Reading Assignment (400 words)

230 the edinburgh law review Vol 20 2016

EdinLR Vol 20 pp 230-235 DOI: 10.3366/elr.2016.0346

The European Union Migration Crisis

“Things fall apart . . . . The centre cannot hold”1

A. INTRODUCTION On 9 September 2010 the body of a man who had fallen from a British Airways flight to Heathrow was discovered in a wealthy west-London suburb.2 It is hard to pinpoint any one precise origin of the migration crisis currently unfolding in Europe, but the migrant who fell from the sky in his extreme efforts to enter a Europe otherwise closed to him was to foreshadow something on a much larger scale which has shaken European integration to its very core. The mass movement of more than a million refugees and migrants (many fleeing conflicts in Syria, Afghanistan and Iraq) into European countries during 2015,3 the migration crisis so called, has generated an extreme level of disruption and disunity in the European Union and its member states as they strive to deal with the arrivals.4 But the crisis is, first and foremost, a humanitarian catastrophe of a kind unseen in Europe since the 1930s and 40s. Images from Lesbos and Lampedusa, among others, bear witness to the magnitude of the human cost of the crisis, which is still growing at an alarming rate at the time of writing.5 This note argues that the humanitarian crisis points to more deep-seated and long-standing problems in the governance of the European Union. As the EU and its member states struggle with the pressures of mass movement of displaced people, the treatment of those people exposes what can only be described as a crisis of European values. It is, in many ways, a stark exposé of shortcomings in the application of European fundamental rights, humanitarian law, and neighbourhood policy.

B. THE ROAD TO CRISIS What was seen, and conveniently categorised, as a “peripheral glitch”,6 merely a local issue confined to the Mediterranean extremes of fortress Europe, has been evolving

1 W B Yeats, “The Second Coming” in The Collected Poems of W B Yeats (1933) 210. 2 P Peachey, “From Mozambique to Mortlake: the man who fell out of the sky”, The Independent, 21

December 2012. 3 Eurostat, Asylum Quarterly Report (December 2015), available at http://ec.europa.eu/eurostat/statistics-

explained/index.php/Asylum_quarterly_report. 4 See further, European Commission, A European Agenda on Migration, COM(2015) 240 (13 May 2015). 5 United Nations High Commissioner for Refugees (“UNHCR”), Refugees/Migrants Emergency

Response – Mediterranean (28 February 2016), available at: http://data.unhcr.org/mediterranean/ country.php?id=83.

6 D Caruso, “Lost at sea” (2014) 15 German LJ 1197.

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slowly over the last five years before reaching an unavoidable crescendo during 2015. In 2014, Daniela Caruso spoke of the “lost generation” of those who had literally been lost, drowned in the waters of southern Europe.7 Before the origins of the current crisis began to influence the shaping of member state and EU migration strategy around 2009-2010, EU migration policy had begun gradually to move from being the precious preserve of member state sovereignty to being a commonly-shaped policy. The original Schengen Agreement of 1985,8 which provided for the gradual abolition of internal borders in the then European Economic Community (“EEC”), was largely influenced by the demands of a free-moving trading community within parts of the EEC; trade, for now, trumped tight territorial control. The Third Pillar of the 1992 Maastricht Treaty can be seen as the starting point for the evolution of a common EU migration and border control programme.9 In tandem, the pre- Maastricht 1990 Dublin Convention10 led to a 2003 Community-wide agreement on the handling of asylum claims (“the Dublin Regulation”).11 To complement the procedural agreements on borders, Frontex was established for the control of the EU’s external borders in 2004.12 In 2013, Eurosur was created, also with the aim of deflecting illegal migrants from EU external borders. The whole package for “managing” third country nationals coming to and already within the EU was, or seemed to be, a sleek and polished system, a modern bureaucratic success which, with organisational efficiency, kept non-Europeans at bay so as to further success and progress within.

