Last year the Court of Justice of the European Union issued two judgments on the Syrian refugee crisis. Both cases concerned Europe’s externalization of migration policy – i.e. the legal and practical measures taken to enforce refugee exclusion outside or at the borders of the territories of EU member states. These policies have been labeled as the politics of non-entrée by Hathaway & Gammeltoft-Hansen. In the judgments, the Court decided that it was not competent to rule on the cases because it had no jurisdiction. As I have argued more extensively in an article published open access in the Journal of Refugee Studies, the result of this is that law is not only an instrument for excluding people from European territory. The exclusion now runs through law itself. Although European fundamental human rights law is still formally neutral, the exclusion of non-Europeans is becoming a core element of European law.
The EU-Turkey judgment
On 18 March 2016, on the website of the Council of the European Union a press release was published, which is known as the EU-Turkey statement. This press release made public the outcomes of a meeting between “the Members of the European Council” and “their Turkish counterpart.” It announced that “the EU and Turkey” had “agreed” on a number of points. These included the return (forcibly if necessary) of all migrants arriving on the Greek islands from Turkey as of 20 March; admission to the EU of a number of Syrian refugees from Turkey equivalent to the number of Syrians returned from Greece to Turkey; and a number of flanking measures, most notably financial support for refugees in Turkey, visa freedom for Turkish nationals in the EU, and a restart of the negotiations on Turkish accession to the EU.
Criticism of the EU-Turkey statement
Criticism of the EU-Turkey Statement has proceeded along two lines. First, it is argued that the return of asylum seekers to Turkey does not comply with the requirements for being a safe third country in either European or international law. This criticism is based on international and European asylum and refugee law (Roman, Baird & Radcliffe 2016; Peers 2016; Poon 2016).
A second set of arguments relates to European constitutional law. The central claim is that the Statement, which is characterized as a legally binding agreement between the European Union and Turkey, was reached without complying with the constitutional requirements of the Treaty on the Functioning of the EU (hereafter: TFEU) for concluding such agreements (see Cannizzaro 2016; Den Heijer & Spijkerboer 2016; Arribas 2017).
In a debate in the European Parliament, there was broad support for the EU-Turkey Statement. Therefore, it is quite possible that the Parliament would have approved the agreement had it been asked for consent. However, even if the Parliament had approved the Statement, the outcome of a case before the Court of Justice would have been uncertain. The human rights objections to the Statement might have led the Court to be critical of it. Whereas one may consider the lack of formal consent of the Parliament a formality because the procedure prescribed by the TFEU would have led to the same outcome, the same cannot be said about the impossibility to approach the Court of Justice.
As it stands, the Statement was not treated as an international agreement in need of Parliamentary approval. When, as we will see, nonetheless a case concerning the Statement reached the Court, an interesting situation came about. Even apart from the substantive objections, the Court might consider the EU-Turkey Statement as undermining its constitutional position. It might reason that concluding an agreement dressed up as a press release was a way of undermining the possibility, foreseen in European law, for the Court to pass judgment on international agreements concluded by the EU.
The judgment of the General Court
A number of asylum seekers who arrived on the Greek islands shortly after the entry into force of the EU-Turkey Statement on 20 March 2016 filed an application at the General Court of the EU (i.e., the court of first instance in cases directed against EU institutions) challenging the legality of the agreement. In its judgments of 28 February 2017 (cases T-192/16, T-193/16, T-257/16) the Court restricted its analysis to the question whether it was competent to hear the case. The Court concluded that it did not have jurisdiction because the EU-Turkey Statement, contrary to the wording of that text itself, is an agreement not involving the EU as such; rather it is an agreement involving merely the Member States of the EU because it was concluded not by the European Council (consisting of the Heads of State or Government of the Member States) but by the Heads of State or Government of the Member States (at that particular moment not constituting the European Council).
The Court relied on remarkable argumentation to reach this conclusion. It found the terms “Members of the European Council” and “EU” that are used in the EU-Turkey Statement “ambivalent” (para. 61), and later referred to the “regrettably ambiguous terms of the EU-Turkey statement” (para. 66). Because the EU-Turkey Statement was given in the form of a press release, it held that the terminology used in the Statement itself amounted to simplified wording for the general public in the context of a press release and therefore could not be taken literally (para. 57-61). The Court then analysed various other documents about the meetings of 17 and 18 March 2016 that led to the EU-Turkey Statement. The terminology used in these documents the Court considered to have been carefully worded. “(V)arious items of press materials” (para. 63) not being the EU-Turkey Statement are now not assumed to contain simplified wording that might not be taken at face value, but rather to reflect institutional issues in a precise manner. The conclusion of it all is that, when concluding the EU-Turkey statement, the Heads of State or Government did not meet in the capacity of members of the European Council, but as representatives of the Member States (para. 66, 69, 72). The EU-Turkey statement binds not the EU but the Member States.
The Court emphatically does not take a decision on the issue of whether the EU-Turkey Statement is a political agreement or a legally binding treaty in the sense of Article 216-218 TFEU. Whichever it is, the EU is not a party to it (para. 71-72).
After this judgment, the three asylum seekers involved have lodged an appeal to the Court of Justice on 21 April 2017. The case is pending.
The humanitarian visa judgment
The judgment of the Grand Chamber of the Court of Justice of 7 March 2017 (C-638/16 PPU) concerns a Christian family from Aleppo of Syrian nationality, with three young children. In October 2016, they applied for a short stay visa with limited territorial validity at the Belgian Embassy in Beirut and returned to Syria the day after. They had indicated that they intended to apply for asylum in Belgium, and explained that they were forced to return to Syria by the fact that they are not allowed to register as refugees in Lebanon and were not sufficiently prosperous to be able to maintain themselves in Lebanon without such registration.
