Roland and Rajiv

Introduction

Under EU law, asylum seekers are defined as “applicants for international protection”. Their situation is regulated by the EU asylum acquis.[1] The position of Roland and Rajiv is that of two individuals who are seeking asylum after fleeing from Pakistan, where Rajiv is a potential target for torture due to his membership of a vegan group. As they have taken different routes into Europe, the measures that are available to them under the EU law will have to be considered individually. However, Rajiv and Roland are identical twins and Roland is basing his asylum application on that ground.

Roland came into Europe to Rome from Canada. He stayed in Rome for three weeks before taking a bus in Rome bound for Paris. However, the French authorities refused his entry into France and told him that he needed to stay in Italy and make his asylum claim there. Rajiv made his asylum application in Paris. He has stated that as a part of the radical vegan group he is a recognisable target for the meat-eaters alliance, which is also known for its use of torture.

The principal international convention that is applicable here is the Convention Relating to the Status of Refugees 1951 and its Optional Protocol Relating to the Status of Refugees 1967. The term ‘refugee’ is defined in Article 1(A)(2), as a person who has a well-founded fear of being persecuted and owing to such fear, is unwilling to avail himself of the protection of that country. The grounds for such a fear include membership of a particular social group. The Treaty for Functioning of the European Union (TFEU), article 78 provides that the member states are bound by the 1951 Convention and also provides for the Common European Asylum System.

The provisions of the ECHR may be used in the case with respect to both Roland and Rajiv. In cases where asylum applications are made and the asylum seeker is able to show that there is a fear of persecution in the state from where he has fled, ECHR provisions and its jurisprudence as developed by the European Court of Human Rights is engaged. In the event of a possibility of torture, the refusal of asylum is contrary to the provisions of both the Refugee Convention as well as ECHR. The right to asylum as such is not provided in the ECHR, but article 18 of the EU Charter of Fundamental Rights protects the right to asylum.

The principal provision under the ECHR, which is relevant to this case is article 3, which protects the right to life and includes the prohibition of torture and degrading treatment. Article 5 protects the right to liberty and security of person. If there is a refusal of asylum and the asylum seeker is deported to a country where he may face a threat to his life and security, or where there is a chance that such a person may be tortured, then the rights under the ECHR are violated. Therefore, under the EU law, the asylum seeker may also appeal to the European Court of Human Rights and ask for relief under the ECHR. This was held by the European Commission in the case of Chahal v the United Kingdom.[3] In that case, the European Commission decided that the UK could not deport the applicant to India, where his life was threatened as that would be a violation of his Article 3 rights. The European has also held that extradition of a person to a country where such a person may be tortured is a violation of the ECHR, article 3, which prohibits cruel or inhuman treatment.[4] Rajiv and by association, Roland, have reasonable threat to their life and also face torture if they are sent back to Pakistan, therefore, their case is covered by the ECHR, article 3.

The Qualification directive,[5] article 3 provides a prohibition on torture. Article 15 provides the definition of ‘serious harm’, which may include torture or inhuman treatment or punishment. Rajiv is a member of the prominent Vegan group, due to which he is a recognisable target for the meat-eaters alliance, which is also known for its use of torture.

Roland is an identical twin of Rajiv and being such, he is also a potential target for torture or inhuman treatment. Also being brothers, Roland’s application should be heard by France as per the requirements of the Dublin Regulation, article 8, which provides that if one family member’s application is not yet been the subject of a first decision regarding substance, that state will hear the application.[6] The Dublin Regulation requires that the applications of the family members are processed together by one state so that the decisions with respect to family members remain consistent.

The Asylum Procedures Directive,[8] article 43 allows the processing of asylum applications at the border. As Roland was stopped by the Border Control authorities, he may make an application to the authorities at the border to make an asylum claim to France. If he makes such an application, France may grant or refuse it within a period of 4 weeks but in case France does not respond, the application is deemed to be processed in favour of asylum.[9] Moreover, article 9 (1) of the Directive provides that an asylum seeker is allowed to remain in the state for the purpose of the completion of the asylum procedure until a decision by the responsible authority has been made.

Recently, in AB v Council of State,[11] the European Court of Human Rights has decided a case involving application of asylum to prevent relocation to a country where the applicant had reasonable cause to believe that he would be persecuted because of membership to a particular social group. The court also held that a social group is not constituted merely by the knowledge that someone is known to belong to the social group, but by the fact of how the society perceives those who belong to that group. Moreover, the risk of the persecution may be based on facilitation, support, or toleration of the persecuting behaviour by the authorities in the state. Rajiv, and by association, Roland can use the provisions of the ECHR, Asylum Procedures Directive and the Qualification Directive to process their application for asylum.

The concepts of national sovereignty and EU supremacy can never be reconciled'. Discuss.

The concept of EU supremacy means that in case there is a conflict between the EU law and the law of a member state, the EU law will prevail. Prima facie, this shows that there is an obvious conflict between the concepts of national sovereignty and EU supremacy and that there two concepts cannot be reconciled. However, in the case of EU and European integration, the situation is not as simple and it can even be said that some reconciliation between the EU law and the concept of national sovereignty has been found.

Sovereignty may be defined as the “legal capacity of national decision makers to take decisions without being subject to external restraints.[12] Therefore, for nations to be sovereign in this sense, there should be no external restrictions that impede the autonomous decision making in that nation. It can be said that the concept of national sovereignty is being transformed under the EU; with the transformation of the realm of sovereignty linked to both specific territory as well as population.[13] The EU supremacy is seen in the context of EU’s internal market and monetary integration, however, supra-nationalism is the most apparent in the legal system. The EU law has a direct effect in national jurisdictions, even in the absence of incorporation of the EU law in the member states’ legal system. The European Court of Justice (ECJ) has the power of judicial review over interactions between members states as well as the behaviour of government within their territory.[14] The Treaty on the Functioning of European Union (TFEU) provides the power of judicial review to the ECJ under article 263. Therefore, in the legal system, it is seen that the principle of EU supremacy has been accepted to a great extent.

The concept of EU supremacy was developed by the European Court of Justice (ECJ) in cases that came up before it. Supremacy of EU law means that in case there is a conflict between the EU law and national laws, the EU law will prevail. This has been relevant to EU law as well as EU courts’ jurisdiction. Due to the power of the EU courts to review the actions of the member states, there has been an increasing submission of the member states to the supremacy of the EU. However, that by itself cannot mean that the concept of EU supremacy and national sovereignty cannot be reconciled. The member states have chosen to accept the supremacy of EU law in certain areas and they are free to draw back from the subjection to EU supremacy by coming out of the EU. In that regard, the external constraints will not apply to the member states’ exercising their sovereign right to repudiate their membership from the EU. Although, as long as the states continue to be members of the EU, they are bound to accept the supremacy of EU.

In Van Gend en Loos v Nederlandse Administratie der Belastingen,[15] the ECJ recognised that under the new legal order constructed by the EU law, the member states had agreed to limit some of their sovereign rights. In Costa v Enel,[16] the ECJ held that when it came to interpretation of EU law, the highest courts of appeal were the EU courts. In this case, the court made two observations with respect to the relationship between Community law and national law. First, by becoming a part of the EU, the member states had transferred sovereign rights to the EU. Second, the status of Community law as it was applied uniformly and generally throughout the Community could not be questioned by the member states.[17] This would imply that the concept of national sovereignty and EU supremacy cannot be reconciled. However, inter-governmentalist approach suggests that members do not cede their sovereignty to EU, rather European integration implies a pooling or sharing of sovereignty and not a transfer of national sovereignty to a supra national level.[18] The fact that there can be a reconciliation between EU supremacy and national sovereignty is borne out by the following.

In the UK, the courts have actually found a way to reconcile national sovereignty with EU supremacy.[19] The House of Lords made a reference in 1988 (Factortame case) to the ECJ in a case involving a conflict between the EU law and a parliamentary legislation. In order to do so, in R (Factortame Ltd) v Secretary of State for Transport,[20] the House of Lords suspended a domestic legislation for referring the matter to the ECJ. Despite accepting this judgement of the ECJ, the House of Lords also argued that EU supremacy has been accepted by the British Parliament by acceding to the EU under the 1972 European Communities Act. However, the House of Lords also accepted that a future British Parliament can also repeal the 1972 Act and thereupon the EU supremacy will no longer apply to the UK.[21] In Thoburn v Sunderland City Council, the court stressed on the fact that the EU law’s supremacy in the UK is a Parliamentary prerogative.[22] In Manchester City Council v. Pinnock,[23] the Supreme Court held that the courts in Britain were not bound to follow every principle laid down by the Strasbourg court. Recently, the Supreme Court has reiterated the position in R (HS2 Action Alliance Ltd) v Secretary of State for Transport.

