1 Februar 2023
Rule of Law Update – January 2023
Verder lezen
24 Mai 2023
Political Developments in the European Migration Policy
Barbara Safradin[1] and Shania Dharmawan[2], May 2023
In this first EU Update of 2023, Barbara Safradin and Shania Dharmawan, give an overview of the recent EU migration and asylum developments and the legislative and non-legislative proposals from the European Commission in the first quarter of 2023. This overview includes: the latest developments on the European Pact on Migration and Asylum, the situation on the western Balkan route and the number of irregular migrants in the EU, developments regarding the Temporary Protection of Ukrainians in Europe, the EU visa policy and finally the Swedish Presidency and the recent migration summit.
European Pact on Migration and Asylum – Latest Developments
On March 28, 2023, the Renew Europe group welcomed the adoption by the Civil Liberties, Justice, and Home Affairs (LIBE) Committee of the Asylum and Migration Pact’s key regulations, paving the way for a new system built on solidarity and responsibility-sharing.[3] The new Migration and Asylum Pact presented by the European Commission in September 2020 aims to improve asylum procedures and a fair sharing of responsibility among the Member States. It contains the following legislative proposals: the Asylum and Migration Management Regulations[4], the crisis and force majeure scheme[5], the screening scheme[6], and the amended asylum procedure regulation.[7] The deals focus in particular on enabling efficient border procedures, reinforcing cooperation partnerships with third countries of origin and transit, and prioritising the child’s best interest.[8]
European Parliament votes on important reform proposals on asylum and migration
The European Parliament (EP) voted on April 20 on whether it will start talks with EU member states on asylum and migration management files and on the status of long-term residents. In March 2023, the LIBE Committee has approved the negotiating positions on several EU legislative files, in particular on new screening procedures, rules on asylum and migration management, crisis response, and long-term residents.[9] Decisions on the above files have been previously contested by MEPs. However, at the plenary session on April 20, MEPs agreed to open talks with EU Member states on the following files:
Following the plenary’s green light on these files, MEPs may open talks on the final form of these legislative texts with the Council on those files for which the Member states have already agreed on their own position, notably the screening procedures.[10] The EP and the rotating presidencies of the EU Council aim to approve the reform of EU migration and asylum rules before the 2024 EU elections.[11]
Balkan Route and Persistent Pushbacks
In our update of January 2023, we have illustrated that more than 308,000 irregular entries were detected at the external borders of the European Union in the first eleven months of 2022. This is an increase of 68% compared to the same period last year and is the highest increase since 2016.[12] The Western Balkan routeremains the most active route, with 45% of all recorded irregular entries into the European Union since the beginning of the year.
According to the European Border and Coast Guard Agency (Frontex), irregular border crossings into the EU are up 64%, with the Western Balkans serving as the primary route. Meanwhile, the newest report from the Border Violence Monitoring Network (BVMN) reveals continued pushbacks and violations across the region.[13] In addition, a recent investigation by Lighthouse Reports et al., revealed that top Croatian officials manage an unofficial WhatsApp group called „OA Koridor II-Zapad“, in which the Croatian Border Police shared sensitive information about detentions of foreigners between August 2019 and February 2020, including disturbing photos.[14]
The Corridor operations in Croatia receive millions of euros from the EU to carry out operational actions aimed at combating irregular migration and crimes related to people smuggling.[15] A recent joint paper by ECRE and PICUM emphasised that Member States must ensure that all actions supported by EU funds are in line with the EU Charter of fundamental rights and that the Commission can freeze EU funding when EU-funded actions violate fundamental rights.[16]
The European Commission recently approved Croatia’s national border management and internal security programmes and declared them to be in line with EU fundamental rights. ECRE calls on the Commission to review its assessment of these programs and to ensure that EU funds do not directly finance actions that result in fundamental rights violations.[17]
The overwhelming evidence of violations of the rights of refugees in Croatia, including pushbacks, torture, and denial of the right to asylum by the Croatian authorities, was already a concern when the country was admitted to the Schengen Zone. Following the Council’s decision to admit Croatia into the Schengen area, ECRE and other rights and humanitarian organisations criticised the decision for ignoring the mistreatment of third-country nationals in the country and called on the Croatian authorities to end border abuse; be fully accountable for unlawful practices; and establish a credible and effective independent border surveillance mechanism.[18] A high-level meeting between Italy, Croatia and Slovenia is expected to be organised in the coming weeks to coordinate border security.
