16 november 2021
29 september 2021
In previous Updates, we have discussed the Commission’s proposals included in the New Pact on Migration and Asylum, presented in September 2020. There has not been serious political progression on the proposals so far, due to the strong divergences between the Member States.
Developments in the Council
Like the Portuguese presidency, the Slovenian presidency has decided to negotiate on the legislative proposals of the Pact separately. The German “packet approach”, therefore, seems to have been definitively left behind.
Provisional agreement on the Blue Card Directive was reached in May, and on the new European Union Agency for Asylum in June, which aims at replacing the European asylum support office (EASO) with an agency with a broader mandate.
Notably, on 22nd June 2021 provisional agreement between the Council and the European Parliament was reached on amendments to the Eurodac Regulation. The Meijers Committee published a comment in July expressing concern about (1) the impact on fundamental rights of the extension of content and deployment of Eurodac; (2) lack of clarity regarding the scope of the subsequent legislative proposals; and (3) the connection with the proposed Screening Regulation, the Regulation on Asylum and Migration Management and the Interoperability Regulations.
The Slovenian presidency has claimed to prioritise strengthening the controls at the European external borders, return procedures, and the effective implementation of Schengen with no checks at the internal borders. Particular attention is being paid to the revision of the Regulation on the Schengen Evaluation Mechanism and the Schengen Borders Code, and the overall Strategy on the Future of Schengen. The implementation of the Regulation on the European Border and Coast Guard and Interoperability Regulations has a central position in the program.
Moreover, the Slovenian Presidency declared that it will address irregular migration and promote police cooperation and exchange of information to fight human trafficking and transnational crime. On this topic, two meetings are expected in November and December 2021. Specific attention is being drawn to Western Balkan countries where particular support is needed.
In June 2021, Amendments on the Screening Regulation Proposals were also adopted. The Meijers Committee published a comment highlighting some problematic aspects: the lack of provisions about the reception conditions of third-country nationals during the screening procedure and the possibility of detention; the lack of precision in defining which biometric data are to be collected; the access and use of data by Interpol authorities; the access to effective judicial remedies against the outcome of the screening.
Developments in the Commission
Regarding the European Commission’s work, particular attention is being given to Schengen, which risked being jeopardized by the reintroduction of internal border checks, hindering the movement of people and goods. Indeed, countries like Austria, Belgium, Denmark, Finland, Germany, Hungary, Norway, France, Portugal and Spain temporarily reintroduced border controls following the outbreak of the COVID-19 pandemic. In addition, temporary border checks were reintroduced in Norway, Austria, Germany, Sweden, Denmark and France for reasons of terrorist threat, secondary movements or related to the situation at their external borders. Most of those measures have been renewed and are still in force.
In June 2021, the Commission released the Communication ‘A strategy towards a fully functioning and resilient Schengen area’, presenting a plan of actions to improve external border management, reinforce the Schengen area internally, and improve its governance. Significantly, building on the lessons learned from the outbreak of COVID-19, the Commission plans to put forward a new proposal for an amendment of the Schengen borders code by the end of the year.
A proposal for the revision of the Schengen evaluation and monitoring mechanism was presented. It provides for increasing the strategic focus of the Mechanism and ensure a more proportionate use of the evaluation and monitoring tools; simplify the procedures to make the process more effective and increasing the role of the Council when politically relevant cases arise and in monitoring the implementation of the recommendations. Moreover, it aims at invigorating the evaluation on respect of fundamental rights when implementing the Schengen acquis and better organize and increase the participation of Member State experts and union bodies, offices and agencies. Important changes refer to the extension of the multiannual program from five to seven years and the introduction of a simplified procedure to adjust the program in case of necessity (Article 12), the introduction of unannounced on-site visits to the Member States (Article 19), and the reinforced role of the European Parliament and the Council in the monitoring phase, as the Commission will keep them up to date about the implementation of action plans (Article 22).
