Introduction: refugee protection backsliding and the rule of law
The shared values of fundamental rights, democracy and the rule of law are understood as the bedrock of European societies. Yet recent years have seen the EU plagued by populism, exclusionary nationalist discourses, racism and xenophobia.Footnote 1 This has been linked with challenges to the rule of law in some member states,Footnote 2 leading to what has been referred to as ‘rule of law backsliding’. Building on Jan-Werner Müller’s analysis of constitutional capture,Footnote 3 Laurent Pech and Kim-Lane Scheppele have defined rule of law backsliding as:
the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party.Footnote 4
However, the term ‘rule of law backsliding or crisis’ is also employed more loosely in scholarly analysis and policy documents to refer to systemic breaches relating to judicial independence, harassment of civil society organisations and educational institutions, and violations of the freedom of expression.Footnote 5 I sometimes examine rule of law deficiencies in this broader sense in my analysis, while differentiating them from the constitutional capture referred to by Pech and Scheppele.
Asylum provision and refugee protection are other urgent challenges facing the EU. Crisis vocabulary has dominated public discourse on asylum in both the EU and its member states since 2015.Footnote 6 The spike in arrivals of individuals seeking asylum in the EU has highlighted the limitations inherent in the legal design and implementation modes of EU asylum policy, most notably a structural solidarity deficit.Footnote 7 Three main problems have emerged. First, a persistent implementation gap has eroded mutual trust between member states.Footnote 8 By implementation gap, I refer to the disjunction between ‘the law on paper’, i.e. to the asylum-related obligations that member states have undertaken according to EU law, and their realisation in practice. Second, fundamental rights violations in some member states have been characterised as systemicFootnote 9 or reaching the level of a humanitarian emergency.Footnote 10 These two problems relate to the internal dimension of the EU asylum policy. Third, protection obligations have often been deflected, with the EU institutionalising containment and externalisation in its relations with third states.Footnote 11 This problem relates to the external dimension of the EU asylum policy. All these problems long preceded the influx of asylum seekers in 2015.Footnote 12 However, the extent, shifting nature, and increasing intensity of these problems in recent years is such that one can speak of ‘refugee protection backsliding’.
In this analysis, I focus exclusively on the internal dimension of the EU’s asylum policy, and examine the first two problems under a rule of law lens. Namely, to what extent can the implementation gap and (systemic) fundamental rights violations be considered one of the many ‘faces’ of rule of law backsliding? The typical approach in the asylum field is to analyse failings in relation to fundamental rights.Footnote 13 Why then also examine the two crucial problems pertaining to the internal dimension of EU asylum policy, i.e. (systemic) fundamental rights violations and an implementation gap, using the rule of law lens? One reason is to ascertain whether these two problems are connected to broader weaknesses in the rule of law at the national level which are linked to weak institutional capacities or insufficient resources at the administrative or judicial levels. These types of systemic deficiencies linked with capacities and resourcesFootnote 14 call primarily for policy-specific responses (capacity boosting, funding) and a redesign of the responsibility-sharing component of the asylum policy, rather than enforcement responses. A second reason is to ascertain to what extent (systemic) fundamental rights violations or an implementation gap are connected to the ‘backsliding’ processes of grave constitutional capture described by Pech and Scheppele. These failings call for different responses, most notably streamlining the examination of these violations in the existing rule of law enforcement machinery. As a symptom of the broader phenomenon of backsliding they should not be viewed as ‘mere’ policy-specific issues.
To answer this question, I first provide some indicia of the scope of the concept of the rule of law under EU law, focusing in particular on its relationship with fundamental rights: to what extent are the two co-constitutive, to what extent are they distinct, and why does this matter? I draw from political theory, legal philosophy and EU-level legal and policy texts. I then ascertain the extent to which the implementation gap and (systemic) fundamental rights violations can be understood as rule of law challenges. I draw from existing practice at national and EU levels as evidenced in legislation, case law, field research available through secondary sources, and scholarly analysis. I conclude with some thoughts on adequate responses at both EU and national levels for upholding the rule of law and fundamental rights. While the present article does not examine EU and member state externalisation practices under a rule of law lens, this is another important field of (future) study.Footnote 15
The rule of law and fundamental rights: co-constitutive or distinct, and why does it matter?
The rule of law is widely recognised as a staple of constitutional democracy.Footnote 16 Nonetheless, its precise scope remains elusive. In the next sections I explore the scope of the rule of law as a founding EU value, and the practical and legal significance of its relationship with fundamental rights.