Individual member states have played significant and contrasting roles in the EU migration narrative. Germany’s perspective has been fundamental in shaping communal positions on immigration and asylum; it is, therefore, not surprising to see that state’s role in such a pronounced way in the current crisis. As Caruso points out, “[i]t was in German political circles that the idea of Europeanizing immigration policies was born.”13 She characterises the original development of EU- level migration policy as being based on the need to externalise a German problem (dealing with a high levels of non-EU migrants in the 1980s) and to redirect migrants to other states.14 In contrast to those evolutionary stages it might be said that the 2015-2016 crisis has seen the externalisation of a German solution, as many other

7 Ibid 1199. 8 Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the

States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, 2000 OJ 2000 L239/19.

9 Regulation of the European Parliament and of the Council 562/2006 OJ 2006 L105/1 (Schengen Borders Code).

10 Convention Determining the State Responsible for Examining Applications for Asylum lodged in one of the Member States of the European Communities, 1997 OJ 1997 C254/1.

11 Council Regulation 343/2003 OJ 2003 L50/1. 12 Council Regulation 2007/2004 OJ 2004 L349/1. 13 Caruso (n 6) 1201. 14 Ibid.

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member states were required to respond to the migrants flowing into Germany after the Merkel announcement of “all Syrians welcome”.15

One of the states most affected by the “Syrians welcome” announcement, and by the Mediterranean crisis in general, has been Greece. The handling of asylum seekers and migrants within Greece was problematic even before the situation reached crisis levels in the spring and summer of 2015. The European Court of Human Rights (“ECtHR”) found Greece to have breached the ECHR in its treatment of an Afghan migrant in 2011.16 Both Malta17 and Italy18 have also been judged wanting by the ECtHR in terms of the human rights accorded to incoming migrants and the refoulement practices operated in both states. The existence of this jurisprudence dating from the last four to five years testifies to the fact that the values-failure at European level has been incremental. The signs of both practical and legal breakdowns at Europe’s periphery were all visible but not recognised or acted upon sufficiently rapidly. Economic (euro crisis) and political (Arab spring) events colluded to increase the problems in the vulnerable southern borders of the EU.

The Schengen rules, which exist to prohibit border controls as between member states, have equally been breached. In 2013, controversial rules were introduced in response to the upheaval resulting from the Arab spring.19 By way of exception to the general rule, the new legislation allows member states to reinstate internal border controls in the event of a failure to control the outer borders of the Schengen area.20 This has allowed member states to erect razor fences to impede the flow of migrants from one state to another, thereby localising and exacerbating a suite of problems that might better be shared and resolved in common.21 The introduction of the legislation was accompanied by a decision to reduce the powers of the European Parliament by adopting regulations under the intergovernmental Justice and Home Affairs procedure.22 Effectively, therefore, the response to the needs of refugees was to reinstate the powers of the member states, to negate the principle of solidarity as between the member states, and to create a migration laissez-faire approach in which whoever builds the highest fence or stops the most asylum claims is the short-term winner. All of the apparently carefully-crafted, vital load-bearing structures of EU migration and border policy, Schengen, Dublin, and Frontex, have come crumbling

15 A Hall and J Lichfield, “Germany opens its gates: Berlin says all Syrian asylum-seekers are welcome to remain, as Britain is urged to make a ‘similar statement”’, The Independent, 24 August 2015.

16 M S S v Belgium and Greece (2011) 53 EHRR 2. 17 Aden Ahmed v Malta, ECHR App No 55352/12 (23 July 2013); Suso Muso v Malta, ECHR App No

42337/12 (23 July 2013); Louled Massoud v Malta, ECHR App No 24340/08 (27 July 2010). 18 Hirsi Jamaa v Italy (2012) 55 EHRR 21; Khlaifia and Others v Italy, No 16483/12 (1 September 2015). 19 S Peers, “Immigration and Asylum” in C Barnard and S Peers (eds), European Union Law (2014) 781. 20 Regulation of the European Parliament and of the Council 1051/2013 OJ 2013 295/1; Council

Regulation 1051/2013 OJ 2013 295/27. 21 See, e.g., “Hungary defends border fences blocking migrants”, France 24, 10 June 2015, available at

http://www.france24.com/en/20150930-hungary-defends-border-fences-blocking-migrants. 22 Peers (n 19) 782.

