Navigating the Labyrinth of Derogations: A Critical Look at the Crisis Regulation

POST 5 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

Dr Meltem Ineli-Ciger, Associate Professor, Suleyman Demirel University Faculty of Law; Migration Policy Centre Associate, European University Institute

Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 (hereinafter Crisis Regulation) establishes a legal framework for Member State responses to exceptional migration-related circumstances, including mass influx of refugees and migrants, force majeure situations such as pandemic, and even politically motivated manipulation of migratory movements. The extensive amendments the Parliament introduced, as well as the merging crisis and instrumentalisation issues, have arguably rendered the Crisis Regulation a labyrinthine framework. The numerous references to other EU Regulations further contribute to its complexity. This post makes a critical, up-to-date legal analysis of the Crisis Regulation, particularly its derogation regime applicable in crisis and force majeure situations (instrumentalisation will be covered in another post by Iris Goldner Lang). It also discusses its potential effectiveness in managing future large arrivals in the EU. I argue that the Crisis Regulation is a mixed bag: while derogations regarding border procedures raise concerns and may violate fundamental rights enshrined in the EU Charter of Fundamental Rights and relevant international instruments such as the Refugee Convention, some positive elements also emerge. These positive elements include a new solidarity mechanism, the possibility of implementing prima facie recognition of international protection applications and the possibility of suspending Dublin transfers to the Member States facing exceptional asylum pressures, which can contribute to protecting asylum seekers during mass influx and force majeure situations.

No comprehensive, objective and up-to-date legal analysis of the Crisis Regulation exists (although there is an impact assessment of the initial Commission Proposal). Notably, Peers has clarified critical aspects of the latest Proposal, while comments and critiques have been offered by NGOs such as ECRE, Amnesty and MSF. In contrast, much controversially (see objections by Hathaway and Crisp), the UNHCR and IOM welcomed the adoption of the entire Pact, including the Crisis Regulation. The Crisis Regulation is not black and white. The Regulation, especially those derogations concerning border procedure, are extremely problematic though the foreseen solidarity mechanism, the possibility to grant prima facie international protection status to those seeking international protection, and the possibility to suspend Dublin transfers can facilitate responding to large-scale influx and force majeure situations.

How does the Crisis Regulation define crisis and force majeure?

Article 1(4)(a) of the Crisis Regulation defines a crisis (excluding instrumentalisation) with three key criteria. First, the situation must involve large-scale arrivals of third-country nationals or stateless persons entering a Member State by land, air, or sea. This includes those who disembarked after search and rescue operations. Second, these arrivals must render the Member State’s well-prepared asylum, reception, including child protection services, or return system non-functional (the population, GDP and geographical specificities of the Member State, including the size of the territory, are to be taken into account in this determination). This dysfunction may (not must) be severe enough to potentially cause serious consequences for the overall functioning of the CEAS. As opposed to crisis, force majeure is defined as abnormal and unforeseeable circumstances outside a Member State’s control, the consequences of which could not have been avoided notwithstanding the exercise of all due care, which prevent that Member State from complying with obligations under Asylum and Migration Management Regulation (EU) 2024/1351 and Asylum Procedures Regulation (EU) 2024/1348.

Compared to the definition of mass influx provided under the Temporary Protection Directive, the Crisis Regulation delivers more explicit and precise indicators to determine when a crisis exists. These indicators are welcome and can facilitate the determination of an exceptional situation of mass influx. Yet, as I have argued previously, the large-scale arrival of refugees and migrants rendering a Member State’s return system non-functional should not be accepted as a criterion to determine the existence of a situation of crisis or a mass influx situation since return capacity of the host state alone has nothing to do with the existence of a mass influx and cannot justify derogating from state responsibilities under international or EU law.

Frontline Member States such as Italy and Greece are more likely to ask for the triggering of the Crisis Regulation since they are more susceptible to receiving large numbers of asylum seekers. Nevertheless, if states not at the EU borders face exceptional pressures due to secondary movements or any other circumstances, they may also claim that they experience an exceptional mass influx or force majeure situation and ask for the triggering of the measures foreseen by the Regulation.