The rule of law in the EU: some indicia of its scope
Arguably, the ‘high degree of consensus on the virtues of the rule of law is possible only because of dissensus as to its meaning’.Footnote 17 At a minimum, it means that ‘government officials and citizens are bound by and abide by the law’.Footnote 18 This entails the existence of a system of laws that are set forth in advance, stated in general terms, generally known and understood and applied equally to everyone, whose requirements cannot be impossible to meet. It also entails mechanisms that enforce the laws.Footnote 19 Non-arbitrariness, i.e. the protection of the citizen from those in authority from exercising wide, arbitrary, or discretionary powers through posing effective controls has been considered as rule of law’s core function.Footnote 20
Beyond this core, different conceptualisations of the rule of law can be distinguished into ‘thin’ or formal conceptions and ‘thick’ or substantive conceptions.Footnote 21 Broadly speaking, a thin conception stresses ‘the formal or instrumental aspects of rule of law – those features that any legal system allegedly must possess to function effectively as a system of laws, regardless of whether the legal system is part of a democratic or non-democratic society, capitalist, liberal etc’.Footnote 22 By contrast, thick conceptions additionally incorporate elements of political morality such as particular economic arrangements, forms of government or conceptions of fundamental rights.Footnote 23 Authors have challenged this theoretical divide, even beyond the EU law framework. For example, Foran has argued that the rule of law cannot be portrayed as content-neutral; even apparently formal conceptions necessarily affect the protection of certain fundamental rights grounded in the foundations of the legal system.Footnote 24
EU law delivers the rule of law with the status of a foundational EU value.Footnote 25 According to a prevalent understanding, the use of the term ‘value’ in Article 2 TEU, while unfortunate, should not be interpreted as meaning something other than a ‘legal principle’ which is capable of creating a legal rule through judicial adjudication.Footnote 26 This understanding and the European Court of Justice’s position on the content of the EU’s values more broadly have been critiqued from a philosophy of law perspective. Specifically, Williams critiqued the European Court of Justice as abstaining from any sophisticated value-definition and instead promoting a theory of interpretation at the expense of a theory of justice, leaving EU values ill-defined, contingent, and frequently incoherent.Footnote 27
The designation of the rule of law as a ‘common’ value links it to the constitutional principles of the member states, and underscores the concept of a common European identity.Footnote 28 However, for East Central European states who joined the Union later, the fact that the EU acquis is non-negotiable, and that the process of Europeanisation essentially involves imitating the West, has led to a backlash and a questioning of liberal values.Footnote 29 In addition, Konstantinides has cautioned against the double standards that may ensue if member states interpret the EU’s rule of law according to their domestic understandings of this concept.Footnote 30 The EU does not merely replicate values originating from the member states but has found new roles for the rule of law which transcend its features as manifested in the member states.Footnote 31 For example, the rule of law is an EU objective,Footnote 32 helps guide the Union’s external action and foreign policy objectives,Footnote 33 and constitutes a condition for accession for candidate countries.Footnote 34 The EU’s rule of law has been incrementally articulated in the context of EU enlargement policy.Footnote 35 These standards could arguably be used to ascertain states’ continuing observance of Article 2 TEU values within the EU.Footnote 36
Furthermore, Monica Claes and Matteo Bonelli have outlined the rule of law’s importance for different aspects of the constitutionalisation of the EU: the initial transformation of the Community legal order into a ‘federal-type structure’ underpinned by the principles of direct effect and primacy; the realisation that the EU itself needs to comply with the basic, substantive rules of constitutionalism; and the respect of these principles by the member states.Footnote 37 Violeta Moreno-Lax has argued, though, that in the more recent chapters of the process of EU’s constitutionalisation, in priming ‘autonomy’ as an end in itself, the EU has reached a point of axiological vacuum which poses problems of legitimacy and is contrary to the rule of law itself.Footnote 38
Beyond these initial indicia, a deeper understanding as to the scope and content of the EU rule of law can be gained through scrutinising its interrelation with fundamental rights.
The interrelation between the rule of law and fundamental rights
According to one narrative, the Article 2 values of democracy, fundamental rights, and the rule of law are co-constitutive, akin to a three-legged stool: ‘if one is missing the whole is not fit for purpose’.Footnote 39 Pech has argued that ‘the Union rule of law is correctly understood as sharing a consubstantial, one may say organic, link with the other foundational principles’.Footnote 40 The theoretical divide between formal and substantive approaches becomes problematic here, as ‘the foundational principles are interdependent and must be construed in light of each other’.Footnote 41 In this account, the ‘rule of law crisis’ could be understood as a ‘values crisis’. Article 7 TEU seems to lend credence to this view, referring to a ‘clear risk of a serious breach’ of ‘the values’ of the EU. More recently, Jan Wouters has argued that the Commission should examine compliance with the Article 2 values in combination, and that these values should further be read together with other crucial provisions of the EU treaties, such as the core objectives laid down in Article 3 TEU.Footnote 42 The European Parliament also endorses an approach of combined examination of the EU’s values. It has advocated for the establishment of an EU Mechanism on Democracy, the Rule of Law, and Fundamental Rights covering all aspects of Article 2.Footnote 43 This mechanism would consolidate and supersede existing instruments with a more circumscribed scope, such as the Commission’s annual Rule of Law report and the Council’s Rule of Law dialogue.Footnote 44