Medical Volunteers, Collective Aid and Construct Solidarity published a joint report[19] that indicated that there is a rise in repression of persons on the move by officials in Northern Serbia, as the violence on the Hungarian and Romanian borders continues.
The Council also agreed to an agreement with North Macedonia on Frontex operational activities. As of April 1, Frontex will be able to help North Macedonia to manage migration flows, counter illegal immigration and fight cross-border crime.[20] Frontex border management teams will also be able to be deployed in the country if agreed. The EU Council also states that strengthening controls along the borders of North Macedonia will contribute to further improving security at the EU’s external borders. In line with the European Border and Coast Guard Regulation, the agreement also contains provisions for monitoring compliance and for the protection of fundamental rights.
Shared responsibility in European Integrated Border management
EU Member States have the primary responsibility and competence for management of their borders. At the same time, the EU has been developing an European Integrated Border Management system (hereafter: EIBM), which consists of common rules on border management and a complex framework for coordination between all relevant authorities and agencies at national and EU level, including cooperation with third countries. The concept of EIBM is further defined in the Frontex regulation and is based on a so-called four-tier-access control model, including measures at the EU’s external borders, within the Schengen area, and concerning neighbouring countries as well as countries of origin and countries of transit of irregular migrants. The EIBM consists of 12 strategic components and three overarching components (i.e. fundamental rights, education and training, and research and innovation). The implementation and future development of the EIBM is a shared responsibility of the EU and Member States participating in the European Border and Coast Guard.[21]
In February 2023, the European Council pushed for enforcing efforts to guarantee effective control of the EU’s external borders and invited the Commission to, as soon as possible, finalise the EIBM strategy. In March 2023, the Commission adopted a communication presenting the strategic framework for EIBM and arecommendation to Member States on the mutual recognition of return decisions. Currently, discussions take place within the European Parliament, with academics, policy makers from the European Commission and Parliament and NGOs that aim to reach consensus towards joined guidelines on shared responsibility within the Integrated border management of the external frontiers of the EU.
Temporary Protection Directive
As discussed in our update of January 2023, Ukrainian citizens have faced various challenges in protecting their rights. The Temporary Protection Directive has granted a number of substantive rights to those who are temporarily protected.[22] These rights are of a fairly high level. In the Netherlands, however, the Temporary Protection Directive has been implemented by obliging those temporarily protected to submit an application for asylum in order to qualify for the promulgated temporary protection regime. This obligation does not have a basis in the directive itself. As a result, those temporarily protected in the Netherlands do not receive a residence permit, but they receive a status of an asylum seeker. At the time of writing this, no new policy has been adopted.[23]
On March 3, 2023, it will also be one year since the Temporary Protection Directive was first activated. At the Justice and Home Affairs Council meeting on 14 October 2022, the Commission stated that the temporary protection regime will be extended for another year. Following this decision, EU Member States have extended the duration of temporary protection at a national level.
