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 Daniel Thym, FZAA Research Centre Immigration & Asylum Law, Universität Konstanz

Audio version available here

December 2024 may go down in history as a turning point of EU asylum law and policy. The newly appointed second von der Leyen Commission recognised, in a non-binding communication, that pushbacks may possibly be legal if Member States invoke a provision some experts may barely have noticed: Article 72 TFEU protects the responsibilities of the Member States to maintain law and order and to safeguard internal security.

This short provision can, in the view of the Commission, justify a derogation from the right to asylum at the EU’s Eastern borders in response to the instrumentalisation of migration by Russia and Belarus. Doing so would effectively legalise controversial legislation and administrative practices refusing entry to the territory for people expressing the desire to apply for asylum, despite the obligations enshrined in the Asylum Procedures Directive and Articles 18 and 19 of the Charter. This blogpost serves as a guide to the legal questions surrounding the communication.

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By Dr Ciara Smyth, Irish Centre for Human Rights and School of Law, University of Galway, Ireland

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On 18 June 2024, the Irish Dáil (the lower house of parliament) adopted a motion approving the exercise by the State of its discretion under Protocol 21 to the Lisbon Treaty to opt in to all legislative measures of the EU Pact on Migration and Asylum, bar two: the Screening Regulation and the Return Border Procedures Regulation. Being Schengen-related measures, Ireland could not opt in to these two regulations without opting into Schengen itself – which Ireland cannot do for reasons outlined below. Nonetheless, the Minister for Justice indicated her intention to the Dáil to ‘align’ domestic law with these regulations, saying that ‘essentially we will replicate what we cannot join’. On 31 July, the Commission adopted a number of decisions confirming the participation of Ireland in seven of the nine Pact measures.

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POST 23 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Professor Elspeth Guild, University of Liverpool and Vasiliki Apatzidou, Queen Mary University of London

Audio version available here

EU law in the field of asylum and protection of refugees has undergone dramatic changes in the first quarter of 2024. The legislator has agreed a new set of EU instruments which cover all areas from arrival on the territory to reception, treatment of claims, rights of those in need of international protection and expulsion of those determined not to need it. Collectively, this set of new instruments constitutes the 3rd phase of the Common European Asylum System (CEAS) replacing the 2nd phase instruments adopted in 2013. Moving towards the implementation phase, EU States must ensure that their practices are consistent with human rights standards. This issue is the subject of a recent report by the Swedish Institute for European Policy Studies. We will not repeat its contents here. Our objective is to offer a concise yet insightful examination of four key areas in the new CEAS instruments which may have human rights implications: access to the territory, access to a fair procedure, detention and reception conditions including family unity. The aim is to provide a broad understanding of these areas highlighting overarching human rights concerns.

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POST 22 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Boldizsár Nagy, Professor Emeritus at the Department of International Relations, Central European University

Audio version available here

Long gestation, piecemeal changes

It took almost eight years (2016-2024) to adopt the text of the Qualification regulation (Regulation (EU) 2024/1347 of 14 May 2024). Its first version, in the form of a directive – emerging from scratch – needed five years (1999-2004), the second variant – still a directive – only two (2009-11).

Was the long gestation justified by a thoroughgoing renewal? Certainly not: the 2024 regulation does not introduce conceptual novelties. Transfer of protection to another Member State or intra-EU asylum seeking are not touched upon. Incremental changes were introduced. This blogpost reviews and evaluates the most important ones.

The regulation aims at harmonisation, which is ensuring that Member States apply common criteria for the identification of persons in need of protection, and grant and enforce a common set of rights for these beneficiaries. The higher degree of legal certainty and transparency ought to lead to equal treatment across the EU and a decrease of secondary movements between Member States. The form of regulation serves these goals better than a directive, leaving room for more variance among Member States.

The most important incremental changes are clustered into three blocks: rules favourable for those seeking protection, changes increasing state control (reducing chances to enjoy protection) and mixed impact novelties. The overall assessment shows that – unlike in case of many building blocks of the New Pact – the balance of the QR may be positive.

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POST 21 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Niovi Vavoula, Associate professor in Cyber Policy, University of Luxembourg

Audio version available here

1. Introduction 

Eurodac (European Asylum Dactyloscopy Database) is the EU-wide, large-scale IT system (database), initially designed to assist in the implementation of the Dublin system for the determination of the Member State responsible for examining an application for international protection. It is then an important, yet relatively under-researched, tool of the Common European Asylum System (CEAS). At the same time, it forms part of a complex network of centralised and soon-to-be interoperable EU/Schengen IT systems along with the Schengen Information System (SIS), the Visa Information System (VIS), the Entry/Exit System (EES), the European Travel Information and Authorisation System (ETIAS) and the European Criminal Record Information System for Third-Country Nationals (ECRIS-TCN). As such, Eurodac sits on two stools: on the one hand, it follows the pathway of the rest of the CEAS instruments, and on the other hand, it belongs to an ever-growing family of centralised databases in the field of migration, asylum, and border management.

This blog post provides a concise overview of the main changes in the revamped Eurodac under the newly adopted Regulation (EU) 2024/1358 (revised Eurodac Regulation), part of the New Pact on Asylum and Migration instruments, and critically appraises the relevant fundamental rights concerns. In its first part, the blog post outlines Eurodac’s currently applicable rules (Part II), followed by a synopsis of the revised rules that will apply as of 2026 (Part III). Finally, Part IV analyses key fundamental rights issues stemming from the reconfiguration of Eurodac following the adoption of the recast Eurodac Regulation.

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POST 20 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Iris Goldner Lang, Jean Monnet Professor of EU Law, Head of Department of European Public Law and Vice Dean at the Faculty of Law – University of Zagreb.

AUDIO VERSION AVAILABLE HERE

The term “Instrumentalisation” (of people) can be defined as using human beings as a means to achieve certain ends, or, in other words, treating humans as objects to obtain political or other goals. We can probably all agree that instrumentalisation of human beings, no matter whether they are EU citizens or third-country nationals, is morally unacceptable and that this applies also in the context of migration, asylum and border control policies. However, the concept of instrumentalisation has only recently become regulated in EU law, as a reaction to the developments at the EU’s external borders with Türkiye, Morocco, Russia and, most prominently, Belarus. This blog post will first outline the political developments that led to the regulation of the concept of instrumentalisation. It will then analyse the newly adopted EU rules on instrumentalisation of migrants under the New Pact and critically assess their effects and the safeguards they contain to protect fundamental rights. Notably, the post will explore whether the developments at the EU’s external borders legitimise the increasingly securitised approach towards EU border management and whether they jeopardise the right to seek asylum in the EU. Against this background, the concluding part will suggest that EU level regulation of instrumentalisation is a welcome development as it creates an additional legal basis to ensure that national measures are not unilateral and that they respect the principle of proportionality and the right to seek asylum, while granting Member States a legal tool to rely on, when faced with instrumentalisation.

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