The Court of Justice of the European Union and the right to asylum

The Court of Justice of the European Union could become the main obstacle to the attempt by the Commission, the European People’s Party and certain Member States to further tighten migration policies, by suspending the right to asylum in crisis situations under the pretext of Ceuta. In her State of the Union address in September, Ursula von der Leyen announced her intention to propose a new ‘emergency response mechanism’ to enable Member States to deal with ‘scenarios in which mass movements are orchestrated and exploited’. One of the envisaged derogations concerns the individual right to asylum, which could be suspended to allow for immediate repatriations and expulsions.

The details are not yet known. The interior ministers discussed the matter yesterday at a meeting in Luxembourg. However, the Commissioner responsible for migration, Magnus Brunner, did not include the right to asylum amongst the ‘red lines’ that the EU does not intend to cross. The criteria for determining when migration flows are being exploited and for triggering the emergency mechanism could be very broad. Brunner highlighted the role played in Ceuta by human traffickers, who are behind every irregular movement. “Europe needs the means to protect its borders at all times. This is not just a matter of migration, but a matter of security,” said Brunner: “We will never compromise.” The judges in Luxembourg may not agree. In a ruling published yesterday, they confirmed that the automatic suspension of the examination of asylum applications violates EU law. The case is different from that of Ceuta. But the message is clear: a blanket and automatic suspension of the right to asylum, on the grounds that a Member State is facing difficulties, is not permitted under EU law.