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 Patrícia Cabral, Legal Policy Officer, European Network on Statelessness. 

This article was originally published on the blog of the European Network on Statelessness. We are reposting with permission of the author.

The enjoyment of LGBTIQ* rights varies across Europe, including the recognition of same-sex partnerships or marriages and the recognition of legal parentage between children and those who raise them as parents – regardless of biology, gender or sexual orientation. As a result, rainbow families in Europe (families where a child has at least one parent who identifies themselves as lesbian, gay, bisexual, trans, intersex or queer) can face problems with recognition of civil status, birth registration and access to birth certificates, leaving some children in these families either stateless or at risk of statelessness.

Such cases have occurred across several countries in Europe and reflect a wider concerning trend within the EU, where LGBTIQ*-related discriminatory laws and practices by Member States impact on the child’s right to a nationality and their access to EU citizenship. The Court of Justice of the European Union (CJEU) will now have an opportunity to address this issue in a case concerning a child born to same-sex parents in Spain, for which a hearing is due to take place next week.

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By Sylvie Sarolea, Lawyer and Professor in Migration Law, Private International Law and Human Rights, at the Université Catholique de Louvain and Jean-Baptiste Farcy, Lawyer and Doctor of Laws from the Université Catholique de Louvain. 

Creating legal avenues to the European Union is undoubtedly a central component of a comprehensive and balanced immigration policy. Although asylum attracts most of the media coverage and the political attention, the vast majority of the 3 million first residence permits issued by the Member States in 2019 were not delivered for the purpose of international protection. This could suggest that the EU legal migration system is working well. To be sure, immigration for family and educational purposes are addressed almost comprehensively by secondary EU legislation. While Directives 2003/86/EC and 2004/38/EC set out the conditions of family reunification, the admission of students and researchers is now spelt out in the recast Directive (EU) 2016/801.

However, when it comes to labour migration, the EU policy is relatively underdeveloped. Harmonisation in this field is limited both in scope and intensity: EU directives regulate the admission and stay of a few categories of workers only and the flexibility provided by the existing EU legislation protects rather than challenges the autonomy of national authorities. As a result, it should not come as a surprise that the recent “fitness check” concluded that “the current legal migration framework had a limited impact vis-à-vis the overall migration challenges that Europe is facing” (here, p. 105).

Given the limited added value of EU directives on labour migration, it wasn’t unreasonable to expect a new look, or even a “fresh start”, on this issue. While the European Commission timidly tries to design new schemes, it fails to convince (1). Unlike other issues addressed in the “New Pact”, no legislative proposal is put forward and a number of core dilemmas remain unresolved (2). Written in evasive terms, the Communication on a New Pact on Migration and Asylum raises more questions than it provides answers to.

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By Violeta Moreno-Lax, Reader (Associate Professor), Queen Mary Law School

The EU (Non-)rescue Paradigm

The ambition of the New Pact on Migration and Asylum is to ‘build a system that manages and normalises migration for the long term and which is fully grounded in European values and international law’ (p. 1, New Pact), avoiding the kind of piecemeal ad hoc-ism that may degenerate in Moria-like fiascos (pp. 3 and 13, New Pact). This requires a ‘comprehensive approach’ (cf. Moreno-Lax and Papastavridis) that recognises ‘collective responsibilities … and tackles the implementation gap’ of the relevant standards (p. 3, New Pact), while ensuring solidarity (p. 5, New Pact), including in the maritime domain (p. 6, New Pact). Search and rescue (SAR) is acknowledged by the European Commission not only as ‘a moral duty and a [binding legal] obligation under international law’, but also as ‘a key element of the European integrated border management’ and as ‘a shared responsibility’ of both the Union and its Member States (p. 13, New Pact).

However, the focus—as with much of the New Pact—is neither on the protection of seaborne migrants and refugees nor on the elimination of the structural factors that push them to take the sea to reach safety in the first place. The main concern is with managing mixed flows and countering irregular arrivals on consideration that ‘dangerous attempts to cross the Mediterranean continue to bring great risk and fuelling criminal networks’ (p. 13, New Pact). Accordingly, the measures proposed to develop the purported ‘common European approach to search and rescue’ (heading, section 4.3) centre on ‘ensuring effective migration management’ (p. 14, New Pact). Five elements are expected to achieve this objective: (1) a more predictable relocation mechanism for disembarkations; (2) enhanced cooperation and coordination among Member States; (3) the deeper involvement of Frontex through increased operational and technical support; (4) the fight against the facilitation of irregular entry; and (5) strengthened cooperation with countries of origin and transit to prevent unauthorised crossings (pp. 13-14, New Pact). These measures may, as an add-on, ‘contribute to saving lives at sea’ (p. 13, New Pact), but this is not the priority. The priority, again, is to curb ‘dangerous journeys and irregular crossings’ in partnership with third countries and the prevention of the facilitation of unauthorised arrivals (p. 14 and sections 5 and 6, New Pact).