ECRE recently published an Information Sheet that provides an overview of Member State practices in the area of extension of the Temporary Protection Directive. Most EU Member States have extended the duration of the temporary protection regime until 4 March 2024. For example, some Member States have decided to automatically extend the validity of temporary protection documents until 4 March 2024 (e.g., Austria, Finland, Norway, Slovakia). However, some Member States have extended the duration of residence documents for a shorter period (e.g. Italy, Portugal) or for a longer period (e.g. Czech Republic, Romania). The scope of the directive remains largely unchanged. A number of Member States have set a time limit for applying for the extension of temporary protection (e.g., Czech Republic, France). While in some Member States the application for renewal can be filed online (e.g., Czech Republic, Sweden), in other Member States personal presence is required at local governments (e.g. France). Lithuania adopted a new simplified online procedure that replaces plastic cards with a digital document, which is valid until 4 March 2024. The Netherlands has decided to withdraw its decision to limit the scope and to extend temporary protection until 4 September 2023 for nationals with a temporary stay in Ukraine.[24]
In terms of access to rights, access to suitable accommodation remains one of the main challenges in the temporary protection regime, and some Member States, such as the Czech Republic and Poland, are introducing new rules regarding temporary housing solutions. In addition, there are different practices at the national level when it comes to granting social rights, including access to social services and livelihoods, access to medical care, the labor market, and education.[25]
Temporary protection directive extended and amended regulations for third-country nationals in the Netherlands
For most refugees from Ukraine, there will be no significant consequences and the vast majority will retain access to the labour market in the Netherlands. Refugees from Ukraine who do not have Ukrainian nationality, but who still fall under the directive after March 4, 2023 because, for example, they have a residence status in Ukraine or are family members of a Ukrainian, must have a new so-called ‘O-document’ from March 4, 2023.
Refugees from Ukraine with a temporary residence permit in Ukraine (for work or study purposes, for example) and who do not have Ukrainian nationality, will no longer fall under the Temporary Protection Directive from 4 March 2023. From 4 March 2023, the rules for asylum seekers for access to the Dutch labor market will apply to this category. As soon as these refugees have been in the asylum procedure for more than six months (valid from the moment they have reported to a municipality in the Netherlands), they may work 24 weeks in a period of 52 weeks from 4 March 2023.[26]
As a consequence of either the expiration of the three years or an earlier Council Decision millions of TP beneficiaries will automatically lose their residence rights on the basis of the Temporary Protection Directive. At the moment, the Meijers Committee is writing a comment regarding the question of what will happen when the current Temporary Protection scheme ends: how to avoid large scale insecurity, human misery, administrative chaos and endless court cases at the end of the current Temporary Protection scheme for Ukraine? As things stand, the EU legislator has not thought about this question and the challenge is how to make the termination of the scheme a success in order for the 4 million Ukrainian citizens to enjoy legal certainty in their status within the EU.
The Future of EU-visa Policy
The EU visa suspension mechanism was first introduced as part of the EU’s visa policy in 2013. The mechanism provides the possibility to temporarily suspend the visa waiver for a non-EU country, for a short period of time, in case of a significant increase in irregular migration from partner countries.[27] Currently, Russia, Vanuatu and Belarus are subject to visa facilitation suspensions. EU Member States seem to agree that the current regulation of the visa suspension mechanism does not provide sufficient protection against visa waiver abuse and that it should be reformed to adequately respond to current and future challenges.[28]
In a Swedish Presidency Note on the future of EU visa policy, the Swedish Council Presidency stated that the record number of asylum applications in 2022 from citizens of visa-free countries and the extremely onerous procedure to remove countries from the visa-free list make it necessary to revise the visa suspension mechanism.[29] A revision of the mechanism could include lowering threshold levels and shortening reference periods and deadlines to allow for a faster process and response to new circumstances.[30]
The Swedish presidency also stipulated that other approaches to visa facilitation agreements, such as the US and Canadian systems, could be investigated. For example in the US, visa facilitation agreements are temporary and must be renewed every few years after review, rather than applying active suspension through a legislative process. The Swedish Presidency also proposed setting quantifiable thresholds for when the suspension mechanism can be triggered.[31]
Swedish Presidency and Migration summit 9 February 2023
During the migration summit on 9 February 2023, the 27 heads of government met in Brussels to discuss asylum and migration issues. The extra EU summit took place at the insistence of the Netherlands and Austria; both Member States are seeing an increase in the number of people applying for asylum in their countries. Member States have agreed that migrants who are not entitled to asylum should be returned more quickly to their country of origin. The European Commission also believes that the percentage of people who return to their country of origin when they are not entitled to asylum should be increased. In the first 9 months in 2022, only 26% returned.[32] Various plans have been discussed to increase the pressure on countries of origin. The question that arises is whether Member States will agree on how this should be done.[33]
Better protection of the EU’s external borders (e.g., by means of border fences) is another divisive topic among Member States, mainly because of the sharp increase in illegal border crossings. Another point of discussion is the financing of the border fences; for the time being, the European Commission does not intend to finance the border walls from a fund, as this is contrary to European values and fundamental rights.[34]
At the summit, the Council concluded that the Commission should give priority to presenting action plans for the Atlantic, Western, and Eastern Mediterranean routes in order to immediately relieve pressure on the most affected Member States and successfully prevent irregular arrivals.[35]
[1] Working as secretary at the Meijers Committee.