The view that EU’s values are consubstantial and consequently that a theoretical divide between ‘thin’ and ‘thick’ approaches is problematic under EU law is not universally shared. Commentators such as Armin von Bogdandy and Michael Ioannidis have argued that by distinguishing the rule of law from respect for human dignity, freedom, democracy, and equality, the TEU seems to opt for a rather ‘thin’ understanding.Footnote 45 On the other hand, Konstantides argues that as the EU system of judicial review includes both procedural and substantive elements it is probably best described as reflecting a version of the ‘thick’ understanding of the rule of law.Footnote 46 Nonetheless, the author also explains that the thin-thick dichotomy can tell us little about rule of law realisation.Footnote 47
Without referring to the thin-thick divide, Dimitry Kochenov argues that the rule of law should be distinguished from human rights and democracy, but that it should not be conflated with ‘mere’ legality.Footnote 48 Drawing from the writings of Gianluigi Palombella,Footnote 49 he argues that the basic meaning of the rule of law as an institutional ideal is that the law – gubernaculum – should always be controlled by another kind of law – jurisdictio – which is not up to the sovereign to change at will.Footnote 50 According to Kochenov, the EU falls short of this ideal type. While the gubernaculum – the acquis – is easy to see, the EU lacks a true jurisdictio and Article 2’s ‘rule of law’ cannot have any meaning beyond a requirement to observe basic legal procedures and a set of other well-known elements of legality.Footnote 51
While not limiting the rule of law to legality, the European Commission also seems to adopt an approach which distinguishes it from fundamental rights. It describes the rule of law as containing the principles of legality, legal certainty, effective judicial protection, effective judicial review, separation of powers and equality before the law.Footnote 52 Certain fundamental rights are contained within its scope; for example, effective judicial protection is intrinsically linked with the right to an effective remedy and a fair trial.Footnote 53 Meanwhile, Council documents provide little insight into the question;Footnote 54 it is highly unlikely that a co-constitutive approach to EU values could be deduced from them.
Finally, the European Court of Justice has not pronounced directly on the matter. However, it has held that the obligation to ensure effective judicial protection (Article 19, para. 1 TEU) should be understood by reference to the right to an effective remedy and to a fair trial (Article 47 Charter) and read together with the articles on EU values (Article 2 TEU) and the principle of sincere cooperation (Article 4, para. 3 TEU) to establish a general obligation for member states to guarantee the independence of their national courts and tribunals.Footnote 55 Thus, as a minimum, the Court understands the rule of law to include respect for the principle of effective judicial protection and the right to an effective remedy.
The rule of law as an analytical lens of asylum failings
The aim of this piece is not to propose a new theoretical understanding of the EU’s conception of the rule of law. To the extent that one tries to conceptualise EU’s rule of law under a thin-thick divide, I would argue that a highly ‘thin’ conception seems untenable, however. The EU integration project is undoubtedly underpinned by at least some elements of political morality, such as preferences about specific types of economic arrangement, as illustrated by EU’s internal market acquis, and forms of government and conceptions of fundamental rights, as illustrated by its Charter on Fundamental Rights. These are bound to influence the understanding of the rule of law and its requirements, even if it, democracy, and fundamental rights are not viewed as co-constitutive. Additionally, as made clear by the European Commission and European Court of Justice case law, the rule of law encircles at least certain fundamental rights, such as the right to an effective remedy.
At the enforcement level, the approach proposed by the European Parliament and some commentators – monitoring the entire spectrum of EU values through a single process, rather than trying to distinguish breaches of the rule of law from fundamental rights failings – also has merit. Even if their scope does not fully correlate, weaknesses in one area are bound to affect the other. A streamlined reporting and monitoring process could help identify such effects, providing a full account of the situation in each member state,Footnote 56 and highlight systemic weaknesses, or grave situations of constitutional capture such as those outlined by Pech and Scheppele.Footnote 57
In the following section, I analyse two ills of the internal dimension of EU’s asylum policy, i.e.: (i) the implementation gap; and (ii) (systemic) fundamental rights violations, under a rule of law compatibility lens. On the one hand, I focus on the link between the two identified ills of the asylum policy and situations of grave constitutional capture referred to by Pech and Scheppele as ‘rule of law backsliding’.Footnote 58 On the other, I also focus on the links between these ills and the type of rule of law failings observed by von Bogdandy and Ioannidis. These authors have argued that EU norms remain suspended if ‘the institutions of a Member State are unwilling or unable to observe the rule of (domestic) law – be it due to endemic corruption, weak institutional capacities, or insufficient resources at the administrative or judicial levels’.Footnote 59 This translates to deficient rule of EU law.Footnote 60 While distinguishable from Pech and Scheppele’s ‘rule of law backsliding’,Footnote 61 these systemic deficiencies also have far-reaching implications. This analysis later forms the basis of reflection on the adequate means of enforcement and responses for two different types of rule of law failings identified here.
