#Dr Violeta Moreno-Lax

[rightsinexile]

Do refugees have to stay in the first safe country they reach?

This short piece was contributed by Joël Reland, Factchecker at Full Fact, the UK’s independent factchecking charity. He states that he had help writing this article from Dr Violeta Moreno-Lax, Senior Lecturer (Associate Professor) in Law and Founder of the Immigration Law Programme at Queen Mary University of London.

“[The people trying to cross the Channel from France to the UK] are not refugees…

“Because no one needs refuge from France. Or any of the other numerous safe countries they’ve passed though [sic] en route…

“And who under the Geneva Convention should seek refuge in the first safe country they come to. If they were genuine, that’s what they’d do. They’re not genuine. Just illegal migrants on the take.

Suzanne Evans, 3 January 2019

The above comments, made by former UKIP politician and Brexit campaigner Suzanne Evans, relate to the recent cases of people trying to cross the Channel from France to England in small boats.

Ms Evans cannot know whether the people trying to cross the channel in recent months would be recognised as refugees. This is to be determined by immigration officials in whichever country reviews their asylum applications.

She is also incorrect to say that refugees should seek refuge in the first safe country they come to. Under the UN Refugee Convention, there is no obligation on refugees to do this — an interpretation which is upheld in UK case law. Those trying to cross the Channel can legitimately claim asylum in the UK if they reach it.

That said, refugees who arrive in the UK after passing through another EU country can, under certain circumstances, be returned to the first EU country they entered, under an EU law known as the Dublin Regulation.

What is a refugee? And what is an asylum seeker?

The 1951 UN Refugee Convention (also known as the Geneva Convention) defines what a refugee is, what rights a refugee has, and the responsibilities of states towards refugees.

It defines a refugee as someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” has fled their own country or (if they have no nationality) country of usual residence, and is unable or unwilling to return to it or seek protection from it.

Being recognised as a refugee gives you the right to not to be returned to the country you have fled, as well as a minimum standard of rights and freedoms in a safe country.

An asylum seeker is someone who is in need and search of refuge. The right to seek asylum from persecution in other countries is a universal human right, set out in Article 14 of the UN Declaration of Human Rights.

Practically speaking, an asylum seeker is someone who has applied for refugee status (or another form of international protection) in another country, and is awaiting a decision on that application. They can only apply once they physically reach the country.  

In the UK, once an asylum seeker has had their application processed, they may receive permission to stay as a refugee for five years (after which they can apply to settle in the UK). They may also be given “permission to stay for humanitarian reasons” or other reasons, or their application may be rejected in which case, if no appeal is successful, they have to leave the UK unless they face a “real risk” of serious harm in the case of deportation.

There is no obligation on refugees to claim asylum in the first safe country they reach

Ms Evans is wrong to claim that, under the Geneva Convention, refugees should seek refuge in the first safe country they come to.

It contains no obligation “either explicit or implicit” for refugees to claim asylum in the first safe country they reach, according to immigration lawyer Colin Yeo.

This means that an asylum seeker can arrive in France (or any other country) before travelling to the UK and still legitimately claim to be a refugee. It is then down to the UK to review that application.

It doesn’t matter that these individuals are illegally crossing the channel

Ms Evans describes those seeking to cross the Channel to the UK in small boats as “illegal migrants”.

Although it’s certainly true that crossing the Channel without authorisation isn’t a legal way to enter the UK, Article 31 of the UN Refugee Convention states that refugees cannot be penalised for entering the country illegally to claim asylum if they are “coming directly from a territory where their life or freedom was threatened” provided they “present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

A lot depends here on how to interpret which country people are “coming directly from”. It could be argued, for instance, that as the people crossing the channel are coming directly from France—which is not the country they initially fled—they don’t have the right to claim asylum in the UK.

However, in 1999 a UK judge ruled that “some element of choice is indeed open to refugees as to where they may properly claim asylum.” The judge specified that “any merely short term stopover en route” to another country should not forfeit the individual’s right to claim refugee status elsewhere.

This means people can legitimately make a claim for asylum in the UK after passing through other “safe” countries.

It also cannot be stated with certainty that these individuals crossing the Channel were safe in France, unless we know more about their backgrounds. The European Court of Human Rights has previously found an EU country (Greece) to pose a risk to an Afghan refugee, therefore upholding the refugee’s right to seek asylum elsewhere (Belgium). There is also previous evidence of asylum seekers and migrants in France not being treated as they should be according to French law.

That said, the UK can sometimes return refugees to elsewhere in the EU

The UK could, under certain circumstances, send the people crossing the Channel on dinghies back to France or another EU country upon arrival. This is because of an EU law known as the Dublin Regulation.

Under the terms of the Dublin Regulation, a refugee should normally have their asylum claim examined in the first EU country they enter. If the claim is accepted, they get refugee status in that country.

In practice, this means that upon arrival in the UK asylum seekers will have their fingerprints checked against an EU database known as Eurodac. The database allows immigration officials to see if an asylum seeker has launched an application in any other EU countries, or come into contact with the authorities there, and determine which country should process their claim.

There are some cases in which this rule doesn’t apply. For example, if an applicant for asylum has a family member who has already successfully claimed asylum in another EU country, then that country is where their claim should be reviewed. There are a number of further exceptions, including if the applicant is a minor, if several family members claim asylum around the same time, or of the applicant is dependent on the assistance of a parent or family member legally resident in the EU.

[hudsonespie]

Case filed Against Greece Over Migrant Rescue NGO Crackdown

Following a two-and-a-half-year legal battle in Greek courts, Salam Kamal-Aldeen, founder of the non-profit Team Humanity has filed an unprecedented application with the European Court of Human Rights challenging Greece’s crackdown on NGOs rescuing refugees at sea. 

The application filed with the Strasbourg Court challenges the legality of the Greek authorities’ crackdown on people working to render assistance to persons in distress at sea, in particular Greece's power to prosecute and expose Kamal-Aldeen to a minimum 10 years’ imprisonment, thus suspending his life-saving activities. The best evidence for the political extraneous considerations in prosecuting Kamal-Salam is his complete acquittal, says Team Humanity.

Kamal-Salam’s persecution, the brief submits, is part of an E.U. campaign to oust NGOs who are failing E.U. deterrence-based migration policies not to assist refugees at distress at sea. These measures, aimed ultimately at curbing unwanted maritime crossings, have been adopted as part of the implementation of the E.U.-Turkey “deal” of March 2016, according to Global Legal Action Network (GLAN).

GLAN legal advisor Dr. Violeta Moreno-Lax said: “The Strasbourg Court has now the opportunity to condemn the growing trend in Greece and Europe of criminalizing solidarity. Rescue is not a crime; it is a binding duty under international law. Humanitarian assistance of persons in distress at sea should never be prosecuted. Attacking civil society constitutes an assault on the main values of democracy. Rescuers should instead be celebrated and protected as selfless guarantors of the most basic human rights.”

