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 Lilian Tsourdi, Assistant Professor & Dutch Research Council (NWO) VENI grantee, Maastricht University.

The ‘New Pact on Migration and Asylum’, and the relevant legislative proposals that accompany it, adopt an ambivalent approach towards administrative integration. They partly recognise EU agencies’ increased involvement in the implementation in EU’s migration, asylum, and external border control policies. At the same time, they do not satisfactorily embed the novel functions of EU agencies, such as their increased executive powers. This means that, for example, new procedural steps introduced by the Pact such as the screening at the external borders or the border procedure, neither take to account the particularities of the potential involvement of EU agencies in these processes nor do they frame these executive powers. This could have a potential impact on migrants’ procedural rights and on the accountability of EU agencies. In addition, the Pact ingrains a two-track approach to administrative integration. This means, that alongside institutionalised administrative cooperation through EU agencies, the Pact emphasizes bilateral and multilateral transnational co-operation between Member States, as portrayed by the new concept of return sponsorships. This could potentially impact the effectiveness of administrative cooperation and migrants’ fundamental rights protection.

This post, first, analyses in greater detail which are the two tracks of administrative integration, and briefly outlines the novel functions that two EU agencies, FRONTEX (used as a shorthand for the EU’s European Border and Coast Guard Agency), and EASO (used as a shorthand for the EU’s European Asylum Support Office) undertake in these fields. Next, I explain which legal instruments are to regulate their mandate according to the Pact, and whether the Commission Communication  contains novelties regarding their role. Finally, I draw examples from two Pact legal instruments, notably the Proposal for an Asylum and Migration Management Regulation and the Amended Proposal for an Asylum Procedures Regulation to illustrate the Pact’s ambivalent approach to administrative integration.

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By Daniel Thym, Research Centre Immigration & Asylum Law, University of Konstanz, Germany.

Trust is an essential prerequisite for a functioning area of freedom, security and justice – as the Court of Justice coined it so well: ‘At issue here is the raison d’être of the European Union and the creation of …, in particular, the Common European Asylum System, based on mutual confidence.’ Our theme is not the controversial case law on fundamental rights, which judges dealt with when emphasising the relevance of mutual trust, but the more generic question of how countries in northern and southern Europe interact when asylum seekers take advantage of the border-free Schengen area to relocate themselves autonomously.

That phenomenon is usually referred to as ‘secondary movements’, even though the Commission evades the term in the ‘pact’, which nevertheless referred to the issue indirectly in the title of the accompanying press release with its call for a ‘balance between responsibility and solidarity.’ When it comes to policy debates among the Member States in the Council, enhanced rules on relocation (solidarity) and the prevention of secondary movements (responsibility) are two sides of the same coin.

EU Asylum Reform: Two Competing Narratives

In the debate about EU asylum policy, we are confronted with two competing narratives which underlie the breakdown of mutual trust among ‘southern’ and ‘northern’ states: While countries at the external border complain about having to shoulder the ‘burden’ without adequate solidarity, politicians further north often decry the alleged incapacity of their peers in running functioning asylum systems and in preventing onward movements. The first narrative is fed by the well-known pictures of arrivals at the southern and eastern shores of the Mediterranean. In relation with the second narrative, German or Dutch politicians, by contrast, will highlight statistical data: throughout the past five years Germany received more asylum applications than Italy, even though the Italian data for the latter include people who later moved elsewhere. Similarly, the numbers for the Netherlands have been between one-third and half of the figures for Greece. Germany made roughly 27 thousand take-back requests under the Dublin III Regulation towards Italy, Spain and Greece in 2019, of which about 3500 or less than 15% resulted in an actual transfer.

This blogpost discusses those elements of the Commission proposals on the reform of EU asylum policy which address the phenomenon of secondary movements. In doing so, it complements the discussion of solidarity measures in the contribution by Francesco Maiani. The initial criticism of laxness on secondary movements by the deputy chairman of Angela Merkel’s CDU/CSU parliamentary group in the German Bundestag with a responsibility for migration policy, Torsten Frei, shows exemplarily how relevant these rules can be for the policy debate. To assess the draft legislation, it is useful to start with more generic comments.

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By Lyra Jakulevičienė, Lawyer, Professor at Mykolas Romeris University (Lithuania).