This is a clear reconciliation between the national sovereignty and EU supremacy. Other EU states have also made similar reconciliation between their law and the EU law. For instance, in Lithuania, EU law is superior to the ordinary legislation but not the Constitution of Lithuania.[25] Similar position has been taken by the Constitutional Tribunal of Poland.

Clearly, the member states have found their own balance as between their own sovereignty and the EU supremacy principle, thereby reconciling the two. It is seen that the principle of EU supremacy is to be seen from the perspective of states who still have the power to make their exceptions to the supremacy principle as seen in the case of Poland and Lithuania.

The right to free movement of persons enjoyed by EU citizens is always conditional. Discuss.

The Treaty of Functioning of the European Union (TFEU), article 20 provides that all nationals of EU states are also EU citizens. Furthermore, article 21 provides the right to free movement within the EU as an important aspect of EU citizenship. The right to free movement of persons is a right belonging to all EU citizens under the EU law. The right is also an important aspect of creation of a single internal market in the EU.

The right to freedom of movement is provided by the Treaty on the Functioning of the European Union (TFEU), article 45, which provides that all EU citizens shall have the right to move freely within the EU and that EU member states shall not discriminate against the EU citizens with respect to conditions of work. The right of EU citizens against such discrimination has also been upheld in different decisions of the ECJ. For instance, in Terhoeve v Inspector van de Belastingdienst Particulieren/Ondernemingen Buitenland,[27] the ECJ held that not receiving equal pay, benefits and social security by a worker who is an EU citizen when he moves from one state to another, is an impediment in the right of free movement. In another case, Roland Ritili v Ministre de l’Interieu,[28] the ECJ held that the right of a worker to move and work in any part of the EU is granted by TFEU.

The right under TFEU, article 45 is not absolute and there are certain limitations on the right. Particularly, member states may restrict the right on the grounds of public policy, public security or public health and the right does not extend to getting employment within the public sector of any member state.[29] The right and freedom as envisaged under Article 21 does not apply to the public sector. This was also upheld by the ECJ in Commission v. Belgium,[30] wherein the Court allowed that the ground of safeguarding public interest of the state is involved in reserving national posts by the member states for its own nationals. Moreover, the court also explained that working in the public sector involves the direct or indirect exercise of authority that arises out of public law and duties, peculiarly suited for exercise by nationals of the state.

The significance of the right to free movement of persons is that it is one of the four freedoms in TFEU, which were thought necessary for the successful building of the internal market.[32] However, at the same time, it was considered that there could be objections to an unrestricted right of free movement of persons and therefore, restrictions and controls may be exercised by member States against nationals of other states. Considering this, the conditions, restrictions and controls were developed under the TFEU and later by the ECJ. Consequently, member states can define controls and restrictions that may be used to restrict the entry of non-nationals from other EU states. These can include border controls, or other such measures that can impede the free movement of persons, such as restricting claims of social security by non-nationals. Providing the right to free movement of persons and also listing controls or conditions on such rights, is a method of balancing the interests of EU citizens with member states’ interests. In this, the ECJ and other EU judicial authorities have played an important role in providing a balance between the right to free movement of individuals and states’ right to protect its interest. [33] Therefore, in Boumbast and R v Secretary of the State for the Home Department,[34] the ECJ held that while EU citizens have the right to move and reside freely within the EU, such right is subject to the conditions provided by some provisions of the TFEU, including in articles 20 and 21 and 45. An important condition here is that the national security or public interest of the state must not be harmed by the granting of the right to free movement. For instance, in Criminal Proceedings against Wijsenbeel,[35] the ECJ held that member states have the right to carry out background checks on persons wanting to enter into their territory. The case involved a Dutch national who refused to let authorities check his passport to establish his nationality when he was re-entering the Netherlands from another state. The discretion of the method of conducting the checks is left to the states as held in Janko Rottmann v Freistaat Bayern,[36] wherein the ECJ held that it can judicially review member states’ decisions and actions but refrains from interfering with the discretion of the states.

The Citizens’ Rights Directive,[38] which is also called as the Free Movement Directive is also applicable here. This Directive gives the right of freedom of movement to the European Economic Area. This Directive also makes this right conditional to the citizens not being a burden on the state and having a comprehensive health insurance.

The implementation of the EU citizenship and its co-related right to free movement within the EU, as provided under articles 21 and 45, also give rise to conflicts between free movement of individuals and the desire of the member states’ to control entry into their territories on the ground of the social, political and economic impacts of the free movement of persons. The balancing of the conflicting interests in this regard has been primarily the responsibility of the ECJ, which it has done by addressing the relevant economic, social and political aspects of the conflicts.[39] Therefore, the understanding of the conditions which are placed on the right of free movement is also found in the many decisions of the ECJ covering these problems. Other EU institutions, such as the European Parliament and the European Council have also played a role in this by providing enabling provisions for the exercise of the right of free movement.

