5 DISCUSIÓN
5.1 ANÁLISIS DESCRIPTIVO DE LAS SERIES ESTUDIADAS
As noted above, the Schengen crisis is inherently linked to the arrival of unexpectedly substantial numbers of asylum seekers in the EU. Also, as pointed out above, among the main nationalities of origin, these asylum seekers have been recognised as refugees or have received subsidiary protection in very large percentages. So the crisis could well be framed as not so much one of border controls but rather of reception facilities and the duties of Member States. Border controls became a surrogate for the proper reception of asylum seekers and the correct operation of the CEAS. Instead, the language of ‘crisis’ transformed the appellation of people from “refugees” (which would soon be recognised) into “illegal immigrants” who were committing criminal acts by travelling through the Schengen border- control-free area. The first consequence was to avoid responsibilities for reception and determination of refugee status under the CEAS. The second consequence has been to place refugees and people who should be receiving international protection and reception while their claims are being considered in danger of being criminalised for unauthorised border crossing, even though the borders are intra-Schengen ones where there should be no controls applied.
Several Member States, in particular in their first notifications, refer exclusively to migrant flows and thus pre-suppose the entry of ‘illegal’ migrants and not refugees, which is striking. For example, Belgium mentioned “very large numbers of illegal immigrants.”140 Slovenia referred firstly to “uncontrollable migration flows” and then to “illegal migration”.141 Austrian authorities, in their first notification, refer to “the huge migration flows” and, in their subsequent notification, to “enormous migration flows”.142 German authorities claim to face an “uncontrolled and unmanageable influx of third-country nationals into German territory” and, in their subsequent notification, report an ongoing “massive influx of third country nationals”.143 Danish authorities refer to mixed migration: “migrants and refugees“.144 Similarly, Norwegian authorities referred to “an unpredictable migratory flow, containing a mix of asylum seekers, economic migrants, potential criminals […], victims of crime.’’145 Finally, Swedish authorities, like their Nowegian and Danish counterparts,, referred to mixed migration and an “unprecedented migratory flow“, which “may include i.a. asylum seekers, economic migrants, potential criminals such as smugglers or traffickers of human beings, but also potential victims of crime“.146
The fact is, however, that the majority of third country nationals who have entered the EU irregularly since the summer of 2015 are in search of international protection.147 Of them, the majority are Syrian, Iraqi and Afghan, all nationalities with very high recognition rates as persons in need of international protection. As persons seeking international protection, they are entitled to the full application of the 1951 Refugee Convention and its 1967 Protocol, the EUCFR and the CEAS. Only if third-country nationals arrive irregularly and do not seek international protection can they be treated as irregularly present and subject to sanctions. This is the consequence of Article 31 of the Refugee Convention, which states:
140 Belgian delegation (2016), Council document 6490/16.
141 Slovenian delegation (2015), Council documents 12111/15 and 12418/15. 142 Austrian delegation (2015), Council documents 12110/15 and 12435/15. 143 German delegation (2015), Council documents 11986/15 and 12984/15. 144 Danish delegation (2016), Council document 5021/16.
145 Norwegian delegation (2015), Council document 14633/15. 146 Swedish delegation (2015), Council document 14047/15. 147 EUROSTAT (2016), Asylum Statistics, at
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”
There is a very lively debate in the international community about the meaning of “coming directly” from a country of persecution. Courts in different EU states have interpreted the provision according to national law. For instance, in the UK, the term cannot be interpreted restrictively. In other words, a stop-off along the way should not exclude the refugee from protection. UK legislation states that the main considerations are the length of stay in the intermediate country, the reasons for the delay there, and whether or not the person sought protection there.148 The operation of the Dublin III Regulation, which sets out the responsibility of Member States for determining asylum applications made in the EU, is only one of the mechanisms at work.149
Article 3 SBC states:
“This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to:
(a) the rights of persons enjoying the right to free movement under Union law; (b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.”
This means that the rules of the SBC do not apply to those seeking international protection, as the Refugee Convention and the CEAS already apply to them and their arrival in and movement around the EU. Yet, the argument of the Member States is that asylum seekers should remain in the first Member State through which they enter the EU and seek asylum there (unless very specific special circumstances apply).150 In theory, if an asylum seeker continues his/her journey onwards to a more hospitable Member State to make the asylum application, he/she should be sent back to the first one. The Dublin III rule is ostensibly applicable irrespective of the failure of Member States to provide reception conditions as required under the CEAS, though both the CJEU and the ECtHR have effectively modified the rules in their judgments concerning Greece and Italy that vulnerable asylum applicants (and all asylum seekers for Greece) should not be returned to Greece and Italy (where they are families with children) because of the inadequacy of reception conditions there.151
148 UK Magistrate (1999) INLR 490 at 497A-C, case of Adimi.
149 Moreno-Lax, V.(2012), "Dismantling the Dublin system: MSS v. Belgium and Greece." European Journal of Migration and Law 14.1: 1-31.