Refugee protection and rule of law backsliding: of inability, defiance and systemic fundamental rights violations
EU asylum policy is plagued by an implementation gap.Footnote 62 Diagnosing its roots is complex. While the fair sharing of responsibility is required by EU law, in practice its responsibility allocation system, the Dublin system,Footnote 63 allocates more responsibility to states at the Union’s external maritime borders. Footnote 64 Worse, it fails to reinforce asylum provision as a regional public good.Footnote 65 Instead, once responsibility is assigned, it is for the individual member state to provide for the refugee.Footnote 66 Refugee immobility permeates the system, hindering further redistributive efforts. EU support measures such as funding are limited. In addition, member states have different levels of economic development and conceptualisations of welfare, entailing differences in protection capacity. These factors are intertwined and lead to deficient implementation; sometimes this leads to grave violations of fundamental rights, like failure to protect from torture and inhuman or degrading treatment.Footnote 67
The implementation gap is not merely due to legal design and member states’ capacities, however. A more recent development is the non-implementation of asylum-related obligations as defiance.Footnote 68 Through this stance some member states express their disagreement with the aims of the EU’s asylum and migration policies, both through a complete refusal to implement the policies and a systemic erosion of procedural guarantees and other fundamental rights.
The next sections explore whether and how the implementation gap and fundamental rights violations link with the rule of law.
The implementation gap: the ‘elixir of long life’ of a faulty common asylum system or a gesture of defiance towards the rule of law?
Article 80 TFEU contains an arguably legally binding principle of solidarity and fair sharing of responsibility. This principle profoundly impacts the goal of EU asylum policy: it dictates a certain ‘quality’ in the cooperation between the various actors, and arguably unsettles the policy’s implementation modes, for example the method of allocating responsibility. Footnote 69 Nevertheless, EU asylum policy lacks a system for allocating responsibility among the member states based on objective indicators. Footnote 70 Given an objective assessment of the protection capacity of each member state, the ‘inability to comply’ with a state’s obligations could be clearly distinguished from an ‘unwillingness to comply’, reducing tensions between member states. Instead, the current system pits member states against one other and creates disincentives for compliance. The problems it creates long predated the surge in arrivals in 2015–16, as noted by most academic commentators. Footnote 71
There have been various attempts to explain Dublin’s puzzling longevity.Footnote 72 These include path dependence,Footnote 73 trade-offs between Schengen and responsibility assignation as part of a broader ‘security union’,Footnote 74 and Dublin’s symbolic value of state control.Footnote 75 More importantly for my analysis, Francesco Bosso has argued that ‘tolerated non-compliance’ has been Dublin’s ‘elixir of long life’. Footnote 76 This argument has merit. In the earlier Dublin Convention days,Footnote 77 Eurodac, the centralised fingerprinting database that complements Dublin,Footnote 78 was not operational. Therefore, member states at the external borders could assume that the first country of entry rule would not be enforceable. Later, Dublin fuelled an implementation gap which reached beyond the responsibility allocation system itself to cover the entire substantive asylum acquis. Possibly due to the other benefits linked with Dublin, from its symbolic function to its links with Schengen, member states largely tolerated non-implementation. It was the 2015-16 increase that brought the demise of the modus vivendi. Footnote 79 However, even the so-called refugee crisis did not provoke a departure from the main premise of Dublin; instead, it spurred a renewed impulse to externalise protection obligations. Footnote 80
This mixture of unwillingness and inability to implement asylum-related obligations raises intricate rule of law adherence issues. Under von Bogdandy and Ioannidis’s conception of rule of law inability to implement EU law due to weak institutional capacities, or insufficient resources at the administrative or judicial levels also jeopardises the rule of law.Footnote 81 The implementation gap and unequally distributed obligations have eroded mutual trust among the member states concerning asylum. During 2015-16 they jeopardised the functioning of the Schengen area.Footnote 82
Different considerations apply where non-implementation is an act of defiance motivated by ideological disagreement with the goal of asylum provision, as will be analysed below. Of course, governments are not always explicit about their motivations. Kochenov and Bárd analyse the different strategies that illiberal governments employ to justify their policies, including the arbitrary invocation of national sovereignty, appeals to constitutional identity or national security and disinformation campaigns.Footnote 83 Member states, both ‘backsliding’ and other, have employed these strategies to justify non-implementation of asylum obligations. I will consider two examples: the non-implementation of emergency relocation schemes by several member states, and Greece’s suspension of the right to asylum preceding the Covid-19 pandemic.
Two Council decisions established emergency relocation, meaning intra-EU transfer of asylum seekers between member states, to benefit Italy and Greece during 2015-17. Footnote 84 This initiative was undercut by several factors, including its own legislative and administrative characteristics. Footnote 85 Both decisions numerically capped their beneficiaries, Footnote 86 restrictively defined eligible applicants, Footnote 87 and expired after two years. Footnote 88 Like the Dublin system, they failed to take into account the preferences of asylum seekers.