GLAN legal advisor Omer Shatz added: “The E.U. and its Member States are targeting rescue NGOs, but the victims of their policies are tens of thousands asylum seekers in distress at sea. Mass killing of civilians by drowning, pushing survivors back to camps they fled from, preventing their disembarkation at safe ports are not only human rights violations, they are crimes for which GLAN will continue to pursue accountability. The Strasbourg Court should find the persecution by prosecution strategy to be incompatible with the fundamental principles of the European Convention on Human Rights.”

The U.K.-based charity Human Rights at Sea has issued a statement saying it fully supports this effort to bring a change to the trend of criminalization of solidarity and humanitarian search and rescue which remains a binding duty under international law. 

Background provided by GLAN

Since arriving in Greece, after the body of Alan Kurdi was washed ashore in September 2015, Salam Kamal-Aldeen has worked to promote the rights of refugees on Lesbos. With Team Humanity, he has routinely contributed to operational efforts by the Hellenic Coast Guard (HCG), participating in over 150 missions, rescuing up to 200 persons a day.  

Although their cooperation ran smoothly until January 2016, things changed on January 14 when, around 2:30 am, Kamal-Aldeen received a message about a boat in distress carrying asylum-seekers in the area near the Mytilene airport. No coordinates were provided. He immediately reached out to his crew and prepared to deliver assistance, notifying the HCG. The aim was to locate the boat in distress and remain nearby until the HCG arrived; they would intervene only in case of imminent danger. Not knowing the exact location of the shipwreck, they spent some time searching. Unable to locate any boat within Greek territorial waters, they finally decided to change course and return towards Lesbos.

Meanwhile, the HCG had been informed of the presence of adrift boats with migrants at 1:05 am and had given an order to one of its vessels for a rescue operation. The HCG vessel located two adrift boats within Turkish territorial waters at 1:50 and 1:55 am, notified the Central HCG and remained nearby until the boats were retrieved by the Turkish Coast Guard (TCG). The third adrift boat was located at 2:00 am within Turkish territorial waters and was also recovered by the TCG. Around 3:10 am, the HCG located the Team Humanity boat and escorted it back to port, where the crew were arrested. They were accused of attempted migrant smuggling.

On January 16, 2016, the Investigating Judge confirmed the charge, in its aggravated form, on the basis of the applicant “having decided to commit” jointly with the other defendants “with decision and intent” and “as a repeated crime” the felony of illegal transport of irregular migrants into Greek territory without authorization in the degree of tentative, frustrated only by the intervention of the HCG. No proof was adduced, the Judge referring to their use of “rescue as a pretext” to perpetrate the crime. In addition, several restrictive measures were imposed on the applicant, while the boat and the rescue equipment on board were confiscated.

Although the Court of Appeal acquitted Kamal-Aldeen in May 2018, the moral and material damage he has endured and continues to experience through the ordeal he was put through for more than two years, and for which the Greek authorities are responsible, has not been remedied, says GLAN.

from Storage Containers https://www.maritime-executive.com/article/case-filed-against-greece-over-migrant-rescue-ngo-crackdown via http://www.rssmix.com/

[derechointernacionalpublico]

Accessing Asylum in Europe

Accessing Asylum in Europe

Author: Violeta Moreno-Lax ISBN: 9780198701002 Binding: Hardcover Publication Date: 07 November 2017 Price: $125.00

Europe is currently experiencing a so-called “refugee crisis”, demonstrated by millions of displaced people unseen since World War II. This book examines the interface between the EU’s response to irregular flows, in particular the main extraterritorial border and migration controls taken by the Member States, and the rights asylum seekers acquire from EU law.

“Remote control” techniques, such as the imposition of visas, fines on carriers transporting unsatisfactorily documented third-country nationals, and interception at sea are investigated in detail in a bid to assess the impact these measures have on access to asylum in the EU. The book also thoroughly analyses the rights recognised by the EU Charter of Fundamental Rights to persons in need of international protection, inclusive of the principle of non-refoulement, the right to leave any country including one’s own, the right to asylum, and the right to remedies and effective judicial protection.

The fundamental focus of the book is the relationship between the aforementioned border and migration controls and the rights of asylum seekers and, most importantly, how these rights (should) limit the scope of such measures and the ways in which they are implemented. The ultimate goal is to conclude whether the current series of extraterritorial mechanisms of pre-entry vetting is compatible in EU law with the EU rights of refugees and forced migrants.

Table of Contents

1. Introduction: EU Pre-border Controls and Protection Seeker Flows Part I. The EU System of Pre-Border Control and its Implications for Access to International Protection in Europe 2. Chronology and Conceptualisation of ‘Integrated Border Management’: The ‘Embodied Border’ Paradigm 3. The Schengen Borders Code: Securitised Admission Criteria as the Centrepiece of ‘Integrated Border Management’ – Instilling Ambiguity 4. Common Visa Policy: Bordering from Abroad – Applying Admission Criteria before Departure 5. Carrier Sanctions and ILOs : Anticipated Enforcement of Visa Requirements through ‘Imperfect Delegation’ – Diverting Flows, Entrenching Unsafety 6. Frontex: Joint Maritime Interdiction of Undifferentiated Flows – Operationalising ‘Pre-emptive Controls’ Part II. The Rights of Protection Seekers under EU Law and their Implications for Pre-Border Controls 7. The Fundamental Rights Acquis: An ‘Integrated Approach’ to Interpretation – The ‘Aggregate Standards’ Model 8. EU Non-Refoulement: (The Irrelevance of) Territory and Pre-Border Controls 9. The Right to Asylum: An Individual Entitlement to (Access) International Protection 10. Remedies and Procedural Guarantees (and the Unavoidability of Access to Territory) Conclusions: Taking EU Refugee Rights Seriously

Author Information

Violeta Moreno-Lax, Queen Mary University of London

Dr. Violeta Moreno-Lax is Lecturer in Law, Founding Director of the Immigration Law programme, and inaugural co-Director and co-founder of the Centre for European and International Legal Affairs at Queen Mary University of London. She is also a Visiting Professor at the College of Europe, a Fellow of the Centre of European Law of King’s College London, EU Asylum Law Coordinator at the Refugee Law Initiative of the University of London, Co-Chair of The Refugee Law Observatory, Co-convener of the Society of Legal Scholars (SLS) Migration Law Section, and member of the Steering Committee of the Migration Law Network. Before Queen Mary, she was a Lecturer in Law at the Universities of Liverpool and Oxford. She held visiting positions at the Universities of Macquarie and New South Wales, Oxford, Nijmegen, and The Hague Academy of International Law (Research Session 2010). She has published widely in the areas of international and European refugee and migration law.

  [via International Law]

https://www.dipublico.org/107989/accessing-asylum-in-europe/

[rightsinexile]

Asylum visas as an obligation under European Union (EU) law: Case PPU C-638/16 X, X v État belge

This article was written by Dr Violeta Moreno-Lax, Director and co-founder of the Immigration Law programme and co-director and co-founder of the Centre for European and International Legal Affairs at Queen Mary University of London. This piece was originally published in two parts by the Odysseus Network on their blog. Part I was published on 16 February 2017, and Part II was published on 21 February 2017. Both parts appear together here, and are reprinted with permission, and have been lightly edited to comply with Rights in Exile’s Submission & Style Guidelines. The case was eventually decided by the European Court of Justice on 7 March 2017, as discussed in the “Case Notes” section of this Newsletter.