[2] Intern at the Meijers Committee in the period January until June 2023.
[3] ECRE, ‘European Pact on Migration and Asylum – Latest Developments’(17 March 2023), available at: https://ecre.org/editorial-european-pact-on-migration-and-asylum-latest-developments/
[4] Ordinary Legislative Procedure, 2020/0279(COD) crisis and force majeure Regulation, available at: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/0279(COD)&l=nl
[5] Ordinary Legislative Procedure, 2020/0277(COD) available at: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/0277(COD)&l=nl
[6] Ordinary Legislative Procedure, 2020/0278(COD), available at: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/0278(COD)&l=nl
[7] Ordinary Legislative Procedure, 2016/0224(COD), available at: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2016/0224(COD)&l=nl
[8] See: C. Rhawi. Migration and Asylum Pact’, available at: https://www.reneweuropegroup.eu/news/2023-03-28/migration-and-asylum-pact-parliament-breakthrough-must-be-quickly-followed-up-by-the-council
[9] European Parliament, Result of roll-call votes, available at: https://www.europarl.europa.eu/cmsdata/267562/Vote%20results_28%20March.pdf
[10] Press Release European Parliament,
Asylum and migration: Parliament confirms key reform mandates 20 April 2023, available at https://www.europarl.europa.eu/news/en/press-room/20230419IPR80906/asylum-and-migration-parliament-confirms-key-reform-mandates.
[11] ‘Migration and Asylum: Roadmap on way forward agreed between European Parliament and rotating Presidencies’ (European Parliament, 7 September 2022), available at: https://www.europarl.europa.eu/news/en/press-room/20220905IPR39714/migration-and-asylum-roadmap-on-way-forward-agreed.
[12] ECRE, ‘Balkan Route: Ongoing Systematic Violence and Pushbacks Across Balkans, Frontex to Assist North Macedonia in “Border Management”, Bulgaria Sees Deadly Incident Leaving 18 Afghans Dead’ (3 March 2023), available at: https://ecre.org/balkan-route-ongoing-systematic-violence-and-pushbacks-across-balkans-frontex-to-assist-north-macedonia-in-border-management-bulgaria-sees-deadly-incident-leaving-18-afghans-dead/
[13] ECRE, ‘Balkan Route: Arrivals to EU Up – Pushbacks and Violations Continue, ECtHR Rulings Against Hungary and Croatia’ (27 January 2023), available at:https://ecre.org/balkan-route-arrivals-to-eu-up-pushbacks-and-violations-continue-ecthr-rulings-against-hungary-and-croatia/
[14] See in this context: https://www.lighthousereports.com/investigation/inside-croatias-secret-whatsapp-group/.
[15] ECRE, Croatia: Top Officials Share Sensitive Information on EU-Financed Border Operations, Ongoing Mass Deportations to Bosnia and Herzegovina, Italy to Hold Meeting with Croatia and Slovenia on “Balkan Route”, available at https://ecre.org/croatia-top-officials-share-sensitive-information-on-eu-financed-border-operations-ongoing-mass-deportations-to-bosnia-and-herzegovina-italy-to-hold-meeting-with-croatia-and-slovenia-on-ba/.
