departure alone, but vis-à-vis any country that exercises jurisdiction, including the State of destination.
(77) Arts 12(1), 13, and 12(4) ICCPR.
(78) Arbitral Award, Cayuga Indians, Washington 22 Jan. 1926, reproduced in (1920) 16 AJIL 574, at 576–7.
(79) Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder, Series A—No. 23  PCIJ Coll. of Judgments No. 16, at 26.
(80) The Case of the S.S. ‘Lotus’, Series A—No. 10  PCIJ Coll. of Judgments, at 18.
(81) Case of the S. S. ‘Wimbledon’  PCIJ File E. b. II. Docket III. I., at 25.
(82) Arbitration Regarding Iron Rhine Railway (Belgium/Netherlands), Award of 24 May 2005, para. 53. See also the Lake Lanoux Award  24 ILR 101, in light of which the decision was taken, confirming that the presumption of sovereignty must give way to the content of treaty obligations.
(83) Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP, 2008), at 414.
(84) Lauterpacht, ‘Restrictive Interpretation and Effectiveness in the Interpretation of Treaties’ (1949) 26 BYIL 48, at 69. Brownlie also concludes that the principle of restrictive interpretation of treaty obligations finds no support in the VCLT (n 85), in Brownlie, Principles of Public International Law (OUP, 7th edn, 2008), at 606.
(85) Preamble, Vienna Convention on the Law of Treaties, 1155 UNTS 331 (‘VCLT’).
(86) Art. 26 VCLT (emphasis added). On the requirements of ‘good faith’ see, generally, O’Connor, Good Faith in International Law (Dartmouth, 1991); and Kolb, La bonne foi en droit international public (PUF, 2000). On the application of the principle to international protection obligations, see Goodwin-Gill, ‘State Responsibility and the “Good Faith” Obligation in International Law’, in Fitzmaurice and Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions (Hart, 2004) 120.
(87) Mutatis mutandis, ECtHR, Refah Partisi v. Turkey, Appl. 41340/98, 31 Jul. 2001, para. 70 and subsequent Grand Chamber judgment of 13 Feb. 2003, para. 119 (emphasis added).
(88) HRC, Pereira Montera v. Uruguay, Comm. 106/1981, 31 Mar. 1981; Vidal Martins v. Uruguay, Comm. 57/1979, 23 Mar. 1982; Lichtensztejn v. Uruguay, Comm. 77/1980, 31 Mar. 1983; Varela Núñez v. Uruguay, Comm. 108/1981, 22 Jul. 1983.
(91) HRC, General Comment No. 15: The Position of Aliens Under the Covenant (1986) CCPR/A/41/40, para. 5.
(92) Note, however, that Art. 14(1) UDHR does not limit its scope of application ratione personae to Convention refugees, according to its wording: ‘everyone has the right to seek and to enjoy in other countries asylum from persecution’ (emphasis added).
(93) Hannum, The Right to Leave and Return in International Law (Martinus Nijhoff, 1987), at 50.
(94) On the importance of the right to seek asylum for refugees see UNHCR EXCOM Conclusions No. 53 (1988); No. 71 (1993); No. 75 (1994); No. 77 (1995); No. 82 (1997); No. 94 (2002); No. 97 (2003); No. 101 (2004); No. 103 (2005).
(95) Goodwin-Gill, The Refugee in International Law (OUP, 2nd edn, 1996), at 175.
(96) Weis, The Refugee Convention 1951 (CUP, 1995), at 6 and 296 (emphasis added). Currently, recital 1 of the Preamble to the CSR51 reads that: ‘Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination’. Recital 2 reads, in turn, that: ‘Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms’.
(98) Sub-Commission on Human Rights, Resolution 2000/20 on ‘The Right to Seek and Enjoy Asylum’, 18 Aug. 2000, recital 7.
(99) UNHCR EXCOM Conclusion No. 97 (2003), para. a), principles iii and iv.
(100) UNHCR EXCOM Conclusion No. 82 (1997), para. (b).
(101) See Immigration Rule 75 of the 1971 Act, quoted by Lord Slynn of Hadley in R v. Naillie; R v. Kanesarajah  AC 674,  2 All ER 782,  2 WLR 927,  Imm AR 462:
Special considerations apply where a person seeking entry claims asylum in the United Kingdom … Every such case is to be referred by the immigration officer to the Home Office for decision regardless of any grounds set out in any provision of [immigration] rules which may appear to justify refusal of leave to enter. The Home Office will then consider the case in accordance with the provisions of the Convention and Protocol relating to the Status of Refugees …’ (emphasis added).
See also Watkins LJ in R v. Yabu Hurerali Naillier; R v. Rajaratnam Kanesarajah  1 All ER 75,  1 WLR 1099,  Imm AR 395, 96 Cr App Rep 161:
… signing the Convention has undoubtedly caused serious problems for immigration control … Ever since then those who claim asylum pursuant to the Convention and Protocol form a special category of persons when arriving to the United Kingdom (emphasis added).
(102) Einarsen, ‘The European Convention on Human Rights and the Notion of an Implied Right to de facto Asylum?’ (1990) 2 IJRL 361; Tomuschat, ‘A Right to Asylum in Europe’ (1992) 13 HRLJ 257; Plender and Mole, ‘Beyond the Geneva Convention: Constructing a de facto right of asylum from international human rights instruments’, in Nicholson and Twomey (eds), Refugee Rights and Realities (CUP, 1999) 81; Gorlick, ‘Human Rights and Refugees: Enhancing Protection through International Human Rights Law’, New Issues in Refugee Research, Research Paper No. 30 (UNHCR, 2000). Building on these positions, see Edwards, ‘Human Rights, Refugees, and the Right “to Enjoy” Asylum’ (2005) 17 IJRL 293.
(103) See Weis, ‘Legal Aspects of the Convention of 28 July 1951 relating to the Status of Refugees’ (1953) 30 BYIL 478, at 481. See also Carlier, Droit d’asile et des refugiés: de la protection aux droits, Collected Courses Vol. 332 (The Hague Academy of International Law, 2007), at 43–9 and references therein.
(104) The Final Act of 28 Jul. 1951 adopted by the Conference of Plenipotentiaries that adopted the Refugee Convention includes Recommendation ‘D’, according to which: ‘Considering that many persons still leave their country of origin for reasons of persecution and are entitled to special protection on account of their position, [the Conference] recommends that Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international co-operation in order that these refugees may find asylum and the possibility of resettlement’.
(105) Art. 2 CSR51.
(106) Emphasis added. Cf. Art. 5 and 21 CCV regarding EU entry/pre-entry conditions for admission/issuance of visas, requiring all applicants, including potential refugees, to show ability and intent to return to the country of provenance. See at length chs 3 and 4.
(108) Art. 27 CSR51.
(109) Art. 28 CSR51.
(110) Schedule CSR51, para. 8. Note that, according to para. 9(2) of the Schedule, ‘the issue of such visas may be refused on grounds which would justify refusal of a visa to any alien’.
(111) UNCHR EXCOM Conclusion No. 58 (1989).
(112) UN Department of Social Affairs, A Study of Statelessness, E/1112, 1 Feb. 1949, at 20: ‘In actual fact, the [refugee], since he cannot enter the territory of a State lawfully, often does so clandestinely. He will then lead an illegal existence, avoiding all contact with the authorities and living under the constant threat of discovery and expulsion. The disadvantages of this state of affairs, both to himself and for the country on whose territory he happens to be, are obvious’.
(115) Statement of the Under-Secretary of State (1936), in Hackworth, (1942) Digest of International Law, Vol. III, at 132. For a similar approach in the UK, see Rex v. Home Secretary, ex parte Duc de Château Thierry (1917) 116 LTR 226.
(116) Art. 3(2), 1933 Convention on the Legal Status of Refugees, 159 LNTS 3663.
(120) For a detailed analysis of Art. 31 CSR51, refer to Hathaway, The Rights of Refugees under International Law (CUP, 2005), at 370–439. For an account in relation to detention, see Moreno-Lax, ‘Beyond Saadi v UK: Why the ‘Unnecessary’ Detention of Asylum Seekers is Inadmissible under EU Law’ (2011) 5 HR&ILD 166.
(122) Goodwin-Gill, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees: non-penalization, detention, and protection’, in Feller, Türk and Nicholson (eds), Refugee Protection in International Law (CUP, 2003), at 189.
(123) A/CONF.2/SR.13, at 13.
(124) Conference of Plenipotentiaries, Summary Records, A/CONF.2/SR.14, at 10–13. An analysis of the impact of this clause on the so-called ‘safe third country’ principle lies beyond the scope of this study, but it has been dealt with elsewhere. See Moreno-Lax, ‘The Legality of the “Safe Third Country” Notion Contested: Insights from the Law of Treaties’, in Goodwin-Gill and Weckel (eds), Migration and Refugee Protection in the 21st Century, The Hague Academy of International Law Centre for Research (Martinus Nijhoff, 2015) 665.
(127) R v. Asfaw  UKHL 31, per Lord Bingham of Cornhill, para. 11. On the purposive application of Art. 31 CSR51, see prior decisions in R v. Uxbridge Magistrates’ Court, Ex p Adimi  QB 667 and R (Pepushi) v. Crown Prosecution Service  EWHC 798 (Admin).
(128) Asfaw (n 127), per Lord Hope of Craighead, para. 54, referring to Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Preliminary Objections),  ICJ Rep. 595, at 57.
(129) Ibid., para. 50. Cf. Lord Rodger of Earlsferry, para. 96.
(130) Ibid., per Lord Bingham of Cornhill, para. 26.
(131) Ibid., para. 58 (emphasis added).
(132) Cf. Dutch Hoge Raad, Judgment of 3 Dec. 2013, ECLI:NL:HR:2013:1561, para. 2.6.2, applying the benefit of Article 31 CSR51 to other protection seekers by analogy.
(133) On this point, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), (Advisory Opinion)  ICJ Rep. 16, para. 53.
(134) McAdam, ‘An Intellectual History of Freedom of Movement in International Law: The Right to Leave as a Personal Liberty’ (2011) 12 Melbourne Journal of International Law 1, at 30.
(135) Goodwin-Gill, ‘The Right to Leave, the Right to Return and the Question of a Right to Remain’, in Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (Kluwer, 1995) 95.
(136) Art. 12(3) ICCPR.
(138) PACE, Recommendation 293 (1961) on the Right of Asylum; PACE, Recommendation 434 (1965) on the Granting of the Right of Asylum to European Refugees; Committee of Ministers of the Council of Europe, Resolution 14 (1967) Asylum to Persons in Danger of Persecution.
(140) ECtHR, Hirsi v. Italy, Appl. 27765/09, 23 Feb. 2012, para. 180.
(141) ECtHR, Sharifi v. Italy and Greece, Appl. 16643/09, 21 Oct. 2014, paras 233 and 242–243.
(142) Recital 5, Preamble ECHR.
(143) Inter alia, PACE, Recommendations 293 (1961) (n 138); 1088 (1998) on the right to territorial asylum; 1236 (1994) on the right of asylum; and Committee of Ministers Resolution (67) 14 on asylum to persons in danger of persecution, available at: <http://website-pace.net/en_GB/web/apce/documents>.
(145) PACE, Recommendation 296 (1961) on the right of asylum. For commentary, see Julien-Laferrière, ‘Proposition de protocole additionnel à la convention européenne des droits de l’homme relative au droit d’asile’ (1992) France terre d’asile: Lettre d’information No. 84.
(147) Committee of Ministers, Declaration on Territorial Asylum of 18 Nov. 1977, Preamble and paras 1–3.
(148) The right to enter one’s own country is regulated in Art. 3 Prot. 4 ECHR, whereas protection from expulsion of aliens ‘lawfully resident’ in the territory of a contracting party is provided for in Art. 1 of Prot. 7 ECHR. On the other hand, collective expulsions are banned without qualification with regard to all foreigners under Art. 4 Prot. 4. Refoulement is prohibited in absolute terms under Art. 3 ECHR, as interpreted in the case law of the Strasbourg organs. See ch 8 for further details on this last point.
(149) International Institute of Human Rights, ‘Strasbourg Declaration on the Right to Leave and Return (and the Recommendation of the Meeting of Experts on the Right to Leave and Return to One’s Country)’, 26 Nov. 1986, reproduced in Hoffmann, ‘The Right to Leave and to Return to One’s Own Country, The Strasbourg Declaration on the Right to Leave and to Return: Results of the Meeting of Experts Held in Strasbourg in November 1986’ (1987) 8 HRLJ 478. For commentary, see also Hannum, ‘The Strasbourg Declaration on the Right to Leave and Return’ (1987) 81 AJIL 432. Supporting this reading, see Cassese, ‘International Protection of the Right to Leave and Return’, in Giuffré (ed.), Studi in Onore di Manlio Udina (Multa Pacis, 1975) 221.
(150) See, for instance, Arts 8–11 ECHR.
(151) ECtHR, M v. Germany, Appl. 10307/83, 6 Mar. 1984; Schmid v. Austria, Appl. 10670/83, 9 Jul. 1985; Baumann v. France, Appl. 33592/96, 22 May 2001; Napijalo v. Croatia, Appl. 66485/01, 13 Nov. 2003; Ignatov v. Bulgaria, Appl. 50/02, 2 Jul. 2009; Dzhaksybergenov v. Ukraine, Appl. 12343/10, 10 Feb. 2011.
(152) ECtHR, Sissanis v. Romania, Appl. 23468/02, 25 Jan. 2007 (on an arbitrary entry in a passport that prohibits the individual to leave the country). Cf. ECommHR, S v. Sweden, Appl. 10653/83, 6 May 1985 (establishing that the right to leave does not comprise the right to take property abroad).
(154) Partsch, ‘The Right to Leave and to Return in the Countries of the Council of Europe’ (1975) 5 Israel Yearbook on Human Rights 215, at 261.
(155) ECtHR, Riener v. Bulgaria, Appl. 46343/99, 23 May 2006; Bartik v. Russia, Appl. 55565/00, 21 Dec. 2006.
(156) ECtHR, A.E. v. Poland, Appl. 14480/04, 31 Mar. 2009, para. 49; Bessenyei v. Hungary, Appl. 37509/06, 31 Oct. 2008, para. 24; Hajlik v. Hungary, Appl. 41463/02, 31 Oct. 2006, para. 36.
