Tuesday, 8 May 2018

Expelling EU citizen war criminals: no sympathy from the ECJ

Professor Steve Peers, University of Essex

If an EU citizen (or his or her family member) has been excluded from being a refugee, in what circumstances can he or she be expelled from a Member State? The ECJ clarified this issue in its K and HF judgment last week: its first ruling that touches on the relationship between EU (and international) refugee law and EU free movement law.

There’s a good reason why these two areas of law haven’t interacted previously in the Court’s case law: EU law itself tries to keep them apart. A Protocol attached to the EU Treaties, aiming to facilitate the extradition of alleged terrorists between Member States, says that in principle EU citizens cannot apply for asylum in another Member State, due to the presumption in that Protocol that each Member State ensures sufficient human rights protection.

However, there are exceptions to that general rule, and there are people it doesn’t cover. The exceptions in the Protocol are: a) the asylum seeker’s Member State of nationality invokes the “emergency” derogation from parts of the European Convention of Human Rights (ECHR); b) if the EU Council is considering whether to sanction the asylum seeker’s Member State of nationality for breaches of EU values; c) if the EU has already sanctioned the asylum seeker’s Member State of nationality for breaches of EU values; or d) if a Member State decides to do so unilaterally for another Member State’s national, in which case it must inform the EU Council and presume that the application is manifestly unfounded, without prejudice to the final decision on the application.

The people not covered by the Protocol include: EU citizens who obtained refugee status before they became EU citizens (for instance, because their State of nationality joined the EU); non-EU family members of EU citizens; those who apply for or obtain subsidiary protection status, as distinct from refugee status; and the citizens of some non-EU countries associated with the EU (Norway, Iceland, Switzerland and Liechtenstein), who have free movement rights but are not EU citizens. The recent ECJ ruling concerned people from the first two of these categories.

Exclusion from being a refugee

Some asylum seekers fail to satisfy the authorities that they meet the definition of “refugee” set out in the UN (Geneva) Refugee Convention. Quite apart from that, some asylum seekers are excluded from being a refugee under that Convention (and under the corresponding provisions of the EU’s qualification Directive), because their behaviour is considered so reprehensible that they do not deserve fully-fledged international protection, even if they are facing persecution on one of the grounds set out in the Convention. More precisely, Article 1.F of the Convention excludes:

any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The ECJ has interpreted the exclusion clause in the EU qualification Directive in its judgments in B and D and Lounani (discussed here), ruling inter alia that the second and third exclusion clauses can apply to terrorist offences, although exclusion must be assessed in each individual case, meaning that membership of a group listed as “terrorist” in EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause. Similarly, participating in a terrorist group, as defined by EU criminal law on terrorism, does not automatically trigger the exclusion clause either. Instead, there must be direct involvement by the person concerned in such offences, as further explained by the Court. Furthermore, there is no additional “proportionality” or “present danger” test for exclusion, and the exclusion clause is mandatory: ie Member States cannot assert a right to apply higher standards and give someone refugee status if they fall within the exclusion criteria. Finally, assisting with recruitment, organisation or transport of “foreign fighters” can also lead to exclusion, as it constitutes a form of “participation” in the terrorist acts covered by the exclusion clause.

However, it should be noted that even if a person is excluded from being a refugee, they are still protected against being removed to a country where they would face a real risk of torture or other inhuman or degrading treatment, according to the case law on Article 3 ECHR and the corresponding Article 4 of the EU Charter of Fundamental Rights. The ECJ reaffirmed as much recently in its judgment in MP (discussed here). But this non-removal obligation falls short of refugee status (which usually follows from recognition as a refugee) because it does not entail a fully-fledged immigration status including rights like access to employment and benefits.

Expelling EU citizens and their family members

The grounds for restricting free movement rights for reasons of “public policy or public security” are set out in the EU citizens’ Directive. The basic rule is that restrictions “shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.” Furthermore, “[t]he personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”

Before expelling a person covered by the Directive on such grounds, Member States are obliged to “take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.” For those with permanent residence, there is a higher threshold to justify expulsion: “serious grounds of public policy or public security”. And for those who have resided in that Member State for the previous ten years, or who are minors, the threshold for expulsion is higher still: “imperative grounds of public security”.

The judgment

The Court’s judgment brought together two separate cases. In the first case, K, a dual citizen of Croatia and Bosnia-Herzegovina, had arrived in the Netherlands and applied for asylum in 2001 and 2011. Both applications were rejected. Subsequently, after Croatia joined the EU in 2013, the applicant was declared (in light of his EU citizenship) to be an “undesirable immigrant”, in light of the prior finding that he knew about and participated in war crimes and crimes against humanity in the Bosnian army. Since over twenty years had passed since that time, the issue was whether such conduct was a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” within the meaning of the EU citizens’ Directive, taking account of the other factors referred to in the Directive.

In the second case, HF, an Afghan citizen excluded from being a refugee in the Netherlands, applied for a residence card in Belgium as the family member of an EU citizen (his Dutch daughter). His application was refused on the basis that the information about his exclusion, which the Dutch authorities had shared with their Belgian counterparts, showed that he could be denied free movement rights.

