18 February 2026
On November 11th 2025, after a month of delay, the European Commission launched the first Annual Migration and Asylum Report which included the adoption of an implementation report and a proposal for a novel “Solidarity Pool”.
The report found a 35% decrease in illegal border crossings in comparison with the previous period of assessment (2023-2024). It further details the relevant statistics in relation to a number of EU Member States, highlighting the response of Poland, Latvia and Lithuania to the “instrumentalization of migration” by Belarus/Russia and their reinforcement of border security. The report does, however, acknowledge the challenge in respecting fundamental rights at the border in the context of “hybrid threats”.
In relation to reception conditions, the report noted an overall occupancy rate in the national reception systems in the Union as 81% at the end of June 2025, although the collection of data on persons with different legal statuses (temporary protection, those subject to a return decision) or those housed outside of reception facilities are not consistently included in reporting.
As to returns, the Commission emphasises a low overall return rate, leading a “backlog of persons”, despite the finding that return rates had increased by 20% from the past year. The Commission restated its priority on the advancement of the proposed Return Regulation, discussed below.
The report included updates on the National Implementation plans for the New Pact on Migration and Asylum, emphasising cooperation and joint monitoring of the Pact implementation in the upcoming years. The Meijers Committee comment on the Dutch National Implementation plan may be accessed here.
It also summarised the current progress of the implementation of the Eurodac system which is due to be fully operation in June 2026, and heavily emphasised the digitalisation of screening and reception procedures.
In reference to the efficiency of asylum procedures, the Commission placed importance on the clearing of backlogs, in order to avoid two parallel systems in line with the old and new migration and asylum acquis. Reference was also made to the instrumentalization of migration and the ability to restrict the right to asylum and related guarantees while meeting objectives of general interest recognised by the Union.
The “Solidarity Pool”, established subsequent to a Commission implementing decision via a proposal for a Council Implementing act covers solidarity contributions including relocation, financial contributions and alternative solidarity measures (e.g. material or technical assistance). Member States determined to be under migratory pressure will access the pool and will not need to meet their pledged solidarity contributions, excluding the situation of pressure which arises from systemic shortcomings of that same Member States. It determined that Greece and Cyprus are under migratory pressure, in addition to Italy and Spain as a result of recurring disembarkations following search and rescue missions, as such they were granted access to the Solidarity Pool, should it enter into application. Twelve further Member States at risk of migratory pressure were granted priority access to the Permanent EU Migration Support Toolbox.
The report also marked the start of the first Annual Migration Management Cycle and was succeeded by the first European Asylum and Migration Management Strategy (discussed below).
On 18th December 2025, the Council of Ministers and the European Parliament reached agreement on the revision of the safe third country concept included in the Asylum Procedure Regulation. These revisions include the so-called “20% rule” which entails that where an applicant holds the nationality of a country which receives 20% or less positive decisions for international protection according to Eurostat data, their procedure may be accelerated, the compulsory localisation of applicants at the border and the declaration of the application as manifestly unfounded. The agreement also concerned the approval of the “safe third country concept”, whereby applications for asylum can be declared inadmissible if 1) a prior connection to a safe third country can be established, such as familial, linguistic and cultural links 2) if the applicant has transited through a third country where they could have requested protection and 3) if there is an agreement in place between the Member State and the third country to process asylum requests. An appeal lodged against an inadmissibility decision does not lead to an automatic right to remain in the Member State until the appeal is resolved.
The agreement exempted unaccompanied minors from the application of safe third country rules on the basis of agreements and arrangements with third countries.
The agreement also concretised the EU wide “safe countries of origin list” which includes Bangladesh, Colombia, Egypt, Kosovo, India, Morocco and Tunisia, in addition to EU accession candidate countries. Those holding nationalities of these countries will be presumed not to qualify for protection and will be channelled through an accelerated asylum procedure.
These revisions have been recently adopted by the European Parliament.
For further information on revised Asylum Procedures Regulation, please consult the Meijers Committee’s earlier comment.
The Council for Ministers reached agreement on the Proposed Regulation establishing a common system for the return of third-country national staying illegally in the European Union in early December 2025.
In recital (12b), the Council included that in the event of revocation or annulment of the period of voluntary departure subsequent to a challenge brought by the applicant concerned, the obligation to leave the territory under the return decision should be annulled. This is in direct contrast to the European Court of Justice’s reasoning in Al Hoceima (find summary here), whereby it found that the voluntary period of departure is an integral part of the return decision and as such an issue therewith may lead to the annulment of the entire return decision.
Generally, the compromise text removes to a large extent references towards the movement of illegally staying third country nationals across internal borders, concentrating focus on the fostering of effective returns to third countries.
