The maze of legal support in the New Pact on Migration and Asylum
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.
The provisions for free legal counselling in the administrative procedure are a novelty that deserves special attention. At first sight, the introduced changes increase the chances of TCNs applying for international protection. However, many ambiguities and loopholes in the proposed instruments are worth identifying. This poses quite a challenge, as the provisions on legal support are scattered across the many instruments that comprise the New Pact on Migration and Asylum, making it difficult to determine the standard of legal support for third-country nationals.
Considerations of legal support cannot be limited solely to the Asylum Procedures Regulation (EU) 2024/1348. The number of steps preceding the substantive examination of an application depends on how and where a TCN crossed the border. If the person does not meet the entry conditions, they will be subject to the procedure established in the Screening Regulation (EU) 2024/1352. If the TCN does not apply for protection or the outcome of the screening procedure is not favourable for the applicant, they will be subject to a procedure under the Return Directive 2008/115/EC or the Return Border Procedure Regulation (EU) 2024/1349. Meanwhile, the successful submission of an application triggers the procedure determining the Member State responsible for processing the application under the Asylum and Migration Management Regulation (EU) 2024/1351. Finally, the Member State responsible verifies an application in merits. However, it should be noted that if TCNs arrive in the EU due to events identified by the Crisis and Force Majeure Regulation (EU) 2024/1359, they may never have the chance to benefit from many procedural guarantees set out in the Asylum Procedures Regulation (EU) 2024/1348.
- At the border
The Screening Regulation (EU) 2024/1352 addresses the issue of legal support in a very limited and indirect way. Third-country nationals subject to the screening are informed, among other things, about the right to apply for international protection, the applicable rules and obligations when cooperating with the relevant authorities and the consequences of non-compliance laid down in the Asylum and Migration Management Regulation (EU) 2024/1351. According to Articles 8 [6] and 11 [1c], organisations and individuals providing advice and consultation should access TCNs effectively during the screening. “Legal” advice or counselling is not indicated here but is not excluded. However, Member States may impose restrictions on such access where, under national law, they are objectively necessary not only for reasons of public security and public order but also for the administrative management of the border crossing point or the screening facility. It is worth noting that the Crisis and Force Majeure Regulation (EU) 2024/1359 copies these solutions. Moreover, it allows the Member States to apply derogations from relevant rules on the asylum procedure. Thus, this restrictive approach puts any legal support in question.
According to the Screening Regulation (EU) 2024/1352, access may not be severely restricted or prevented, but the “administrative management” concept allows for a rather broad interpretation. A kind of security brake on human rights violations at borders, including effective claims for protection, is the introduction of fundamental rights monitoring by ombudspersons, national human rights institutions and National Preventive Mechanisms. However, it is difficult to identify the direct impact of this monitoring on providing a particular person with legal aid, as the finding of violations may occur after the third-country national has already been returned.
Chapter IV on detention for removal does not mention any form of legal counselling or assistance in such cases. It only provides that the detained TCNs should be systematically provided with information on their situation, including their entitlement to contact the organisations and bodies under national law. The relevant NGOs and other bodies can access the detention centres, though such visits may be subject to authorisation.
The Return Border Procedure Regulation (EU) 2024/1349 is also very modest in this area. It refers to several Return Directive 2008/115/EC provisions. However, it does not indicate Article 13 [3 – 4], which is crucial for obtaining free legal assistance and representation allocated on request. The Regulation refers only to Article 16 of the Return Directive 2008/115/EC, allowing for contact with legal representatives upon request and in due time, which in the border circumstances can be difficult.
- In the procedure for determining the Member State responsible
The next stage experienced by a third-country national on the path to international protection is the Dublin procedure for determining the state responsible for processing their application. Compared to the Dublin III Regulation, the Asylum and Migration Management Regulation (EU) 2024/1351 contains much more detailed provisions for obtaining legal support. According to Article 21, the applicant must be informed of the right to free legal counselling and assistance, and the conditions involved. At all stages of determining the Member State responsible, applicants have the right to consult a legal adviser or other counsellor. They may choose a legal adviser or counsellor at their own expense or request free legal counselling provided by legal advisers or other counsellors admitted or permitted under national law to advise, assist or represent them or by non-governmental organisations accredited under national law. Subsequent provisions indicate a great deal of latitude for states to shape the system of legal counselling in the procedure determining the Member State responsible. The Member States’ primary obligation is to establish detailed procedural rules on the forms of submitting and processing requests for free legal counselling and, at further stages, free legal assistance and representation. However, counselling may or may not be provided by a lawyer. A designated immigration officer may also become a counsellor and serve several people simultaneously. In practice, the concept of an “other counsellor” acting in “several” cases may be interpreted differently in different countries, which raises the question of the quality and independence of counselling.
