8 September 2021
22 December 2021
New Pact on Migration and Asylum
As noted in our previous Update, progress on the Migration Pact remains limited.
The European Parliament published draft reports on the Asylum Procedures Regulation (APR) and the Regulation on Asylum and Migration Management (RAMM). In the draft on the APR, rapporteur Marquardt (Greens) has proposed to reinstall some procedural guarantees without altering the core of the Commission’s proposals. In the draft on the RAMM, however, rapporteur Tobé (EPP) made quite far-going proposals, which will considerably reduce protection standards and further increase the responsibilities of countries at the external borders. For instance, the report allows those subject to a Dublin transfer to be detained for 12 weeks (instead of 4 weeks), allows Member States to take any (unspecified) “additional measures” to prevent unauthorized movements, and removes the Commission’s Proposal to extend the scope of family members to siblings. A further important amendment is made to the proposed solidarity mechanism, which no longer applies to arrivals after Search and Rescue Operations (SAR). ECRE has expressed its concerns on Tobé’s report.
In our previous Update, we discussed the situation at the EU-Belarussian border. At that time, Eastern European countries like Poland, Latvia and Lithuania had already declared a state of emergency, entailing, i.a., the legalization of pushbacks. In the previous months, the situation escalated dramatically. Consequently, it became a highly debated topic in the European Union.
Lukashenko’s regime has continued to facilitate the arrival of asylum seekers and their journey to the EU’s external borders, even by allowing regular flights to transport people with a visa and then sending them into European territory. However, when Poland decided to deploy the army to curb irregular entries, the situation deteriorated: border violence increased, and a political crisis escalated.
At the beginning of December, the Commission decided to intervene by proposing a Council decision on provisional emergency measures to support Latvia, Lithuania and Poland. The Proposal follows from the triggering of Article 78(3) TFEU in response to the instrumentalization of migrants at the external border. It is presented as a response to a ‘hybrid attack on the EU as a whole’. Article 78(3) TFEU allows for adopting provisional measures in emergency migratory situations at the EU’s external borders. The Proposal enables Member States to identify specific registration points at the border where it is possible to lodge and register an application. Notably, it extends the limit to register an application to four weeks and allows the accelerated procedure at the border for all applications. The border procedure can be extended to up until 16 weeks. The extension will help the Member State apply the fiction of non-entry for a longer period of time, providing more flexibility to deal with the increased workload. Latvia, Lithuania and Poland would be allowed to disapply the suspensive effect of appeals in all border procedures. Moreover, the Proposal lowers the material reception conditions to cover only the basic needs. Finally, it allows the possibility provided for in the Return Directive to derogate from the procedure laid down therein.
The Proposal has provoked mixed reactions. Some showed enthusiasm for the Commission proposal to try to move from the political deadlock. Others were sceptical regarding the efficacy of the measures proposed and the weakening of asylum rights.
On 14 December 2021, the Commission presented a more generalized proposal for a regulation addressing “situations of instrumentalization in the field of migration and asylum”. The proposed regulation allows for derogations from the general asylum acquis, lengthening registration periods, expanding and prolonging border procedures, limiting reception conditions and disapplying the standards of the Return Directive.
In the past months, pushbacks at the Belarusian border have been under the spotlight, often disregarding the fact that this infamous practice is widespread all over the EU. Indeed, countries like Croatia, Greece and France have also been reported to conduct pushbacks.
Croatian police have been reported to use violence and mistreat those trying to cross the border from Bosnia. This is, however, not a new issue, as thousands of migrants from Asia, the Middle East and North Africa have been stranded in Bosnia since 2018, when Croatian authorities started tightening the control at the borders. The Danish Refugee Council, which monitors borders as part of one of its protection programmes in Bosnia, recorded 30,309 pushbacks of migrants from Croatia from June 2019 to September 2021. Commissioner Ylva Johansson called for opening a national investigation, but NGOs like ECRE and Amnesty have pointed to the EU’s inaction in the matter. On 10 November, the Ombudsman opened an inquiry on how the European Commission seeks to ensure the protection of fundamental rights in border management operations by Croatian authorities.