When does a crisis or force majeure situation exist? A three-step activation/trigger process

Articles 2-4 of the Crisis Regulation lay out a three-step process triggered by a Member State facing exceptional circumstances. Firstly, the onus falls on the overwhelmed Member State. If a large influx creates a crisis or unforeseen events constitute force majeure, significantly disrupting its asylum response (Article 2), the Member State must formally request the European Commission’s intervention. The Commission cannot act unilaterally (Article 3(1)).

Secondly, within a two-week timeframe (Article 3(8)), the Commission makes an assessment of the situation based on objective criteria (Article 3(6)). For a crisis, the Commission considers if the Member State’s well-prepared asylum and reception systems, including child protection, are overwhelmed by the influx, potentially impacting the entire EU system. Force majeure depends on two key factors: unforeseen and uncontrollable events beyond the control of the Member State, and whether these events prevent them from fulfilling their obligations under the EU asylum acquis. If the situation qualifies, the Commission proposes relevant measures to the Council, such as derogations from specific asylum procedures as outlined in Articles 10-13, solidarity measures, or the application of an expedited asylum process for particular categories of applicants (Article 3(1)). When assessing the situation, the Commission is to consult with the requesting Member State, the relevant Union agencies such as EUAA and international organisations, in particular UNHCR and IOM (Article 3(1)).

Finally, the Council holds the ultimate decision-making power: the Council has two weeks to approve or reject the Commission’s Proposal (Article 4(3)). The Council decides on the specific derogations to be applied and is expected to establish a Solidarity Response Plan outlining how the affected Member State can be assisted by adopting an implementing decision. Additionally, the Commission may recommend applying an expedited asylum process for specific nationalities or asylum seeker groups (Article 4(4)).

Derogations available when there is a crisis or force majeure

The Crisis Regulation includes various ways to derogate from different EU instruments. The Crisis Regulation allows for derogations that include delaying asylum application registration, adapting border procedures, and introducing flexibility within the Dublin (soon-to-be AMMR System) regarding deadlines and procedures for take charge requests, take-back notifications, and transfers. Moreover, not a derogation per se, the Regulation introduces rules to improve solidarity and the possibility to ease the asylum backlog in the Member States, such as following expedited procedures for well-founded applications. In all derogation measures provided under the Crisis Regulation, three primary safeguards apply:

1. Those who are subjected to derogation measures must be informed in a language they understand or are reasonably supposed to understand about the derogations applied, the duration of the measures, and how to appeal asylum applications.
2. Any special procedural and reception needs of the international protection applicants must be addressed.
3. Derogations must be no longer than what is strictly necessary to address the situation and, in any case, cannot exceed 12 months.

The Commission and the Council are tasked to constantly monitor and review the situation with regard to the necessity and proportionality of the derogation measures.

Delaying registration of asylum applications

Under Article 27 of the Asylum Procedures Regulation (EU) 2024/1348, the asylum application must be registered within five days (plus three working days if the application is made to an authority entrusted with the task of receiving applications for international protection which is not responsible for registering applications). In a situation of crisis or force majeure, Member State/s can derogate from Article 27 of the Asylum Procedures Regulation (EU) 2024/1348 and can register asylum claims up to four weeks after those applications are made. (Article 10(1)). Even before authorisation of such derogation under the Council implementing decision, the Member State asking for triggering of derogations provided under the Crisis Regulation can apply this derogation for a maximum of ten days from the day following the request to the Commission (Preamble para 24).

Article 10 introduces certain safeguards to ensure asylum applicants, especially those with special needs, can still benefit from certain services. For instance, this derogation can only be implemented for a maximum duration of 6 months, not one year. The Regulation reiterates the duty of Member States to inform the third-country nationals or stateless persons in a language which they understand, or are reasonably supposed to understand, about the measure applied, the location of the registration points, including the border crossing points accessible for registering and lodging an application for international protection, and the duration of the measure (Article 10(5)). Moreover, Member States are asked to prioritise the registration of applications for persons with special reception needs, minors, and their family members. Registration applications that are likely to be well-founded can also be prioritised.