Article 21[6] defines the scope of free counselling, which includes guidance and explanations of information that an applicant should provide in order to help establish the Member State responsible, the applicants’ rights and obligations, the criteria applied in this procedure, and assistance in completing the relevant documents.
In turn, the notion of “legal assistance” appears only at the last stage of this procedure, when an applicant wants to challenge the decision on the transfer to the Member State responsible. Legal assistance includes at least preparing the required procedural documents. Meanwhile, legal representation comprises at least representation before a court or tribunal and may be limited to legal advisers or counsellors specifically designated by national law to provide legal assistance and representation. Free legal assistance and representation in appeal proceedings are also possible.
However, Member States may introduce limits regarding exemptions from fees and other costs and may provide that free legal assistance and representation will not be granted if the competent authority, court or tribunal considers that an appeal or a remedy has no realistic prospect of success
- In the asylum procedure (finally!)
The most significant changes in terms of “legal support” have been introduced at the next stage of the application for international protection, regulated by the Asylum Procedures Regulation (EU) 2024/1348. This proclaims, in the preamble, that access to legal counselling, assistance, and representation should be an integral part of the common procedure for granting international protection. The regulation mainly modifies the pre-court stage (the first instance) of the asylum procedure.
At the pre-court stage, the Asylum Procedures Directive 2013/32/EU only requires states to provide, upon request, free legal and procedural information, including at least information on the procedure and an explanation of how to challenge a negative decision (Article 19). Certainly, the applicants may also contact their legal adviser or NGOs. The directive also gives Member States a relatively large degree of discretion in fulfilling their obligation to inform applicants.
Meanwhile, Articles 16 – 20 of the Asylum Procedures Regulation (EU) 2024/1348 establish that, in addition to the right of access to any legal support at one’s own expense, applicants should: 1) receive information on the possibility of applying for free counselling, assistance, and representation, 2) have access upon request to free legal counselling in administrative procedure (the former first instance) 3) have access, upon request, to legal assistance and representation in the appeal procedure.
The regulation also assumes the “possibility” for Member States to provide free legal assistance and representation at the administrative stage according to their national law.
Member States may organise all the legal support under their national systems, so the national solutions may differ, but the regulation sets out the minimum requirements for free legal counselling. It should at least include guidance and explanations on the administrative procedure, including information on rights and obligations during the procedure, as well as assistance in submitting an application. In addition, it should cover guidance on the various procedures and rules related to admissibility and legal issues arising during the procedure, including information on how to challenge a decision rejecting an application. The changes introduced are therefore quite significant, as free legal counselling goes well beyond the legal information envisaged in the Asylum Procedures Directive 2013/32/EU.
By contrast, there are no such considerable changes at the appeal stage. Free legal assistance and representation in appeal proceedings must be provided upon the applicant’s request. It only needs to be provided at the first level of the appeal procedure. However, the list of grounds for excluding the provision of free legal assistance and representation in appeal proceedings has been extended. In addition to the grounds of exclusion due to having sufficient resources for legal assistance and representation and having no tangible prospect of success in the appeal, the ground of abuse of an appeal has been added.
The Asylum Procedures Regulation (EU) 2024/1348 also sets out the possibilities of access to applicants held in detention, at borders and in transit zones. Access cannot be severely restricted or rendered impossible, but it may be subject to prior agreement with the relevant authorities and be limited due to issues of security, public order or administrative management of a border crossing point, transit zones and detention facilities. In addition, concerning access to information and documents by legal counsels/advisors, the regulation relies heavily on national law solutions for refusing access to sources and information and expands the list of grounds for denial of access to information and sources deemed classified under national law.
The (future) Asylum Procedures Regulation (EU) 2024/1348 pays much more attention than the (current/former) Directive 2013/32/EU to those who can provide legal counselling, assistance and representation. According to Article 21 of the directive, free information can be provided by NGOs or specialised state services. In the appeal procedure, anyone admitted or permitted under national law may provide free legal assistance and representation. Under their national law, states may also allow non-governmental organisations to do so. All of these entities should be qualified, but states have much discretion in determining this (EASO 2018, 97).
