EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

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By Prof. Jean-Yves Carlier and Dr. Eleonora Frasca, Université de Louvain (UCLouvain), members of Equipe droits et migrations (EDEM)

This is a revised version of extracts from the yearly case law column “Libre circulation dans l’Union européenne”, published in French in the Journal de droit européen, no. 4, April 2026 (forthcoming).

Without constituting the final word, the judgment of the Court of Justice of the European Union (CJEU) in Commission v. Malta (Citizenship by investment) undoubtedly sets a benchmark in case law concerning the intersection between Member States’ nationality and EU citizenship. The ruling condemns what was referred to as the issuance of “golden” passports. In doing so, the CJEU uses constitutional language to affirm explicitly that Union citizenship “constitutes” the fundamental status of the nationals of the Member States (para 92). The issue was no longer to review the effects of a positive or negative conflict of nationality in light of the effectiveness of EU citizenship – as in most cases previously referred for a preliminary ruling spanning more than 30 years from Micheletti (1992) to Stadt Duisburg (Loss of German nationality) (2024). In this infringement procedure, the Court examined access itself to EU citizenship through access to nationality of a Member State. The Court held that Malta failed to fulfil its obligations under Article 20 TFEU (EU citizenship) and Article 4(3) TEU (principle of sincere cooperation), finding that the Maltese Citizenship Act “establishes a transactional naturalisation procedure in exchange for predetermined payments or investments and thus amounts to the commercialisation of the grant of the nationality of a Member State and, by extension, of Union citizenship” (operative part). The judgment was intended to draw a red line in the name of the Union’s values: EU citizenship is not for sale.

Our analysis proceeds in four steps: first, we analyse the Court’s constitutional framing of EU citizenship as a special relationship of solidarity and good faith. It is worth noting that “good faith” is rendered in French as loyauté, in Italian as lealtà, in Dutch as loyaliteit, in Spanish as lealtad, and in German as Loyalitätsverhältnis. Second, we assess whether the rights attached to citizenship genuinely function as vectors of EU integration. Third, we examine alternative doctrinal grounds for establishing Malta’s infringement – particularly the notion of abuse of rights. Fourth and last, we evaluate the short-, medium-, and long-term implications of the judgment for mutual recognition, national sovereignty and the future limits of judicial scrutiny over similar, but not equally worrying, Member States’ nationality policies.

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The ruling of the Court of Justice in Kinsa: A first step towards the decriminalisation of the facilitation of unauthorised entry? 

By Prof. Valsamis Mitsilegas, University of Liverpool, UK

One of the most eagerly awaited judgments by the Court of Justice in recent months has involved the litigation in the case of Kinsa. Its significance lies in the fact that this was the Court’s first opportunity to interpret the scope of EU criminal law on the facilitation of unauthorised entry, as well as the compatibility of the current overcriminalisation of facilitation with fundamental rights. The ruling is also a landmark because of its potential influence on shaping future EU criminal law in the field, particularly in view of the current negotiations on a new facilitation Directive to replace the facilitators’ package (see Mitsilegas, 2024). This commentary offers a rapid reaction to the Court’s ruling on Kinsa, which was delivered on 3 June 2025. The note will begin with outlining the background to the litigation and proceed with analysing the Opinion of the Advocate General and the ruling of the Court of Justice.

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Polish law restricting the right to asylum at borders

By Barbara Mikołajczyk, University of Silesia

Since July 2021, in response to EU sanctions imposed on Belarus following the rigged 2020 presidential election, the Belarusian authorities have launched a campaign to destabilise Poland by engaging in instrumentalisation of migrants at the border with Poland. The Polish Border Guard provides evidence that Belarusian officers are organising mass border crossings by migrants at the border, and that they are encouraging or facilitating the migrants’ use of violence against Polish officers. The Polish Border Guard staff are coming under attack from improvised weapons (sharpened sticks, broken glass, stones, slingshots and sometimes knives). The Belarusian forces have also been found to have engaged in an operation to provide migrants with equipment to destroy parts of a dam that was built in 2022. In May 2024, a soldier was stabbed in the chest and killed. Due to the growing tension at the border, in  June 2024, a buffer zone was introduced on the Podlasie section of the Polish-Belarusian border to limit access to the border. Prolonged for the third time in March 2025, this zone now covers additional areas and aims to limit the presence of people in the border strip. In turn, zones up to four kilometres wide have been introduced in some sections to prevent illegal crossings. Continue reading »

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Towards Temporary Prolonged Protection?  