The scheme’s implementation was also undercut by the outright refusal of certain member states to relocate asylum applicants. I will focus on Hungary, Poland, the Czech Republic and Slovakia. A mixture of ‘moral’ and legal arguments undergirded resistance to the implementation of the decisions, and to asylum obligations more broadly. For example, Hungary’s Prime Minister Viktor Orban claimed that migrants threaten Europe’s (and Hungary’s) Christian identity,Footnote 89 an identity which according to this narrative precludes ‘welcoming the stranger’. He went on to wage a misinformation campaign as to the content and purposes of the relocation scheme.Footnote 90 Later, the Hungarian Constitutional Court judges referred to the country’s ‘constitutional identity’ to justify the government’s refusal to action the scheme.Footnote 91
Additionally, Hungary and Slovakia introduced an action for annulment before the European Court of Justice, constructing a series of imaginative legal arguments, mainly regarding procedural failings that ostensibly occurred during the adoption process of the decision, and which the European Court rejected.Footnote 92 Poland intervened, raising an objection based on its linguistic and cultural identity, citing:
[the] allegedly disproportionate effects of those quotas on a number of host Member States which, in order to meet their relocation obligations, have to make far greater efforts and bear far heavier burdens than other host Member States. That is said to be the case of Member States which are ‘virtually ethnically homogeneous, like Poland’ and whose populations are different, from a cultural and linguistic point of view, from the migrants to be relocated on their territory.Footnote 93
The Court rejected this argument due to procedural errors (it was inadmissible since it was put forth in a statement of intervention while going beyond the arguments raised by the claimants) as well as its contravening the principles of solidarity and fair sharing (Article 80 TFEU) and non-discrimination (Article 21 Charter).Footnote 94 By the expiry of the emergency relocation scheme, Poland and Hungary had failed to relocate a single asylum seeker in their territory, while the Czech Republic had relocated only 12 before deciding to unilaterally suspend the implementation of its obligations.Footnote 95 In an infringement action, the European Court of Justice found that the countries’ refusal violated EU law, rejecting a mix of procedural and substantive arguments and notably invocation of national identity (Article 4, para. 2 TEU), in combination with maintenance of law and order and internal security (Article 72 TFEU).Footnote 96
The second example regards Greece’s suspension of the right to asylum approximately two weeks prior to the adoption of any national Covid-19 related restrictions. Following a dispute with Turkey at its borders, Greece both suspended the right to asylum for those newly arrived throughout March 2020 and stipulated immediate deportation of those entering the Greek territory through an Act of Legislative Content unrelated to Covid-19. Footnote 97 This formed part of the Greek response to Turkey’s declaration that it would no longer prevent refugees and migrants from crossing to Greece despite its obligations under the EU-Turkey Statement.Footnote 98 The Greek government also based the suspension on the ‘extraordinary circumstances of the urgent and unforeseeable necessity to confront an asymmetrical threat to national security, which prevails over the reasoning for applying the rules of EU law and international law on asylum procedures’.Footnote 99 The suspension arguably violated international and EU law, which recognises the absolute nature of the principle of non-refoulement – a topic which goes beyond the scope of the present contribution. Footnote 100 The suspension had highly damaging effects on a significant number of people in need of protection, with thousands arbitrarily detained without effective judicial protection. Footnote 101 Under international and EU law, asylum seekers may only be deprived of their liberty if one of six exhaustively enumerated grounds apply, based on individualised assessment. Footnote 102
The pandemic led to a continuum of restrictions regarding the right to asylum.Footnote 103 This meant two layers of restrictions coincided during March 2020, while thereafter only the Covid-19 related restrictions stood. Thus, persons arriving from 1 March 2020 onwards had no access to asylum for more than two and a half months. However, protection needs cannot be set aside in border control, nor while implementing measures to address public health. Footnote 104 Asylum seekers also faced a continuum of restrictions regarding their right to liberty and security, alongside their right to freedom of movement. The Greek policy of blanket detention of all new arrivals based on the ‘immediate deportation decree’ was arguably followed by disproportionate restrictions on their freedom of movement. Footnote 105 An unfortunate conclusion is that the pandemic served partly as a fig leaf to consolidate restrictions to the right to asylum and the right to freedom of movement, based on completely different considerations. Similar restrictive trends undermining the right to asylum under the guise of Covid-19 responses were reported in Cyprus and Hungary. Footnote 106
How do the above failings connect with the value of the rule of law? Advocate General Sharpston provided a forceful answer in her Opinion for the infringement action against Poland, Hungary and the Czech Republic. She noted that the three defendant member states explicitly claimed at the hearing that they were ‘rebels’ who opposed the implementation of the relocation mechanism.Footnote 107 Despite the armoury of procedural and substantive counter-arguments presented by these member states, they could not resist advocating their ideological stance and highlighting their defiance. Hence, the Advocate General finished her Opinion arguing:
At a deeper level, respect for the rule of law implies compliance with one’s legal obligations. Disregarding those obligations because, in a particular instance, they are unwelcome or unpopular is a dangerous first step towards the breakdown of the orderly and structured society governed by the rule of law which, as citizens, we enjoy both for its comfort and its safety. The bad example is particularly pernicious if it is set by a Member State.Footnote 108
The Court was not so explicit as to its reasoning. However, it did note that to find the action inadmissible (as the defendant states had requested) would be ‘detrimental […] more generally, to the respect for the values on which the European Union, in accordance with Article 2 TEU, is founded, one such being the rule of law’,Footnote 109 and that ‘[i]n a European Union based on the rule of law, acts of the institutions enjoy a presumption of lawfulness’.Footnote 110 Accordingly, the relocation decisions were binding and member states were required to comply, a fact unaltered by the eventually unsuccessful action for annulment against the decisions introduced by Hungary and Poland.Footnote 111 This understanding of the concept of the rule of law by the European Court of Justice and Advocate General Sharpston intrinsically links it with the duty of sincere cooperation (Article 4, para. 3 TEU). The same holds true for Greece’s unilateral suspension of the right to asylum, which however has not been scrutinised judicially.