In relation to the countries of return, the Council added that the return decision need not state the country of return and that it may be determined only prior to removal. This is coupled with the allowance that return decisions need not disclose any classified information in accordance with Art 7 (3) of the proposed text. Moreover, it included that deficiencies in relation to specific parts of the return territory or to an identifiable category of persons should not prevent return agreements and arrangements, in contrast to the Court’s reasoning on the prior Return Directive in Alace and Canpelli (see full summary here).
The severity of measures to be taken when third-country nationals pose security risks has sharply increased. The compromise text allows for entry bans of an indefinite duration and detention in prison without separation from ordinary prisoners.
In relation to the principle of non-refoulement, the burden of proof for establishing such a risk falls to the third-country nationals, who must substantiate their claim and demonstrate that they do not raise this claim with the intent of “frustrating the process” of removal. Moreover, risk of refoulement does not preclude the issuing of a return decision, it only need state that removal should be postponed.
This overview represents only a small number of the significant edits made in the compromise text by the Council of Ministers and for a background to the legislative file, one may consult the Meijers Committee’s earlier comment.
The European Commission’s proposal for EU funding to support asylum, migration and integration measures as part of the EU’s next multiannual financial framework amounting to 81 billion euros received its first Draft Opinion from the European Parliament Development Committee. The Committee amended Recital 11 of the Proposed Regulation to emphasise consistency between internal and external policies, including development assistance and introducing conditions for external assistance and support, thus “increasing leverage”. It added to Recital 16, that Union support should be withdrawn from third countries with agreements with the Union on the criteria and mechanisms for establishing the State responsible for applications of international protection whereby the fulfilment of the agreement is jeopardised by the third country. Generally, the DEVE Committee’s Opinion was heavily focussed on the maximisation of synergies and development of partnerships with countries of origin, to ensure a coherent whole-of-route strategy. Moreover, it introduced the caveat that whereby shortcomings are identified in a partner country in its obligation to readmit its own nationals, or whereby migrants are utilised as a hybrid threat, the Commission shall suspend payments or other forms of developing cooperation with that country.
On 29th January 2026, the European Commission released its first European Asylum and Migration Management Strategy which revolves around five objectives:
The Conference of Ministers of Justice of the Council of Europe issued a joint statement, continuing the dialogue initiated by the letter of the nine States on May 22nd 2025 (see earlier comment here). The statement emphasizes the complex and disruptive challenges faced by their respective societies which were unforeseen at the time of the drafting of the European Convention on Human Rights. Emphasis was placed on the need to protect their respective democracies from being exploited by those third country nationals convicted of serious crimes, networks involved in the trafficking of human beings and those responsible for the instrumentalization of migrants.
The statement listed several challenges which the Convention needs to better address including the following:
The means by which the Convention can accommodate for the above challenges were also indicated in the statement and include an emphasis on the margin of appreciation afforded to States which hold primary responsibility for the safeguarding of the Convention, the principle of shared responsibility and ensuring that the European Court of Human Rights does not become a tribunal of “fourth instance” and an enhanced focus on the principle of proportionality in relation to the protection of national security. The “living instrument
doctrine” was also included as a means by which the Convention can take appropriate account of recent factual and legal developments. Finally, the statement referenced the concept of “democracy capable of defending itself” which involves safeguarding against the exploitation of the Convention framework by foreign regimes and individuals with ulterior motives.
A further statement on migration is expected at the Foreign Minister’s meeting on 15th May 2026 in Chișinău Moldova (see more below).
The Steering Committee for Human Rights (CDDH) was instructed “to prepare elements for a political declaration reaffirming the obligation to ensure the effective enjoyment of the rights and freedoms guaranteed by the European Convention on Human Rights to everyone within the jurisdiction of member States in the context of the contemporary challenges posed both by irregular migration and by the situation of foreigners convicted of serious offences, taking duly into account in particular governments’ fundamental responsibility to ensure national security and public safety”- ahead of the Foreign Minister’s meeting on 15th May 2026. A number of the concerns addressed are summarised below:
In relation to the margin of appreciation, highlighted by the State Parties in their above Joint Statement, the CDDH emphasised that whereby the national court has carefully examined the facts, applied the relevant standards and adequately balanced the interests at stake, the Court would need compelling reasons to substitute its own view with that of the domestic courts. As to the principle of subsidiarity, the CDDH points to the various paths of influence for State Parties in the operation of the Convention, including their submissions before the Court and their contributions to the broader framework of the Council of Europe, in recommendations, declarations and other instruments.
Referring to the State parties concern about the difficulties faced from expulsing individuals convicted of serious crimes from their territories, the CDDH notes that to avoid national courts misinterpreting the Court’s reasoning on Art 3 and 8 ECHR, the State may produce detailed national measures on how these rights apply in the context of expulsion and extraditions in their national legal system.