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By Iris Goldner Lang, Jean Monnet Professor of EU Law and Holder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue, University of Zagreb.

1. Introduction

On 23 September 2020 – at the time of what seemed (but turned out not) to be the photo finish of the negotiations of the 2021-2027 Multiannual Financial Framework (MFF) – the European Commission proposed the New Pact on Migration and Asylum (Migration Pact) with the appended package of new legislative proposals. The aim of this blog post is to look at the financial implications of the Migration Pact and to examine whether the ambitions of the new Pact are reflected in the 2021-2027 MFF. The text will try to respond to two questions. Firstly, it will examine whether the Migration Pact generates new costs for the EU and its Member States and whether these costs have been calculated into the MFF. Secondly, it will consider whether the creation of additional costs by the Migration Pact could interfere with its successful adoption and implementation.

The timing of the Commission’s proposal of the Pact coincided with the final phase of extremely difficult negotiations on the adoption of the next MFF for the period 2021-2027. The agreement among Member States on the next seven-year budget ended at the longest ever meeting of the European Council on 21 July 2020. According to the European Council Conclusions, EU leaders agreed that the next MFF would amount to € 1,074.3 billion with an additional € 750 billion for the Recovery Fund (all the amounts in the text are provided in 2018 prices). Out of that amount, the conclusions allot a total of € 22.7 billion to Heading 4 titled ‘Migration and Border Management’. Out of this amount, € 8.7 billion has been dedicated to the Asylum and Migration Fund (AMF), € 5.5 billion to the Integrated Border Management Fund (IBMF) and € 5.1 billion to the reinforced European Border and Coast Guard Agency (EBCGA).

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By Madalina Moraru, Head of Research Group at the Centre for Judicial Cooperation of the European University Institute, and Senior Research Fellow at the Judicial Studies Institute, Masaryk University and ITFLOWS Project, Brunel University.

Returns do not feature in the Pact’s title, nevertheless they are a redline running across all of the Pact’s five legislative acts, and two non-binding proposals scheduled for 2021. These proposals aim to increase returns of irregularly staying third-country nationals from the EU by way of: introducing a mandatory, expedited return border procedure that could become the new regular return procedure; creating an EU Return Coordinator position to increase coordination among domestic return practices; increasing the links between asylum and return policies into a single integrated migration procedure; and introducing return sponsorship as a form of solidarity cooperation among the Member States. Some of these proposals are likely to increase solidarity among the Member States, and achieve more effective returns that also observe fundamental rights – such as a more humane return border procedure compared to the procedure included in the 2018 Recast Return Directive proposal of the European Commission. Nevertheless, the increased links between asylum and return policies, the extension of the scope of application of the return border procedure coupled with the limitation of procedural guarantees risk to weaken the right to asylum, the principle of non-refoulement and diminish the role of courts in favour of an executive dominated migration management system.

Against this background, this post examines:

• why returns feature so centrally in the Pact;
• how the Pact proposes to reform the EU policy design on returns, compared to the 2018 Proposal to Recast the Return Directive and the currently in force Return Directive; and
• what could be the future challenges for the new EU system of returns.

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By Galina Cornelisse, Associate Professor, EU Law and Public International Law, Vrije Universiteit Amsterdam

When presenting the new Pact on Migration and Asylum, the Commission wrote that its underlying rationale is the need for a new, durable European framework: ‘one that can provide certainty, clarity and decent conditions for the men, women and children arriving in the EU.’ Particularly when it comes to detention and accommodation at the borders of Europe, the last ten years have shown structural weaknesses in EU law and its implementation precisely with regard to ‘certainty, clarity and decent conditions.’ Thus, certainty and clarity are negated by the numerous instances of de facto detention that occur at the borders of Europe, or the vague legal framework governing the situation in the hotspots. And the conditions that prevail in some of Europe’s immigration detention centres, or in other places where people are either deprived of their liberty or where their freedom of movement is restricted, are a far cry from any possible interpretation of the term decency. Thus, proposals for new policies that aim to enhance certainty, clarity and decent conditions in this area are long overdue.

In this post I discuss those elements of the New Pact and its accompanying legislative and non-legislative initiatives that touch on detention and freedom of movement of third-country nationals. After setting out the content of the proposals in some detail, I investigate these through the lens of fundamental rights compliance. We will see that the Commission proposals do not sufficiently contemplate the implications of the link between border control and the liberty of individuals. The absence of a thorough and well-thought-out legal framework regulating detention and freedom of movement at the borders of Europe means that the promise of certainty, clarity and decent conditions can only be translated in practice if substantial changes to the proposed legislation are made.

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