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 8 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

The spectre of asylum procedures in third states has been haunting EU asylum policy since its inception. The London Resolutions of 1992 promoted the idea. Ten years later, the British government under Tony Blair (Labour) sparked a lively political debate. So far the idea has never been put into practice on a larger scale, with the exception of the EU-Turkey-Statement to which we shall come back. The scarcity of practical experience is one factor explaining the startling mixture of enthusiasm and distrust any debate about the topic inevitably raises. The idea is bound to gather momentum during term of the next European Commission. 

To prevent confusion, we should distinguish asylum procedures abroad (‘external processing’) from ‘safe third country’ schemes. The former (‘external processing’) concerns regular European asylum procedures in a country outside the EU. The Italian ‘Albania model’ follows that rationale. Two centres are currently being established in Albania where Italian officials will undertake regular asylum procedures, presumably via videoconferencing. Beneficiaries of international protection will be relocated to Italy, as will returnees whenever (voluntary) return fails in practice.

By contrast, the British ‘Rwanda plan’ was supposed to send asylum applicants who had entered the UK irregularly to Rwanda on the basis of an inadmissibility decision by the British authorities. They will receive an asylum procedure by the Rwandan authorities in accordance with domestic laws, without the option of eventual legal entry into the UK. The ‘safe third country’ provision in the new Asylum Procedures Regulation (EU) 2024/1348 follows the basic contours of that project.

In its 2024 manifesto, the European People’s Party (EPP), ‘advocate(s) a fundamental change in European asylum law’ on the basis of the safe third country concept (here, p. 6). The outgoing Commission President supports the plan half-heartedly. She explicitly lent her support to ‘smart’ policies in a letter to the European Council, whose strategic vision for 2024–27 has recently called upon the EU institutions to ‘consider new ways to prevent and counter irregular migration’ (here, Annex). Such references to ‘smart’ and ‘new ways’ are shorthand for the involvement of third states—an idea that has been pushed by Italy, Denmark, the Czech Republic, Austria, the Netherlands, and several other governments for some time.

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POST 7 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

Lyra Jakuleviciene, Professor at Mykolas Romeris University, Vilnius

The New Pact on Migration and Asylum  introduces screening of third country nationals at the external borders (hereafter Screening Regulation, Regulation). The initial objective of this new instrument is to speed up the asylum and return procedures. But will this new procedure at the borders facilitate the processing of asylum and return cases, or will it serve as a control measure and raise more legal issues?

The screening procedure will involve six elements: (a) preliminary health and vulnerability checks; (b) identification or verification of identity based on information in European databases; (c) registration of biometric data (fingerprints and facial image) in the databases; (d) security check through a query of relevant national and Union databases; (e) screening form containing information on the person; (f) referral to the asylum or return procedure.

Civil society organisations have argued (here and here) that the screening procedures will increase cases of pushbacks, detention and constrain access to examination of merits, as it will be implemented together with the ‘non-entry’ fiction making it easier to remove persons as if they are outside the EU law reach. Against this backdrop, this blog post explores to what extent the instrument facilitates the asylum and return procedures or rather generates  legal problems and if the latter is the case, whether there is an effective remedy against these concerns. It will do so by focusing on the shift of approach towards asylum seekers; possible implications of screening and use of ‘non-entry’ fiction, including access to the asylum procedure; procedural guarantees; reception conditions; and remedies.

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POST 6 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

Prof. Francesco Maiani, University of Lausanne

“Solidarity” and “responsibility” were dominant themes in the discussions that led to the new Pact. During the crisis, responsibility foundered amidst falling standards and wave-through practices, while solidarity was shown to be tenuous indeed. After the crisis, failure to find an agreed balance between responsibility and solidarity sealed the fate of the 2016 Commission proposals.

In 2020, the Commission went so far as to state that “[t]here is currently no effective solidarity mechanism in place, and no efficient rule on responsibility”, and promised a “fresh start” entailing the “aboli[tion of] the Dublin Regulation” and the institution of a new solidarity mechanism.

The new Asylum and Migration Management Regulation (EU) 2024/1351 (hereafter “the Regulation” or “AMMR”) keeps both promises, formally speaking: on July 1, 2026, it will abolish the Dublin III Regulation (EU) No 604/2013 (hereafter “DRIII”) and introduce new rules on responsibility as well as a new governance framework and permanent solidarity mechanism (see Art. 1 and 83ff AMMR).

Will this have a “transformative impact” and “[set] the stage for fair, efficient, and sustainable migration management over the long term” as claimed? While the proof of the proverbial pudding will be in the eating, I will attempt to gauge the main innovations – or lack thereof – introduced by the Regulation. In this post, I will address the new Dublin rules. A forthcoming post will examine the solidarity mechanism and the governance framework intimately linked to it.

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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.