The Meijers Committee will soon publish its comments on the Strategy on the future of Schengen.
Developments in the Parliament
In July 2021, the European Parliament approved the reform of the Visa Information System (VIS). This is not formally part of the New pact on Migration and Asylum, but it relates to that as it complements the interoperability with SIS, EES, ETIAS, Eurodac, ECRIS-TNC, and Europol data. The VIS will now store data on long-stay visas and provide Europol and law enforcement authorities enhanced access. The amendments also provide for lowering the age at which fingerprints and facial images can be collected from 12 to 6 years and require that officials specifically trained to work with minors collect children’s data.
In August 2021, the European Parliamentary Research Service (EPRS) published an impact assessment on the new Pact on Migration and Asylum, focusing mainly on the Asylum and Migration Management Regulation, the Crisis and force Majeure Regulation, and the amended Asylum procedure Regulation, and the Screening Regulation. It is a pragmatic analysis aimed at understanding the underlying logic of the new pact and assessing its economic, social, and territorial impact, as well as its consequences on fundamental rights. The document, for which the Meijers Committee was consulted, suggests that the problems to be addressed by the new legislation and the pursued objectives are not clearly identified. One of the main concerns is the legal fiction of non-entry applied to the pre-entry screening and border procedures and the use of detention. The study questions the overall effectiveness, coherence, and proportionality of the proposed measures and the implementation of the monitoring and evaluation mechanisms, considering that consequences for non-compliance are not specified.
On 15th July, the outcome of the fact-finding investigation, conducted by Members of the European Parliament in the so-called Frontex Scrutiny Working Group (FSWG) about fundamental rights violations in which Frontex was involved, was released. Several reports denounced that Frontex had knowledge of the pushbacks at the Greek-Turkish border and did not take any action to avoid them. Allegedly, in some cases, the agency was directly involved in pushbacks and collective expulsions.. In May 2021, the Management Board concluded that in two of the most critical cases brought to its attention, there was evidence supporting the claims of violations of fundamental rights and possible breaches of the principle of non-refoulement. The FSWG generally concluded that even though there is no conclusive proof of Frontex perpetrating pushbacks and collective expulsions, it appears that fundamental rights violations took place in the Member States where it was conducting joint operations and failed to take appropriate action.
Moreover, flaws in the monitoring mechanisms were underlined. The final document includes recommendations to address the deficiencies in fundamental rights compliance by Frontex. They deal with the division of responsibilities between Frontex and the Member States through a transparent reporting mechanism and imposing severe consequences for non-compliance. Attention is also drawn to the role of the FRO and the Consultative Forum, which were frequently involved in matters about fundamental rights only in a later stage, increasing the risk of a lack of safeguards. Regarding the application of Article 46 on decisions to suspend, terminate or not launch activities, the FSWG calls for the establishment of clear criteria and procedures, which is currently lacking, as evident from the fact that it was applied only once in the case of Hungary and with considerable delay.
Moreover, in May, an action against Frontex was brought before the General Court. Two asylum seekers presented the motion claiming that serious and persistent violations of fundamental rights and international protection obligations took place in the Aegean Sea without any intervention by the Executive Director. The applicants also claim that Frontex did not act to prevent these violations from happening.
In April 2021, the Meijers Committee published a comment about the agency’s involvement in pushbacks and how it should be held accountable for its actions. The committee recommended including clear procedural standards based on the Schengen Borders Code, taking into account the jurisprudence of the ECHR, and strengthening the accountability mechanisms.
Eastern European borders
According to the Lithuanian authorities, over 4000 people have illegally crossed the border between Belarus and Lithuania in 2021. Lithuanian and EU officials accused the Lukashenko’s regime of using people as a weapon to destabilize the EU in retaliation for the economic sanctions imposed after forcing a Ryanair flight to land to arrest an opposition journalist. Some Belarussian police officers were reported to be pushing migrants into Lithuanian territory. A state of emergency has been declared in all the three European countries most affected: Poland, Latvia and Lithuania.
