Member State responsibility for migration control within third states : externalisation revisited

This article re-examines externalisation – direct migration control by Member States of the EU, within third states, i.e., States which are not members of the EU. The nature and extent of this control is considered. The instruments of externalisation examined are carrier sanctions and immigration liaison officers. State responsibility for these externalised migration controls is assessed. The jurisdiction of the ECtHR is the trigger for Member State responsibility. ECtHR jurisprudence has made it clear that it is the exercise of physical power and control over a person by the State, which is pivotal to deciding jurisdiction. Jurisdiction is engaged where the Court finds that physical power and control to have been ‘effective’. This threshold of ‘effective’ control which has emerged from the Court’s jurisprudence is a demanding hurdle. If State control is found to be ‘effective’, then the State is responsible for the full range of rights contained within the Convention. The question then stands whether or not the ECtHR can keep abreast with these controls which can lead to States evading jurisdiction and thus avoiding fundamental rights responsibilities. One possible interpretation of recent jurisprudence is that the ECtHR is moving toward a broader interpretation of jurisdiction. It is in this context that ‘externalised’ controls have come under renewed scrutiny. A prevailing opinion is that the ECtHR will be able to protect those asylum seekers who encounter externalised control. This article questions any such assumption. The author argues for an alternative reading of the jurisprudence of the ECtHR with regard to jurisdiction. The conclusion reached is that the hurdle of extraterritorial jurisdiction is so demanding that States avoid it despite exercising extensive control over migrants. It is asserted that despite this considerable control, examination by the ECtHR will result in a failure to satisfy the ‘effective’ control threshold. Responsibility can thus be avoided while extraterritorial control is retained. The control level held by the State is still capable of guaranteeing a denial of access to individuals in need of international protection. If jurisdiction is not engaged then this externalised migration control represents a divergence between State control and State responsibility. Taking the threshold for jurisdiction of the ECtHR as a starting point, the author suggests a distinction between externalisation on the one hand and the external dimension on the other. States, oftentimes with facilitation from the Union, pursue one of these two alternatives. Externalisation affords the State stronger and more direct control over the entry of the migrant into the territory of a Member State than the external dimension, where the control is indirect and weaker. This distinction allows for a refined understanding of externalisation and applies it to verifying Member State responsibility for externalised migration control