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 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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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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