EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

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POST 20 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Iris Goldner Lang, Jean Monnet Professor of EU Law, Head of Department of European Public Law and Vice Dean at the Faculty of Law – University of Zagreb.

AUDIO VERSION AVAILABLE HERE

The term “Instrumentalisation” (of people) can be defined as using human beings as a means to achieve certain ends, or, in other words, treating humans as objects to obtain political or other goals. We can probably all agree that instrumentalisation of human beings, no matter whether they are EU citizens or third-country nationals, is morally unacceptable and that this applies also in the context of migration, asylum and border control policies. However, the concept of instrumentalisation has only recently become regulated in EU law, as a reaction to the developments at the EU’s external borders with Türkiye, Morocco, Russia and, most prominently, Belarus. This blog post will first outline the political developments that led to the regulation of the concept of instrumentalisation. It will then analyse the newly adopted EU rules on instrumentalisation of migrants under the New Pact and critically assess their effects and the safeguards they contain to protect fundamental rights. Notably, the post will explore whether the developments at the EU’s external borders legitimise the increasingly securitised approach towards EU border management and whether they jeopardise the right to seek asylum in the EU. Against this background, the concluding part will suggest that EU level regulation of instrumentalisation is a welcome development as it creates an additional legal basis to ensure that national measures are not unilateral and that they respect the principle of proportionality and the right to seek asylum, while granting Member States a legal tool to rely on, when faced with instrumentalisation.

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POST 19 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Ulrike Brandl, Associate Professor at the Department of International Law and International Organisations, Faculty of Law, Paris Lodron University of Salzburg

AUDIO VERSION AVAILABLE HERE

Introduction

The rules in the New Pact on Migration and Asylum provide for obligations and possibilities to carry out asylum and return procedures in multi-purpose facilities situated in border areas. The hot spot approach set up in 2016 in Italy and Greece and later in a modified version in Hungary will be extended to other Member States.

Persons in the screening Procedure and certain categories of applicants for protection and persons in return procedures are not allowed to leave the border area. Restrictions of the freedom of movement and detention should guarantee the factual control over these persons.

The creation of border centres and the fiction of “non-entry” defined in Art. 6 Screening Regulation (see below) is an expression of the political consensus to restrict the entry of persons who do not fulfil the entry requirements. Border procedures and return procedures should lead to quick decisions in asylum and return procedures and should enhance that a higher number of rejected applicants for protection either voluntarily leave the State or are deported.

It will not always be easy to distinct, whether the obligation to stay in the border area is a restriction of freedom of movement or a restriction of personal liberty. Commentators (see here) and an impressive number of NGOs (see here p. 9,) here and here) describe the situation as de facto detention. This newly invented non-legal term points to blurred lines between various forms of confinement.

This blog highlights core questions concerning detention/de facto detention of the various categories of persons and analyses challenges for the protection of their fundamental rights.

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POST 18 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Lilian Tsourdi, Associate Professor and Jean Monnet Chair in EU Migration Law and Governance, Faculty of Law and Maastricht Centre for European Law, Maastricht University

Audio version available here

Initially limited and labelled as ‘symbolic politics’, EU migration funding has steadily grown, and intricate management arrangements have developed for its disbursal and control. Parts of EU migration funding consist of national programs under shared management. Still, several components of EU migration funding, such as emergency funding or the funding that will become available in the future through the newly adopted Solidarity Pool, are essentially crisis response measures trying to cater for structural needs. The New Pact on Migration and Asylum instruments pay greater attention to implementation and governance aspects of the EU’s migration policies, including its funding component. The current Multi-Annual Financial Framework (MFF 2021-2027) frames the financial aspects of the New Pact instruments. However, the Pact instruments present innovations that seek to both mobilise and boost existing resources.

Against this backdrop, I provide, first, a brief critical overview of the funding component of the EU’s migration policies prior to the Pact. Next, I analyse the main elements of the current MFF 2021-2027 that frame the funding component of the EU’s migration policies. This is followed by a scrutiny of two key developments under the New Pact: i) an innovative approach to boosting migration implementation capacities, which is, however, based on a conception of solidarity as counterweight to migration pressures, and, ii) border processing as a potential blueprint for structural forms of EU migration funding. On this basis, I conclude on the interplay between funding and implementation under the New Pact.