Fundamental rights violations and the rule of law: intricate links and complex problems
The implementation gap is connected with systemic fundamental rights violations, but not all fundamental rights violations in asylum are linked with that gap. Nor does a member state’s ideological defiance of asylum obligations always result in fundamental rights violations (though it may result in violations of intra-state solidarity and loyal cooperation). Hence, it is worth focusing exclusively on the interrelationship between fundamental rights violations in asylum and the rule of law. Therefore, the next section focuses on: (i) fundamental rights violations, including those involving procedural rights; and (ii) systemic fundamental rights violations. The term refers to violations of a certain type, intensity or duration.
Fundamental rights violations in asylum are not always systemic. Even beyond the implementation gap, constitutional capture or conscious defiance, asylum legislative harmonisation has left a significant level of discretion to member states.Footnote 112 This has resulted in fundamental rights violations at the national level as evidenced by European Court of Justice case law. For example, drawing from the principle of human dignity and the prohibition of torture, inhuman or degrading treatment, the Court has fleshed out the notion of a ‘dignified standard of living’ included in the Reception Conditions Directive. On this basis, the European Court of Justice has barred the practice of depriving asylum seekers subject to a ‘Dublin transfer’ of material reception conditions, Footnote 113 or withdrawing said conditions as a sanction for breaching the rules of a reception centre. Footnote 114 Similarly, it has found that where reception conditions are offered as financial allowances, they must ensure subsistence by enabling asylum seekers to obtain housing on the private rental market, if necessary. Footnote 115
Concerning procedural standards, the European Court of Justice rulings have usually taken a text-based approach to interpreting the Directive, generally permitting national procedural practices. Even so, the Court has been willing to adduce additional procedural requirements through the Charter-based rights to an effective remedy and good administration. Footnote 116 For example, the European Court of Justice found that the right to be heard requires national authorities to examine eligibility for refugee status and subsidiary protection via distinct hearings in two separate procedures, as in Ireland;Footnote 117 or that the right to an effective remedy entails that national procedures should be arranged so that, should the case file be returned to the first instance authority: (i) a new decision is adopted within a short period of time; and (ii) that decision complies with the assessment contained in the judgment annulling the initial decision.Footnote 118
Different considerations apply to systemic fundamental rights violations. The term refers to violations of a certain type, intensity or duration. This is to be distinguished from the European Court of Justice’s dubious notion that the bar on return regarding intra-EU transfers of asylum seekers turned on ‘systemic deficiencies’ in the state concerned.Footnote 119 The European Court of Human Rights later rejected this notion in Tarakhel Footnote 120 and the European Court of Justice followed suit. Footnote 121 Systemic violations could point to structural implementation weaknesses or constitutional capture, leading to violations of the duty of sincere cooperation which – in the EU – is also linked with the rule of law. I will now illustrate the concept with two examples: the functioning of the asylum system in Greece, and in Hungary.
As early as 2011, the European Court of Human Rights identified structural deficiencies in Greece’s asylum procedures and reception conditions while examining complaints of alleged infringement of various rights of the ECHR by Greece and Belgium:
Those persons who have no family or relations in Greece and cannot afford to pay rent just sleep on the streets. As a result, many homeless asylum-seekers, mainly single men but also families, have illegally occupied public spaces […]. Many of those interviewed reported a permanent state of fear of being attacked and robbed, and of complete destitution generated by their situation (difficulty in finding food, no access to sanitary facilities, etc.).Footnote 122
These structural deficiencies were conceivably due to Greece’s inability and unwillingness to protect asylum seekers and refugees. Arguably, the Dublin system, which Greece perceived as unfair, incentivised these breaches of EU asylum policy.
Greece has slowly been improving its national asylum system, for example through the establishment of a dedicated national administrative authority. Footnote 123 Supported by EU funding, it has implemented programmes to provide urban accommodation and cash assistance to growing numbers of asylum seekers. Footnote 124 Nevertheless, deficiencies in asylum processing, and most notably in reception conditions, persist. The Covid-19 pandemic has brought asylum conditions in Greece back into focus.Footnote 125 The outbreak of the pandemic found almost 39,000 asylum seekers, Footnote 126 including thousands of unaccompanied children, Footnote 127 residing in ‘hotspots’ on the Greek Aegean islands Footnote 128 and facing unsanitary conditions. On Lesbos, there was one shower for every 500 people and one toilet for every 160. Footnote 129 Instead of evacuating the camps, the Greek government restricted asylum seekers’ right to freedom of movement by immobilising them in camps, even when limitations were lifted for the rest of the population.
