Access to Asylum in Europe at the Time of the Temporary Protection for Ukrainians and Beyond – Conflicting Models and the Potential Role of Domestic Courts 

Forum on the EU Temporary Protection Responses to the Ukraine War 

Contribution by Dr Daniela Vitiello, Researcher in EU law, University of Tuscia, Italy
7 June 2022

The Temporary Protection Directive (TPD) for refugees from Ukraine, and its implementing framework, are likely to remain a lex specialis with no prospect of generalisation to the CEAS, at least in the short term. The French Presidency’s proposals to introduce a new Eurodac category to fingerprint people given temporary protection at the external borders and to adopt an EU bill on screening, based on a quasi-absolute presumption of extraterritoriality, clearly militate in favour of such a conclusion.

Nonetheless, the  cooperative containment paradigm governing access to asylum in the EU is in crisis, being challenged not only from the human rights perspective, but also in light of its inefficiency in curbing secondary movements and restoring mutual trust within the Schengen area (on the downward trend of the dominant paradigm see, among others, Gammeltoft-Hansen and Tan).

Reform of the CEAS proposed under the New Pact on Migration and Asylum does not seem to prompt a shift in this trend. On the contrary, it builds upon a wide recourse to border securitisation and triggers a further informalisation of external action on migration containment, exploding the irrationality of the Common European Asylum System (CEAS)  (for a comprehensive analysis of the Pact, refer to the Special Collection edited by Thym here).

This reality provides momentum for a thorough reflection on alternative approaches, a reflection which could not help but consider the testbed offered by the implementing framework of the TPD for Ukraine, especially in light of its emphasis on mobility rights.

This analysis then feeds such a reflection by focusing on two different strategies to restore access to asylum in Europe: (i) reconnecting asylum to mobility rights through the interaction of different legal regimes (directly or indirectly) affecting the right to flee and seek protection in cases of mass displacement; and (ii) recurring to regime interaction to firm up extraterritorial access to asylum in individual cases. More precisely, the recourse to regime interaction sub(i) is examined in light of the TPD scheme, while its relevance sub(ii) is explored from the viewpoint of domestic litigation, considering recent case law by Italian courts as illustrative of the challenges it may pose to the very premises of the cooperative containment paradigm.

1. Temporary protection and mobility rights: access to asylum at the crossroads of different legal regimes

As underlined by van Selm in this Forum, the TPD is not about restricting asylum; rather, it is about channeling large numbers of asylum seekers towards an immediate protection status with a view to preserving the functioning of the CEAS. In doing so, this form of immediate protection does recognise the relevance of mobility rights on two different levels.

First, at the level of inter-state cooperation, mobility rights have been framed as essential for the spontaneous relocation of refugees within the European Union, lessening the burden on the most affected Member States while satisfying the principle of dual voluntarism (arts 25(2) and 26 TPD). The statement attached to the Implementing Decision, through which the Member States incidentally renounce implementing take-back procedures in case of protection holders’ unauthorised secondary movements, is eloquent in this regard (on the point, Peers, Thym, Ineli-Ciger, Savino and Gatta; see also Carrera et al., Lehman and Dimitriadi in this forum).

Second, at the substantive level, the recognition of mobility rights as a means to flee Ukraine and enjoy protection in Europe has created an alternative approach to the ordinary mode of reception and treatment of protection seekers at the borders by bolstering the right to flee and seek temporary protection at the EU external border and across Schengen internal ones.

At both levels, the setback of the rationale of the CEAS – as an asylum system premised upon a non-mobility regime – is noticeable. It has been attained through the interaction of different legal regimes, concurring to two distinguishable but intertwined outcomes for individuals: (a) a regular (though temporary) status recognised to all persons eligible for temporary protection on entry and triggering freedom of circulation within the EU; (b) an unconditional authorisation to entry the territory of the Member States bordering Ukraine, based on the relaxation of border controls and the non-penalisation of unauthorised crossings of the external borders.

(a) Regular status on entry, triggering mobility rights within the EU

The contours and contents of this status are first and foremost shaped by the 2017 agreement on visa liberalisation for Ukrainian nationals, who enjoy free entry and a right to stay for a period of 90 days in any 180-day period, so their access to asylum (and to the territory of the Union) cannot technically qualify as irregular.