150Hailbronner, K., and Thiery C. (1997), "Schengen II and Dublin: Responsibility for asylum applications in Europe." Common Market Law Review 34.4: 957-989.
151 ECtHR (2011), M.S.S. v. Belgium and Greece, Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011, available at: http://www.refworld.org/docid/4d39bc7f2.html [accessed 3 May 2016]; CJEU (2011), N. S. (C 411/10) v. Secretary of State for the Home Department and M. E. (C 493/10) and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform C-411/10 and C-493/10, European Union: Court of Justice of the European Union, 21 December 2011, available at: http://www.refworld.org/docid/4ef1ed702.html [accessed 3 May 2016]; ECtHR(2014) Tarakhel v. Switzerland, Application no. 29217/12, Council of Europe: European Court of Human Rights, 4 November 2014, available at: http://www.refworld.org/docid/5458abfd4.html [accessed 3 May 2016]
It is because of this Dublin III effect that Member States and EU institutions claim the they are justified in continuing to refer to asylum seekers moving across the EU as ‘migrants’, not ‘refugees’. Instead, and in spite of Article 31 of the Refugee Convention, Member States insist that these people are irregularly present and have crossed the Schengen borders illegally (and therefore should be punished). The language of penalties is constantly present and the practice of criminalising asylum seekers is growing. According to the FRA, almost a third of people arriving irregularly in Hungary are prosecuted for the offence of unauthorised border- fence crossing.152 It would seem evident that Article 31 of the Refugee Convention ought to protect these asylum seekers from this kind of prosecution and yet there is a problem. The CJEU in a decision of 17 July 2014 held that it did not have jurisdiction to interpret Article 31.153 This was a somewhat surprising decision, not least in light of the pressing need for a consistent EU-wide interpretation of the application of penalties to those seeking asylum who have irregularly crossed EU internal frontiers. The facts of the case resemble those for so many of people moving across the continent in 2015-16. Mr Qurbani was an Afghan national who, having used the services of a people smuggler, entered Greece after passing through Iran and Turkey. He left Greece to travel, by plane, to Munich (Germany), with a forged Pakistani passport obtained from another people smuggler. He was arrested at Munich airport, after the authorities responsible for carrying out checks recognised that his passport was forged and he immediately applied for asylum. He was charged and convicted of unauthorised entry, unauthorised stay and forgery of documents, notwithstanding Article 31. He appealed and eventually the matter was referred to the CJEU. Regardless of the fact that the TFEU requires the CEAS to be in conformity with the Refugee Convention and regardless of the fact that the CJEU had on other occasions interpreted the Refugee Convention in the context of the CEAS, in this case it found it had no jurisdiction to decide on the case. This refusal to deal with an important issue of EU law was exacerbated by the fact that the Qualification Directive154 specifically refers to Article 31 of the Refugee Convention (in Article 14).
From the notifications that those Member States who reintroduced intra-Schengen border controls have submitted on grounds of migration, the failure of Greece either to prevent refugees from arriving in the first instance or to keep all those arriving in Greece is the main complaint (except in respect of Belgium where it is the failure of France to keep people who want to go to the UK in France). The Austrian authorities are particularly clear about this issue. The problem is that refugees arriving in Greece are entitled to seek asylum. As the reception conditions are appalling and the refugee sorting system is sclerotic in Greece, they are entitled to move on to other Member States (as the German chancellor acknowledged in August 2015). That onward movement should not turn them into ‘illegal migrants’ either in law or rhetoric. They are still in need of international protection, whether they be in Greece, Germany, Sweden or Belgium. The only question at issue is whether their successful attempt at ‘self-relocation’ should be recognised.
152 See FRA’s website for regular overviews on borders and migration http://fra.europa.eu/en/theme/asylum- migration-borders/overviews/march-2016. A worrying development considered elsewhere in this study is the decision of the Dutch Raad van State that a person can be considered an irregularly arriving ‘migrant’ until such time as he or she makes an asylum claim: ABRS 24 December 2016, ECLI:NL:RVS:2015:4064
153 CJEU (2014), C- 481/13 Qurbani 17 July 2014, not yet reported.
154 European Union (2011), Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), Brussels, 20.12.2011 OJ L 337 (Qualification Directive).
4.7. Exceptional circumstances and the overall functioning of the Schengen area