(157) ECtHR, Luordo v. Italy, Appl. 32190/96, 17 Jul. 2003 (restriction of movement of a bankrupt beyond the period necessary to secure assets for creditors); Federov and Federova v. Russia, Appl. 31008/02, 13 Oct. 2005 (charge of fraud without prosecution for a prolonged period during which the applicants’ freedom of movement was restricted). See also Ciaramella v. Italy, Appl. 6597/03, 23 Sept. 2004; and Ivanov v. Ukraine, Appl. 15007/02, 7 Dec. 2006. For analysis of the case law and a similar conclusion, see Harris et al., Law of the European Convention on Human Rights (OUP, 2nd edn, 2009) 736, at 740.
(158) ECtHR, Stamose v. Bulgaria, Appl. 29713/05, 27 Nov. 2012, paras 34 and 36.
(159) For a recent decision concerning a restriction on the right to leave on the basis of ‘national security’, which, for want of proportionality, is considered not to be ‘necessary in a democratic society’, see ECtHR, Soltysyak v. Russia, Appl. 4663/05, 10 Feb. 2011.
(160) Strasbourg Declaration on the Right to Leave (n 47), Art. 4(e). See also Aybay, ‘The Right to Leave and the Right to Return: The International Aspect of Freedom of Movement’ (1977) 1 Comparative Law Yearbook 121.
(161) ECtHR, Hajibeyli v. Azerbaijan, Appl. 16528/05, 10 Jul. 2008, para. 63. For commentary on ‘national security’ and ‘public order’ restrictions in this realm, see White and Ovey, The European Convention on Human Rights (OUP, 5th edn, 2010), at 533 ff.
(162) ECtHR, Streletz, Kessler and Krenz v. Germany, Appl. 34044/96, 35532/97 and 44801/98, 22 Mar. 2001, para. 100.
(165) Protocol No. 4 ECHR, 1963 CETS 46, paras 15, 16 and 18. On this point, see also van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (Kluwer, 1998), at 670.
(166) But it was relevant in ECtHR, Olivieira v. The Netherlands, Appl. 33129/96, 4 Jun. 2002.
(167) See, among others, ECommHR, Peltonen v. Finland, Appl. 19583/92, 20 Feb. 1995; ECommHR, K.S. v. Finland, Appl. 21228/93, 24 May 1995; Napijalo (n 151), para. 68; Dzhaksybergenov (n 151), para. 55; Riener (n 155), para. 109 (emphasis added).
(171) Acquisition of Polish Nationality (Advisory Opinion)  PCIJ Series B—No. 7, 6, at 20, the PCIJ considered itself: ‘bound to apply this clause as it stands, without considering whether other provisions might with advantage have been added to or substituted for it … To impose an additional condition not provided for in the Treaty of June 28th, 1919, would be equivalent not to interpreting the Treaty, but to reconstructing it’.
(172) Fitzmaurice, ‘Law and Procedure of the International Court of Justice’ (1951) 28 BYIL 1, at 23, and Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’ (1957) 33 BYIL 203, at 233. See also International Status of South West Africa (Advisory Opinion)  ICJ Rep. 127, at 139–40.
(173) ECtHR, Xhavara v. Italy, Appl. 39473/98, 11 Jan. 2001.
(174) Ibid., para. 3 (original text): ‘La Cour relève que les mesures mises en cause par les requérants ne visaient pas à les priver du droit de quitter l’Albanie, mais à les empêcher d’entrer sur le territoire italien. Le second paragraphe de l’article 2 du Protocole nº 4 ne trouve donc pas à s’appliquer en l’espèce’.
(175) For a detailed analysis of the Court’s approach in migration cases, see Saroléa, Droits de l’homme et migrations (Bruylant, 2006).
(176) ECommHR, X v. Sweden, Appl. 434/58, reproduced in (1959) 28 ILR 242.
(177) ECtHR, Amuur v. France, Appl. 19776/92, 25 Jun. 1996. Confirmed: Z.A. v. Russia, Appl. 61411/15, 28 Mar. 2017.
(178) Ibid., para. 41.
(179) Ibid., para. 43.
(180) Ibid., para. 48.
(182) Ibid., para. 43.
(183) The Court had already recognized the implicit nature of secondary rights ancillary to principal rights expressly contemplated in the Convention. See, e.g., Golder v. UK, Appl. 4451/70, 21 Feb. 1975, paras 35–36, on the right ‘to access to a court’ as being implicit in Art. 6(1) ECHR. See also Soering (n 1).
(184) ECtHR, Hussun v. Italy, Appl. 10171/05, 11 May 2006, p. 21. See also Gebremedhin v. France, Appl. 25389/05, 26 Apr. 2007, disclosing a similar incident, and Gomaa Hamed and 196 Others v. Italy, Appl. 24697/05, struck out of the list of cases on 14 Sept. 2005 due to loss of contact with the applicants.
(185) ECtHR, Hussun v. Italy, Appl. 10171/05, 19 Jan. 2010.
(189) Ibid., para. 177.
(191) Ibid., para. 180.
(192) Ibid., para. 177.
(193) Criticizing this practice, see UN Special Rapporteur on the Human Rights of Migrants, Third Country Visit (Italy), Regional Study on the Human Rights of Migrants at the Borders of the EU, 8 Oct. 2012, A/HRC/23/46/Add.3; and Follow-up Mission to Italy, 2–6 Dec. 2014, A/HRC/29/36/Add.2. See also ECtHR, Khlaifia v. Italy, Appl. 16483/12, 1 Sept. 2015, citing Amuur (n 177) with approval, at para. 119.
(194) Sharifi (n 141), para. 215 (original text): ‘… les « réadmissions » mises en œuvre par les autorités italiennes … privent les personnes concernées de toute possibilité effective d’introduire une demande d’asile et, finalement, de tout droit procédural et matériel’.
(195) Ibid., para. 219 (original text): L’article 4 du Protocol no 4 entraîne ‘une certaine forme d’examen individuel de la situation de ce requérant et de ses besoins de protection’.
(196) Ibid. The exact words used are ‘renvois automatiques’ and ‘refoulements immédiats’.
(197) Ibid., paras 233 and 242–243.
(198) ECtHR, M.S.S. v. Belgium and Greece, Appl. 30696/09, 21 Jan. 2011. For commentary, see Moreno-Lax, ‘Dismantling the Dublin System: M.S.S. v Belgium and Greece’ (2012) 14 EJML 1 and references therein.
(199) For an account of the Greek situation at the time, see McDonough and Tsourdi, ‘Putting solidarity to the test: assessing Europe’s response to the asylum crisis in Greece’, New Issues in Refugee Research, Research Paper No. 231 (UNHCR, 2012).
(200) M.S.S. (n 198), para. 217: ‘Where the Court is called upon to examine the conformity of the manner and method of the execution of the measure with the provisions of the Convention, it must look at the particular situations of the persons concerned’.
(202) Ibid., para. 225 (emphasis added). See also para. 231: ‘… such conditions, which are found in other detention centres in Greece, amounted to degrading treatment within the meaning of Article 3 of the Convention. In reaching that conclusion, it took into account the fact that the applicants were asylum seekers’.
