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 16 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

by Caroline Leclercq, PhD candidate in European and Migration Law, Centre de droit européen, Universitè Libre de Bruxelles

Resettlement seems to be the main solution advanced in the New Pact on Migration and Asylum to fill the current gap of legal channels for asylum seekers. It is defined by the United Nations High Commissioner for refugees (UNHCR) as the selection and transfer of refugees from a first State of asylum where they are protected but in precarious or unsafe situation, to a third State that has agreed to accept them as refugees with permanent residence status. It involves a pre-selection by UNHCR, followed by a selection by the resettlement State. Resettlement aims to show international solidarity with countries that host the majority of the world’s refugees, and to ensure durable protection for the most vulnerable among them.

Indeed, very few refugees manage to reach European territory to apply for asylum. Low and middle income countries currently host 75% of the world’s refugees. The number of people needing resettlement is rising all the time. In 2024, UNHCR estimates this figure at 2.4 million.  Since 2003, the EU Commission has increasingly prioritized resettlement as a means to enhance legal entry and managed transfer of individuals in need of international protection and to reduce the need for asylum seekers to resort to dangerous journeys to reach EU territory.

In 2015 two EU-wide resettlement programmes were established through a Commission recommendation. Those programmes were supported by significant financial resources allocated through the Asylum, Migration and Integration Fund (AMIF) and institutional support from the EASO (now the European Asylum Agency). 63.279 refugees were resettled to the EU between 2015 and 2019 (87% of the increased commitment). While these programmes established certain common principles for resettlement, they did not function based on a common admission procedure with appropriate guarantees for refugees. In 2016, the Commission introduced – as part of a New Pact on Migration and Asylum – a proposal for an EU resettlement framework under an EU regulation which was finally adopted on 14 May 2024 in order to address these shortcomings. This blog assesses the changes brought about by this new instrument regarding the harmonisation of the selection procedure and the guarantees provided to refugees during this process.

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POST 15 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Daniel Thym, Director of the Research Center Immigration & Asylum Law, University of Konstanz

Complaints about secondary movements lie behind recurrent complaints by ‘Northern’ governments, in the same way as their ‘Southern’ peers express their frustration about the lack of meaningful solidarity. Secondary movements in this sense concern irregular onward movements of asylum applicants and beneficiaries of international protection. Whereas the exceedingly complex and half-hearted provisions on solidarity in the New Pact receive much academic and political attention, the contents and implications of the new rulebook for secondary movements is often neglected despite its practical and political significance.

Both themes had been intricately linked during the negotiations: their interaction presented the Gordian knot any compromise would have to cut. The end result fails to deliver much progress. Inspection of the small print will demonstrate that ‘more of the same’ is the motto of the day. The status quo remains essentially intact once we pierce the veil of legislative innovation. That is why the new legislation will be no game changer on secondary movements, mirroring the daunting outlook on solidarity.

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POST 14 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Lieneke Slingenberg, Professor of Migrants and the Rule of Law, at the Amsterdam Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam

Almost eight years since the Commission issued the proposal, the recast EU Reception Conditions Directive  has finally been adopted. It is the only instrument of the Common European Asylum System that has not been transformed into a Regulation under the new Pact. According to the Commission, full harmonization is not feasible nor desirable, considering the ‘current significant differences in Member States’ social and economic conditions’. Accordingly, Member States need to transpose the relevant provisions into their domestic legislation. The implementation deadline is 12 June 2026.

I have analysed the 2018 political compromise on the recast reception conditions directive before. In this blogpost I analyse the new Reception Conditions Directive, in comparison to the former Reception Conditions Directive 2013/33/EU, in order to map the changes that are required in domestic law in the Member States. I do not present a full overview of the differences between the two instruments, but focus on the core novelties. I argue that the Directive ensures increased protection for (some) applicants for international protection, for example as regards access to the labour market, representation of unaccompanied minors, and the nature of the material reception conditions. At the same time, the Directive provides Member States more room to subject applicants to a significant degree of state control, for example by increasing the possibilities for excluding applicants from the full set of reception benefits and for limiting applicants’ freedom of movement.

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POST 13 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Madalina Moraru, Assoc. Prof. of EU Law at the University of Bologna, PI of the ACCESS Project and part-time Assis. Prof at the Centre for Judicial Cooperation (EUI) and

By Carmen López Esquitino, former student of the Odysseus Executive Master

The 2024 EU asylum and immigration reform did not include a recast of the 2008 Return Directive. Although the European Commission proposed a recast of the Return Directive in 2018, negotiations between the European Parliament and the Council have been deadlocked for the past four years, preventing any amendments. Given this stalemate and the focus in the Pact on combating illegal migration and improving the efficiency of the EU’s return policy, parts of the recast proposal have been incorporated into various instruments of the 2024 reform. These changes introduce exceptions and derogations from the common return procedure, challenging the Return Directive’s role as the main EU legal framework for returning third-country nationals staying or entering irregularly in the EU.

