Safeguarding National Security in EU Asylum Law: A Legal Analysis
National Security: A Legitimate Limit to Accessing
International Protection in EU Asylum Law?
Sezen Ucuncu (LLM, LLB), 3rd year PhD student
Supervisory team:
Dr. Leandro Mancano (primary supervisor)
Prof. Niamh Nic Shuibhne (secondary supervisor)
CONTEXT
The (recast) Qualification Directive allows Member States to limit access to international protection on certain security
grounds, including
“safeguarding national security.”
An applicant’s or beneficiary’s access to international protection may be restricted if they threaten the national
security of the EU Member State in which they have taken refuge, and measures taken in this context may lead to
a person’s exclusion from or withdrawal of international protection status or even prevent the person from
benefitting from the
non-refoulement
principle.
The concept of “safeguarding national security” is also referred to as an
essential State function
in
Article 4(2) of
the Treaty on the European Union
(TEU), along with some other elements (namely national identity and equality of
Member States).
Although the contexts in which these concepts are employed are different, some Member States have advanced
the argument of safeguarding essential State functions in limiting access to international protection on security
grounds.
IRELAND: A NOTABLE EXAMPLE
Irish International Protection Act
(giving effect to
Council Directive 2004/83/E.C.
under Protocol No. 21 annexed to the
Treaty on the Functioning of the European Union) provides grounds for limiting access to international protection.
However, the Minister of Justice has a significant role in limiting this protection for security reasons, which the Irish high
courts have interpreted as part of the inherent executive power to control asylum and migration and maintain state
functions. In endorsing extensive discretion covering these areas, the Irish high courts have found that:
•
Asylum and migration management is “an important State function”
(Sulaimon v. Minister for Justice [2012] I.E.S.C. 63)
,
and “it is in the interests of the common good of a State that it should have control of the entry of aliens, their
departure and their activities and duration of stay within the State is and has been recognised universally and from
earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual[s] (…), and
the protection of the former may involve restrictions in circumstances of necessity on the latter”
(Osheku v. Ireland
[1986] I.R. 733).
IRELAND: A NOTABLE EXAMPLE
•
“The power of the State to exclude non-nationals or aliens from entering the territory of Ireland is a power inherent in
a sovereign state” (
Sivsivadze v. Minister for Justice & ors [2015] I.E.S.C. 53
, see also
Lobe v. Minister for Justice [2003]
I.E.S.C. 3
;
A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1
,
Pok Sun Shun v. Ireland [1986] I.L.R.M. 593
,
Osheku v Ireland
[1986] IR 733
,
Laurentiu v Minister for Justice [1999] 4 IR 27
).
The reference to protecting the Irish State’s essential functions to safeguard its sovereignty seems to be an effective means
of restricting access to international protection, even indirectly. The legitimacy of national measures based on such a
general concept, which is not included in the relevant EU legal framework, appears to be a relevant question.
GERMANY: ANOTHER EXAMPLE
Some other national laws have used additional concepts to limit access to international protection in a security-related
context. The German Residence Act, in Section 53(1), refers to the threat to the “free democratic basic order” as one of the
exceptions to
non-refoulment
of foreigners under German law.
As one of the key concepts of the German Basic Law, it basically comprises the absolutely indispensable principles for the
free democratic constitutional state, in addition to the principle of “human dignity”
(Federal Administrative Court,
judgement of 23 October 1952 – 1 BvB 1/51 – NJW 1592, 1407)
. The term, which finds its normative basis in the Basic Law, is
also employed to express the German constitutional identity.
GERMANY: ANOTHER EXAMPLE
The
constitutional identity of Member States
, in essence, constitutes an element of the
national identities of Member
States
that is guaranteed to be protected at the EU level per
Article 4(2) TEU
. The guarantee, however, does not constitute a
general ground for Member States to derogate from EU secondary legislation, nor does it remove the requirements that
Member States must consider in terms of any limitations laid out in the applicable EU legal framework.
Although there is no reference to German constitutional identity in German case law on the limitation of access to
international protection on security grounds, posing a threat to the free democratic basic order, is an explicit ground to
refoule
foreigners from German territory
(BVerwG 1 A 3.17, Judgment of 22 August 2017)
.
Given the content and connection of the concept of free democratic basic order with German constitutional identity,
questions may arise about whether the limitations applied based on this concept fall within the relevant EU legal
framework.
The core research question guides the thesis:
Are national security arguments invoked by the Member States in limiting access to international
protection more about protecting other interests or objectives in Article 4(2) TEU?
Sub-questions include:
1. How does the EU legal framework address the security concerns of the country of asylum in limiting access to
international protection? Under what circumstances do the security concepts incorporated into the EU legal framework
justify such a limitation?
2. How do Member States define and apply ‘security’ for the purposes of limiting access to international protection, and
what role does ‘security’ play? Are Member States exercising their discretion in compliance with EU law?
3. If these Member States limit international protection by invoking security grounds to protect other elements in Article
4(2) TEU, even though the EU legislation itself does not, would the connection to Article 4(2) TEU ‘save’ them under EU law?
