Member State Responsibility for Migration Control within Third States – Externalisation Revisited

In: European Journal of Migration and Law
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  • 1 European University Institute, Badia Fiesolana, Via dei Roccettini 9, I-50014 San Domenico di Fiesole (FI), Italy

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Abstract

This article re-examines externalisation – direct migration control by Member States of the EU, within third states, i.e., States which are not members of the EU. The nature and extent of this control is considered. The instruments of externalisation examined are carrier sanctions and immigration liaison officers. State responsibility for these externalised migration controls is assessed. The jurisdiction of the ECtHR is the trigger for Member State responsibility. ECtHR jurisprudence has made it clear that it is the exercise of physical power and control over a person by the State, which is pivotal to deciding jurisdiction. Jurisdiction is engaged where the Court finds that physical power and control to have been ‘effective’. This threshold of ‘effective’ control which has emerged from the Court’s jurisprudence is a demanding hurdle. If State control is found to be ‘effective’, then the State is responsible for the full range of rights contained within the Convention. The question then stands whether or not the ECtHR can keep abreast with these controls which can lead to States evading jurisdiction and thus avoiding fundamental rights responsibilities. One possible interpretation of recent jurisprudence is that the ECtHR is moving toward a broader interpretation of jurisdiction. It is in this context that ‘externalised’ controls have come under renewed scrutiny. A prevailing opinion is that the ECtHR will be able to protect those asylum seekers who encounter externalised control. This article questions any such assumption. The author argues for an alternative reading of the jurisprudence of the ECtHR with regard to jurisdiction. The conclusion reached is that the hurdle of extraterritorial jurisdiction is so demanding that States avoid it despite exercising extensive control over migrants. It is asserted that despite this considerable control, examination by the ECtHR will result in a failure to satisfy the ‘effective’ control threshold. Responsibility can thus be avoided while extraterritorial control is retained. The control level held by the State is still capable of guaranteeing a denial of access to individuals in need of international protection. If jurisdiction is not engaged then this externalised migration control represents a divergence between State control and State responsibility. Taking the threshold for jurisdiction of the ECtHR as a starting point, the author suggests a distinction between externalisation on the one hand and the external dimension on the other. States, oftentimes with facilitation from the Union, pursue one of these two alternatives. Externalisation affords the State stronger and more direct control over the entry of the migrant into the territory of a Member State than the external dimension, where the control is indirect and weaker. This distinction allows for a refined understanding of externalisation and applies it to verifying Member State responsibility for externalised migration control.

  • 14)

    This is the basic precept of Article 1, supra note 6,. See also the Cypriot cases which established the ‘effective’ control principle, supra note 7.

  • 15)

    E. Guild (2007), Security and European Human Rights: Protecting Individual Rights in Times of Exception and Military Action, Nijmegen: Wolf Legal Publishers, at p. 18.

  • 17)

    F. Coomans and M.T. Kamminga (2004), Extraterritorial Application of Human Rights Treaties, Antwerp: Intersentia, at p. 136.

  • 18)

    See E. Brouwer (2010), ‘Extraterritorial Migration Control and Human Rights: Preserving the responsibility of the EU and its Member States’, in: B. Ryan and V. Mitsilegas, Extraterritorial Immigration Control, Leiden: Martinus Nijhoff, pp. 195–224, at p. 217, quoting R. Lawson (2004), ‘Life After Bankovic: On the Extraterritorial Application of Human Rights Treaties’, in Coomans and Kamminga (2004), supra note 17.

  • 19)

    Cypriot cases, supra note 7.

  • 20)

    Moreno Lax 2008, supra note 8, p. 336. Reference made to Cypriot cases, supra note 7. See also Al-Skeini case, supra note 4, paras 134–138.

  • 22)

    Coomans and Kamminga (2004), supra note 17, at p. 136. See: Banković, supra note 4, para. 61. See also: Al-Skeini, supra note 4, para. 149. And in Hirsi, supra note 1, para. 72.

  • 23)

    Guild, Carrera, Den Hertog and Parkin (2011), supra note 10, at p. 48.

  • 24)

    J. Hathaway (2005), Rights of Refugees under International Law, Cambridge: Cambridge University Press, at p. 339.

  • 41)

    For example, V. Guiraudon (2003), ‘Before the EU Border: Remote control of the “Huddled Masses” ’, in: K. Groenendijk, E. Guild and P. Minderhoud, In Search of Europe’s Borders, Leiden: Brill, pp. 41–68. See also: T. Gammeltoft-Hansen (2006), ‘Filtering Out the Risky Migrant. Migration Control, Risk Theory and the EU’, AMID working paper series 52/2006, at p. 25, available online at http://www.amid.dk/pub/papers/AMID_52–2006_Thomas_Gammeltoft-Hansen.pdf.

  • 42)

    For example, Ryan and Mitsilegas (2010), supra note 18.

  • 43)

    For example, G. Clayton (2010), ‘The UK and Extraterritorial Immigration Control: Entry Clearance and Juxtaposed Control’, in: B. Ryan and V. Mitsilegas, Extraterritorial Immigration Control, Leiden: Martinus Nijhoff, pp. 391–423, at p. 396. See also M. Cremona and J. Rijpma (2007), ‘The Extra Territorialisation of EU Migration Policy and the Rule of Law’, EUI Working Paper 2007/01.

  • 44)

    For example, S. Peers (2011), EU Justice and Home Affairs Law, Oxford: Oxford University Press, at p. 127.

  • 46)

    See Cremona and Rijpma (2007), supra note 43.

  • 47)

    See generally Lavenex (2006), supra note 45.

  • 49)

    C. Rodier (2006), Analysis of the external dimension of the EU’s asylum and immigration policies’ – summary and recommendations for the European Parliament. This study was requested by the European Parliament’s Subcommittee on Human Rights.

  • 52)

    T. Gammeltoft-Hansen (2010), ‘When, if ever, is externalisation tantamount to extraterritorial juris¬diction? The Externalisation of European Migration Control and the Reach of International Refugee Law’, in: E. Guild and P. Minderhoud, The First Decade of EU Migration and Asylum Law, Leiden: Martinus Nijhoff, pp. 273–298, at p. 285, available online at: http://www.diis.dk/graphics/Events/2011/Thomas%20Gammeltoft%20Paper%20asylseminar.pdf.

  • 56)

    Council Regulation (EC) 377/2004, supra note 55. Article 1(4).

  • 58)

    Council Regulation (EC) 377/2004, supra note 55, Recital 6.

  • 62)

    For example, between 2002 and 2007, British ALOs assisted in preventing 180 000 inadequately documented persons from boarding carriers. Lords Select Committee on European Union, UK, December 2007. Written evidence by Border Control Heathrow/Airline Liaison Officer’s Network, Home Office, available online at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60we04.htm. This point is also well illustrated by reference to the then Dutch Minister for Alien Affairs and Integration who stated that in over 99% of cases, ‘advice’ was followed by Dutch airlines. See Scholten and Minderhoud (2008), supra note 51, at p. 138. Finally, ‘Why cannot the authorities, the ALO’s posted overseas, be granted these powers?’, See: Roundtable on Carriers’ Liability Related to Illegal Immigration. Minutes of the Meeting. Brussels, 30 November 2001, at p. 30, available online at: http://www.iru.org/index/cms-filesystem-action?file=en_events_2001/Illegal2001.pdf.

  • 69)

    Scholten and Minderhoud (2008), supra note 55, at p. 125.

  • 76)

    Gammeltoft-Hansen (2011), supra note 52, p. 279.

  • 78)

    Gammeltoft-Hansen, supra note 68, at p. 147.

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