In addition, Decision 2022/382 grants a right to enter the EU territory – and choose the country of destination in light of art. 8(3) TPD – to all those who are eligible for temporary protection. Since the right to move freely is construed as a derivative right triggered by the Implementing Decision, it shall not be conflated with the visa-free regime for Ukrainians. Indeed, its scope is broader at least as regards two dimensions: ratione personae, it also applies to non-visa-free travellers who qualify as recognised refugees or permanent residents in Ukraine; ratione temporis, it is not reserved for holders of a residence permit for temporary protection only, but extends to all persons entitled to temporary protection, even before the formal status recognition.

Thus, all categories of persons covered by the measure enjoy freedom of choice of the destination Member State, allowing for spontaneous redistribution according to meaningful links and diasporas. The EU visa legislation assists in the pursuit of this goal. If a person entitled to protection intends to avail herself of the temporary protection status in a Member State other than the Member State of first entry, the latter must provide a transit visa to allow circulation within the Schengen area, in accordance with art. 35(3) Visa Code. Should the person enter EU territory via a Member State which does not apply the Schengen acquis in full – and which, therefore, does not issue Schengen visas – two further options have been envisaged: the issuance of a transit visa at the consulate of the Member State of destination in the Member State of first entry, or the issuance of a travel document, drafted on the model transfer form included in Annex I TPD, by the Member State of first entry.

Even when lacking any of these options, the journey of persons entitled to temporary protection, who are not in possession of the required documentation to enter the Member State of destination, may not be stopped. They should in fact be allowed transit through the Schengen area and obtain a Schengen visa upon arrival in the Member State concerned. That is also why – in its operational guidelines on external borders management – the Commission recommended Member States to withdraw carrier sanctions for transporting persons entitled to temporary protection, but not in possession of a valid travel document, and to inform airlines thereof.

(b) Non-penalisation of unauthorised crossings of the external borders

Entry and mobility rights for those fleeing Ukraine, but falling outside the personal remit of the TPD’s implementing framework, present a different rationale: i.e. excluding the possibility that people escaping from war end up being trapped in legal limbos at external borders. These rights are determined by the entanglement of the TPD with the SBC, aimed at ensuring safe passage “with a view to returning to their country or region of origin”, for third country nationals who run no risk in case of return (recital 13 Decision 2022/382), or – eventually – for regularisation purposes under art. 7 TPD, if they have no prospects of safe return (art. 2(3) Decision 2022/382).

More precisely, these rights have been derived from the combined reading of SBC provisions setting derogations to the ordinary modalities of border surveillance in exceptional circumstances (arts 9 and 5(2)(b)) and to the standard conditions to authorise third-country nationals’ entry into the Schengen area for humanitarian purposes (art. 6(5)(c)).

Besides, it is worth underlining that the recognition of an encompassing right to flee and seek protection at the EU’s external borders has been advocated by the European Commission in a spirit of solidarity and sincere cooperation (art. 25 TPD). The very same systemic interpretation of the TPD and the SBC led the Commission to clarify that the fulfilment of certain administrative requirements in the proximity of external borders, such as the registration of personal data ex art. 10 TPD, shall not impinge in any manner on the enjoyment of the right to flee and seek asylum or temporary protection in the Member States (C(2022)1806, para. 1).

Thus, although the establishment and full operationalisation of a centralised refugee registration platform for Ukrainians is yet to come, the smooth transit of protection seekers across Schengen internal borders has been ensured by the majority of EU Member States, in compliance with the Commission’s guidelines for the implementation of Decision 2022/382.

Relinking asylum to mobility rights: obstacles on the road from temporariness to long-term perspectives

The activation of the TPD for refugees from Ukraine brought to the fore, once more, the irremediable flimsiness of the CEAS. It showed that an alternative to the blurring of asylum responsibility may be politically possible and strategically appropriate, offering an unprecedented opportunity to test the technical feasibility of a less coercive and more incentive-based governance of forced migrations towards the EU.

The road from this temporary scheme to feasible alternatives to the cooperative containment paradigm seems, nonetheless, fraught with procedural obstacles and operational barriers restricting access to asylum in Europe, while raising further human rights concerns due to the militarisation of migration management (Mitsilegas), the proliferation of border violence (Kuskonmaz and Guild) and the de-humanisation of people-on-the-move (Moreno-Lax).

These obstacles and barriers can be framed within two parallel trends.

First, the externalisation of asylum responsibilities to neighbouring countries through advanced techniques of de-territorialised surveillance and contactless control (Moreno-Lax). These techniques are premised upon cooperation with third countries (e.g., Italy-Libya, Spain-Morocco; Greece-Turkey), but also among the Member States (e.g. the cooperation on informal readmission between Italy, Slovenia and Croatia, leading to chain push-backs on the Balkan route), and end up depriving those who seek protection across international borders of any legal standing.

Second, the creation in the proximity of the borders of “free zones”, which are geographically located within the EU territory (and the Member States’ jurisdiction), but functionally governed by a special border regime applicable to forced migrants only. This regime is characterised by two interrelated legal machineries: the legal fiction of non-entry and the functional approximation of internal border checks to external border surveillance.

Why the New Pact will not change the rules of the game

The secondary legislation of the CEAS mirrors these trends through a “downward harmonisation” of national standards (Favilli), calling into question the respect of the rule of law (see, among many, the ruling of the CJEU in the FMS case), in both intra-Schengen relations (Moreno-Lax; Tsourdi) and the EU external action (Carrera et al.).

The proposals set forth in the New Pact on Migration and Asylum add to this complexity without shifting the focus from the cooperative containment paradigm. Rather, the combined reading of the proposals for a regulation on pre-entry screening, asylum procedures and asylum and migration management seems to uphold the development of “extraterritoriality triggers” in the governance of territorial asylum in Europe, while fostering a further expansion of the EU external action to divert the flows to third countries (Cassarino and Marin).

This picture is completed by the proposed reform of the SBC to respond to the unscrupulous recourse to the clauses for the temporary reintroduction of border controls by Member States (on which see the recent case law of the CJEU in NW; see also Guild; Cebulak and Morvillo). While attempting to rescue the area of free circulation, it may problematically legitimise bilateral cooperation on informal readmission with a view to allowing removal of irregular aliens detected “outside of the vicinity of internal borders”.

It is quite telling that, in light of the recent case law of the ECtHR in A.A. et al. v. North Macedonia, these barriers may not raise human rights concerns as long as they impede entry to the territory to aliens, including potential asylum-seekers, who have failed to comply with a procedure for legal entry (for a comment, see Schmalz). From this standpoint, the physical crossing of an international border in search of asylum does no longer automatically trigger an obligation on States to assess the related risks of refoulement. The risk assessment seems in fact subject to compliance with administrative requirements (similarly, N.D. and N.T.), which are enabled to impinge upon the very substance of the right to asylum.

2.  What role for domestic courts in restoring asylum in Europe? Insights from Italian case law

The reform of the CEAS may further restrict the “jurisdictional gateways” to protection, prompting a complete disconnection of EU asylum policy from its protection rationale. This rationale, however, resurfaces from the activation of the TPD, through which the EU and its Member States have (de facto) recognised as prima facie refugees people fleeing the war in Ukraine (on the idea to formally grant a prima facie refugee status in lieu of temporary protection, in situations of large displacement, see the EP Report on the Pact’s proposal addressing situations of crisis in the field of migration and asylum).

This development opens up a window of opportunity for change, which is still likely to remain fictional, at least in the short to medium term, taking into account the path drawn by the New Pact and the reluctance of the European Commission to engage in the promotion of alternative pathways through humanitarian visa (a vision which is shared by both the CJEU and the ECtHR; contra, see the EP Resolution on the situation in Afghanistan, para. 41).

At this juncture, the role of domestic courts in envisaging safe pathways to asylum, at least in individual cases, may be noteworthy. By shifting the focus from a non-existent right to immigrate to the well-entrenched right to asylum, as enshrined in the EU Charter (EUCFR) and in most national legal systems, they may help strengthen the asylum-mobility nexus and, thus, contribute to overcoming the cooperative containment paradigm in the long run.

This seems to be suggested by some Italian case law dealing with extraterritorial access to asylum by applicants who could not avail themselves of the international protection recognised on Italian soil. The emphasis on mobility rights to better substantiate the extraterritorial reach of the right to seek asylum is determined, in this case law, by the entanglement of different legal sources, pivoting around the constitutional right to asylum (on which see Corsi).

Access to asylum in case of illegal pushbacks at sea

The first ruling (no. 22917/2019) regarded a case of direct refoulement on the high seas, in which the Italian navy rescued and embarked 14 Eritrean citizens before handing them over to the Libyan coastguard, in the framework of the Italy-Libya cooperation on joint sea patrolling (see, for a comment, Leo). Drawing on the ECtHR landmark ruling in Hirsi, the Civil Court of Rome sanctioned the extraterritorial violation of the principle of non-refoulement by Italian authorities.

However, from this violation it did not only infer a right to damage compensation (as the ECtHR did in the Hirsi case). It moved further, by considering the illicit push-back at sea as directly thwarting the constitutional right to asylum, interpreted as a fully actionable “right to have rights”. Such a conclusion was reached on the basis of the consolidated case law of the Italian Court of Cassation, which has construed the right to asylum in art. 10(3) Const. as an expression of the broad openness of the legal system to the fundamental rights of all human beings (Cass. 29460/19, p. 13).