The Court first examined whether exclusion from being a refugee necessarily met the standard for restriction of free movement rights. It recalled its prior case law, holding that “public security” could include both internal security (including “a direct threat to the peace of mind and physical security of the population of the Member State concerned”) and external security (including “the risk of a serious disturbance to the foreign relations of that Member State or to the peaceful coexistence of nations”). Applying these principles to the facts, the Court accepted that Member States could consider that damage to international relations, the risk of contacting EU citizens who had been victims of war crimes could be considered threats to public policy and public security. Restricting those persons’ free movement rights could also contribute to ensuring “protection of the fundamental values of society in a Member State and of the international legal order and to maintaining social cohesion, public confidence in the justice and immigration systems of the Member States and the credibility of their commitment to protect the fundamental values enshrined in Articles 2 and 3 TEU”.  The Court added that the acts and crimes which led to exclusion from being a refugee “seriously undermine both fundamental values such as respect for human dignity and human rights, on which, as stated in Article 2 TEU, the European Union is founded, and the peace which it is the Union’s aim to promote, under Article 3 TEU”.

Nevertheless, the Court ruled that exclusion from being a refugee should not always lead to restriction on free movement rights. There must still be a “case-by-case assessment” which shows that “the personal conduct of the individual concerned currently constitutes a genuine and sufficiently serious threat to a fundamental interest of society”. This assessment must “take into account the findings of fact made in the decision of exclusion from refugee status taken with respect to the individual concerned and the factors on which that decision was based, in particular the nature and gravity of the crimes or acts that that individual is alleged to have committed, the degree of his individual involvement in them and the possible existence of grounds for excluding criminal liability such as duress or self-defence.” Furthermore, that examination “is all the more necessary” if, such as in these cases, “the person concerned has not been convicted of the crimes or acts that were relied on to justify the rejection, in the past, of his asylum application”.

The Court showed willingness to relax its usual insistence of looking closely at the EU citizen’s present threat, noting that in some cases “it is also possible that past conduct alone may constitute such a threat to the requirements of public policy”. In the case of war crimes, although “the time that has elapsed since the assumed commission of those acts is, indeed, a relevant factor….the possible exceptional gravity of the acts in question may be such as to require, even after a relatively long period of time, that the genuine, present and sufficiently serious threat affecting one of the fundamental interests of society be classified as persistent”. Equally, the Court de-emphasised the requirement that the person concerned was likely to reoffend, ruling that:

…however improbable it may appear that such crimes or acts may recur outside their specific historical and social context, conduct of the individual concerned that shows the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, such as human dignity and human rights, as revealed by those crimes or those acts, is, for its part, capable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society...

Yet the person’s rights to private and family life and the principle of proportionality still had to be weighed against such threats.

Next, the Court reiterated that an expulsion decision has to consider with due regard to the principle of proportionality…inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.”
Yet the lengthy period of time spent on the territory in the Dutch case was not enough to qualify for the especially high level of protection against expulsion for EU citizens resident for ten years (“imperative grounds of public security”). For as the Court had recently ruled in B and Vomero, such special status was only attainable if the person concerned had already qualified for permanent residence (based on five years’ legal residence); and residence on national law grounds other than those set out in the citizens’ Directive or its predecessor laws did not count to that end (see Ziolkowski). It appeared that K could not show residence on an EU law basis, but only a national law basis, and therefore was not going to qualify for any extra degree of protection against expulsion.


The Court’s judgment is focussed on those excluded from refugee status on the basis of Article 1.F of the Refugee Convention. The wording of the ruling does not confine itself to the “war criminal” ground of exclusion, and so it applies to persons excluded from being a refugee on any of the Article 1.F grounds. It should logically be relevant if any EU law issues are raised about handing over any person to the International Criminal Court, or any ad hoc UN criminal tribunal, for prosecution for war crimes et al. But does it have any broader application?

First of all, it definitely applies to those who might apply for refugee status on what might be called the “Palestinian track” set out in Article 1.D of the Convention, since the general rules on exclusion also apply to such cases: see the ECJ’s El Kott judgment (para 76).

Secondly, it is questionable whether it applies to all cases of exclusion from subsidiary protection status, given that such exclusion is also possible for less serious behaviour than as regards refugee recognition. In particular, the qualification Directive allows for exclusion from subsidiary protection status on grounds of a “serious crime”, or in fact any crime which would be punishable by imprisonment in the Member State concerned.

Thirdly, it may be arguable whether the judgment is relevant by analogy to revoking refugee status due to criminal behaviour or a security risk (relevant in pending ECJ cases, discussed here), or to refusing a residence permit or travel document on national security or public order grounds, where the ECJ has ruled that a lower threshold applies (see the ruling in HT, discussed here).

Next, the judgment might be relevant to cases where a Member State seeks to revoke its nationality (and therefore EU citizenship) from a person, for instance due to their activities as a “foreign fighter”. (On the reviewability of such decisions as a matter of EU law, see Rottmann and the pending case of Tjebbes).

Could the judgment even be relevant by analogy to “ordinary” EU citizens, where there is no link to refugee law issues? At first sight no, because the Court’s focus is on the Refugee Convention’s exclusion clause. However, its willingness to consider that especially vile prior behaviour can outweigh an assessment of present threat and likely future conduct could arguably be relevant where an EU citizen has been convicted of crimes such as child abuse, rape, murder, or terrorism.

The judgment continues the Court’s established trend of disdain for criminality by EU citizens or their family members. In this case, its concern for crime victims is particularly striking; but here it strikes a discordant note in referring only to the victims of war criminals who are EU criminals living in EU Member States. For this overlooks the likely existence also of non-EU victims, both those who sought protection in a Member State and those in the war criminal’s state of origin, if he or she is referred there. Or rather, the surviving victims: the returning war criminals will likely cast a long shadow over the graves of those whom they murdered.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Human Rights Watch

Thursday, 26 April 2018

Brave new world? the new EU law on travel authorisation for non-EU citizens

Professor Steve Peers, University of Essex


Yesterday it was announced that a new EU law on travel authorisation for non-EU citizens to visit the EU had been agreed. This will affect millions of travellers a year, probably including British citizens after Brexit. In fact, as a UK citizen who often travels to the continent, it’s the first EU law on non-EU immigration that will have a direct impact on me. The law won’t apply for awhile, but in light of its future significant impact and some public confusion about who it will apply to and how it works, it’s worth explaining in detail.

