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

By Paula García Andrade, Universidad Autónoma de Madrid

In spite of its manifest political importance under the New Pact on Migration and Asylum and its constant topicality, cooperation with third countries might not appear as a straightforward subject of attention for this Blog Series, devoted to the internal EU legal acts recently adopted as legislative expression of the Pact. When approaching this external dimension and its contentious partnerships, our focus normally spotlights those international instruments of quite varied form and substance that the EU agrees on with countries of origin and transit. This contribution will however show, in three different steps, how the external dimension occupies, at this occasion, a prominent role in this internal legislative package and how ‘the internal’ and ‘the external’ in these policies seem even more intertwined.

Firstly, in opposition to the lasting controversies over the diverse legislative dossiers on the ad intra aspects of the Pact, cooperation with third countries can be considered its consensual element (1). As we will see, this might be explained because of the essential – or, put it differently, instrumental – nature of the external dimension for the achievement of the objectives of the EU migration and asylum policies, but also because seeking solutions externally may give a (false) impression of effectiveness that overclouds the inability to achieve consensus on how to manage migration and asylum within the Union.

Secondly, although its relevance has been constantly underlined at the highest political levels, the external dimension had not received yet a ‘legal blessing’ until the adoption of the Asylum and Migration Management Regulation (EU) 2024/1351 (AMMR), which proceeds to its formalization and substantive definition (2). Assuming that any sort of legal codification is never done to everyone’s taste, the implications of making explicit, in secondary law, the importance of this external dimension shall be assessed.

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POST 9 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Prof. Francesco Maiani, University of Lausanne

Introduction

As the Commission observed in 2020, “[t]here is currently no effective solidarity mechanism in place”. This is the cause of many woes for the Common European asylum system (CEAS): geography, historical legacies and varying levels of attractiveness result in Member States facing highly asymmetrical burdens in implementing EU migration law. Absent an effective scheme guaranteeing a “fair sharing of responsibility”, per Art. 80 TFEU, CEAS law tends to be applied in light of national interests, with dire consequences for its integrity. Member States faced with large and/or indeterminable liabilities may outright defect as evidenced by instances of “waving through” or, more tragically, of illegal push-backs at the external and internal borders.

The Dublin system is part of the problem, not the solution, and if anything the Asylum and Migration Management Regulation (EU) 2024/1351 (hereafter AMMR) will strengthen its burden-concentrating effects through a mix of anti-secondary movement rules, shortened deadlines for take charge requests, facilitated take backs, and the introduction of longer-lasting, “stable” responsibility.

Any hopes of having a more equitable and better-functioning CEAS therefore hinge on the new solidarity mechanism introduced by the AMMR. The following lines try to tackle its key aspects successively. Special attention will be devoted to the way in which the new provisions attempt to reconcile the “mandatory” character of the mechanism with its “flexibility” (see recital 22).

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POST 8 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

The spectre of asylum procedures in third states has been haunting EU asylum policy since its inception. The London Resolutions of 1992 promoted the idea. Ten years later, the British government under Tony Blair (Labour) sparked a lively political debate. So far the idea has never been put into practice on a larger scale, with the exception of the EU-Turkey-Statement to which we shall come back. The scarcity of practical experience is one factor explaining the startling mixture of enthusiasm and distrust any debate about the topic inevitably raises. The idea is bound to gather momentum during term of the next European Commission. 

To prevent confusion, we should distinguish asylum procedures abroad (‘external processing’) from ‘safe third country’ schemes. The former (‘external processing’) concerns regular European asylum procedures in a country outside the EU. The Italian ‘Albania model’ follows that rationale. Two centres are currently being established in Albania where Italian officials will undertake regular asylum procedures, presumably via videoconferencing. Beneficiaries of international protection will be relocated to Italy, as will returnees whenever (voluntary) return fails in practice.

By contrast, the British ‘Rwanda plan’ was supposed to send asylum applicants who had entered the UK irregularly to Rwanda on the basis of an inadmissibility decision by the British authorities. They will receive an asylum procedure by the Rwandan authorities in accordance with domestic laws, without the option of eventual legal entry into the UK. The ‘safe third country’ provision in the new Asylum Procedures Regulation (EU) 2024/1348 follows the basic contours of that project.

In its 2024 manifesto, the European People’s Party (EPP), ‘advocate(s) a fundamental change in European asylum law’ on the basis of the safe third country concept (here, p. 6). The outgoing Commission President supports the plan half-heartedly. She explicitly lent her support to ‘smart’ policies in a letter to the European Council, whose strategic vision for 2024–27 has recently called upon the EU institutions to ‘consider new ways to prevent and counter irregular migration’ (here, Annex). Such references to ‘smart’ and ‘new ways’ are shorthand for the involvement of third states—an idea that has been pushed by Italy, Denmark, the Czech Republic, Austria, the Netherlands, and several other governments for some time.