Part I

On 7 February 2017, Advocate General Mengozzi handed down his Opinion in the case of X, X v État belge, regarding the right to visas of limited territorial validity (LTV) on humanitarian grounds when there is a risk that an applicant will be exposed to torture or inhuman or degrading treatment. The Advocate General’s opinion was handed down against the backdrop of difficult negotiations between the European Parliament and the Council on provisions for humanitarian visas in the recast Community Code on Visas. This blog post, published in two parts, was prepared before Advocate General Mengozzi handed down his Opinion in X, X, but it takes into account this opinion. It was presented at the Annual conference of the Odysseus Network on 10 February 2017.

This post draws on chapters 4 (visas), 7 (EU Charter), 8 (non-refoulement), 9 (asylum), and 10 (remedies) of Accessing asylum in Europe (Oxford University Press, forthcoming in 2017), and takes account of previous research here, here, here, and here (see further Academia).

Introduction: Background discussions on humanitarian visas

Discussions on humanitarian visas are not new. The measure was thoroughly examined in a study for the European Commission in 2002, resurfacing again in the context of the 2006 Green paper on asylum, and becoming the object of specific attention in the 2009 Stockholm Programme. A commitment to the development of a dedicated EU system of facilitated admission for asylum-seeking purposes was reiterated in 2013 in the Task Force Mediterranean communication, propounding a “holistic approach” to deal with maritime crossings and death at sea, and committing that “legal channels to safely access the European Union to be explored.” Momentum was somewhat lost thereafter, with the Commission establishing that protected-entry procedures “could complement resettlement, starting with a coordinated approach to humanitarian visas and common guidelines” in its 2014 communication on “An open and secure Europe.” But neither the guidelines nor the coordinated approach have ever materialized. The focus has, instead, been on (voluntary) resettlement - particularly after the EU-Turkey Statement was adopted in 2016. In fact, the reference to humanitarian visas disappeared from the 2015 European “Agenda on migration,” where legal channels for access to asylum were replaced with increased border control and cooperation with third countries to “prevent hazardous journeys.” The timid approach of the Commission and its stagnation in a permanent exploratory phase of “ways to promote a coordinated European approach” regarding “humanitarian permits” thus persists in the run up towards a reform of the common European asylum system.

In parallel, the negotiations on the recast Community Code on Visas (CCV), at the height of the so-called “refugee crisis,” have provided new impetus for further exchanges on this count, leading, however, to a polarization of political positions. While the European Parliament wants to clarify the regime applicable to humanitarian visas on the basis of existing provisions on limited territorial validity visas (LTVs) in the current version of the Code, the prevailing view at the Council opposes such a move - against the backdrop of the Bratislava declaration and roadmap insisting on border protection to “further bring down [the] number of irregular migrants,” and without consideration of international protection needs. Yet, within the Council, there are also stark divisions, with some of the “first entry” Member States being quite vocal on the urgency of finding a “solution” to boat arrivals. Most notably, the current Maltese presidency has advocated for the “opening up [of] humanitarian corridors to allow people fleeing conflict to cross the Mediterranean.” The idea is for the EU to “organize humanitarian safe passages… that would get recognized asylum seekers to Europe safely,” avoiding drowning and loss of life at sea - 5,083 died last year, surpassing the record figure of 3,777 reached in 2015, according to the International Organization for Migration (IOM).

In the meantime, some Member States maintain measures for humanitarian admission as part of either ad hoc or more formalised resettlement or evacuation programmes, as a recent European Migration Network survey reveals. However, these are normally considered discretionary and managed largely ex gratia. The Belgian programme of humanitarian visas for family members of beneficiaries of international protection residing in Belgium, that provides the background to this post, is no exception in this regard. So, the question of whether there is ever, if at all, an obligation to allow entry through the issuance of a (LTV) visa under EU law is particularly relevant.

Request for preliminary ruling in Case PPU C-638/16 X, X v État belge

Case PPU C-638 X, X v Belgium revolves around the request for a Schengen visa by a family with two minor children of a young age from Aleppo, submitting an application under Article 25 of the CCV on account of humanitarian considerations, to allow the family to travel to Belgium and request asylum there. They assert the derelict situation obtaining in Syria, generally, and in Aleppo, in particular, with bombings and indiscriminate violence adding to direct attacks on the civil population by terrorist groups, government forces, and other fighting factions, as proof of the “extreme emergency” situation in which they are immersed - as documented by Amnesty International and denounced by the United Nations (UN) and Ban Ki-Moon himself, qualifying Aleppo “as synonym for hell.” They also raise the specific risk of persecution they face as Christians on religious grounds, and adduce evidence of past ill-treatment suffered by X at the hands of militia captors, who only liberated him upon ransom. These circumstances have not been disputed by the Belgian government (Conseil de contentieux des étrangers de Belgique Arrêt 179 108 du 8 décembre 2016) and are supported by statistics in Belgium, reaching a figure of 97.6% positive recognition rates for Syrians of the total 2,792 requests filed in 2015.

The situation in neighbouring countries, including Lebanon - where the visa was requested - Jordan and Turkey, was also presented as substantiating the family’s plight. Lebanon has terminated the registration process of refugees run since the beginning of the Syrian war, is not a contracting party to the 1951 Refugee Convention, and is not providing adequate assistance to current asylum seekers, hosting, as it is, the equivalent of 25% of its own population in Syrian exiles. Its Minister of Labour has actually called for the expulsion of Syrians to avoid clashes with the local population, inciting harassment against the displaced, with the Foreign Minister concurring that “the only sustainable solution to the crisis of the Syrian exodus to Lebanon is to return back the displaced persons to their homeland.” Jordan, in turn, housing over half a million Syrians and equally a non-party to the 1951 Convention, has closed its borders to further refugees, and has recently been accused of orchestrating an “ejection campaign” back to Syria. Finally, regarding Turkey, with nearly three million registered refugees, reliable sources have reported that “Turkish border guards are shooting and beating Syrian asylum seekers trying to reach Turkey.” The Turkish-Syrian passage is also closed and there are plans for a new border wall to stop crossings. Turkish President Erdogan’s forces have allegedly contributed to the degradation of the situation in Syria by bombing Kurdish militia, disregarding risks for civilians. In addition, as Amnesty International deplores, incidents of refoulement and illegal mass returns to Syria are on the rise since the conclusion of the EU-Turkey deal. Thus, none of these countries of transit towards the EU (and Belgium, in the present case) can be considered “safe third countries” pursuant to the Union’s own definition in the Asylum Procedures Directive (APD), requiring the absence of refoulement/ill-treatment risks and, crucially, “the possibility… to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention” (Article 38(1)(e) APD). Qualification of Turkey, Jordan or Lebanon as “first countries of asylum” is unjustified as well, considering the situation of refugees there - far from amounting to “sufficient protection… including benefiting from the principle of non-refoulement” in substantive and procedural terms (Article 35 APD).

