A Well-founded Fear of the Law
A Review of Lisa Heschl, Protecting the Rights of Refugees Beyond European Borders: Establishing Extraterritorial Legal Responsibilities, Intersentia. 2018. 255pp. £75 (HB). ISBN: 978-1-78068-614-1
It is, of course, possible that an individual might encounter a situation that is entirely unprotected by the law, but it is so unlikely that arguments which assert the existence of so-called ‘legal black holes’ should be treated with extreme caution. Again, it is possible that the proper application of an individual’s legal entitlements may make little difference to her or his practical situation, but such an outcome of the enforcement of a legal right is rare. If the rights of the most marginalised and vulnerable are to be defended, the idea that law is either absent from their situations or simply weak must be thoroughly discarded. What European Union Member States most fear as a consequence of the application of their asylum policies is the occasions on which their operations are exposed to the full scrutiny of the courts, especially that of the European Court of Human Rights. It is in fear of the far from vacuous and innocuous legal principles established in the international and domestic arenas, such as the principle of non-refoulement enshrined within Article 33 of the Convention Relating to the Status of Refugees, 1951 (the Refugee Convention), that EU member states are carefully designing asylum policies with the primary intent of removing refugees and those in need of international protection from the reach of the courts. Member States fear refugees and others exposed to human rights abuses for their law-making capacity. To support these individuals in making new law, the efforts of civil society must be exerted much more.
The above summarises, in essence, what I take from Lisa Heschl’s careful and insightful examination of human rights and European Union law, which task she undertakes in order to assemble “the legal framework governing situations where a refugee or person in need of international protection meets authority in the context of extraterritorial immigration control measures (Heschl, 2018: 7). Whilst Heschl is highly conscious of the potential of such measures to operate in the context of a “rights vacuum” (Heschl, 2018: 6), or to result in the “creation of nebulous legal zones” (Heschl, 2018: 4), her principal objective is to illustrate to the reader how the landscape of rights can be transformed by courts “willing to deconstruct old notions of sovereignty and territorially-bound human and fundamental rights obligations” (Heschl, 2018: 231).
The concerns of the book are with the involvement of non-EU Member States “in different schemes of migration control measures” (Heschl, 2018: 37). It attends to “operative measures such as the positioning of liaison officers in third states or border control operations taking place beyond a state’s territory” (Heschl, 2018: 223). It is about the Frontex Rapid Border Intervention Teams’ operations, which include “active border guards’ activities, such as investigating nationality, stamping passports and preventing illegal border crossing” (Heschl, 2018: 152). It focuses on the “training of border officials or placing equipment or personnel at the disposal of a third state in order that the latter can effectively conduct border controls” (Heschl, 2018: 120). It explores extraterritorial immigration control measures which “take the form of MS officials joining the third state authorities on their ships; or it might take the form that MS are...allowed to conduct immigration control operations themselves in the territorial waters of the cooperating state (Heschl, 2018: 47). Above all, the book is concerned with the instances in which the extraterritorial immigration measures identified above are not conducted by an EU Member State acting alone, but where the Member State acts jointly with a third country. Because joint action may blur the boundaries of responsibility between two or more actors, there is a pressing need in instances of “control measures involving more than one state” (Heschl, 2018: 93) for legal expertise and other forms of support to be made available to individuals whose rights may have been adversely affected by the control measures in question. The support will enable these individuals to bring cases to court and, thereby, test the legal implications of joint action.