Derogations concerning border procedures

Border procedure applies for certain categories of international protection applicants, including those who pose a security risk, who mislead the authorities by providing false information or withhold information, or who are coming from countries with a low recognition rate (below 20%) in order to quickly assess whether applications are unfounded or inadmissible whereas, persons subject to the border procedure cannot enter the Member State territory. Under the new Asylum Procedures Regulation (EU) 2024/1348 (see the analysis by Jens Vedsted Hansen), for border procedures, there is a five-day deadline to lodge international protection applications and a 12-week deadline to decide on these asylum applications. If the Member State does not observe these deadlines, then the asylum seeker can enter the territory. Return Border Procedure Regulation (EU) 2024/1349 is to apply for persons whose asylum applications are rejected in the border procedure.

The Crisis Regulation enables Member States experiencing a crisis or force majeure to prolong the duration of border procedure and change or bend the rules on how it operates. First of all, Article 11 (1) of the Crisis Regulation enables Member States in situations of crisis and force majeure to extend the maximum duration of the border procedure for the examination of applications by an additional period of a maximum of six weeks. This means mandatory border procedure can be extended up to 18 weeks when there is a crisis or force majeure.

Second, Article 11 (2-3) enables Member States to not apply mandatory border procedure for applicants that belong to a nationality or, in the case of stateless persons, a former habitual resident of a third country for which the proportion of decisions by the determining authority granting international protection is, according to the latest available yearly Union-wide average Eurostat data, 5% or lower (not necessarily 20 % as the usual rule). This means Member States can cease applying mandatory border procedures for most asylum seekers in situations of crisis.

Thirdly, perhaps much more problematically, according to Article 11(4), in situations of crisis (not force majeure), Member States may, in a border procedure, take decisions on the merits of an application in cases where the applicant is a national or, in the case of stateless persons, a former habitual resident of, a third country for which the proportion of decisions granting international protection by the determining authority is, according to the latest available yearly Union-wide average Eurostat data, 50 % or lower. Finally, if this situation of crisis is caused by instrumentalisation, Article 11(6) gives discretion to the Member State to decide on the merits of all asylum applications that are made by any third-country national or stateless person with the border procedures with the exception of minors under the age of 12 and their family members, and persons with special procedural or special reception needs.

Derogations and deadline extensions concerning take charge requests, take back notifications and transfers in a situation of crisis or force majeure

The Crisis Regulation introduces flexibility within the Dublin System during situations of crisis by extending deadlines for specific procedures outlined in Article 12. For instance, Member States will have four months, instead of the usual timeframe, to submit a take charge request for an asylum seeker. Similarly, responses to take charge requests and notifications based on Eurodac hits are also extended. The response deadline becomes two months, and the deadline for take-back notifications is extended to one month. Dublin transfers of asylum seekers to Member States facing a mass influx situation can be delayed for up to one year. This delay applies even if appeals or reviews of transfer decisions are ongoing. (Article 12(3))

The Crisis Regulation provides that the suspension of Dublin transfers to overwhelmed states facing a crisis or force majeure situation until the Member State is no longer facing that situation, with exceptions for individual circumstances. (Article 12(4) and Article 13) This flexibility extends to relieving Member States facing a mass influx situation from their take-back obligations under the Dublin System. When in a situation of crisis where the mass arrivals of third-country nationals or stateless persons are of such extraordinary scale and intensity that it could create a serious risk of serious deficiencies in the treatment of asylum applicants, the Member State facing that situation is relieved of taking back the asylum seekers. In such cases, responsibility for the asylum seeker might be transferred to another EU country; for instance, the responsibility shifts to the Member State where the second application was registered. (Article 13(2)) or if no other responsible Member State can be determined, the country where the second application was registered becomes responsible for examining the asylum application. (Article 13(3))

Which solidarity measures would apply in a crisis or force majeure situation?

Chapter III of the Crisis Regulation is dedicated to responsibility sharing and providing support to affected Member State/s in situations of crisis. The Council’s decision to determine the existence of a crisis or force majeure should also include a Solidarity Response Plan, which indicates the solidarity and support measures required to manage the exceptional situation and the pledges made by the contributing Member States (Preamble 33). According to Article 8 of the Regulation, solidarity and support measures may include a) relocation of applicants for international protection or a subset of international protection beneficiaries; b) financial contributions aiming at actions that are relevant to address the situation of crisis in the Member State concerned or in relevant third countries or c) alternative solidarity measures specifically needed to address the situation at hand. Member States can also support so-called ‘third country solutions’ to facilitate managing the crisis situation as part of the solidarity measures since Article 8(1) (b) of the Crisis Regulation allows Member States to make financial contributions aiming at actions that are relevant to address the situation of crisis in relevant third countries.