As to the conviction that Art 3 ECHR on inhuman and degrading treatment must only be applied in the most severe forms of ill-treatment, the CDDH refers to relevant Court case law which confirms that in cases of expulsion/extradition and detention, a high minimum level of severity must be met to fall within the scope of Art 3 ECHR. It also points to the hesitance of the Court in finding a removal from the territory of a State to be contrary to Art 3 ECHR, in line with the reasoning that Contracting States may not be required to impose Convention standards on other States. In general, the CDDH’s finding on the Court’s jurisprudence indicate that in the field of migration- namely relating to expulsion, extradition and detention of third country nationals- a violation of Art 3 ECHR has been very rarely found. It recommended that further guidance on when the conditions in a non-State Party may amount to a violation of Convention rights may be warranted for the clarity of national courts.
In relation to Art 8 ECHR, the CDDH once again noted that the Court’s approach does not suggest that it regularly substitutes its own assessment with that of the national court, except where the Court has shown strong reasons to do so. It recommended that judgements which grant lesser weight to the prevention of crime and protection of public safety should be fully and clearly explained.
Discussing instances of mass-arrival of third country nationals, the CDDH referenced the concept of a “democracy capable of defending itself” which is linked to Art 17 ECHR which covers abuse of rights. It noted that State parties request acknowledgement of the concept of “instrumentalization of migration” by the Council of Europe in line with the European Union’s response. However, its suggestion for the declaration includes acknowledgement that migrants utilised as a hybrid threat must retain their rights under the Convention and other European and International law.
Recommendations offered by the CDDH acknowledged that the Court interprets the Convention in a careful and balanced way, whilst encouraging clarity and consistency in the Court’s jurisprudence. Moreover, it distributed the onus of taking context into account, both to the Court in its interpretation, and to domestic courts in applying the principles of the Court’s judgements to the case at hand. Finally, it stressed the enhancement of communication and dialogue between Convention actors; which involves (non-exhaustively), the promotion of the correct application of the Convention standards by national authorities, increased submission by States as respondents or third parties to the Court, referrals by the highest courts and tribunals for advisory opinions by the Court.
The question referred for preliminary ruling inquired as to whether a person who had
benefitted from the right of derived residence under Directive 2004/38/EC (The Citizens Directive) and who had subsequently naturalised, could still be investigated for fraud or an abuse of rights under the Citizens Directive, in spite of the fact that their residence is no longer reliant on that instrument. Article 35 of the Citizens Directive enables Member States to adopt necessary measures to refuse, terminate or withdraw any right conferred under the Directive in instances of an abuse of rights or fraud. In essence, since the person in question has naturalised and is no longer a “beneficiary” under the Citizens Directive, can they still be investigated and an abuse of rights/fraud, within the scope of Art 35 of the Citizens Directive. The determination of fraud/an abuse of rights would not have any immediate legal effects; however the decision would be taken into account within the future re-assessment of the individual’s Irish citizenship status, however, no such constitutional process currently exists to launch such an investigation.
Advocate General Norkus held that the individual’s non-classification as a beneficiary, did not bar such an investigation from falling within the scope of Art 35 Citizens Directive. Norkus put forth that the directive contains provisions which are not conditional in their application on the person concerned having the status of beneficiary at that time. Norkus determined that the scope ratione temporis, through literal, contextual and teleological interpretation of Art 35 Citizens Directive, that its application was not limited to those currently holding the status of beneficiary. Horkus interpreted the Court’s reasoning in Chenchooliah– that insofar as an individual remains a beneficiary under the Citizens Directive, their rights may only be limited in accordance with Articles 27 and 35- as not linking beneficiary status to the application of Art 35 Citizens Directive exclusively.
In response to the objections of the German Government (in favour of the applicant), which contended that the matter falls within national procedural autonomy, Horkus held that improper of fraudulent use of the EU legal system must be examined within the framework of that same system. Horkus linked this argument to the fact that EU law provided for the acquisition of the rights under the Citizens Directive in the first place, and subsequent review under national law would undermine the principle of legal certainty and the effectiveness of EU law. Whilst Art 35 Citizens Directive speaks of “refusal, withdrawal and termination” of rights, Horkus held that investigation/identification of an abuse of rights fall within the “necessary measures” which enable subsequent action. The lack of EU law on sanctions to combat abuse and fraud, means that their determination falls within the scope of national law insofar as they are effective, non-discriminatory and proportionate.