According to Heschl the extraterritorial immigration measures outlined above have been facilitated by a “crisis rhetoric” (Heschl, 2018: 1), which “has...been conjured at the European policy level since the beginning of the 1990s (Heschl, 2018: 1). Such rhetoric prepares the way for people to accept what would otherwise be “unthinkable” (Heschl, 2018: 1). We must, therefore, take seriously the proposition that a primary focus of EU Member States’ asylum policies is to render effectively redundant the legal regime established by international legal instruments such as the Refugee Convention. In the knowledge that legal entitlements are usually conceived as being determined by territorial borders, extraterritorial immigration measures ensure that “borders become increasingly detached from a state’s boundaries and attached to people moving across them” (Heschl, 2018: 37), resulting in the experience in which an individual “may encounter a border when still in his country of origin or a country of transit” (Heschl, 2018: 223). Importantly, for those seeking to enforce legal entitlements, as borders shift “legal spheres and applicable legal regimes” (Heschl, 2018: 224) become more and more elusive. For “...once a migrant reaches the territory of the EU, legal obligations are assumed. Preventing the migrant from setting foot on EU ground circumvents obligations deriving from refugee law and human rights but also from the EU acquis on asylum” (Heschl, 2018: 34). The measures seek to “push back the EU’s external borders and the corresponding attempts to police them as far away as possible in order to control unwanted migration flows...this ‘remote control’ aims to deter migrants at the earliest stage of their travel” (Heschl, 2018: 38). Most sensitive to extraterritorial immigration control measures in this regard is the principle of non-refoulement (Heschl, 2018: 127). As Heschl notes:
“Along with preventing access to a state’s territory, one prevents access to national statutory legal and judicial safeguards...extraterritorial immigration measures and practices therefore are deliberately isolated from international, European and national protection standards, since they occur outside the territorial jurisdiction in a third state. For instance, preventing refugees from leaving their country of origin not only prevents them from presenting their cases according to national asylum legislation, it also prevents them from qualifying as refugees in the first place. The GRC requires as person to be outside his or her country of origin in order to qualify as a refugee. Interception measures aimed at preventing a person from leaving will conflict logically with this criterion” (Heschl, 2018: 39).
Heschl, however, refuses to allow refugees and other persons in need of international protection to become the “collateral damage” (Heschl, 2018: 137) - the spill-over effect -caused by the desire of EU Member States to control so-called illegal immigration. Convinced as she is that the courts are more than capable of finding ways to “counter the de-linking of extraterritorial immigration control measures and responsibility” (Heschl, 2018: 45), she embarks upon an extremely rigorous assessment of whether human rights norms constrain EU Member States in their attempts to place migrants in a legal vacuum (chapter three) and whether European Union law covers the situation of rights violations at the hands of, or under the oversight of, the European agency, Frontex (chapter four).
In this effort, Heschl signposts the statements of principle – often recorded in the book as being made in the context of Frontex operations –to the effect that Member States and EU agencies are bound by principles of international law, including the principle of non-refoulement (e.g. Heschl, 2018: 157-159). However, it is right that the book accords minimal attention to these statements of abstract principle. The function of these statements is less about the need to observe and respect the rights of individuals and much more about the desire of EU Member States to preserve their status as presumptively safe states. More pertinently, as stated in the introduction to this review, it is the scrutiny of the courts that EU Member States fear, not the mere appearance of legal principles on various policy documents.
What does the reader learn from Heschl’s examination of the case law of the European Court of Human Rights (Heschl, 2018: 50-30), the Court of Justice of the European Union (Heschl, 2018: 181-205) and, occasionally, the Member States’ domestic courts?
The question Heschl poses in these sections of the book is how far the courts are prepared to interrogate the assumption that legal rights accrue only when an individual is physically on the territories of a state against which the right is being asserted. Although there is relatively little in terms of relevant case law emanating from the Court of Justice of the European Union, Heschl concludes that the question of the extraterritorial reach of EU law is likely to present to the court few conceptual conundrums because “the EU is a non-state entity. Therefore, its capacity to act is captured by the term ‘competence’ rather than ‘jurisdiction’ and these competences derive from the Treaties” (Heschl, 2018: 182). As regards the more extensive jurisprudence of the European Court of Human Rights, she concludes that “the court is more and more willing to re-start from the assumption that that the ECHR applies extraterritorially” (Heschl, 2018: 134). Ultimately, what Heschl’s analysis reveals is less of a “rights vacuum” and much more of a problem of access to the courts of the most marginalised and vulnerable – a phenomenon that is by no means confined to the area of European Union Asylum policy. As evident from Heschl’s discussion of the Hirsi decision, the court’s have the capacity to outstrip the strategies of Member States. However, the intervention of the courts is conditional on a legal challenge being brought by a person, or exceptionally an organisation, with appropriate standing. The Hirsi decision is important not least because of the glimpse it affords of the potential of the law. In Heschl’s assessment:
“The Hirsi case has been one of the notable exceptions when access to justice has been provided to the victims of human rights violations occurring in the context of extraterritorial immigration control measures. However, it was due to the engagement of a civil society organisation that the case was eventually taken to the ECHR” (Heschl, 2018: 231).