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POST 7 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

Lyra Jakuleviciene, Professor at Mykolas Romeris University, Vilnius

Blogpost prepared as part of a project “Establishment of Centers of Excellence at Mykolas Romeris University“, funded by the State Budget of Lithuania, implemented under the initiative “Centers of Excellence Initiative” of the Ministry of Education, Science and Sports of the Republic of Lithuania.

The New Pact on Migration and Asylum  introduces screening of third country nationals at the external borders (hereafter Screening Regulation, Regulation). The initial objective of this new instrument is to speed up the asylum and return procedures. But will this new procedure at the borders facilitate the processing of asylum and return cases, or will it serve as a control measure and raise more legal issues?

The screening procedure will involve six elements: (a) preliminary health and vulnerability checks; (b) identification or verification of identity based on information in European databases; (c) registration of biometric data (fingerprints and facial image) in the databases; (d) security check through a query of relevant national and Union databases; (e) screening form containing information on the person; (f) referral to the asylum or return procedure.

Civil society organisations have argued (here and here) that the screening procedures will increase cases of pushbacks, detention and constrain access to examination of merits, as it will be implemented together with the ‘non-entry’ fiction making it easier to remove persons as if they are outside the EU law reach. Against this backdrop, this blog post explores to what extent the instrument facilitates the asylum and return procedures or rather generates  legal problems and if the latter is the case, whether there is an effective remedy against these concerns. It will do so by focusing on the shift of approach towards asylum seekers; possible implications of screening and use of ‘non-entry’ fiction, including access to the asylum procedure; procedural guarantees; reception conditions; and remedies.

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POST 6 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

Prof. Francesco Maiani, University of Lausanne

“Solidarity” and “responsibility” were dominant themes in the discussions that led to the new Pact. During the crisis, responsibility foundered amidst falling standards and wave-through practices, while solidarity was shown to be tenuous indeed. After the crisis, failure to find an agreed balance between responsibility and solidarity sealed the fate of the 2016 Commission proposals.

In 2020, the Commission went so far as to state that “[t]here is currently no effective solidarity mechanism in place, and no efficient rule on responsibility”, and promised a “fresh start” entailing the “aboli[tion of] the Dublin Regulation” and the institution of a new solidarity mechanism.

The new Asylum and Migration Management Regulation (EU) 2024/1351 (hereafter “the Regulation” or “AMMR”) keeps both promises, formally speaking: on July 1, 2026, it will abolish the Dublin III Regulation (EU) No 604/2013 (hereafter “DRIII”) and introduce new rules on responsibility as well as a new governance framework and permanent solidarity mechanism (see Art. 1 and 83ff AMMR).

Will this have a “transformative impact” and “[set] the stage for fair, efficient, and sustainable migration management over the long term” as claimed? While the proof of the proverbial pudding will be in the eating, I will attempt to gauge the main innovations – or lack thereof – introduced by the Regulation. In this post, I will address the new Dublin rules. A forthcoming post will examine the solidarity mechanism and the governance framework intimately linked to it.

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POST 5 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

Dr Meltem Ineli-Ciger, Associate Professor, Suleyman Demirel University Faculty of Law; Migration Policy Centre Associate, European University Institute

Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 (hereinafter Crisis Regulation) establishes a legal framework for Member State responses to exceptional migration-related circumstances, including mass influx of refugees and migrants, force majeure situations such as pandemic, and even politically motivated manipulation of migratory movements. The extensive amendments the Parliament introduced, as well as the merging crisis and instrumentalisation issues, have arguably rendered the Crisis Regulation a labyrinthine framework. The numerous references to other EU Regulations further contribute to its complexity. This post makes a critical, up-to-date legal analysis of the Crisis Regulation, particularly its derogation regime applicable in crisis and force majeure situations (instrumentalisation will be covered in another post by Iris Goldner Lang). It also discusses its potential effectiveness in managing future large arrivals in the EU. I argue that the Crisis Regulation is a mixed bag: while derogations regarding border procedures raise concerns and may violate fundamental rights enshrined in the EU Charter of Fundamental Rights and relevant international instruments such as the Refugee Convention, some positive elements also emerge. These positive elements include a new solidarity mechanism, the possibility of implementing prima facie recognition of international protection applications and the possibility of suspending Dublin transfers to the Member States facing exceptional asylum pressures, which can contribute to protecting asylum seekers during mass influx and force majeure situations. 

No comprehensive, objective and up-to-date legal analysis of the Crisis Regulation exists (although there is an impact assessment of the initial Commission Proposal). Notably, Peers has clarified critical aspects of the latest Proposal, while comments and critiques have been offered by NGOs such as ECRE, Amnesty and MSF. In contrast, much controversially (see objections by Hathaway and Crisp), the UNHCR and IOM welcomed the adoption of the entire Pact, including the Crisis Regulation. The Crisis Regulation is not black and white. The Regulation, especially those derogations concerning border procedure, are extremely problematic though the foreseen solidarity mechanism, the possibility to grant prima facie international protection status to those seeking international protection, and the possibility to suspend Dublin transfers can facilitate responding to large-scale influx and force majeure situations.

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