Thus, the Court of Rome held there were positive obligations on state authorities to restore the right infringed through the issuance of an entry visa and did so on the basis of the effective control exercised by the Italian navy on the applicants in distress at sea. In this sense, the illegal conduct of the intercepting authorities is framed as a “jurisdictional gateway” to gain access to territorial asylum in Italy.

It remains uncertain, though, whether a similar reasoning could be extended to forms of “interdiction by omission” (Moreno-Lax), in which a duty to protect life at sea can be deduced by the mere capability of public authorities to do so (see, e.g., HRC, A.S. et al. v. Italy). The connecting tie with the Italian legal order would be, in such a case, more difficult to establish, being caught up with the legal uncertainties surrounding the application of the causal link doctrine to positive obligations (on which see Milanovic).

Access to asylum in case of “informal” readmission

The second case concerns the 1996 readmission agreement between Italy and Slovenia, which has been implemented from spring 2020, leading to chain removals of some 1.300 migrants to Slovenia, and then from Slovenia to Croatia and, finally, to Serbia and Bosnia Herzegovina.

The legal basis for this cooperation can be found in art. 6(3) EU Return Directive and art. 13(14-ter) Italian Legislative Decree 286/98, which – obviously – shall apply in full compliance with the right to asylum and the principle of non-refoulement. On the contrary, the application of the readmission agreement between Italy and Slovenia also affected asylum seekers, who were denied leave to enter on the premises that they had not technically exited the Slovenian “sovereignty sphere” (Astuti et al.).

The Court departed from acknowledging that, in light of both art. 10(3) Italian Const. and art. 19 EUCFR, “once the foreigner has expressed her will to apply for asylum, the entry into the territory of the State cannot be considered irregular either, even if it happened irregularly” (order no. 56420/2020). Then, it declared in contrast with art. 24 Italian Const. and art. 47 EUCFR the deportation in violation of due process rights. In this way, the Civil Court recalled that the sovereign right to control entry to the territory is subject to the rule of law, which shall be restored by removing the legal consequences of ultra vires conducts on the enjoyment of the applicant’s rights.

On this basis, the Court ordered the Italian authorities to authorise entry of a Pakistani asylum seeker, who had been informally readmitted from Trieste to Slovenia and then swiftly pushed back to Bosnia across the Croatian border. Later on, the same Court accepted the appeal submitted by the Ministry of the Interior due to the lack of documental evidence of the applicant’s legal standing, even if it was directly dependent upon the informality of the chain refoulement in place on the Balkan route. Nonetheless, it did not refute its previous findings on the substantive and procedural unlawfulness of Italian conduct, aligning to the case law of the ECtHR in M.H. et al. v. Croatia.

Access to asylum through humanitarian visa: a slippery path

The two cases analysed above deal with extraterritorial access to asylum by applicants apprehended and illegally pushed back while striving to reach Italy to seek asylum. However, the Court of Rome also ventured into the slippery terrain of access to asylum through a humanitarian visa, in a case in which national authorities had no responsibility for the extraterritorial nature of the claim.

The case concerned two Afghan journalists, who applied for a humanitarian visa at the Italian Embassy of Islamabad, in order to have access to asylum in Italy (order no. 62652/2021). The connecting tie was (implicitly) identified in an Italian private sponsor (a citizen), who offered accommodation and integration means to the two asylum seekers upon arrival in Italy. In addition, the two applicants could demonstrate a serious and imminent risk of irreparable harm deriving from their political activism, adding to the war risks faced by all other Afghans. In this highly qualified situation, the Italian Court held that the State’s discretion to issue a humanitarian visa pursuant to art. 25(1)(a) Visa Code, read in conjunction with the constitutional right to asylum, shall empower the domestic judge to adopt urgent measures to avoid an irreparable harm, including though a leave to enter the Italian territory.

Although the decision was subsequently struck down because the applicants were granted access to Italy via a humanitarian corridor, its relevance for legal scholars is connected to the idea that territoriality is the primary link rule triggering the enjoyment of protection in territorial asylum systems, but not the only one prompting access to the system. Differently from the protection against refoulement, which – citing the landmark British case Regina v. Immigration Officer at Prague Airport – “cannot avail the appellants, who have not (…) presented themselves, save in a highly metaphorical sense, at the frontier”, taking the right to asylum seriously may foster an evolutive interpretation of connecting ties for extraterritorial access to asylum, at least in very specific and limited cases.