5 October 2022
7 November 2023
In this third EU update of 2023, Barbara Safradin and Nicole Visco Comandini provide an overview of the recent developments on migration and asylum in the EU and the EU legislative proposals in the third quarter of 2023. This overview includes the latest developments on the European Pact on Migration and Asylum, external dimension of migration, the EU-Tunisia deal, Frontex accountability and the temporary protection of Ukrainians in the European Union.
The European Pact on Migration and Asylum: Council’s agreement on the “Crisis Regulation”
As highlighted in our previous 2023 EU Migration Update, in June the Council had formally found a consensus on two proposals for regulations, i.e. the Asylum Procedure Regulation and the Asylum and Migration Management Regulation.
On 4 October, the Council made another significant step towards the goal of reaching an agreement with the European Parliament on the entire pact by the end of this semester. The Council agreed on a regulation on crisis situations, including the instrumentalisation of migration and force majeure in the field of migration and asylum.
The political climate around the agreement
The deal was finalised during a meeting of ambassadors in Brussels, who were tasked with sealing the agreement that interior ministers were unable to accomplish the week before when Italy unexpectedly blocked the draft text. The Italian government contested the few rules of the text concerning the search-and-rescue services provided by NGO vessels in the Mediterranean Sea, which were considered a “pull factor” able to attract more migrants to Europe. The Italian position contrasted with the long-standing approach adopted by Germany, which has defended and financially supported the work of NGOs , such as the German NGO SOS Humanity, arguing that saving lives at sea is a legal, humanitarian and moral duty.
After some diplomatic efforts, an agreement was reached between Germany and Rome. However, the Council’s decision was not unanimous: while Hungary and Poland voted against the text, Austria, the Czech Republic, and Slovakia abstained.
The new legal framework establishes the structure that would allow Member States to address situations of crisis in the field of asylum and migration by derogation to the ordinary legislative framework. In particular, the Council focused its attention on the following key points:
• The adoption of some derogatory rules for three scenarios of crisis situations, broadly defined in Art. 1, namely (i) situations of crisis; (ii) situations of “force majeure”, which the Parliament completely removed from its proposal; (iii) and situations of “instrumentalisation”, which represent the most important novelty introduced by the Council (see Recital 6(a); Art. 1(2); Art. 8x(4) Council General Approach).
• As far as the solidarity mechanism concerns, a Member State that is facing a crisis scenario may request solidarity contributions from other Member States, which can take the form of:
– the relocation of asylum seekers or beneficiaries of international protection from the member state in a crisis situation to contributing Member States;
– responsibility offsets, i.e. the supporting member state would take over the responsibility to examine asylum claims with a view to relief the member state that finds itself in a crisis situation;
– financial contributions or alternative solidarity measures.
• For the solidarity mechanism to be triggered, the Council’s authorisation is required in accordance with the principles of necessity and proportionality and in full compliance with fundamental rights of third-country nationals and stateless persons.
• The detention of rejected applicants might extend beyond the usual maximum of 12 weeks until the repatriation process is finalised.
While the Spanish Presidency enthusiastically announced the agreement, claiming that “a huge step forward on a critical issue for the future of the EU” was made, the news was not welcomed with the same degree of appreciation by civil organizations. Concerns have been raised by for example Amnesty international, which defined the new agreement as “dangerous and disproportionate”, and able to “weaken the coherence of the common European asylum system, while failing to prevent ‘crisis’ situations from arising in the future”. Similarly, ECRE criticised the decision of the Council of not only keeping the situations of force majeure and but also adding, as a third scenario, the instrumentalisation of migration. According to ECRE, these two situations “represent the codification of Member States’ efforts to evade their responsibilities”, by covering “extremely wide and frequent sets of circumstances in which Member States’ may select from a range of derogations”.
Despite the importance of this long-awaited agreement, we have not yet heard the final word on this matter. The trilogues are open and the ball passes now to the Parliament, who still needs to adopt a position on the instrumentalisation regulation. On that note, the file is assigned to the Committee on Civil Liberties, Justice and Home Affairs (also known as: LIBE), where Patryk Jaki (ECR/PL) has been appointed rapporteur. He presented his draft report on 11 September 2023, due to be voted in the committee on 4 December 2023. However, as pointed out by ECRE, chances are high that the Parliament will be too willing to concede. This fear founds its foundations in the fact that the Parliament has put the Council under a lot of pressure to adopt its position on the crisis regulation as soon as possible. Therefore, a concrete risk exists that the Parliament will be open to largely compromise to speed up the final rounds of negotiations.