Against this backdrop, the situation of the claimants, from both an individual and general perspective, taking account of subjective and objective factors together (Article 4 Qualification Directive), leaves no room to doubt that, if allowed to claim asylum, they would prima facie qualify as either refugees or beneficiaries of subsidiary protection - like 97.6% of Syrian claimants in Belgium in 2015 and 98% in EU-28 over the same period. This is also the view of the referring court, which however expresses doubts as to the extent of obligations under the Visa Code in these circumstances, regarding in particular two concrete points referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling:

Do the “international obligations” referred to in Article 25(1)(a) CCV cover all the rights guaranteed by the EU Charter of Fundamental Rights (CFR), including, in particular, those guaranteed by Articles 4 and 18, and do they also cover obligations in the light of the European Convention on Human Rights (ECHR) and Article 33 of the Geneva Convention?

A. In such case, must Article 25(1)(a) CCV be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a LTV visa has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 CFR or another international obligation by which it is bound is detected?

B. Does the existence of links between the applicant and the Member State to which the visa application has been made (for example, family connections) affect the answer to that question?

The key issues to elucidate are therefore the applicability of the CCV to the case, the remit of LTV provisions, and the extent of protection obligations to asylum and non-refoulement in the (extraterritorial) visa-issuing context.

The applicability of the CCV in international protection situations: LTVs

As Article 1 CCV makes clear, the Regulation establishes the procedures and conditions for issuing short-term visas under EU law and applies to “any third country national who must be in possession of a visa when crossing the external borders of the Member States” according to the Visa Regulation 539/2001 - which concerns all refugee-producing countries, including Syria. The motives underpinning the visa application are irrelevant at this juncture - they serve to assess the merits of the application (Article 21 CCV), but do not by themselves determine the applicability of the Visa Code per se (concurring: Mengozzi).

Contrary to the Belgian government’s allegations in X, X, the applicants’ intentions cannot alter the nature or subject of their claim, nor can they legally transform their application into one for a long-stay visa, thereby removing the applicants from the scope of application of the Visa Code. This would be tantamount to accepting, for instance, that failed asylum seekers were ab initio excluded from the remit of the Qualification Directive (QD) and the Asylum Procedures Directive (APD) because ex post, upon determination of their claims, it has been concluded that they did not qualify for refugee status or subsidiary protection. The fact that an application for either a visa or for international protection under EU law is dismissed on the merits (or even at the admissibility stage) cannot be confounded with the determination of whether the rules of the relevant instruments (i.e. the CCV or the QD+APD) apply to and govern the examination of the claim. The applicants’ circumstances (including motives and intentions) can therefore lead to the rejection of the application, but do not constitute a reason for the a priori non-application of the rules - that would be very dangerous, leading to a legal black-hole on imputed grounds, negating the rule of law. In fact, the linking factor to the QD+APD is simply that the person be an “applicant,” that is, “a third-country national… who has made an application for international protection in respect of which a final decision has not yet been taken” (Article 2(i) QD). Similarly, regarding the CCV, its rules apply to any “application” meaning “an application for a visa” submitted by a “third-country national,” that is, “any person who is not a citizen of the Union” whose entry is subject to obtaining a visa (Article 2(10) and 2(1) CCV).

On that basis, Schengen visas are conceived of as “authorisations issued by a Member State with a view to transit through or stay in the territory of the Member States of a duration of no more than three months in any six-month period” (Article 2(2) CCV). But, crucially, there is no discretion to “refuse… to issue such a visa to an applicant unless one of the grounds for refusal… listed in [the CCV] provisions can be applied to that applicant” (Koushkaki). So, although visas are not issued “as of right” to those requesting them, neither can they be considered as completely dependent on Member State whims. Sovereign discretion is delimited and constrained by EU law.

Arguably, this applies to the LTV provisions in the Code. The only difference with “normal” visas, as to its effects, is that LTVs grant access to the territory of the issuing Member State only - instead of to the entire Schengen zone (Article 2(4) CCV). Otherwise, it appears that LTVs “shall be issued” when the criteria of Article 25 CCV are met (concurring: Peers). That provision foresees that “on humanitarian grounds… or because of international obligations” it may be “necessary” for Member States “to derogate from the principle that the entry conditions laid down in Article [6(1)] of the Schengen Borders Code must be fulfilled.” In fact, the Schengen Borders Code (SBC) applies “without prejudice to… the rights of refugees and persons requesting international protection” (Article 3(b) SBC). The exception to entry rules on account of “humanitarian grounds… or because of international obligations” is explicitly contemplated in the body of the Code (Article 6(5)(c) SBC) - to which visa rules explicitly refer (Article 21 CCV). Yet, the Belgian government’s interpretation highlights the discretionary elements of Article 25 CCV’s formulation. The wording is indeed equivocal and could lead to opposing constructions. While the text stipulates that a LTV “shall be issued… for reasons of national interest or because of international obligations,” it also indicates that this be “exceptionally” and only “when… a Member State considers it necessary.” Thus, whether there is an obligation to issue a LTV under certain circumstances, and whether such circumstances must be appraised in light of fundamental rights is open to contention. That there is a margin of appreciation seems undisputable. What remains to be clarified is the extent to which this margin is subject to and structured by the “humanitarian grounds” and “international obligations” mentioned therein.

Leaving momentarily aside the issue of the extent of the margin of appreciation, it is advanced that the effect of Article 25 CCV is to carve out an exception to “normal” exclusion rules defined in Article 32 CCV, enumerating the circumstances in which a visa should “normally” be denied. Rules on visa refusals under Article 32 CCV (i.e. the rule) should be interpreted as being “neutralized” by Article 25 CCV (i.e. the exception). They apply “without prejudice to Article 25(1) [CCV].” Article 25 CCV should thus be taken to create a parallel, exceptional regime to cater for Member State obligations arising, inter alia, in the context of “the right to asylum and to international protection,” as established in the Schengen Code. Indeed, Article 14(1) SBC encloses the twin provision of Article 32 CCV, requiring Member States to refuse entry to the Schengen zone to third-country nationals not fulfilling the normal conditions for admission, but indicating - as Article 32 CCV does in the framework of the visa-issuing procedure - that this be “without prejudice to the application of special provisions concerning [refugees].” So, as much as refusals of entry are subject to respect for “the Charter of Fundamental Rights [CFR]… relevant international law, including… the Geneva Convention, [and] obligations related to access to international protection, in particular the principle of non-refoulement” (Article 4 SBC), so too are visa rejections, as per the terms of the CCV Preamble (Recital 29).

