Students taking the Migration Law course may find below the slides used by Dr. Denard Veshi, Visiting Professor, in his classes on Refugee Law, delivered in co-teaching on Tuesday 20 and Wednesday 21 February, 2024.

• Refugee Law - Slides

  Slides used by Dr. Denard Veshi in his classes on Refugee Law held in co-teaching on Tuesday 20 and Wednesday 21 February, 2024.

• International Covenant on Civil and Political Rights

  The International Covenant on Civil and Political Rights, alongside with the International Covenant on Social, Economic and Cultural Rights, is a multilateral treaty on the protection of fundamental rights adopted in 1966 under the auspices of the United Nations and possessing, accordingly, a universal vocation. Of specific relevance concerning the fundamental rights of migrants are the rules contained under Articles 12 and 13 of the Covenant.

• Convention and Protocol relating to the status of refugees

  Text of the 1951 Geneva Convention and of the 1967 Protocol relating to the status of refugees, from the UNHCR website

• European Convention on Human Rights (Rome, 4 November 1950)

  Official text of the European Convention (ECHR), from the Council of Europe website.

• Treaty on European Union (TEU) and Treaty on the Functioning of the European Union (TFEU)

  Consolidated texts (as from the Treaty of Lisbon). See, particularly, Articles 2, 3 and 6, Treaty on European Union (TEU), and Articles 67, 77, 78, 79 and 80, Treaty on the Functioning of the European Union (TFEU).

• Charter of Fundamental Rights of the European Union

  Also known as Charter of Nice, as from the city where it was initially adopted as a non-binding text, after the Treaty of Lisbon it has acquired the same status of primary source of EU law as the Treaties, pursuant to Article 6.1, Treaty on European Union (TEU)

• European Court of Human Rights (Grand Chamber), Judgment of 13 February 2020, Applications Nos 8675/15 and 8697/15, N.D. and N.T. v. Spain

  The case concerns the immediate return to Morocco of two nationals of Mali and Côte d’Ivoire who on 13 August 2014 attempted to enter Spanish territory in an unauthorised manner by climbing the fences surrounding the Spanish enclave of Melilla on the North African coast. The European Court of Human Rights held, unanimously, that there had been no violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion) to the European Convention on Human Rights, and, unanimously, that there had been no violation of Article 13 (right to an effective remedy) of the Convention taken in conjunction with Article 4 of Protocol No. 4.

• Is Processing Biometric Data of Turkish Nationals in a National Database Lawful under the EEC-Turkey Agreement? Reflections on the Judgment in A, B and P (C-70/18)

  By Niovi Vavoula (Queen Mary University of London), commenting on the CJEU judgment of 3 October 2019 in the case of A, B and P (see below), from the blog "EU Immigration and Asylum Law and Policy - Droit et politique de l'immigration et de l'asile de l'UE" (www.eumigrationlawblog.eu).

• Court of Justice of the European Union, Judgment of 3 October 2019, Case C-70/18, Staatssecretaris van Justitie en Veiligheid v. A., B. and P.

  Judgment discussed in class, concerning the need to balance the effectiveness of controls on immigration against the duty to ensure respect for fundamental rights of the persons concerned, including the right to respect for private life and to the protection of personal data, protected under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, as well as Article 8 of the European Convention on Human Rights (see particularly paras 53-70).

• Regulation (EU) 2018/1862 on the Schengen Information System (SIS)

  Concerning the use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters.

• Regulation (EU) 2018/1861 on the Schengen Information System (SIS)

  Concerning the use of the Schengen Information System in the field of border checks, amending in this respect the rules contained in the Convention implementing the Schengen agreement (see below).

• Regulation (EU) 2018/1860 on the Schengen Information System (SIS)

  Concerning the use of the Schengen Information System (SIS) for the return of illegally staying third country nationals.

• Regulation (EU) 2016/399 - s.c. Schengen Borders Code

  The Schengen Borders Code represents a codification of the rules applicable to controls at the external borders of the EU (see below the Fact Sheet "Management of the External Borders", providing a synopsis of the main legal instruments adopted in this field by the EU).

• Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985

  Foundation of the EU system of management of the external borders, adopted as an international convention at an earlier stage, where the EC, as it then was, had no legislative competence in the field. The Convention and related instruments were subsequently "communitarized", that is, converted into legal acts of the EC, and then of the EU, following the Treaty of Amsterdam of 1997.

• EU Policy on the Management of External Borders

  Fact sheet downloadable from the website of the European Parliament (https://www.europarl.europa.eu/factsheets/en/sheet/153/management-of-the-external-borders) describing the legal basis in the Treaties of the EU policy concerning the management of the external borders of the Union and the main EU legal acts and further action taken in this field.

Including cases concerning Directive 2003/86/EC on family reunification.

• Court of Justice of the European Union, Judgment of 14 March 2019, Case C-557/17, Z., Z. and Y.

  This judgment by the European Court of Justice concerns a case where family reunification had ben sought by a third country national who had acquired the status of a long-term resident pursuant to Directive 2003/109/EC based on fraud. THe Court considered that the loss of that status by the sponsor due to its having been acquired by fraud did not automatically deprive him of the right to reside in the host Member State on grounds other than a long-term permit of residence under the said directive. At the same time, as concerns his family members who were granted a permit of stay on grounds of family reunification baed on Directive 2003/86/EC, the fraud attributable to the sponsor did not automatically deprive them of their right of residence in the host Member State. In deciding on whether to withdraw their permit of residence based on family reunification, the national authorities were expected to draw a balance between the various relevant factos, including the need to protect family life pursuant to Article 8 of the European Convention on Human Rights and Article 7 of the Charter of Fundamental Rights of the European Union, and the best interest of the children concerned, pursuant to Article 24 of the same Charter (see, especially, points 50-57 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 6 December 2012, Joined Cases C-356/11 and C-357/11, O. and S.

  This judgment concerns specifically the appreciation by the national authorities in the host Member State of the requirements for granting a permit of stay grounded on family reunification pursuant to Directive 2003/86/EC when the family members conerned are minor children. In this respect, the Court stated that the requirements set by the Directive as well as by national implementing legislation shall be interpreted in light of the right to the enjoyment of personal anf family life, as guaranteed under Article 8 of the European Convention on Human Rights and Article 7 of the Charter of Fundamental Rights of the European Union, as well as in consideration of the best interest of the children concerned, to which all relevant international instruments, and, accordingly, Article 24 of the EU Charter of Fundamental Rights point. It shall be for the competent national authorities, when implementing Directive 2003/86 and examining applications for family reunification, to make a balanced and reasonable assessment of all the interests involved, taking particular account of the interests of the children concerned (see points 75-81 in the grounds for judgment in the case).

• Court of Justice of the European Union, Judgment of 21 April 2016, Case C-558/14, Khachab

  The European Court of Justice clarified in this judgment that the requirement posed by Article 7 of Directive 2003/86 on family reunification, whereby the sponsor (that is, the regularly residing third country national who seeks to be rejoined by his family) shall prove to possess sufficient economic resources in order to maintain himself and his family, already forming the subject of the earlier judgment in Chakroun (below in this folder), presupposes that sufficient guarantee shall be provided by the applicant concerning the stability of the said resources, in order for himself and his family members not to be subsequently in need of assistance by the social security system of the host Member State (points 22-40 in the grounds for judgment). Furthermore, the Court stressed the importance to assess the requirements contemplated by national legislation in this respect having due regard to the principle of proportionality, to be met by any limitation to the right to the enjoyment of personal and family life pursuant to Article 8 of the European Convention on Human Rights and Article 7 of the Charter of fundamental rights of the European Union, as well as to the principle of effectiveness, whereby the conditions specified by national legislation shall not be conceived in such narrow terms as to make the exercise of the right contemplted by the directive excessively or unreasonably difficult (points 41-48 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 4 March 2010, Case C-578/08, Chakroun v. Minister van Buitenlandse Zaken

  The case concerns the interpretation of Directive 2003/86/EC on the right to family reunification, with particular regard to the requirements that Member States are entitled to pose in order for such a right to be claimed, with particular regard to the solidity of the family relationships between the third country national regularly residing in the Member State concerned and his family members, the duration of the stay and other conditions related to the existence of family, cultural or other ties with his or her country of origin. The Court stated that the requirements posed by the Member States in this respect shall be subject to a close scrutiny in terms of proportionality, as encroaching upon the enjoyment of the right to family life as protected by Article 8 of the European Convention on Human Rights as well as Article 7 of the EU Charter of Fundamental Rights. Furthermore, the Membr States in the exercise of their discretion shall not devise the said requirements in such restrictive terms as to undermine the achievement of the objective of the directive (s.c. principle of effectiveness) (see paras 41 ff. in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 27 June 2006, Case C-540/03, European Parliament v. Council

  The case concerns the validity of Directive 2003/86/EC on the right to family reunification, with particular regard to the discretion left for Member States by Article 4, para. 1, to subject the entry of non accompanied minors aged over 12 years to the fulfilment of integration requirements contemplated by national legislation. The Court stated that the discretion left to the Member States in this respect is not arbitrary, due regard had to the need to protect the rights of minors while at the same time affording the Member States a reasonable margin of discretion (see especially paras 52 ff. in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 5 June 2018, Case C-673/16, Coman et al. v. Inspectoratul General pentru Imigrari

  This judgment by the European Court of Justice concerns an issue that, even though raised, in that particular case, in respect of Directive 2004/38/EC on the freedom of movement of Union citizens and their family members, is equally relevant in respect of the application of Directive 2003/86/EC on family reunification, that is, th notion of "spouse" for the purposes of the enjoyment of the rights conferred by the directive. The Court, having reagard to the differences existing among Member States' laws concerning marriage, and particularly as to the admissibility of same-sex marriages, while stressing that, in the absence of an EU legislative competence in matters of substantive family law, Member States are entirely at freedom to contemplate in their legislation the institution of marriage as open to either heterosexual or homosexual couples, they shall nonetheless be available to treat as "spouse" for the sole purposes of the rights contemplated by the directive a person possessing such a status under the law of another Member State (points 28 ff. in the grounds of judgment). It remains arguable whether the same might apply in a family reunification case pursuant to Directive 2003/86/EC, where the status as "spouse" relied upon by the person concerned has been acquired in a third country pursuant to the relevant legislation.