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down in spectacular fashion over the course of 2015-2016 in the face of a crisis which is still ongoing.23

C. A CONSTITUTIONAL CRISIS The failures in the treatment of asylum seekers appear to stem in part from a perception that migration is, first and foremost, a negative externality to be mitigated, rather than an exercise in the fulfilment of constitutional obligations. Far from embracing the European principles of solidarity and the rule of law, several member states appear, paradoxically, to reject those European principles in the face of a perceived threat to their own construction of European identity. Indeed, not only have the member states failed to fulfil their human rights obligations stemming from European instruments, but the EU has collectively failed in its obligation to share burdens internally and externally as required by the spirit, if not necessarily the letter, of the 1951 Geneva Convention.24

The refusal to adopt meaningful burden-sharing,25 accompanied by the reversion to physical impediments to movement within the Union, suggests that the horizontal relationship between the member states has reverted to traditional notions of absolute territorial sovereignty. Of course this is by no means a uniform trend. There are instances in which the Union has demonstrated a stronger commitment to constitutional safeguards for asylum seekers. The judgment in NS v Secretary of State for the Home Department26 in particular goes a long way to re-ordering the relationship between member states by permitting them to refuse to recognise as sufficient the standards of fundamental rights protection in other parts of the Union. This marks a significant change of direction for a union whose record in fundamental rights protection is open to criticism. Indeed, states with higher standards of fundamental rights protection have on occasion been required to sacrifice those higher standards at the altar of mutual recognition.27 The fact that this will no longer be the case in respect of asylum seekers is to be commended.

Yet this does not result in common and higher standards of fundamental rights protection for the EU as a whole. Rather than an agreement to adopt higher standards in all member states and a robust system to assist and enforce those standards, the judgment merely allows recalcitrant states to transfer the burden of values that are purportedly held in common.

Indeed, EU law lacks enforcement mechanisms in the event that the member states do not fulfil their obligations towards one another and towards citizens of

23 Editorial comments, “From eurocrisis to asylum and migration crisis: some legal and institutional considerations about the EU’s current struggles” (2015) 52 CMLR 1437-1450.

24 See S Peers, “The refugee crisis: what should the EU do next?” (2015), available at http://eulawanalysis.blogspot.co.uk/2015/09/the-refugee-crisis-what-should-eu-do.html.

25 See Council Decision 2015/1523 OJ 2015 L239/146 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece. For academic commentary see Peers (n 24).

26 Case C-411/10 [2011] ECR I-13905. 27 Case 438/05 International Transport Workers’ Federation v Viking Line ABP [2007] ECR I-10779.

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third countries. There is, therefore, a conflict between fundamental constitutional principles. On the one hand the member states are notionally bound by the principle of solidarity. On the other, the law-making processes allow the Union to act only insofar as powers have been conferred by sovereign states; those states also retain control over the substance of legislation, particularly regarding areas that remain closely associated with the residual sovereignty of nations. It follows that, despite its lofty ideals, the Union is often only as principled as the lowest common denominator among its constituent states.

D. PROSPECTS At the time of writing, after over six months of facing up to the reality of the migration crisis, the EU’s long-term commitment to fostering the bonding of its citizens,28

by entrenching external frontiers at the same time as removing internal border obstacles, is collapsing.29 Building up the privileged club for insiders for decades has generated an increasingly hard external border and an increasingly harsh face towards outsiders.