The preliminary reference concerned the interpretation of Art 15 (1) of Directive 2013/33/EU on Asylum Reception Conditions, in light of a circumstance which arose whereby an applicant was refused access to the labour market due to the delay in adopting a decision on his application for international protection being attributable to the applicant. Whilst in the process of submitting his international protection questionnaire, which was extended on four occasions, the Georgian national applied for access to the labour market. Art 15 (1) of Directive 2013/33 ensures that applicants must have access to the labour market no later than 9 months after the application has been lodged, if a first instance decision has not been taken and that delay is not attributable to the applicant. The issue before the national (Irish) courts was that the delay appeared to be attributed in part to the applicant and Art 15 (1) provides little guidance on what “attributable” to the applicant entails.
The Court determined that where there has been a total lack of cooperation, in other words not providing any information enabling the competent authority to examine their application, for a period exceeding nine months after the lodging of application, the time period under Art 15 (1) cannot be considered to have begun. Otherwise, where a delay is partially attributable to the applicant, the delay caused by the applicant’s conduct must lead to the extension of the nine month period by the attributable delay period.
Case C-877/24 Shamsi I Opinion AG Spielmann:
The case concerns Directive 2008/115/EC (“Returns Directive:”) and instances whereby a third country national is serving a life sentence in a Member State unrelated to the illegal nature of their stay. This issue stems from the obligation under Art 6 Returns Directive and the obligation to adopt a return decision in the event of an illegal stay, and Art 8 Returns Directives which prescribes that removal should take place “as soon as possible”. As such the referring court wished for explanation of the function of Art 9 (2) Returns Directive as a mechanism for postponing the removal, in addition to the operation of the principle of proportionality in the context.
AG Spielmann stressed the necessity to reconcile the effectiveness of the Return Directive with the Member States’s competence in criminal matters. Spielmann concluded that the Returns Directive does not have the objective or effect of restricting the Member States’ competence in criminal matters to penalise offences which are unrelated to illegal entry or stay. Moreover, in relation to removal “as soon as possible” under Art 8 Returns Directive, Spielmann held that Art 9 (2) Returns Directive which provides for appropriate periods of delay in removal is non-exhaustive in nature and sufficiently flexible so as to delay the removal of a third-country national serving a sentence. However, in instances whereby the third-country national has been served an irreducible life sentence with no realistic prospect of release which is not subject to review, Spielmann held in light of the principle of proportionality, a return decision must not be adopted whereby removal is impossible in practice.
The case concerned the interpretation of Directive 2011/85/EEC (“Returns Directive”) and Directive 2013/32 (“Asylums Procedure Directive”). The issue arose that a Pakistani national whose international protection request in the Netherlands was rejected and issued a return decision, was subsequently the victim of a “fatwa” issued in Pakistan against the applicant and his family. As such, the applicant made a subsequent application for international
protection based on religious grounds as a Christian residing in Pakistan. In May 2022, subsequent to investigation involving the Minister of Foreign Affairs, the applicant’s request was rejected as manifestly unfounded and issued a return decision excluding voluntary departure and a two year entry ban. The applicant subsequently brought an action claiming that the State Secretary had infringed the rights of defence by not giving him full access to the supporting documents which led to the rejection.
The referring court had doubts as to whether the manner in which the official report was drawn up and the subsequent investigation conducted by the Minister for Foreign Affairs for the purpose of informing the State Secretary is included in the information under Art 23 (1) of Directive 2013/32 (“Asylum Procedures Directive”). If it were to be included as “information” under Art 23 (1) Asylum Procedures Directive, the national court, the applicant and his legal representation must to be granted access to it and failure to do so would jeopardise the principle of non-refoulement.
The Court confirmed that infringement of the principle of non-refoulement may result from the manner in which an investigation is conducted by a national authority. Hence, it interpreted “information” as including supporting documents including the investigation report, in order to permit the person concerned to fully exercise their rights of defence and in order for the national court to determine whether the investigation has complied with Art 30 Asylum Procedures Directive, which prohibits Member States from collecting information in certain manners. In relation to justifications for non-disclosure of information, the Court held in instances where for instance national security requires the individual not to be granted direct access, this cannot be interpreted, without infringing the right to an effective remedy, as allowing the competent authorities to leave the applicant in a situation where they and their representation would not be able to gain effective knowledge of the substance of the decisive elements contained in the file.
The case concerned the 6 month time limit under Art 29 (1) Regulation no 604/2013 (“Dublin III Regulation ”) which limits the transfer of an applicant for international protection to another Member States. The situation occurred whereby multiple transfer decisions were issued, due to the suspension of inbound transfers in the receiving Member State, and the national court was unsure whether the 6 month transfer period commenced when the final decision on the legality of the second transfer was issue, or on the date whereby the first transfer decision was annulled.