RESEARCH QUESTIONS
The research questions outlined above will be explored through national case studies of Germany and Ireland.
Comparative law research methods are used
•
To understand how national practices evolve in different legal systems within the EU legal system,
•
To identify whether there is an interaction between Member States’ legal systems in terms of application and
interpretation of the relevant EU legal framework,
•
To challenge the assumptions by identifying factors that are not solely on the surface but also have an impact on
the foundations of the problem as well.
METHODOLOGY
The thesis deals with security concepts, Article 4(2) of the TEU, and the limiting of access to international protection.
Considering the interpretation and application of these concepts,
which are suggested to be
interconnected
, in national laws, the
main discussion points are whether what is essentially protected
by limiting access to international protection on security grounds
in
German
asylum law is the
“national (constitutional) identity”
element in Article 4(2) TEU, while in
Irish
law, it is the
“essential
State functions”
element.
DISCUSSION
ARTICLE 4(2) TEU
ELEMENTS
SECURITY CONCEPTS OF EU
LAW
EUROPEAN
SECURITY
Public
security
INTERNAL
SECURITY
EXTERNAL
SECURITY
(SAFEGUARDING)
NATIONAL
SECURITY
EQUALITY OF
MEMBER
STATES
NATIONAL
IDENTITIES OF
MEMBER
STATES
ESSENTIAL STATE FUNCTIONS
OF MEMBER STATES
Summary Table of Contents
Chapter 1 - Introduction
Chapter 2 - Security concepts in EU law and Article 4(2) TEU
Chapter 3 - Security-based limitations of access to international protection in EU asylum law
Chapter 4 - Security-related limitations of access to international protection in Germany
Chapter 5 - Security-related limitations of access to international protection in Ireland
Chapter 6 - The intersection between security-related limitations of access to international protection and Article
4(2) TEU
Chapter 7 - Conclusion
STRUCTURE
The thesis is concerned with the invocation of the “security grounds” of the EU legal framework with
“security-
related” arguments
in national laws to limit access to international protection with a focus on the elements of
Article 4(2) TEU, namely
essential State functions
and
national identity
.
The thesis is located at the intersection of
security concepts
,
Article 4(2) TEU
and (limitation to access
of)
international protection.
It aims to provide an insight into national constitutional traditions and state understanding of concepts
related to security and Article 4(2) TEU, and also into the extent to which Member States adhere to the
idea of harmonisation of asylum procedures and protection standards and hopes to make an original
contribution to the current academic studies in the literature.
VALUE & ORIGINALITY
Thank you!
S.Ucuncu@sms.ed.ac.u
k
The recast Qualification Directive allows Member States in the EU to restrict access to international protection on security grounds, including safeguarding national security. This article explores the limits imposed by national security concerns on accessing international protection in EU countries, focusing on the example of Ireland. The Irish International Protection Act grants the Minister of Justice significant authority to control asylum and migration for security reasons, highlighting the balance between state functions and individual rights in the asylum context.
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National Security: A Legitimate Limit to Accessing International Protection in EU Asylum Law? Sezen Ucuncu (LLM, LLB), 3rd year PhD student Supervisory team: Dr. Leandro Mancano (primary supervisor) Prof. Niamh Nic Shuibhne (secondary supervisor)
C O N T E X T The (recast) Qualification Directive allows Member States to limit access to international protection on certain security grounds, including safeguarding national security. An applicant s or beneficiary s access to international protection may be restricted if they threaten the national security of the EU Member State in which they have taken refuge, and measures taken in this context may lead to a person s exclusion from or withdrawal of international protection status or even prevent the person from benefitting from the non-refoulement principle. The concept of safeguarding national security is also referred to as an essential State function in Article 4(2) of the Treaty on the European Union (TEU), along with some other elements (namely national identity and equality of Member States). Although the contexts in which these concepts are employed are different, some Member States have advanced the argument of safeguarding essential State functions in limiting access to international protection on security grounds.
I R E L A N D : A N O TA B L E E X A M P L E Irish International Protection Act (giving effect to Council Directive 2004/83/E.C. under Protocol No. 21 annexed to the Treaty on the Functioning of the European Union) provides grounds for limiting access to international protection. However, the Minister of Justice has a significant role in limiting this protection for security reasons, which the Irish high courts have interpreted as part of the inherent executive power to control asylum and migration and maintain state functions. In endorsing extensive discretion covering these areas, the Irish high courts have found that: Asylum and migration management is an important State function (Sulaimon v. Minister for Justice [2012] I.E.S.C. 63), and it is in the interests of the common good of a State that it should have control of the entry of aliens, their departure and their activities and duration of stay within the State is and has been recognised universally and from earliest times. There are fundamental rights of the State itself as well as fundamental rights of the individual[s] ( ), and the protection of the former may involve restrictions in circumstances of necessity on the latter (Osheku v. Ireland [1986] I.R. 733).