The New Pact on Migration and Asylum announced by the European Commission on 23 of September 2020 contains a new piece of legislation: a Proposal for a Regulation introducing a screening of third country nationals at the external borders and amending some related regulations (hereafter Proposal for a Screening Regulation).  From the first outlook it seems that a novelty – a pre-entry screening – procedure is introduced. A more thorough analysis raises several questions. Firstly, is this novelty really new, and if not, is it worthwhile investing almost 0.5 billion euros in re-decorating old practices that did not work? Second, will the measures proposed be adequate to address the challenges and meet the objectives indicated, or will they raise more legal and practical issues than the existing ones? Last, but not least, how realistically to implement are such provisions once adopted?

1.  Novelties of the proposal or re-decoration of existing practices?

 The objective of the Proposal for a Screening Regulation is two-fold: a) to identity the persons, establish health and security risks at soonest; and b) to direct the persons to relevant procedures, be it either asylum or return (Art. 1). If compared with the current obligations of EU Member States at the borders, it is evident that identity, registration and security checks, as well as preliminary vulnerability assessments are happening anyway on the basis of Schengen Borders Code and the national legislation. While the Schengen Borders Code does not provide for any specific obligations concerning medical check of third country nationals apprehended during border surveillance, health checks have been recently introduced by the Member States in response to the COVID-19 pandemic. Thus it is no longer new.

What might be new indeed is the projected outcome of such screening procedure and its implications for the entire asylum and return process, and the individuals concerned. The proposal envisages that the outcome of the screening will be direction of the persons to appropriate procedures – either asylum procedures or returns and also it will impact on whether to channel asylum seekers to border or regular asylum procedures. It will be discussed below to what extent this is a novelty and whether it raises legal questions.

Pre-screening procedures are not new as such. They are employed, for instance, in Australia (so-called ‘enhanced screening process’, which ‘screens in’ to the refugee status determination and complementary protection system), although they have been criticized as risking excluding those with legitimate claims for protection due to too short interviews, absence of legal advise, lack of written record of the proceedings and other setbacks (Australian Human Rights Commission). Similar swift identification, registration and fingerprinting experiences were in the hotspots in Greece and Italy established in the aftermath of the 2015-2016 migration ‘crisis’ in Europe, which have failed to produce any tangible results according to Maiani. Will the pre-entry screening in the EU result in a different outcome?

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By Francesco Maiani, Associate professor at the Centre of Comparative, European and International Law, Faculty of Law, Criminal Justice and Public Administration, , University of  Lausanne. 

In ongoing discussions on the reform of the CEAS, solidarity is a key theme. It stands front and center in the New Pact on Migration and Asylum: after reassuring us of the “human and humane approach” taken, the opening quote stresses that Member States must be able to “rely on the solidarity of our whole European Union”.

In describing the need for reform, the Commission does not mince its words: “[t]here is currently no effective solidarity mechanism in place, and no efficient rule on responsibility”. It’s a remarkable statement: barely one year ago, the Commission maintained that “[t]he EU [had] shown tangible and rapid support to Member States under most pressure” throughout the crisis. Be that as it may, we are promised a “fresh start”. Thus, President Von der Leyen has announced on the occasion of the 2020 State of the Union Address that “we will abolish the Dublin Regulation”, the 2016 Dublin IV Proposal (examined here) has been withdrawn, and the Pact proposes a “new solidarity mechanism” connected to “robust and fair management of the external borders” and capped by a new “governance framework”.

Before you buy the shiny new package, you are advised to consult the fine print however. Yes, the Commission proposes to abolish the Dublin III Regulation and withdraws the Dublin IV Proposal. But the Proposal for an Asylum and Migration Management Regulation (hereafter “the Migration Management Proposal”) reproduces word-for-word the Dublin III Regulation, subject to amendments drawn … from the Dublin IV Proposal! As for the “governance framework” outlined in Articles 3-7 of the Migration Management Proposal, it’s a hodgepodge of purely declamatory provisions (e.g. Art. 3-4), of restatements of pre-existing obligations (Art. 5), of legal bases authorizing procedures that require none (Art. 7). The one new item is a yearly monitoring exercise centered on an “European Asylum and Migration Management Strategy” (Art. 6), which seems as likely to make a difference as the “Mechanism for Early Warning, Preparedness and Crisis Management”, introduced with much fanfare with the Dublin III Regulation and then left in the drawer before, during and after the 2015/16 crisis.

Leaving the provisions just mentioned for future commentaries – fearless interpreters might still find legal substance in there – this contribution focuses on four points: the proposed amendments to Dublin, the interface between Dublin and procedures at the border, the new solidarity mechanism, and proposals concerning force majeure. Caveat emptor! It is a jungle of extremely detailed and sometimes obscure provisions. While this post is longer than usual – warm thanks to the lenient editors! – do not expect an exhaustive summary, nor firm conclusions on every point.