So, coming back to the point on discretion, whatever the margin of manoeuvre allowed to Member States under Article 25 CCV, it must be concluded that it remains subject to the fundamental rights acquis, as foreseen by Recital 29 CCV. In any case, subjection to primary law (including fundamental rights) within the EU legal order does not require specific assertion to this effect. Its primacy is constitutionally scheduled in the Treaties and in case law. Hence, whether the term “international obligations” used in Article 25(1)(a) CCV implicitly encompasses CFR obligations, as per Question 1 of the referring court, is not crucial (similarly: Mengozzi). The very structure of internal EU sources mandates subordination of rules of secondary law to the dispositions of primary law. As the CJEU has consistently held, where “the wording of secondary law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the [EU] Treaty” (Ordre des Barreaux, para. 28). This same tenet has been reiterated in the asylum context, with the judgment in the case of  NS v. Secretary of State for the Home Department  & ME and others v. Refugee Applications Commission and Minister for Justice, Equality and Law Reform (NS & ME), making clear that “Member States must… 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” (NS & ME, para. 77). This is in line with the place reserved to fundamental rights within the hierarchy of sources, as founding values of the Union (Article 2 TEU) and as standards of validity/legality of EU acts (Article 6 TEU and 263 TFEU).

Consequently, the fact that the Visa Manual fails to contemplate the situation of asylum seekers as specific scenarios in which the issuance of a LTV may be justified is without consequence. Whether the list of examples provided therein is intended to be exhaustive is also irrelevant, as is the legal nature of the Manual (as either binding or non-binding). Being an act of the European Commission, its interpretation and application remains subject to the Treaties (and the Charter). And neither the Manual nor, ultimately, the Visa Code can limit the effect of primary law (Siples, para. 17).

The applicability of the CCV to X and X’s plight, as third-country nationals from a country requiring visas for entry into Schengen territory and the fact that the LTV provision and the margin of appreciation under Article 25 CCV must be interpreted in light of (and in line with) primary law, should, therefore, be beyond doubt. What remains to be determined is the extent of that margin, which in turn depends on the determination of the precise scope of application of EU fundamental rights, so as to provide a complete answer to the first question referred to the CJEU. This issue will be fully assessed in Part II.

Part II

Drawing on Part I of this post, the object of Part II is to determine the extent of the margin of appreciation available to Member States under Article 25 CCV. On the basis of the conclusion from Part I that the Community Code on Visas (CCV) applies to X and X (Case PPU C-638 X, X v Belgium), what remains to be established to answer thoroughly the questions of the referring court is the applicability of the Charter of Fundamental Rights (CFR) and the consequences ensuing in such situation.

Limited territorial validity visas (LTVs), extraterritoriality, and the Charter of Fundamental Rights

I have argued elsewhere that “jurisdiction” has no bearing in the interpretation of the scope of application of the EU Charter (concurring: Mengozzi). Statist notions of “sovereign authority” and “effective control,” as they operate in the framework of the European Convention on Human Rights (ECHR), are inapplicable within EU law. The only threshold criterion for the application of the Charter relates to the “EU-relevant” nature of the situation at stake. If there is a connecting link making EU law relevant to the case, then the Charter provisions apply as well. This is the conclusion of Fransson, establishing that “situations cannot exist which are covered in that way by European Union law without… fundamental rights being applicable. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter” (para. 21).

Thus, territoriality plays no role in this regard. What counts is whether the EU or the Member States are acting within the remit of EU law. Charter provisions are addressed to “the institutions, bodies, offices and agencies of the Union… and to the Member States only when they are implementing Union law.” As a result, they “shall” respect Charter rights and principles, promoting the application thereof within the realm of their respective powers (Article 51(1) CFR).

Following the Charter Explanations, the issuance or refusal of visas under the CCV amounts to a clear instance of “implementing EU law,” as it entails direct application of an EU Regulation to the case at hand. Indeed, as per the CJEU, a “regulation is binding ‘in its entirety’ for Member States. In consequence, it cannot be accepted that a Member State should apply in an incomplete or selective manner provisions of a [EU] Regulation so as to render abortive certain aspects of [EU] legislation which it has opposed or which it considers contrary to its national interests” (Commission v. Italy, para. 20). Consequently, where activities covered by the Visa Code take place (e.g. consideration of LTV requests under Article 25 CCV), a fortiori the guarantees therein become applicable as well (as per Recital 29 CCV. See Part I of this post).

Even the use of an option/derogation/exception provided for by the CCV - such as that contemplated in the wording of Article 25(1)(a), employing the terms “when… consider[ing] it necessary” - is covered by this notion (concurring: Mengozzi). Borrowing from the CJEU, a “discretionary power” conferred on the Member States by an instrument of EU law forms part of the system regulated thereby and, as such, “a Member State which exercises that discretionary power must be considered as implementing EU law within the meaning of Article 51(1) of the Charter” (NS & ME). Thus, the applicability of the CCV and the Charter provisions to the case of X, X cannot be disclaimed.

LTVs and EU non-refoulement

The principle of non-refoulement forms part of the fundamental rights acquis as an absolute protection; the substance of Article 3 ECHR has been “absorbed” within the EU legal order in several guises. Non-refoulement forms part of the general principles of EU law (Elgafaji), it has been codified in primary law in Articles 4 and 19 CFR, and it has equally entered the text of EU acts of secondary law regarding external borders (Articles 3(b) and 4 SBC). The principle thus penetrates the Union system all-pervasively - in line with its standing as a canon of customary international law (Bethlehem/Lauterpacht), if not a jus cogens norm (Allain).

Focusing on its concrete manifestation as a rule of primary law, drawing on the Charter Explanations, Article 4 CFR must be read as including the substance of the protection enshrined in Article 3 ECHR (and, it is posited, also that of Article 33 of the 1951 Convention). This “cumulative standards” approach (Accessing Asylum in Europe) understands Charter provisions to “reaffirm” individual rights “as they result, in particular, from the constitutional traditions and international obligations common to the Member States,” including those flowing from the ECHR and the CSR51 - this is the interpretative technique generally followed in EU asylum case law (e.g. Abdulla). Following Advocate General Trstenjak in her opinion on NS, “[e]ven though an infringement of the Geneva Convention or the ECHR… must be distinguished strictly, de jure, from any associated infringement of EU law, there is, as a rule, a de facto parallel in such a case between the infringement of the Geneva Convention or the ECHR and the infringement of EU law” - accordingly, Member 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” (mutatis mutandis, Amuur, para. 43; confirmed: M.S.S., para. 216).

Therefore, ratione materiae, any measure “the effect of which is to prevent migrants from reaching the borders of the State [concerned]” may amount to refoulement if it exposes the applicant to ill-treatment (Hirsi, para. 180; confirmed: Sharifi, paras 112 and 115). There is no need to prove direct causation, as the matter is one of prospective harm; foreseeability of a “real risk” suffices in this regard. So, a visa refusal the consequence of which is to prevent access to safety may well impinge upon Article 3 ECHR and Article 4 CFR. The fact that the applicant may have (in the abstract) a possibility to address her request to a different State is immaterial, particularly because “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” (Amuur, para. 48; confirmed: M.S.S., para. 216) - as is the case of X and X.