The Court noted that the transfer time limit pursues the objective of rapidly processing applications for international protection, ensuring that Member States do not repeatedly remit cases to the national authorities, without making substantive decision on eligibility for international protection. The Court found that whereby a first decision has been annulled-purely due to a change or circumstances which is decisive to the correct application of that regulation- the transfer time period will begin to run from the final decision on the substantive legality of that second decision. It further stressed, that the duration of the procedure relating to the transfer of the applicant must be necessary in light of its objectives.
The appeal concerned a judgement by the General Court which addressed the claims of a Syrian National that after reaching Greek territory in order to seek asylum, he was intercepted by local police and sent back out to sea where he was apprehended by the Turkish Coast
Guard and relocated to the Turkish territory. The appellant claims that a private surveillance aeroplane equipped with a camera and operated by Frontex flew over his time at sea (being returned from Greece to Turkey). The appellant brought an action for damages under Art 268 and 340 TFEU seeking compensation for damages suffered due to the unlawful conduct of Frontex in the context of its operations in the Aegean Sea during the above described incident (“April 2020 incident”) before the General Court. The General Court found the action to be manifestly lacking any foundation in law, due to a lack of evidence including a lack of demonstration of actual damage.
The appellant relied on a single ground of appeal, alleging infringements of the principles governing the burden of proof in disregard of the fundamental rights guaranteed under the ECHR and the Charter.
The Court recalled that Frontex is fully responsible and accountable for any decision it takes and for any activity for which it is solely responsible under Regulation 2019/1896 (Frontex Regulation). Art 97 (4) Frontex Regulation gives concrete expression to Art 340 TFEU which gives rise to non-contractual liability of the European Union. The Court acknowledged that the burden of proof generally lies with the applicant of damages, however, it stressed that the EU judicature must guarantee effective judicial protection of individuals. As such non-contractual liability, may not lead to an imposition on a party of a burden of proof which is excessive, if not impossible to discharge to to calling into question the principle of equality of arms. Therefore, if in light of the circumstances at hand, the burden of proof becomes excessively difficult/impossible to discharge, the rules must be adapted.
The Court indicated the powers which the General Court possesses under the Rules of Procedure to ensure that cases are prepared, procedures carried out and disputes resolved under the best possible conditions. It may for instance require the parties to produce all documents and supply all information which it considers necessary. Hence, the General Court may make use of this power to ensure that the burden of proof and taking of evidence do not endanger the effective judicial protection of an applicant, by supplementing the information in the case before it. Thereby, it may not simply dismiss claims on the ground of insufficient evidence where it has the power to supplement that information.
In relation to the case at hand, the Court noted that pushback operations are characterised by the significant vulnerability of the persons involved and by the absence of identification and individualised treatment of those persons by the authorities. As such, evidence is extremely difficult for these persons to prove, particularly as their phones may have been confiscated. The Court noted that given Frontex’s tasks in monitoring and collecting operational data and assisting authorities of the Member States in addition to ensuring the EU acquis on fundamental rights at the external borders, it is likely to possess information that is relevant for the purpose of proving the existence of pushbacks. This is particularly true of the incident which took place whilst Frontex’s operations in the Aegean Sea were ongoing.
Referencing the corresponding caselaw of the ECtHR, the Court concluded that where persons claim to have been victims of a pushback operation, they need only present prima facie evidence that that operation in which Frontex participated occurred and that they were present during it. The Court subsequently found that the General Court had erred in law as the evidence of the appellant was assessed in light of an excessively high standard of proof.
Moreover, as to whether the evidence produced constitute prima facie evidence, the Court found that the General Corut had erred in deciding that the applicant’s own witness evidence had little probative value, as it did not take account of all evidence submitted in the specific case. The Court found that the inability of the victim to remember exact dates or identify other victims of that operation/provide their witness evidence does not dismiss the probative value of the person’s own witness evidence. The probative value of evidenced depended solely on whether the account of the witness was detailed, specific, consistent and credible. The Court concluded that the applicant had relied on consistent evidence which was sufficient to provide prima facie evidence.
The Court further found that the General Court had erred in law by failing to take further steps to investigate the case before it prior to ruling on it. It held that where an applicant provides prima facie evidence that they have been a victim to a pushback and complains of Frontex’s involvement, the General Court is required to take further steps in the proceedings and investigate the case in order to assess the truth of that circumstance. If the prima facie evidence is not rebutted, the circumstance must be deemed to have been proved. The Court referenced the appellant’s multiple requests for information held by Frontex, and held that the General Court could not without erring in law, reject the appellant’s request for measures of organisation of procedure or measures of inquiry.
The Court upheld the ground of appeal and referred the case by to the General Court. For further background to the liability of Frontex and its accountability to those adversely affected in return operations, please consult the Meijers Committee’s earlier comment here.
