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

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.

The new normal: summary rejection of asylum applications 

The expanded use of the border procedure represents the most striking characteristic of the APR, alongside the banalization of inadmissible grounds and accelerated procedure. When they are combined with the new rules governing detention and return of asylum seekers, the overall machinery constitutes a powerful tool of rejection in the hands of Member States. 

Border procedure

Border procedures will become the rule for the vast majority of asylum seekers in Europe. In essence, the APR takes the ‘hotspot approach’ used in Greece and Italy and transforms it from an ad hoc and exceptional mechanism into the principle to be followed across the EU. This creates significant prejudice to how asylum seekers’ rights are perceived and applied in practice by national authorities (see, e.g., here, here, and here). 

Border procedures have a broad scope of application and strong consequences for asylum seekers. Curiously, this procedure is not limited to applications made at an external border or in a transit zone. It may also apply to anyone who is apprehended for having crossed an external border irregularly, even if this person is actually far from the border, as well as to those who arrive in a Member State through a search and rescue operation (art. 43). 

Although the APR distinguishes mandatory grounds from optional ones (art. 45), it is likely that most Member States will use both of them on a systematic basis to process asylum applications more quickly. To make this a reality, the Regulation mandates Member States to create 30’000 places for border processing at the EU level. The Commission is to determine the allocation of that capacity for each Member State, with the numbers that each Member State is obliged to assess in a border procedure rising to a total of 120,000 annually by 2028 (see arts. 46-50 and here). These caps give Member States further flexibility in deciding to what extent they wish to rely on border procedures according to their own interests.

Following the typical logic of migration control, most applicants are supposed to be detained and, if not, they shall reside at or in proximity to the external border or transit zones, or in other locations designated by the Member State (art. 54(1)). This containment at the border relies on the fiction of non-entry: asylum seekers are physically within the territory, but not legally authorized to enter the territory. This fiction has no grounding on international human rights law and refugee law, which remain plainly applicable, even if the likelihood of violation is obviously amplified with such formalistic distinction between physical presence and legal entry.   

When applying border procedures, Member States may decide on the inadmissibility of applications, in accordance with Article 38, and on the merits of an application in most situations where accelerated procedures must be applied (art. 45(1)). This means that, in a number of cases, asylum applications may be rejected at the border, without giving the applicant a chance to effectively enter the Member State.

Automatic denial of protection 

Whether submitted at the border or not, asylum applications may be rejected as being considered inadmissible in several circumstances listed in Article 38, including on the very controversial ground of safe third country. This notion is defined in a very broad way to allow a widespread usage which is not compatible with international law, for asylum seekers could even be sent in non-state parties to the Geneva Convention (art. 59; for further discussions see the contribution of Daniel Thym in this series and also here and here).

Furthermore, an application shall not be examined on the merits where an application is explicitly or implicitly withdrawn (art. 39(c)). In particular, an application is implicitly withdrawn in cases involving lack of cooperation from the asylum seeker in providing information to the Member State’s authorities or if the asylum seeker fails to lodge an application or attend a personal interview without good cause (art. 41). Denying protection on such elusive grounds, without assessing whether the person is or not a refugee, is a blatant violation of the Geneva Convention, for the lack of cooperation or the failure to attend an interview have nothing to do about the fear of being persecuted in the country of origin. 

Furthermore, many asylum seekers do not receive adequate and clear information on how to apply for international protection and conduct themselves in the proceedings, an issue that still generates controversy within the European human rights framework. The APR grants a wide margin of discretion to national authorities in this regard and heightens the risk that applications will be considered as implicitly withdrawn when, in fact, the applicant may not have received enough assistance to understand what was required of them during the proceedings. 

Accelerated procedures

The greatest change the APR introduces is to make accelerated procedures mandatory in a broad variety of cases listed in Article 42. These include vague and subjective situations in which applicants are deemed to have only raised issues that are not relevant to the examination of the asylum claim, made false and contradictory allegations, or intentionally misled the authorities. The implicit logic in these provisions is that, in such situations, the applicant has a lower likelihood of being a bona fide asylum seeker, and thus their application can be examined more quickly, as it will probably lead to a rejection. 

The same presumption of rejection applies when the applicant has not made an application as soon as possible after entering the Member State’s territory and, more generally, when they are a national of a so-called ‘safe country of origin’ or a country for which the proportion of decisions granting international protection EU-wide is 20% or lower. This last scenario is a novelty of the APR, and one of its most problematic additions. It creates a bias against applicants from such countries without any evidence of its rationale, for recognition rates per country of origin vary widely among Member States. 