(203) Ibid., para. 251. See also para. 232, where the Court noted that, as an asylum seeker, the applicant ‘was particularly vulnerable because of everything he had been through during his migration and the traumatic experiences he was likely to have endured previously’. In para. 233 the Court added that his distress ‘was accentuated by the vulnerability inherent in his situation as an asylum seeker’.
(211) Art. 31(3)(c) VCLT. For an elaboration, see Moreno-Lax, ‘Systematising Systemic Integration: “War Refugees”, Regime Relations, and a Proposal for a Cumulative Approach to International Commitments’ (2014) 12 JICJ 907. See, extensively, Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration (Brill, 2015).
(212) ECtHR, Al-Saadoon v. UK, Appl. 61498/08, 2 Mar. 2010, para. 126; Al-Adsani v. UK, Appl. 35763/97, 21 Nov. 2001, para. 55; Bosphorus v. Ireland, Appl. 45036/98, 30 Jun. 2005, para. 150.
(215) VG Stuttgart, A 11 K5036/13, Judgment of 25 Mar. 2014.
(216) Cf. Bangkok Principles on the Status and Treatment of Refugees (adopted by the African-Asian Legal Consultative Organisation, 40th Sess., New Delhi, 24 Jun. 2001), Art. 2(3), which is not legally binding.
(217) American Convention on Human Rights, 1144 UNTS 123. See also the American Declaration on the Rights and Duties of Man, Art. 27.
(218) African Charter on Human and Peoples’ Rights (1982) 21 ILM 58.
(219) Jeannin et al., Le droit d’asile en Europe: Etude comparée (L’Harmattan, 1999). For a survey in preparation for legal harmonization at EU level, see national reports in Higgins and Hailbronner (eds), Migration and Asylum Law and Policy in the European Union: FIDE 2004 National Reports (CUP, 2004).
(220) Moderne, Le droit constitutionnel d’asile dans les Etats de l’Union Européenne (Economica, 1997).
(221) For the detailed list of countries, see Gil-Bazo (n 7), at 23–25 and references therein. Cf. Lambert, Messineo and Tiedemann, ‘Comparative Perspectives of Constitutional Asylum in France, Italy and Germany: Requiescat in Pace?’ (2008) 27 RSQ 16.
(222) Constitution du 24 juin 1793, Art. 120: ‘[Le Peuple français] donne asile aux étrangers bannis de leur patrie pour a cause de la liberté. Il le refuse aux tyrans’, available at: <http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/la-constitution/les-constitutions-de-la-france/constitution-du-24-juin-1793.5084.html>.
(223) For a description of the phenomenon through which constitutional asylum became confused and merged with conventional refuge in France, see Labayle, ‘Le droit d’asile en France: normalisation ou neutralisation?’ (1997) 13 RFDA 242; Teitgen-Colly and Julien-Laferrière, ‘La réforme du droit d’asile’, L’Actualité juridique—Droit Administratif (20 Déc. 1998) 1002–4; Delouvin, ‘The Evolution of Asylum in France’ (2000) 13 JRS 61; Castagnos-Sen, Les conditions d’exercice du droit d’asile en France (La documentation française, 2006).
(224) Hailbronner and Gogolin, ‘Territorial Asylum’, in Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (OUP, 2013), para. 3.
(225) The notion of permanence is, however, not completely absent from the text of the 1951 Convention. Art. 34 thereof requires State Parties to facilitate naturalization ‘as far as possible’. See Marx, ‘Article 34’, in Zimmermann (ed.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (OUP, 2011) 1441.
(226) For a similar conclusion, see Brunelli, ‘Article 18—Right to Asylum’, in Mock et al. (eds), Commentary on the Charter of Fundamental Rights of the European Union (Carolina Academic Press, 2010) 117, at 118.
(228) Worster, ‘The Contemporary International Law Status of the Right to Receive Asylum’ (2014) 26 IJRL 477, at 478 (emphasis added).
(229) For a full list of countries from all regions following this practice, see Worster (n 228), at 488, fn. 88. See also Towards a Reform of the CEAS, COM(2016) 197, at 5: ‘ … the granting of international protection status in EU Member States has in practice almost invariably led to permanent settlement in the EU’.
(230) (Libya v. Malta) Continental Shelf Case  ICJ Rep. 13, at 33; The ‘Paquete Havana’  175 US 677.
(231) For detailed references, see Worster (n 228), at 490, fn. 102, including Belgium, Bulgaria, Czech Republic, France, Germany, Hungary, Italy, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, and Spain.
(234) UNHCR EXCOM Conclusion No. 82 (XLVIII): Safeguarding Asylum (1997), para. d(vi). See also Conclusion No. 19 (XXXI) (1980), para. c; Conclusion No. 22 (XXXII) (1981), para. B; and Conclusion No. 36 (XXXVI) (1985), para. f. Cf. UNHCR, Annotated Comments on the EC Council Directive 2004/83/EC, Jan. 2005, at 10–11, following the same trend.
(235) ILC, Second Report on the Expulsion of Aliens (Kamto Rapp.), A/CN.4/573, at 97.
(236) Gil-Bazo (n 7), at 25 and references therein, where she further defends the position that ‘asylum constitutes a general principle of international law and, as such, it is legally binding …’, at 28.
(237) On this point see, e.g., Joly, Heaven or Hell? Asylum Policies and Refugees in Europe (Palgrave, 1996). For a chronological overview, see also van Heuven Goedhart, The Problems of Refugees, Collected Courses Vol. 82 (The Hague Academy of International Law, 1953); Schnyder, Les aspects juridiques actuels du problème des refugiés, Collected Courses Vol. 114 (The Hague Academy of International Law, 1965); Aga Khan, Legal Problems relating to Refugees and Displaced Persons, Collected Courses Vol. 149 (The Hague Academy of International Law, 1976); and Casanova, La protection internationale des réfugiés et des personnes déplacées dans les conflits armés, Collected Courses Vol. 306 (The Hague Academy of International Law, 2003).
(238) This trend has also been followed in other regions as well as by other treaty bodies. See, extensively, Gil-Bazo, ‘Refugee Protection under International Human Rights Law: From Non-Refoulement to Residence and Citizenship’ (2015) 34 RSQ 11.
(239) Den Heijer, ‘Article 18—Right to Asylum’, in Peers et al. (eds), Commentary on the EU Charter of Fundamental Rights (Hart, 2014) 519, at 533.
(240) See, generally, Bouteillet-Paquet (ed.), Subsidiary Protection of Refugees in the European Union (Bruylant, 2002); McAdam, Complementary Protection in International Refugee Law (OUP, 2007); and McAdam, ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ (2005) 17 IJRL 461.
(241) I-ACtHR, Familia Pacheco Tineo v. Bolivia (Judgment) (2013) Ser. C. No. 272, at 2.
(242) EMN, Synthesis Report: The Different National Practices Granting Non-harmonised Protection Statuses (Dec. 2010).
(243) Joined Cases C 57/09 and 101/09 B & D  ECR I-10979, para. 121.