Basics of the system

First of all, a travel authorisation is not a visa. While it is similar to a short-term travel visa in the sense that it is a process for deciding in advance whether a person can enter the territory, it will be much simpler and less costly to apply, and be valid for much longer.

The second key issue is: which countries are covered? This has two dimensions: the countries which will apply the travel authorisation law and the countries whose citizens will be subject to travel authorisation.

Taking these points in turn, the countries which will apply the travel authorisation law are the countries fully applying the Schengen system. This means all the EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia – although those States all except the UK and Ireland are obliged to take part in Schengen eventually. It also means non-EU countries associated with Schengen: Norway, Iceland, Liechtenstein and Switzerland.

As for the countries whose citizens will be subject to travel authorisation, that’s all non-EU countries which are a) not subject to a visa obligation for their citizens to visit the EU and b) do not have a free movement arrangement with the EU. So it follows that the new travel authorisation law will apply to British citizens who visit the EU after Brexit – unless they are visiting Ireland or the other EU countries not yet fully applying the Schengen rules. As an exception, though, the law will not apply (even if the new system is ready) to the UK during the post-Brexit transition period, because (as discussed here) it will be applying free movement with the EU during that time.  (Despite the weird claim in one newspaper, this has nothing to do with whether the UK has some form of customs union with the eU).

This new development fits into the broader framework of UK/EU immigration arrangements after Brexit, as I discussed in an earlier post. While UK citizens will very likely not be subject to short-term travel visas (that would be inconsistent with EU visa policy on wealthy and/or nearby countries), they will be conversely (on the basis of the law as it stands) be subject to the new travel authorisation law and other EU border control laws as non-EU citizens without free movement rights, including the loss of fast-track lanes at external borders. It would be possible for the UK and EU to negotiate a reciprocal exception to this, but that depends on the willingness of both sides to do so. It’s not clear if the UK is interested yet, or whether the EU would be willing to talk if it were.

It is absurd to argue that the application of the new law to UK citizens is a form of “punishment” by the EU. The UK government wants the UK to be a non-EU country without a free movement relationship, and the EU (as it stands) will therefore treat the UK like any other non-EU country without a free movement relationship. In fact the UK will be treated better than the many non-EU countries whose citizens are subjected to a visa requirement. Some Leavers should apologise for previously claiming that the likely application of the ETIAS to the UK after Brexit was “scaremongering”; likewise some Remainers should retract their assertion that tourist visas will definitely be required for UK citizens after Brexit. (Spoiler: neither will).

Remember, though, that the new law is not just relevant to the UK, but also to many other non-EU countries, including the USA, Canada, Australia, New Zealand, Japan, South Korea, Israel, and many States in the Caribbean, Latin America and neighbouring the EU to the east. A full list of non-visa countries can be found in Annex II to the EU visa list Regulation.

The new law will also apply to non-EU citizens subject to an optional visa exemption by Member States, namely re school pupils, refugees and armed forces’ members under certain conditions, along with non-EU family members of EU citizens who do not have residence cards on the basis of EU free movement law.

On the other hand, it will not apply to some other non-EU citizens:  refugees and stateless persons in a Member State; non-EU family members of EU citizens with a residence card; persons with residence permits from a Schengen state, uniform (Schengen) visas or national long-stay visas; nationals of European micro-states (Andorra, Monaco and San Marino and holders of a passport issued by the Vatican State or the Holy See); those who hold a border traffic permit subject to EU law when they travel within the local border traffic area; those subject to the optional visa requirement or exemption for holders of diplomatic or other official passports or travel documents issued by international organisations or certain international transport or emergency workers; those subject to the optional visa requirement because they are carrying out paid work; and non-EU citizens moving between Member States on the basis of EU law on intra-corporate transferees (discussed here) or on students and researchers (discussed here).

For UK citizens living in the EU27 states before Brexit, their rights on the basis of the Brexit withdrawal agreement (discussed here) will need to be evidenced by a residence permit from a Schengen states if they want to take advantage of these exemptions when coming back to the Schengen countries.

When will the new travel authorisation system apply?

The new Regulation will likely be formally adopted in a couple of months’ time.  While it will technically come into force twenty days after its formal adoption, the database needed to run the system take time to set up. So it will only begin operations when the Commission decides that other proposed EU laws on the interoperability of databases have entered into force, various implementing measures have been adopted, and there has been a successful comprehensive test of the system. It’s too early to say when this will be, but experience shows that several years may be necessary.

For the first six months after the system starts operations, its use will be optional and there will be no need to have a travel authorisation. The Commission may extend that for a further period of six months, renewable once. After that point, there will be a six months’ grace period when border guards may exceptionally allow people to enter without a valid travel authorisation. The Commission may extend this for another six months.

Process for the applicant

An applicant for travel authorisation must apply via a website or a mobile app “sufficiently in advance of any intended travel”, or, if they are already present in a Schengen State, “before the expiry of the validity of the travel authorisation”. If they already have a valid travel authorisation, they can apply for the next such authorisation as from 120 days (about four months) before it expires.  The system must “automatically inform” holders of travel authorisation via e-mail about the upcoming expiry of their authorisation, and the prospect of applying for a new one. Applications won’t have to be lodged by the potential traveller, but can instead be lodged by a company authorised to act on his or her behalf.

