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Maarten den Heijer

Abstract

This article challenges the assumption that under the European Convention of Human Rights only Articles 2 and 3 bear relevance in cases of refoulement. By unraveling the explicit and implicit principles applied by the European Court of Human Rights and elaborating upon earlier theoretical attempts to ascertain the impact of the Soering judgment on extradition and expulsion cases, it is argued that there is no clear dichotomy of rights within the European Convention and that the higher threshold for applying Convention standards to cases of expulsion in which maltreatment is suffered in the receiving country is dependent on the notion of a 'fundamental value'. Albeit a somewhat nebulous concept, this notion is likely to encompass not only Articles 2 and 3, but also norms protected by other provisions, or at the least certain intrinsic components of those other provisions.

Katja Swider and Maarten den Heijer

This contribution argues that the European Union can and should establish a legal framework for the identification and protection of stateless persons who reside in one of the Member States. Our proposal for eu legislative action is based on the worrying observation that the post-war international legal framework for protecting stateless persons has failed to take root in a majority of eu Member States. This contribution analyses the potential of the eu to address protection failures stemming from legislative inactivity of Member States. We argue that the eu is competent to address the issue and that eu action need not conflict with Member States’ prerogatives in nationality matters. The key elements of an eu directive on statelessness would consist of common criteria for i) a fair procedure for determining whether a person is stateless; ii) the standard of treatment to be accorded to stateless persons; and iii) the conditions of residence for stateless persons.

Maarten den Heijer

Abstract

The article examines whether the EU visa policy discriminates on racial or religious grounds. That the EU’s selection of countries whose nationals are subject to the visa obligation strongly correlates with global ethnic and religious demarcations fuels concerns about discrimination. The article juxtaposes the standards that have evolved in European non-discrimination law for justifying disparate racial and religious effects of immigration policies with the legislative history of the Visa list regulation. It argues that the progressive refinement of visa liberalisation dialogues by the European Commission including benchmarks on risks associated with visa travel provides no basis for allegations that current decision-making is based on ulterior motives. However, the placement of the large majority of countries on the ‘black list’ dates from the intergovernmental Schengen era and has never been properly justified. The article recommends to rectify this omission and to fundamentally rethink the balancing of the positive and negative criteria for the visa obligation.