Meanwhile, under the Asylum Procedures Regulation (EU) 2024/1348, legal counselling may be given in administrative procedure by a “person entrusted with counselling” (recital 14, Articles, 12 [1] and 18 [3]). Thus, it may also be a designated staff member of the authority processing the application counselling several persons simultaneously. However, according to Article 19, in the case of assistance and representation, there is no longer just a “person” admitted or permitted under national law to provide legal services, but a “legal adviser” or “counsellor.” It can also be assumed that states should verify such a person’s competence/experience when accrediting NGOs. Thus, from the perspective of the qualifications of legal support providers, the standard of free legal assistance and representation has been raised.
Regarding legal support providers, the (future) Reception Conditions Directive (EU) 2024/1346 differs from the regulations in that it prohibits any conflicts of interest in the provision of free legal aid and representation. It can, therefore, be assumed that legal advisers or “other suitably qualified persons” should be independent of reception centres. This is important as the directive regulates access to free legal assistance and representation in appeals against the reception centre staff’s decision on the withdrawal or reduction of social welfare benefits.
Conclusion
The above review does not, of course, address all the nuances of providing legal support to TCNs seeking international protection offered by the various instruments of the New Pact on Migration and Asylum. However, despite its limitations, the review does lead to several conclusions.
The Pact’s instruments invoke the Geneva Convention Relating to Refugee Status and the European Convention on Human Rights. They declare full respect for human dignity and the application of the Charter of Fundamental Rights (including Article 47). Obviously, this is essential from the perspective of the protection of human rights, but the instruments do not provide clear guidance on how, in the context of legal support, the right to seek asylum, the asylum seekers’ right to court, and prohibition of refoulement are to be achieved.
The complex structure of the whole new system does not facilitate access to legal counselling, assistance and representation, especially in countries on the EU’s external borders. The proliferation of sub-entities responsible for screening, registering, receiving and considering applications complicates applying for legal support and, consequently, for international protection. The effectiveness of legal support will depend on the capacity (e.g. in emergencies), management and goodwill of states, and this may vary. For example, the adopted model is unlikely to prevent the Hungarian government’s policy of penalising civil society organisations for assisting asylum seekers (see Commission v Hungary C-821/19).
Differences in the level of legal support for applicants, access by NGOs and legal advisors to applicants in closed zones and access to information and materials can, therefore, still be expected to persist. However, it will be a long time before the new asylum system, with its entire infrastructure, becomes operational and its effectiveness, including in terms of legal support, can be assessed.
A review of the various instruments shows that the more steps TCNs go through in their search for protection, the more likely they will receive free legal support of a broader scope and better quality. The weakest support is guaranteed in the first contact with the immigration services, yet it is crucial for the subsequent stages of applying for protection. At the borders and closed zones, they can count on the information provided by officials representing the immigration services. The provisions referring to counselling by a “person entrusted with counselling” without a guarantee of independence, should be discussed in depth. This problem arises not only at the European level but also at the national level. An example of this can be found in the judgment of the Austrian Constitutional Court, which ruled in December 2023 that the independence of legal counselling for asylum seekers and foreigners should be sufficiently legally secured to protect the right to an effective legal remedy.
On the other hand, compared to the Directive 2013/32, the Asylum Procedures Regulation (EU) 2024/1348 undoubtedly raises the standard of legal support by replacing information with “legal counselling” and by imposing higher requirements on providers of free legal assistance and representation.
The introduction of an “administrative procedure” (instead of the first instance) also seems to be aimed at unifying and improving the quality of this procedure. Moreover, “administrative procedure” makes it easier to distinguish the procedure aiming at the substantive examination of an application for international protection from the other procedures set out in the other instruments of the New Pact on Migration and Asylum. On the other hand, leaving a lot of discretion to Member States in this respect may make this change illusory, at least in the context of legal support. It is well known that national asylum/migration procedures are usually administrative procedures of a specific nature anyway. Meanwhile, the general administrative procedural laws of Member States vary widely and often do not provide any free legal aid at the pre-court stage. Certainly, such legal support is advocated internationally, including by the Committee of Ministers of the Council of Europe. The introduction of free legal counselling in “administrative procedure” may seem on the surface to privilege TCNs. However, it should be rather perceived as a legitimate compensation measure that at least approaches the requirement of equality of arms and, above all, may contribute to the protection against refoulement.