Humanitarian Visas and the External Dimensions of the EU Asylum and Migration Policy – A Workshop Report

The workshop Humanitarian Visas and the External Dimensions of the EU Asylum and Migration Policy, co-convened by Marie-Claire Foblets and Luc Leboeuf from the Department of Law and Anthropology of the Max Planck Institute for Social Anthropology and Winfried Kluth and Dirk Hanschel from the Law Faculty at Martin Luther University Halle-Wittenberg, was held at the Max Planck Institute for Social Anthropology on 17-18 May 2018. An edited volume based on the proceedings of the workshop will follow.

Workshop participants discussed the various aspects and tensions characterizing the current developments of the external dimensions of EU asylum and migration policy, which they addressed through the lens of legal controversies and practices on humanitarian visas, resettlement programmes, and other similar programmes such as ‘humanitarian corridors’. The workshop was convened following the X. and X. ruling, in which the Court of Justice of the European Union ruled that it has no competence to reply on the merits to the question of whether EU law prescribes the delivery of a humanitarian visa under specific circumstances, as this question is a matter of national law and not of EU law. The overall objective of the workshop was to reflect on the limits of the current legal framework and hence of what courts can achieve in regulating the external dimensions of EU migration and asylum policy, and on the forms that such external dimensions should take with a view to managing mobility in a human rights sensitive manner.

The limits of the international and European legal framework on humanitarian visas
In his introductory remarks, Luc Leboeuf highlighted how legal controversies on humanitarian visas exemplify the tensions that characterize the current developments in the external dimensions of EU asylum and migration policy, which navigate between human rights and security considerations and question the division of competence between the EU and its Member States. Discussions on the first panel, chaired by Burkhard Hess (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), addressed the international and European legal framework on humanitarian visas. In the first presentation, Dirk Hanschel (Martin Luther University Halle-Wittenberg) reflected on the territorial limits of international human rights obligations, which Nico Mol (European Court of Human Rights) further highlighted with respect to the case law of the ECtHR on humanitarian visas. Stephanie Law (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) showed that the scope of application of the EU Charter of Fundamental Rights differs from international human rights treaties. It must be respected by the Member States when implementing EU law, irrespective of the fact that EU law is being implemented in an extraterritorial situation. Sylvie Sarolea (University of Louvain – UCL) analysed the X. and X. case of the Court of Justice of the European Union. Her presentation discussed how the Court failed to address the ‘paradox of the foot in the door’, which arises because the protection provided by international and EU asylum law is limited to those asylum seekers who somehow manage to reach EU territory, often through human smuggling networks and at the risk of their lives. The discussions highlighted the limits of the current human rights and EU legal framework in regulating the external dimensions of the EU asylum and migration policy. They further showed the limits of what courts can achieve given the content of that framework and the broader political context, including the reluctance of the Member States to be subjected to a positive obligation to offer protection to asylum seekers who have not even reached their territory.

Public lecture and roundtable with François Crépeau
In the evening, François Crépeau (Hans & Tamar Oppenheimer Chair in Public International Law at the Faculty of Law of McGill University, holder of the International Francqui Chair at the University of Louvain - UCL, and former UN Special Rapporteur on the Human Rights of Migrants) gave a public lecture at the Martin Luther University Halle-Wittenberg on how mobility can be addressed from a human rights perspective. He called for new forms of migration governance that would facilitate mobility instead of pursuing the illusory objective of sealing borders. He showed how an approach that empowers migrants could support the emergence of such policies. His lecture was discussed by a panel chaired by Marie-Claire Foblets and composed of Constantin Hruschka (Max Planck Institute for Social Law and Social Policy), Sylvie Sarolea, and Daniel Thym (University of Konstanz). The discussants highlighted the vulnerable position of migrants within hosting societies and the legitimate interest of states to control migration. The panel discussion was followed by a debate with the room.

Humanitarian visas in practice
Discussions on the second day started with a presentation by Tristan Wibault, a lawyer at the Brussels Bar, who shared his experience of defending a family of Syrian asylum seekers in the X. and X. case. He showed how, in practice and contrary to what the notion of ‘strategic litigation’ may suggest, lawyers tend to react to the developments of a case rather than develop a proactive and comprehensive strategy aimed at obtaining modifications of the legal framework. His presentation was followed by a panel discussion, chaired by Winfried Kluth (Martin Luther University Halle-Wittenberg), which addressed the national legal framework and practices on humanitarian visas in three selected Member States and Switzerland (which is not an EU Member State but is associated to the Schengen area). Presentations were delivered by Constantin Hruschka, Katia Bianchini (Max Planck Institute for Religious and Ethnic Diversity), Pauline Endres de Oliveira (University of Giessen), and Serge Bodart (Belgian Council for Aliens Law Litigation) on, respectively, the Swiss, Italian, German, and Belgian legal frameworks. The discussions emphasized the great diversity of national practices and legal traditions, from the Swiss approach, which provides for humanitarian visas in the national legislation, to the Italian one, where ‘humanitarian corridors’ are organized on an ad hoc basis.  

Towards new forms of mobility management?
In the afternoon, the discussions started with a presentation by François Crépeau who, taking Canadian sponsorship programmes as an illustration, argued that humanitarian visas must fit within a broader framework of migration governance if they are to lead to meaningful results. He highlighted the role that the Global Compacts on Safe, Orderly and Regular Migration and on Refugees (which are currently under discussion within the EU) may play in providing the necessary framework to negotiate international agreements aimed at facilitating mobility. His presentation was followed by a panel discussion chaired by Marie-Claire Foblets. While agreeing on the necessity to enter into dialogue with developing countries so as to maximize ‘win-win’ situations in mobility management, Daniel Thym warned of the backlash from European public opinion that could result from arguing for an extensive interpretation of human rights in order to oppose border controls. Karel Uyttendaele presented his Circular Migration Project as an example of how to foster mobility and development. Sophie Nakueira (Max Planck Institute for Social Anthropology) presented the results of her fieldwork in a refugee camp in Uganda, on the basis of which she documented and analysed the pitfalls of current resettlement programmes. Catharina Ziebritzki (Max Planck Institute for Comparative Public Law and International Law) discussed the legal and implementation issues raised by the ‘EU–Turkey statement’, in which Turkey agreed to readmit asylum seekers who irregularly crossed its border. The discussions ended with the closing comments of Jean-Yves Carlier (University of Louvain – UCL), who underlined the necessity for the EU to address the external dimensions of its migration and asylum policy, while providing a minimal yet strong framework of human rights protection.

The challenges ahead
The workshop helped clarify the paradoxes and the limits of the legal framework when it comes to dealing with the external dimensions of EU asylum and migration policy. The discussions showed the necessity of further developing the international dialogue and cooperation on migration issues in order to manage mobility in a way that would be beneficial to the EU and to the international community as a whole. They highlighted the challenges that lay ahead, especially given the reluctance of the Member States and of European public opinion to facilitate migration to Europe and the diverging interests between the North and the South.