In the meantime, on 6 October an informal meeting of heads of state or government was held in Granada, where, among others, the EU leaders discussed the issue of irregular migration. The President of the European Council, Charles Michel stressed the urge to “pursue a comprehensive approach to migration, in compliance with international law and EU principles and values” and the need to “fight organised crime, human trafficking and smuggling, as well as the instrumentalisation of migration as a hybrid threat.  However, it was not possible to issue a symbolic EU statement on migration due to the refusal of Poland and Hungary. In particular, Viktor Orbán has strongly remarked that while Poland and Hungary were pressured by other EU members to approve an EU migration reform plan earlier that week, they did not want to support any more middle-ground compromise in Granada.
Click here for a complete overview on the current state of play on the Pact on Migration and Asylum.
External aspects of migration
In a letter sent in advance to the EU Member States, the President of the Commission, Ursula von der Leyen, pointed out that the external aspects of migration are essential for the successful implementation of the EU’s asylum and migration policy. These consist of “establishing wide-ranging partnerships with key countries, addressing the root causes of migration, preventing irregular departures, fighting the smuggling of migrants, and increasing returns, as well as encouraging frameworks for legal migration.” As such, von der Leyen argued that the EU can draw on different initiatives and tools – such as economic partnerships, legal migration, Global Gateway initiatives, as well as GSP, visa and mobility schemes. In addition, with regard to return actions, the Commission will propose targeted return actions to the Member States, with one country taking the lead or Frontex. At the end of July, 290,000 return decisions had been made in the EU, and only 22% of them had been implemented, the President argued in her letter. Von der Leyen is also announcing new legislative initiatives on human trafficking and the fight against people smugglers for the end of October.
If you want to know more about the EU Action Plan on Migration and Asylum check out the latest Journal published by the European Court of Auditors.
EU-Tunisia deal: latest developments
As examined in our previous 2023 EU Migration Update, a Memorandum of Understanding (MoU) between the EU and Tunisia was signed in July, including provisions related to combating irregular migration as well as EU financial support for improving Tunisia’s management of its borders. Under the MoU, the EU will provide €105 million for training and technical support for Tunisian border management, for combating anti-smuggling operations, and for reinforcing control of borders. On 22 September, the Commission has announced €60 million in budget support for Tunisia and an operational assistance package on migration worth around €67 million euros. However, on 3 October, Tunisian President Kais Saied rejected the financial support announced by the European Union, stating the amount was small and went against the deal previously signed. Therefore, notwithstanding the words of Ursula von der Leyen, who defined the MoU as a “blueprint” for new agreements with third countries, after the latest political developments, the future of the MoU between the EU and Tunisia remains unclear.
Concerns within the EU and from NGOs
In the meantime, several concerns have been raised concerning both (i) the democratic deficit featuring the process leading to the conclusion of the agreement and (ii) the risks of human rights violations in the agreement.
Regarding the first element of concern, as reported by the Guardian, the EU Foreign Affairs chief Joseph Borrell expressed criticism regarding the Commission’s unilateral action that led President von der Leyen to hastily sign the MoU with Tunisia in July, supported by Italian prime minister, Giorgia Meloni, and the Dutch prime minister, Mark Rutte. In particular, Borrell, noted that proper adoption procedures were not followed, by specifying that “the participation in the negotiation and the signing ceremony of a limited number of EU heads of government does not make up for the institutional balance between the council and the commission”.
The EP Social and Democrats Group has also strongly criticised the content and the method resulting in the signature of the MoU – with no involvement of the European Parliament but in the presence of two prime ministers. According to the Group, this Memorandum must be revised as it fails to address all concerns related to human rights, including the rights of migrants and asylum seekers as well as the continued deterioration and deepening of the crackdown on opposition.
Regarding the second element of concern, i.e. the risks of human rights violations, the European Ombudsman has also expressed its concerns, by asking if the Commission (i) had carried out a human rights impact assessment before signing the MoU, (ii) whether it intends to carry out a periodic review of the human rights impact of actions undertaken during its implementation, and lastly, (iii) if some criteria for suspending funding if human rights are not respected has been or will be established.
International organisations have also voiced their reservations against the agreement. The Council of Europe Commissioner for human rights has highlighted the lack of indication of human rights safeguards in the MoU text in relation to migration, inviting Council of Europe Member States which are also EU Member States to “press for immediate clarification of the human rights safeguards that will be put in place and to insist that the migration-related aspects of the agreement are not further implemented until adequate safeguards have been established”.
Similarly, the UN High Commissioner for Refugees, Filippo Grandi, has warned over Europe’s failure to fund humanitarian aid to African countries and urged a wide-ranging intervention including economic resources, stabilisation of conflicts, as well as aid to countries of transit and departure.
According to a report from Oxfam published on 21 September, the focus of EU’s budgetary action in migration remain on deterrence, regardless of the fact that “the human rights situation for migrants from sub-Saharan countries has (…) been deteriorating in Tunisia”. The findings of the report have then been debated at the Commission midday press briefing, however officials provided a rather abstract response to some important inquiries.
The Commission 10-Point Plan for Lampedusa
Irregular arrivals of migrants in Italy via the Mediterranean from North Africa amounted to almost 114,300 between January and August 2023, almost doubling the number registered in the same period of 2022, according to Frontex. In response to increased arrivals in Lampedusa, the Commission has hinted at interest in a naval blockade on the Mediterranean and offered a 10-point plan with a significant focus on (i) supporting the transfer of people out of Lampedusa, (ii) stepping up returns by undertaking a renewed, concerted outreach to the main countries of origin of the new arrivals and (iii) taking measures to limit the use of unseaworthy vessels and against the supply chains and logistics of smugglers. However, the pact was not welcomed by more than 80 civil organizations which have called out the EU for its long-standing “securitarian” response on migration, which keeps aggravating “the crisis of solidarity and the situation of people on the move”.
The role of Frontex: latest developments on the issue of accountability
The European Ombudsman’s inquiry on the shipwreck off the coast of Greece on 14 June 2023
The European Ombudsman, Emily O’Reilly, has recently opened an own-initiative inquiry aimed at clarifying Frontex’s role in search and rescue operations in the Mediterranean sea following the drowning of hundreds of people off the coast of Greece on 14 June 2023. On that day, an Italy-bound overloaded vessel smuggling migrants sank in international waters in the Ionian Sea, off the coast of Pylos, Messenia, Greece. The boat, named Adriana, which had a capacity of 400 people carried an estimated 400 to 750 migrants. Upon its departure from Tobruk, Libya on 10 June, concerns soon emerged as the vessel was situated within the Maritime Search and Rescue (SAR) region designated for Greece. The Hellenic Coast Guard (HCG) subsequently arrived at the location, conducted aerial photographic documentation of the vessel, extended offers of aid that allegedly went declined, and maintained a presence as an observer until the unfortunate event of the boat capsizing and sinking. After the sinking of the vessel, the Hellenic Coast Guard (HCG) and the military launched an extensive search and rescue mission. By 18 June, authorities had officially recognized that more than 500 individuals were “presumed dead.”.
As reported by ECRE, while 180 NGOs have demanded “full and independent investigations” into the events, the UN has welcomed an independent probe and the European Commission has stated that any investigation should be “thorough and transparent”, the Greek Supreme Court prosecutor Isidoros Dogiakos, has reportedly urged absolute secrecy in the investigation.
Frontex initiated a “serious incident report” (SIR) on 22 June, requiring the agency’s fundamental rights officers to record potential human rights violations. At the same time, European Ombudsman Emily O’Reilly has asked to inspect a wide range of documents concerning Frontex’s responsibilities to rescue those in distress at seas, including the SIR about how events unfolded with the Adriana boat as well as reports of the other recent incidents involving considerable loss of life in the Mediterranean. She has also asked for details about how information about search and rescue operations is shared between Frontex and national authorities and whether Frontex has a say on how these operations are designed or implemented. Other questions concern whether there are specific rules for the use of cameras mounted on boats during joint operations and whether Frontex reports on fundamental rights violations with regard to the interactions of Member State authorities with NGO vessels that rescue people at sea.