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POST 4 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Barbara Mikołajczyk, professor at University of Silesia

Introduction 

Third-country nationals (TCNs) arriving at the borders of the European Union and seeking international protection may well be unfamiliar with the language, culture, customs and, above all, the law. Therefore, accessible information, legal counselling, assistance, representation and exemptions from fees and costs (in general, legal support) are sine qua non conditions for the enjoyment of the human right to asylum and access to justice. The sources for providing legal support for asylum seekers are embedded in Article 16 of the 1951 Convention Relating to the Status of Refugees and the international human rights law. The Geneva Convention guarantees refugees equal treatment with nationals in matters of court access. However, given that recognising refugee status is a declaratory act (UNHCR Handbook, 28),  migrants seeking international protection should also enjoy this right. The Geneva Convention does not mention asylum procedures or administrative procedures, which precede the court stage and are of principal importance on the way to international protection.    

Meanwhile, the efficiency and fairness of asylum procedures depend, to a large extent, on the legal support provided to migrants. Moreover, there is no doubt that the adoption of guarantees in this regard directly impacts compliance with the principle of non-refoulement. The importance of access to legal advisors and legal assistance for asylum seekers was stressed by the European Court of Human Rights considering the right to an effective remedy (Article 13 of the European Convention on Human Rights) in the context of collective expulsions, Dublin procedures, accelerated procedures, and push-backs, for example in M.S.S. v. Belgium and Greece, Hirsi Jamaa and Others v. Italy, Sharifi and Others v. Italy and Greece, Khlaifia and Others v. Italy, Asady and Others v. Slovakia, M.K. and Others v. Poland, D.A. and Others v. Poland, S.H. v. Malta. In M.S.S. v. Belgium and Greece, the Court held, among other things, that the lack of free assistance and shortage of legal advisors constituted an obstacle to a remedy and fell within the scope of Article 13, particularly for asylum seekers (sec.301). 

In turn, the Court of Justice of the European Union (CJEU), in the DEB case, considering the personal scope of the right to an effective remedy and to a fair trial contained in Article 47 of the Charter of Fundamental Rights, stressed that this provision “provides specifically that legal aid is to be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice” (sec. 31). Thus, “those” means every individual and legal person in need.  

Moreover, access to and effectiveness of legal support in asylum procedures may also be analysed in the light of the right to good administration (Article 41 of the Charter), as in the H.N. case, especially since the New Pact on Migration and Asylum introduced the provisions on legal counselling in the “administrative procedure.” 

The instruments adopted in December 2023 as part of the New Pact on Migration and Asylum contain provisions on legal support at various stages of applying for international protection. Since 2016, they have been evolving constantly through negotiations and criticism from NGOs, including ECRE/ELENA. Significant and surprising changes were introduced on the final straight of talks, most notably in the Asylum Procedures Regulation (EU) 2024/1348. 

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Post 3 of the series of the Odysseus blog on the Pact on Migration & Asylum

Prof. Vincent Chetail & Mariana Ferolla Vallandro do Valle, PhD candidate Geneva Graduate Institute of International and Development Studies

This work was supported by the Nccr—on the move funded by the Swiss National Science Foundation grant 205605.

The images of boats packed with people arriving on the shores of Europe has fixed public imagination and continues to frame the political debate. According to the rumor spread by mass media and politicians, there is an invasion of ‘economic migrants’ who are abusing asylum procedures to enter into the EU territory irregularly. Although this rhetoric is all but true, it represents the main premise of the Pact on Migration and Asylum. A complicated array of regulations and directives has been adopted in April 2024 to address the ‘increased pressure resulting from the arrivals of mixed flows with a high proportion of those with low chances of receiving international protection’. 

Following this stance, the official purpose of the Asylum Procedure Regulation (APR), as proclaimed in its preamble, is ‘to streamline, simplify and harmonise the procedural arrangements of the Member States by establishing a common procedure for international protection in the Union”. Whether the new Regulation has achieved this threefold objective remains disputable (see the contributions of Jens Vedsted-Hansen and of Philippe De Bruycker in this blog series). One thing is sure, however: asylum procedures essentially serve as a tool of migration control at the expense of refugee’s rigths (for a similar account of the previous APR’s drafts, see here, here, here, and here).

This strategy is not new and has long been documented (see e.g. here, here, here, and here). Nonetheless, the APR is exacerbating it at an unprecedented scale. Despite many warnings from the UN Special Rapporteurs, the UNHCR and civil society organizations during the drafting of the Regulation, its final text maintains most of its criticized provisions as well as its focus on migration management as an integral component of asylum procedures.

This blog post argues that the procedural devices introduced by the new Regulation jeopardise the right to seek asylum and the principle of non-refoulement. Summary rejection of asylum claims has become the new normal through the generalization of accelerated and border procedures. Despite a core common of procedural guarantees, the double standard between these special procedures and the ordinary one exacerbates the risk of illegal refoulement.

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