The application form has to include the applicant’s name, date of birth, place and country of birth, sex, nationality, parents’ names, travel document information, home address, e-mail and phone number, education level, occupation (which may be followed by a further request for information about an employer or where a student is studying), and Member State of first intended stay. Applicants must also answer whether they have: been convicted of a specified criminal offence over the last ten years (or the last twenty years, in the case of terrorist offences), and in which country; or “stayed in a specific war or conflict zone over the previous ten years and the reasons for the stay”; or been required to leave the territory of a Member State or any country on the EU visa whitelist over the last ten years.  If they answer yes to any of those questions, they will have to answer a further set of questions (yet to be determined). Each application will cost €7, but that fee will be waived for those under 18 or over 70, and applicants who are family members of EU citizens.

After the application is made, the data will be compared automatically to data in databases including the Schengen Information System (SIS), the planned Entry/Exit System (EES), the Visa Information System (VIS), the Eurodac database (which concerns asylum seekers and some irregular migrants), Europol data, and Interpol databases. The purpose of these checks is to determine whether: the travel document has been stolen, lost, misappropriated or invalidated; the person is listed in the SIS to be denied entry or wanted for arrest for extradition or as a missing person, potential witness or person subject to surveillance; a travel authorisation has been refused, revoked or annulled or there is a refusal based on the EES or the VIS; the travel document matches an application with different identity data; the applicant is a current or previous overstayer (ie did not leave on time when the permitted period of stay expired); there are matching data in Interpol, Europol or Eurodac files; or whether there are extradition or entry refusal data on the parent of a minor.  The application will also be checked against a watchlist and risk indicators. A number of these rules are waived for family members of EU citizens, in light of their rights under free movement law.

If this process does not result in any “hit”, then the travel authorisation will be issued automatically. If there is a hit, then the application is further examined to see if the hit was false. If it was genuine, then national authorities must examine the application further and decide on whether to issue the travel authorisation. This might entail asking the applicant further questions or consulting other Member States or Europol. The deadline for deciding on each application is 96 hours (four days), unless further information or an interview is required; in that case the deadline is extended to 96 hours after the further information is provided, or 48 hours after the interview is held.

When assessing applications, there will be profiling of applicants based on screening rules to be determined, which will be based on statistics indicating: “abnormal rates of overstayers and refusals of entry for a specific group of travellers”; “abnormal rates of refusals of travel authorisations due to a security, illegal immigration or high epidemic risk associated with a specific group of travellers”; “correlations between information collected through the application form and overstay or refusals of entry”; “specific security risk indicators or threats identified by” or “abnormal rates of overstayers and refusals of entry for a specific group of travellers” concerning a Member State, which must be “substantiated by factual and evidence-based elements”; or “information concerning specific high epidemic risks provided by Member States” along with “epidemiological surveillance information and risk assessments” produced by the WHO or the EU disease prevention agency.

These rules will be set out in Commission acts implemented by Frontex, which shall then “establish the specific risk indicators” based on: age range, sex, nationality; country and city of residence; level of education; and current occupation. However, these “specific risk indicators” must be “targeted and proportionate”, never based solely on sex or age nor on “information revealing a person’s colour, race, ethnic or social origin, genetic features, language, political or any other opinion, religion or philosophical belief, trade union membership, membership of a national minority, property, birth, disability or sexual orientation”.

Furthermore, there will be a “watchlist” of those “who are suspected of having committed or taken part in a terrorist offence or other serious criminal offence” or of those who may commit such offences in future, where there are “factual indications or reasonable grounds, based on an overall assessment of a person”, to believe that. (Note that “serious criminal offences” is defined as the 32 crimes listed in the EU law establishing the European Arrest Warrant, if they could be punished by at least three years in jail). The watchlist information shall be entered by either Europol or Member States, and shall consist of names, birth date, travel documents, home address, e-mail address, phone number, information on an organisation, or IP address. Listings in the watchlist cannot duplicate an alert that has already been issued in the SIS. The listings must be reviewed at least once a year.

Granting or refusing a travel authorisation

If there are “no factual indications or reasonable grounds based on factual indications” to believe that the applicant “poses a security, illegal immigration or high epidemic risk”, then a travel authorisation will have to be issued. It will be possible to issue an authorisation but with a flag to recommend that the traveller is interviewed by border guards at the border. The travel authorisation will be valid for three years, unless the travel document expires before that date.

Conversely, a travel authorisation application will have to be refused if the applicant: “used a travel document which is reported as lost, stolen, misappropriated or invalidated in the SIS”; “poses a security risk”; “poses an illegal immigration risk”; “poses a high epidemic risk”; is subject to a SIS alert to refuse entry; failed to reply to a request for additional information or attend an interview. It will also have to be refused if “there are reasonable and serious doubts as to the authenticity of the data, the reliability of the statements made by the applicant, the supporting documents provided by the applicant or the veracity of their contents”.

In that case, applicants will have the right to appeal, against the Member State that decided on their application in accordance with its national law. Furthermore, a previous refusal will not necessarily lead to a refusal of the next application, which will have to be considered separately on its own merits.

In either case, the applicant must be notified of either the positive or negative decision on the application, with information on either the conditions for travel to the EU or the grounds for refusal and information on the appeal process. Details of the decision will be added to the ETIAS database.

It will be possible to annul or revoke a travel authorisation. The basis for annulment is that “it becomes evident that the conditions for issuing it were not met at the time it was issued”, while an authorisation must be revoked “where it becomes evident that the conditions for issuing it are no longer met”. In either case, the decision must be taken on the basis of the usual grounds for refusal, the applicant must be notified of the grounds, there will again be an appeal right for the person concerned, and details will be added to the ETIAS database. An applicant may also ask for the authorisation to be revoked.

As with Schengen visas, there will be a possibility to issue a a travel authorisation with limited territorial validity, “when that Member State considers it necessary on humanitarian grounds in accordance with national law, for reasons of national interest or because of international obligations” even if the travel authorisation has not yet finished or has been refused, annulled or revoked. It will only be valid for 90 days, not the usual three years.

Given that transport companies have obligations if they carry passengers without immigration authorisation, the new law will give them the power to check the ETIAS database, to see if their passengers who need it have a valid travel authorisation. The database will also be available to border guards, to immigration authorities, national law enforcement bodies and Europol.

The ETIAS data will be kept in the database for the period of validity if an authorisation is granted, or five years from the last failed application if not. An applicant can consent to another three years of retaining the data in order to facilitate later applications. The general EU rules on data protection will apply to the processing of personal data in the system. Data cannot be transferred to non-EU countries, except to Interpol or for the purposes of facilitation of expulsion or where there is an imminent security risk, subject to detailed conditions.  


The new law will, if applied as planned, become a regular feature in the lives of those travelling to the EU, from the UK and many other States besides. For those who spend ten or twenty minutes making an application every three years and get travel authorisation after paying a €7 fee, there is limited hassle factor.  For those who fail to apply on time, or whose application is rejected, the hassle will be vastly greater, particularly if the refusal complicates their family or professional life.

On that point, the grounds for refusal are rather murky. The refusal of travel authorisation due to prior convictions for serious crimes, well-evidenced security risks or prior significant breaches of immigration law is reasonable, but the new law also refers vaguely to several levels of algorithms and profiling which have yet to be developed.  Recent events have called into question such use of “big data” more than ever; and “computer says nah” is not a good enough answer to an applicant, in particular for citizens of the UK or other neighbouring States who are more likely to have strong personal and professional links with the EU.

Barnard & Peers: chapter 26, chapter 27

Photo credit: GTP headlines

*This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Tuesday, 24 April 2018

Torture victims and EU law

Professor Steve Peers, University of Essex

What happens if an asylum seeker faces severe mental health problems that cannot be treated in the country of origin?  Today’s judgment of the ECJ in the MP case, following a reference from the UK Supreme Court, goes some way towards answering this question.


The issue what we might call “medical cases” for asylum first of all arose before the European Court of Human Rights. In a series of judgments, that Court clarified whether the ban on torture or inhuman or degrading treatment, set out in Article 3 of the European Convention on Human Rights (ECHR), prevented people from being sent back to a country where there was no effective medical care.  Essentially, it ruled that such an argument could only be successful in highly exceptional cases, in particular where the person concerned was critically ill and close to death.

However, while these judgments addressed the question of non-removal for persons in such serious conditions, they did not rule on the issue of the status of asylum, or other types of migration status, for the persons concerned. This issue was the subject of two linked ECJ judgments (M’Bodj and Abdida) in 2014, which I discussed here. In short, the ECJ said that the persons suffering from severe health problems could not invoke a right to “subsidiary protection” on the basis of the EU’s qualification Directive, even though one of the grounds for such protection was facing a “real risk” of torture or inhuman or degrading treatment in the country of origin. That was because subsidiary protection was only intended for cases where the harm was directly caused by humans.

So do “medical cases” only have the right to non-removal on the basis of Article 3 ECHR? Not quite; because the ECJ also said that the EU’s Returns Directive, which governs the position of irregular migrants, could be relevant. In an ambitious interpretation of that Directive, the Court ruled that it could be invoked to prevent removals in “medical cases”, including the suspensive effect of an appeal against removal; moreover the Directive conferred a right to medical care and social assistance for the persons concerned in such cases.

Subsequently, at the end of 2016, the European Court of Human Rights revisited its case law on “medical cases”, lowering the very high threshold that had previously applied before individuals could invoke Article 3 ECHR.  In Paposhvili v Belgium (discussed here), it extended that case law also to cover cases of:

removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.

It should be noted that while the “first phase” EU qualification Directive (which includes the same definition of “subsidiary protection” as the 2011 version) applies to the UK and Ireland, the Returns Directive does not.  


The ECJ began by stating that in order to invoke a claim to subsidiary protection on grounds of torture, it was necessary to show that such treatment would occur in the country of origin in future. While MP had suffered torture in Sri Lanka in the past, that was “not in itself sufficient justification for him to be eligible for subsidiary protection when there is no longer a real risk that such torture will be repeated if he is returned to that country”. Although the qualification Directive states that past serious harm “is a serious indication” there is a real risk of suffering such harm in future, “that does not apply where there are good reasons for believing that the serious harm previously suffered will not be repeated or continue”.

The Court then turned to MP’s health issues, noting that he “presently continues to suffer severe psychological after-effects resulting from the torture” and that “according to duly substantiated medical evidence, those after-effects would be substantially aggravated and lead to a serious risk of him committing suicide if he were returned to his country of origin”. It stated that this provision of the qualification Directive “must be interpreted and applied” consistently with Article 4 of the EU Charter of Fundamental Rights, which set out an “absolute” right to be free from torture or other inhuman or degrading treatment. This Charter right corresponded to Article 3 ECHR, so “the meaning and scope of the rights are the same”, as set out in Article 52(3) of the Charter.  So the ECJ followed the case law of the ECtHR on Article 3 ECHR, referring specifically to the revised test on “medical cases” set out in Paposhvili, and adding that when applying Article 4 of the Charter, “particular attention must be paid to the specific vulnerabilities of persons whose psychological suffering, which is likely to be exacerbated in the event of their removal, is a consequence of torture or inhuman or degrading treatment in their country of origin”.