The obligation to accede to the European Convention on Human Rights signals a highly significant shift in the direction of EU law. Discuss.

The obligation of EU to accede to the European Convention of Human Rights (ECHR) signals a very significant shift in the direction of the EU law because this step has ramifications for the concept of the EU law autonomy and the exclusive jurisdiction of the ECJ with respect to EU institutions. The EU will also become the first non-state party to the ECHR.

With the accession to the ECHR, the EU institutions will become subject to another court, which is the European Court of Human Rights. This, according to some scholars, would end the exclusive jurisdiction of the ECJ and also the notion of EU autonomy.[41] However, this measure has long been advocated by some legal scholars as the natural step forward in the progress of the European Community law.[42] The accession was even seen as being advantageous to the Community as a whole.[43] However, now that the treaty changes have been made to allow such an accession, objections are being made, primarily by the ECJ to the accession of the EU to the ECHR. These objections primarily stem from the autonomy of the EU law. In its opinion on the accession, the ECJ said that Protocol 16 to the ECHR,[44] runs counter to the autonomy of EU law, as well as the existing mechanisms of inter-judicial dialogue in the area of human rights protection. [45] Due to the opinion given by the CJEU, the EU cannot as yet accede to the ECHR as the Draft Accession Agreement has been disapproved of.

It is pertinent to mention here the Kadi judgement of the ECJ wherein the court held that the review by the court of any community measure’s validity in the light of its impact on fundamental rights must be considered to be an expression of the constitutional guarantee stemming from the EC Treaty as the autonomous legal system that cannot be prejudiced by any other international agreement.[46] The Kadi judgement is reflective of the judicial thinking within Luxembourg, which sees the EU legal order as having a constitutional status. This legal order is set to be changed if the EU accedes to the ECHR.

When the European Coal and Steel Community (ECSC) and the EEC were first formed, there was no mention of human rights and fundamental freedoms in the treaties. This is because the first steps in European integration were purely economic steps, and although politically there was a great deal of discussion on human rights aspects, these were not formally included in the treaties.[47] However, now the Treaty of European Union, article 6 (2) provides that the EU shall accede to the ECHR, with the word ‘shall’ signifying the compulsory status of the direction to accede to the ECHR.[48] This marks a significant shift in the direction of the EU law and also provides a significant restriction on the EU institutions in context of their autonomy vis –a- vis the EU supremacy. The ECJ has up till now strictly protected the EU institutions’ autonomy as well as its own exclusive jurisdiction over the EU institutions.

The ECJ had rejected the EU accession to the ECHR in its decision dated 18 December 2014.[49] This signals the ECJ’s desire to protect the autonomy of the EU law.[50] In an earlier decision by ECJ in 1996, the court had held that as the European Community law was structured at that point in time, the Economic Community could not accede to the ECHR.[51] The decision of the court could only be overturned by the amendment of the EC Treaty, which was done by the TEU (Lisbon Treaty), which provided that the EU shall accede to the ECHR.[52]

The significance of the EU’s accession to the ECHR needs to be understood in order to analyse the significant shift that it poses to the EU law. After the EU accedes to the ECHR, the EU will become subject to legally binding judicial decisions of the European Court of Human Rights. The EU will also have to participate in statutory bodies of the Council of Europe, which include the Parliamentary Assembly and the Committee of Ministers, when they act under the ECHR. The interpretation of the ECHR rights by the European Court of Human Rights shall be directly enforceable against the EU institutions when acting within the scope of EU law.[53] Most importantly, by subjecting EU law to the jurisdiction of the European Court of Human Rights, individuals will be enabled to submit complaints against the EU institutions to the European Court of Human Rights. For some, this is one of the last gaps in human rights protection within the EU, which needed to be addressed.[54]

The notion of the legal autonomy of the EU legal system, is impacted by the accession of the EU to the ECHR.[55] The notion of EU’s legal autonomy has been accepted since the decision in Costa v Enel.[56] That case established the EU law supremacy and also established the EU legal system to be an autonomous supranational legal order.[57] In Internationale Hendellsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel,[58] the ECJ held that the validity of the EC measure or its effect within a member state cannot be affected by allegations that such measure is contrary to the fundamental rights that are recognized by that state’s legal or constitutional framework. Here, it is notable that there was a pragmatic reason why the ECJ took a strict stance on the EU law and institutions’ autonomy. The reason was that the autonomy principle was important to maintain lest the uniformity and efficacy of EU law was jeopardized by the domestic courts or constitutions.[59] The concept of the exclusive jurisdiction of the ECJ over EU institutions was essential to the maintenance of this autonomy, as the ECJ remained the only EU court that could conduct a judicial review of the actions and measures of the EU institutions.

