The Challenges for Asylum Seekers’ Rights from Populist Majorities’ Interventions on Domestic Asylum Procedures and the Judicial Activism of the CJEU

In the last two decades Europe has seen a dramatic rise of populist parties which have gained increasingly large consensus and electoral support in national political arenas but also in the European Parliament elections. Anti-establishment populism grew enormously all-around Europe since the turn of the century and even more following the financial crisis of 2008: according to a research conducted by the Guardian, between 1998 and 2018, the number of Europeans voting for populist parties in national votes has surged from 7% to more than 25%. The recent boom in voter support for the radical right and populist parties in European countries can be seen as a backlash against the political establishment, but the wave of discontent is also related to concerns about globalisation, immigration, a dilution of national identity and the EU itself. The second, in particular, is currently the key issue used by populists who designate immigrants as responsible of the economic and social problems that European citizens are facing. For this reason, one of the main priorities in their agendas is stopping the influx of aliens through the modification of national asylum systems in order to disincentivize the arrival and staying of third-country nationals. 

In Europe, the asylum procedures are importantly defined by EU law: the CEAS instruments – in particular the Procedures Directive 2013/32 and the Qualification Directive 2011/95 – provide common rules and guarantees underpinning the domestic asylum systems of EU member states. The aim of these directives and regulations adopted since the early 2000s was, indeed, the harmonization of the different national systems for the grant of international protection in Europe. EU law provisions establish significant safeguards for asylum seekers and refugees during the whole asylum procedure and afterwards, consequently requiring the states to adapt the structure and the work of their public authorities to those standards.

Recently, it is quite common to see governments’ interventions to change national laws regulating the asylum process, mostly resulting in lowering the rights and guarantees of asylum seekers and refugees to the lowest level possible under the minimum standards established by the CEAS instruments. However, member states are bound by EU law provisions and by the case law of the Court of Justice which looks at their correct implementation. The role of the Court of Justice of the European Union (CJEU), thus, is increasingly important to avoid that changes in national legislations modify the domestic procedures as to violate the guarantees and rights of asylum seekers enshrined in Union law. Recent advisory opinions given by the Court, indeed, demonstrate its willingness to limit the discretion of national governments to change laws in ways that violate asylum seekers’ rights and EU law. 

Nationalist right-wing populist parties arose in most EU member states, such as the far-right Alternative for Germany (AfD), the Vox party in Spain, the Freedom Party (FPÖ) in Austria, the National Rally (formerly National Front - NF) in France, the League and the Five Star Movement in Italy. But probably, the most striking case is the Hungarian populist government of Viktor Orbán ruling from 2010 on. His campaigns were mainly focused on the themes of security and immigration, with the use of slogans attacking also EU institutions. The European Union and refugees are commonly under attack in the rhetoric of radical right populist parties: they have increasingly become the critical themes on which electoral debates take place and where populists gain support of the public more likely. Where such right-wing populist parties manage to win seats in national parliaments – and in some cases even the majority, like in Hungary – they gain power to influence and to lead legislative interventions on relevant aspects of the country’s legal order, especially in the key matters of their agendas: immigration and asylum. 

In Hungary, since September 2015 Orbán’s Government introduced a “state of crisis due to mass migration” adopting special rules applicable to third-country nationals irregularly entering and/or staying in Hungary and to asylum seekers. Moreover, the it introduced several amendments to laws on asylum, tightening the procedures for the grant of international protection and limiting procedural guarantees and access to services and integration support to asylum seekers. For example, the amendment of September 2015 to the Hungarian Criminal Code made people convicted of unauthorized border crossing punishable by three to ten years imprisonment. Other legal changes modified the duration of residence permits issued for asylum or subsidiary protection which, since 2016, was dramatically reduced from 10 to 3 years for the former and from 5 to 3 years for the latter.

Similarly, in these last years, most European governments have adopted stricter policies and laws on immigration and asylum, and this evidently goes in parallel with the rise of anti-immigration populist forces in national parliaments. Looking, in particular, at three EU member states – Italy, the UK and Sweden – where populist parties have recently acquired large consensus, it is evident that, despite a different position adopted in the respective political arenas, they exercise a relevant influence on national policies leading to legislative reforms aimed at modifying asylum procedures and reducing procedural guarantees for asylum seekers. 
In Italy, as we know, for one year following the 2018 elections, the League and the Five Star Movement formed a populist coalition at government – the so-called "yellow-green Government" – during which the anti-immigration agenda of the League was implemented through changes in the legislation regulating the Italian asylum system (the "security decree" of October 2018 and the "security decree bis" of July 2019). These reforms were strongly criticised by many NGOs but also local institutions, because inter alia abolished the third type of international protection – the humanitarian one –, extended the detention of asylum seekers for identification or return, restricted the access to the reception system only to protection holders, leaving asylum seekers waiting for a decision in first reception centres with poorer services, etc.

In Sweden, the populist party of the Sweden Democrats (SD) has not taken part to a government until now, but it is increasingly gaining electoral consensus and in the last 2018 elections it became the third largest party in the Swedish Parliament. This implies that for the other mainstream parties it is increasingly difficult to form a government without involving the radical right SD, and on the other hand it means that in these last years this party has acquired more power to influence the public discourse and the government’s policies, especially on immigration and asylum. We can notice, indeed, that since 2016 Sweden has changed its attitude that until then was characterised by an "open door policy" for asylum seekers: Sweden was long considered "the land of asylum" (during the 2015 crisis it was the European country welcoming the highest number of asylum seekers per capita). In 2016, the Swedish government began to adopt stricter policies reintroducing, for example, border checks and limiting the granting and the duration of residence permits and the right to family reunification through the Law on temporary limitations to the possibility to be granted residence permits prolonged until 2021. 