• Court of Justice of the European Union, Judgment of 14 December 2021, Case C-490/20, Pancharevo

  This judgment of the European Court of Justice follows the line set by the Court in its previous Coman judgment of 2018 (see above in this folder), applying the same rational whereby the right for Member States to maintain their own choices as to whether to allow certain types of family relationship, such as same-sex marriage, shall not affect the right of EU citizens to enjoy their rights to freedom of movement within the European Union. The same reasoning has been applied by the Court in this case to the bond of filiation established in a Member State in favour of two mothers, which the Member State of origin of one of the two women refused to recognize as incompatible with its legislation. The Court of Justice stated that even though the Member State in question remains at freedom not to recognize for the purposes of personal and family status a bond of filiation established in another Member State in favour of two mothers, it shall nonetheless be required to recognize such a bond for the sole purposes of enabling the child, as an EU citizen, to enjoy his freedom of movement within the EU together with each of the two women identified as his mothers in the Member State of birth (see points 50 ff., especially 50-52, in the grounds for judgment in the case). Even if, like in Coman, this case relates to the application of EC Directive No. 38/2004 concerning the right of EU nationals and their family members to move and reside freely within the Member States of the EU, its logic would seem likely to be transposed, in a comparable extra-EU scenario, to the application of EC Directive No. 86/2003 on family reunification.

• Functional Recognition of Same-sex Parenthood for the Benefit of Mobile Union Citizens – Brief Comments on the CJEU’s Pancharevo Judgment

  Post published on EAPIL Blog (the blog of the European Association of Private International Law) on 3 February 2022, commenting on the Pancharevo judgment by the Court of Justice of the European Union (see above).

• Commission Communication of 3 April 2014 on guidance for application of Directive 2003/86 on the right to family reunification

  Doc. COM(2014) 210 final. See below the text of the Directive.

• Directive 2003/86/EC on the right to family reunification

  See above the Commission Communication of 3 April 2014, providing guidance as to the application of the directive.

• Directive 2003/109/EC on the status of third-country nationals who are long-term residents in the EU

  Consolidated version (as amended in 2011)

• Directive 2016/801/EU on the entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupils exchange, educational projects and au pairing
• Directive 2014/66/EU on intra-corporate transfers of workers

  EU Directive on the conditions of entry and residence of third-coutry nationals in the framework of an intra-corporate transfer, intended to make it easier for multinational corporations to temporarily relocate their managers, specialists and trainee employees to their branches or subsidiaries located in the European Union.

• Directive 2014/36/EU on migrant seasonal workers

  EU Directive regulating the conditions of entry and residence of third-country nationals for the purposes of employment as seasonal workers (i.e., for a temporary stay in the EU for a maximum period between five and nine months, depending on the Member State, for employment in an activity depending on the passing of seasons, while maintaining their mainplace of residence in a third country). The directive, like the other legal acts adopted under this chapter, contains also provisions on the rights to which the persons concerned shall be entitled.

• Directive 2011/98/EU, s.c. Single Permit Directive

  EU Directive setting out a common, simplified procedure for third-country nationals applying for a residence and work permit in a Member State, as well as a common set of rights to be granted to regular immigrants (see for a concise description the fact-sheet EU Immigration Policy, below in this folder).

• Directive (EU) 2021/1883 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (recast)

  s.c. "Blue Card" recast directive, replacing, as of 19 November 2023, the pre-existing Blue Card Directive (Directive 2009/50/EC) (see concise description in the fact-sheet Immigration Policy, below in this folder).

• EU Immigration Policy

  Fact Sheet downloadable from the European Parliament's website (https://www.europarl.europa.eu/factsheets/en/sheet/152/immigration-policy) describing in general terms the legal basis in the Treaties of the EU Immigration Policy and the main areas of legislative intervention in this field.

Materials in this folder relate to the return of irregularly staying third country nationals.

• Directive 2003/110/EC on assistance in cases of transit for the purposes of removal by air
• Court of Justice of the European Union, Judgment of 28 April 2011, Case C-61/11 PPU, El Dridi

  In this judgment, the European Court of Justice clarified the limitations which Directive 2008/115/EC, the s.c. Return Directive, poses on the discretion of the Member States to choose the most suitable means to enforce their immigration policy. In particular, the Court considered that the Italian legislation, sanctioning with imprisonment the failure to comply with an expulsion order issued in respect of a third country national who was staying irregularly in the territory of the country, was incompatible with the duty of sincere cooperation provided for under Article 4, para. 3, TEU, and, particularly, with the duty to ensure the effectiveness of the directive, since such a measure would materially hamper the return of the irregularly staying third country national to his country of origin or to another third country available to accept him, as would have been consistent with the spirit of the directive (see especially points 52-62 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 6 December 2011, Case C-329/11, Achughbabian

  In this judgment, the European Court of Justice pointed to the broad margin of discretion that Directive 2008/115/EC, as an instrument of minimal harmonization, left to the Member States in respect of the means to be adopted in order to enforce their immigration rules, including by treating the irregular entry and stay as criminal offences. Nonetheless, as stated by the ECJ in the earlier judgment in El Dridi (above in this same folder), the specific measures adopted at national level must be compatible with the principle of effectiveness, in such terms that they shall not hamper the achievement of the effects pursued by the directive (see especially points 28-34 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 18 December 2014, case C-562/13, Abdida

  In this judgment the European Court of Justice clarified that any decision taken by the competent authorities in a Member State ordering the return of an irregularly staying third country national to his country of origin or to a third country of transit must be compatible with the rules protecting the fundamental rights of the person concerned, as embodied namely in the European Convention on Human Rights and in the Charter of Fundamental Rights of the European Union. In this respect a special reference was made to the principle of non-refoulement, stressed in Article 33 of the Geneva Convention on the Staus of Refugees and in Article 19 of the Charter of Fundamental Rights of the European Union, whereby an applicant for asylum or other form of international protection may not be sent back (refouler in French) to a country where he would risk suffering persecution or other form of inhuman or degrading treatment. The Court considered such a principle as applicable also in respect of somebody, like the applicant in the instant case, who could not be considered as an applicant for international protection but, rather, for a form of humanitarian protection as contemplated by national law, as that for health reasons contemplated by the Belgian legislation, in such terms that his return might not be ordered to a third country where he would not find appropriate and affordable medical care (see especially points 38-50 in the grounds for judgment)

• Proposal for a Recast of the Directive on Common Standards and Procedures in Memeber States for Returning Illegally Staying Third-Country Nationals

  In his 2017 State of the Union Letter of Intent, the Commission president Juncker announced that by the end of 2018 the Commission would present targeted measures to promote a more effective approach to returns. Consequently, on 12 September 2018, the Commission presented a proposal to recast the Directive on common standards and procedures in Member States for returning illegally staying third-country nationals (the Return Directive).

• Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals

  s.c. Return Directive

In particular: the fight against migrants' smuggling, that is, the facilitation of unauthorised entry, transit and residence of migrants in the EU, and the need to ensure respect for the international obligations of Member States, especially as concerns search and rescue of migrants at sea.

• 'Le vent nous portera': Rescue and Confinement at Sea under Human Rights Law

  Article by Mariagiulia Giuffré, published in the online journal Erasmus Law Review, 2023, No. 1, commenting on the policies of ports closure resorted to by EU Member States facing the Mediterranean during the health emergency related to Covid-19 and their impact on the human rights of migrants rescued at sea and kept confined on board rescue vessels operated by NGOs having been denied entry into the ports for disembarking people on board.

• Council Directive 2002/90/EC on the facilitation of unauthorised entry, transit and residence

  Defining the practice known as migrants' smuggling. This Directive must be read jointly with Council Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (below in this folder).

• Council Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence

  This Framework Decision, adopted under the rules in the Treaty on European Union as they stood prior to the entry into force of the Treaty of Lisbon, as a legal act implementing the then existing intergovernmental cooperation in the field of justice and home affairs, complements from the perspective of judicial cooperation in criminal matters the rules set under Directive 2002/90/EC (above in this folder).

• Regulation (EU) No 656/2014 of 15 May 2014 establishing rules for the surveillance of the external sea borders

  This Regulation sets out rules concerning the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (s.c. FRONTEX). It places particular importance on the need to ensure safety at sea (Article 3), and the protection of fundamental rights and the principle of non-refoulement (Article 4), while regulating in detail the responsibilities of Member States participating in such operations.

• International Convention on maritime search and rescue (SAR), Hamburg, 27 April 1979

  The SAR Convention sets the obligation for the Contracting States to perform search and rescue activities in respect of persons in danger at sea. Even if not expressly conceived in respect of migrants, its substantive rules (materially contained in the Annex to the Convention, p. 7 ff. of the enclosed file) are of great importance as concers the handling of irregular migration across the Mediterranean. It presupposes the establishment by the parties of search an rescue (SAR) areas, where the the party having taken charge of the relevant area undertakes primary responsibility for the exercise of search and rescue activities, ensuring, through the establishment of a Maritime Rescue Coordination Centre (MRCC), the coordination of the sadi activities.

• United Nations Convention on the Law of the Sea (UNCLOS), Montego Bay (Jamaica), 10 December 1982

  See, especially, Article 98, concerning the duty to render assistance at sea.

• The Sea-Watch-3 case

  This case, heatedly discussed in the past years alongside other similar cases concerning the role of NGOs operating rescue vessels in the Mediterranean, gave rise to criminal proceedings being opened in Italy against the captain of a rescue vessel operated by a German NGO, who, after having rescued a group of migrants in distress in international waters off the coast of Lybia, and after having waited for many days out of the Italian port of Lampedusa, forced the entrance to the port in order to disembark the migrants notwithstanding the refusal by the Italian government to allow the disembarkment, based on the fact that the migrants concerned had been rescued in an area falling within the Lybian search-and-rescue (SAR) area. The captain of the vessel, who had been arrested as a consequence of her conduct, was eventually released, having the Tribunale di Agrigento (the competent Italian court) found, in an order of 2 July 2019, that she had acted under the fulfilment of a duty (see the enclosed link to a BBC News post, 6 July 2019), with particular regard to the duty to provide assistance at sea under Article 98 UNCLOS and to the duty to provide persons rescued at sea with a place of safety (POS) where they could be disembarked without running serious risks for their persons, as under the SAR Convention. Subsequently, the order having released the captain of the vessel was appealed by the Procuratore della Repubblica (public prosecutor) before the Italian Court of cassation, which, in a judgment by the Third criminal chamber of 16 January 2020 (filed on 20 February 2020), No. 6626, rejected the appeal, confirming that the captain of the vessel had acted in the fulfilment of a duty.

• Malta Declaration of 23 September 2019

  Joint Declaration of Intent on a controlled emergency procedure – voluntary committments by Member States for a predictable temporary solidarity mechanism – Non-binding declaration of intent by the governments of Italy, Malta, France and Germany, signed in presence of the Finnish presidency of the Council and of the European Commission, acknowledging the need for an assumption of shared responsibility by the Member States in handling the critical phenomenon of irregular migration by sea, by providing at the same time for a rapid resolution of situations of emergency (like the Sea Watch 3 case, above in this folder) and, at the same time, by ensuring that an efficient system of relocation of migrants is put into place.

