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

By Barbara Mikołajczyk, professor at University of Silesia

Introduction 

Third-country nationals (TCNs) arriving at the borders of the European Union and seeking international protection may well be unfamiliar with the language, culture, customs and, above all, the law. Therefore, accessible information, legal counselling, assistance, representation and exemptions from fees and costs (in general, legal support) are sine qua non conditions for the enjoyment of the human right to asylum and access to justice. The sources for providing legal support for asylum seekers are embedded in Article 16 of the 1951 Convention Relating to the Status of Refugees and the international human rights law. The Geneva Convention guarantees refugees equal treatment with nationals in matters of court access. However, given that recognising refugee status is a declaratory act (UNHCR Handbook, 28),  migrants seeking international protection should also enjoy this right. The Geneva Convention does not mention asylum procedures or administrative procedures, which precede the court stage and are of principal importance on the way to international protection.    

Meanwhile, the efficiency and fairness of asylum procedures depend, to a large extent, on the legal support provided to migrants. Moreover, there is no doubt that the adoption of guarantees in this regard directly impacts compliance with the principle of non-refoulement. The importance of access to legal advisors and legal assistance for asylum seekers was stressed by the European Court of Human Rights considering the right to an effective remedy (Article 13 of the European Convention on Human Rights) in the context of collective expulsions, Dublin procedures, accelerated procedures, and push-backs, for example in M.S.S. v. Belgium and Greece, Hirsi Jamaa and Others v. Italy, Sharifi and Others v. Italy and Greece, Khlaifia and Others v. Italy, Asady and Others v. Slovakia, M.K. and Others v. Poland, D.A. and Others v. Poland, S.H. v. Malta. In M.S.S. v. Belgium and Greece, the Court held, among other things, that the lack of free assistance and shortage of legal advisors constituted an obstacle to a remedy and fell within the scope of Article 13, particularly for asylum seekers (sec.301). 

In turn, the Court of Justice of the European Union (CJEU), in the DEB case, considering the personal scope of the right to an effective remedy and to a fair trial contained in Article 47 of the Charter of Fundamental Rights, stressed that this provision “provides specifically that legal aid is to be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice” (sec. 31). Thus, “those” means every individual and legal person in need.  

Moreover, access to and effectiveness of legal support in asylum procedures may also be analysed in the light of the right to good administration (Article 41 of the Charter), as in the H.N. case, especially since the New Pact on Migration and Asylum introduced the provisions on legal counselling in the “administrative procedure.” 

The instruments adopted in December 2023 as part of the New Pact on Migration and Asylum contain provisions on legal support at various stages of applying for international protection. Since 2016, they have been evolving constantly through negotiations and criticism from NGOs, including ECRE/ELENA. Significant and surprising changes were introduced on the final straight of talks, most notably in the Asylum Procedures Regulation (EU) 2024/1348. 

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Post 3 of the series of the Odysseus blog on the Pact on Migration & Asylum

Prof. Vincent Chetail & Mariana Ferolla Vallandro do Valle, PhD candidate Geneva Graduate Institute of International and Development Studies

This work was supported by the Nccr—on the move funded by the Swiss National Science Foundation grant 205605.

The images of boats packed with people arriving on the shores of Europe has fixed public imagination and continues to frame the political debate. According to the rumor spread by mass media and politicians, there is an invasion of ‘economic migrants’ who are abusing asylum procedures to enter into the EU territory irregularly. Although this rhetoric is all but true, it represents the main premise of the Pact on Migration and Asylum. A complicated array of regulations and directives has been adopted in April 2024 to address the ‘increased pressure resulting from the arrivals of mixed flows with a high proportion of those with low chances of receiving international protection’. 

Following this stance, the official purpose of the Asylum Procedure Regulation (APR), as proclaimed in its preamble, is ‘to streamline, simplify and harmonise the procedural arrangements of the Member States by establishing a common procedure for international protection in the Union”. Whether the new Regulation has achieved this threefold objective remains disputable (see the contributions of Jens Vedsted-Hansen and of Philippe De Bruycker in this blog series). One thing is sure, however: asylum procedures essentially serve as a tool of migration control at the expense of refugee’s rigths (for a similar account of the previous APR’s drafts, see here, here, here, and here).

This strategy is not new and has long been documented (see e.g. here, here, here, and here). Nonetheless, the APR is exacerbating it at an unprecedented scale. Despite many warnings from the UN Special Rapporteurs, the UNHCR and civil society organizations during the drafting of the Regulation, its final text maintains most of its criticized provisions as well as its focus on migration management as an integral component of asylum procedures.

This blog post argues that the procedural devices introduced by the new Regulation jeopardise the right to seek asylum and the principle of non-refoulement. Summary rejection of asylum claims has become the new normal through the generalization of accelerated and border procedures. Despite a core common of procedural guarantees, the double standard between these special procedures and the ordinary one exacerbates the risk of illegal refoulement.

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Post 2 of the series of the Odysseus blog on the Pact on Migration & Asylum

By Jens Vedsted-Hansen, Aarhus University

In light of the tremendous aspirations for the future of harmonisation of EU Member States’ asylum procedures when the process of reforming the Common European Asylum System was launched, it seems indispensable to examine whether and how the Asylum Procedure Regulation (EU) 2024/xx now adopted by the EU co-legislators is likely to fulfil the aims underlying the initial proposal for a Regulation. In the following, we shall attempt to elucidate the degree of harmonisation achieved with the new Regulation. Particular attention will be paid to the ‘special procedures’ according to Section IV of Chapter III of the Regulation which concerns the administrative procedure.

