Accessing asylum in Europe: extraterritorial border controls meet refugee rights

Refugee flows have grown in size and complexity over the years since the end of the Cold War and ensuing de-colonization period. Europe, as other wealthy regions of the world, has adopted extraordinary, ‘emergency’ measures, particularly during so-called ‘migration crises’ (e.g. the Cayucos crisis of 2005; the Arab Spring of 2011; and the ‘refugee crisis’ in which it has been immersed since 2015), which have normalized the current sense of urgency and exceptionalism that characterises much of the EU migration and asylum policy today. Offshored border checks, outsourced visa processing, privatised pre-boarding controls, and maritime interdiction ‘by proxy’ are, as this session will discuss, but a few of the mechanisms in which the external frontier of the Union manifests itself to potential refugees. The fact that the rights to asylum and to non-refoulement have gained uncontested legal strength as a matter of (internal) EU law, after the adoption of the Lisbon Treaty in 2009, should have marked a shift in the way in which forced displacement movements towards the Member States are governed. Instead, as this session will demonstrate, changes in regulation have not signified real changes on the ground. The Union – including its judiciary – are yet to fully apprehend what these changes entail. If (refugee) human rights are to guarantee not ‘theoretical and illusory’ but ‘practical and effective’ safeguards (Hirsi, para. 175), it will be argued, the EU is left with only two options: to adapt or to abandon incompatible measures. This, as will be explained, is not a defence of an ‘open borders’ system, but a bid for adjustment to the most fundamental principles of the rule of law on which the Union claims it is based (Art 2 TEU). The analysis of the three key measures impeding access to asylum in Europe (i.e. visas, carrier sanctions, and maritime patrols) and their intersection with the rights to non-refoulement, asylum, and effective judicial protection (Arts 18, 19, and 47 CFR) will constitute the critical focus of this session in an effort to unveil the inconsistencies of EU regulation and its noxious effects on individual freedoms. A proposal for an alternative design of the border control machinery will be put forward at the end.

The session will be based on the author’s recent monograph: Accessing Asylum in Europe Extraterritorial Border Controls and Refugee Rights under EU Law (OUP, 2017).