[16] ECRE en PICUM, Policy note, Fundamental rights compliance of funding supporting migrants, asylum applicants, and refugee s inside the European Union, available at
https://ecre.org/wp-content/uploads/2023/03/PIC-ECR-Rights-and-EU-funds-March-2023.pdf
[17] ECRE, Croatia: Top Officials Share Sensitive Information on EU-Financed Border Operations, Ongoing Mass Deportations to Bosnia and Herzegovina, Italy to Hold Meeting with Croatia and Slovenia on “Balkan Route”, available at https://ecre.org/croatia-top-officials-share-sensitive-information-on-eu-financed-border-operations-ongoing-mass-deportations-to-bosnia-and-herzegovina-italy-to-hold-meeting-with-croatia-and-slovenia-on-ba/.
[18] Joint statement, EU admits Croatia to Schengen Without Regard to Abuses at the Border, December 2022, available at https://ecre.org/joint-statement-eu-admits-croatia-to-schengen-without-regard-to-abuses-at-the-border/.
[19] See: https://medical-volunteers.org/Northern_Serbia_Advocacy_Report_DecJan_vFinal.pdf
[20] See: https://www.consilium.europa.eu/nl/press/press-releases/2023/02/24/border-management-eu-concludes-agreement-with-north-macedonia-on-frontex-cooperation/.
[21] C. Dumbrava, EPRS report on The EU’s external borders, March 2023 available at https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/745696/EPRS_BRI(2023)745696_EN.pdf.
[22] Council Directive 2001/55/EC of 20 July 2001 on minimum standards for the granting of temporary protection in the event of a mass influx of displaced persons and measures to promote a balance between Member States‘ efforts to receive and bear the consequences for the reception of these persons (OJ L 212, 7.8.2001, pp. 12–23).
[23] Commissie Meijers, Gebrekkige toepassing van de tijdelijke beschermingsrichtlijn in Nederland, 16 juni 2022, available at: https://www.commissie-meijers.nl/wp-content/uploads/2022/06/220629-Commentaar-op-de-
[24] Information Sheet – Measures in response to the arrival of displaced people fleeing the war in Ukraine (31 maart 2023), available at: https://ecre.org/wp-content/uploads/2022/12/ECRE-Update-November-2022-Implementation-of-the-TPD.pdf.
[25] See: ECRE Information Sheet – Measures in response to the arrival of displaced people fleeing the war in Ukraine, beschikbaar via: https://ecre.org/wp-content/uploads/2022/12/ECRE-Update-November-2022-Implementation-of-the-TPD.pdf
[26] See: https://www.rijksoverheid.nl/actueel/nieuws/2023/01/31/tijdelijke-richtlijn-bescherming-voor-oekrainse-vluchtelingen-verlengd-maar-aangepaste-regelgeving-voor-derdelanders.
[27] See article 8 of Regulation (EU) 2018/1806
[28] See discussion at the Visa Working Party meeting of 20 January 2023 based on Presidency discussion paper 5210/23.
[29] Statewatch, ‘EU: Simplify visa suspension to limit asylum applications, says Swedish Presidency’ 7 March 2023, available at: https://www.statewatch.org/news/2023/march/eu-simplify-visa-suspension-to-limit-asylum-applications-says-swedish-presidency/
[30] LIMITE 5851/23 (7 February 2023). Zie: https://www.consilium.europa.eu/en/press/press-releases/2023/02/09/european-council-conclusions-9-february-2023/.
[31] Ibid.
[32] See: Eurostat, ‘Return of irregular migrants – quarterly statistics’ (March 2023), available at: https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Returns_of_irregular_migrants_-_quarterly_statistics&stable=0.
[33] Priscilla Slomp, ’Migratietop in Brussels: EU-leiders willen actie, maar er is geen toverstafje’ nu.nl (9 Februari 2023), available at: https://www.nu.nl/politiek/6250458/migratietop-in-brussel-eu-leiders-willen-actie-maar-er-is-geen-toverstafje.html.
[34] Ibid.
[35] See: https://data.consilium.europa.eu/doc/document/ST-1-2023-INIT/en/pdf.