It followed that the Charter, interpreted in light of the ECHR, “preclude[s] a Member State from expelling a third country national where such expulsion would, in essence, result in significant and permanent deterioration of that person’s mental health disorders, particularly where, as in the present case, such deterioration would endanger his life.” It also recalled its previous ruling on “medical cases” and the Returns Directive.

But since the courts in the UK had already ruled out MP’s removal, the non-removal point was not relevant. Rather the issue was whether MP is entitled to subsidiary protection. Here the ECJ recalled its prior ruling that “medical cases” were not normally entitled to subsidiary protection, but noted that M’Bodj concerned a victim of assault in the host Member State, whereas MP was tortured in the country of origin and the after-effects would be exacerbated in the event of return. Both of these factors are relevant when interpreting the qualification Directive; but “such substantial aggravation cannot, in itself, be regarded as inhuman or degrading treatment inflicted on that third country national in his country of origin, within the meaning of” the Directive.

What about the lack of medical care for after-effects of torture in the country of origin? The Court reiterated its position that a right to subsidiary protection “cannot simply be the result of general shortcomings in the health system of the country of origin”, and that “deterioration in the health of a third country national who is suffering from a serious illness, as a result of there being no appropriate treatment in his country of origin, is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection”.

But on this point, it was crucial that this was not an “ordinary” example of a “medical case”, but one deriving from torture. The preamble to the qualification refers to taking into account international human rights law considering the subsidiary protection definition; and so the ECJ interpreted the UN Convention Against Torture (UNCAT) for the first time in its case law. In particular, the Court examined Article 14 of that Convention, which gives torture victims a right to redress and rehabilitation.

Overall, the Court insisted on a separation between UNCAT and refugee law, by analogy with the distinction between refugee law and the international law of armed conflict (the Geneva Conventions) which it had previously insisted upon in its judgment in Diakité. This was because the UNCAT system and refugee law pursue different purposes. So it followed that:

…it is not possible, without disregarding the distinct areas covered by those two regimes, for a third country national in a situation such as that of MP to be eligible for subsidiary protection as a result of every violation, by his State of origin, of Article 14 of the Convention against Torture.

So not every violation of Article 14 of UNCAT leads to subsidiary protection. But that implies that some violations do. The Court went on to clarify:

It is therefore for the national court to ascertain, in the light of all current and relevant information, in particular reports by international organisations and non-governmental human rights organisations, whether, in the present case, MP is likely, if returned to his country of origin, to face a risk of being intentionally deprived of appropriate care for the physical and mental after-effects resulting from the torture he was subjected to by the authorities of that country. That will be the case, inter alia, if, in circumstances where, as in the main proceedings, a third country national is at risk of committing suicide because of the trauma resulting from the torture he was subjected to by the authorities of his country of origin, it is clear that those authorities, notwithstanding their obligation under Article 14 of the Convention against Torture, are not prepared to provide for his rehabilitation. There will also be such a risk if it is apparent that the authorities of that country have adopted a discriminatory policy as regards access to health care, thus making it more difficult for certain ethnic groups or certain groups of individuals, of which MP forms part, to obtain access to appropriate care for the physical and mental after-effects of the torture perpetrated by those authorities.

So there are two cases where subsidiary protection would apply, due to intentional deprivation of care: the authorities are “not prepared” to fulfil their UNCAT obligations of rehabilitation to a person at risk of suicide following from torture suffered in that country; or there is discriminatory policy “making it more difficult” for certain groups to obtain such treatment. These criteria are non-exhaustive (“inter alia”). The evidence to be considered to this end is “all current and relevant information, in particular reports by international organisations and non-governmental human rights organisations”. Again, the sources of evidence are non-exhaustive (“in particular”).


At first sight, the Court’s judgment sticks to the framework developed in its prior case law: there is no right to subsidiary protection in “medical cases”, except where care is deliberately refused. But look closely, and it’s clear that the Court has developed that case law in important ways in today’s judgment.

First of all, the definition of “medical cases” is now wider, since the Court explicitly adopts the revised interpretation of Article 3 ECHR from recent ECtHR case law. Secondly, in torture cases, the Court has elaborated what factors to consider to determine if inadequate health care would be intentionally withheld in the country of origin. If the asylum seeker is suicidal due to the after-effects of torture carried out in that country, then if that country is either “not prepared” to fulfil UNCAT obligations of rehabilitation to such persons or has a discriminatory policy “making it more difficult” for certain groups to obtain care would amount to an “intentional” deprivation of health care, there is a right to subsidiary protection. The first of these grounds is unique to torture victims, but the second ground should arguably be relevant to any “medical cases”.

Thirdly, the Court has fleshed out the back-up obligation of non-removal for “medical cases” even in the event that subsidiary protection is not granted, insisting that it is an EU law obligation based on the Charter, alongside its prior ruling that the Returns Directive rules it out. This is particularly relevant for the UK and Ireland, given that they are not covered by the Returns Directive. In fact it is not obvious at first sight how EU law – and therefore the Charter – applies in those countries to such cases, if the persons concerned have no right to subsidiary protection. Arguably the link to the grounds for subsidiary protection set out in the qualification Directive is sufficient; but the Court should have spelled this out.

In the Member States bound by the Returns Directive, the finding that the Charter applies to prevent such removal simplifies the process of guaranteeing the non-removal of “medical cases”. Furthermore, it should be recalled that the case law on that Directive guarantees health care and medical assistance.