Both in pith and substance, summary rejections of asylum applications remain a central objective of the Pact through the generalization of special procedures and the introduction of vague and disputable notions, leaving a considerable margin of discretion to Member States. This increases the risk of refoulement in violation of international law; a risk which is all but virtual, given that the common procedural guarantees are not free from ambiguities and allow derogations in case of border and accelerated procedures.

The common core of procedural guarantees in the APR

The APR sets out some procedural guarantees that are applicable to the examination of all applications for protection made within Member States (art. 2(1)), regardless of the specific procedure followed. While endorsing important standards of protection, the APR has significant shortcomings about applicants’ access to information and assistance, which are particularly worrying in the case of accelerated and border procedures.

Information

The provision of information about how to apply for international protection and how this procedure is carried out is crucial to asylum seekers. The APR mandates Member States to provide this information, including in detention facilities and border crossing points (art. 30(1)). In the administrative procedure, the APR, following the trend established in previous EU directives (e.g. art. 5(2) of Directive 2013/33/EU), requires applicants to be informed ‘in a language which they understand or are reasonably supposed to understand’ (art. 8(2)). This alternative formulation creates serious risks that insufficient efforts will be taken to ensure that the applicant has effectively understood the information, thus hindering their access to international protection, as pointed out by the UNHCR (p. 44, 51) and the ECRE (p. 17-18). 

Moreover, during the appeals procedure, the applicant shall be informed of the decision on the application only when they are not assisted by a legal adviser (art. 36(3)-(4)). The assumption here seems to be that the legal adviser will pass on the relevant information and explain its consequences to the applicant, so that having only the legal adviser understand the decision is enough to ensure procedural fairness. Practice, however, once again challenges this assumption, as legal advisers in the field of asylum frequently have difficulties communicating with their clients, be it due to language barriers or difficulties in contacting them. 

Assistance during the procedure

Another significant difference between the administrative and the appeals procedure concerns precisely the extent of applicants’ access to legal advice. Member States shall provide free legal assistance and representation only during the appeals procedure (art. 15(2)), whereas, for the administrative procedure, only legal counselling is provided for free. Hence, applicants have to rely on NGOs and lawyers offering pro bono services or forego legal assistance and representation during the administrative procedure, making the preparation of their asylum claim and the navigation through the procedure even more difficult.

The APR further allows Member States to exclude free legal aid in several circumstances, including when an application in the administrative procedure is a first subsequent application lodged in order to delay or frustrate the enforcement of a return decision (art. 16(3)), or when the appeal is considered to be abusive or to have no tangible prospect of success (art. 17(3)). These grounds are subjective and gives national authorities an important leeway for withdrawing free legal aid.

By contrast, interpretation services and access to UNHCR are more widely recognized. The APR requires free interpretation services for the purposes of registering and lodging an application and for the applicant’s personal interview (art. 8(3)). Interpretation shall also be provided for hearings at the appeals procedure, if necessary to ensure appropriate communication (art. 67(4)). 

Furthermore, UNHCR shall have access to applicants, regardless of whether they are in reception centres, detention, at the border, or in transit zones (art. 6(1)(a)). Subject to applicants’ consent, the UN agency shall have access to information on individual applications and decisions taken on them (art. 6(1)(b)). The UNHCR must also be allowed to present its views on individual applications to competent authorities at any stage of the asylum procedure (art. 6(1)(c)). Nonetheless, the APR does not establish an obligation for domestic authorities to take the UNHCR’s views into consideration or, at least, to respond to them.

Opportunities to be heard

To ensure that applicants will have the opportunity to be heard and present elements to substantiate their claims, the APR establishes different kinds of personal interviews during the asylum procedure. The applicant has the right to an admissibility interview before the competent authority decides on the inadmissibility of the application (art. 11) and to a substantive interview before a decision is taken on the merits (art. 12). The presence of the applicant’s legal adviser shall be ensured in both cases (art. 14(4)). Another important guarantee is that all interviews are recorded and transcribed, and applicants have the opportunity to review the transcripts, make comments, and provide clarification (art. 14(3)).

These interviews may be omitted in the scenarios listed under Article 13(11), including in two new and disputable circumstances: where the national authority considers the application inadmissible on the basis of the available evidence and, in the case of a subsequent application, where the preliminary examination is done on the basis of a written statement. This grants considerable discretion in rejecting applications without hearing the applicant and raises issues of procedural fairness and biased assessments by the authorities.