• The Malta Declaration on search & rescue, disembarkation and relocation: Much Ado about Nothing

  Article by Eleonora Frasca and Francesco Luigi Gatta, published on eumigrationlawblog.eu on 3 March 2020, commenting on the Malta Declaration (above in this folder).

This folder collects materials, including relevant international conventions and protocols, concerning the EU action for countering trafficking in human beings. Trafficking in human beings amounts to an international crime, since, differently from mere smuggling of migrants (in respect of which see above, the folder titled "The EU action concerning irregular migration - II") it implies the coercion and exploitation of people made subject to it, including women and children, for the purposes of providing irregular workforce, where not for involvement in drugs trafficking, sexual exploitation, and other unlawful activities.

• United Nations Convention against Transnational Organized Crime (Palermo, December 2000)

  This Convention, opened for signature in Palermo in December 2000 after its text had been adopted by UN General Assembly resolution 55/25 of 15 November 2000, pursues the fight against transnational organized crime. As stressed in the foreword by the then UN Secretary General Kofi Annan to the enclosed official publication of the text of the Convention (pp. iii-iv), among the most invidious expressions of transnational organized crime there stands the practice of trafficking in human beings. Quoting from the foreword by Kofi Annan: "I believe the trafficking of persons, particularly women and children, for forced and exploitative labour, including for sexual exploitation, is one of the most egregious violations of human rights that the United Nations now confronts. It is widespread and growing. It is rooted in social and economic conditions in the countries from which the victims come, facilitated by practices that discriminate against women and driven by cruel indifference to human suffering on the part of those who exploit the services that the victims are forced to provide. The fate of these most vulnerable people in our world is an affront to human dignity and a challenge to every State, every people and every community."

• Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children

  This Protocol supplements the United Nations Convention against Transnational Organized Crime (see above), setting out additional provisions concerning the fight against trafficking in human beings. The European Union is a party to both the Convention and the Protocol. The Protocol (under Article 3, (a)) identifies trafficking in human beings as: " the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."

• Protocol Against the Smuggling of Migrants by Land, Sea and Air

  This Protocol, like that concerning trafficking in human beings (above), supplements the United Nations Convention Against Transnational Organized Crime. The European Union is also a party to this Protocol. It identifies (under Article 3, (a)) smuggling of migrants as: "the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident." See the materials in the folder "The EU action concerning irregular migration - II" (above) as concerns smuggling of migrants.

• Council of Europe Convention on Action against Trafficking in Human Beings

  The Council of Europe Convention on Action against Trafficking in Human Beings was adopted by the Committee of Ministers of the Council of Europe on 3 May 2005, following a series of other initiatives by the Council of Europe in the field of combating trafficking in human beings. The Convention entered into force on 1 February 2008, following its 10th ratification. While building on existing international instruments (with particular regard to the UN Convention on the fight against transnational organised crime and the annexed Protocol concerning trafficking in himan beings, above in this folder), the Council of Europe Convention goes beyond the minimum standards agreed upon in those instruments and strengthens the protection afforded to victims. The European Union is not a party to this Convention, but all its Member States are parties thereto.

• Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities

  This directive provides for the issuing by Member States of a permit of residence to third country nationas found to be the victims of trafficking in human beings or to have been subject to smuggling, that is, to an action intended to facilitate irregular migration, in order to encourage their removal from the influence of criminal organizations having organized their irregular entry and preventing their being expoited for irregular work or unlawful activities, with the parallel purpose of obtaining their availability to collaborate to the countering of the criminal actions of those organizations. In this direction, the directive promotes integration of the third country nationals concerned, promoting the adoption of initiatives at Member State level encouraging their access to regular work, training and education.

• Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals

  This directive forms part of the measures adopted by the European Union in order to counter migrant smuggling and trafficking in human beings, by mandating the Member States to adopt adequate sanctions for the employers of irregularly staying third country nationals. In this sense, the directive pursues the objective of reducing one of the most sensible "pull factors" for irregular migration, and, accordingly, to discourage the recourse to irregular workforce.

• Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims

  This directive replaces Council Framework Decision 2002/629/JHA, adopted under the framework of the pre-existing intergovernmental cooperation in the fields of justice and home affairs, and pursues, like its predecessor, the purpose of promoting the setting out, at Member State level, of an adequate sanctioning regime in respect of subjects liable of activities relating to trafficking in human beings. For this purpose, the Directive (Article 1) identifies minimum rules concerning the definition of criminal offences and sanctions in the area of trafficking in human beings. It also introduces common provisions, taking into account the gender perspective, to strengthen the prevention of this crime and the protection of the victims thereof. Article 2 of the Directive provides a definition of trafficking reflecting that contained under the above Protocol to the UN Convention on transnational organised crime: "The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation." (Article 2, para. 1).

This folder collects materials concerning the implementation of the EU asylum policy, based on Article 78 TFEU and bound to guarantee respect for the principles embodied in the Geneva Convention of 1951 on the status of refugees (above in the folder at the beginning of the column of materials), with particular regard to the principle of non-refoulement under Article 33 of the Convention. Article 18 of the Charter of Fundamental Rights of the European Union shall take effect as contemplated by the legal acts adopted by the EU institutions under the EU asylum policy: "The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as 'the Treaties')."

• EU Asylum Policy - Fact Sheet

  Fact sheet downloadable from the European Parliament's website (https://www.europarl.europa.eu/factsheets/en/sheet/151/asylum-policy) describing the legal basis in the Treaties of the EU asylum policy and the main legislative interventions and actions taken in the field at EU level.

• Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection

  This directive, also known as the "Qualification Directive" also provides for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. Insofar as the requirements for the granting of the status of refugee and the corresponding protection are concerned, the directive implements the principles enshrined in the Geneva Convention of 1951 on the status of refugees (above, in the first folder on top of the column of teaching materials). Subsidiary protection, instead, is an institution autonomously conceived as part of the EU asylum policy, in order to provide a supplementary form of international protection in respect of persons falling short of the requirements entitling to the granting of the status of refugee.

• Directive 2013/32/EU on common procedures for granting and withdrawing international protection (recast)

  This directive, also known as the "Asylum Procedures Directive", sets out common rules of procedure to be followed in the Member States concerning the examination of applications for international protection, that is, for the granting of either the status of refugee or of subsidiary protection pursuant to the Qualfications Directive. This directive is intended to reduce the disparities existing between the procedures contemplated by the Member States for dealing with such requests, in order to cut down the incentive for system shopping inherent in the differences existing between national procedures and ensure adequate standards of fair treatment of the requests are afforded, due regard being had to the potentially vulnerable condition of the applicants.

• Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast)

  This directive, also known as the "Reception Conditions Directive", sets out minimum standards that Member States are expected to guarantee to applicants for international protection within their territories. The directive intends to ensure that thrid country nationals having arrived in the territory of a Member State in circumstances revealing a potential need for international protection are informed of their right to apply for international protection and are granted assistance as for the presentation of their application, as well as to ensure that applicants are afforded a fair treatment pending the examination of their applications. Specific rules in the directive address the conditions upon which Member States may provide for the detention of applicants for international protection and the standards which the conditions of such a detention shall satisfy, in order to ensure respect for the fundamental rights of the applicants, particularly where vulnerable persons and, particularly, minors, are concerned.

• Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons

  This directive, also known as the "Temporary Protection Directive", provides for minimum standards concerning the temporary protection to be afforded to internationally displaced persons arriving from a third country in a situation implying a massive afflux of persons as a consequence of serious disturbances in their third country of origin. The directive also makes provision for an adequate burden sharing between the Member States in respect of the reception of such persons, pursuant to the principle of solidarity stressed under Article 80 TFEU.

• Court of justice of the European Union, Judgment of 24 June 2015, case C-373/13, H.T.

  In this judgment, the European Court of Justice stressed the declaratory nature of the decision by the authorities of a Member State to grant the status of refugee pursuant to the 1951 Geneva Convention and the Qualification Directive (currently, Directive 2011/95/EU, replacing the pre-existing Directive 2004/83/EC as applicable at the relevant time). As the Court stated, the fulfilment of the requirements contemplated for the status of refugee entitles the applicant to the recognition of that status. Accordingly, Member States have no discretion in that respect, and the exceptions contemplated by the Qualification Directive, such as those contemplated under Article 12 as grounds for exclusion from refugee status and Article 14 as grounds for revocation, withdrawal or refusal of renewal of that status, are of narrow interpretation (see paras 63 ff. of the grounds for judgment; see also, with regard to the grounds under Article 12 of the Qualification Directive, the ECJ judgmens in the cases of B and D and Lounani, below in this folder).

• Court of Justice of the European Union, Judgment of 4 October 2018, case C-56/17, Fathi

  In this judgment, the Court of Justice clarifies what is likely to constitute an act of persecution for the purposes of the granting of the status of refugee pursuant to Article 9 of the Qualification Directive (Directive 2011/95/EU, available in this folder). With particular regard to a rule of law imposing the death penalty or a custodial sentence as a sanction for an act of aposthasy, the Court of Justice considered that the very fact of imposing such a severe treatment for an act related to the manifestation of personal religious belief could amount to a form of persecution for the purposes of Article 9 of the Directive (see paras 96-98 of the grounds for judgment).