It is apt to recall that this is not the first time that European states have failed to respond justly and humanely to desperate people fleeing to their territories. Echoes of the Évian Conference of 1938 abound in the responses of states whose establishment of the European Union was intended to prevent a repeat of Europe’s catastrophic failings in the 1930s and 40s.30 The migrants crisis highlights a Europe which has, arguably, made little real progress in terms of how “outsiders” are treated by and within Europe. The EU is based on the upholding of values such as human dignity and human rights, all of which have been found seriously wanting during the unfolding of this worsening situation.31 At the 18-19 February 2016 European Council32 there was a noticeable lack of focus on the issue of rights and values. The discourse was once again, just as it had been at the December Council,33 one of stemming “flows” (not actual people), securing borders, and safeguarding Schengen. Article 1 of the Charter of Fundamental Rights of the EU and Article 6 TEU, as well as EU member states’ international human rights obligations, appear to have been forgotten in the race to

28 Caruso (n 6) 1197. 29 Schengen and external borders were the subject of the Justice and Home Affairs Council on 25

February 2016 (Outcome of the Council Meeting, 6462/16 (Provisional)) against the background of growing tension between EU member states on the issue of migration control: “Migrant crisis: Greece recalls ambassador from Austria amid EU rifts”, BBC News Website, 25 February 2016, available at http://www.bbc.co.uk/news/world-europe-35658776.

30 For an account of the Évian Conference in its broader context, see W I Brustein and R D King, “Anti- semitism in Europe before the Holocaust” (2004) 25 International Political Science Review 35 at 35.

31 Comparisons with the evolution of asylum policy in Australia, where there has been “a distinct trajectory of deterrence and punishment” is apt; C Tazreiter, “‘Stop the boats’! Externalising the borders of Australia and imaginary pathologies of contagion” (2015) 29 J of Immigration, Asylum & Nationality Law 142.

32 European Council Conclusions, 18-19 Feb 2016, EUCO 1/16. 33 European Council Conclusions, 18 Dec 2015, EUCO 28/15.

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defend the Union from the migrant threat. The question is: what is being defended now? An integrated Europe without a clear commitment to rights and values is a Europe which has lost its very raison d’être.

Justin Borg-Barthet and Carole Lyons University of Aberdeen and Robert Gordon University

EdinLR Vol 20 pp 235-238 DOI: 10.3366/elr.2016.0347

Reduction for Forgery and Equitable Exceptions: Chalmers v Chalmers

A. THE FACTS AND OUTER HOUSE DECISION In a mercifully succinct opinion delivered in Chalmers v Chalmers,1 the Inner House allowed a reclaiming motion against a decision in the Outer House2 refusing to grant a decree of reduction in relation to a forged disposition. The essential facts3 were that a man had arranged for a transfer of a house to his wife, the pursuer, without her knowledge, and she had been registered as the owner of the house in 1998.4

The wife only discovered that the property had been registered in her name when her solicitor discovered this fact during searches of the Land Register in relation to divorce proceedings between the couple in 2012.5 In the intervening time period, in 2006 a disposition of the property bearing a forgery of the wife’s signature disponed the property to the couple’s son, the defender in the case. Following the conclusion of a divorce minute of agreement between the couple, the wife raised an action of reduction and interdict against the son. In the Outer House the pursuer’s claim had been resisted upon essentially two grounds: (1) that the pursuer’s title to the property had only ever been as trustee on behalf of a partnership between her and her husband, and it had been given up by virtue of the divorce minute of agreement; and (2) that the court should refuse to exercise its discretion to grant decree of reduction apparently, though it was arguably not entirely clear,6 on the basis that the pursuer was personally barred from seeking reduction of the forged deed.7 The Lord Ordinary held as a

1 Chalmers v Chalmers [2015] CSIH 75, 2015 SLT 793. 2 McAuley v Chalmers [2014] CSOH 161, 2015 SCLR 299, noted in D J Carr, “Is there an equitable

exception to reduction for forgery?” (2015) 19 EdinLR 273. 3 For a fuller description of the convoluted factual matrix see the report of the Outer House decision and

Carr (n 2). 4 Chalmers at para 2. 5 Chalmers at paras 2-6. The opinion of the court in the Inner House reveals that the averments for the

wife in the 2012 divorce proceedings stated that the wife was aware of the property, and denied signing the disposition or having knowledge of who could have signed it.

6 Carr (n 2) at 279. 7 Chalmers at para 13; see Carr (n 2) at 276-277.

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