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Francesco Maiani

University of Lausanne

https://applicationspub.unil.ch/interpub/noauth/php/Un/UnPers.php?PerNum=44205&LanCode=37

Introduction

The Asylum and Migration Management Regulation (EU) 2024/1351 (hereafter AMMR) has superseded the Dublin III Regulation on June 12. As argued elsewhere, its provisions on responsibility allocation and secondary movements may exacerbate, rather than alleviate, distributive imbalances in the CEAS. Indeed, recent EU policy documents stress that the Pact has created new gatekeeping tasks for “Member States of first entry”, and that the permanent solidarity mechanism is meant to support “notably these Member States”, “balanc[ing]” their new challenges and responsibilities.

In the hopes of the EU legislator, the new solidarity mechanism has, indeed, wider significance for the CEAS: it should generate and sustain a virtuous circle (see recitals 2 and 3). The promise of predictable and significant solidarity should convince the first line States to embrace fully their (increased) responsibilities, and put an end to evasion measures such as the rather spectacular suspension of Dublin transfers by Italy. This should, in turn, reassure “inland” States wary of secondary movements, and allow them to fully embrace solidarity, sustaining the virtuous circle – in a nutshell, more solidarity for more responsibility, and the removal of the incentives to violate EU Law that have so undermined it on the ground. Of course, this can only work if the solidarity mechanism is indeed credible and predictable in the first place.

The new mechanism is built on a difficult compromise between Member States having fundamentally divergent interests and outlooks on the common asylum policy. Meant to be “mandatory” and “flexible” (see recital 22), it should provide a “predictable” insurance scheme to Member States under migratory pressure (see recitals 15 and 33), while providing acceptable options to all Member States, including those having the most vocally objected to certain forms of solidarity, particularly relocations.

I have described and commented the core rules on the “annual migration management cycle”, culminating in the yearly adoption of an Annual solidarity pool (ASP or Pool), in a previous post. The present post describes the first application of these rules up to the establishment of the 2026 Pool, which will be implemented in coming months. In doing so, I will proceed step by step, examining first the Commission “solidarity package” adopted in November 2025, and then the Council Implementing Decision establishing the Pact, adopted in December 2025.

This first run was bound to be somewhat special. On the one hand, the 2026 Pool will only be accessible for roughly seven months, starting in June, instead of a full calendar year. On the other hand, the “first” of anything as politically fraught as a solidarity mechanism in the field of asylum can be expected to be somewhat tentative. Therefore, we should be slow in taking the first decisions described below as representative of established practice. And yet, they do cast a light on a number of vulnerabilities of the system, and reveal a worrying tendence to disregard its core rules by the very actors that should uphold them.

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By Dr. Daniel Thym, Universität Konstanz

Ironically, it was Manfred Weber, President of European People’s Party (EPP), who proposed limiting the room for manoeuvre during the negotiations on the Return Directive 2008/115. Two decades ago, Weber served as the EP’s rapporteur; his report rejected the Commission’s proposal to authorise the transfer to any third state, irrespective of ties or transit (here, Amendment 18). This time around, the EP’s majority took a different stance.

A Not Quite so Innovative Solution

Return hubs did not feature in the Return Directive 2008/115, nor have Member States actively pursued the idea in the past. So they are a novelty, albeit one with a backstory. EU institutions have always invested political capital in the expansion of destination countries for return (here, p. 8-9). Readmission agreements with Turkey, Serbia, and Ukraine, amongst others, cover non-nationals who have transited through these countries. Insistence on transit clauses was a stumbling block for the negotiations. Return to transit countries remained a rare occurrence, despite political pressure.

Recurring challenges in negotiating readmission agreements with a transit clause serve as a poignant reminder that it is easy to put return to third states on the ‘wish list’ in Brussels. Conversely, it can be tremendously difficult to identify partner countries that are receptive. The risk of a ‘phantom debate’ is real, with few third states being ready to host a return hub. Moreover, few would expect that more than a dozen or hundred persons could be brought there.

Return hubs deserve our attention despite these limitations. They may be no ‘magical solution’ for the myriad practical and political impediments for an effective return policy. However, they can be an important ‘control signal’ towards public opinion, prospective migrants, and other returnees. In this sense, they might serve as the symbolic hallmark of a holistic approach for specific migratory routes, or subcategories of returnees.

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By Prof. Alessia di Pascale, Universita Degli Studi di Milano (UNIMI)

1. With just under two weeks to go before the full implementation of the new European Pact on Migration and Asylum, scheduled for 12 June 2026, the process of adapting national systems to the new European legal framework still appears incomplete. Despite the two-year transitional period provided for following the adoption, in spring 2024, of the ten legal acts comprising the Pact (nine regulations and one directive), to allow for the necessary adaptation of regulatory frameworks, organisational structures, administrative procedures, human resources and national infrastructure, the third report on the state of implementation of the reform published by the European Commission on 8 May 2026 highlights delays and persistent operational, regulatory and organisational challenges in most Member States, despite some ‘significant progress’.

The report forms part of the periodic monitoring system designed to accompany the various stages of the Pact’s implementation, also in light of the Joint Implementation Plan, drawn up by the Commission itself, in collaboration with the Member States and European agencies, in June 2024. This monitoring activity began with the first progress report of 11 June 2025 and continued with the second report of 11 November 2025, adopted alongside the 2025 European Annual Report on Migration and Asylum.