Yet, any restrictions ratione loci or ratione personae attached to Article 3 ECHR or Article 33 CSR51 are not transposable to Article 4 CFR in disregard of its specific design (see, resisting similarly limitative transplants from IHL, focusing instead on the text/context/purpose of EU law: Diakité and commentary). The protection against refoulement envisaged in the Charter covers everyone without exception (unlike Article 33 CSR51), and its territorial reach depends only on Article 51 CFR. As noted by Mengozzi (paras 97-101), the ECHR (and arguably also the CSR51) work as minimum floors of protection below which the CFR cannot fall, but they should not be taken to prevent the more extensive protection that EU law can and does provide in several respects (Article 52(3) CFR; cf. Elgafaji vs. Article 3 ECHR case law prior to Sufi & Elmi). The incorporation of foreign, unwritten limitations into the text of the Charter would violate the principles of legality and narrow interpretation of exceptions under EU law (Article 52(1) CFR) and go equally against the autonomous construction of EU notions as per the independent requirements of the system, constraining their application on the basis of restrictions imposed elsewhere and for purposes alien to the CFR - whose ultimate goal is explicitly to “strengthen the protection of fundamental rights” (Recital 4).

Yet, as evidenced during discussions at the second Annual Conference of the Odysseus Network, there are some who insist that the phrase: “the meaning and scope of [CFR] rights [which correspond to ECHR rights] shall be the same as those laid down by the [ECHR]” in Article 52(3) CFR mandates incorporation within the remit of application of Article 4 CFR of the territorial restrictions applicable to Article 3 ECHR due to Article 1 ECHR. This, however, would negate the specific nature and objectives of the Charter within the (separate) EU legal order and break the coherence governing the entire fragmenting the territorial scope of Charter provisions depending on exogenous conditions originating in a different legal regime, so that CFR rights drawing on ECHR rights would depend on Article 1 ECHR to define their scope of territorial application, while the remit ratione loci of other CFR provisions would be determined by Article 51 CFR alone. This would negate the explicit terms of Article 51 CFR, which, as its title clearly indicates, is the lex specialis, within the Charter system, governing its (entire) “field of application.” Constraining the territorial application of Article 4 CFR to Article 1 ECHR through a selective interpretation of Article 52(3) CFR (which explicitly foresees that “this provision shall not prevent EU law providing more extensive protection”), sidelining the literal tenor of Article 51 CFR, constitutes a contra legem interpretation that is unsustainable under EU law. Paraphrasing the Strasbourg Court, to accept this and “to afford [Article 4 CFR in line with Article 1 ECHR dispositions] a strictly territorial scope, would result in a discrepancy between the scope of application of the [Charter] as such [as governed by Article 51 CFR] and that of [Article 4 CFR], which would go against the principle [of coherence],” demanding that the Charter “be interpreted as a whole” (Hirsi, para. 178).

A similar move was attempted in the context of the Bank Saderat Iran case, where the General Court refused the import of limitations ensuing from Article 34 ECHR in the interpretation of CFR provisions (in an extraterritorial case), chiefly on the ground that “Article 34 ECHR is a procedural provision which is not applicable to procedures before the Courts of the European Union” (para. 36). The same should occur regarding the import of Article 1 ECHR constraints on Article 3 ECHR (and equivalent interpretations of Article 33 CSR51) when appraising visa-issuing proceedings under the CFR.

Otherwise, if the CJEU decided to break the coherence of Charter provisions and accept a reduction of the scope of application of Article 4 CFR through the back door, it would still be confronted with the fact that visa issuance is one of the undisputed legal bases granting extraterritorial de jure jurisdiction to Member States that the Strasbourg Court has consistently acknowledged as triggering the action of Article 1 ECHR. Indeed, “recognised instances of the extra-territorial exercise of jurisdiction by a State include cases involving the activities of its diplomatic or consular agents abroad… In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant State” (Bankovic, para. 73; confirmed: Al-Skeini, para. 134). And, according to Article 5(d) Vienna Convention on Consular Relations, visa issuance cannot but be considered part and parcel of those ‘activities’, being explicitly listed as consular functions exercised on behalf of the issuing State, as a manifestation of its sovereign right to control entry by foreigners into territorial domain. Thus, even if the territorial scope of Article 4 CFR was to be subjected to Article 1 ECHR, the applicability of EU non-refoulement to the case of X, X would be inescapable (in this line: Spijkerboer/Brouwer/Al Tamimi).

Regarding the possible margin of appreciation left to Member States to assess the circumstances in which the refusal of a LTV may lead to refoulement, in light of the circumstances (general and personal) of the applicants in X, X, this is non-existent in the present case - considering the dire situation in Aleppo, Syria, and neighbouring States. Generally, as AG Mengozzi underlines (paras 121, 129, 131), the exercise of discretionary clauses in EU instruments is subject to Member State obligations under the Charter. Thus, before refusing a visa under Article 32 CCV, account must be taken of the consequences, in light, especially, of the (absolute) prohibition of refoulement under Article 4 CFR. If the refusal may lead to a “real risk” of exposing the applicant to irreversible harm, the option to issue a LTV contemplated in Article 25 CCV turns into an obligation to deliver one to avoid the risk from materialising (concurring: Mengozzi, para. 132 ff). If there are no other practicable alternatives to ensure (in law and in practice) the effet utile of non-refoulement, the issuance of a LTV becomes compulsory. Any other construction would render “practically impossible or excessively difficult the exercise of rights conferred by [Union] law” (Unibet, para. 43), contrary to the aspiration of the Charter to “guarantee real and effective… protection” (mutatis mutandis, Von Colson, para. 23).

In such cases, a negative obligation not to refouler enjoins Member States to engage in positive action. As adjudged in Căldăraru (paras 90 and 94), “it follows from the case-law of the ECHR that Article 3 ECHR imposes, on the authorities of the [Member] State[s]…a positive obligation” to ensure compliance with the prohibition of ill-treatment, which applies in relation to Article 4 CFR as well (as the provision shares the same “meaning and scope” ratione materiae pursuant to Article 52(3) CFR).

In these circumstances, like in similar scenarios governed by the principle of mutual trust, the requirement to comply with fundamental rights requires Member States to set their reciprocal confidence aside so as to honour absolute obligations under the CFR (N.S. & M.E., paras 79-86 and 94-98). Mutual trust cannot “undo” CFR duties, nor can it modify their nature and extent. So, an interpretation that would make observance of international obligations into “exceptions” to the system of inter-State confidence (to be narrowly construed) would amount to putting the cart before the horses, ignoring the hierarchy of sources within Union law (Kadi I, paras 169-170). It is the margin of appreciation of Member States that is subordinate to compliance with CFR duties, not the scope of CFR provisions which are subject to sovereign discretion. EU countries do have an “undeniable sovereign right to control aliens’ entry into and residence in their territory,” but that right “must be exercised in accordance with [CFR obligations]” (mutatis mutandis, Amuur, para. 41).

Accordingly, the reply to Question 2 must be in the affirmative, so that Article 25(1)(a) CCV be interpreted as meaning that a Member State to which an application for a LTV visa has been made is required to issue the visa applied for, where a real risk of infringement of Article 4 CFR is detected (Mengozzi, paras 3 and 163).