Thus, it will be considered whether harmonisation of this stage of the asylum procedure is likely to increase to the level of ‘full convergence’ as initially intended by the Commission. Under the Regulation, ‘special procedures’ encompass the application of the asylum border procedure, the accelerated examination procedure as well as the processing of subsequent applications. Admissibility decisions may be taken as part of the asylum border procedure, and the concepts of ‘first country of asylum’ and ‘safe third country’ as well as the novel ‘notion of effective protection’ (separately dealt with in the adjacent Section V of Chapter III of the Regulation) are going to provide the basis for a significant part of the decisions rejecting applications as inadmissible. 

The rules governing these specific procedural devices and concepts call for attention in order to understand the degree of future EU harmonisation of asylum procedures. Is the scope of ‘special procedures’ going to be expanded to the detriment of harmonisation? To which extent will the application of such procedures, in particular the asylum border procedure, become mandatory? Can Member States be expected to apply the accelerated examination procedure more coherently? As we shall see, while the Asylum Procedure Regulation introduces new mandatory rules, they may not necessarily result in full and effective harmonisation as they will in some instances become modified in practice due to various aspects of Member States’ procedural autonomy.

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Post 1 of the series of the Odysseus blog on the Pact on Migration & Asylum

By Philippe De Bruycker, Professor at Université Libre de Bruxelles & Founder and Coordinator of the Odysseus Network 

The instruments adopted as part of the pact on migration and asylum will be extensively covered in the new courses of the Odysseus Summer School, taking place from 1 to 12 July 2024

Alleluia! The white smoke that rose above the European quarter in Brussels early in the morning of 20 December 2023, same as for the election of the Pope, was a signal that the EU policy makers would receive the New Pact on Migration and asylum as a Christmas gift. Following sleepless nights of negotiations under pressure to succeed, combined with fear of failure because there is “no agreement on anything as long as there is no agreement on everything”, the EU remained true to itself with the dramatic method it uses to adopt a broad compromise along a package of measures.

To conduct an inventory of what has been exactly adopted under the flagship of the pact is not such an easy task (see here for a recent presentation by the Commission). According to the Commission communication of 23 September 2020 titled “A new Pact on Migration and Asylum”, it is actually so extensive that it is difficult to identify its content and limits as it embraces asylum law, borders policy, legal migration, and the fight against smuggling, including the external dimension of those policies. More precisely, the Commission tabled five main legislative proposals together with four soft law instruments respectively on screening, migration and asylum management, asylum procedures, Eurodac and crisis and force majeure. Proposals such as the revision of the single permit directive politically agreed on 12 April 2024 and of the long-term residence directive that is still pending are presented as elements of the pact, and indeed the Commission explicitly quoted  them Commission in its Communication of 23 September 2020. Other instruments such as the revision of the Schengen borders Code agreed in February 2024 or the recast of the return directive still pending are formally not considered as being part of the pact, despite their close links with its content. Finally, one has to keep in mind four other instruments, respectively on reception conditions, qualification, resettlement and the asylum agency, that go back to 2016. These instruments  will only be formally adopted in 2024 with the reset of the New Pact proposals due to “the package approach” as explained below. On top, the European Parliament enumerates the amendment of the Interoperability Regulation and of ECRIS-TCN Regulation that the Commission proposed in liaison with the screening regulation as being part of the pact, but the other institutions do not quote this very specific instrument. 

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By Professor Elspeth Guild, Queen Mary University of London and Valsamis Mitsilegas, Professor of European and Global Law, University of Liverpool

The Rwanda policy to send asylum seekers from the UK to a country in Africa for reception and determination of their claims is a perverse result of Brexit. As long as the UK was part of the EU, the Dublin system of allocating responsibility for asylum seekers across the then 28 Member States diminished the possibility of secondary movements within the area (notwithstanding the generally weak application of the system). The UK’s departure from the EU and its inability to enter into a new similar agreement with France has resulted in those asylum seekers applying in the UK but who have travelled through France to be able to have their claims determined in the UK without the risk of being sent back to France. The UK Government’s ‘solution’ to this ‘problem’ is to send them to Rwanda. The project is not original nor a concoction of UK politics. A similar project was contemplated in Denmark in 2021 but abandoned in 2023 for reasons which were never fully fleshed out (about the policy of Denmark see here). It seems that Rwandan officials had been suggesting to a variety of EU states (and clearly the UK) the possibility as early as 2020. 

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Valsamis Mitsilegas,  Professor of European and Global Law, University of Liverpool 

Previously published in the blog of University of Liverpool’s School of Law and Social Justice.

A key feature of the EU policy to prevent migrants from reaching the EU external border has been the criminalisation – and in essence the overcriminalisation- of facilitation of unauthorised entry, transit and stay. The EU criminal law framework dates back from over twenty years ago, in the third pillar, pre-Lisbon era. This framework is known as the EU ‘facilitators’ package’ and consists of a (then) first pillar Directive on the facilitation of unauthorised entry, transit and residence accompanied by a (then) third pillar Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence confirming that the conduct defined as facilitation in the Directive will be treated as a criminal offence by EU Member States. The criminalisation of facilitation is very broad.  In terms of the facilitation of irregular entry or transit, criminal sanctions will be imposed on any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens (Article 1(1)(a) of the facilitation Directive combined with Article 1(1) of the facilitation Framework Decision.).

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