I R E L A N D : A N O TA B L E E X A M P L E The power of the State to exclude non-nationals or aliens from entering the territory of Ireland is a power inherent in a sovereign state (Sivsivadze v. Minister for Justice & ors [2015] I.E.S.C. 53, see also Lobe v. Minister for Justice [2003] I.E.S.C. 3; A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1, Pok Sun Shun v. Ireland [1986] I.L.R.M. 593, Osheku v Ireland [1986] IR 733, Laurentiu v Minister for Justice [1999] 4 IR 27). The reference to protecting the Irish State s essential functions to safeguard its sovereignty seems to be an effective means of restricting access to international protection, even indirectly. The legitimacy of national measures based on such a general concept, which is not included in the relevant EU legal framework, appears to be a relevant question.
G E R M A N Y: A N O T H E R E X A M P L E Some other national laws have used additional concepts to limit access to international protection in a security-related context. The German Residence Act, in Section 53(1), refers to the threat to the free democratic basic order as one of the exceptions to non-refoulment of foreigners under German law. As one of the key concepts of the German Basic Law, it basically comprises the absolutely indispensable principles for the free democratic constitutional state, in addition to the principle of humandignity (Federal Administrative Court, judgement of 23 October 1952 1 BvB 1/51 NJW 1592, 1407). The term, which finds its normative basis in the Basic Law, is also employed to express the German constitutional identity.
G E R M A N Y: A N O T H E R E X A M P L E The constitutional identity of Member States, in essence, constitutes an element of the national identities of Member States that is guaranteed to be protected at the EU level per Article 4(2) TEU. The guarantee, however, does not constitute a general ground for Member States to derogate from EU secondary legislation, nor does it remove the requirements that Member States must consider in terms of any limitations laid out in the applicable EU legal framework. Although there is no reference to German constitutional identity in German case law on the limitation of access to international protection on security grounds, posing a threat to the free democratic basic order, is an explicit ground to refoule foreigners from German territory (BVerwG 1 A 3.17, Judgment of 22 August 2017). Given the content and connection of the concept of free democratic basic order with German constitutional identity, questions may arise about whether the limitations applied based on this concept fall within the relevant EU legal framework.
R E S E A R C H Q U E S T I O N S The core research question guides the thesis: Are national security arguments invoked by the Member States in limiting access to international protection more about protecting other interests or objectives in Article 4(2) TEU? Sub-questions include: 1. How does the EU legal framework address the security concerns of the country of asylum in limiting access to international protection? Under what circumstances do the security concepts incorporated into the EU legal framework justify such a limitation? 2. How do Member States define and apply security for the purposes of limiting access to international protection, and what role does security play? Are Member States exercising their discretion in compliance with EU law? 3. If these Member States limit international protection by invoking security grounds to protect other elements in Article 4(2) TEU, even though the EU legislation itself does not, would the connection to Article 4(2) TEU save them under EU law?
M E T H O D O L O G Y The research questions outlined above will be explored through national case studies of Germany and Ireland. Comparative law research methods are used To understand how national practices evolve in different legal systems within the EU legal system, To identify whether there is an interaction between Member States legal systems in terms of application and interpretation of the relevant EU legal framework, To challenge the assumptions by identifying factors that are not solely on the surface but also have an impact on the foundations of the problem as well.
D I S C U S S I O N The thesis deals with security concepts, Article 4(2) of the TEU, and the limiting of access to international protection. Considering the interpretation and application of these concepts, which are suggested to be interconnected, in national laws, the main discussion points are whether what is essentially protected by limiting access to international protection on security grounds in German asylum law is the national (constitutional) identity element in Article 4(2) TEU, while in Irish law, it is the essential State functions element. S E C U R I T Y C O N C E P T S O F E U L A W A R T I C L E 4 ( 2 ) T E U E L E M E N T S E U R O P E A N S E C U R I T Y E Q U A L I T Y O F M E M B E R S T A T E S P u b l i c s e c u r i t y ( S A F E G U A R D I N G ) N A T I O N A L S E C U R I T Y N A T I O N A L I D E N T I T I E S O F M E M B E R S T A T E S I N T E R N A L S E C U R I T Y E S S E N T I A L S T A T E F U N C T I O N S O F M E M B E R S T A T E S E X T E R N A L S E C U R I T Y
S T R U C T U R E Summary Table of Contents Chapter 1 - Introduction Chapter 2 - Security concepts in EU law and Article 4(2) TEU Chapter 3 - Security-based limitations of access to international protection in EU asylum law Chapter 4 - Security-related limitations of access to international protection in Germany Chapter 5 - Security-related limitations of access to international protection in Ireland Chapter 6 - The intersection between security-related limitations of access to international protection and Article 4(2) TEU Chapter 7 - Conclusion
VA L U E & O R I G I N A L I T Y The thesis is concerned with the invocation of the security grounds of the EU legal framework with security- related arguments in national laws to limit access to international protection with a focus on the elements of Article 4(2) TEU, namely essential State functions and national identity. The thesis is located at the intersection of security concepts, Article 4(2) TEU and (limitation to accessof) international protection. It aims to provide an insight into national constitutional traditions and state understanding of concepts related to security and Article 4(2) TEU, and also into the extent to which Member States adhere to the idea of harmonisation of asylum procedures and protection standards and hopes to make an original contribution to the current academic studies in the literature.
Thank you! S.Ucuncu@sms.ed.ac.u k