Hirsi concerned a now classic form of agreement between a member state of the European Union and a third state in the area of EU border control. The agreement was between Italy and Libya and was settled in 2007. In a widely reported incident, approximately 200 migrants of mixed nationality journeyed from Libya with the intention of reaching Italy. In furtherance of the agreement between Libya and Italy, the vessels on which the migrants were travelling were intercepted just off the island of Lampedusa in the high seas. The migrants were detained by the Italian military and returned to Libya in an Italian military vessel. Once detained by the Italian military authorities, the migrants were divested of all personal belongings, including documents that would verify their identities. The migrants reported that they were not informed that they were to be returned to Libya. They also claimed that although they informed the Italian military of their need for international protection, they were not given the opportunity to make an asylum or other relevant claim, nor, it was asserted, was there any scrutiny process in place which would facilitate their search for protection.
The case which was decided before the European Court of Human Rights alleged, inter alia, a breach of the Article 3 ECHR prohibition on inhuman and degrading treatment and punishment.
Between pages 81 and 94 of the book, Heschl summarises the wider impact of the Hirsi decision. She notes, among other things, that the judgement “contributed significantly to the...largest search and rescue operation ever conducted in Europe (Heschl, 2018: 82). Further, the court “considered that the pushing back of the applicants to Libya without assessing their protection claims exposed them to direct and indirect refoulement, since they were about to face inhuman and degrading treatment first in Libya and then eventually in Eritrea and Somalia (Heschl, 2018: 85). Notably, in terms of access to justice, the court determined that the “non-refoulement prohibition is disconnected from whether the applicants actively requested asylum or formally opposed their removal to Libya (Heschl, 2018: 88). Finally, Heschl notes that the case had “considerable impact on the drafting of Regulation (EU) 656/2014/EU on surveillance of the external sea borders by Frontex coordinated operations” (Heschl, 2018: 135).
Unsurprisingly, access to courts is impeded by the fact that, as in the UK, legal aid is no longer available for most non-asylum and human rights protection immigration matters. Given that the extraterritorial immigration control measures discussed in the book are targeted at migrants generally and operate without due regard to the different needs and situations of migrants, the retention of funding for refugee applicants and for persons in need of international protection has a minimal impact on any strategy designed to hold EU Member States to account in court for human rights violations caused by extraterritorial immigration measures. Heschl identifies other access barriers when, for example, she explores what scrutiny mechanisms exist in respect of the ever expanding competences of Frontex, In this regard she notes that there was no complaints mechanism established in respect of Frontex’s operations until recently – by virtue of Regulation (EU) 2016/1624 (Heschl, 2018: 164-165). She further explores avenues for the judicial review of Frontex’s actions before the Court of Justice of the European Union or before Member States’ national courts (Heschl, 2018: 212-220). Suffice to say that whilst the acts of Frontex are highly likely to be deemed amenable to judicial review (Heschl, 2018: 213) “an individual whose rights may be violated by Frontex operations will face practical problems concerning access to the Court. The acts in question are likely to affect the rights of third country nationals not residing within the EU” (Heschl, 2018: 214).
To conclude, Heschl skilfully refutes the suggestion that the context in which European Member States design and operate their asylum policies falls “outside the application of protection norms deriving from different legal regimes” (Heschl, 2018: 230). Rather, the more than adequate regime of legal rights is “undermined by either lacking complaint mechanisms or by the lack of access to them” (Heschl, 2018: 231). There is an urgent need to keep the courts active in scrutinising EU Member States’ asylum policies and their application to particular individuals. In the quest to reach a position in which EU asylum policies are properly brought under judicial control and scrutiny Herscl places a significant burden on the Commission and the European Parliament -bodies which enjoy the status of privileged applicants in judicial review proceedings (Heschl, 2018: 231). However, the reader is left in no doubt that Heschl expects the legal academy to play a major role in ensuring that EU member States’ actions in the field of asylum are subject to appropriate checks and balances, and she is not afraid to lead the way.
Hirsi Jamaa and others v. Italy, no 27765/09, 23 February 2012.
Convention Relating to the Status of Refugees, adopted in Geneva on 28 July 1951, UNTS, vol. 189.