The appeal concerned the rejection by the General Court of a number of applicants claim for compensation for the damage allegedly suffered by them due to Frontex’s failure to comply with its obligations under EU law.
The applicants arrived in Greece and indicates that they wished to lodge an application for international protection prior to their subjection to a joint return operation coordinated by Frontex whereby they were transferred to Turkey.
The General Court found issue with the lack of causal link between the conduct of Frontex and the alleged damages resulting from the removal operation. The applicants brought forth four grounds of appeal, the first three relating to errors of law in the establishment of a causal link and the final appeal concerning an error law in the admissibility of evidence.
The first issue of substance considered by the Court concerned the existence of the obligation imposed on Frontex to ensure that any person included in a return operation is subject to a written return decision. The Court found that Regulation 2016/1624 on Frontex does impose on the agency in the context of coordination of joint return operations, a requirement to verify that return decisions exist for all persons involved, in light of their fundamental rights and particularly, the principle of non-refoulement. As such the General Court had erred in finding that Frontex was not under such an obligation to verify the existence of a return decision, without encroaching on the exclusive competence of the Member States by examining the decision on the merits. However, the existence of the obligation does not necessarily satisfy the “causal link” criteria for damages, and the determination of that matter was for the General Court.
The second ground of appeal included the challenge of the General Court which deemed that liability for infringement of fundamental rights due to the return operation lay solely with the Hellenic Republic. The Court held that the Frontex Regulation does not exclude any and all liability on the part of Frontex in the context of a return operation. In accordance with Art 60 (3) Frontex Regulation, Frontex assumes non-contractual liability for the damage caused by the department or by its staff in the performance of their duties. The Court referred to Frontex’s role in the protection and monitoring of respect for fundamental rights. As such, it cannot be excluded a priori that breach of those obligations in the context of return operations may lead to detriment on behalf of the persons removed. Therefore, the wrongful actions oromissions of Frontex and its subordinates may have a causal link with the occurrence of infringements of fundamental rights.
The third ground of appeal concerned material and non-material damage and their attribution to the own choices of the applicants and not the conduct alleged against Frontex, failing to establish a causal link. The Court emphasised the necessity to examine this causal chain in concreto, taking into account all the relevant circumstances characterising the situation of the adversely effected person. It notes that asylum seekers are particularly vulnerable persons, faced with exceptional circumstances and unforeseeable risks. Therefore, in exceptional circumstances, the causal link may remain intact despite the action of the adversely affected individual, where that action may be regarded as a reasonable response having regard to allthe circumstances characterising that situation. This situation may convincingly arise whereby asylum seekers flee from a country whereby there is a concrete risk of a breach of the principle of non-refoulement. As such the General Court erred in law in its assessment.
An additional damage in the claim concerned the costs of legal assistance in the complaints lodged against Frontex via the complaints mechanism established in Art 72 Frontex Regulation. The General Court considered that representation in the pre-litigation procedure is not mandatory and as such cannot be attributed to the conduct of an institution or body concerned. The Court reasoned that the “freedom to choose” reasoning drawn from its jurisprudence on the EU ombudsman was contextual and did not necessarily constitute a fundamental understanding of administrative complaints or alternative methods of dispute settlement. The Court indicated that the complaints mechanism only applies to those directly affected by staff in the context of a return decision, that are in a particularly vulnerable situation and that they do not necessarily benefit from the safeguards associated with the right to an effective remedy. Moreover, the complaints mechanism is not a precondition for the exercise of a judicial remedy. As such, the Court held that the finding of a procedure to be “non-mandatory” does not mean that there is no causal link between the costs of such representation and any conduct on the part of the institution concerned.
In relation to the final ground of appeal on the admissibility of evidence, particularly thatsubmitted in rebuttal of the opposing party in its defence in accordance with Art 85 (2) of the Rules of Procedure of the General Court. The Court held in this regard that the late submission of evidence had not met the justification necessary under the Rules of Procedure and as such the General Court had not erred in this regard.
The case was referred back to the General Court. For further background to the liability of Frontex and its accountability to those adversely affected in return operations, please consult the Meijers Committee’s earlier comment here.
The preliminary reference before the Court concerned the interpretation of Directive 2013/33/EU on Asylum Reception Conditions. The issue arose in the context of an applicant for international protection accompanied by his minor child whose material reception conditions were withdrawn due to his refusal to be transferred to a different accommodation centre than the one in which they were located. The withdrawal was based on national legislation which transposed Art 20 of the Asylum Reception Conditions Directive, which enables the reduction or withdrawal of material conditions in instances of abuse. In particular, material conditions may be withdraw if the applicant abandons the place of residence determined by the competent authority without informing it or requesting its permission.