First, the return decision must be part of the asylum rejection decision, reducing Member States’ autonomy to issue separate decisions. Second, based on the Commission’s initial recast proposal, the 2024 Return Border Procedure Regulation introduces a streamlined return process for third-country nationals rejected in border asylum procedures, allowing for extended detention and curbing voluntary departure options. Third, the revised 2024 revised Schengen Border Code includes a broad derogation from the principle of direct return of irregularly staying third-country nationals, introducing a new transfer procedure.

These scattered derogations from the common return procedure are likely to reduce procedural and human rights protection as set out in the Return Directive. This policy approach is not surprising given the Member States’ criticisms of the Directive as an ineffective framework for effective returns, due to the judicial enhancement of returnees’ rights. This post analyzes how the common return procedure will be impacted by the key return-related amendments in the 2024 reform.

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POST 12 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Dr Tamás Molnár*, European Union Agency for Fundamental Rights (Vienna), legal research officer – asylum, migration and borders; Corvinus University of Budapest, Department of International Relations, lecturer on international migration law

Setting the scene: Why monitoring fundamental rights compliance at borders?

Monitoring compliance with fundamental rights is particularly important for state activities performed in “hidden places” where the public has limited or no access, such as remote areas at European Union (EU) external land borders (e.g. in forests, mountains, swamps) as well as in rough waters at sea (borders) in the Aegean or in the Mediterranean, often in the dark. Over the past decade or so, EU Member States’ border management tools, capacity, resources and infrastructure (including physical barriers) at EU external borders have been significantly enhanced to address ever more complex challenges. However, some of these enhancements have given rise to serious fundamental rights challenges. This calls for more effective fundamental rights monitoring at the external borders through reinforced mechanisms that have the capacity and expertise to monitor respect for the wide range of fundamental rights enshrined in the Charter of Fundamental Rights of the EU (‘the Charter’) that various state activities at EU external borders affect.

As the EU Agency for Fundamental Rights (FRA) has aptly pointed out, an effective and independent fundamental rights monitoring system at external borders is a core fundamental rights protection tool. Independent monitoring at borders entails collecting, verifying and analysing information to determine if the authorities’ actions comply with EU and international law. It reduces the risk of fundamental rights violations by enhancing the protection of victims of fundamental rights violations, strengthening the application of fundamental rights safeguards already in place and providing expert advice when needed. At the same time, it can support domestic investigations of allegations against public authorities by providing objective, evidence-based and unbiased analysis and reporting. This improves transparency and accountability, and thus enhances public trust in authorities operating at or in the vicinity of the borders – and all of this can lead to less court litigation against their practices. Effective monitoring mechanisms can contribute to an environment at EU external borders where people concerned can effectively exercise their fundamental rights and access international protection, judicial remedies and complaints mechanisms.

Two new legal instruments adopted as components of the EU Pact on Migration and Asylum, namely the Screening Regulation (see its Article 10, coupled with recitals (27)-(29)) and the Asylum Procedure Regulation (see its Article 43(4) paired with recital (71)) require Member States to set up independent national mechanisms to monitor compliance with fundamental rights in the context of screening (both in the vicinity of borders and within the territory) and when processing aslyum claims at or in proximity of EU external borders (asylum border procedure).

This blog post aims, first, to put the appearance of this new form of fundamental rights monitoring under EU migration/asylum law into a broader context; and then to analyse, with critical eyes, the main features and criteria set out in EU legislation of these national monitoring mechanisms, together with FRA’s envisaged role in providing general guidance for Member States on the matter.

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POST 11 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Tesseltje de Lange, Professor of European Migration Law, Director of the Centre for Migration Law, Radboud University Nijmegen 

Introduction

The 2020 Pact on Migration and Asylum made a promise of better regulation of legal pathways into the EU. The Pact called for a “well-managed system”, seeing that migration can “contribute to growth, innovation and social dynamism.” It also said it would contribute to sustainable legal pathways to attract talent to the EU. The European Commission acknowledges that “Key societal challenges faced by the world today – demography, climate change, security, the global race for talent, and inequality – all have an impact on migration.” In its communication of 27 April 2022, the European Commission makes a political and economic case for a sustainable and common approach to labour migration. Indeed, most EU member states face ageing populations who require care, and labour shortages are on the rise jeopardising the green transition. European economies demand migrant workers to address these challenges. Hence the need for more legal migration pathways. Legal pathways may also help to decrease the use of irregular pathways, unsafe and to the benefit of smugglers.

Besides funding EU Talent Partnerships, and the proposed EU Talent Pool Regulation, so far two legal migration Directives have seen a recast: the Blue Card Directive 2021/1883/EU and the recast Single Permit Directive 2024/1233/EU replacing Single Permit Directive 2011/98/EU. The recast entered into force on 21 May 2024 and Member States have until 21 May 2026 to transpose the changes into national law. This blog critically assesses the Recast Single Permit Directive.

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