In particular, the Regulation on the management of asylum and migration (“AMMR”, Articles 7 and 84(e)) and the Regulation on asylum procedures (Article 75) required Member States to draw up national implementation plans by December 2024 and, by June 2025, national strategies to ensure adequate administrative and organisational capacity. On this basis, the European Commission adopted the European Strategy on Asylum and Migration in January of this year. However, in addition to delays in the submission of these documents (which Hungary stated it did not wish to submit), only a few Member States have made them public (for an up-to-date overview of the national documents made public, see EUAA, National Implementation Plans and National Strategies under the EU Pact on Migration and Asylum, March 2026). In February 2025, around fifty European civil society organisations had, therefore, sent a letter to the European Commission denouncing the lack of transparency and the failure to involve them in the drafting of the national implementation plans, also pointing out the possible conflict with Regulation (EC) No 1049/2001 on public access to documents of the European institutions, which recognises the right of access not only to documents drawn up by the institutions, but also to those received by them. In Italy, the documents were not published and the administrative Court, in a decision of 3 March 2026, annulled the Ministry of the Interior’s refusal to disclose the National Implementation Plan (PAN). The matter had also been the subject of a request for access to documents addressed directly to the Commission and subsequently of an action for annulment (T-621/25) of the European Commission’s implied decision rejecting the request for confirmation of access to the various documents (see also the Commission decision of 3 December 2025)

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By Prof. Jean-Yves Carlier and Dr. Eleonora Frasca, Université de Louvain (UCLouvain), members of Equipe droits et migrations (EDEM)

This is a revised version of extracts from the yearly case law column “Libre circulation dans l’Union européenne”, published in French in the Journal de droit européen, no. 4, April 2026 (forthcoming).

Without constituting the final word, the judgment of the Court of Justice of the European Union (CJEU) in Commission v. Malta (Citizenship by investment) undoubtedly sets a benchmark in case law concerning the intersection between Member States’ nationality and EU citizenship. The ruling condemns what was referred to as the issuance of “golden” passports. In doing so, the CJEU uses constitutional language to affirm explicitly that Union citizenship “constitutes” the fundamental status of the nationals of the Member States (para 92). The issue was no longer to review the effects of a positive or negative conflict of nationality in light of the effectiveness of EU citizenship – as in most cases previously referred for a preliminary ruling spanning more than 30 years from Micheletti (1992) to Stadt Duisburg (Loss of German nationality) (2024). In this infringement procedure, the Court examined access itself to EU citizenship through access to nationality of a Member State. The Court held that Malta failed to fulfil its obligations under Article 20 TFEU (EU citizenship) and Article 4(3) TEU (principle of sincere cooperation), finding that the Maltese Citizenship Act “establishes a transactional naturalisation procedure in exchange for predetermined payments or investments and thus amounts to the commercialisation of the grant of the nationality of a Member State and, by extension, of Union citizenship” (operative part). The judgment was intended to draw a red line in the name of the Union’s values: EU citizenship is not for sale.

Our analysis proceeds in four steps: first, we analyse the Court’s constitutional framing of EU citizenship as a special relationship of solidarity and good faith. It is worth noting that “good faith” is rendered in French as loyauté, in Italian as lealtà, in Dutch as loyaliteit, in Spanish as lealtad, and in German as Loyalitätsverhältnis. Second, we assess whether the rights attached to citizenship genuinely function as vectors of EU integration. Third, we examine alternative doctrinal grounds for establishing Malta’s infringement – particularly the notion of abuse of rights. Fourth and last, we evaluate the short-, medium-, and long-term implications of the judgment for mutual recognition, national sovereignty and the future limits of judicial scrutiny over similar, but not equally worrying, Member States’ nationality policies.

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The ruling of the Court of Justice in Kinsa: A first step towards the decriminalisation of the facilitation of unauthorised entry? 

By Prof. Valsamis Mitsilegas, University of Liverpool, UK

One of the most eagerly awaited judgments by the Court of Justice in recent months has involved the litigation in the case of Kinsa. Its significance lies in the fact that this was the Court’s first opportunity to interpret the scope of EU criminal law on the facilitation of unauthorised entry, as well as the compatibility of the current overcriminalisation of facilitation with fundamental rights. The ruling is also a landmark because of its potential influence on shaping future EU criminal law in the field, particularly in view of the current negotiations on a new facilitation Directive to replace the facilitators’ package (see Mitsilegas, 2024). This commentary offers a rapid reaction to the Court’s ruling on Kinsa, which was delivered on 3 June 2025. The note will begin with outlining the background to the litigation and proceed with analysing the Opinion of the Advocate General and the ruling of the Court of Justice.

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Polish law restricting the right to asylum at borders

By Barbara Mikołajczyk, University of Silesia

Since July 2021, in response to EU sanctions imposed on Belarus following the rigged 2020 presidential election, the Belarusian authorities have launched a campaign to destabilise Poland by engaging in instrumentalisation of migrants at the border with Poland. The Polish Border Guard provides evidence that Belarusian officers are organising mass border crossings by migrants at the border, and that they are encouraging or facilitating the migrants’ use of violence against Polish officers. The Polish Border Guard staff are coming under attack from improvised weapons (sharpened sticks, broken glass, stones, slingshots and sometimes knives). The Belarusian forces have also been found to have engaged in an operation to provide migrants with equipment to destroy parts of a dam that was built in 2022. In May 2024, a soldier was stabbed in the chest and killed. Due to the growing tension at the border, in  June 2024, a buffer zone was introduced on the Podlasie section of the Polish-Belarusian border to limit access to the border. Prolonged for the third time in March 2025, this zone now covers additional areas and aims to limit the presence of people in the border strip. In turn, zones up to four kilometres wide have been introduced in some sections to prevent illegal crossings. Continue reading »