• Court of Justice of the European Union, Judgment of 4 October 2018, case C-652/16, Ahmedbekova and Ahmedbekov

  In this judgment the European Court of Justice clarifies that as concerns the grounds of persecution contemplated under Article 10 of the Qualification Directive (Directive 2011/95/EU, in this folder), that is, for reasons related to race, religion, nationality, or the fact of belonging to a particular social group, or political opinion, the acts of persecution feared by the applicant for the granting of the status of refugee are to be considered as founded on such grounds where the applicant himself or herself is perceived by the authors of those acts as falling under any of the relevant categories, even if such a perception is ill-founded (see paras 85-87 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 17 June 2010, joined cases C-175, C-176, C-178, C-179/08, Salahadin Abdulla and Others

  In this judgment, the European Court of Justice carifies the requirement for the granting of the status of refugee as currently set out under Article 7, para. 2, Directive 2011/95/EU (the s.c. Qualification Directive, available in this folder), whereby it shall be proved that the applicant could not obtain in the third country of origin an effective protection against the acts of persection lying at the basis of his application for the status of refugee. As the Court stated, the effectiveness of the protection available to the applicant in his country of origin shall be assessed by verifying whether, having regard to the applicant’s individual situation, the bodies or actors responsible for providing protection in the third country in question have taken reasonable steps to prevent the persecution, and that they therefore operate, among others, an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the individual concerned will have access to such protection if he ceases to have refugee status. The last point is particularly relevant in order to ensure respect for the principle of non-refoulement under Article 33 of the Geneva Convention, whereby in case his application for the granting of the status of refugee is rejected or the status of refugee initially granted is subsequently withdrawn the individual concerned shall not be put at a risk of returning to a third country where he would run the risk of undergoing persecution, even if the denial or subsequent withdrawal of refugee status does not of itself entail an expulsion of the applicant nor a return to the third country of origin. (see paras 70-71 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 9 Novermber 2010, Joined Cases C-57/09 and C-101/09, B and D

  The European Court of Justice has clarified in this judgment that the exclusion from refugee status as a consequnce of the commission of a serious non political crime or an act incompatible with the principles on which the United Nations are based, as contemplated, currently, under Article 12 of Directive 2011/95/EU (the Qualification Directive, in this folder), and as provided, in comparable terms, under the 1951 Geneva Convention (Article 1F) must be conceived as a form of sanction for the crime committed, making the applicant undeserving of the granting of refugee status. Accordingly, it does not require the proof that the applicant would constitute an actual challenge for the security of the Member State requested. The Court further clarified that a decision to deny or to subsequently revoke the status of refugee pursuant to Article 12 of the Qualification Directive does not entail an unconditional entitlement of that State to expel the applicant, since this might be incompatible with the principle of non-refoulement (see paras 102-110 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 31 January 2017, case C-573/14, Lounani

  The European Court of Justice in this judgment clarifies the scope of the grounds for exclusion from the granting of the status of refugee currently contemplated under Article 12, para. 2, Directive 2011/95/EU (s.c. Qualification Directive, in this folder), with particular regard to acts of international terrorism, qualifying as acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations (Article 12.2.c Qualification Directive). The Court clarified that, as stated under Article 12, para. 3, of the Directive, the exclusion in question extends to those taking part in supporting activities in respect of acts of international terrorism, such as recruiting, organizing, providing transport facilities, or equipment, to those involved in terrorist activities. Nonetheless, as the Court clarified, the application of the exclusion in question presupposes an assessment of the individual participation of the applicant to such activities (see paras 46-49, 69-71 and 78 of the grounds for judgment).

In this folder, cases concerning the requirements for granting subsidiary protection, as contemplated by Article 2, lit. f), and Article 15, Directive 2011/95/EU (s.c. Qualification Directive) are collected.

• Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection

  See particularly, concerning subsidiary protection, the definition under Article 2, lit. f, and the requirements for the granting of subsidiary protection, under Article 15.

• Court of Justice of the European Union, Judgment of 30 January 2014, case C-285/12, Diakité

  In this judgment, the European Court of Justice clarified that subsidiary protection as contemplated by Article 2, lit. f), Directive 2011/95/EU (s.c. Qualification Directive, above in this folder) shall be considered as a further form of international protection, deemed to apply as an alternative to the status of refugee and aimed, accordingly, to complete the protection offered by the status of refugee as contemplated under the Geneva Convention of 1951 (see para. 33 in the grounds for judgment). The Court also clarified in this judgment the notion of serious harm feared by the applicant as a condition for the granting of subsidiary protection pursuant to Article 15 of the Qualification Directive., with particular regard to Artcile 15 lit. c), referring to "a serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict". In this respect, the Court clarified that the notions of "international or internal armed conflict" for the purposes of the Directive are to be interpreted broadly, not necessarily coinciding with the specific meaning given to such terms under the Geneva Conventions of 1949 on international humanitarian law, in order not to unduly restrict the circumstances in which subsidiary protection might be applied for. As the Court clarified, "it must be held that the EU legislature wished to grant subsidiary protection not only to persons affected by ‘international armed conflicts’ and by ‘armed conflict not of an international character’, as defined in international humanitarian law, but also to persons affected by internal armed conflict, provided that such conflict involves indiscriminate violence. In that context, it is not necessary for all the criteria referred to in Common Article 3 of the four Geneva Conventions and Article 1(1) of Protocol II of 8 June 1977, which develops and supplements that article, to be satisfied." (see paras 19-21 in the grounds for judgment)

• Article 3 common to the four Geneva Conventions of 1949 on international humanitarian law

  The rule, referred to by the Court of Justice of the European Union in its judgment of 30 January 2014 in the case of Diakité (above in this folder) with regard to the establishment of the risk for the applicant to suffer a serious harm in the third country of which he or she is a national for the purposes of Article 15 of Directive (EU) 2011/95 (the so-called Qualifications Directive), provides a definition of armed conflict not of an international character.

• Article 3 common to the four Geneva Conventions of 1949 on international humanitarian law - 2016 Commentary

  Official commentary of 2016 to the rule under Article 3 of the four Geneva Conventions of 1949 on international humanitarian law (above in this folder), available on the website of the International Committee of the Red Cross (www.icrc.org).

• Court of Justice of the European Union, Judgment of 18 December 2014, case C-542/13, M'Bodj

  In this judgment the European Court of Justice further clarified the requirements for the granting of subsidiary protection with particular regard to Article 15, lit. b) of the Qualification Directive No. 2011/95/EU (above in this folder), whereby the serious harm feared by the applicant might consist of the risk of being made subject to torture or to inhuman or degrading treatment. As the Court clarified, the serious harm feared by the applicant must affect him individually, and, in order to qualify as torture or a form of inhuman or degrading treatment, must be inflicted intentionally. Accordingly, general considerations concerning the inability of the public health system in the third country of origin of the applicant to provide him with adequate care in respect of the illness he is suffering from are insufficient to substantiate an application for subsidiary protection (see paras 30-36 in the grounds for judgment - please note: the provisions of the pre-existing Directive 2004/83/EC referred to in the judgment are materially coindiding with those under the current Directive 2011/95/EU)

• Court of Justice of the European Union, Judgment of 24 April 2018, case C-353/16, M. P.

  In this judgment the European Court of Justice returns on the interpretation of Article 15, lit. b), Directive 2011/95/EU (s.c. Qualification Directive, above in this folder), concerning the scope of the notion of torture or inhuman or degrading treatment as one of the alternative forms which the serious harm feared by the applicant for subsidiary protection might take. Differently from the circumstances of the previous case of M'Bodj (above in this folder), in this case the applicant complained of the absence in the third country of origin of adequate psychological assistance in relation to the mental illness caused to him by the acts of torture to which he had been made subject in that country. This entitled him to apply for subsidiary protection, since the absence of such a care could be considered as a situation induced by the acts of torture to which he had previously been made subject in that country, Sri Lanka, where he had been suspected of supporting the organization of the Tigers for the liberation of Ilam Tamil, notwithstanding the fact that at the moment there appeared to be no serious risk for the applicant to be made subject again to comparable acts of torture (see paras 36-40, 44-48 of the grounds for judgment in the case)

• Court of Justice of the European Union, Judgment of 13 September 2018, case C-369/17, Ahmed

  In this judgment, the European Court of Justice addresses the grounds for exclusion from the granting of subsidiary protection pursuant to Article 17 of the Qualification Directive (Directive 2011/95/EU, above in this folder), with particualr regard to the ground under Article 17, lit. b), referring to the applicant's having committed a serious crime. As the Court clarified, such a ground for exclusion, which is not contemplated in the same broad terms under Article 12 of the same Directive in respect of applicants for the status of refugee, is rather broad in scope, so that it might refer to crimes committed either in the country of origin or in the country of reception (point 47 in the grounds for judgment). The Court further clarified that such a ground for exclusion might not be applied by Member States automatically, that is, based on a certain range of duration of the custodial sentence contemplated in respect of the relevant crime. Member States shall accordingly provide for an examination of all the relevant circumstances of the individual case, since, as for the other causes of exclusion contemplated by the Directive, it shall be interpreted narrowly (see points 48-52 in the grounds for judgment).

In this folder, materials concerning temporary protection under Directive 2001/55/EC, as well as other forms of humanitarian protection as provided for under Member States' laws are collected.

• What happens next? Scenarios following the end of the temporary protection in the EU

  Link to an online article, published by Meltem Ineli Ciger on eumigrationlawblog.eu on 10 March 2023, discussing the question of the treatment to be afforded to recipients of temporary protection fleeing from the war in Ukraine pursuant to EC Directive No. 55/2001 and Council Implementig Decision 2022/382 of 4 March 2022 once that form of protection will have come to an end pursuant to the rules set out in the Directive.

• Collective protection as a short-term solution: European responses to the protection needs of refugees from the war in Ukraine

  Article published online by a team of researchers, participating in the TemPro project, on eumigrationlawblog.eu, commenting on the Council Implementing Decision 2022/382 of 4 March 2022, establishing temporary protection for persons fleeing from the ongoing situation of conflict in Ukraine (below in this folder)

• Temporary Protection for Ukrainians: the Unexpected Renaissance of 'Free Choice'

  Article by Daniel Thym, published online on eumigrationlawblog.eu, commenting on the Council Implementing Decision 2022/382, establishing temporary protection for persons fleeing the ongoing conflict in Ukraine (below in this folder)

• 5 Reasons Why: Understanding the reasons behind the activation of the Temporary Protection Directive in 2022

  Article by Melten Ineli Ciger, published on the online blog eumigrationlawblog.eu, commenting on the Council Implementing Decision 2022/382 of 4 March 2022 activating temporary protection in respect of persons fleeing the ongoing conflict in Ukraine (below in this folder)

• Council Implementing Decision (EU) 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection

  This decision by the Council, adopted as a consequence of the ongoning conflict in Ukraine and of the consequent massive influx of displaced persons arriving in the neighbouring Member States of the EU constitutes the first, remarkable case of application of the institution of temporary protection as devised under Directive 2001/55/EC (below in this folder).

• Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons

  This directive, also known as the "Temporary Protection Directive", provides for minimum standards concerning the temporary protection to be afforded to internationally displaced persons arriving from a third country in a situation implying a massive afflux of persons as a consequence of serious disturbances in their third country of origin. The directive also makes provision for an adequate burden sharing between the Member States in respect of the reception of such persons, pursuant to the principle of solidarity stressed under Article 80 TFEU.

