28 March 2012
Council Presidency proposal on security screening of all immigrants
The Danish Presidency of the EU has put forward a proposal on "the investigation and prosecution of war crimes and crimes against humanity etc" which will require the screening of all immigrants.
The proposed new 'third pillar' Decision on screening of migrants
would require Member States to screen all immigrants, apparently
including all asylum-seekers, for an undefined list of crimes.
This would include entirely open-ended powers for law enforcement
authorities (likely including security services) to become involved
in immigration and asylum decisions.
There is no regard paid to the rights of immigrants or asylum-seekers to protection from persecution, the right to family life, and there is no provision for data protection, information for the persons concerned by such decisions, or for the judicial control or scrutiny of the decisions taken.
Moreover, the legality of the key parts of this proposal is highly questionable on several grounds. The proposal, moreover, is a missed opportunity to consider measures that would ensure that the EU guaranteed the effectiveness of the new ICC against genuine war criminals.
The proposed Decision could have the Kafkaesque result that persons, including genuine refugees, EU citizens and their family members, are denied a residence permit without ever knowing the reasons why or having a chance to challenge these reasons.
Article 1 sets out the purpose of this proposal. Article 2 requires a system to be set up to inform law enforcement authorities where a suspicion arises when processing a residence permit application that the applicant could be prosecuted for one of the acts referred to in Article 1. It is not limited to residence permit applications by third-country nationals (non-EU citizens) and so could apply to applications for residence permits by EU citizens and their family members.
Article 3 sets out an obligation to investigate and prosecute offences as defined in Article 1. More particularly, Article 3(3) requires an exchange of information where a person has already applied for a residence permit to another Member State. Article 3(4) requires a Member State to provide information to another Member State when it becomes aware of that person's presence in the latter Member State.
Articles 4 and 5 provide for coordination and periodic meetings related to the prosecution of crimes within the scope of Article 1 of the proposal, although Article 5(2) only applies to war crimes.
Analysis in detail
All Member States have an obligation under the International Criminal Court (ICC) Statute to ensure that persons potentially guilty of war crimes, genocide or crimes against humanity are either prosecuted in their own courts or turned over for prosecution by the International Criminal Court, and Articles 4 and 5 of this proposal would contribute to that end (although it is not clear how they relate to a recent Decision on the same issue agreed by the Council). But there are two huge problems with this proposal.
The first problem is what the proposal leaves out. Significant changes to achieve the goals of the ICC, like enabling civil claims for compensation against the guilty parties, enlarging criminal and civil jurisdiction over such crimes, and eliminating immunity for heads of state, et al, are not suggested by this Decision.
The second problem is what the proposal includes in Articles 1 and 2 (and by extension, Article 3). Article 1 defines the Decision's aim as strengthening the investigation and prosecution of 'war crimes or other similar serious offences, including terrorism'. The terms 'war crimes' and 'terrorism' are not defined, either by reference to the Statute on the International Criminal Court or to the recent EU framework decision on terrorism. Is the phrase 'similar serious offences' intended only to cover the other crimes within the jurisdiction of the ICC (genocide and crimes against humanity) or is it intended to be broader? Nothing in the main text of the proposal gives any indication of the intention.
Article 2, which concerns processing applications for residence permits, is unclear in the absence of a definition of 'residence permit'. Is this concept of 'residence permit' the same as under the Schengen rules (which do not include documents relating to permission to reside as an asylum-seeker as 'residence permits')? Or is the proposed Decision also aiming to ensure that all applicants for refugee status under the 1951 Geneva Convention on the status of refugees or for other forms of international protection are 'screened' under this system? The sixth point in the preamble seems to suggest that the Decision indeed aims to introduce the screening of all asylum-seekers. If that is the case, then the Decision should make it clear that for asylum-seekers such screening must be limited to the cases set out in Article 1.F of the Geneva Convention, which set outs exhaustively the grounds for refusing refugee status to a person who would otherwise be defined as a refugee. There is a risk that the broad wording of Article 1 of the proposal could also result in screening of applications on grounds besides those set out in Article 1.F of the Convention. Furthermore, the Decision makes no reference to the protection against expulsion to countries where a person faces a real risk of the death penalty or of torture or other inhuman or degrading treatment, as follows from the Sixth Protocol to and Article 3 of the European Convention on Human Rights (ECHR) and by the EU Charter of Fundamental Rights. Even persons suspected of such crimes are protected by these provisions of the ECHR from expulsion to face the death penalty or torture or similar treatment (see the European Court of Human Rights judgments in Chahal v UK and Ahmed v Austria).
While the proposal does not expressly require that persons refused residence permits following application of the Decision must be expelled, it seems likely that expulsion will follow in the absence of any provisions concerning the status of the applications for residence permits in the event that a prosecution is not brought or is unsuccessful.
The proposal is also not clear as to what the involvement of law enforcement authorities in residence permit decisions 'to the extent necessary' will entail, on top of the proposed obligation to contact law enforcement authorities for the purpose of prosecution. This suggests involvement by law enforcement authorities in these decisions above and beyond potential prosecution. What does that entail and how can effective judicial control of such decisions be ensured, in particular where there are human rights grounds or EC law grounds for granting or renewing the residence permit? This appears to ignore the obligations of the ECHR to ensure an effective remedy for family reunion cases (recent judgment of the Human Rights Court in Al-Nashif v Bulgaria) and asylum cases (for instance, see judgments of the the Human Rights Court in Chahal v UK, Jabari v Turkey and Conka v Belgium) and the EC law obligation to ensure fair decision-making and effective remedies for EC nationals and their family members along with persons covered by EC law (for example, under EC treaties with third states and proposed or agreed legislation on immigration and asylum).
Also, there is no reference to data protection obligations in Article 2, even indirectly by reference to national or international law.
The proposal does not convincingly set out the reasons why the potential applications for a residence permit by a person who might genuinely be suspected of serious crimes cannot be dealt with under existing rules. As mentioned above, Article 1.F of the Geneva Convention on refugees already requires states to refuse refugee status to persons suspected of serious crimes under certain conditions, and there is extensive experience of and literature on applying this provision. Also, Article 25 of the 1990 Schengen Convention already sets out rules on security screening of applications for residence permits.
The focus of Article 2 on processing of residence permits suggests that this Article should not be in a 'third pillar' Decision, but rather proposed as an immigration and asylum law measure. For example, Article 25 of the 1990 Schengen Convention (mentioned above) was considered to be an act based on the EC Treaty by the Council in 1999.
Furthermore, for the reasons set out above, the legality of Articles 1-3 of the proposal is also doubtful to the extent that those provisions affect residence permit applications by EU citizens and their family members, who have a right to move to other Member States based on the EC Treaty and EC legislation and apply for residence permits to serve as proof of this right, or residence permit applications made by other persons governed by EC legislation or treaties agreed by the EC.
1. Initiative of the Kingdom of Denmark with a view to the adoption by the Council of a draft Council Decision on the investigation and prosecution of war crimes and crimes against humanity etc: 10204/02 (pdf)
2. Explanatory Note: 10204/02
ADD 1 (pdf)
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