The Court found than an applicant for international protection who resides in an accommodation centre and who refuses to be transferred to an alternative centre cannot be regarded as an applicant who abandons the determined place of residence. The Court indicated that the applicant was present in the initially determined centre and available to the authorities for further progress on his application for international protection and as such has not“disappeared” in the sense of the second paragraph of Art 20 (1) Asylum Reception Conditions Directive. The Court emphasised that the instances for withdrawal under Art 20 are exhaustive and should not be extended by Member States.
The Court did propose in the alternative, that a sanction could be adopted on the basis of Art 20 (4) Asylum Reception Conditions Directive due to the applicants breach of the rules applicable to the first accommodation centre since that housing facility is no longer allocated to that applicant and in accordance with the rules, he may no longer reside there. However, the Court emphasised the need to consider all the circumstances of the case including the duration of the unlawful stay, persistent nature, the measures taken by the competent authorities and the adverse consequences derived from the unlawful stay. The sanction, however, cannot consist of the withdrawal even temporary in nature of the full material reception conditions, as this would be inconsistent with the proportionality requirements under Art 20 (5) Asylum Reception Conditions Directive. Moreover, in a situation such as that in the case, whereby a vulnerable person- a minor child- is involved, the Member State must take particular account of the best interest of the child in relation to the proportionality of the measures.
The case concerned six applicants with Ukrainian nationality or permanent residence who benefitted from temporary protection in Sweden and the refusal of their applications for international protection. The first and second questions referred by the national courtconcerned the interpretation of Directive 2001/55 on Temporary Protection read in light of Directive 2011/95 (Asylum Qualification Directive) and Directive 2013/32 (Asylum Procedures Directive) and whether Member States are authorised to reject an application for international protection seeking to obtain subsidiary protection status, on the sole ground that the applicant already enjoys temporary protection under the Temporary Protection Directive.
The Court found that it was apparent from the articles of the Temporary Protection Directive that protection other than asylum may be granted to persons enjoying temporary protection.
Moreover the absence of reference to subsidiary protection in that regard was due to itsadoption prior to Directive 2004/83 which established subsidiary protection status and its lack of subsequent amendment. The Court stressed that the objective of the Temporary Protection Directive was to ensure that third-country nationals and stateless persons granted temporary protection would have an opportunity to obtain international protection subsequent to appropriate individual assessment, whilst still providing immediate protection on a lesser scale.
In relation to the Asylum Qualification Directive, the Court noted that should an applicant qualify for one of the statuses- refugee or person eligible for subsidiary protection- under the conditions for international protection, the Member State must grant that status. Moreover, the Asylum Qualification Directive does not prevent a person with temporary protection from being granted subsidiary protection and that declaring an application inadmissible under the Asylum Procedures Directive must comply with the exhaustive list of situations laid down therein (which does not include the enjoyment of temporary protection).
Therefore, the Court concluded that a Member State may not reject as inadmissible an application for international protection on the sole ground that the applicant enjoys temporary protection and that the application must examine the qualification for refugee status/subsidiary protection before declaring the application unfounded as the enjoyment of temporary protection has no bearing in that regard.
The case concerned a same-sex couple and their request to have their marriage certificate issued in Germany in the Polish civil register. The questions referred for a preliminary ruling concerned the interpretation of Art 20 and 21 TFEU in addition to provisions of the EU Citizenship Directive. The Court, however, found that only Art 20 and 21 TFEU were relevant to the dispute at hand as the issue did not concern the conditions of entry and residence of a Member State other than that of nationality.
The individuals involved possessed dual Polish and German nationality and Polish nationality respectively. The request for registration of their marriage certificate was denied due to the unlawfulness of including a same-sex couple in the civil register.
The domestic court hearing the action against the decision considered that an introduction of such a marriage certificate to the civil registry is not provided for by the Polish Constitution or by other national family and guardianship law.
The Court built on its previous judgments, namely Coman;Pancharevo, to emphasise that Art 21 (1) TFEU ensures the enjoyment of Union citizens to lead a normal family life both in the host Member State and in their country of nationality where they return. The Court acknowledged that as EU law currently stands, the rules on marriage come within the competence of the Member States and EU law cannot detract from that competence, and as such marriage between same-sex couples may be disallowed under national law.
However, the Court found that whereby a marriage is not recognised in the Member State of origin, this creates a genuine risk that those citizens will face serious obstacles in regulating their family life upon their return to that Member State as it renders then unable to rely on their marital status in the many aspects of everyday life.