• Court of Justice of the European Union, Judgment of 26 July 2017, case C-646/16, Jafari and Jafari

  In this judgment, the European Court of Justice pointed to the mechanism of temporary protection as contemplated under Directive 2001/55/EC (above in this folder) as providing a tool by which situations of massive afflux of displaced persons from a third country are faced by a Member State placed on the external border of the European Union. The mechanism contemplated by Directive 2001/55/EC presents significant differences from the other forms of international protection contemplated under the Common European Asylum System (CEAS), that is, the status of refugee and subsidiary protection. In fact, whereas these are based on an assessment of the individual situation of the applicant and point to confer a relatively permanent form of protection, temporary protection as contemplated under Directive 2001/55/EC in respect of situations of massive afflux of displaced persons from third countries is based on an assessment of the collective conditions of the group of displaced persons concerned and presupposes the granting of a purely temporary form of protection. Accordingly, the Court considered that such situations of massive afflux of displaced persons should be dealt with under the mechanism of temporary protection afforded by Directive 2001/55/EC, as well as under the 'early warning' mechanism contemplated under Article 33 of the Dublin III Regulation (Regulation (EU) No. 604/2013), without affecting the application of the rules contained in the latter Regulation concerning the determination of the Member State competent for examining an application for international protection. (see paras 93-99 in the grounds for judgment)

• Council Decision (EU) 2015/1523 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece

  This decision, adopted pursuant to Artcile 78, para. 3., TFEU, whereby, in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission and after consulting the European Parliament, may adopt provisional measures for the benefit of the Member States concerned, provided for provisional measures in favour of Italy and Greece to help them face the sudden inflows of migrants from third countries. The European Court of Justice referred to this decision, and to the subsequent Council Decision (EU) 2015/1601 in its judgment of 26 July 2017 in case C-646/16, Jafari (above in this folder, para. 99 in the grounds for judgment) as an example of the modes contemplated in the Treaties for facing similar emergency situations.

• Council Decision (EU) 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece

  This decision, like the previous Council Decision (EU) 2015/1601 (above in this folder) has been adopted pursuant ot Article 78, para. 3, TFEU, to assist Italy and Greece in facing a massive afflux of migrants from third countries. As such, this decision, like the previous one, has been recalled by the European Court of Justice in its judgment of 26 July 2017, Jafari (above in this folder, para. 99 in the grounds for judgment) as an example of the means contemplated in the Treaties by which the EU can face situations of massive afflux of migrants from third countries that specifically affect some Member States, inherently those located on the external borders of the EU and particularly in the Mediterranean area, like Italy and Greece.

• Court of Justice of the European Union, Judgment of 6 September 2017. joined cases C-643/15 and C-647/15, Slovakia and Hungary v. Council

  By this judgment, the Court of Justice of the European Union rejected the actions for annullment brought before it by Slovakia and Hungary against the two Council decisions of 2015 (above in this folder) making provision for the relocation of migrants from Italy and Greece, as Member States of first entrance overburdened by an excessive afflux of migrants, to other member States, pointing to the legitimate foundation of those measures on Article 78, para. 3, TFEU, and to the duty of solidarity incumbent on all Member States as concerns the management of migratory fluxes as set out under Article 80 TFEU.

• Court of Justice of the European Union, Judgment of 6 September 2017. joined cases C-643/15 and C-647/15, Slovakia and Hungary v. Council (press release)

  Press release on the above judgment available on the Court of Justice website, providing concise information on the case and the main grounds for judgment.

• Court of Justice of the European Union, Judgment of 2 April 2020, joined cases C-715/17, C-718/17 and C-719/17, European Commission v. Poland, Hungary and the Chzech Republic

  In this judgment, based on an infringement procedure brought by the European Commission, the Court of Justice of the European Union declared that Poland, Hungary and the Chzech Republic have violated their duties pursuant to the Treaties in failing to accept the relocation of migrants as provided for under the two Council decisions of 2015 (above in this folder) finding their basis under Article 78, para. 3, TFEU and the duty of solidarity stressed under Article 80 TFEU.

• Court of Justice of the European Union, Judgment of 2 April 2020, joined cases C-715/17, C-718/17 and C-719/17, European Commission v. Poland, Hungary and the Chzech Republic (press release)

  Press release on the above judgment, available on the website of the Court of Justice of the European Union, providing a concise account of the case and the main grounds for judgment.

• Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection

  (Qualification Directive) - see particularly Article 3 of the Directive, whereby Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with the Directive. See also Recital 14 in the Preamble to the Directive, which clarifies to some extent the meaning of the rule: "Member States should have the power to introduce or maintain more favourable provisions than the standards laid down in this Directive for third-country nationals or stateless persons who request international protection from a Member State, where such a request is understood to be on the grounds that the person concerned is either a refugee within the meaning of Article 1(A) of the Geneva Convention, or a person eligible for subsidiary protection." See also the subsequent Recital 15, pointing to other forms of protection autonomously contemplated by Member States' laws: "Those third-country nationals or stateless persons 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."

• Court of Justice of the European Union, Judgment of 9 Novermber 2010, Joined Cases C-57/09 and C-101/09, B and D

  In this judgment, already considered above (see in the folder 'The EU Asylum Policy - I') concerning the requirements for granting the status of refugee pursuant to the Qualification Directive, the European Court of Justice clarified that it cannot be held as compatible with the Directive pursuant to its Article 3 the fact for a Member State to grant the status of refugee to a third country national who ought to be excluded from such a status pursuant to Artcile 12 of the same Directive (see para. 115 in the grounds for judgment). The Court moved on to clarify that the Qualification Directive does not preclude the right for Member States to grant a complementary form of protection of a national origin to third country nationals, provided this is kept distinct from the status of refugee as contemplated under the Directive (see paras 116-120 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 18 December 2014, case C-542/13, M'Bodj

  In this judgment, already considered above (see in the folder 'The EU Asylum Policy - II') concerning the requirements for granting subsidiary protection pursuant to the Qualification Directive, the Court of Justice clarified that, while it would not be compatible with the Directive to grant subsidiary protection, as contemplated by the Directive, to an applicant not satisfying the requirements posed for that purpose by the Directive itself, this does not preclude Member States' discretion to grant a form of national protection based on compassionate or humanitarian grounds falling outside of the scope of the Directive, provided the status thereby acquired by the beneficiary of such a form of protection is not confused with that of a beneficiary of subsidiary protection under the Directive (see paras 42-47 in the grounds for judgment in the case).

• Beyond closed ports: the new Italian Decree-Law on Immigration and Security

  Online article by Silvia Carta, published on eumigrationlawblog.eu, providing a concise analysis of the amendments to complementary humanitarian protection contemplated under Italian law, as introduced by Decree-law No. 113/2018 (s.c. Decreto sicurezza, also known as Decreto Salvini from the name of the then Italian MInister of home affairs having promoted its adoption). Please note that further amendments were later introduced by a Decree-law of 21 October 2020, No 130, loosening to some extent the rigidity of the requirements posed by the earlier decree in respect of the granting of permits of stay for special grounds (see below).

• Italy: A new system of reception and integration

  Link to an outline in English, published on the European Commission's website, concerning the amendments to Italian rules concerning the granting of humanitarian protection based on compassionate grounds introduced by Decree-Law No. 130/2020, broadening to some extent the grounds for granting such a protection as restrictively contemplated under the s.c. Salvini Decree of 2018 (on which see above).

This folder will collect materials concerning the determination of the Member State possessing competence to examine an application for international protection, under the system first established by the Dublin Convention of 1990, concluded by the Member States of the then European Communities at a time when the latter did not possess legislative competence in respect of immigration and asylum matters, and further developed, after the s.c. 'communitarization' of this policy area, by Regulation (EU) 343/2003, s.c. Dublin II, and, later, by the current Regulation (EU) 604/2013, s.c. Dublin III. Reference will also be made to some heavily debated proposals for reform of the system embodied in the latter regulation, following the difficulties revealed by the practice of its implementation.

• Regulation (EU) No. 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection

  s.c. Dublin III Regulation (as replacing the pre-existing Regulation (EU) No. 343/2003, s.c. Dublin II, replacing in turn the Dublin Convention of 15 June 1990 on the same subject). See, particularly, the rules under Article 3, para. 2, and Articles 7 to 17, establishing the criteria for determining the Member State competent for the examination of an application for international protection. These criteria are governed by a stict order of priority, in order to achieve the goal pursued by the Regulation, that is, to prevent both positive and negative conflicts between Member States whose authorities might be seized of more applications for international protection by one and the same applicant (Article 7, para. 1). These are, in turn: the Member State where the applicant could exercise his right to family reunification (Articles 8-11); the Member State having granted the applicant a residence permit or visa (Article 12); the Member State through which the third country national concerned first entered irregularly the EU territory (Article 13). The said criteria shall be applied having regard to the situation existing at the time the first application for international protection has been submitted to the authorities of a Member State (Article 7, para. 2). Article 3, para. 2, provides as a subsidiary rule, to be resorted to in those cases where none of the above rules applies, that the Member State where an application for international protection is lodged first shall be responsible for examining it. The rule also provides, in its second sentence, for an exception to the above rules, whereby, in case there exists serious grounds for believing that the applicant would risk suffering inhuman or degrading treatment incompatible with Article 4 of the Charter of fundamental rights of the European Union in the Member State competent to examine his application pursuant to the above rules, the Member State whse authorities are seized of the application shall proceed with its examination, even if they would not be competent under the said rules. Article 17 of the Regulation also allows to the Member State seized of an application for international protection a margin of discretion in order to derogate from the criteria set out in the Regulation and proceed directly to the examination of the application, even if this would have been of the competence of another Member State pursuant to the Regulation.

• Court of Justice of the European Union, Judgment of 21 December 2011, joined cases C-411/10 and C-493/10, N. S.

  In this judgment the European Court of Justice clarified that, for the purposes of the Dublin Regulation (at the relevant time, Regulation (EU) No. 343/2003, Dublin II, subsequently replaced by the current Regulation (EU) No. 604/2013, Dublin III, above in this folder), all Member States of the European Union, respecting the principle of non-refoulement, shall reciprocally consider themselves as safe countries for third country nationals. Accordingly, Member States shall be expected to rely on each other as concerns their ability to guarantee respect for the fundamental rights of third country nationals applying for international protection. Accordingly, Member States shall not derogate from the criteria set out in the Dublin Regulation for the purposes of determining the Member State competent for examining an application for international protection, unless in the most exceptional circumstances contemplated under Article 3, para. 2, second sentence, of the current Dublin III Regulation, which come for consideration only in presence of a serious and systemic deficiency in the treatment of third country nationals seeking for international protection in the Member State concerned. (see paras 78-90 in the grounds for judgment)

• Court of Justice of the European Union, Judgment of 3 May 2012, case C-620/10, Kastrati

  In this judgment, the European Court of Justice clarified that the application of the criteria set out in the Dublin Regulation (at the relevant time, Regulation (EU) No. 343/2003, s.c. Dublin II, subsequently replaced by the current Regulation (EU) No. 604/2013, s.c. Dublin III) for the purposes of determining the Member State having competence to examine an application for international protection is subject to the condition of an application for international protection to have been actually lodged before the authorities of a Member State. Accordingly, in case the application is subsequently withdrawn before the Member State concerned has agreed to take charge of the asylum seeker, the rules set out in the Regulation will no longer apply (see paras 41-47 in the grounds for judgment).

