Standing Committee of Experts on International Migration, Refugee and Criminal Law

29 March 2022

EU Migration law update March 2022


The situation in Afghanistan faded slightly into the background, as a consequence of the other international developments. Since August last year, the country has entered a severe economic crisis which had profound effects on the population and has worsened into a humanitarian crisis.[1] There are no signals that the situation could improve and people have continued to flee to neighbouring countries. According to the UNHCR, indeed, between October and January more than one million Afghans in southwestern Afghanistan have set off down a major migration route into Iran, with an estimate 4,000 to 5,000 people crossing the border daily.[2]


Reports of pushbacks continue from many Member states. Greece continues to reject nationals from Syria, Afghanistan, Somalia, Pakistan and Bangladesh on the basis that Turkey is a ‘safe third country’ for them, Despite the fact that Turkey has not accepted any readmissions since March 2020.[3]

Moreover, reports from the Balkan route keep pointing the attention on the high number of pushbacks. The Danish Refugee Council and other six civil society organizations published a report[4] in the context of the Protecting Rights at Borders (PRAB) initiative revealing that more than 6,000 pushbacks have taken place between July and November 2021.

A judgement from the Styrian Provincial Administrative court confirmed that pushbacks are taking place at the Austrian-Slovenian border after a man was summarily returned without being provided with the possibility of lodging an asylum application.[5] Additionally, in February Austria and Switzerland have agreed to update a bilateral readmission agreement, that includes potential joint police patrols and considering the proposed amendments to the Schengen Borders Code, risks enabling summary returns.[6]


The European border and coast guard agency has been in the spotlights regarding alleged violations of fundamental rights. On the 17 January 2022, the European Ombudsman released her decision following an inquiry into Frontex’s transparency obligations and fundamental rights safeguards under the Frontex Regulation. The recommendations focussed on aspects of accountability, transparency and training for monitoring and screening officers. She encouraged Frontex to be proactively transparent in relation to operational plans and the fundamental rights analysis on which its Executive Director bases decisions to launch, suspend or terminate operations. She also encourages Frontex to improve the monitoring of forced returns in which those escorting returnees are Frontex staff and to guarantee better reporting of monitoring operations.

Following the JHA council on 4th February, the Commissioner Johansson hinted at possibly reinforcing the ‘political governance and oversight’ of the agency, suggesting to have a ‘political management board’ for Frontex with ministers at least once a year. This was interpreted as a push for greater accountability, however, concrete developments are still awaited.[7]

French presidency

From 1st January 2022 the presidency of the European Council passed to France. An informal meeting of Home Affairs ministers took place on 3rd February, focusing on the reform of Schengen, the future of civil protection in the EU, the fight against radicalization and the ongoing negotiations on the New Pact on Migration and Asylum. The ministers agreed to create a “Schengen Council”, whose first meeting was hold on 3rd March, in Brussels. During that meeting the ministers adopted a general approach on a Council Regulation reforming the Schengen evaluation and monitoring mechanism. The Commission will establish seven-years evaluation programmes in order to identify priority areas to be covered by the periodic evaluations. The Commission may organise unannounced evaluations on the application of the Schengen acquis. Evaluation reports, including recommendations, will be adopted by the Commission for periodic evaluations. However, the Council will adopt recommendations in cases of serious deficiencies, for first-time evaluations and thematic evaluations, and where the evaluated member state substantially contests the report.

On 27th February an extraordinary Justice and Home Affairs Council to discuss the reaction to the outbreak of the war in Ukraine. Following an exchange of views, the Presidency decided to fully activate the EU Integrated Political Crisis Response (IPCR) arrangements, involving increased cooperation in the management of external borders and the activation of the Temporary Protection directive[8].

EASO becomes EUAA

On 19 January 2022 Regulation (EU) 2021/2303 on the establishment of a European Union Agency for Asylum (EUAA) entered into force, transforming the European Asylum Support Office (EASO) into a full-fledged agency with a broadened and enhanced mandate. The agency is meant to ‘facilitate and support the activities of the Member States in the implementation of the Common European Asylum System (CEAS), including by enabling convergence in the assessment of applications for international protection across the Union and by coordinating and strengthening practical cooperation and information exchange. The Agency shall improve the functioning of the CEAS, including through the monitoring mechanism referred to in Article 14 and by providing operational and technical assistance to Member States, in particular where their asylum and reception systems are under disproportionate pressure’.[9] A complaints mechanism, under the responsibility of the fundamental rights officer, is also introduced to ensure recourse for people who consider that their fundamental rights have been breached in relation to the activities of the agency.[10]

Ukraine and Activation of the Temporary Protection directive

In our previous updates we focussed on the situation at the eastern European borders in relation to the ‘instrumentalisation of migration’ from the Belarussian regime. In the last months the attention has been drawn not just to the opposition from countries like Poland, Latvia and Lithuania to receive migrants but also to the dire reception conditions: the Polish the Human Rights Commissioner has found that in the camps migrants are subjected to ‘inhumane and degrading treatment’.[11]

Since the start of the invasion of Ukraine on 24th February, more than 3.5 million of refugees have fled the country[12] and an there is an estimation of 1.5 million of internally displaced people[13] according to the UNHCR. This is already Europe’s largest refugee crisis since the second World War. The majority of refugees are going to Poland, a country that just some months ago was closing its borders in reaction to the arrivals from Belarus. Currently, Poland has welcomed more than 2 million people from Ukraine[14].

Poland has been accused of failing to assist thousands of victims of Belarussian “instrumentalisation”, mostly originating from Iraq, Syria or Afghanistan. Instead of providing fair and effective asylum procedures, Poland branded these people a “hybrid threat” and conducted violent pushbacks. Yet, in regards to the situation in Ukraine, the Polish minister Maciej Wąsik said those “are indeed refugees“[15] and claims that help must be provided. The shift in the Polish reaction can be understood with regards to several factors, among which the different composition of migratory flows probably plays a major role. Indeed, the majority of people fleeing Ukraine are children and women, who are in a more vulnerable position and more at risk of trafficking.[16]

During the JHA council on 3rd March for the first time it was decided to activate the 2001 Temporary Protection Directive.[17] It will provide immediate protection in the EU for Ukrainians and third country nationals with refugee or permanent residence status in Ukraine. People benefitting from this protection are granted access to education, healthcare, housing and job market. The provisions are valid for one year, with possibility of extension. On 18 March, the Commission published operational guidelines that advise member states on how to implement the directive. According to ECRE, also some non-EU members are introducing similar provisions to support refugees.

Neighbouring countries are particularly in need of support from the EU and some additional funds are being unlocked to provide humanitarian support inside and outside Ukraine. [18] However, also all the other Member States, which are now seeing the influx of refugees, are facing difficulties in organizing the reception.[19]







[6] Ibidem.



[9] Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, Article 1



[12] UNHCR data available at


[14] UNHCR data available at



[17] Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof