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 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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By Paula García Andrade, Associate Professor,  Universidad Pontificia Comillas, Eleonora Frasca, Université catholique de Louvain (UCLouvain)

The Memorandum of Understanding between the EU and Tunisia:

Issues of procedure and substance on the informalisation of migration cooperation

On 16 July 2023, the European Union and Tunisia signed a Memorandum of Understanding (MoU) “on a strategic and global partnership” whereby, in short, the EU engages to disburse direct budgetary support and accelerate EU funding with a view to strengthening cooperation with Tunisia in macroeconomic stability, economy and trade, renewable energies and people-to-people contacts, in exchange for Tunisia’s cooperation on migration control. In particular, Tunisia’s commitments relate to the prevention of migrant departures by sea, the fight against migrant smuggling and trafficking as well as the return of foreigners from Tunisia to their countries of origin. In turn, the EU promises to enhance Tunisian citizens’ mobility to the Member States. 

Regarding its nature, the EU-Tunisia MoU is yet another illustration of the process of informalisation of international law-making to which the EU and its Member States significantly contribute, and of the proliferation of soft law instruments particularly in the external dimension of the EU migration policy. 

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Dr Meltem Ineli-Ciger, Associate Professor, Suleyman Demirel University Faculty of Law

Over the years, the EU-Turkey Statement of March 2016 and particularly EU funding have notably increased Türkiye’s detention capacities, raising questions about the EU’s support to the establishment and widespread use of alternatives to immigration detention in Türkiye. Türkiye’s recent amendments to its main asylum and migration law introduced seven alternatives to immigration detention, aiming to uphold the rights of migrants and reduce detention reliance. This shift necessitates academic scrutiny. This post provides a brief overview of alternatives to detention in Türkiye and argues that the EU’s support for alternatives to detention in Türkiye is at odds with the EU’s externalisation policies and containment focus in these policies.

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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.

The ruling (R (on the application of AAA (Syria) and others) (Respondents/Cross Appellants), [2023] UKSC 42), emanates from an appeal concerned with the Home Office’s policy that asylum seekers in the UK should not have their claims considered in country, but should instead be sent to Rwanda to claim asylum there. With their claims being decided by the Rwandan authorities; if their claims are successful, they will be granted asylum in Rwanda (para 1). The policy is based on a Memorandum of Understanding between the UK and Rwandan governments and two Notes Verbales including assurances by the Rwandan Government (para. 8). The Supreme Court reminds us that the MoU is not binding in international law, that it does not create or confer any right on any individual, and that compliance with it is not justiciable in any court of law (para. 12).

In a unanimous ruling, the Supreme Court held that the UK-Rwanda scheme is contrary to the principle of non-refoulement (para 105). The present commentary will highlight three key strands in the Court’s reasoning: 1) the legal foundations of the principle of non-refoulement; 2) the assessment of Rwanda as a safe third country; and 3) the role of the judiciary in scrutinising government assessments on the designation of third states as safe.

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