• Court of Justice of the European Union, judgment of 6 June 2013, case C-648/11, M. A. and Others

  In this judgment, the European Court of Justice addressed the application of the rules concerning the determination of the Member State competent to examine an application fro international protection presented by an unaccompanied minor coming from a third country, as currently set out under Article 8, para. 4, of Regulation (EU) No. 604/2013 (s.c Dublin III; formerly, at the relevant time, Article 6, Regulation (EU) No. 343/2003, s.c. Dublin II). The Court of Justice clarified that in cases where unaccompanied minors, in the absence of relatives present in a Member State of the EU, have lodged multiple applications for international protection in different Member States, the competence to examine their situation lies with the authorities of the Member State where the minor is present, and where he lodged his last application for international protection. As the Court noted, this solution is dictated by the need to grant the applicant acces to international protection without undue delay, as would be more easily granted by the Member State where the minor is present, without need for him to be transferred to another Member State (see paras 42-59 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 26 July 2017, case C-646/16, Jafari

  In this judgment, already considered above (see in the folder: 'The EU Asylum Policy - III') concerning temporary protection, the European Court of Justice addressed the second criterion contemplated by the Dublin III Regulation (Reg. EU No. 604/2013), under its Article 12, whereby, in those cases where the criteria based on family reasons contemplated in the previous articles of the Regulation do not apply, the competence for examining an application for international protection shall lay with the authorities of the Member State having issued to the applicant a residence permit or visa. In this respect, the Court clarified that for a visa there shall be intended an act formally adopted by the national administration, and not just the fact of tolerating the presence of the third country national in the territory of the Member State concerned. Accordingly, the fact of issuing a visa shall not coincide with admitting materially the third country national concerned, since, as such, the visa represents an administrative step to be taken for the purposes of granting admission (see points 44, 48-53 in the grounds for judgment). The Court further clarified, concerning the third criterion contemplated under Article 13 of the Dublin III Regulation, identifying, subsidiarily, as competent to examine an application for international protection the Member State of first irregular entry of third country national into the EU territory, that the entrance of a third country national into the EU shall be considered as irregular for the purposes of that rule both in case the crossing of the external borders was tolerated or authorized in breach of the applicable rules, and in case it was authorized base on humanitarian grounds amounting to a derogation to the ordinary conditions of admission for third country nationals (see paras 56-58, 69-74, 83-89 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 26 July 2017, case C-490/16, A.S.

  In this judgment, the European Court of Justice addressed the third criterion contemplated under Article 13 of the Dublin III Regulation (Reg. EU 604/2013) for the purposes of determining the Member State competent to examine an applicaton for international protection. The said criterion, to be resorted to where the other criteria set out under the previous articles of the Regulation do not apply, provides that the Member State through which a third country national has irregularly crossed the external borders of the EU shall have competence to examine his application for international protection. The rule, nonetheless, provides that in case the applicant subsequently moves to another Member State, the competence of the Member State of first entry shall elapse after 12 months from the date of the irregular entry. In this case, the application for international protection shall be examined by the Member State to which the third country national eventually moved. The case concerned a Syrian national, who, traveling through a series of third countries, such a Lebanon, Turkey, Greece, Northern Macedonia and Serbia, had entered Croatia in 2016, from where he had been accompanied by the Croatian authorities to the border with Slovenia, and in turn by the Slovenian authorities to the border with Austria, whose authorities refused to admit him. Consequently, the Syrian national lodged an application for international protection to the Slovenian authorities, who considered the Croatian authorities as competent under Article 13 of the Regulation, having the applicant first crossed the Croatian border, coming from a third country. The Court of Justice clarified that once an application fo international protection is lodged with the authorities of a Member State pursuant to Artcile 13, para. 1, of the Dublin Regulation, before the passing of 12 months from the date of the irregular entry from a third country, the subsequent elapsing of the term does not deprive the Member State concerned from his competence to examine the application (see point 55).

• Court of Justice of the European Union, Judgment of 23 January 2019, case C-661/17, M. A., S. A. and A. Z.

  In this judgment, the Court of Justice draws light on the discretionary power conferred by Article 17 of the Dublin III Regulation on the Member State whose authorities are seized of an application for international protection to derogate from the criteria set out in the Regulation for determining the Member State responsible for examining an application for international protection. In respect of a case where the applicants had lodged an application for international protection before the Irish authorities, whereas the UK ones would have been competent to examine such an application as the Member State having granted a residence permit to the applicants as contemplated by Article 12 of the Dublin III Regulation, the Court considered that the announced withdrawal of the UK from the EU (s.c. Brexit) did not amount, of itself, to a sufficient justification for obliging the Irish authorities to apply the derogatory clause under Article 17 of the Regulation and proceed themselves to the examination of the applications. Indeed, as the Court noted, the announced decision by a Member State to withdraw from the European Union, as contemplated under Artcile 50 TEU, does not suspend, until the withdrawal takes fully effect, the application of the applicable rules of EU law, including the Dublin III Regulation, in respect of the Member State intending to withdraw. As for the other grounds, related to health conditions, or to the need to protect the superior interest of the minors concerned, which might have justified a decision by the Irish authority to apply the discretionary clause under Article 17 and accordingly examine themselves the applications for international protection lodged by the third country nationals concerned in lieu of the UK authorities which would have been competent under Article 12 of the Regulation, the Court stressed the breadth of the discretion granted by the rule in question to the authorities called to take a decision as to the determination of the Member State competent to examine an application for international protection. Stressing the need for a rapid identification of the Member State so competent, the Court also clarified thet the decision as to the identification of the Member State competent to examine an application for international protection is not, of itself, subject to judicila review under Article 27 of the Regulation, provided a review of such a decision might be possible at the stage where the Member State identified as competent adopts a decision as to the substance of the application concerned (see paras 53-59, 70-72, 73-79, 80 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 19 March 2019, case C-163/17, Jawo

  In this judgment, the European Court of Justice clarified the rules contained under Article 29 of the Dublin III Regulation (Reg. EU No. 604/2013) concerning the transfer of an applicant for international protection from the Member State where he submitted such an application to the Member State found as competent to examine that application pursuant to the criteria set out under the same Regulation. Specifically, the first question addressed by the Court revolved on the six months term fixed under Article 29, para. 1, for the transfer procedure to be completed, running from the time when the Member State found as competent to examine the application for international protection has declared its availability to take charge of the applicant. As provided for under Article 29, para. 2, the competent Member State is relieved from its obligations once the said term has elapsed without the procedure being completed, unless the term is extended on account of the fact that the applicant was imprisoned or absconded. As concerns the latter occurrence, the Court clarified that the fact of the applicant's having left his place of residence in the transferring Member State, without giving due notice to the competent authorities as to his whereabouts, could be considered as tantamount to absconding, provided he had been informed of his duty not to leave his place of residence unless giving notice to the said authorities. In fact, as the Court reasoned, such a behaviour could be held as meant to delay the achievement of the transfer in order to cause the six months term contemplated by the said rule to elapse. Nonetheless, the applicant was to be granted adequate opportunities to prove this was not the case. The Court went on to consider whether the exception to the duty for a Member State seized of an application for international protection to refer the examination of such an application to the Member State found as competent, as contemplated by Article 3, para. 2, of the Dublin III Regulation, might apply in a case where, based on objective and reliable information on the situation concerning applicants for international protection in the Member State found as competent, there was reasonable ground to believe that, had the applicant been transferred to that Member State he would have suffered the risk of facing a treatment likely to qualify as inhuman or degrading for the purposes of Article 4 of the Charter of fundamental rights of the European Union. The Court of Justice recalled its previous judgment in the case of N.S. (above in this folder), concerning the presumption whereby all Member States are to be reciprocally considered as 'safe countries' for the purposes of taking charge of an applicant for international protection. As it had stated in that judgment, the said presumption is a cornerstone of the entire Dublin system, and, as such, it might be rebutted only in the most extreme circumstances. Accordingly, the Court considered that the exception under Article 3, apra. 2, of the Dublin III Regulation might apply only if it is proved that the applicant, if transferred to the Member State found as competent to examine his application, would run the concrete risk of living there , independently of his intentions, in conditions of extreme poverty (see, respectively, points 56-65 and 80-98 in the grounds for judgment).

This folder collects materials concerning the treatment of applicants for international protection, that is, either for the status of refugee or for subsidiary protection, in the EU Member States. Reference shall be made in this respect to Directive 2013/33/EU laying down standards for the reception of applicants for international protection (s.c. 'Reception Directive'). The guarantees contemplated under the Reception Directive shall be afforded to applicants not only by the Member State found as competent to examine their application for international protection under the rules set out under the Dublin III Regulation (above, in the previous folder), but equally at the preliminary stage of determining the Member State so competent. The cases collected in this folder will highlight some of the most significant criticalities revealed by the practice in this respect.

• Directive 2013/33/EU laying down standards for the reception of applicants for international protection (recast)

  See, particularly, Article 4, saving more favourable national provisions, Articles 5-6, concerning the right to be informed concerning the benefits to which applicants are entitled and the obligations to which they are subject, including the right to be provided with a document identifying them as applicants; Article 7, concerning the right to reside and move within the territory of the Member State where the application has been lodged, and Article 8, concerning the conditions upon which an applicant may be detained.

• Court of Justice of the European Union, Judgment of 27 September 2012, case C-179/11, Cimade

  In this judgment, the European Court of Justice clarified that the standards of guarantee concerning the treatment of applicants for international protection, as contemplated, at that time, under Directive 2003/9/EC (subsequently replaced by the current Directive 2013/33/EU, s.c. Reception Directive) shall apply not only to applicants for international protection pending examination of their application for asylum in the Member State found as competent under the rules embodied in the Dublin Regulation, but also in the preliminary phase in which a decision shall be taken as to which Member State shall be held as competent to examine the application for international protection pursuant to the Dublin rules, considering that even after the Member State so competent has been identified the applicant might still remain in the Member State where he lodged his application for international protection. The Court also addressed the qestion of the sharing of the financial burden inherent in securing the said reception conditions, stressing that in principle each Member State shall bear its costs, subject to the possibility of a contribution by the European Refugee Fund, established by Council Decision No 573/2007/EC as part of the General programme ‘Solidarity and Management of Migration Flows’ for the purposes of achieving solidarity at least as concerns the financial implications of the reception of asylum seekers (see paras 42-45, 55-60).