Dr Meltem Ineli Ciger, Associate Professor of International Law, Suleyman Demirel University 

The EU’s activation of the Temporary Protection Directive (TPD) in March 2022 marked a historic response to the mass displacement caused by Russia’s invasion of Ukraine. The TPD was formally activated by Council Implementing Decision (EU) 2022/382 on 4 March 2022. It first applied for an initial period of one year, until 4 March 2023, and was then automatically extended for one additional year until 4 March 2024. Council Implementing Decision (EU) 2023/2409 extended temporary protection until 4 March 2025. Finally, Council Implementing Decision (EU) 2024/1836 extended temporary protection for a further period of 1 year, until 4 March 2026. As of March 2025, around 4.2 million people fleeing Ukraine continue to benefit from temporary protection across the EU (Eurostat 2025). Although the Directive was conceived as a short- to medium-term emergency mechanism, the temporary protection status is currently set to expire in March 2026.

In anticipation of this deadline, the European Commission adopted a package of three interlinked documents to shape the EU’s future approach on 4 June 2025. First, it proposed a Council Implementing Decision to extend temporary protection for one additional year, until 4 March 2027. Second, it issued a Proposal for a Council Recommendation outlining a coordinated strategy to phase out temporary protection, with a focus on long-term solutions such as transitions to residence status and voluntary returns. Third, a Communication titled “A Predictable and Common European Way Forward for Ukrainians in the EU” set out the strategic framework underpinning the two proposals. On 13 June 2025, Member States unanimously endorsed the Commission’s proposal to extend temporary protection until 4 March 2027.

This post analyses the European Commission’s June 2025 proposals on the future of the Temporary Protection Directive, focusing on their legal basis, policy rationale, and transition strategy. It questions the compatibility of the proposed extension with the Directive’s time limits, critiques the Commission’s reading of recent CJEU case law, and highlights the lack of a harmonised and inclusive pathway beyond temporary protection.

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Une meilleure protection de groupe pour les femmes-réfugiées

Par Jean-Yves Carlier et Eleonora Frasca, Université catholique de Louvain (UCLouvain), membres de l’équipe droits et migrations (EDEM).

Ce billet est une version révisée d’un extrait de la chronique de jurisprudence annuelle « Droit
européen des migrations » publiée dans le Journal de droit européen, n° 3, mars 2025.

En 2024, par trois arrêts, dont deux de grande chambre, la Cour de justice de l’Union européenne a tranché diverses questions relatives à la protection des femmes en qualité de réfugiées : les craintes de persécutions résultant de violences domestiques (W.S., C-621/21) ou de l’identification aux valeurs de l’égalité des sexes dans le pays d’accueil (K.L., C-646/21) ainsi que le constat d’appartenance de l’ensemble des femmes d’Afghanistan à un groupe social craignant avec raison des persécutions (aff. jointes AH et FN, C‑608/22 et C‑609/22). En confirmant et en élargissant la protection des réfugiées risquant des persécutions en raison de leur seule appartenance au groupe social des femmes, la Cour tient compte des réalités tout en consolidant l’importance des références aux droits fondamentaux et au droit international dans l’interprétation du droit européen de l’asile. 

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A Better Group Protection for Refugee Women 

By Jean-Yves Carlier and Eleonora Frasca,  

Université catholique de Louvain (UCLouvain), members of the Equipe droits et migrations (EDEM)

This is a revised version of the commentary in “Droit européen des migrations”, the yearly case law column published in French in the Journal de droit européen, no. 3, March 2025.

In 2024, the Court of Justice of the European Union (CJEU) ruled on various issues relating to the protection of women as refugees in three decisions, including two Grand Chamber judgments: the fear of persecution resulting from domestic violence (W.S., C-621/21), the identification with the values of gender equality in the host country (K.L., C-646/21), as well as the finding that all women in Afghanistan belong to a social group with a well-founded fear of persecution (joined cases AH C-608/22 and FN C-609/22). By confirming and extending the protection of refugee women at risk of persecution solely because they belong to the social group of women, the CJEU is taking into account women’s realities while consolidating the importance of references to fundamental rights and international law in the interpretation of EU asylum law. 

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