9 November 2021
26 October 2022
November 2022 by Barbara Safradin
In this update, some recent highlights at the EU and national levels will be discussed in the field of EU migration and asylum law for the period July until October 2022. The following topics will be discussed, amongst others: the war in Ukraine, new Russian measures and impact on the EU; migration ‘instrumentalisation’ developments; the situation on the Western Balkan route and the Czech EU presidency, and lastly the recently adopted asylum measures in the Netherlands.
War in Ukraine
In the last EU update it was illustrated that a number of EU Member States (i.e. Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia) have signed a joint statement requesting the European Commission for more resources to manage the influx of Ukrainian citizens. 
In addition to the sanctions already imposed, such as restrictions on economic cooperation, in the energy and financial sectors, the EU has imposed a series of new sanctions against Russia in response to its military aggression against Ukraine. For example, on 9 September, the EU suspended the visa facilitation agreement with Russia. The EU also continues to support Ukraine on the road towards European integration and has allocated a budget of €5 trillion to Ukraine for assistance in the fight against the Russian military aggression.
On 20 October, the European Commission announced that it will provide new emergency shelter and winter facilities to Ukraine, as Russia’s war continues to destroy civilian infrastructure. Furthermore, the Commission will provide an additional €175 million in humanitarian assistance to support those most in need in Ukraine and Moldova. The announcement comes as Commissioner for Crisis Management, Janez Lenarčič, visited Ukraine mid-October to help coordinate one of the EU’s most extensive emergency response operations.
Increase of Russian aggression
In the recent weeks, it has been busy on the Russian borders with Georgia and Mongolia. This is partly because Russian men who have been called up to fight in Ukraine have fled the country. The reason for this is that Russian President Vladimir Putin has called up 300.000 reservists in the fight against Ukraine. Eric van der Burg, Dutch State Secretary for Asylum and Migration, has indicated that Russian men who apply for asylum in the Netherlands will not be returned, because there is a good chance that they will be persecuted there.
The United Nations also recently declared that the Russian war of aggression should be seen as a violation of the territorial integrity and sovereignty of Ukraine and that it is contrary to the principles of the United Nations Charter.
In its conclusions of 24 and 25 March 2022, the European Council also stated that ‘Russia is directing attacks against the civilian population and is targeting civilian objects, including hospitals, medical facilities, schools and shelters. These war crimes must stop immediately. Those responsible, and their accomplices, will be held to account in accordance with international law’.
In addition, since the 16th of September, the Russian Federation has ceased to be a party to the European Convention on Human Rights, following its exclusion from the Council of Europe in March 2022. Despite this, Russia still has a binding legal obligation to comply with rulings and decisions of the European Court of Human Rights (ECtHR), which has jurisdiction until September 16, 2022 to hear applications against Russia concerning acts or omissions.
Impact Russian aggression on EU Member States
The Russian military invasion of Ukraine has led to an unprecedented influx of refugees into the EU, making it the biggest refugee crisis in Europe since World War II. In total, around 9.9 million entries into the EU were registered from Ukraine and Moldova via Polish, Slovakian, Hungarian and Romanian border crossings. According to the European Commission, a total of 5.6 million people have fled Ukraine and more than 1 million have returned to Ukraine. In addition, EU Observer indicates that more than 2.5 million Ukrainians have registered for temporary protection status in the EU. As of February 24, 2022, about 5.8 million Ukrainian refugees have arrived in Poland, Romania, Slovakia and Hungary. In addition, Frontex reported recently that a total of 1 066 535 Russian citizens have entered the EU through land border crossing points since the beginning of the Russian invasion of Ukraine.
The number of registrations for temporary protection has exceeded 4 million: as of August 22, 2022, there are 4 072 353 registrations registered in the EU. At least 91% of all persons registered for temporary protection have Ukrainian nationality. The highest number of temporary protection registrations remains in Poland (1 304 828 on 22 August 2022). From the countries of first entry, refugees are flowing in large numbers to other Member States. The Czech Republic, Poland, Estonia, Lithuania and Bulgaria are currently the top five most affected destination countries in the EU per capita (as of 19 August 2022).
Non-recognition of Russian travel documents issued in occupied foreign regions
On 6 September 2022 the European Commission forwarded a proposal for a decision by the EP and the Council on the non-recognition of Russian travel documents issued in occupied foreign regions (COM(2022)662). On 12 October 2022 the EU Council of Ministers agreed on its mandate for the negotiations with the European Parliament on this proposal (Council document 13192/22). With these measures, the EU aims to establish a uniform practice across all EU Member States and sends a clear signal to Russia and to the inhabitants of the occupied regions that the EU and EEA Member States do not accept such passports either for the issue of Schengen visa or for the crossing of the external borders of the Schengen area. These measures do not target citizens who already had Russian nationality. Instead, the EU has established a policy of non-recognition of Russian citizenship (with accompanying passport) by Ukrainians from the occupied territories (see in this context also the latest letter of the Meijers Committee).