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By Dr Stian Øby Johansen, Associate professor at Centre for European Law, University of Oslo. Author of The Human Rights Accountability Mechanisms of International Organizations 

Respect for human rights and the rule of law are among the European Union’s foundational values proclaimed in TEU article 2. The Lisbon treaty’s merging of the EU’s three pillars, together with the elevation of the European Charter of Fundamental Rights to the level of primary law, ensured a sufficient level of substantive human rights protection across all the Union’s activities. However, the right to an effective remedy – enshrined in Article 47 of the Charter , as well as in regional and global human rights treaties – requires available and effective procedural mechanisms for holding human rights violators to account. When it comes to the availability and functioning of such mechanisms, which I will refer to as accountability mechanisms, there is less uniformity and significant gaps.

These gaps are increasingly becoming visible in the area of immigration and asylum, where the powers of the Union and its agencies have been rapidly expanding over the last few years, in response to the so-called “migration crisis” of 2015. In a post on this blog written back in April, Melanie Fink highlighted the lack of access to human rights accountability mechanisms in relation to Frontex.

The EU response also included the establishment of a military Common Foreign and Security Policy (CSDP) mission, Operation Sophia, to combat human smuggling and trafficking. At the outset, Operation Sophia consisted of one aircraft carrier, supported by six ships and two submarines, and additional units were deployed in subsequent phases. With a mandate that allowed for the “boarding, search, seizure and diversion” of vessels suspected of being used for human smuggling and trafficking, not much imagination is needed to see that there are risks of human rights violations.

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By Daniel Thym, Research Centre Immigration & Asylum Law, University of Konstanz, Germany

Five years after the peak of the 2015 policy crisis, the European Commission launched what it labelled as a ‘new’ Pact on Migration and Asylum. The academic Odysseus Network for legal studies on immigration and asylum in Europe is the natural setting to provide a timely and quality review of the diverse aspects of the Commission proposals. They will be published in a special collection of more than a dozen blogposts written by eminent experts from across Europe over the next weeks. We have designed a specific website to bring together the individual contributions in an overarching format – and invite you to consult it on a regular basis or to subscribe to our newsletter informing you about new blogposts.

Overarching Enquiries

Three overarching questions define an overall assessment of the reform package. Firstly, one is bound to notice that the law is not enough – as the situation on the Greek islands amply illustrates: living conditions for asylum seekers are insufficient, procedures take years to complete and returns after rejection often fail. Similar deficiencies exist elsewhere in Europe. Northern countries complain about the notorious failure of the takeback procedure under the Dublin system. NGOs rightly worry about possible pushbacks in Croatia. Our assessment of the Commission proposals will have to be guided by the understanding that legislative reform is a necessary, but insufficient condition for a functioning asylum system. We need to ensure that the law in the books is being applied in practice.

Secondly, we will have to answer the question: is the ‘fresh start’ a reality or an illusion? In the press material, the Commission was eager to highlight the novelty factor, since ‘the current system no longer works’. At closer inspection, it is less clear to what extent the discursive framing is supported by the nitty-gritty of the legislative proposals. Digging into the more than 300 pages, one is bound to discover rules that contradict the label of a ‘fresh start’. Other provisions are controversial. It is the ambition of the special collection of blogposts to combine an in-depth knowledge with a style of argument that can be read and understood by a broader audience, thereby advancing the debate about the merits of the ‘pact’.

Thirdly, the idea of ‘solidarity and responsibility sharing’, which the Commission emphasised in the political Communication, aptly captures the tensions inherent in any debate about migration and asylum in Europe. Member States have different views about their ‘fair’ share, especially when it comes to the reform of the infamous Dublin system. At the same time, solidarity and responsibility are not confined to interstate relations. Migrants and refugees have rights (and also some obligations), which must inform our analysis of the proposals.

It seems to me that – notwithstanding the rhetoric emphasis on ideas such as ‘solidarity’, ‘responsibility’ or ‘fresh start’ – the reform package is more about pragmatism than principles. It is certainly not ‘beautiful’ in the sense of an ideal vision of how migration and asylum policy could possibly look like (even though EU politics usually prefer such grand designs). It is in essence a piece of realpolitik, which – according to the lexical definition – is defined more by the needs and circumstances of the relevant actors than by morals or ideology. That may explain some of the idiosyncrasies of the proposals, which, nonetheless, will have to be judged in terms of adequately balancing countervailing claims to migration management and human rights, supranational cooperation and state action. This introduction will continue by shortly presenting seven themes, which reiterate the overarching difficulties described above.

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