Member States are free to choose which type of solidarity and support measure or a combination of measures they wish to implement. The EU Solidarity Coordinator is tasked to monitor the implementation of the Solidarity Response Plan and is required to publish the state of the implementation and functioning of the relocation mechanism.

The Crisis Regulation emphasises that vulnerable persons should be given primary consideration for relocation (Preamble 37). In a situation of crisis, a Member State taking responsibility for examining applications for international protection above their fair share will be entitled to reduce proportionally its fair share from the implementation of solidarity pledges under the upcoming annual cycles of Asylum and Migration Management Regulation (EU) 2024/1351 over a period of five years (Preamble 38). Moreover, Member States undertaking relocation as a solidarity measure shall be able to benefit from the usual financial support available under the existing EU instruments.

The solidarity measures foreseen in the Crisis Regulation are mostly linked to the system provided under the Asylum and Migration Management Regulation (EU) 2024/1351, though Member States affected by exceptional circumstances may demand more solidarity contributions and can derogate from some of its regular obligations provided under the Asylum and Migration Management Regulation (EU) 2024/1351. Nevertheless, the effectiveness of the solidarity measures depends on which measures are decided by the Commission and Council and to what extent Member States will be willing to implement these measures and lighten the burden of the Member State affected by the crisis or force majeure situations.

Possibility to follow prima facie recognition of international protection

When objective circumstances suggest that groups of international protection applicants from a specific country of origin or from a part of such a country could be well-founded, the Commission may recommend an expedited asylum procedure. For those Member States following this recommendation, expedited asylum procedure would mean: first, for the applications that are accepted as well-founded, there should be no personal interview as a rule (though interviews may be conducted to ensure the applicants fall within the asylum seeker group recommended for the expedited procedures), their applications are to be prioritised, and that examination of the merits of the application should be concluded as soon as possible and no later than four weeks from the lodging of the application. However, if the applicant is identified by Member States as a threat to national security, the expedited procedure will not apply (Preamble 55-57).

Will the Crisis Regulation lead to a violation of the international obligations of Member States?

A definitive answer about the Crisis Regulation’s impact on Member States’ responsibilities under international law, especially the Refugee Convention, is impossible. The answer to this question depends entirely on the specific context, the implementation details of the derogations, and the timeframe of their application. Moreover, whether the principles of necessity and proportionality are observed in implementing the Crisis Regulation is among the important criteria to be taken into account.

Mass influx situations, in general, can indeed create various financial, social, and security-related challenges for host states. Due to these challenges, mass influx may constitute a valid reason to derogate from international instruments, including the Refugee Convention and other international human rights conventions. It is acknowledged by Hathaway, Davy (Article 9 Chapter), Edwards, McAdam and Durieux, and myself (see also here) that mass influx situations may give latitude to states to partially suspend implementation of the Refugee Convention in mass influx situations and not to grant several rights provided under the Convention to those refugees fleeing en masse. Aside from the Refugee Convention, human rights conventions apply to persons seeking protection in mass influx situations. However, applying these conventions again depends on whether the mass influx situation can be a reason for derogation. Under international law, in truly exceptional circumstances, mass influx situations or a situation of force majeure can provide a valid reason to derogate from certain obligations of states towards those fleeing in mass influx situations under international and EU law (see for a detailed discussion on this by Skordas here and here). Yet, it is essential that a crisis, or force majeure for that matter, is determined in the correct way, and there is no other way to manage a mass influx situation for states except to derogate certain obligations under international and EU law. Thus, as also pointed out by Campesi, it is crucially important that crisis will remain not the norm, but an exception in EU migration governance.