Since 2015, the Hungarian government has dismantled refugee protection through a series of legislative amendments. A detailed analysis goes beyond the remit of this contribution;Footnote 130 the measures touched every aspect of the national asylum system. Among other things, they curtailed procedural rights under ‘normal procedures’; abolished integration measures for recognised beneficiaries; introduced a fully informal removal mechanism first within an eight-kilometre distance of the fence with Serbia and later throughout the whole territory; criminalised the crossing of the 175-kilometre fence; and established that a ‘crisis situation’ permits the deprivation of liberty of asylum seekers in transit zones during the entire refugee status determination procedure.Footnote 131
As Nagy has explained, this established that during a ‘crisis situation caused by mass immigration’ (which the Hungarian government immediately instated and has repeatedly renewed without objective indicators to justify it), all asylum seekers are obliged to submit themselves to a forced (and escorted) removal from within Hungarian territory to the Serbian side of the fence, depriving them of effective access to the procedure.Footnote 132 Only three exceptional categories of individuals were granted access to a regular procedure: those in detention; those who regularly stayed in Hungary; and those under 14 years of age.Footnote 133 The official narrative is that removed persons could then walk along the fence to reach the Hungarian transit zone and wait for admission, with no water, sanitation or shelter provided.Footnote 134 Admissions to the transit zone were extremely limited, benefiting just one person per day in January 2018.Footnote 135 Within the transit zone, asylum seekers were deprived of a number of procedural rights and reception conditions, and of their liberty.Footnote 136
These amendments led to systemic violations of asylum seekers’ fundamental rights as apparent through a host of references for preliminary rulings by Hungarian courts. These, for example, led the European Court of Justice to find that the EU acquis and the right to an effective remedy of the Charter precluded national practices such as an eight-day time limit for lodging appeals, Footnote 137 or first-instance authorities refusing to comply with the assessment of the appeals court. Footnote 138 The FMS judgment allowed the European Court of Justice to scrutinise conditions within the transit zones, and to find multiple violations of the substantive asylum and return acquis on detention standards (i.e. arbitrary deprivation of liberty), alongside related procedural standards (i.e. no possibility of judicial review of detention).Footnote 139 It was an infringement action initiated by the Commission that allowed the European Court of Justice to holistically examine the dismantling of the national asylum and return systems.Footnote 140 The Court found that the ‘automatic removal’ of asylum seekers from Hungarian territory, the drastic limitation of the number of applicants allowed to enter the transit zones, and the system of detention in transit zones, breached a number of the EU’s asylum and return acquis provisions and the fundamental rights under the Charter (notably Articles 6, 18 and 47).
So far, this analysis has revealed that the implementation of the asylum acquis has led to both ‘isolated’ and systemic instances of fundamental rights violations. How do these link with respect for the rule of law? The earlier exploration revealed different conceptualisations of the interrelation between fundamental rights and the rule of law. Under a co-constitutive and co-substantial understanding, there is no separation between these values. What matters is the source and level of the risk in deciding the most adequate means to address these failings. Even if one conceptualises the rule of law and fundamental rights as distinct, though, the rule of law incorporates at least certain fundamental rights, such as the right to an effective remedy and to a fair trial. Procedural rights are especially jeopardised in cases of systemic deficiencies, through a mixture of inability and conscious efforts to curtail procedural guarantees. The extent of the failings in both preceding sections brings the urgency of appropriate responses into sharp relief.
Upholding the rule of law: one size fits all?
Should the EU’s response to failure to uphold the rule of law in asylum-related instances be different than in those other cases of non-implementation of the EU acquis? The answer is not straightforward. The immediate focal point is fundamental rights violations linked with the operationalisation of EU asylum policy. If there is a well-functioning and independent judiciary at national level, and these fundamental rights violations are not linked with implementation capacity issues, defiance, or constitutional capture, then national courts or tribunals can address them. The European Court of Justice may influence through preliminary rulings, while the Commission may intervene through infringement actions, or address some of these issues in monitoring cycles.
Rule of law failings that are intrinsically linked with the unequal distributive effect of the EU’s current responsibility allocation system, i.e. the Dublin system, and the lack of financial and human resource capacities at member state level, call for primarily policy-specific responses. They include a redesign of the EU’s responsibility allocation system that would better embed fair sharing, passage to more structural forms of EU funding and joint implementation through EU agencies.Footnote 141 The first signs from the Commission’s proposals as part of the ‘New Pact on Migration and Asylum’ released in September 2020Footnote 142 are not encouraging in this regard.Footnote 143 Any such redesign and other structural policy-specific solutions should also be supplemented by enforcement measures such as infringement procedures, especially when systemic violations of fundamental rights are involved. Nonetheless, enforcement alone is not the answer, as these failings also – at least partially – relate to the inability to provide refugee protection.