The General Court September ruling on Frontex’ liability
On 6 September, the General Court (Case T-600/21) dismissed the action of several Syrian refugees who had brought a claim for compensation against Frontex. The refugees claimed that Frontex had infringed, in the context of their return operation from Greece to Turkey, its obligations relating to the protection of fundamental rights, steaming from the Charter, Frontex’s Regulation, the Code of Conduct, and Frontex’s Standing Operating Procedure. The General Court found the EU agency not accountable since its task was solely to provide technical and operational support to the Member States, who, on the other hand, had the exclusive competence to assess the merits of return decisions and to examine applications for international protection. As highlighted by the scholars Flink and Rijpma, the Court’s ruling shows the inadequacies of the current system of remedies provided by the EU legal framework in ensuring an effective judicial control over EU bodies’ action within the EU’s Area of Freedom, Security and Justice. 
LIBE Resolution on Frontex
On 26 October 2023, European Parliamentarians (hereinafter: MEPs) from the Civil Liberties Committee issued a resolution urging Frontex to uphold fundamental rights. This resolution arises from of a fact-finding investigation conducted by the Civil Liberties Committee Working Group on Frontex Scrutiny (FSWG), which was set up in January 2021 under the chairmanship of Lena Düpont (European People’s Party, DE). The FSWG’s final report, under the leadership of MEP Tineke Strik (Greens, NL), was presented in July 2021. As part of this comprehensive investigation, a delegation from the Civil Liberties Committee visited Frontex’s headquarters in Warsaw in June 2023.
The Committee drafted a resolution that received approval with 45 votes in favor and 7 against. This resolution encompasses several critical points:
• Transparency and EU Principles: MEPs have called for more extensive measures to ensure transparency within the agency and its adherence to EU principles. They expect a transformation in Frontex’s work culture, emphasizing compliance with EU principles and values, including accountability towards the European Parliament. While acknowledging Frontex’s efforts in implementing 36 out of 42 recommendations made by the Frontex Scrutiny Group’s, MEPs also expect full cooperation from Frontex during the inquiry into the shipwreck off the coast of Greece on 14 June 2023.
• Search and Rescue Operations: MEPs have expressed that Frontex could contribute more to enhancing Member States’ capabilities for search and rescue operations.
• Concerns in Greek operations: MEPs have voiced concerns regarding the serious and persistent allegations against Greek authorities regarding pushbacks and violence against migrants. They suggest that Frontex should reduce its operations to monitoring and presence when an EU member state fails to adhere to fundamental values.
• Cooperation with Hungarian Authorities: MEPs have called for an immediate suspension of support for return operations from Hungary.
• Frontex’s Role in the Russian invasion of Ukraine: MEPs have praised the positive role played by the agency in aiding Member States in dealing with a large influx of people crossing external borders into the EU, particularly in the aftermath of the Russian attack on Ukraine. This included the deployment of approximately 500 officers along the Eastern border from Finland to Romania and over 50 officers to Moldova.
The draft resolution will be tabled for a discussion and voted by the Parliament in a future plenary session.
If you want to know more about the topic, here you can find our “Comment on Frontex and pushbacks: obligations and accountability (2021)”. For a more recent take, check out our “Comment on Frontex’s Status Agreements with Senegal and Mauritania (2023).
Temporary Protection of Ukrainians in the EU: an update
To offer stability to over 4 million Ukrainian refugees currently living in the EU, the Council has approved, on 28 September 2023, an extension of the temporary protection offered to those fleeing from the war of aggression of Russia against Ukraine. This protection was firstly activated on 4 March 2022, at the beginning of the conflict, and it has been extended in the period from March 4, 2024, to March 4, 2025. This decision was welcomed by ECRE and other NGOs, which had released a joint statement in May 2023, inviting the Commission and the Council to extend until 2025. the temporary protection regime for displacement from Ukraine.
If you want to get more insight on the legal issues connected to this topic check out our recent “Comment on legal status of refugees from the War in Ukraine after the end of the current Temporary Protection Scheme”.
 See in this context: https://www.statewatch.org/media/4088/eu-com-migration-letter-eur-council-10-23.pdf.
 J. Rijpma and M. Fink, Responsibility in Joint Returns after WS and Others v Frontex: Letting the Active By-Stander Off the Hook, EU Law Analysis, 22 September 2023, available at https://eulawanalysis.blogspot.com/2023/09/responsibility-in-joint-returns-after.html.