(244) De Bruycker, ‘D’un système européen d’asile vers un droit européen des réfugiés’, in Carlier and Vanheule (eds), Europe and Refugees (Kluwer, 1997) 159; Vevstad, Refugee Protection: A European Challenge (Tano Aschehong, 1998); Hailbronner, Immigration and Asylum Law and Policy in the European Union (Kluwer, 2000); Guild, Immigration Law in the European Community (Kluwer, 2000), chs 7–9; Berger, La politique européenne d’asile et d’immigration (Bruylant, 2000); Noll, Negotiating Asylum (Martinus Nijhoff, 2000); Boccardi, Europe and Refugees (Kluwer, 2002).
(246) Art. 61 EC, Amsterdam.
(247) For a review of this period, see Guild and Harlow (eds), Implementing Amsterdam (Hart, 2001); De Bruycker (ed.), The Emergence of a European Immigration Policy (Bruylant, 2003); Hathaway, ‘What’s in a Label?’ (2003) 5 EJML 1; De Bruycker and Dias Urbano de Sousa (eds), The Emergence of a European Asylum Policy (Bruylant, 2004); Labayle, ‘Le bilan du mandat de Tampere et l’espace de liberté, sécurité et justice de l’Union européenne’ (2004) 40 CDE 591; Julien-Laferrière, Labayle and Edstrom (eds), La politique européenne d’immigration et d’asile (Bruylant, 2005); Labayle, ‘L’espace de liberté, sécurité et justice dans la Constitution pour l’Europe’ (2005) RTDE 437.
(248) EC Tampere Conclusions, paras 14–15. This gradual approach is reflected in former Art. 63 EC Amsterdam read in conjunction with current Art. 78 TFEU. It is under The Stockholm Programme that the CEAS should have been completed. See Council doc. 17024/09, p. 59, establishing 2012 as the deadline for finalization.
(249) Council Regulation (EC) 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,  OJ L 50/1 (‘Dublin Regulation’ or ‘DR II’); Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers,  OJ L 31/18 (‘original Reception Conditions Directive’ or ‘ORCD’); Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted,  OJ 304/12 (‘original Qualification Directive’ or ‘OQD’); Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status,  OJ L 326/13 (‘original Procedures Directive’ or ‘OPD’). For analysis, refer to Battjes, ‘The Common European Asylum System: The First Stage’, in Carlier and De Bruycker (eds), Immigration and Asylum Law of the EU: Current Debates (Bruylant, 2005) 27; Battjes, European Asylum Law and International Law (Martinus Nijhoff, 2006); Peers and Rogers, EU Immigration and Asylum Law, (Martinus Nijhoff, 2006); Sidorenko, The Common European Asylum System (T.M.C. Asser Press, 2007).
(250) Directive 2011/95/EU 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 (recast),  OJ L 337/9 (‘Qualification Directive’ or ‘QD’); Directive 2013/32/EU on common procedures for granting and withdrawing international protection,  OJ L 180/60 (‘Procedures Directive’ or ‘APD’); Directive 2013/33/EU laying down standards for the reception of applicants for international protection,  OJ L 180/96 (‘Reception Conditions Directive’ or ‘RCD’); 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 or a stateless person,  OJ L 180/31 (‘DR III’). For analysis, see Peers et al., EU Immigration and Asylum Law, Vol. 3 (Brill, 2nd edn, 2015).
(252) The right to leave is considered part and parcel of the free movement rights of EU citizens. See, e.g., Case C-33/07 Jipa  ECR I-5157; Case C-430/10 Gaydarov  ECR I-11637; Case C-434/10 Aladzhov  ECR I-11659; Case C-249/11 Byankov ECLI:EU:C:2012:608. But there is no similar provision benefiting third country nationals.
(253) Common Recital 2 DR III; RCD; APD; and QD.
(254) Common Recital 3 DR III; RCD; APD; and QD.
(255) Recital 39 DR III; Recital 35 RCD; Recital 60 APD; Recital 16 QD. On the migration control facet of the EU asylum acquis, see extensively Moreno-Lax, ‘Life after Lisbon: EU Asylum Policy as a Factor of Migration Control’, in Acosta and Murphy (eds), EU Justice and Security Law (Hart, 2014) 146.
(256) Joined Cases C-175, 176, 178 and 179/08 Abdulla  ECR I-1493, paras 51–54; Case C-31/09 Bolbol  ECR I-5539, paras 36–38; Joined Cases C-57 and 101/09 B and D  ECR I-10979, paras 76–78; Joined Cases C-71/11 and C-99/11 Y and Z ECLI:EU:C:2012:518, paras 47–48; Case C-364/11 El Kott ECLI:EU:C:2012:826, paras 42–43; Joined Cases C-199/12 to C-201/12 X, Y and Z ECLI:EU:C:2013:720, paras 39–40; Case C-604/12 H.N. ECLI:EU:C:2014:302, para. 27 ff; Joined Cases C-148/13 to C-150/13 A, B and C ECLI:EU:C:2014:2406, paras 45–46; Case C-472/13 Shepherd ECLI:EU:C:2015:117, paras 22–23; Joined Cases C-443/14 and C-444/14 Alo & Osso ECLI:EU:C:2016:127, paras 28–29.
(257) Joined Cases C-411/10 and C-493/10 N.S. and M.E.  ECR I-13905, para. 77; Case C-305/05 Ordre des Barreaux  ECR I-5305, para. 28; Case C-101/01 Lindqvist  ECR I-12971, para. 87.
(258) Braibant, La Charte des droits fondamentaux de l’Union européenne (Seuil, 2001), 144–8, at 145.
(259) Council doc. 10596/02 ASILE 36.
(260) CHARTE 4137/00 CONVENT 8, at 6; and CHARTE 4333/00 CONVENT 36, at 5.
(261) Explanations relating to the Charter of Fundamental Rights,  OJ C 303/17 (‘Charter Explanations’), at 24, providing that:
The text of the article has been based on … Article 78 of the Treaty on the Functioning of the European Union, which requires the Union to respect the Geneva Convention on refugees. Reference should be made to the Protocols … annexed to the Treaties … [including] the Protocol on Asylum …
(262) Art. 78(2)(c), (g) and (3) TFEU.
(263) Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law’ (2008) 27 RSQ 33.
(264) Labayle, ‘The Impact of Article 18 of the Charter of Fundamental Rights’, in De Bruycker et al., Setting up a Common European Asylum System, PE 425.622 (European Parliament, 2010), at 427–33; and Hailbronner and Gogolin (n 224), para. 36.
(265) Recital 5 CFR. See also CHARTE 4332/00 CONVENT 35, at 495–528.
(267) Peers, ‘Human Rights, Asylum and European Community Law’ (2005) 24 RSQ 24. See also AG Maduro, Opinion in Case C-465/07 Elgafaji  ECR I-921, para. 21: ‘The fundamental right to asylum … follows from the general principles of Community law which, themselves, are the result of constitutional traditions common to the Member States’.
(269) Case C-528/11 Halaf ECLI:EU:C:2013:342.
(272) Art. 6 EU and 51 EUCFR. See ch 7 for an elaboration.
(275) Ibid., para. 81.
(276) Ibid., para. 86.
(277) Ibid., paras 87–93.
(278) Ibid., paras 94 and 106.
(279) Ibid., paras 90–92.