• Court of Justice of the European Union, Judgment of 15 March 2017, case C-528/15, Al Chodor and Others

  In this judgment, the European Court of Justice pointed to the conditions which the detention of an applicant for international protection shall satisfy in order for it to be considered as compatible with the rules contained in both the Reception Directive (Directive 2013/33/EU, Article 8, para. 3, lit. f), and Article 28 of the Dublin III Regulation (Regulation EU No. 604/2013, above, in the folder The EU Asylum Policy - IV). In this respect, the Court stressed that the Member States may not hold a person in detention for the sole reason that he or she is an applicant for international protection. Furthermore, Article 28(2) of the Dublin III Regulation permits the detention of a person in order to secure transfer procedures pursuant to that regulation only where there is a significant risk of absconding, the assessment of which must be based on an individual assessment. In addition, the detention must be proportional and is justified only where other less coercive alternative measures cannot be applied effectively. Moreover, under Article 28(3), the detention must be for as short a period as possible. Finally, Article 2(n) of the Dublin III Regulation requires that the finding of a risk of absconding be based on objective criteria which must be defined by law and applied on a case-by-case basis. As the Court underlined, a decision to order the detention of an applicant for international protection shall be adopted taking in due account its impact on the fundamental rights of the person concerned, as protected by the Charter of Fundamental Rights of the European Union (see paras 34-40, 42-45 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 31 May 2018, case C-647/16, Hassan

  In this judgment, the European Court of Justice considers the procedural guarantees to which an applicant for international protection shall be entitled in relation to a decision to transfer him to another Member State under Article 26 of the Dublin III Regulation (Regulation (EU) No. 604/2013, above, in the folder 'The EU Asylum Policy - IV'). As the Court stated, a decision to transfer the applicant to another Member State, which shall be notified to the applicant, can only be adopted after the Member State to which the applicant shall be transferred has confirmed its acceptance to take charge of him. As concerns the formalities related to the notification of the transfer decision to the applicant, the Court clarified that these are intended to secure the applicant's right to an effective remedy against such a decision. In this respect, the need to ensure a timely carrying out of the transfer procedure may not justify sacrifying the applicant's right to an effective remedy (see paras 41-46, 53-59 in the grounds for judgment).

• Court of Justice of the European Union, Judgment of 16 February 2017, case C-578/16, C. K. and Others

  In this judgment the European Court of Justice stresses the importance of safeguarding the applicant's right to the protection of his health in respect of the enforcement of a decision to transfer him to another Member State pursuant to the rules contained in the Dublin III Regulation. Accordingly, a decision to refrain from transferring an applicant for international protection to the Member State having competence to examine his application pursuant to the Dublin III Regulation should not be taken lightly, based on unsubstantiated assumptions as to the shortcomings of the healthcare system in the Member State to which the applicant shall be transferred. Such a decision might be taken only where evidence is provided that the applicant would not obtain satisfactory health assistance in respect of his specific illness, so that transferring the applicant would be tantamount to exposing him to degrading or inhuman treatment, prohibited under Article 4 of the Charter of Fundamental Rights of the European Union. Still, before denying the transfer of the applicant to the competent Member State pursuant to the rules set out under the Dublin III Regulation, cooperation by the competent authorities of that Member State should be sought, with a view to ensuring that adequate measures are put into place to address the special situation of the applicant (see paras 74-77, 85-89 in the grounds for judgment).

This folder collects materials on the external action of the European Union in the field of migration. In fact, the development of close relationships with the third countries of origin and transit of migratory fluxes is an essential asset in the development of an effective migration policy. Cooperation with third countries might take first the form of a political dialogue, which might involve the organization of conferences and summits involving the leaders or competent ministers from Member States, third countries and international organizations concerned, in order to discuss the causes of migratory fluxes and develop joint strategies to face the challenges they pose. Political dialogue might be carried on both on a regional level, based on a political declaration endorsed by the countries belonging to the regional area concerned, and on a bilateral level, heading to planning more specific joint initiatives. Bilateral dialogue might evolve into a Mobility Partnership (MP), representing the most sophisticated and long term form of dialogue and cooperation with a third country, aiming at containing on the one side irregular migratory fluxes and at promoting fair dealing with regular migration from the third country concerned, or into a Common Agenda on Migration and Mobility (CAMM), embodying a less evoluted form of cooperation. The said forms of political cooperation with third countries might prepare the ground for the conclusion of true international agreements, which might take the form either of partnership agreements, like the Partnership Agreement 2000/483/EC between the members of the African, Caribbean and Pacific (ACP) Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000, or of other types of agreements, such as readmission agreements, agreements concerning the issuing of visas, or agreements concerning the status of migrants. Beneath the level of international agreements properly so called, operational understandings are frequently entered into between the competent bodies of the EU, such as the Frontex agency or the European Asylum Support Office (EASO) and the relevant authorities of the third countries concerned, providing for detailed arrangements as for the modes of implementation of the cooperation. These understandings, nonetheless, do not amount to binding agreements, and are accordingly deemed to apply until supported by the mutual consent of the parties.

• The Global Approach to Migration and Mobility (GAMM)

  Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Doc. COM (2011) 743 of 18 November 2011. See particularly, concerning Mobility Partnerships (MPs) and Common Agendas on Migration and Mobility (CAMMs), p. 10-11.

• EU-Turkey Statement of 18 March 2016

  This joint statement, whose legal qualfication is controversial, appearing it more likely to be qualified as a non-binding memorandum of understanding rather than as a truly binding international agreement (see below, an order by the General Court of 28 February 2017, case T-192/16, N.F., denying that it could amount to an international agreement entered into by the EU), embodies some mutual committments by the two parties, aimed at containing irregular migratory fluxes mostly originating from Syria and Iraq and fleeing the desperate situation of conflict in the first country and the, at that time, growing threat posed by ISIL or Daesh in the second one, and at securing Turkey's availability to take back irregular migrants crossing to Greece and not in need of international protection, against a committment by the EU to accept a comparable number of migrants found to be in need of international protection and not having attempted to cross the EU external borders irregularly (see the attached press release by the Council of the European Union, providing a synthesis of the content of the joint statement).

• General Court of the European Union, Order of 28 February 2017, case T-192/16, N.F. v. European Council (EU-Turkey Statement)

  In this order the General Court of the European Union (formerly Court of First Instance) dismissed an action for annulment brought by private applicants against the supposed agreement concluded by the European Union with Turkey on 18 March 2016 and known as the 'EU-Turkey Statement' (see above in this folder). The General Court dismissed the action arguing that no international agreement was entered into by the EU with Turkey in the circumstances under consideration, since the European Council did not adopt any decision to conclude such an agreement pursuant to Article 218 TFEU (providing for the procedure for the conclusion of international agreements by the EU with third countries or other international organizations - see para. 70 in the grounds for judgment). As the General Court clarified, "independently of whether it constitutes, as maintained by the European Council, the Council and the Commission, a political statement or, on the contrary, as the applicant submits, a measure capable of producing binding legal effects, the EU-Turkey statement, as published by means of Press Release No 144/16, cannot be regarded as a measure adopted by the European Council, or, moreover, by any other institution, body, office or agency of the European Union, or as revealing the existence of such a measure that corresponds to the contested measure" (para. 71). Besides denying that the EU-Turkey Statement could amount to an international agreement binding on the EU pursuant to Article 218 TFEU, the General Court also denied that it could embody a sort of informal agreement concluded by the EU with Turkey on the occasion of the meeting held on 18 March 2016 referred to in press release No. 144/2016 (above in this folder). As the General Court observed, "even supposing that an international agreement could have been informally concluded during the meeting of 18 March 2016, which has been denied by the European Council, the Council and the Commission in the present case, that agreement would have been an agreement concluded by the Heads of State or Government of the Member States of the European Union and the Turkish Prime Minister" (para. 72). This order by the General Court was subsequently appealed by the applicants before the Court of Justice, which, by its order of 12 September 2018, joined cases C-208/17 P and C-210/17 P, N. F. and Others v. European Council, dismissed the appeal as inadmissible, for having the applicants failed to adequately state the grounds in law on which their appeal was based.

• The EU support for alternatives to immigration detention in Turkiye: a curious case at odds with EU's external migration policy?

  Link to an article published by M. Ineli-Ciger on eumigrationlawblog.eu on 17 January 2024, commenting on the follow-up of the EU-Turkey Statement of March 2016, with particular regard to the support provided by the EU to the development of solutions alternative to the detention for irregular migrants in Turkey and its consistency with the EU's externalization policies in the field of immigration.

• The Memorandum of Understanding between the EU and Tunisia: Issues of procedure and substance on the informalisation of migration cooperation

  Link to an article published by P. Garcia Andrade and E. Frasca on eumigrationlawblog.eu on 26 January 2024 on the Memorandum of Understanding entered into between the EU an Tunisia, providing for various measures of economic support by the EU in favour of Tunisia in exchange for that country's cooperation on migration control. The article comments on the issues raised by the prevailing recourse to informal arrangements between the EU and third countries in the field of immigration, in terms of consistency with the procedural guaranteees contemplated by the Treaties in respect of the conclusion of international agreements with third countries and, by implication, with the respect due to the fundamental rights of the persons concerned.

In this folder, we shall collect materials concerning the conclusion by the European Union of readmission agreements with third countries. As a preliminary remark, it shall be noted that in a first phase the European Community, as it then was, did not possess an autonomous competence to conclude such agreements with the third countries concerned. The solution prevailing at that stage consisted accordingly in a mere coordination of the external action of the Member States in that direction, notably by setting out a standard readmission agreement to be used by Member States when negotiating their own readmission agreements with third countries (see Council Recommendation of 30 November 1994, concerning a specimen bilateral agreement on readmission between a Member State and a third country, in OJ, C 274 of 19 September 1996, p. 20). From the entry into force of the Treaty of Amsterdam (1st May 1999), following the so-called communitarization, among other policy areas, of the immigration and asylum policies, a competence of the then European Community to conclude readmission agreements was considered as based on the implied powers doctrine, and, accordingly, on a principle of parallelism between internal and external competences of the Community. It has then been for the Treaty of Lisbon to introduce an express legal basis. under Article 79, para. 3, TFEU, for the competence of the EU to conclude readmission agreements with third countries.

• Article 79, para. 3, TFEU

  As introduced by the Treaty of Lisbon, the rule provides for an express legal basis for the competence of the EU to conclude readmission agreements with third countries. This competence is to be considered of a shared nature, between the Union and its Member States, following the nature of the internal competence, that is, the legislative competence of the EU in the field of immigration policy. This implies a coexistence between agreements concluded by the EU and by its Member States. Nonetheless, following the general regime of shared competences, once the EU has concluded a readmission agreement with a third country, Member States may no longer conclude agreements of their own with the same third country for these purposes, unless and insofar as authorised by the agreement entered into by the EU. Supremacy clauses are frequently introduced into EU readmission agreements for the purposes of clarifying the prevalence of these agreements over other agreements previously or subsequently concluded by the Member States with the same third country for these purposes.

