Pub Date : 2021-12-21DOI: 10.1163/15718166-12340114
N. Vavoula
Since the past three decades, an elaborate legal framework on the operation of EU-Schengen information systems has been developed, whereby in the near future a series of personal data concerning almost all third-country nationals (TCN s) with an administrative or criminal law link with the EU/Schengen area will be monitored through at least one information system. This article provides a legal analysis on the embedment of Artificial Intelligence (AI) tools at the EU level in information systems for TCN s and critically examines the fundamental rights concerns that ensue from the use AI to manage and control migration. It discusses automated risk assessment and algorithmic profiling used to examine applications for travel authorisations and Schengen visas, the shift towards the processing of facial images of TCN s and the creation of future-proof information systems that anticipate the use of facial recognition technology. The contribution understands information systems as enabling the datafication of mobility and as security tools in an era whereby a foreigner is risky by default. It is argued that a violation of the right to respect for private life is merely the gateway for a series of other fundamental rights which are impacted, such as non-discrimination and right to effective remedies.
{"title":"Artificial Intelligence (AI) at Schengen Borders: Automated Processing, Algorithmic Profiling and Facial Recognition in the Era of Techno-Solutionism","authors":"N. Vavoula","doi":"10.1163/15718166-12340114","DOIUrl":"https://doi.org/10.1163/15718166-12340114","url":null,"abstract":"\u0000Since the past three decades, an elaborate legal framework on the operation of EU-Schengen information systems has been developed, whereby in the near future a series of personal data concerning almost all third-country nationals (TCN s) with an administrative or criminal law link with the EU/Schengen area will be monitored through at least one information system. This article provides a legal analysis on the embedment of Artificial Intelligence (AI) tools at the EU level in information systems for TCN s and critically examines the fundamental rights concerns that ensue from the use AI to manage and control migration. It discusses automated risk assessment and algorithmic profiling used to examine applications for travel authorisations and Schengen visas, the shift towards the processing of facial images of TCN s and the creation of future-proof information systems that anticipate the use of facial recognition technology. The contribution understands information systems as enabling the datafication of mobility and as security tools in an era whereby a foreigner is risky by default. It is argued that a violation of the right to respect for private life is merely the gateway for a series of other fundamental rights which are impacted, such as non-discrimination and right to effective remedies.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48067690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-12-21DOI: 10.1163/15718166-12340116
T. Strik
Although the Schengen Border Code (SBC) explicitly obliges Member States to apply the Schengen rules in full compliance with the fundamental rights, Member States’ adherence to this obligation can be questioned in light of recurrent and reliable reports about fundamental rights violations at the EU’s external borders. This contribution will examine why, apart from the deficiencies in the SCHE-VAL mechanism, the current response towards fundamental rights violations at the border is ineffective. First, it will analyse the legal framework, including the implementing rules, to see if additional guidance is needed. Second, the enforcement mechanisms will be examined: how are violations being addressed at the national level, and how does the EU Commission perceive and fulfills its role regarding enforcement of compliance? As the Commission has often referred to the monitoring mechanism as proposed in the draft Screening Regulation, the contribution will examine to what extent this New Pact file will help to resolve the current impunity. Finally, the article will analyse the role of Frontex regarding human rights violations by Member States. What is their responsibility, how do they perform it, and who is enforcing compliance by Frontex?