(280) Ibid., paras 99–105.
(281) Ibid., paras 98 and 108.
(282) The N.S. (n 257) approach was confirmed in Case C-4/11 Puid ECLI:EU:C:2013:740, para. 30; and Case C-394/12 Abdullahi ECLI:EU:C:2013:813, paras 60 and 62. Cf. ECtHR, Tarakhel v. Switzerland, Appl. 29217/12, 4 Nov. 2014, para. 104: ‘The source of the risk [of exposure to ill-treatment] does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person’s removal. It does not exempt that State from carrying out a thorough and individualised examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk … be established’. For analysis, see Costello, The Human Rights of Migrants and Refugees in European Law (OUP, 2015), at 265 ff.
(285) Case C-63/15 Ghezelbash ECLI:EU:C:2016:409, para. 52. Confirmed in Case C-155/15 Karim ECLI:EU:C:2016:410. For another recent assertion of the principle of effectiveness of EU refugee rights in the Dublin context, see Case C-245/11 K ECLI:EU:C:2012:685, para. 31.
(286) Recital 4, Preamble CFR.
(287) Recital 5, Preamble CFR.
(288) For a similar conclusion, see Ladenburger, ‘L’apport de la Charte dans le domaine des droits civils et politiques’, in Carlier and De Schutter (eds), La Charte des droits fondamentaux de l’Union européenne (Bruylant, 2002) 105, at 114.
(289) CHARTE 4111/00 BODY 3.
(290) Protocol (No 24) on asylum for nationals of Member States of the European Union (‘Asylum Protocol’),  OJ C 83/30.
(291) CHARTE 4137/00 CONVENT 8, Art. 17 and CHARTE 4284/00 CONVENT 28, Art. 21.
(292) CHARTE 4332/00 CONVENT 35.
(293) CHARTE 4333/00 CONVENT 36, Art. 21 and CHARTE 4422/00 CONVENT 45, Art. 18.
(294) CHARTE 4487/00 CONVENT 50, Art. 18.
(295) The beneficiaries of all CEAS instruments are ‘third-country nationals’ alone. See Art 2(b) RCD; Art 2(d) and (f) QD; Art 2(c) DR III; Art 2(c) APD.
(297) See Motion for Resolution on asylum for Basque refugees in France, Doc. 2-619/84, PE 107.655/Ann.I/fin., and Motion for a Resolution on the forced deportation of Basque refugees by the French Government, Doc. 2-754/84, PE 107.655/Ann.I/fin.
(298) Memorandum from Spain on the Admissibility of Asylum for Citizens of the Union, CONF 3826/1/97 REV 1 LIMITE, p. 2.
(299) Ibid., p. 3.
(300) Ibid., p.1.
(301) Ibid., pp. 1–2.
(303) See, in particular, Wayembergh and Bribosia, ‘Le citoyen européen privé du droit d’asile?’ (1997) JTDE 204; and Julien-Laferrière, ‘La compatibilité de la politique d’asile de l’Union européenne avec la Convention de Genève du 28 juillet 1951 relative au statut des réfugiés’, in Chetail and Flauss (eds), La Convention de Genève du 28 juillet 1951 relative au statut des réfugiés—50 ans après (Bruylant, 2001) 257. For a succinct account, refer to Carlier (n 103) 53–6.
(304) Art. 42 CSR51 foresees that: ‘At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16(1), 33, 36–46 inclusive’.
(305) Recital 17 QD in light of Art 78 TFEU. Cf. Case C-175/11 H.I.D. ECLI:EU:C:2013:45, paras 71 and 74, accepting nationality/country of origin as a valid ground for procedural distinctions, provided that ‘prioritised [arrangements] do not deprive applicants … of the guarantees required by [the APD] which apply to all forms of procedure’.
(307) Recital 5, Preamble CFR.
(308) Cf. Art. 14 UDHR.
(309) Art. 51 CFR.
(310) See Art. 78 TFEU, requiring the Union to develop a common policy on asylum, read in conjunction with the ‘principle of sincere cooperation’ in Art. 4(3), 2nd indent, TEU, according to which the Member States ‘shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’. See also Art. 288 TFEU on the effects of secondary legislation on Member States.
(313) CHARTE 4332/00 CONVENT 35, Amendments 415, 426 and 428.
(314) Recital 5, CFR Preamble.
(315) Art. 52(3) CFR.
(316) Recital 5 and Art. 53 CFR.
(317) Note that, according to Recital 45 QD, subsidiary protection status is based on ‘international obligations under human rights instruments and practices existing in Member States’.
(319) Art. 6(1) TEU.
(320) Art. 6(3) TEU. See ch 7 for analysis.
(321) The citizenship provisions contained in both Arts 20–24 TFEU and Arts 39–46 CFR seem to provide a clearer example of subordination (as opposed to the complementarity advocated above). See, for instance, the commentary on Art. 45 CFR on freedom of movement of EU citizens, establishing that the Charter right ‘is the right guaranteed by Art. 20(2)(a) of the Treaty’ and, ‘[i]n accordance with Art. 52(2) of the Charter, to be applied under the conditions and within the limits defined by the Treaties’. This formula is repeated with regard to Arts 39, 40, 41(4), 42, 43, 44, and 46 of the Charter, but is not used for Art. 18.
(322) Art. 51(2) CFR: ‘The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. This is the reason why CEAS instruments take Art. 78 TFEU as their legal basis, but then refer to the ‘full respect’ of the ‘right to asylum’ contained in Art. 18 CFR as the main objective they seek to ensure. See Recital 16 QD; Recital 35 RCD; Recital 60 APD; and Recital 39 DR III.
(323) Halaf, Administrative Court of Sofia, Judgment No 297, 15 Jan. 2014, cited in Gil-Bazo (n 7), at 27 (emphasis added). This seems to be also the understanding of the Luxembourg Court, when considering both provisions together. See N.S. (n 257), para. 75: ‘The [CEAS] is based on the full and inclusive application of the Geneva Convention and the guarantee that nobody will be sent back to a place where they again risk being persecuted. Article 18 of the Charter and article 78 TFEU provide that the rules of the Geneva Convention … are to be respected’ (emphasis added).
(324) Teitgen-Colly, ‘Article II-78—Droit d’asile’, in Burgorgue-Larsen, Levade and Picod (eds), Traité établissant une constitution pour l’Europe, Partie II (Bruylant, 2005) 253, at 265. The original reads that: ‘A fortiori l’intégration dans le système européen commun d’asile des statuts de protection subsidiaire et temporaire qui ont pour objet même, à la différence de la protection de la Convention de Genève, l’octroi d’un asile territorial, confirme que ce système implique un droit d’asile territorial pour ses bénéficiaires’.
(325) Gil-Bazo, ‘Refugee Status and Subsidiary Protection under EC Law: the Qualification Directive and the Right to be Granted Asylum’, in Baldaccini, Guild and Toner (eds), Whose Freedom, Security and Justice? (Hart, 2007) 228.
(326) Art. 1 QD.
(327) Art. 2(a) QD.
(328) Art. 2(e) and (g) QD.
(329) Note, however, that the QD acknowledges in Recital 21 that ‘[t]he recognition of refugee status is a declaratory act’.