To that end (and in accordance with the rights to good administration and effective judicial protection in Articles 41 and 47 CFR), national authorities must take account of both the general and particular circumstances of the applicant concerned (Article 4 QD), relying on published sources and taking proactive steps to ascertain the reality of the risks faced by the him/her, “carrying out a thorough and individualised examination of the situation of the person concerned” (Tarakhel, para. 104; Article 4 SBC), “before any individual measure which would affect him or her adversely is taken” (M.M., para. 83). Knowledge of the circumstances will otherwise be imputed on the Member State (M.S.S., para. 358; Hirsi, para. 121; N.S. & M.E., para. 88; Mengozzi, para. 140 ff) and failure to adopt preventative means to spare the applicant from foreseeable harm will amount to a violation of the CFR.

The absence of links between the applicant and the Member State to which the visa application is made has no effect in this constellation (concurring: Mengozzi, para. 161). As much as “[t]he source of the risk does nothing to alter the level of protection guaranteed by [non-refoulement],” neither does the concurrence of additional connecting factors to the requested Member State (Tarakhel, para. 104). Requiring additional criteria would actually amount to indirectly introducing a (prohibited) limitation to non-refoulement (cf. Article 52(1) CFR), upsetting its absolute nature.

LTVs and the EU Right to Asylum

Space constraints impede the thorough examination of the additional effect on LTVs of the right to asylum enshrined in Article 18 CFR. I invite readers to peruse ch. 9 of Accessing asylum in Europe for a detailed account. Suffice it to note here that the principle of effectiveness pleads against a reductionist construction of Article 18 CFR that would render the protection it affords redundant or subsumed within Article 4 or 19 CFR. Its content shall be appraised as being distinct from a (reiterative) protection against refoulement. That it entails a right to recognition for one of the international protection statuses recognised within EU law should be beyond doubt (Article 78 TFEU). Both Articles 13 and 18 QD use the imperative “shall” to establish the obligation on Member States to accord asylum to those qualifying under the Qualification Directive (QD) provisions - an issue that the CJEU has also clarified, noting that “[u]nder Article 13 of the Directive, the Member State is required to grant refugee status to the applicant if he qualifies…” (Abdulla, para. 62), applying the same logic to Article 18 QD, according to which “Member States are to grant that status to a third-country national eligible for subsidiary protection” (M’Bodj, para. 29). In this framework, the QD provisions should be considered to constitute concrete specifications of the right to asylum in the CFR (mutatis mutandis, Mangold) - which, however, do not exhaust its independent substance.

The personal scope of the EU right to asylum, despite the absence of a subject in the wording of the Charter provision, should be considered to cover third-country nationals generally (in line with the Asylum Protocol and as confirmed by the CEAS instruments adopted so far). And territorially speaking, the remit ratione loci of Article 18 CFR should not vary from that of the (entire) Charter. Here again, the principle of coherence points in this direction, as does the fact that Article 51 CFR is a horizontal provision governing the “field of application” of the Charter as a whole.

If this is true, the exercise of the right to asylum must be made possible, both in law and in practice - regardless of territorial considerations. There must be a legal means to ensure safe and regular access to asylum for refugee visa applicants, as in X, X, to be capable of effectively enjoying their entitlement to international protection under EU law. Depriving the claimants of a legal channel to exercise what is their legitimate right under the Charter cannot be considered a good faith interpretation/application of the CFR provisions (similarly: Mengozzi, para. 163).

Conclusions and implications

Several conclusions derive from the foregoing analysis that can be briefly recounted:

1. First of all, there is a pressing need to de-politicize refugee/asylum seeker rights and interpret/apply them as any other of the subjective entitlements deriving from the EU acquis;

2. In this line, EU law interpreters/implementers ought to stop importing legal categories/limitations from exogenous systems and treat the CFR as first rank primary law, faithfully adhering to its provisions, in light of their object and purpose (as made explicit in its preamble and the Charter Explanations);

3. Relatedly, since the EU is not a State, the import of statist notions of sovereignty and territory as litmus tests determining the applicability of Charter protections is unwarranted;

4. The scope of application of EU rights is the same as that of EU law generally, as determined by the Court (Fransson);

5. And the applicability of EU law (simply) depends on the concurrence of a connecting factor/relevant link that renders the particular situation “EU-relevant”;

6. Therefore, measures of EU border and pre-border control remain subject to compliance with EU fundamental rights, including in the context of visa-issuing procedures under the CCV;

7. So, where the CCV applies, the CFR follows, and, with it, so does EU protection against refoulement under Article 4 CFR (as well as the right to asylum in Article 18 CFR);

8. As a result, when contemplating the denial of a visa under Article 32 CCV, where this could lead to a “real risk” of a prospective violation of Charter rights (especially those of an absolute nature), the faculty foreseen in Article 25 CCV must be used to deliver a LTV to ensure protection in conformity with CFR standards;

9. Indeed, where there are no other legal and practicable alternatives, as in the case of X and X (Mengozzi, para. 157), positive action must be adopted by the Member States to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” (Artico, para. 33);

10. The “floodgates” point raised by the Belgian government is irrelevant in this context - regardless of its hypothetical potential side-effect as an incentive to step up international assistance to Lebanon and ensure effective protection within the region of origin (cf. Spijkerboer/Brouwer/Al Tamimi, para. 5.2). There are several reasons buttressing this conclusion - some of which have already been identified by Mengozzi himself (para. 169 ff):

10.1 The point is empirically unsubstantiated, as demonstrated by the numbers concerned in past experiences with evacuation and resettlement schemes. Plus, in the remote case of a mass influx deriving from an application of Article 25 CCV in line with the CFR, the Temporary Protection Directive provides the tools to cope with the issue. The clogging of Member State embassies is anyway improvable. The number of visas issued daily in EU-28 is in the thousands, with the system having never collapsed on that account - according to the European Commission, in 2015 alone, Member States managed to issue a total “14.3 million visas for short stays” without incidents. But if a rationalization of the LTV system was desired nonetheless, the CCV provides tailor-made options to this effect, leaving ample freedom for Member States to manage applications electronically, for instance, or with the collaboration of honorary consuls or via Common Application Centres (Article 40 ff CCV), which would allow coordination with Dublin rules.

10.2 Yet, the floodgates argument is misplaced on a more fundamental level. It reifies beneficiaries of Charter entitlements reducing them to a “mass” or a collective figure, diminishing the agency and dignity of rights-bearers. Above all, the fear of numbers does not constitute a legal argument, let alone one capable of warranting the limitation of absolute rights. In truth, compliance with the CFR is not optional or open to negotiation (Article 6 TEU and Article 51 CFR), and given the “absolute character” of the rights concerned, even a mass influx or other commensurate difficulties “cannot absolve a State of its obligations under [the relevant] provision[s]” (Hirsi, paras 122-23). Potential “problems with managing migratory flows cannot justify recourse to practices which are not compatible with the State’s obligations…” (Hirsi, paras 179). Thus, the CJEU, when deciding on X, X should strictly adhere to EU law (Article 19 TEU), avoiding political or ideologically motivated temptations.