{"title":"Fundamental Rights as the Cornerstone of Schengen","authors":"T. Strik","doi":"10.1163/15718166-12340116","DOIUrl":"https://doi.org/10.1163/15718166-12340116","url":null,"abstract":"\u0000Although the Schengen Border Code (SBC) explicitly obliges Member States to apply the Schengen rules in full compliance with the fundamental rights, Member States’ adherence to this obligation can be questioned in light of recurrent and reliable reports about fundamental rights violations at the EU’s external borders. This contribution will examine why, apart from the deficiencies in the SCHE-VAL mechanism, the current response towards fundamental rights violations at the border is ineffective. First, it will analyse the legal framework, including the implementing rules, to see if additional guidance is needed. Second, the enforcement mechanisms will be examined: how are violations being addressed at the national level, and how does the EU Commission perceive and fulfills its role regarding enforcement of compliance? As the Commission has often referred to the monitoring mechanism as proposed in the draft Screening Regulation, the contribution will examine to what extent this New Pact file will help to resolve the current impunity. Finally, the article will analyse the role of Frontex regarding human rights violations by Member States. What is their responsibility, how do they perform it, and who is enforcing compliance by Frontex?","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":"1 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"65164799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1163/15718166-12340106
Annick Pijnenburg
{"title":"Controlling Immigration Through Criminal Law: European and Comparative Perspectives on ‘Crimmigration’, edited by Gian Luigi Gatta, Valsamis Mitsilegas and Stefano Zirulia","authors":"Annick Pijnenburg","doi":"10.1163/15718166-12340106","DOIUrl":"https://doi.org/10.1163/15718166-12340106","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46608914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1163/15718166-12340103
Madalina Moraru, L. Janků
This article investigates the development of national litigation against the Czech Republic’s governmental policy to detain asylum seekers under the Dublin III Regulation, as a means to address the so-called refugee crisis. The outcome of this litigation has been the preliminary ruling of the Court of Justice of the European Union in the Al Chodor case, which has been praised for enhancing domestic standards of protection of asylum seekers and returnees’ right to liberty across the EU. The article demonstrates that this preliminary ruling has been a catalyst for domestic legislative and jurisprudential reforms across the EU, improving to a certain extent the protection of the right to liberty of asylum seekers. However, it is argued that in the Czech Republic the case has not initiated a change in the legislation, nor has it reduced the systematic use of asylum detention. The article identifies some important legal, political and social factors from within and beyond courtrooms that have contributed to this ambiguous outcome of the Czech litigation. It concludes by identifying circumstances that need to be taken into account when using the preliminary reference procedure as a tool for strategic litigation.
{"title":"Czech Litigation on Systematic Detention of Asylum Seekers: Ripple Effects across Europe","authors":"Madalina Moraru, L. Janků","doi":"10.1163/15718166-12340103","DOIUrl":"https://doi.org/10.1163/15718166-12340103","url":null,"abstract":"\u0000This article investigates the development of national litigation against the Czech Republic’s governmental policy to detain asylum seekers under the Dublin III Regulation, as a means to address the so-called refugee crisis. The outcome of this litigation has been the preliminary ruling of the Court of Justice of the European Union in the Al Chodor case, which has been praised for enhancing domestic standards of protection of asylum seekers and returnees’ right to liberty across the EU. The article demonstrates that this preliminary ruling has been a catalyst for domestic legislative and jurisprudential reforms across the EU, improving to a certain extent the protection of the right to liberty of asylum seekers. However, it is argued that in the Czech Republic the case has not initiated a change in the legislation, nor has it reduced the systematic use of asylum detention. The article identifies some important legal, political and social factors from within and beyond courtrooms that have contributed to this ambiguous outcome of the Czech litigation. It concludes by identifying circumstances that need to be taken into account when using the preliminary reference procedure as a tool for strategic litigation.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49385120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1163/15718166-12340105
Timo Knäbe, Hervé Yves Caniard
With its Judgment of 27 November 2019 in Case T-31/18 Luisa Izuzquiza and Arne Semsrott v European Border and Coast Guard Agency (Frontex), the Court of Justice of the European Union opened a new chapter in the elaboration of the two seemingly antagonistic interests enshrined in Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents: the public’s fundamental right to transparency versus the public’s interest as regards “public security”. Focusing on the evolution of “public security” in the EU since 1993, this case note analyses the CJEU’s balancing of these principles, its increased scrutiny of Frontex administrative decisions, and the extent to which Frontex had to justify its denial to grant access to documents through the lens of the management of sensitive operational information. This examination puts the judgment in the context of the ongoing situation in the central Mediterranean and, by providing detailed insights on the underlying operational considerations, shows that the fundamental and wide-reaching right to transparency has to be balanced with the need to protect crew and vessels and the implementation and enforcement of the Frontex mandate. While continuing established case law in its use of the public security exception (a so-called absolute exception that is not subject to an overriding public interest test), in this case the CJEU subsumed, for the first time, individual subjective rights and legal interests under public security. This article argues that this amounts to the individualisation of public security. As pointed out by Frontex in its written and oral defence, the CJEU thus opened the door to extending the scope of public security to also include other groups of people in the government’s continuous and exclusive de jure and de facto control. The conclusion from the Frontex Case is thus that protecting life at sea and ensuring effective border surveillance are two sides of the same medal as they have a common aim: combatting human smugglers, traffickers in human beings and other criminals and safeguarding life, safety and physical integrity of law-enforcement crew and migrants alike.
