Ständige Kommission von Expert*innen im internationalen Migrations-, Flüchtlings- und Strafrecht

13 März 2024

EU Migration Update 4/2023 Political developments in European migration policy

Barbara Safradin[1] and Sanni Suhonen[2], March 2024

In this fourth and last EU update of 2023, Barbara Safradin and Sanni Suhonen provide an overview of the recent developments on migration and asylum in the EU and the EU legislative proposals in the last quarter of 2023 and first quarter of 2024. This overview includes, amongst others, the latest developments on the European Pact on Migration and Asylum, the EU-Tunisia deal, the EU deal with Egypt, Finland’s closure of the border with Russia, Human trafficking in Italy, the expulsion of third country nationals in the Netherlands, the EU Facilitators Package, and finally, the Long-Term Residents Recast and next steps on this file.

The European Pact on Migration and Asylum
On 20 December, a long-awaited interinstitutional agreement was reached by the European Parliament and the Council on the five key proposals of the Pact on Migration and Asylum, namely (i) the Screening Regulation; (ii) the Eurodac Regulation; (iii) the Asylum Procedures Regulation; (iv) the Asylum Migration Management Regulation and (v) the Crisis and Force majeure Regulation.

While technical discussions will continue in the upcoming months since the package still needs to be formally adopted, this deal represents a historical achievement for the EU and its Member States. Following numerous unsuccessful efforts, a compromise was ultimately reached between the Council, led by the Spanish presidency, advocating for a firm stance to grant Member States considerable flexibility in managing migration, and the Parliament, which, on the other hand, insisted on more stringent provisions to safeguard fundamental rights.

The deal was welcomed with great enthusiasm by the Commission, with President von der Leyen describing the result as a “fair and pragmatic approach to managing migration together in the EU” and JHA Commissioner Johansson promising that the system is designed to assist countries „under pressure,“ with a primary focus on frontline nations such as Italy, Greece, and Spain and that the new framework would never impose forced relocation.

Differently, Prime Minister Viktor Orbán controversially compared the agreement on forced relocation of migrants to a „legal rape“ of Hungary and Poland, both of which opposed the Pact. He vehemently criticized the new regulatory package, defending his own proposal for asylum seekers to stay outside European territory until their applications are resolved.

Criticism from international organisations, NGOs and civil societies
The reform includes, among others, facilitating quicker screening of irregular arrivals, establishing border detention centres, expediting deportations for denied asylum applicants, and implementing a solidarity mechanism to alleviate the burden on southern countries grappling with substantial migrant inflows. As highlighted by Vitiello, the deal has strengthened some distinctive traits of the EU migratory and asylum policies such as the use of externalisation as a surrogate for the fallacious allocation of internal responsibilities and the use of bilateral cooperation between Member States and third countries and international law to circumvent the stricter procedural and substantive requirements of EU law.

Therefore, it does not come as a surprise that many international organizations, NGOs and civil societies strongly criticised the deal. While Eve Geddie, Director of Amnesty International’s European Institutions Office, stated that the agreement is poised to significantly regress European asylum law for many years to come, potentially resulting in an increase in hardship at every stage of an individual’s journey to seek asylum in the EU, Human Rights Watch commented that it grants “wide powers of discretion in migration management at the expense of people’s rights”. Furthermore, as highlighted in our latest Comment on the Pact as well, Save the Children stressed that the agreement will “lead to systematising the detention of children of all ages at EU borders”, underlining that the goal of Member States with this deal was to “close borders, not protect people, including families and children escaping violence, conflict, hunger and death while seeking protection in Europe”. Lastly, it is worth mentioning that in reaction to the achievement of such compromise, the IOM issued some recommendations on migration and mobility to the upcoming Belgian and Hungarian presidencies, urging them to guarantee that the New Pact on Migration and Asylum is adopted and implemented in a manner that fosters a “more predictable, coordinated, and humane response” throughout all aspects of migration and asylum. 

Commission Communication
On 12 March 2024, the Commission published a communication on the Asylum and Migration Pact, which will be voted on in the European Parliament plenary on 10 or 11 April. The communication also looks at the various action plans on the EU’s migratory routes and Frontex’s new missions. Between August 2022 and January 2024, the EU, with Frontex, supported more than 17,000 migrants with voluntary return. Additionally, by June 2024, the Commission aims to present a joint plan outlining the implementation of the Pact, complete with a timetable and milestones for action by the EU and its Member States. The pact is set to be enforced starting in 2026.