Effective remedies

Decisions taken at the administrative procedure may be appealed before a domestic court or tribunal in accordance with Article 67 of the APR. The examination of the appeal must include ‘a full and ex nunc examination of both facts and points of law’ (art. 67(3)). As a general rule, appeals are endowed with suspensive effect for as long as the applicant has a right to remain in the Member State’s territory (art. 68(1)). There are, however, exceptions to this rule, as will be seen below.

Special procedures and the regime of double standards 

With the new Regulation, the border and accelerated procedures will not only become the rule for the vast majority of asylum seekers; they also derogate from the ordinary asylum procedure on two main aspects: the requirement of very short – and in fact unworkable – time-limits and the adoption of ambiguous rules governing suspensive effect of appeal.

Time-limits 

Under the regular asylum procedure, applicants have 21 days from the registration of their application to lodge their application, provided the applicant is given an effective opportunity to do so, usually through an appointment with the competent authority (art. 28(1), (3)). In border procedures, however, the application must be lodged within only five days from the registration (art. 51 (1))—that is, less than a quarter of the time available in regular procedures. 

The entire border procedure must be completed as quickly as possible and no later than 12 weeks from the registration of the application, or 16 weeks in case of transfer to another Member State (art. 51(2)). Although the APR expresses that border procedures should still enable ‘a complete and fair examination of the claims’ (art. 51(2)), it is difficult to see how Member States will be able to ensure that, since, as pointed out by Daniel Thym, many already struggle to complete the procedure within the six months required by current EU law. While the APR does not establish specific time-limits during accelerated procedures, it is likely that Member States will adopt short ones as well, similar to those of border procedures, thus transposing these difficulties to a wider variety of cases.

Such short time-limits compromise the applicant’s ability to prepare and present an application with as much chance of success as it could have. After all, they do not give adequate time for the applicant and their legal adviser to communicate effectively and decide how to organize the claim, or even for the applicant to find a legal adviser in case none is provided. This is particularly the case for applicants who might have difficulties talking about their past experiences and protection needs because of their trauma. Similarly, the shortened timeframes make it difficult for the UNHCR to evaluate the applicant’s situation and meaningfully assist them as well. Interestingly, in I.M. v. France (§144), the European Court of Human Rights (ECtHR) considered that the time-limit of five days to lodge an asylum application, along with difficulties in accessing interpretation services, offered insufficient procedural protection against refoulement and was contrary to Articles 3 and 13 of the European Convention on Human Rights (ECHR).

Further reduction of time-limits is seen at the appeals procedure. In principle, Member States must give applicants a minimum of two weeks and a maximum of one month to lodge appeals (art. 67(7)(b)). Nonetheless, the appeal must be lodged within five to 10 days where the application has been processed under the accelerated procedure and rejected as inadmissible, implicitly withdrawn, unfounded, or manifestly unfounded (art. 67(7)(a)). Given the APR’s expansion of the circumstances to which inadmissibility decisions and accelerated procedures apply, these short time-limits will become the rule here as well, hindering the adequate preparation of appeals.

Suspensive effect 

Another typical drawback of the APR concerns the suspensive effect of appeals. Under Article 68(2), applicants shall have the right to remain on the Member State’s territory until the time-limit for appeals has expired and, where an appeal has been lodged, while the outcome of the remedy is pending. However, Article 68(3) excludes suspensive effect in cases where the application was examined under the accelerated procedure or rejected: as inadmissible under Articles 38(1)(a), (d), (e), and 38(2); as implicitly withdrawn; as an unfounded or manifestly unfounded subsequent application. 

Although the APR states that this is without prejudice to the observance of the non-refoulement principle and that a court may allow the applicant to remain in the Member State even in these cases, the presumption of exclusion of suspensive effect remains, leaving it up to the applicant to prove that the protection from refoulement applies to their case. The lawfulness of such logic is dubious, as the ECtHR has repeatedly held that an effective remedy against ill-treatment in cases of refoulement must include automatic suspensive effect (e.g., Gebremedhin, §66; M.K., §143-144).

Some concluding remarks: border control at the expense of protection

The gap has never been so huge between law and practice at the external borders of the EU than since the last decade. As highlighted above, the new Regulation may transform this gap into a gulf at the expense of refugee’ rights. Despite setting out an array of common procedural guarantees based on human rights law, the APR grants national authorities a broad discretion and allows for many exceptions and special procedures. When all these changes are taken as a whole, the asylum procedure is losing its raison d’être: it is becoming a tool of exclusion rather than a means for identifying those who are in need of protection from persecution and armed conflict.