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

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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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POST 19 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Ulrike Brandl, Associate Professor at the Department of International Law and International Organisations, Faculty of Law, Paris Lodron University of Salzburg

AUDIO VERSION AVAILABLE HERE

Introduction

The rules in the New Pact on Migration and Asylum provide for obligations and possibilities to carry out asylum and return procedures in multi-purpose facilities situated in border areas. The hot spot approach set up in 2016 in Italy and Greece and later in a modified version in Hungary will be extended to other Member States.

Persons in the screening Procedure and certain categories of applicants for protection and persons in return procedures are not allowed to leave the border area. Restrictions of the freedom of movement and detention should guarantee the factual control over these persons.

The creation of border centres and the fiction of “non-entry” defined in Art. 6 Screening Regulation (see below) is an expression of the political consensus to restrict the entry of persons who do not fulfil the entry requirements. Border procedures and return procedures should lead to quick decisions in asylum and return procedures and should enhance that a higher number of rejected applicants for protection either voluntarily leave the State or are deported.

It will not always be easy to distinct, whether the obligation to stay in the border area is a restriction of freedom of movement or a restriction of personal liberty. Commentators (see here) and an impressive number of NGOs (see here p. 9,) here and here) describe the situation as de facto detention. This newly invented non-legal term points to blurred lines between various forms of confinement.

This blog highlights core questions concerning detention/de facto detention of the various categories of persons and analyses challenges for the protection of their fundamental rights.

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POST 18 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Lilian Tsourdi, Associate Professor and Jean Monnet Chair in EU Migration Law and Governance, Faculty of Law and Maastricht Centre for European Law, Maastricht University

Audio version available here

Initially limited and labelled as ‘symbolic politics’, EU migration funding has steadily grown, and intricate management arrangements have developed for its disbursal and control. Parts of EU migration funding consist of national programs under shared management. Still, several components of EU migration funding, such as emergency funding or the funding that will become available in the future through the newly adopted Solidarity Pool, are essentially crisis response measures trying to cater for structural needs. The New Pact on Migration and Asylum instruments pay greater attention to implementation and governance aspects of the EU’s migration policies, including its funding component. The current Multi-Annual Financial Framework (MFF 2021-2027) frames the financial aspects of the New Pact instruments. However, the Pact instruments present innovations that seek to both mobilise and boost existing resources.

Against this backdrop, I provide, first, a brief critical overview of the funding component of the EU’s migration policies prior to the Pact. Next, I analyse the main elements of the current MFF 2021-2027 that frame the funding component of the EU’s migration policies. This is followed by a scrutiny of two key developments under the New Pact: i) an innovative approach to boosting migration implementation capacities, which is, however, based on a conception of solidarity as counterweight to migration pressures, and, ii) border processing as a potential blueprint for structural forms of EU migration funding. On this basis, I conclude on the interplay between funding and implementation under the New Pact.

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POST 17 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

by Catherine Warin, Expert, European Institute of Public Administration and Valeria Ilareva, Lawyer, Foundation for Access to Rights

The New Pact on Migration and Asylum has stirred criticism from civil society organisations sounding the alarm on the risks of human rights violations (see here or here). Academics have also pointed out how the new instruments amplify risks for violations (see e.g. about the Crisis Regulation) and how they are likely to create new obstacles to the effectiveness of the rights of asylum seekers, be it due to the complexities of the provisions on legal support or those of the Asylum Procedure Regulation.

Yet, references to vulnerability and injunctions to provide the vulnerable with special attention or assistance abound in the New Pact. The reform provides an opportunity for developing the ‘functional utility’ of the concept of vulnerability, i.e. its practical relevance for the protection of human rights and more specifically, here, its relevance for ensuring that the implementation of the New Pact is done in compliance with human rights. In this blog, first, we recall briefly the pre-existing applications of vulnerability in European asylum law, and next we look at how the New Pact addresses individual factors of vulnerability and the diversity of those factors. We then highlight, focusing on the example of gender, the contextual dimension of vulnerability, which the New Pact acknowledges to a certain extent. We conclude that the New Pact allows for a much-needed approach of vulnerability as both individual and contextual, i.e. an approach which identifies certain individual characteristics and certain contexts (or situations) in which those characteristics become factors of vulnerability. This is essential if we want the human rights of those concerned to be effectively protected.

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