Moreover, pushbacks from Greece continue, as do reports of refoulement from Turkey. According to the Aegean Boat Report, 384 life rafts carrying 6,659 “victims of cruel and inhuman behaviour by the Greek government” have been found adrift in the Aegean Sea since March 2020. Additionally, in consideration of the beatings by Turkish authorities, RSA and ECRE member Greek Council for Refugees (GCR) filed an appeal before the High Administrative Court against the Joint Ministerial Decision designating Turkey as a safe third country for citizens of Syria, Afghanistan, Somalia, Pakistan and Bangladesh.
Regarding France, journeys and interceptions through the Channel are an increasing concern. Indeed, the UK authorities started to push back ships to France , and numerous boats were being found in distress, and French authorities have intervened to rescue them.
Pushbacks are not the only point of concern in EU return policies. Especially Dublin transfers have also become more controversial regarding Afghans to Member States like Bulgaria and Croatia. Such countries have been suspected of returning Afghans to Afghanistan without examining the asylum application, establishing indirect refoulement.
The European Border and Coast Guard Agency (Frontex) has repeatedly been accused of violating fundamental rights and executing pushbacks. Recently, it has been sued before the EU General Court for illegally deporting and violating the fundamental rights of a Syrian family. The family arrived in Greece in October 2016 and lodged an asylum application. Some days after, however, they were deported to Turkey without access to the procedure or official expulsion order. During the transfer, the children were separated from their parents and were ordered not to speak to each other. When in Turkey, the family was imprisoned, and after being released, they fled the country to northern Iraq.
Frontex is accused of violating the principle of non-refoulement and breaching the right to apply for asylum. Specifically, the applicants claim that ‘the gathered evidence establishes that ‘new tactics’ in the context of border control operations in the Aegean Sea Region, introduced in March 2020, amount to a State (Greece) and organizational (Frontex) policy of systematic and widespread attack directed against civilian populations seeking asylum in the EU’. Secondly, allegedly Frontex has failed to fulfil its positive obligations under the Charter of Fundamental Rights concerning preventing foreseeable violations of fundamental rights occurring in the Aegean Sea Region in the context of its operation. Finally, it is claimed that Frontex’s failure to act according to article 265 TFEU ‘concerns the applicants directly and individually, as their situation has been prejudiced already multiple times by the new State and organizational policy of systematic and widespread practices of either abduction from EU soil and forcible transfer back to sea, or interception at sea; abandonment at sea on unworthy vessels causing serious risk to life; unlawful refoulement, collective expulsion, and prevention of access to asylum’. Prakken D’Oliveira Human Rights Lawyers, defending the Syrian family, stated that ‘breach of fundamental rights of the European Union by an EU agency is seriously undermining the values on which the Union is founded. We are therefore holding Frontex and the EU accountable and are urging them to restore the rule of law’.
After the submission of this case, the international campaign #notonourborderwatch, calling for an end to the violations of human rights at the European borders, was launched, supported by the Dutch Council for Refugees, BKB, Sea-Watch Legal Aid Fund, Jungle Minds, and Prakken D’Oliveira Human Rights Lawyers.
In our previous Update, we discussed the Commission’s new Schengen Strategy, as well as the Proposal for the revision of the Schengen Evaluation and Monitoring Mechanism. In October 2021, the Meijers Committee published its comments on that Proposal. In the most recent JHA Council (9-12 December 2021), Ministers assessed progress on that Proposal and decided to continue the discussion at a technical level within the Council. On 9 December 2021, French president Macron announced that during the French Council presidency, which will start in January 2022, the reform of the Schengen Zone would be among his top priorities.
On 14 December 2021, the European Commission launched its proposals to amend the Schengen Borders Code. Notably, the Proposal expands the possibilities of Member States to reintroduce internal border controls and travel restrictions when faced with health emergencies. It also establishes a new procedure for transferring persons apprehended in the vicinity of an internal border in the EU to the Member States from which the person entered. This procedure enables Member States to immediately transfer a person, thus circumventing the Dublin procedure. The decision to refuse entry can be appealed, but the appeal has no suspensive effect and can therefore not stop the transfer. In this light, the Proposal also contains an amendment to the Return Directive, requiring the receiving Member State to issue a return decision to the transferred person. The Proposal further enables Member States, when faced with the “instrumentalization of migrants”, to limit the number of border crossing points and intensify border surveillance.
 In this regard see for example https://www.euronews.com/2021/12/01/brussels-accused-of-weakening-asylum-rights-to-deal-with-belarus-border-crisis
 SS and ST v Frontex (Case T-282/21) CJEU