Temporary Protection Directive in the Netherlands
As discussed in the update of July 2022, Ukrainian citizens in the Netherlands face several challenges in protecting their rights. The Temporary Protection Directive confers a number of substantive rights on temporarily protected persons. These rights are of a significant high standard. In the Netherlands, however, the Temporary Protection Directive has been transposed by obliging those temporarily protected to submit an asylum application in order to qualify for the temporary protection regime. This obligation has no basis in the directive itself. The consequence of this practice is that temporarily protected persons in the Netherlands do not receive a residence permit but the status of asylum seeker. At the time of writing, no new policy has been introduced.
In December 2021, the European Commission presented a proposal for a regulation to address instrumentalisation situations in the field of migration and asylum. The proposal introduces a mechanism that allows Member States to deviate from their responsibilities under the EU asylum acquis in situations of “instrumentalisation” of migration. More specifically, it allows states to derogate from the proposed 2016 Asylum Procedures Regulation and the amended APR proposal of 2020, the proposed recast of the 2016 Reception Conditions Directive and the proposed recast of the 2018 Return Directive, which essentially allows them to derogate from their obligations.
Critical voices from civil society
The Czech Presidency aims to adopt a common position on instrumentalisation by December 2022. This would make it one of the fastest moving asylum legislative files in the Council of the EU. A number of NGOs, including Amnesty International, Refugee Council the Netherlands, the Danish Council for Refugees, Save the Children and Human Rights Watch, have recently expressed their opposition to the introduction and use of the concept of instrumentalisation and its codification in EU law in a joint statement. They also reject reforms of EU law based on allowing widespread derogations from EU law for a number of specific reasons, including the following: the derogations undermine the Common Asylum System and in particular its common character; and the restrictions on fundamental rights are disproportionate. In addition, the above organisations argue that a system in which some Member States often deviate on the basis of instrumentalisation – thus applying lower standards – is likely to affect those Member States that continue to apply higher standards since a lack of compliance with EU standards and international law can lead to a push factor.
The Czech presidency of the Council of the European Union is currently pushing fast for the adoption, before the end of 2022, of the so-called Instrumentalisation Regulation. This legislative proposal initially dates from December 2021 and stems directly from a previous EU Commission proposal aiming at introducing a series of emergency measures to address the migratory situation at the eastern borders of the EU, between Latvia, Lithuania, Poland and Belarus.
Member States (i.e. justice and home affairs counsellors on asylum) have met on 9 November to discuss the proposal. In the meantime, EuroMed Rights, its members and partners as well as all 80 civil society organisations behind the petition will call on EU member sates to counter the regulation and propose significant amendments to the text from the Czech presidency.
Finally, before adopting measures that substantially impact access to protection and asylum of migrants and refugees, Member States will implement a pre-risk assessment on the impact any decision will have on the fundamental rights of people on the move.
Western Balkan Route
As illustrated by Frontex, the Western Balkans remains the most active migration route to the EU for migrants and refugees heading to Europe, especially from the Middle East, Asia and Africa, with 14 866 crossing attempts in July 2022. This is almost three times more than last year. The high number of illegal border crossings can be attributed to repeated crossing attempts by migrants already present in the Western Balkans. The border section of the EU that is most under pressure is Serbia-Hungary, followed by the border section between Bosnia and Herzegovina and Croatia and between Serbia and Romania.
At the time of writing, more than 85,000 illegal border crossings and attempts have been registered at the external borders on the Western Balkans route, affecting various EU Member States, in particular Austria, Croatia, Hungary, Slovenia and other countries along the route. The Western Balkans route is also characterised by the high number of long-standing migrants in the region. Most illegal border crossings are therefore linked to people who have been in the region for some time and who have repeatedly tried to reach their destination country in the EU. At the end of July 2022, more than 10,000 people were present in the region, 72% in Serbia and 22% in Bosnia and Herzegovina. According to Frontex, the number of irregular migrants in the region contributes to tensions in the local communities, but also leads to more organised crime activities such as migrant smuggling, human trafficking, and other forms of exploitation.
The Czech Presidency
The Czech Presidency is currently committed to the Balkan region, with EU enlargement negotiations and support for the accession process of the Western Balkan countries being one of its priorities. The JHA Ministerial Forum ‘EU-Western Balkans’ took place in Tirana on 3-4 November 2022 under the Czech Presidency. One of the topics that the ministers discussed is the migration situation along the Western Balkans route. Furthermore, Frontex will organise a meeting in Prague under the auspices of the Czech EU Presidency on border surveillance operations and capacity building in the region.
In this context, based on the already existing support and established cooperation in the region, the Czech Presidency will focus on the following key areas of cooperation:
Dutch asylum measures in violation of EU law
On Friday 26 August, the Dutch State Secretary for Justice and Security, Eric van der Burg, announced in a letter to the President of the House of Representatives several measures to reduce the number of refugees in Ter Apel and to promote the outflow.