{"title":"Public Security Revisited","authors":"Timo Knäbe, Hervé Yves Caniard","doi":"10.1163/15718166-12340105","DOIUrl":"https://doi.org/10.1163/15718166-12340105","url":null,"abstract":"\u0000With its Judgment of 27 November 2019 in Case T-31/18 Luisa Izuzquiza and Arne Semsrott v European Border and Coast Guard Agency (Frontex), the Court of Justice of the European Union opened a new chapter in the elaboration of the two seemingly antagonistic interests enshrined in Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents: the public’s fundamental right to transparency versus the public’s interest as regards “public security”. Focusing on the evolution of “public security” in the EU since 1993, this case note analyses the CJEU’s balancing of these principles, its increased scrutiny of Frontex administrative decisions, and the extent to which Frontex had to justify its denial to grant access to documents through the lens of the management of sensitive operational information. This examination puts the judgment in the context of the ongoing situation in the central Mediterranean and, by providing detailed insights on the underlying operational considerations, shows that the fundamental and wide-reaching right to transparency has to be balanced with the need to protect crew and vessels and the implementation and enforcement of the Frontex mandate. While continuing established case law in its use of the public security exception (a so-called absolute exception that is not subject to an overriding public interest test), in this case the CJEU subsumed, for the first time, individual subjective rights and legal interests under public security. This article argues that this amounts to the individualisation of public security. As pointed out by Frontex in its written and oral defence, the CJEU thus opened the door to extending the scope of public security to also include other groups of people in the government’s continuous and exclusive de jure and de facto control. The conclusion from the Frontex Case is thus that protecting life at sea and ensuring effective border surveillance are two sides of the same medal as they have a common aim: combatting human smugglers, traffickers in human beings and other criminals and safeguarding life, safety and physical integrity of law-enforcement crew and migrants alike.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49359527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1163/15718166-12340108
Johanna Vanto
{"title":"Queer Migration and Asylum in Europe, edited by Richard C.M. Mole","authors":"Johanna Vanto","doi":"10.1163/15718166-12340108","DOIUrl":"https://doi.org/10.1163/15718166-12340108","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45270451","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1163/15718166-12340102
C. Downes
The increase in numbers of children travelling unaccompanied to Europe has provoked a sensitive debate as to how to treat their family members. While EU Member States generally grant family reunification for unaccompanied minors, the UK has opted to permit reunion in only ‘exceptional circumstances’. Widely criticised, the UK government counters that child-sponsored family reunification creates incentives for unaccompanied migration that place children at risk. This article explores both policies from a human rights perspective. It suggests that, as regards children reaching Europe, EU policy is more consistent with human rights norms. However, UK policy raises legitimate questions about obligations towards children beyond Europe’s borders. A rights-based justification for either EU or UK policy can be constructed, but requires recourse to additional principles on the balancing of rights among different groups of children. Clearer articulation and scrutiny of these principles could strengthen the rights rationale for child-sponsored family reunification.