The picture is different where non-implementation relates to defiance for ideological or political reasons. Defiance could be a symptom of constitutional capture and part of a strategy to dismantle rule of law guarantees, inciting xenophobia, and particularly targeting minority and vulnerable groups such as asylum seekers. The response here cannot remain policy specific. As part of broader patterns of dismantling the rule of law at national level, these failings’ examination should be incorporated into processes seeking to probe risks to EU values, such as Article 7 TEU procedures, or related procedures like the Commission’s rule of law framework.Footnote 144 Examinations could also be part of what Scheppele conceptualises as ‘systemic infringement actions’,Footnote 145 particularly the type of action arguing that systemic violations of basic principles of EU law violate the principle of sincere cooperation (Article 4, para. 3 TEU).Footnote 146 Another variant of the infringement procedure could allege systemic violations of fundamental rights.Footnote 147 The infringement procedure against Hungary is arguably an example of this mechanism. Finally, Kochenov has described how member state initiated infringement actions focusing on rule of law failings could forcefully complement pressure by EU institutions.Footnote 148 There are some modest signs that member states could be willing to engage in such actions.Footnote 149 However, to date there has not been an actual initiation of an infringement action by another member state relating to respect of the rule of law.
Even where defiance does not relate to constitutional capture, as with the suspension of the right to asylum in Greece, the situation should be separated from capacity issues and scrutinised via appropriate enforcement measures. Vigilance is necessary to ensure that the defiance does not escalate; for example, asylum-related failings could feature more prominently in processes such as the Commission’s annual rule of law report. The first such report released in September 2020 does not seem to grasp the intricate links between asylum-related violations, the situation at the EU’s borders and the rule of law.Footnote 150 It refers only to the restrictive space for action for migration non-governmental organisations in Italy and Greece.Footnote 151 While this is an issue of grave concern and certainly linked with rule of law failings, it is also necessary for the Commission to engage with the bigger picture when considering refugee protection and asylum.
Conclusion
Asylum in the EU is one of the many faces of ‘rule of law backsliding’, understood as a form of constitutional capture. Member states which present grave failings in areas such as judicial independence or freedom of expression have also either completely dismantled refugee protection (i.e. Hungary), or are defying particular obligations (i.e. Visegrad countries’ stance on the relocation schemes). However, asylum-related rule of law failings are not limited to ‘backsliding’ member states. The EU’s asylum system creates asymmetric responsibilities towards member states at the external sea borders which, exacerbated by deficiencies in their administrative and financial capacities, fuels an implementation gap and results in systemic fundamental rights violations.
These failings engage the EU’s rule of law in the form of the duty of loyal cooperation; ‘procedural’ fundamental rights such as the right to fair trial; and, under a co-constitutive conception of EU’s values, with fundamental rights more broadly. The rule of law’s scope within the Union is still debated. This analysis, however, has indicated that the current state of asylum provision in the EU raises issues about rule of law adherence even under more restrictive understandings of its scope. In addition, while not forming part of the analysis of the specific piece, these issues do not stop at member state territory: the externalisation of protection responsibilities towards non-EU countries is similarly rife with rule of law failings.Footnote 152 Here, the perpetrators of the violations are not only the member states, but the EU itself through the actions of its institutions and agencies.
This article has analysed appropriate responses for asylum failings in the internal dimension of EU’s asylum policy that link with rule of law failings. EU institutions are beginning to grapple with the intricate links between the rule of law and asylum, as seen in the 2020 infringement against Hungary, which could be understood as containing some elements of a systemic infringement procedure, or the comments of Advocate General Sharpston about the emergency relocation schemes infringement. Nevertheless, this approach is not systematic. For example, the first annual rule of law report of the Commission fails to connect the gradual dismantling of a national asylum system or the situation at the EU’s external borders with the rule of law. If the rule of law is to be upheld, all the available tools and procedures should engage with the state of asylum provision in the EU. Finally, some failings relate to the asylum policy’s design and can only be addressed by bold policy moves such as a redesign that takes in the fair sharing of responsibilities and makes structural forms of funding available for this purpose.
Instead, the member states and the EU have focused their energies on further externalising protection obligations, for example through introducing negative conditionality between mobility, legal migration opportunities and control-oriented commitments, or through funding.Footnote 153 This article has identified a systematic analysis of EU’s externalisation practices under a rule of law lens as an important field of (future) study. Externalisation of protection obligations is often pursued via soft law instruments or outside the EU legal framework.Footnote 154 This can disable political accountability by the European Parliament and judicial oversight from the European Court of Justice. Externalisation also lends credence to the xenophobic rhetoric of populist political leaders, removes credibility from the EU when insisting on the respect for refugees’ and migrants’ rights on member states’ territory and, more broadly, further saps the foundations of the Union’s ‘holy trinity’ of values: the rule of law, fundamental rights and democracy.
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