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POST 17 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

by Catherine Warin, Expert, European Institute of Public Administration and Valeria Ilareva, Lawyer, Foundation for Access to Rights

The New Pact on Migration and Asylum has stirred criticism from civil society organisations sounding the alarm on the risks of human rights violations (see here or here). Academics have also pointed out how the new instruments amplify risks for violations (see e.g. about the Crisis Regulation) and how they are likely to create new obstacles to the effectiveness of the rights of asylum seekers, be it due to the complexities of the provisions on legal support or those of the Asylum Procedure Regulation.

Yet, references to vulnerability and injunctions to provide the vulnerable with special attention or assistance abound in the New Pact. The reform provides an opportunity for developing the ‘functional utility’ of the concept of vulnerability, i.e. its practical relevance for the protection of human rights and more specifically, here, its relevance for ensuring that the implementation of the New Pact is done in compliance with human rights. In this blog, first, we recall briefly the pre-existing applications of vulnerability in European asylum law, and next we look at how the New Pact addresses individual factors of vulnerability and the diversity of those factors. We then highlight, focusing on the example of gender, the contextual dimension of vulnerability, which the New Pact acknowledges to a certain extent. We conclude that the New Pact allows for a much-needed approach of vulnerability as both individual and contextual, i.e. an approach which identifies certain individual characteristics and certain contexts (or situations) in which those characteristics become factors of vulnerability. This is essential if we want the human rights of those concerned to be effectively protected.

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POST 16 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

by Caroline Leclercq, PhD candidate in European and Migration Law, Centre de droit européen, Universitè Libre de Bruxelles

Resettlement seems to be the main solution advanced in the New Pact on Migration and Asylum to fill the current gap of legal channels for asylum seekers. It is defined by the United Nations High Commissioner for refugees (UNHCR) as the selection and transfer of refugees from a first State of asylum where they are protected but in precarious or unsafe situation, to a third State that has agreed to accept them as refugees with permanent residence status. It involves a pre-selection by UNHCR, followed by a selection by the resettlement State. Resettlement aims to show international solidarity with countries that host the majority of the world’s refugees, and to ensure durable protection for the most vulnerable among them.

Indeed, very few refugees manage to reach European territory to apply for asylum. Low and middle income countries currently host 75% of the world’s refugees. The number of people needing resettlement is rising all the time. In 2024, UNHCR estimates this figure at 2.4 million.  Since 2003, the EU Commission has increasingly prioritized resettlement as a means to enhance legal entry and managed transfer of individuals in need of international protection and to reduce the need for asylum seekers to resort to dangerous journeys to reach EU territory.

In 2015 two EU-wide resettlement programmes were established through a Commission recommendation. Those programmes were supported by significant financial resources allocated through the Asylum, Migration and Integration Fund (AMIF) and institutional support from the EASO (now the European Asylum Agency). 63.279 refugees were resettled to the EU between 2015 and 2019 (87% of the increased commitment). While these programmes established certain common principles for resettlement, they did not function based on a common admission procedure with appropriate guarantees for refugees. In 2016, the Commission introduced – as part of a New Pact on Migration and Asylum – a proposal for an EU resettlement framework under an EU regulation which was finally adopted on 14 May 2024 in order to address these shortcomings. This blog assesses the changes brought about by this new instrument regarding the harmonisation of the selection procedure and the guarantees provided to refugees during this process.

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POST 15 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Daniel Thym, Director of the Research Center Immigration & Asylum Law, University of Konstanz

Complaints about secondary movements lie behind recurrent complaints by ‘Northern’ governments, in the same way as their ‘Southern’ peers express their frustration about the lack of meaningful solidarity. Secondary movements in this sense concern irregular onward movements of asylum applicants and beneficiaries of international protection. Whereas the exceedingly complex and half-hearted provisions on solidarity in the New Pact receive much academic and political attention, the contents and implications of the new rulebook for secondary movements is often neglected despite its practical and political significance.

Both themes had been intricately linked during the negotiations: their interaction presented the Gordian knot any compromise would have to cut. The end result fails to deliver much progress. Inspection of the small print will demonstrate that ‘more of the same’ is the motto of the day. The status quo remains essentially intact once we pierce the veil of legislative innovation. That is why the new legislation will be no game changer on secondary movements, mirroring the daunting outlook on solidarity.

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