In its recent comment, the Meijers Committee has commented on the letter and the measures announced therein. As such, the Committee specifically focuses on the proposed measures that are the most problematic from a European law perspective, namely: 1) the de facto housing requirement for family reunification and the inclusion of an extra term/extension of the issuance of a provisional residence permit (in Dutch: mvv) for family reunification by 6 months is contrary to the Family Reunification Directive 2003/86/EU; 2) a generic extension of the decision period on applications for international protection is contrary to the Procedures Directive 2013/32/EU; 3) resumption of the transfer of asylum seekers from Dublin to Greece is contrary to the case law of the Administrative Jurisdiction Division of the Dutch Council of State.
The Meijers Committee has underlined that the Netherlands, like the other EU Member States, is under an obligation to comply with EU law, specifically the principe of sincere cooperation on the basis of Article 4(3) of the EU Treaty. Both the Court of justice of the EU (CJEU) and the Administrative Jurisdiction Department Council of State (in Dutch: Afdeling Bestuursrechtspraak Raad van State) have stipulated several times in the past decade that the Netherlands did not comply with this obligation with regard to the Family Reunification Directive. Even though several organisations, such as the Meijers Committee and the Netherlands Council for Refugees, have called on the State Secretary to withdraw these measures as soon as possible because they are contrary to European legislation, this has not happened to date.
At the moment of writing, the Dutch State Secretary informed the Second Chamber on a new legal proposal that concerns the assignment of a statutory duty to municipalities to make asylum reception facilities possible. This proposal establishes that municipalities are jointly responsible, in addition to the central government, to oblige to international and European law standards that guarantee asylum reception to refugees and asylum seekers. As such, the proposal is based on solidarity between municipalities, fair and balanced distribution across the country, making reception places available on a voluntary basis as much as possible and preventing crisis emergency shelters.
Emergency procedure Court of Justice of the EU
The Meijers Committee also referred to the possibilities of the Aliens Chambers to provoke a decision from the CJEU in the short term. In this context, the Metock judgment and the Imran case illustrate that preliminary reference procedures on the compatibility with the Family Reunification Directive in the emergency procedure stand a good chance of success. In that case, a ruling from Luxembourg could be issued within three months.
 Executive Secretary of the Meijers Committee.
 Zie: https://www.politico.eu/wp-content/uploads/2022/05/02/Joint-statement-on-the-needs-and-challenges-regarding-the-unprecedented-humanitarian-migration-to-the-European-Union.pdf?utm_source=POLITICO.EU&utm_campaign=d351aa7783-EMAIL_CAMPAIGN.
 EU observer, Over 2.5 million Ukrainians register form EU protection,, geraadpleegd op 4 mei 2022, beschikbaar via https://euobserver.com/tickers/154871?utm_source=euobs&utm_medium=email.
 Integrated Situation Awareness and Analysis Situation Report No 37. Russia’s war on Ukraine; EU observer, Over 2.5 million Ukrainians register for EU protection,, geraadpleegd op 20 september 2022, beschikbaar via https://euobserver.com/tickers/154871?utm_source=euobs&utm_medium=email.
 See in this context Comments of the Meijers Committee on the proposal for a Decision on the non-recognition of Russian travel documents issued in occupied foreign regions, October 2022, available at https://www.commissie-meijers.nl/wp-content/uploads/2022/10/221013-Meijers-Committee-Reaction-to-Council-Decision-1319222-on-the-non-recognition-of-Russian-travel-documents-issued-in-occupied-foreign-regions.pdf.
 Commissie Meijers, ‘Notitie betreffende de gebrekkige toepassing van de Tijdelijke beschermingsrichtlijn in Nederland juni 2022, available athttps://www.commissie-meijers.nl/comment/notitie-betreffende-de-gebrekkige-toepassing-van-de-tijdelijke-beschermingsrichtlijn-in-nederland/, accessed on 30 June 2022.
 ECRE Information Sheet – Measures in response to the arrival of displaced persons fleeing the war in Ukraine (last update: 6 May 2022).
 Zie Council of the EU 12756/22.
 See in this context: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=COM:2021:890:FIN.
 See: https://ecre.org/joint-statement-ngos-call-on-member-states-agreeing-on-the-instrumentalisation-regulation-will-be-the-final-blow-to-a-common-european-asylum-system-ceas-in-europe/.
 Council of the EU 2021/0427/COD.
 Council of the European Union document ‘The Western Balkan Migration Route Presidency Discussion Paper 12406/22, pp. 2-4.
 CM2207 Reactie van de Commissie Meijers op de Kamerbrief inzake besluitvorming omtrent de opvangcrisis, available at https://www.commissie-meijers.nl/wp-content/uploads/2022/09/220905-CM2207-Reactie-van-de-Commissie-Meijers-op-de-Kamerbrief-inzake-besluitvorming-omtrent-de-opvangcrisis.pdf.
 See ‘Kamerbrief over Wetsvoorstel gemeentelijke taak mogelijk maken asielopvangvoorzieningen’, available at https://www.rijksoverheid.nl/documenten/kamerstukken/2022/11/08/kamerbrief-over-spreidingswet.
 Case 17 April 2008, JV 2008/224, ve08000877, ECLI:EU:C:2008:235; Case CJEU 10 June 2011, C-155/11PPU, ECLI:EU:C:2011:387, ve11001451, par. 11, 12 en 16.