Tunisia deal update
As mentioned in our previous migration update, the future of the EU-Tunisia deal remained unclear as President Kais Saied rejected the EU’s financial support and returned €60 million euros to the EU as a protest given the delay in receiving the sum of €150 million which was agreed upon in July 2023. Nevertheless, the Tunisian coastguard has resumed activities since October 2023, while simultaneously resolving disagreements with Brussels. Now six months into the EU-Tunisia deal, migrants are still risking their lives trying to reach Europe. On 23rd of January 2024, two teenage Tunisian migrants were found dead and others hospitalised after hiding in a container at the port of Tunis while at the same time search operations continue for 40 missing migrants who departed from Sfax to Italy.
Amnesty International has highlighted worsening human rights abuses in Tunisia and criticised the EU-Tunisia cooperation for potentially maintaining violations. In this way, it has urged the EU to strengthen protection measures and asylum systems in Tunisia. Similarly, EU Home Affairs Commissioner Ylva Johansson who previously praised the EU-Tunisia deal has expressed concern over the ongoing expulsions while simultaneously emphasising Tunisia’s role in preventing migrants reaching Europe.

EU deal with Egypt
Throughout 2024 the EU is planning to provide €87 million as well as new equipment to Egypt to continue a project on migration management which started in 2022. On 23 January, the EU held its first high-level meeting with the country since its 2023 presidential election. The meeting was to note the progress that has been made since the partnership started as well as to deepen cooperation in areas such as human rights, security, counterterrorism, and migration. Both sides agreed that it’s crucial to tackle migration in a comprehensive way, including setting up legal pathways for migration, dealing with the reasons why people migrate illegally, fighting against smugglers and human traffickers, and making sure that migrants who return home can do so with dignity and support. The EU and Egypt expressed concern over the dire humanitarian situation in Gaza and pledged to ease human suffering by facilitating the entry of aid. Nevertheless, Amnesty International urges the EU to not overlook human rights abuses happening in Egypt, including the mistreatment of refugees and migrants, and to learn from its mistakes with Tunisia, Turkey, and Libya.

Finland closes its border with Russia due to an influx of migrants
On November 22 around 1000 migrants and asylum seekers showed up at Finland’s Russian border attempting to enter the country. As a response on November 28 the Finnish government announced the complete closure of its Russian border due to national security concerns. The Finnish Prime Minister Petteri Orpo declared the partial reopening of the border on December 12, which again resulted in flows of migrants and asylum seekers. As a response, the border was completely closed and will remain closed until 14th of April 2024.It has been argued that the migrants and asylum seekers were aided to the border by Russia in response to Finland joining the NATO military alliance. The border closures in Finland have also gained widespread support from the EU including Frontex sending staff and materials to aid Finnish border guards. Similarly, the Commission President Von Der Leyen accused Russia of the ‘shameful’ instrumentalisation of migrants. The Russian government has denied any involvement in the events.The closure has resulted in a lot of backlash from multiple organisations such as the UN Refugee Agency (UNHCR) which expressed concerns regarding the rights of the migrants affected. In a press statement it urged both Finland to manage its borders in a way that is in line with international law especially when it comes to the right to Asylum. Furthermore, concerns were raised regarding the cold and harsh weather conditions leaving migrants stranded at the border for multiple weeks. 

Human trafficking in Italy 
In its latest report from 23rd of February 2024, the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) calls upon Italian authorities to take further action against human trafficking. Although the latest assessment recognises that efforts have been made particularly in the area of victim identification, specifically among asylum seekers, GRETA remains concerned about the rise in the number of male and transgender victims, alongside women, indicating ongoing challenges. Furthermore, the report highlights a concerning trend of declining trafficking-related investigations and convictions, pointing to potential shortcomings in law enforcement efforts. Moreover, GRETA stresses the potential negative impact arising from Italy’s restrictive immigration policies, as they could discourage victims from coming forward due to fears of being deported. 

The Netherlands‘ expulsion of third-country nationals coming from Ukraine
Thousands of third country nationals who came to the Netherlands under the EU’s Temporary Protection Directive (TPD) after fleeing Ukraine due to Russia’s invasion on the 24th of February 2022, have now been told to leave the country by March 4th, 2024. Initially, according to the TPD directive, Ukrainian nationals and permanent residents were offered refuge for two years until March 4th, 2024, after which permits could be extended on a yearly basis. However, the Netherlands did not initially distinguish between Ukrainian nationals and those with temporary permits such as students mostly from countries including India, Nigeria, Morocco, and Egypt who had lived in Ukraine for multiple years before the war. The reason behind doing so was to not put as much burden on the asylum system, whereas in some other EU countries it was assessed whether people were able to return safely to their country of origin. Therefore, in other EU countries, some people with temporary permits were allowed to stay given their individual situation. However, early in 2023 the Dutch government announced the protection would end for all third country nationals, arguing that those who could return safely had abused the protection system. In response, many individuals brought legal action against the Dutch government for initially granting rights to third country nationals and revoking them later on. However, the Council of State agreed in January that the right to protection for third country nationals should end on the 4th of March.
In Amsterdam, the decision has led to protests accusing the Dutch government of discrimination, with legal experts and human rights advocates mobilising to challenge the decision taken by the Court. Hence, as legal proceedings unfold, the result of this case may set a standard for how member states understand and apply the Temporary Protection Directive, potentially shaping the EU’s stance on refugee protection and solidarity in future conflicts.