Notwithstanding the obligation to accede to the ECHR, the awareness of the need of maintaining the EU law autonomy and the ECJ’s exclusive jurisdiction in context of EU treaties is not lost on the member states. Indeed, article 6 (2) of the TFEU clearly gives the jurisdiction to the European Court of Human Rights only in context of protection of human rights and fundamental treaties.

• Council of Europe, Handbook on European Law Relating to Asylum, Borders and Immigration (Belgium 2014) 43.
• Ibid, 35.
• Chahal v United Kingdom, (1996) 23 EHRR 413.
• Decision No. 2143/64, Yearbook of Human Rights 1964 vol.7 p.341
• The Qualification Directive, 2011/95/EU.
• The Dublin Regulation, 604/2013.
• Ibid, Preamble, para 7.
• Asylum Procedures Directive, 2013/32/EU.
• Council of Europe, Handbook on European Law Relating to Asylum, Borders and Immigration (Belgium 2014) 36.
• Ibid, 43.
• No. 396695, Judgement of 8 February, 2017, accessed.
• Michelle Cini, ‘Intergovernmentalism’, in Michelle Cini and Nieves Pérez-Solórzano Borragán (eds.), European union politics (5th edition, Oxford University Press 2016) 67.
• Geoffrey Garrett, ‘The politics of legal integration in the European Union’ (1995) 49 (1) International Organization 171, 171
• Michelle Cini, ‘Intergovernmentalism’, in Michelle Cini and Nieves Pérez-Solórzano Borragán (eds.), European union politics (5th edition, Oxford University Press 2016) 67.
• Simon Hix, and Bjørn Høyland, The political system of the European Union (Palgrave Macmillan 2011).
• Simon Hix, and Bjørn Høyland, The political system of the European Union (Palgrave Macmillan 2011) 94.
• Judgement of the Polish Constitutional Tribunal]P 1/05 - Europejski Nakaz Aresztowania [European Arrest Warrant], OTK ZU [Jurisdiction of the Constitutional Tribunal. Official Collection] No 4/A/2005.
• Margot Horspool; Matthew Humphreys, European Union Law (Oxford: Oxford University Press 2012).
• Willem Maas, Democratic Citizenship and the Free Movement of People (Martinus Nijhoff Publishers 2013).
• Karen Davies, Understanding European Union Law (Routledge 2015) 143.
• Paul Craig and Gráinne De Búrca, EU law: Text, Cases, and Materials (Oxford: Oxford University Press 2011).
• Paul Gragl,The accession of the European Union to the European Convention on human rights (Bloomsbury Publishing 2013).
• L. Neville Brown and Jeremy McBride, ‘Observations on the Proposed Accession by the European Community to the European Convention on Human Rights’ (1981) The American Journal of Comparative Law 691.
• Protocol No 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms 2013, CETS 214.
• Opinion 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms 18 December 2014.
• Kadi and Al Barakaat v Council and Commission (2008) ECR I – 6351.
• Jean Paul Jacqué, ‘Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms, (2011) 48 Common Market L. Rev. 995.
• Opinion pursuant to Article 218 (11) TFEU, CJEU Case C-2/13 (18 December 2014).
• Adam Lazowski and Ramses A. Wessel, ‘When caveats turn into locks: Opinion 2/13 on accession of the European Union to the ECHR’ (2015) 16 German LJ 179.
• Opinion pursuant to Article 228 EC Treaty, CJEU Case C-2/94, (1996) ECR I-1759.
• Christina Eckes, ‘EU accession to the ECHR: between autonomy and adaptation’ (2013) 76 (2) The Modern Law Review 254.
• Paul Gragl, ‘A Giant Leap for European Human Rights? The Final Agreement on the European Union’s Accession to the European Convention on Human Rights’ (2014) 51 (1) Common Market Law Review 13.
• Paul Gragl,The accession of the European Union to the European Convention on human rights (Bloomsbury Publishing 2013).
• Paul Gragl, The accession of the European Union to the European Convention on human rights (Bloomsbury Publishing 2013) 20.