Lithuania recently fast-tracked amendments to the Law on Legal Status of Aliens. The bill provides that in case the state of emergency, due to a large influx of immigrants, is declared, restrictions on the access to medical consultations are introduced, and it allows detention for up to six months (also for children). Numerous non-governmental organizations have pointed out that the provisions on detention violate Lithuanian’s international obligations and are a clear breach of human rights. It deprives asylum seekers of the right to appeal against decisions of a court of first instance and reduces the processing times of asylum applications. Furthermore, Lithuania is building a 550 km razor-wire fence to deter migrants from crossing it.
From the Polish side, the response comprised first the closure of borders, building a fence, and deploying the army to secure it. Concerns about the conditions of migrants at the border and possible pushbacks into Belarus have been underlined by the IOM. Polish officials reported that three people have died after crossing the border, and one has been found dead on the Belarus side.
At the European level, financing of 37 million euros was granted to Lithuania to tackle the situation at the border, even though the possibility of using EU funds to build the fence provoked some controversies. Indeed, Adalbert Jahnz, EC spokesman for home affairs, said that the Commission intends to support border management in the country, but European funds will not be used to finance a fence. Moreover, following a request from Lithuanian authorities, an Operating Plan was agreed with EASO to provide support in three main areas: enhancing the capacity to register applications for international protection, enhancing the ability to process the applications, and enhancing the capacity to manage the reception of applicants.
Frontex also provided officers and patrol cars to support border surveillance and border management functions in both Lithuania and Latvia.
In August 2021, the European Court of Human Rights (ECtHR) indicated interim measures in the cases Amiri and Others v. Poland and Ahmed and Others v. Latvia concerning the situation of migrants stranded at the borders with Belarus. It requested Polish and Latvian authorities to provide migrants with food, water, clothing, medical care, and shelter. However, the Court underlined that the measure does not oblige Poland and Latvia to let applicants access their territories.
In the wake of the recent political events in Afghanistan, an extraordinary meeting of the Justice and Home Affairs Council was held on 31st August 2021. One of the priorities that emerged during the meeting was ensuring the safe evacuation of EU citizens from the region. Moreover, the Council decided to continue its operations of stabilization in the area and provision of humanitarian aid and committed to cooperate to contrast irregular migration. Attention was also given to security and to ensure that the Taliban’s regime would not involve in terrorist activities. It was recognized the importance of ensuring the control of external borders, with the support of Frontex and strengthening readmission agreements between the EU and transit countries.
In particular, Commissioner Johansson released a statement on the situation in Afghanistan. Considering that migration from the country has increased and is expected to remain high, Johansson called for preventive action from the EU, which ‘should prevent people from heading towards the European Union through unsafe, irregular and uncontrolled routes run by smugglers’. In cooperation with international organizations, she called for support to displaced people in Afghanistan and those who fled to neighbouring countries, particularly Iran and Pakistan. The Commissioner noted that the situation in Afghanistan is likely to remain unstable for quite a long time; therefore, she claimed that people should not be forced to return to the country. Finally, she recommended the Member States to increase resettlement quotas and to offer legal pathways, focusing particularly on the condition of Afghan women and girls.
 EU Update 2020/1 and EU Update 2021/1 (in Dutch). Accessible via www.migratieweb.nl
 Interview with LRT on 27th July 2021 available at https://www.iom.int/news/conditions-migrants-eu-belarus-border-utmost-concern
 The Conclusions of the Council on the situation in Afghanistan are available at https://www.consilium.europa.eu/media/52073/st11713-re02-en21.pdf
European NGOs released a joint statement about priorities for an EU response to the situation in Afghanistan; available at https://ecre.org/joint-statement-current-priorities-for-an-eu-response-to-the-situation-in-afghanistan/