Prof. Dr. MARGARITA MARTÍNEZ ESCAMILLA

The unsatisfactory action of the European Union on matters of immigration and asylum

Prof. Dr. JOSÉ MARTÍN Y PÉREZ DE NANCLARES
The unsatisfactory action of the European Union on matters of immigration and asylum, outlining the main weaknesses. The founding treaties of the European Union confer on the institutions of the Union a shared competence (shared with the States) to deploy a common policy on matters of immigration and asylum (arts. 77 to 80 TFUE). However, on analysing the European actions undertaken to date, insufficient action by the Union is evident, at the same time as leaning towards security at the expense of freedom and justice which should equally and inseparably shape the so-called Space of Freedom, Security and Justice. Serious doubts also emerge with regard to the effective fulfilment of values and principles which are the basis of the European integration process. Particular attention needs to the given to analysing certain instruments of the external action of the Union, for example, the agreement reached with Turkey in 2016, which raises very serious legal doubts about its compatibility with the legal obligations of international law assumed by the EU and by all the member States, for example the obligations derived from the Geneva Convention on the Status of Refugees of 28 July 1951. Significant legal doubts also arise in relation to the compatibility of the worrying developments that are taking place in the Mediterranean with the compliance of regulations of the International Law of the Sea, for example on maritime rescue and assistance to the shipwrecked.

Human Rights at the “Southern Border”

Prof. Dr. MARGARITA MARTÍNEZ ESCAMILLA
If one of the best means of evidencing the quality of our democracy and the rule of law upon which it is based is the way we treat migrants and refugees then a look at our borders should fill us with horror. In some cases, when States “manage” irregular immigration they take action under the protection of regulations that limit terribly the rights of migrants. In others States simply flout the rules they are supposed to respect and guarantee and commit human rights violations. A flagrant example of this is what are known as “devoluciones en caliente” (summary returns), a practice that has been used for years on our southern border (Ceuta and Melilla) The 3rd October 2017 judgement of the European Court of Human Rights (ND and NT against Spain) declared these practices as contravening the European Convention. The socialist government has maintained the request made by the previous government to have the ruling returned to the Grand Chamber. On writing this abstract the ruling is not considered a final judgement, something that is essential if the human rights of migrants and refugees are to be protected. In the meantime we have witnessed the enforcement of the 1992 Readmission Agreement between Spain and Morocco, which had previously practically gone un-used because of Morocco’s opposition. If this becomes standard practice, yet another questionable scenario for human rights observance will open before us. We have every reason to be sceptical about the rights of people on the move being respected. What is more, faced with States complete lack of interest in protecting said rights and the fact that these rights are conditioned by the person’s physical presence in the territory, an all out effort is being made to close borders. Fortress Europe is not a metaphor but a bloody reality, which has turned the Mediterranean into the biggest cemetery in the world.