(331) Case C-542/13 M’Bodj ECLI:EU:C:2014:2452, para. 29 (emphasis added).
(332) Art. 20(1) QD. See also UNHCR Public Statement in Relation to Zuheyr Freyeh Halaf v. the Bulgarian State Agency for Refugees pending before the Court of Justice of the European Union (Aug. 2012), available at: <http://www.refworld.org/docid/5017fc202.html>.
(333) Art. 78(1) TFEU.
(334) Art. 24 QD (emphasis added).
(335) Art. 2(m) QD.
(336) Case C-373/13 H.T. ECLI:EU:C:2015:413, para. 53 (emphasis added).
(338) For conditional rights of entry and residence for different categories of EU citizens and their family members refer to Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States,  OJ L 158/77 (‘Citizenship Directive’). Note that restrictions on the right of entry, residence and protection against expulsion are permitted in exceptional circumstances on grounds of public policy, public security and public health under Arts 27–33. See, e.g., Case C-145/09 Tsakouridis  EU:C:2010:708, para 43 (public security); and Byankov (n 252), para 40 (public order).
(339) Art. 288 TFEU: ‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’.
(341) Braibant in his commentary to Art. 18 (n 258), at 148, has noted that: ‘l’expression “droit d’asile” … ne signifie évidemment pas que ceux qui le demandent ont automatiquement le droit de l’obtenir’.
(342) See the general limitation clause in Art. 52(1) CFR.
(344) Cf. Case C-84/12 Koushkaki ECLI:EU:C:2013:862; and Case C-254/11 Shomodi ECLI:EU:C:2013:182. Compliance with fundamental rights is compulsory, even when exercising State discretion within the scope of application of EU law. See also Case C-540/03 Parliament v. Council  ECR I-5769, para. 70: ‘The fact that the concept of integration is not defined [in the FRD] cannot be interpreted as authorizing the Member States to employ that concept in a manner contrary to general principles of Community law, in particular to fundamental rights’.
(345) Council Directive 2003/86/EC on the right to family reunification,  OJ L 251/12 (‘FRD’).
(346) Art. 4(1) FRD establishes that: ‘The Member States shall authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members …’.
(347) Case C-578/08 Chakroun  ECR I-1839, para. 41.
(349) Ibid., para. 43. See also Case C-571/10 Kamberaj ECLI:EU:C:2012:233, para 86, for an identical approach regarding the rights of long-term residents under EU law.
(351) Ibid., para. 46, referring to Case C-291/05 Eind  ECR I-10719; and para. 64, referring to Case C-127/08 Metock  ECR I-6241.
(352) CHARTE 4332/11 CONVENT 35, at 496–528.
(353) For the ‘aggregate standards’ approach to the ‘integrative interpretation’ of Charter rights refer to ch 7. See also above.
(354) The purpose of the instrument is to establish ‘common procedures for granting and withdrawing international protection’. See Art. 1 APD and Art. 78(2)(d) TFEU.
(355) Art. 7(1) APD (emphasis added).
(356) Art. 2(b) APD (emphasis added). See also Art 2(h) QD; Art 2(a) RCD; Art 2(b) DR III.
(357) Case C-69/10 Diouf  ECR I-7151, para. 33.
(358) Recital 5 DR III.
(359) Art. 3(1) DR III.
(361) Art. 3(1) and (3) APD; Art. 3(1) and (2) RCD; Art. 3(1) DR III.
(362) Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, COM(2001) 510, draft Art. 3: ‘This Directive shall apply to all third country nationals and stateless persons who make an application for international protection at the border or on the territory of a Member State and to their accompanying family members and to all those who receive such protection’.
(363) Council doc. 7882/02 ASILE 2002/20, at 5, fn. 4.
(364) Council doc. 10596/02 ASILE 2002/36.
(365) Council doc. 12199/02 ASILE 2002/45. Note that the 2011 QD has not revisited the issue and prolongs the silence on this point.
(367) Consider, however, that during recast negotiations, leading to the 2011 version of the Directive, the EU legislator had a chance to clarify the point and chose not to introduce any change to this effect.
(368) See also Case C-214/94 Boukhalfa  ECR I-2253, as expounded in ch 8.
(369) Art. 78(2)(a) to (f) TFEU.
(370) See, e.g. asylum claims by EU citizens, which are not regulated in detail in an instrument of secondary law, beside the very general terms of the Asylum Protocol (n 290), and yet, as per s 4.3.1 above, are not excluded from the scope of application of Article 18 CFR. Note also that the proviso of former Art. 63(1)(a), (b) and (d) EC (Amsterdam) regarding the adoption of ‘minimum standards’ for procedures, qualification and reception ‘in [the] Member States’ has disappeared in the Lisbon version of the Treaty.
(373) Arts 6 TEU and 51 CFR are also relevant in this regard.
(375) Mutatis mutandis, Case C-144/04 Mangold  ECR I-9981; and Case C-37/06 Viamex  ECR I-69.
(376) Case C-60/00 Carpenter  ECR I-6279.
(377) Art. 56, 1st indent, TFEU (ex Art. 49 EC), provides that: ‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended’. See also Case C-384/93 Alpine Investments  ECR I-1141, paras 15 and 20–22. For the general framework see Arts 57–62 TFEU. See, in particular, Art. 61 TFEU, establishing that: ‘As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of article 56’.
(379) Council Directive 73/148/EEC on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services,  OJ L 172/14.
(382) Ibid., paras 41 and 45. For the entire reasoning see paras 36–45.
(383) See, e.g., Weatherill, EU Law (OUP, 12th edn, 2016) chs 13–15; Barnard, The Substantive Law of the EU (OUP, 5th edn, 2016) ch 10; Nic Shuibhne, ‘The Resilience of EU Market Citizenship’ (2010) 47 CMLRev 1597; Wollenschlager, ‘A New Fundamental Freedom Beyond Market Integration’ (2010) 35 ELRev 1.
(384) Case C-413/99 Baumbast  ECR I-7091.
(385) Ibid., para. 84.
(386) Ibid., para. 85.
(387) Ibid., para. 86.
(388) Ibid., paras 91 and 94.
(389) See, among many others, Case C-148/02 García Avelló  ECR I-11613; Case C-200/02 Chen  ECR I-9925; Case C-209/03 Bidar  ECR I- 2119; Case C-353/06 Grunkin  ECR I-7639; Case C-208/09 Sayn-Wittgenstein  ECR I-13693; Case C-34/09 Zambrano  ECR I-1177. For the discussion on the limits of Arts 20 and 21 TFEU and the extent of ‘purely internal situations’ see, e.g., Nic Shuibhne, ‘Free Movement of Persons and the Wholly Internal Rule: Time to Move on?’ (2002) 29 CMLRev 731; Costello, ‘Citizenship of the Union: Above Abuse?’, in de la Feria and Vogenauer (eds), Prohibition of Abuse of Law (Hart, 2011) 321; Lansbergen and Miller, ‘European Citizenship Rights in Internal Situations: An Ambiguous Revolution’ (2011) 7 ECLRev 287.
(390) Cf. Case -333/13 Dano ECLI:EU:C:2014:2358; Case C-67/14 Alimanovic ECLI:EU:C:2015:597, aligning Treaty rights to Art. 24(2) of the Citizenship Directive (n 338). See also Thym, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52 CMLRev 17.