Long Term Residents Recast and latest negotiations 
On Monday 4 March 2024, the European Parliament’s rapporteur on the directive on long-term resident status for third country nationals, MEP Damian Boeselager (Greens/EFA), lamented that the EU Council has, it seems, definitively blocked the revision of this directive, presented in 2022. The Belgian Presidency of the EU Council could not expect an agreement because the Member States had expressed difficulties, particularly on technical aspects. According to reports, following discussions among Member States‘ ambassadors to the EU last week, the Belgian Presidency concluded that reaching an agreement with Parliament would not be feasible, as several Member States had formed a blocking minority regarding potential areas for compromise. France was reportedly the most rigid among these countries. Consequently, the Belgian Presidency unilaterally decided to cancel the trilogues, prompting criticism from Mr. Boeselager, who described it as a significant setback for both the co-legislator and the rights of third-country nationals in the EU. These individuals could have had easier access to the long-term resident status, allowing them to accumulate more periods of residence and gain access to additional rights.
The aim of revising this directive was to attract more international talent and offer them new mobility rights within the EU and equal treatment with European citizens. Unlike national residence schemes, EU long-term resident status gives its holder the freedom to move and reside in other EU countries for the purposes of work or study. However, this right would not be automatic, as Member States could assess the situation within their labour markets.
Long-term EU residents would also have received the same treatment as EU citizens, for example in terms of access to employment, whether salaried or self-employed, education and vocational training, and tax benefits, again subject to conditions.
In 2020, the number of third-country nationals residing legally in the EU was 23 million, or 5.1% of the EU population, and over 10 million held long-term or permanent residence permits. 

EU Facilitators package and new developments
A key feature of the EU policy to prevent migrants from reaching the EU external border has been the criminalisation of facilitation of unauthorised entry, transit and stay. This criminal law framework was established over twenty years ago, during the pre-Lisbon era, under the third pillar. The framework is known as the EU ‘facilitators’ package’ and consists of a (then) first pillar Directive on the facilitation of unauthorised entry, transit and residence accompanied by a (then) third pillar Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence confirming that the conduct defined as facilitation in the Directive will be treated as a criminal offence by EU Member States. The criminalisation of facilitation under this legislation is very broad.  In terms of the facilitation of irregular entry or transit, criminal sanctions will be imposed on any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens (Article 1(1)(a) of the facilitation Directive combined with Article 1(1) of the facilitation Framework Decision.). EU law thus has introduced a much broader framework of criminalisation of facilitation of unauthorised entry in comparison with international law.

In November 2023, the Commission adopted the proposal to strengthen EU legislation to prevent and fight migrant smuggling, which is comprised of the following elements:

The package aims to prosecute organised criminal networks responsible for migrant smuggling; harmonise legislation and penalties; increase penalties for aggravated offenses; expand jurisdiction to cases of non-EU nationals losing their lives; and require Member States to have the necessary law enforcement and judicial authorities for effective prevention investigation, and prosecution.

Action at CJEU
Due to the lack of an exception for non-commercial assistance in the legal framework, the CJEU is set to rule on the compatibility of both the European and Italian provision on the facilitation of migration with EU primary law, including the EU Charter of Fundamental Rights, following a preliminary reference procedure (Art. 267 TFEU) that was initiated in July 2023 (CJEU – Case C-460/23).

The Call to Action for a Global Alliance Against Migrant Smuggling
On November 28, 2023, the European Commission convened a high-level international conference in Brussels with the aim of establishing a global alliance to combat migrant smuggling. During this event, the Commission issued a call for such an alliance, emphasising that migrant smuggling violates international and European legislation and undermines human dignity for financial gain. The call underscores the necessity for a strong, unified, and global response involving both governmental and non-governmental entities. It outlines proposals for action directed at state governments, international organisations, and online service providers, urging collaboration on prevention, response, and legal pathways to address irregular migration and its root causes.

To facilitate the follow-up on this call, the Commission will establish a framework to facilitate collaboration among global stakeholders, serving as a central contact point. This initiative will involve convening technical Expert Groups comprising representatives from EU institutions, agencies, Member States, partner countries, international organizations, and other stakeholders. The first thematic Expert Group meeting, focusing on combating digital smuggling, is scheduled to take place in early 2024.

Latest developments in the Schengen Area
During the last Justice and Home Affairs Meeting of 3-4 March, Ministers of the interior discussed methods to enhance the system of returning rejected asylum seekers within the Schengen area. The topics covered included cooperation with third countries and among Member States, as well as the enhancement of national return procedures. Ministers reaffirmed the significance of an effective return system for ensuring a sustainable migration and asylum policy. Many attendees supported prioritising the return of individuals posing security risks and maximising the utilisation of Frontex resources as crucial steps forward.

Additionally, the EU’s Belgian Presidency provided an update on the progress of the Schengen area enlargement to include Bulgaria and Romania. The Council acknowledged the report presented by the Commission, detailing the findings of a fact-finding mission assessing Bulgaria’s adherence to the Schengen acquis.

[1] Executive Secretary of the Meijers Committee.

[2] Intern at the Meijers Committee for the period February 2024 until July 2024