Blog post written by Dr. Reuven (Ruvi) Ziegler, Associate Professor in International Refugee Law at the School of Law, University of Reading. Ruvi is also Editor-in-Chief of the Refugee Law Initiative Working Paper Series. Ruvi will present on the ‘Crisis, Cross-border Mobility and State Responses in Europe and Latin America’ panel at the upcoming RLI 2nd Annual Conference. The full conference programme is available here.
In recent years, we have witnessed a European Union struggling to forge a common approach to the admission of onward movement of prospective ‘beneficiaries of international protection’ (BiP), which include 1951 Geneva Convention refugees and those grated ‘subsidiary protection status’ (Qualification Directive (Recast) Article 2), prompting calls by Guy Goodwin-Gill and others for the creation of a European Refugee and Migration Agency.
The ‘crisis’ has had (some) ripple effects on the ease of intra-Union travel of EU citizens (cue Schengen), but has not dented the fundamental principle that citizens of the Union shall enjoy ‘the right to move and reside freely within the territory of the Member States’ (TFEU Article 20) and Charter of Fundamental Rights Article 45. Indeed, in the aftermath of the 23rd June 2016 Brexit referendum, preservation of intra-Union travel of EU citizens as a principle continues to enjoy public support in the EU-27. Continental leaders praised the internal market and the indivisibility of its four freedoms: not just of capital, goods, and service, but of people.
However, while third country nationals (TCNs) legally residing in each of the 28 Member States enjoy freedom of movement within that state, pursuant to international human rights law, their cross-border movement rights are limited. Pertinently for the forthcoming Refugee Law Initiative 2nd Annual Conference, TCNs include persons recognised by EU Members States, pursuant to EU law, as BiP. While Article 33 of the EU Qualification Directive requires Member States to allow BiP intra-state freedom of movement under the same conditions that TCNs generally enjoy in those states, pursuant to Article 26 of the 1951 Refugee Convention, the 2003 Long-Term Residents Directive (LTRD) which facilitates cross-border mobility after five years of continuous residence had excluded BiP (Article 4). In 2011, the LTRD was amended to encompass BiP. Nevertheless, hitherto, BiP are excluded from the application of the ‘highly qualified employment’ Directive (‘Blue Card’ holders) (Article 3(2(b)). The European Commission recently proposed revising the Directive by extending its application to BiP.
I suggest that BiP are the ultimate non-citizen ‘Europeans’: they are granted international protection by an EU Member States based on a uniform status, determined by EU law (Qualification Directive) which is authoritatively interpreted by the European Court of Justice. The question which EU Member State is responsible for determining eligibility is similarly determined by EU law, the (in)famous ‘Dublin’ Regulation. Indeed, as noted above, these features distinguish BiP from other TCNs: Member States generally make first admissions decisions regarding the latter based on their (independently determined) immigration policy.
Hence, I would argue that, whilst the responsibility for determining the status of an individual as a BiP lies with (one) Member State, their mobility ought not be restricted to that Member State. BiP are forced migrants; they are unable to return to their country of origin and thus wholly dependent on their state of asylum. The creation of an EU Protection space where BiP can exercise mobility rights could carry an emancipatory potential: one that is not only realised through actual movement, but also liberates the BiP to seek domicile that would better align with their own preferences.
Indeed, the Member State in which their application has been assessed may not necessarily be best placed to facilitate their integration, as per Article 34 of the 1951 Convention relating to the Status of Refugees (concerning refugees) as promulgated in Article 34 of the Qualification Directive (in respect of BiP) and affirmed in the CJEU Alo and Asso judgment. Should BiP enjoy cross-border mobility rights, by exercising them they would be actively choosing a given Member State, and thus potentially more likely to integrate. Inadvertently, such reform could also result in more equitable responsibility sharing.
The UK’s impending withdrawal from the EU will require the EU to revisit some of its existing prospects of free movement. It has been recently proposed to open for UK citizens qua former EU citizens the possibility (‘opt-in’) of acquiring a newly created Associate Citizenship which would guarantee their mobility rights post-Brexit. It may be a fortuitous time to revisit cross-border mobility rights of BiP with a view to creating a truly European protection space.
The views expressed in this article belong to the author and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.