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Conferences and workshops

International Conference for Carceral Geography, University of Birmingham, UK, 11-12 December

Registration is open for the second International Conference for Carceral Geography, to be held at University of Birmingham on 11-12 December. Carceral geography research is rich, diverse and multi-scalar, focusing on wider structural, political and institutional contexts as well as on everyday experiences, practices and agency; it is sensitive to change and difference across space and time, space/time, and between cultures and jurisdictions. Of particular note is the breadth of empirical focus; on spaces of ‘mainstream’ incarceration of ‘criminals’ for custodial sentences imposed by the prevailing legal system; spaces of migrant detention which confine irregular or non-status migrants pending decisions on admittance or removal; the overlaps and synergies between these spaces, their functional and post-functional lives, and also their porosity, in that techniques and technologies of confinement seep out of ‘carceral’ spaces into everyday, domestic, street, and institutional spaces. It also increasingly recognises ‘the carceral’ as spatial, emplaced, mobile, embodied and affective.

Conference registration is open through 5 December. Registration is free, but options of catering (GBP 13.50/day), a conference dinner (GBP 20), and on-campus accommodation (variable) are charged at cost price. These are bookable individually via the conference website.

CCR webinar on Navigating the New Citizenship Act in Canada: What you need to know

The Canadian Council for Refugees (CCR) is offering a new webinar, part of the “Improving access to Justice” series, designed to reinforce the capacity of front-line workers to support refugees and vulnerable migrants in accessing legal information.The path to citizenship is a long process with many potential obstacles. In light of recent changes to the Citizenship Act, front-line workers need to know about the new rules and continuing challenges in order to appropriately inform the citizenship candidates they support. Participants at this webinar will learn about changes to the law and key issues, including those that one-time refugees should watch for.

The webinar will be held on 6 December 2017 and will last 60 minutes. Presenter Jennifer Stone will provide practical information, guiding front-line workers through the citizenship application process. The presentation will be followed by a Q&A session. Registration is now open. For more information and to register, please visit this website.

Centre for European and International Legal Affairs hosts Dr. Ruvi Ziegler at book forum

The Centre for European and International Legal Affairs (CEILA) is hosting a forum for Dr. Ruvi Ziegler's book Voting Rights of Refugees (Cambridge University Press, 2017). The event will be held on 6 December 2017 at 4:30-6:30pm in Room 313 at the School of Law, Queen Mary University of London (QMUL).

Voting Rights of Refugees (Cambridge University Press, 2017) develops a novel legal argument about the voting rights of refugees recognised in the 1951 Geneva Convention. The main normative contention is that such refugees should have the right to vote in the political community where they reside, assuming that this community is a democracy and that its citizens have the right to vote. The book argues that recognised refugees are a special category of non-citizen residents: they are unable to participate in elections of their state of origin, do not enjoy its diplomatic protection and consular assistance abroad, and are unable or unwilling, owing to a well-founded fear of persecution, to return to it. Refugees deserve to have a place in the world, in the Arendtian sense, where their opinions are significant and their actions are effective. Their state of asylum is the only community in which there is any prospect of political participation on their part.

Dr. Ruvi Ziegler’s reading will be followed by a discussion with commentators Dr. Violeta Moreno-Lax (QMUL) (Chair/convener); Dr. Maria-Teresa Gil-Bazo (Newcastle); Professor Eric Heinze (QMUL); and Professor David Owen (Southampton). A drinks reception will follow this event for those in attendance. Please, register online for the event.

Refugee Law Initiative workshop on ‘Terrorism and Asylum,’ 8 December 2017, London

Registration is now open for the upcoming Refugee Law Initiative workshop on ‘Terrorism and Asylum,’ to be held on Friday, 8 December 2017, in London. Fears that refugee flows may facilitate the entry of terrorist elements are amply demonstrated by State responses to the refugee crises in Syria and Iraq. Such concerns about the prevalence of terrorism in today’s world have direct consequences for the legal protection of refugees and asylum-seekers. This informal one-day workshop aims to promote reflection on links between ‘terrorism’ and ‘asylum’ on the part of scholars and practitioners working in these fields of study.

Professor James C. Simeon (York University) and Dr Sarah Singer (RLI) have written a blog post to introduce the workshop. Please click here to view the Draft Programme, and note that registration at GBP 20 (standard) and GBP 15 (students/unwaged) is available now through our website.

CMRS offers three winter short course in Cairo, Egypt, in January and February 2018

The Center for Migration and Refugee Studies (CMRS) at The American University in Cairo (AUC) is offering the following short courses during the months of January and February 2018: 1. Cosmopolitan Cairo: Migration, Cultural Diversity And Urban Development in The Global City Cairo (20-24 January 2018); 2. Psychosocial Issues and Interventions for Refugees and Migrants (28 January–1 February 2018); and 3. Migrant Citizenship in an Anxious Europe (4-8 February 2018).

These courses are offered for graduate and postgraduate students, and researchers as well as practitioners working with migrants and refugees. A minimum knowledge of displacement and migration terminologies and context is a requirement for participation in any of the three courses. All courses are conducted in English and no translation facilities are provided. Each course will run from 9.30 am till 4pm for five days. Interested applicants can apply for one course or for all courses. Courses will take place at AUC Tahrir Campus in Cairo.

To apply for the courses, fill out the application form, available on the CMRS website. Email the application form with your most recent C.V; Att. Naseem Hashim. Applicants may apply to and be accepted in more than one course. Applicants accepted for the course will be notified by email within a week after the deadline for submitting the application. Please do not hesitate to email if you have any difficulty with the application process.

International Refugee Rights Council 2018 to be held 7-9 June in Toronto, Canada

The Canadian Council for Refugees invites non-governmental organizations, academics, government officials, refugees and others to attend an international conference in Toronto designed to enhance effectiveness in promoting the human rights of refugees and vulnerable migrants. The conference will be held at York University on 7-9 June 2018. Special attention will be given to representation from the Global South.

The goal of the conference will be to enhance the effectiveness of NGOs in promoting the human rights of refugees and vulnerable migrants. The conference will provide an opportunity to discuss a wide range of issues facing refugees and other vulnerable migrants. The goal is to promote ongoing cross-border networking, knowledge-exchange, strategizing and collaboration among NGOs committed to the rights of refugees and vulnerable migrants, and between NGOs and academics, and to support the inclusion of the voices of refugees and vulnerable migrants in discussions concerning them.

For more information, please visit the website. Registration for the conference will open in January 2018. Complete a questionnaire to contribute to planning of the conference. Read information to help you to plan to participate. Sign up for updates about the conference here.

Odysseus Academic Network announces dates for 2018 Summer School

The 17th edition of the Odysseus Academic Network's Summer School attracted around 120 participants from all over the EU who followed classes in EU immigration and asylum law and policy taught by leading academics and experts in Europe. The courses alternated with PhD seminars, visits to the European institutions, a trip to the Schengen Museum, evening debates with practitioners from EU institutions and a networking cocktail.

In 2018 the Summer School will take place from 2 to 13 July. More information will follow on the website in February.