{"title":"EU or UK Child-Sponsored Family Reunification Policy: Who’s Right? Whose Rights?","authors":"C. Downes","doi":"10.1163/15718166-12340102","DOIUrl":"https://doi.org/10.1163/15718166-12340102","url":null,"abstract":"\u0000The increase in numbers of children travelling unaccompanied to Europe has provoked a sensitive debate as to how to treat their family members. While EU Member States generally grant family reunification for unaccompanied minors, the UK has opted to permit reunion in only ‘exceptional circumstances’. Widely criticised, the UK government counters that child-sponsored family reunification creates incentives for unaccompanied migration that place children at risk. This article explores both policies from a human rights perspective. It suggests that, as regards children reaching Europe, EU policy is more consistent with human rights norms. However, UK policy raises legitimate questions about obligations towards children beyond Europe’s borders. A rights-based justification for either EU or UK policy can be constructed, but requires recourse to additional principles on the balancing of rights among different groups of children. Clearer articulation and scrutiny of these principles could strengthen the rights rationale for child-sponsored family reunification.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42983425","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1163/15718166-12340107
Alan Desmond
{"title":"Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union, edited by Madalina Moraru, Galina Cornelisse, Philippe De Bruycker","authors":"Alan Desmond","doi":"10.1163/15718166-12340107","DOIUrl":"https://doi.org/10.1163/15718166-12340107","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44696586","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1163/15718166-12340101
Olivia Sundberg Diez, F. Trauner, Marie De Somer
The concept of ‘return sponsorships’ is central to the European Commission’s New Pact on Migration and Asylum, and its ambition to deliver a “fresh start on migration”. Enabling a system of mandatory yet flexible solidarity, the concept is designed to overcome the opposing viewpoints that have long marked political discussions over responsibility-sharing within Europe. This article critically considers whether return sponsorships can work in practice. It identifies three challenges. First, the proposal’s envisioned solidarity measures lack predictability and tangibility. Second, return sponsorships will create new vulnerabilities for those issued return orders. Third, the mechanism is informed by the improbable assumption that more conditionalities vis-à-vis third countries will substantially increase the EU’s return rate. Overall, the Commission is taking a considerable risk. The return sponsorship concept will likely prolong the polarised discussions among Member States and provide only modest support to countries at the EU’s external border.
{"title":"Return Sponsorships in the EU’s New Pact on Migration and Asylum: High Stakes, Low Gains","authors":"Olivia Sundberg Diez, F. Trauner, Marie De Somer","doi":"10.1163/15718166-12340101","DOIUrl":"https://doi.org/10.1163/15718166-12340101","url":null,"abstract":"\u0000The concept of ‘return sponsorships’ is central to the European Commission’s New Pact on Migration and Asylum, and its ambition to deliver a “fresh start on migration”. Enabling a system of mandatory yet flexible solidarity, the concept is designed to overcome the opposing viewpoints that have long marked political discussions over responsibility-sharing within Europe. This article critically considers whether return sponsorships can work in practice. It identifies three challenges. First, the proposal’s envisioned solidarity measures lack predictability and tangibility. Second, return sponsorships will create new vulnerabilities for those issued return orders. Third, the mechanism is informed by the improbable assumption that more conditionalities vis-à-vis third countries will substantially increase the EU’s return rate. Overall, the Commission is taking a considerable risk. The return sponsorship concept will likely prolong the polarised discussions among Member States and provide only modest support to countries at the EU’s external border.","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48513151","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-10DOI: 10.1163/15718166-12340109
Giovanna Gilleri, Aurelia Guo
{"title":"African Migration, Human Rights and Literature, written by Fareda Banda","authors":"Giovanna Gilleri, Aurelia Guo","doi":"10.1163/15718166-12340109","DOIUrl":"https://doi.org/10.1163/15718166-12340109","url":null,"abstract":"","PeriodicalId":51819,"journal":{"name":"European Journal of Migration and Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2021-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48772338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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