The UK is a different case from the Italian and Swedish ones: the existing populist party, the UK Independence Party – recently reorganised in the Brexit Party – has always been a political force outside the national institutions (it won a seat in the Parliament only between 2015 and 2017). However, the UKIP was able to strongly influence the public opinion through a smart Eurosceptic and anti-immigration rhetoric focused on the necessity for Britain to take back control on laws and national borders by leaving the European Union and limiting immigration. The latter, indeed, was used by the party as a leverage to convince people that national security would be increased only if the UK took back ‘full sovereignty’ and control on borders and immigrants. Such campaigning was able to influence the public and change the priorities in the Government’s agenda: on one side, a stricter approach to immigration was adopted in the last years, for example through the Immigration Act 2016, and on the other side, the party reached its main goal through the 2016 membership referendum where the Leave side won.

Figure 1: Leave voters world cloud. From britishelectionstudy.com, 11 July 2016.

Brexit, thus, is relevant in this analysis as highlights how the issues of immigration and asylum are recently used by the radical right populists to attack the European Union. Similar discourses are used by Orbán and by Eurosceptics all around Europe: the focus of their rhetoric is on the sovereignty issue and the need for member states to take back control over their laws and take decisions autonomously without the ‘interference’ of the Union. The expressions used by the Hungarian Prime Minister, like “The question was ‘Brussels or Budapest’ and we decided this issue is exclusively the competence of Budapest”, are not so different from the UKIP’s arguments for Brexit or former British Prime Minister Theresa May’s wordings like “to take back control of our laws”, “powers are repatriated from Brussels back to Britain” and “We will get control of the number of people coming to Britain from the EU”. 

Evidently, the refugee issue is now strongly linked to the competition occurring between member states and the EU on the division of competences, and thus, sovereignty: criticisms on how the Union was not able to properly tackle the huge increase of immigrants in the last years gave further strength and public support to those populist parties which have long attacked the European integration process and the EU institutions. Thus, immigration, together with the economic issues, is the main ground for the struggle between the European Union and its member states: in periods of ‘emergency’, governments claim to take back those powers they devolved to the Union during the 1990s through the founding treaties, and in particular ‘full sovereignty’ on the control of national borders and the power to decide who can enter their territory. 

As seen above from the examples of Italy, Sweden and the UK, radical right populists have increasingly gained power to influence national policies, favouring legislative reforms which modify the national asylum systems and often challenging the rights of asylum seekers and refugees. At the moment, we can say that the only effective authority to curb populist attempts to modify the asylum procedures at national level is the European Union. First, through common rules and standards on asylum contained in the CEAS directives and regulations that member states are expected to implement. But the other strong means of the EU is the case law of the Court of Justice which checks on the correct implementation of EU law: especially in these last years, indeed, the Court has shown a great judicial activism as to the interpretation of EU law on asylum that binds member states to implement it in the correct way, respecting, in particular, the procedural safeguards to be read in the light of human rights provisions. 

The judgment of 14 May 2019 is an example of how the Court exposed itself to limit attempts of some member states to push back or expel asylum seekers who were not granted international protection towards countries where they risked facing persecution or ill-treatment. The Court clarified that, although the Geneva Refugee Convention permits states to derogate from the principle of non-refoulement where a refugee has committed a serious crime and presents a threat to the nation, EU member states are expected to conform with the European Charter of Fundamental Rights (Articles 4 and 19(2)) prohibiting any exposure to torture and ill-treatment or punishment, even for asylum seekers or refugees who have been refused or revoked international protection because of a conviction for serious crimes. This interpretation evidently limits member states’ discretion to expel or push back asylum seekers: for example, the modifications in the Italian law through the ‘security decree’ of 2018 increasing the grounds for the exclusion or revocation of international protection cannot lead to the summary expulsion and return of third-country nationals. The principles reaffirmed by this sentence, indeed, prevent Italy and all member states from implementing return and rejection policies which violate the principle of non-refoulement as interpreted by the Court.

Another fundamental sentence was ruled by the CJEU last 29 July (Torubarov case), which reaffirmed the necessity for member states to ensure the right to an effective remedy (Article 47 of the Charter of Fundamental Rights). The case was referred to the Court by a Hungarian administrative court which claimed that the national law on asylum amended in 2016 provided that courts could not overturn any decision made by administrative authorities. The CJEU recognised that, to ensure an effective judicial remedy, whether national courts find that an applicant must be granted international protection but the determining administrative authorities adopt contrary decisions without considering previous judgements of the courts and the new elements relevant for the assessment of the case, the courts must have the power to vary such administrative decisions.

Evidently, the CJEU’s rulings are at the moment the only effective means to curb populist parties’ interventions which tend to modify national procedural rules to the detriment of asylum seekers’ rights and guarantees contained in Union law. The Court is currently the fundamental non-majoritarian authority within the EU which has the possibility to stem the attempts of the current populist wave throughout Europe intervening on national policies and challenging asylum seekers’ rights. This makes us reflect on the fact that violations of human rights often occur following seemingly harmless legislative reforms that modify some aspects of the legal order of a country. In particular, in the case of asylum seekers and refugees’ rights, this can happen especially through interventions on the national asylum system that have an impact on the procedural guarantees and safeguards that should be guaranteed at domestic level.