Coming back to the question, let us assume the existence of a genuine crisis or force majeure is established by the Council, justifying the Member States to suspend certain obligations under international and EU law temporarily. Now, we need to delve into the specific derogations introduced by the Crisis Regulation. On the surface, a four-week delay in registering asylum claims during a mass influx does not seem to violate the core of the right to seek asylum. In reality, registration can take much longer in mass influx situations without group recognition. This delay, since it is only a month-long, likely would not alone erode procedural guarantees for asylum seekers. Furthermore, solidarity measures like suspending Dublin transfers to alleviate the burden-stricken Member State are welcome and legally sound. However, two new rules raise concerns: extending mandatory border procedures to 18 weeks during a crisis or force majeure and deciding a considerable number of asylum applications in border zones through accelerated status determination. Extending mandatory border procedures to 18 weeks potentially involves administrative detention, meaning asylum seekers could be detained for up to 4.5 months in border areas simply due to the existence of a mass influx situation. Furthermore, as also noted by ECRE, although special consideration is given to vulnerable asylum seekers in the Crisis Regulation, identifying vulnerable persons and, for instance, conducting proper age assessments for hundreds of asylum seekers in border procedures will be quite difficult. Additionally, asylum applications, especially those from countries with lower asylum success rates (less than 50%), could be decided through expedited procedures. The arbitrary nature of this 50% threshold is a significant problem. How was this percentage determined? These new rules, particularly regarding the border procedure, pose substantial challenges. Ultimate compliance with international law depends on practical application (e.g., the effectiveness of expedited procedures and available reception conditions and services at the borders). Nevertheless, it’s difficult to imagine how, in a mass influx situation, with thousands arriving each day, humane conditions and proper procedural safeguards can be maintained for over four months during border procedures and whether the right to humane treatment and right to liberty and security can be respected for all asylum seekers who are subject to border procedure for a long time.

Does the Crisis Regulation add meaningful ways to respond to the large-scale arrival of refugees and migrants in the EU?

The Crisis Regulation makes clear that it will complement the Temporary Protection Directive (TPD). This is a stark difference from the Commission’s initial plan to scrap the Temporary Protection Directive and insert a new protection status called ‘immediate protection’, which was provided under Article 11 of the 2020 Commission Proposal. The Temporary Protection Directive proved its usefulness in managing mass influx situations in 2022 when it was activated for the first time for the protection of the Ukrainians fleeing the full-scale invasion of Ukraine. Today, the Temporary Protection Directive is still in force, and the Crisis Regulation is to enter into force in 2026. This means after 2026 when a Member State or the EU faces a mass influx situation, there will be various ways to deal with this situation, and four main scenarios come to mind:

Activate the TPD and not make use of the Crisis Regulation or
Not activate the TPD but determine there is a situation of crisis and decide on which derogations and solidarity measures will apply and whether to recommend expedited procedures for certain asylum seeker groups,
Activate the TPD and determine there is a situation of crisis and decide on additional measures provided in the Crisis Regulation that will apply (in this case, the Regulation makes clear that Article 11 of the TPD (take back provision in cases of secondary movements of temporary protection beneficiaries) will not apply.
Not activate the TPD or the Crisis Regulation but make use of Annual Solidarity Pool as provided under Articles 58 and 59 of the Asylum and Migration Management Regulation (EU) 2024/1351.

These future scenarios beg the question: will the Crisis Regulation add meaningful ways to manage future large-scale influx situations? This will depend on how the Regulation is implemented and which measures will be adopted by the Council to manage the crisis situations. The Regulation might be quite useful and make a real difference if solidarity measures are adopted to adequately support the Member States facing an exceptional circumstance and if prima facie recognition is effectively implemented to lighten the asylum caseload of the Member States. Nevertheless, suppose the Crisis Regulation is only used to keep asylum seekers in the border procedure and reject asylum applications with real merit through expedited border procedures. In that case, the Crisis Regulation will violate fundamental rights, EU law norms and undermine the Refugee Convention.

Conclusion

What’s the main shortcoming of the Crisis Regulation? Managing mass influx situations effectively is about identifying those who need protection and offering them swift access to reception and asylum procedures while also lightening the burden on host states and their asylum, reception, and integration capacities. Although the Crisis Regulation through the proposed solidarity measures and the possibility of prima facie recognition of international protection applications can contribute to Member States dealing with the exceptional large-scale arrival of refugees and migrants, the derogations foreseen, be it the extension of asylum registration deadlines or the possibility to keep all arriving asylum seekers in the border procedures for months will not make managing a mass influx much easier but can lead Member States undermining their international and EU law obligations.