(391) On the possible non-applicability of Art. 52(1) CFR to the right to asylum, see Peers, ‘Immigration, Asylum and the European Charter of Fundamental Rights’ (2001) 3 EJML 141, at 157. See, also, Den Heijer (n 239), at 537.
(393) See ch 8 for details.
(395) Art. 51(1) CFR.
(396) Case C-617/10 Fransson ECLI:EU:C:2013:105, para. 21.
(397) JHA Council conclusions on 29 measures for reinforcing the protection of the external borders and combating illegal immigration, 25–26 Feb. 2010, para. e. See further ch 2.
(398) On the right to leave as an implicit component of the right of EU citizens to free movement, see Case C-33/07 Jipa  ECR I-5157, paras 17–20. At para. 18 the Court establishes that: ‘… the right of freedom of movement includes both the right for citizens of the European Union to enter a Member State other than the one of origin and the right to leave the State of origin … the fundamental freedoms guaranteed by the EC Treaty would be rendered meaningless if the Member State of origin would, without valid justification, prohibit its own nationals from leaving its territory in order to enter the territory of another Member State’ (emphasis added). See also, mutatis mutandis, Case 81/87 Daily Mail  ECR 5483, para. 16; Case C-379/92 Peralta  ECR I-3453, para. 31; Case C-415/93 Bosman  ECR I-4921, para. 97; Case C-232/01 Hans van Lent  ECR I-11525, para. 21.
(399) Regulation (EC) 2016/399 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code),  OJ L 77/1, (‘SBC’), recital 20. See ch 3 for further details.
(400) Regulation (EC) 810/2009 establishing a Community Code on Visas (Visa Code),  OJ L 243/1, (‘CCV’) Recital 29: ‘This regulation respects fundamental rights and observes the principles recognised in particular by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union’. See ch 4 for analysis.
(401) Regulation (EU) 493/2011 amending Council Regulation (EC) 377/2004 on the creation of an immigration liaison officers network,  OJ L 141/13 (‘ILOR’), Recital 10: ‘This Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union and reflected in the European Convention for the Protection of Human Rights and Fundamental Freedoms, in accordance with Article 6 of the Treaty on European Union’. See ch 5 for details.
(402) Art. 26(1), Convention Implementing the Schengen Agreement of 14 June 1985,  OJ L 239/19 (‘CISA’). See also Recital 3 of Council Directive 2001/51/EC supplementing the provisions of Article 26 [CISA] (‘CLD’). Refer to ch 5 for a thorough examination.
(403) Art. 4(2) CLD.
(404) Art. 34(1), Regulation (EU) 2016/1624 on the European Border and Coast Guard,  OJ L 251/1 (‘EBCG’); and Arts 3 and 4, Regulation (EU) 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by [FRONTEX],  OJ L 189/93 (‘MSR’). See ch 6 for analysis.
(405) Art. 6(5)(c) SBC.
(406) Art. 14(1) SBC.
(407) Art. 6(1) SBC.
(408) Letter to the Immigration Law Practitioners’ Association, Ref. 12425/19.12.2008, 21 Jan. 2009 (on file).
(409) Arias Fernandez, former Frontex Deputy Executive Director, quoted in ‘Immigration: Illegal Arrivals from Sea Halved in Italy’, ANSAmed, 9 Jul. 2009.
(410) See, e.g., Frontex General Report 2006, at 12 (regarding HERA): ‘close to 5,000 … could be stopped from setting off ’.
(411) Frontex Press Release, A sequel of operation HERA just starting, 15 Feb. 2007.
(412) See Arts 25 and 19 CCV.
(413) R v. SSHD, ex parte Khalil Yassine et al.  Imm AR 354 per J Schiemann.
(415) See Hein and de Donato, Exploring avenues for protected entry in Europe (Italian Council for Refugees, 2012), p. 17, at: <https://www.cir-onlus.org/images/pdf/ET%20VOLUME%20FINALE%20OK.pdf.p0001.pdf>; and ECRE, Defending Refugees’ Access to Protection in Europe (Brussels, 2007), at: <https://www.ecre.org/wp-content/uploads/2016/07/ECRE-Defending-Refugees-Access-to-Protection-in-Europe_December-2007.pdf>.
(416) Case C-327/02 Panayotova  ECR I-11055.
(419) Case C-136/03 Dörr and Ünal  ECR I-4759, para. 52.
(420) Mutatis mutandis, ECtHR, Medvedyev v. France (judgment), Appl. 3394/03, 29 Mar. 2010, para. 80.
(421) This is the expression used in the wording of Art. 18 CFR.
(426) Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, approved by Decision 94/908/EC, ECSC, Euratom of the Council and the Commission of 19 December 19994,  OJ L 358/1.
(428) Ibid., para. 18.
(429) Ibid., para. 19.
(430) Ibid., para. 20.
(431) Ibid., para. 21.
(432) Ibid., para. 26.
(433) Ibid., para. 27.
(436) Art. 21(1) CCV, matching the general criteria for entry in Art. 6(1) SBC.
(437) Arts 2(d) and 11 QD. Per definition, a refugee under the QD terms is: ‘a [TCN] who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country …’.
(438) Arts 2(f) and 16 QD. ‘“[P]erson eligible for subsidiary protection” means a [TCN] … who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin … would face a real risk of suffering serious harm … and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country’.
(440) On their probable impossibility to meet Art. 47 CFR effective remedy rules, see further ch 10.
(441) See, among many others, ECtHR, Saadi v. Italy, Appl. 37201/06, 28 Feb. 2008.
(443) For a similar approach, see the Belgium Council for Aliens Law Litigation ordering the Aliens Office to grant humanitarian visas to a Syrian family on 20 Oct. 2016, available at: <http://www.vluchtelingenwerk.be/nieuws/belgi-weigert-veilige-toegang-aan-syri-rs?utm_source=ECRE+Newsletters&utm_campaign=bc969af530-EMAIL_CAMPAIGN_2016_11_04&utm_medium=email&utm_term=0_3ec9497afd-bc969af530-420552073>.
(446) Ibid., paras 233–235.
(447) See further ch 8 on this point.
(448) Refer to ch 5 for details.
(450) Ibid., paras 121, 118, 123–128, 131, 133, 137, 156–157.
(453) Art. 19(2), CFR Explanations, at 24.
(457) Art. 78 TFEU.
(458) Art. 18 CFR. Using the ‘guarantee’ formula, see also Art. 34(1) EBCG.
(459) Recital 15 QD: ‘Those [TCN] … who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds fall outside the scope of this Directive’.
(460) For a similar conclusion, drawing on general principles of international law, see Goodwin-Gill, ‘Europe: A Place to Seek, to be Granted, and to Enjoy Asylum?’, in Gortázar Rotaeche et al. (eds), European Migration and Asylum Policies (Bruylant, 2012) 37.
(461) Border and Transborder Armed Actions (Nicaragua v. Honduras)  ICJ Rep. 69, at 94.
(462) See reasoning of HRC in Judge v. Canada, Comm. 829/1998, 5 Aug. 2003, para. 10.4.