• Agreement between the European Union and the Republic of Cape Verde on the readmission of persons residing without authorisation (Brussels, 18 April 2013)

  See Article 20 of the Agreement, as an example of a supremacy clause, stating the prevalence of the readmission agreement entered into by the EU over any conflicting provisions contained under previous or subsequent readmission agreements concluded by one or more Member State with the same third country: "The provisions of this Agreement shall take precedence over the provisions of any legally binding instrument on the readmission of persons residing without authorisation which, under Article 19, have been or may be concluded between individual Member States and Cape Verde, in so far as the provisions of any such legally binding instrument are incompatible with those of this Agreement."

• Evaluation of EU Readmission Agreements

  Communication by the European Commission to the European Parliament and the Council of the European Union of 23 February 2011, doc. COM (2011) 76. In this Communication, the European Commission stated, among other points, the importance of ensuring respect for the fundamental rights of migrants who are returned to their third country of origin or transit under a readmission agreement entered into by the EU with such a third country. See particularly point 4.2 of the Communication, pages 10-11: "The legally binding applicable international instruments ratified by all MS (Member States) apply generally to all persons subject to a readmission procedure, independently of the abovementioned EU return/asylum acquis. Those instruments guarantee that no person may be removed from any MS (Member State) if it would be against the principle of non-refoulement if in the recipient country, the person could be subject to torture or to inhuman or degrading treatment or punishment. In such cases no readmission procedure can be initiated and this is acknowledged by EURAs (European Union Readmission Agreements) in what is called a ‘non-affection clause’, confirming the applicability of and respect for instruments on human rights. Consequently, any return/readmission can only be carried out as a result of a return decision which may only be issued if the guarantees mentioned above are observed. Furthermore, MS (Member States) must respect the EU Charter of Fundamental Rights when they are implementing EURAs (European Union Readmission Agreements)."

• Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation (Ankara, 16 December 2013)

  See particularly Article 18 of the agreement (not to be confused with the EU-Turkey Statement of 18 March 2016, on which above in the folder 'The EU external action in the field of migration - I'), containing a non-affection clause (see above, the Commission Communication on the evaluation of EU readmission agreements, point 4.2), stipulating in detail that nothing in the same agreement shall prejudice not just, as in the more general clauses introduced into other readmission agreements for the same purposes, the pinciple of non-refoulement as stated under Article 33 of the 1951 Geneva Convention on the Status of Refugees, but also the rules contained under Directive 2008/115/EC, so-called Return Directive (above, in the folder 'The EU action concerning irregular migration - I') and under the other EU legal acts concerning international protection.

• Court of Justice of the European Union, Judgment of 11 June 2014, Case C-377/12, Commission v. Council (Framework Agreement EU-Philippines)

  By this judgment, the European Court of Justice annulled a decision by the Council having concluded on behalf of the European Union a Framework Agreement with the Republic of the Philippines, which contained, among a series of provisions relating to different areas of cooperation between the two parties, a readmission clause (Article 26 of the said agreement, headed ‘Cooperation on Migration and Development’, providing, under para. 2, lit. f), for 'the return of persons as defined under paragraph 2, point (e) of this Article, under humane and dignified conditions, including the promotion of their voluntary and sustainable return to the countries of origin, and their admission/readmission in accordance with paragraph 3 of this Article. The return of such persons shall be with due regard to the Parties’ right to grant residence permits or authorisations to stay for compassionate and humanitarian reasons and the principle of non-refoulement'). The action for annullment has been upheld by the Court of Justice in consideration of the fact that the decision to conclude the said agreement by the EU had been adopted, alongside other legal bases, pursuant to Article 79, para. 3, TFEU, providing, as noted, for the conclusion of readmission agreements between the EU and third countries, whereas the relevant rule under Article 26 of the Agreement could not amount to a self-standing readmission agreement, figuring it instead as a clause introduced within a broader cooperation agrreement and intended to be followed by a separate agreement deemed to regulate more in detail the modes in which readmission should take place (see points 55-61 in the grounds for judgment in the case).

This folder collects materials concerning the impact of the COVID-19 pandemic on migration. In fact, the restrictions adopted in many countries around the world, including most of the EU Member States, in order to contain the spreading of the virus and ensure the ability of the national health services to cope with the difficult handling of the health emergency, had an impact on the availability of those countries to receive migrants, including prospective applicants for international protection, both for fear of the presence among migrants of persons affected by the virus, whose arrival might further contribute to its spreading, and for reasons related to the difficulty of effectively handling new arrivals at a time when their health and police authorities are overburdened with the handling of the health emergency and relocations to other Member States, or even across different regions of the same country might find an obstacle in the restrictions to the movement of persons adopted for sanitary reasons. In this respect, an Inter-Ministerial Decree adopted in Italy on 7 April 2020 may be considered as an example of this state of affairs, raising the question of striking a proper balance between the imperative of the protection of public health and the respect for the international obligations of the country, with particular regard to the respect for the fundamental rights of migrants and for the principles embodied in the 1951 Geneva Convention on the Status of Refugees.

• Travel from non-EU countries to the EU

  Link to the dedicated webpage on the European Commission website, with updated information concerning sanitary requirements for persons entering the EU from third countries.

• Inter-Ministerial Decree of 7 April 2020, declaring Italian ports unsuitable as "Place of Safety" (POS) for the purposes of the SAR Convention as a consequence of the pandemic

  In this Decree of 7 April 2020, the Italian Ministry for the Infrastructure and Transports, in cooperation with the Minister for Foreign Affairs and International Cooperation, with the Minister for Home Affairs and the Minister for Health, has declared that, in consideration of the current situation of health emergency occurring in Italy as a consequence of the spreading of the COVID-19 pandemic, of the restrictions adopted in order to counter the further spreading of the virus, including measures restricting the movement of persons throughout the Italian territory, and of the overburdening of the Italian Regional Health Services with assisting COVID-19 patients, as well as of the police in invigilating over the observance of the restrictions adopted, Italian ports can no longer be considered, for the duration of the health emergency, as a "Place of Safety" (POS) where persons rescued at sea might be disembarked pursuant the mechanims embodied in the 1979 Hamburg Convention on Search and Rescue at Sea (SAR Convention, above, in the folder titled 'The EU action to counter irregular migration - II'). In fact, the Italian Government contends that as a consequence of the current situation Italian authorities would not be in a position to provide rescued persons disembarked in an Italian port with the necessary health care and the means to satisfy other basic needs, to which the persons concerned would be entitled pursuant to the SAR Convention and the Guidelines adopted by the IMO Maritime Safety Committee (below in this folder) concerning its application. For understandable that these reasons might be, the decree in question raises serious doubts as to its compatibility with Italy's international obligations pursuant to the SAR Convention, since these might not be unilaterally suspended by a mere domestic order, without any notice thereof being given to the other Contracting Parties nor to the institutional body, the Maritime Safety Committee of the International Maritime Organization (IMO) entrusted with overseeing its application.

• INTER-MINISTERIAL DECREE OF 7 APRIL 2020, DECLARING ITALIAN PORTS UNSUITABLE AS "PLACE OF SAFETY" (POS) FOR THE PURPOSES OF THE SAR CONVENTION AS A CONSEQUENCE OF THE PANDEMIC

  (English translation of the Decree provided by the lecturer for the exclusive benefit of students attending the Migration Law course)

• IMO Maritime Safety Committee, Guidelines on the Treatment of Persons Rescued at Sea

  These Guidelines, adopted by the Maritime Safety Committee of the International Maritime Organization (IMO), while of a non-binding nature, are to be relied upon as providing authoritative guidance in the implementation of the 1979 Hamburg Maritime Search and Rescue Convention (the SAR Convention, above, in the folder 'The EU Action to counter irregular migration - II'). These Guidelines concern specifically the duty for the Contracting Parties to provide a "Place of Safety" (POS), thereby meaning a place where persons rescued while in distress at sea by ships intervening at the location of the shipwreck might be disembarked without danger for their lives and phisical integrity. Pursuant to the Guidelines, the Contracting Party bearing the primary responsibility to provide such a Place of Safety (POS) shall be that in whose Search and Rescue (SAR) area the rescue operations have taken place (point 2.5). Subsidiarily, responsibility to provide a Place of Safety migth be undertaken by the Contracting Party whose Maritime Rescue Coordination Centre (MRCC) has taken charge of coordinating the operations, in case the national MRCC of the Contracting Party in whose SAR area the incident or the taking on board of the persons concerned took place could not or did not take charge of coordinating the operations (points 6.1, 6.5, 6.7). The Guidelines also set forth the minimum duties which the Contracting Party having provided a Place of Safety shall discharge for the benefit of the rescued persons (see point 6.12, referring to the absence of risk for their lives and to the possibility of satisfying their basic human needs, such as food, shelter and medical needs). The Guidelines further point to the need to secure that in the place selected as Place of Safety rescued persons should not face risks of persecution, in case they are applicants for international protection (point 6.17).

• European Commission, COVID-19 Guidelines for border management measures to protect health and ensure the availability of goods and essential services

  These Guidelines, adopted by the European Commission on 16 March 2020, alongside with recommendations concerning the upkeeping of essential movements of goods, services and professionals within the EU pending the emergency situation due to the spreading of the COVID-19 pandemic, stressed some important points concerning the establishment of health controls on the entry of persons at the external borders of the Union. Such controls, intended to prevent the further spreading of contagion from third countries, could imply the decision of refusing entry to to non-resident third country nationals where they present relevant symptoms or have been particularly exposed to risk of infection and are considered to be a threat to public health. Such decisions shall nonetheless be subject to a strict requirement of proportionality and non-discrimination. In this respect, the Guidelines specify that a measure is considered proportionate on condition that it has been taken following consultation of the health authorities and that it has been considered by them as suitable and necessary to attain the public health objective (see part IV of the Guidelines, points 14-17). If we take into consideration the Inter-Ministerial Decree of 7 April 2020 (above in this folder) whereby the Italian Government has unilateralluìy declared in general terms that Italian ports are unsuitable as "Place of Safety" for the disembarking of persons rescued at sea pursuant to the SAR Convention, it might appear as highly doubtful that such a general and rather unsubstantiated measure could satisfy the said requirement.

• C. Hruschka, The Pandemic kills also the European solidarity

  Link to an article by a senior researcher of the Max Planck Institute for Social Law and Social Policy, Munich, published on eumigrationlawblog.eu (EU Immigration and Asylum Law and Policy blog) on 20 March 2020.