This case touches upon a cornerstone of European migration policy. Refugee-producing states are subject to visa requirements; and the obligation to have a valid visa is enforced by airline companies, who will be subject to stiff fines if they bring people without visas to European airports. Therefore, without a visa, the Aleppo family would not be able to effectuate its rights to seek asylum (Article 14 of the Universal Declaration of Human Rights).
The referring Belgian court wanted to know whether the Belgian authorities were obliged to issue a humanitarian visa with limited territorial validity on the basis of Article 25 Visa Code, if that would be the only way in which the family could be protected from being exposed to a real risk of inhuman or degrading treatment or to a well-founded fear of being persecuted.
The Court of Justice ruled that an application for a visa with the aim of applying for asylum is not an application for a visa for a stay of no longer than three months. Therefore, the issue is not covered by the Visa Code, which only governs short stay visa. As the issue of a visa for a stay longer than three months has not been harmonized, it is not governed not by European law but rather by national law. As a consequence, the EU Charter of Fundamental Rights does not apply. Therefore, the Court does not have competence to rule on the substantive issue whether European states may be under an obligation to issue a visa in a situation such as that of the Syrian family.
The reasoning of the Court is formal but compelling. However, the Advocate-General (who gives an independent advice to the Court called ‘opinion’) presented had an equally compelling argument that would have produced an opposite outcome. The Advocate-General argued that the applicants had applied for a short stay visa, and that it was a short stay visa that had been denied. One of the grounds for denying such a visa is the fact that there are doubts as to whether the applicant will leave after the period for which the visa has been granted. However, it is possible to grant a visa despite such doubts in humanitarian cases by making an exception to this ground for refusal. In addition, the Advocate General argued that the applicants intended to stay for no longer than three months in Belgium on the basis of their visa; after that, their stay would be based on their status as asylum seekers. Therefore, the procedure in fact concerned a short stay visa. In this way, the EU Visa Code is applicable and the Charter of Fundamental Rights is also thereby applicable. The Advocate General then argued that EU Member states are under an obligation to issue a visa if there are substantial grounds to believe that the refusal thereof would have as a direct consequence that the applicant would be exposed to inhuman or degrading treatment, by depriving that national of a legal route to exercise his right to seek international protection in that Member State. The relevant impending inhuman or degrading treatment consists, in the analysis of the Advocate General, both of the treatment the applicant may be exposed to in the country of origin and in the risks inherent in an irregular trip to a country of asylum to which a refusal of a visa would expose the applicants.
This judgment has been criticized by some (see primarily two blogs by Moreno-Lax, parts I and II ), while others have pointed out that the Court’s hesitance is consistent with earlier case law (see Rijpma 2017).
Despite the plausibility of the interpretation of European law offered by the Advocate General, it is not hard to understand why the Court preferred the option it chose. It was not only the Belgian government that opposed, in emphatic terms, the idea that there could be an obligation to grant a humanitarian visa. Thirteen Member States as well as the European Commission did the same. The Court apparently felt it would have overplayed its hand if it had created the option of a humanitarian visa with the aim of applying for asylum.
Bifurcation of Law
The Court of Justice has been an important actor in creating the law that makes free movement of capital, goods and persons in the global North possible. Through its expansive interpretation of the free movement of workers and other European citizens, it has contributed significantly to shaping Europe as a zone where people can move freely. Through its case law in competition law, it has contributed equally to free circulation of capital, services and goods. In the context of these freedoms within the global North, the Court has developed expansive conceptual tools on the applicability of European law, the autonomous interpretation of concepts such as, in our context, treaties and other central concepts in European law.
If these concepts would be applied to the contested external issues relating to people who have been successfully excluded from the global North, this would endanger the Court’s European project. The usual anti-formal, teleological methods of interpretation could easily lead to a series of highly controversial judgments (resulting, for example, in annulment of the EU-Turkey Statement or an obligation to issue humanitarian visas to Syrian refugees). This could undermine the position of the Court, and potentially the EU as we know it. But if, on the other hand, the Court would change its methods of interpretation by limiting its anti-formalism and teleological interpretation, this could undermine the neoliberal EU as we know it.
What the Court has decided to do when confronted with this dilemma is to replicate the exclusion of refugees in law itself. European law is for Europeans; it is insulated against application to the huddled masses. And the Court does this in spite of the high-spirited references to universal human rights in European law – in European law in general (think of the Charter of Fundamental Rights) and in European external policies (for example Article 21(1) TEU and Article 205 TFEU). References to human rights are included even in European law on migration and refugees (preambular paragraphs 3, 4, 34 of the EU framework law on the refugee definition; preambular paragraph 3 of the EU framework law on asylum procedures). The Court accomplishes the sidestepping of human rights embedded in EU law by adopting a formalistic approach. It is pure formalities that are used to keep the detainees in Greek refugee camps and the Syrian family from Aleppo not just outside the territory of the European Union, but also outside the scope of European law.
During seminars, conferences and informal meetings, many advocates and academics have stated that the two judgments discussed here are political. They argue that a proper, less formalist application of the law would have led to judgments in favour of the Syrian family from Aleppo and the asylum seekers on the Greek islands. I disagree.
Thomas Spijkerboer is professor of Migration law at the Vrije Universiteit Amsterdam, Raoul Wallenberg visiting professor of human rights and humanitarian law, Lund University, and one of the lecturers in the master’s track on International Migration and Refugee Law at the Vrije Universiteit.