The Court noted that the free movement of persons, and corresponding fundamental freedoms may be restricted in so far as the measure pursues a legitimate objective, necessary and proportionate. Although such a public policy for a derogation from a fundamental freedom must be interpreted strictly and may only relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society. In this regard, the Court acknowledge the argument that the transcription of the marriage certificate would be contrary to the fundamental principles enshrined in the Polish legal order and as such calls into question Art 4 (2) TEU and the national identity of Member States.
However, the Court reasoned that the obligation to recognise a marriage concluded between Union citizens of the same sex in the host Member State in order to realise their freedom to move and reside does not undermine the institution of marriage in the Member Sate of origin, as it does not require the Member State to adjust the national law on marriage between persons of the same sex concluded on their territory.
Moreover, the Court reasoned that the failure to recognise the marriage concluded by the two Union citizens is also contrary to Art 7 of the Charter of Fundamental Rights of the European (‘the Charter’) on the right to private and family life. The Member States are free to establish the procedure for the registration of such marriage certifications, insofar as they do not render the enjoyment of EU rights impossible of excessively difficult. The Court also indicated an issue with Art 21 (1) of the Charter and the prohibition of discrimination, due to the absence of recognition equivalent to that granted to heterosexual couples as discrimination based on sexual orientation.
The case before the ECtHR concerned the removal of migrants from Serbia to Bulgaria, subsequent to their expressed intention to seek asylum in Serbia in 2017.
Firstly, the applicants alleged a violation of Art 4 of Protocol no. 4 of the Convention which prohibits the collective expulsion of aliens. The Court found that the Serbian Constitutional Court had previously ruled that the domestic authorities had expelled the applicants without a proper examination of their removal on an individual basis and finding no disagreement with that assessment, concluded that there had been a violation of Art 4 of Protocol; 4 of the Convention.
The applicants subsequently alleged a violation of Art 3 of the Convention in the substantive limb due to the inhuman and degrading treatment experienced owing to the conditions of their detention and conditions of transport. The applicants alleged overcrowding and unsanitary conditions, including temperatures between -2 degrees and 6 degrees, lack of furnishings and urine and faeces on the surfaces of the basement room in the Gradina Police Station. The Government did not contest these allegations but offered mitigating factors including: the significant influx of irregular migrants; the State’s limited financial resources; the brief detention and the provision of basic assistance. The Court reiterated that given the absolute character of Art 3 ECHR, an increasing influx of migrants cannot absolve a State of its obligations, adding, however, that a situation of extreme difficulty faced by authorities may still weigh in the assessment of a violation of Art 3 ECHR. The Court found in this case that the Government’s allegation of a heightened influx of migrants was unevidenced, that the financial difficulties did not relieve them of their obligation to respect the dignity of detainees and that the short duration of detention does not preclude the finding of a violation of Art 3 ECHR. The Court found that the allegation of a lack of toilet facilities, lack of light and fresh air was unsubstantiated on the part of the applicants. The Court found, referring to the duration and impact of the applicants’ exposure to those conditions did not reach the threshold of severity to engage and find a violation of Art 3 ECHR. Subsequent claims relating to their detention at the Misdemeanour Court and the conditions of their transport were found to be manifestly ill-founded.
In relation to the applicants’ removal from Serbia, the Court noted that the Serbian Constitutional Court had found that the removal of the applicants to a forest on a night with freezing temperatures amounted to inhuman treatment. Due to insufficient redress at a national level, the applicants still retained victim status and as such the Court found that there had been a violation of Art 3 ECHR.
As to a violation of Art 3 ECHR in the procedural limb, the applicants complained that they had been expelled to Bulgaria without any assessment of the consequences of their removal contrary to the principle of non-refoulement. The Court indicated that the applicants’ removal was not based on any assessment of access to an asylum procedure in Bulgaria and of the
adequacy of that procedure. Due to their “clandestine” removal, the applicants were not given any opportunity to substantiate their claims that the conditions for asylum application in Bulgaria were unsuitable. The authorities failed to carry out on their own account a current
assessment of the accessibility and functioning of the receiving country’s asylum system and the safeguards it afforded in practice. As such, the Court found a violation of Art 3 ECHR in the procedural limb.
Finally, the applicants alleged violations of Art 5 paragraphs 1 and 2 due to their unlawful and arbitrary detention, failure to be informed promptly in a language which they understood of their reasons for arrests and charges and inability to challenge the detention before a judicial body. The Court found that the detention of the applicants subsequent to the conclusion of the misdemeanour proceedings was arbitrary and unlawful as there was no basis in national law for their continued detention. As such a violation of Art 5 para 1 ECHR was found by the Court. However, the evidence of a failure to promptly inform in a comprehensible language was found to be lacking. The Court found a violation of Art 5 para 4 ECHR due to the authorities’ failure to provide the applicants with legal assistance which would enable to challenge the lawfulness of their detention.