Overall, then, today’s judgment has gone some way to ensuring greater protection, where necessary, for the most vulnerable migrants: torture victims and the terminally ill.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapters I:5, I:7
Photo credit: The Guardian Nigeria

Thursday, 19 April 2018

Windrush: Violating data protection law under the guise of protecting it

Matthew White, PhD candidate Sheffield Hallam University.


There have been numerous reports of Windrush Generation Commonwealth citizens being denied health care, detained, losing jobs and threats of deportation. Nick Nason describes the Windrush Generation as Commonwealth citizens from the West Indies who were invited to the UK after WWII to address the shortage of workers at the time. There was a time when West Indians enjoyed total freedom of movement. Nason notes that s.2(2)(b) of the Commonwealth Immigrants Act 1962 exempted from immigration controls those who arrived with their parents and were under 16. And this is still true for children who arrived prior to 1 January 1973, as Nason puts it, they are ‘in the UK legally.’   

The issue for the Windrush Generation arises due to successive immigrations laws, the 2014 and 2016 Immigration Acts. Both are designed to create a ‘hostile environment’ to ‘to make life so difficult for individuals without permission to remain that they will not seek to enter the UK to begin with or if already present will leave voluntarily.’ These new Acts required proof of one’s right to be in the UK, and would be denied access to key services (see above) if there was no evidence of this. It is this denial of access to services that has brought this shameful chapter in British history to light to the point where the Prime Minister, Theresa May had to apologise to Caribbean leaders. The sincerity of said apology is open to question given that vital protections for the Windrush Generation were removed from the 2014 Act and were warned about the implications of Act in question.

Destroying personal data on data protection grounds

The Home Office then relied upon data protection law to justify deletion by arguing that keeping personal data for longer than necessary was in breach of data protection principles. More specifically, Robert Peston tweeted that the Home Office relied upon the Fourth and Fifth data protection Principles found in Schedule 1 of the Data Protection Act 1998 (DPA 1998).

The actions of the Home Office in relation to the destruction of personal data does not just have implications with regards to the DPA 1998 but also under the European Convention on Human Rights (ECHR), particularly Article 8 which provides that:

1.      Everyone has the right to respect for his private and family life, his home and his correspondence.

2.      There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

According to the European Court of Human Rights (ECtHR) Grand Chamber (GC) in S and Marper (ECHR, 4 December 2008) the ‘protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention’ [103]. The mere storage of personal data interferes with Article 8 [67]. The GC continued that ‘domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent’ with Article 8 [103]. The Home Office’s position on not storing personal data for longer than is necessary is consistent with the ECtHR’s approach [ibid], but this would be classed as subsequent [67, 121] use and thus is still an Article 8 issue.

The first requirement under Article 8 is whether the deletion of personal data was ‘in accordance with the law.’ This requires there to be some basis in domestic law [193]. One could argue the DPA 1998 itself provides the domestic law basis for deletion, but the ECtHR has previously held that it does not have to assess ‘the quality of the applicable data protection framework in the abstract and must rather confine itself as far as possible to examining the particular consequences of application of its provisions in the case before it’ [81]. This is due to the fact that reliance on the DPA 1998 does not guarantee an action to be ‘in accordance with the law’ [207]. The ECtHR has stressed that applicable laws must provide:

[C]lear, detailed rules governing the scope and application of the relevant measures; as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness at each stage of its processing [75].

Therefore, the legal basis for the destruction of personal data in the context to which the Home Office relies becomes severely weakened. The DPA 1998 does not define the scope and application with clear, detailed rules as to when the Home Office is entitled to delete personal data, nor does it provide procedures for said destruction. The arbitrariness of the measure is apparent when it is clear that the Home Office deleted all said personal data en masse.

Moreover, even if one were to consider the DPA 1998 as the correct legal basis that is sufficient in ECHR terms, this does not answer the question as to why the Fourth Principle was used in this manner. The Home Office are essentially arguing that personal data held on Windrush Generation individuals were inaccurate, without actually taking reasonable steps to ensure the accuracy of said data in contravention of Schedule 1, Part II (7)(a) of the DPA 1998. When the domestic authorities do not even observe their own law, this would also violate Article 8 [45-9]

The lawful basis in this context is strongly linked to whether a measure satisfies the ‘quality of the law’ in which a law should be accessible to the person concerned and foreseeable to its effects [50]. This is usually satisfied when a law is published [52-3]. However it has been argued that the vagueness of the DPA 1998 provides an insufficient legal basis for the destruction of personal data in this context. In arguing so, it cannot be said the law is accessible, because there is no law to access, which in and of itself would violate Article 8 [69-70].

Regarding foreseeability, this is described as formulating the law:

[W]ith sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise [95].

The level of precision ‘depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed’ [96]. The DPA 1998 was designed to cover the protection of (sensitive) personal data, but not specifically in the immigration context, thus its Principles are not precise [98]. The DPA 1998 would not indicate to any Windrush Generation individual as to when or under what circumstances their personal data may be deleted by the Home Office, thus not providing sufficient clarify on the scope of their discretion.

Again, the arbitrariness of the Home Office’s actions is apparent when it destroyed thousands of landing card slips in 2010. For example, when would it be necessary to delete landing card slips? Would it be when the Home Office could guarantee that an individual would no longer require it to demonstrate they came as a child before 1973? It would be contrary to the rule of law if the Home Office used its power in an unfettered manner [62]. The exercise of power by the Home Office ‘was arbitrary and was based on legal provisions which allowed an unfettered discretion to the executive and did not meet the required standards of clarity and foreseeability’ thus amounting to a violation [86, 89].

