In an unusual step (for us) we are including this piece not as any real kind of update – it is not – but as something you can use, if you wish, whenever you are confronted with a person who talks about ‘illegal’ immigration, particularly in relation to people hoping to find safe places to live, learn and work.
We will note here, as we do not do so below: this judgement is based upon EU law. Which is in turn based upon and is the same in intent and content as the 1951 Refugee Convention, which draws upon the Universal Declaration of Human Rights (1948). That is, EU and international law agree on all these points.
The European Court of Justice has made a judgement (Wednesday 29 June 2022) on people who have entered the EU by irregular means, to which we should all pay attention.
In its judgement on case C-72/22 PPU, the Court was asked to rule on the Lithuanian government’s claim that it was justified in passing a law allowing it to detain people who had entered the country ‘illegally’ (the term is incorrect: we will use ‘irregularly’ from now on in this piece).
It ruled, in short, that it is not.
But its reasons are extremely important.
It said:
‘The Court states, first of all, that any third-country national or stateless person has the right to submit [an asylum] application on the territory of a Member State, including at its borders or in its transit zones, even if he is illegally residing in that territory.’
That is, it is illegal to prevent people from applying for asylum within your territory, regardless of how those people entered that territory. We will come back to this point.
‘The Court finds that the general invocation of breaches of public order or internal security which may be caused by the massive influx of third-country nationals does not justify, under the Article 72 TFEU [Treaty on the Functioning of the European Union], prevention of this right.’
That is, even in the event of a huge number of people entering a country, it is not acceptable to remove them or otherwise deny them the right to access the asylum system simply by vaguely invoking ‘public order’ or ‘internal security’.
It goes on:
‘The ‘procedures’ directive allows Member States to establish special procedures, applicable at their borders, aimed at assessing the admissibility of applications for international protection in situations where the behaviour of the applicant tends to indicate that his application is manifestly not justified or abusive.’
That is, one may only detain (and even then, only for a very limited period, and only to determine someone’s actual admissibility for the application process, not for the entirety of that process) people on the border on the grounds of their individual behaviour: not ‘because there are lots of people’ or indeed ‘because they have been in a country we consider safe’.
‘With regard to the question of the detention of a third-country national solely because of his irregular entry into the territory of a Member State, the Court recalls first of all that, under the ‘reception’ directive, an applicant for international protection may only be placed in detention when, following a case-by-case assessment, this proves necessary and if other less coercive measures cannot be taken. effectively applied. Next, this directive 9 exhaustively lists the various grounds that may justify detention. However, the fact that an applicant for international protection is illegally residing in the territory of a Member State does not appear among those grounds.’
Now. This is not just a statement on ‘detention’ (though of course it is that). It is a statement that a person may not be punished because of the method of their entry into a state, if their desire is to apply for asylum. That is, it is not illegal – or certainly not actionably illegal – to enter a country to apply for asylum, by any means, and people cannot be punished while within the asylum application process.
It ends:
‘Finally, as to whether such a circumstance can justify the detention of an asylum seeker on the grounds of the protection of national security or public order 10, in the exceptional context represented by the massive influx of foreigners in question, the Court recalls that the threat to national security or to public order can only justify the detention of an applicant on the condition that his individual behaviour represents a real threat, current and sufficiently serious, affecting a fundamental interest of society or the internal or external security of the Member State concerned.
‘In that regard, the irregular nature of the residence of an applicant for international protection cannot be regarded as demonstrating, in itself, the existence of such a threat. Thus, such an applicant cannot, in principle, constitute a threat to the national security or public order of that Member State, on the sole ground that he is in a situation of illegal residence in a Member State.’
This section is quite clear.
So it is not legal to prevent people from applying for asylum – including by pushing them back from your territory. It is also illegal to punish people, including by detaining, deporting or denying them access to asylum, because of the means by which they entered any territory.
It is also illegal to deny people access to the asylum system on the grounds that they have previously been in another country.
We must make this point, which we have made many times before. The law is counter-intuitive until one is familiar with it, but it is vital that we become familiar with it, because it is this precise unfamiliarity which enables people such as Greece’s Migration Minister Notis Mitarachis to claim, as he did in front of the LIBE committee on Tuesday this week that ‘a person is not entitled to come from Mogadishu without a visa’.
They are.
Refugees and people seeking asylum do not require a visa to travel to claim asylum.
It is not illegal to enter a country, with or without paper-work, if one expresses one’s intent to apply for asylum when there. This can seem strange to people: many crimes are committed ‘from the outset’. A person’s entry without paperwork is only an (actionable) offence if they fail to do something after they have arrived.
But the law is clear. Any man, woman or child may travel to any state, by any means, and must not be prevented from being there, or be imprisoned except under very specific circumstances related to them as an individual (and not related to their race or general ‘foreignness’) rather than any ‘political’ or ‘societal’ motivation, as long as they express their wish to apply for asylum once they have arrived.
There are no ‘ifs’ or ‘buts’ to be applied here, and this ruling is not breaking new legal ground: it is a clear judgement based on the law as it stands.