This discussion on the unlawfulness of the Home Office’s reliance could have stopped at the end of the last paragraph, but it is important to consider the case of Kurić and others v Slovenia (ECHR, 13 July 2010) as it shares similarities with the Windrush Generation scandal. The applicants in this case complained before the ECtHR that the erasure of their names from the Register of Permanent Residents made them aliens overnight which denied them ‘civil, political, social and economic rights’ [319].

The applicants had been living in Slovenia for years, and most of them decades, some were even born there [356]. The applicants did not enter Slovenia as immigrants but as settled citizens [357]. Moreover, the applicants had a stronger residence status than long-term migrants and those seeking to enter or remain [357]. Although not identical, the erasure of landing cards made it more difficult for Windrush Generation individuals to prove they had a right to live in the UK, and due to this lack of proof they could be denied healthcare, jobs, bank accounts etc.

In that case, the ECtHR reiterated previous case law in that Article 8 is interfered with when the ‘persons concerned possess strong personal or family ties in the host country which are liable to be seriously affected by application of the measure in question’ [351]. They continued that the right to establish and develop relationships, embracing social identity, having social ties with the community all fall within the meaning of Article 8 [352]. Moreover, Article 8 is interfered with when one faces expulsion and having their citizenship arbitrarily denied [352-3]. Finally, the UK Government has positive obligations to respect Article 8 [354].

Due to the cumulative failings of Slovenia, the ECtHR concluded there was a violation of Article 8 [376]. The ECtHR did not decide whether the Article 8 violation was due to the measures not being ‘in accordance with the law’ pursued a legitimate aim or was ‘necessary in a democratic society,’ so the same approach will be taken to argue that in the cumulative, Article 8 has been violated. When one considers that landing cards had been destroyed arbitrarily in 2010, the Home Office claimed these had no impact on the rights of the Windrush Generation. This claim is contested by two Home Office whistle blowers arguing that the landing cards had been a useful resource. The whistle blower’s account is supported by the Border Force where its notes state that ‘Information from a landing card may be used by an entry clearance officer in making a decision on a visa application.’ Destroying landing cards allowed Home Office staff to tell those concerned that they had no record of arrival dates which would lead to the denial of services and at worst, deportation.

Moreover, citing data protection law as a reason for the destruction of personal data appears cynical due to the amount of personal data that is kept anyway and the fact that the same Government is seeking to create an immigration exemption in the new Data Protection Bill (Schedule 2, Part 1, (4). The Home Office also explained that it considers alternative evidence such as tax records, utility bills and tenancy agreements as evidence of ongoing residency. However, if one can be denied work, have bank accounts frozen and be denied tenancy, then this evidence could also be difficult to provide. The cumulative effect of denial of services to the threat of (or actual) deportation, the deletion of flying cards and the spurious reasoning behind it would amount to a violation of Article 8.

The racist elephant in the room

Nason asked whether the overt racism from the 1960s-80s has simply been replaced ‘by a more insidious, state-endorsed hostility in the name of immigration control.’ A group of NGOs published a report on the ‘hostile environment’ noting that its very nature is discriminatory and thus encourages discriminatory or even racist behaviour. Former Home Office employees detail how the ‘hostile environment’ changed the attitude of staff to the point where they enjoyed catching out Windrush individuals without evidence. James Moore argues that this is what happens when you let dog-whistle racism go mainstream.

Article 14 of the ECHR details how the enjoyment of rights contained in the ECHR must be protected in a non-discriminatory manner. The grounds for discrimination are non-exhaustive but include race, colour, national or social origin and birth. Any one of these can be relevant to the Windrush Generation. Article 14 only works in combination with another substantive Convention Right, in this instance Article 8 [84]. Article 14 requires a difference in treatment to those in an analogous or similar situation [66]. The ECtHR have maintained that:

[A] difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group…may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent [184].

The Windrush Generation have as much right to be here as any other UK citizen, yet they are the ones that a targeted under the ‘hostile environment.’ Given that the Home Office destroyed landing cards, removed key protections that could have avoided this. One could argue the actions of the UK Government are more than just indirect discrimination because the discriminatory intent arises for the poor reasoning for destruction of flying cards to the lack of reasoning for removing key protections. The Government has no objective reasonable justification for this difference in treatment and thus amounts to discrimination [196]. Moreover, the Windrush Generation are being treated as though they are immigrants. This engages a different type of discrimination issue under Article 14, a Thlimennos discrimination which notes that:

The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different [44].

There is no objective reasonable justification on any of the discriminatory grounds and thus amounts to a violation of Article 14 in conjunction with Article 8 [208-210]. Thus, under the ECHR, the racist and discriminatory elephant in the room is glared upon with distain.


This post has highlighted that the dubious reasoning as to why the Home Office destroyed crucial information that could have helped prevent some of the tragedies of the Windrush Generation is flawed, logically and legally. Not only is it flawed, reliance on data protection grounds in ECHR terms would amount to using Article 8 as a shield, and for the UK Government to do so would raise serious questions regarding Article 17 (the abuse of rights). Not only is the Home Office’s actions and reasoning in violation of Article 8, it violates Article 8 on the ground of defending it. There is a bigger issue which highlights the resurfacing of racism and discrimination in a new form which violates Article 8 in conjunction with Article 14. The ‘hostile environment’ has provided a platform and has legalised discrimination and racism, the destruction of landing cards in 2010 can be seen as the first steps towards this, and the removal of key protections for the Windrush Generation in the 2014 Act  is no accident either. The ‘hostile environment’ is the problem and the recent outrages shows that there are ‘resources of hope, but time is running out – we are at five minutes to midnight.’

Photo credit: www.sas.ac.uk