Professor Steve Peers, Royal Holloway, University of London
Photo credit: Sam Zidovetski, via Wikimedia Commons
(Last amended June 18 2024: amendments marked by asterisks)
Just before Christmas, the
European Parliament and the Council (the EU body consisting of Member States’
ministers) reached
a deal on five key pieces of EU asylum legislation, concerning asylum
procedures, the ‘Dublin’ system on responsibility for asylum applications (also known as the 'Asylum and Migration Management Regulation', or AMMR), the
‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum
seekers, and derogations in the event of crises. These five laws joined the
previously agreed revised laws on qualification of
refugees and people with subsidiary protection, reception
conditions for asylum-seekers, and resettlement of
refugees from outside the EU. Taken together, all these laws comprise a ‘package’
of new or revised EU asylum laws, which was formally adopted on 14 May 2024, and published in the EU Official Journal on 22 May 2024.*
I have looked at all the new legislation on this blog in a series of blog posts, which are a preview of a forthcoming article.* This is the eighth and final post in the series, on the Regulation on derogations in the event of a crisis, which derogates from the asylum procedures Regulation and the revised Dublin Regulation. It also includes discussion of the ‘crisis’ rules in the Regulation on a borders return procedure, and conclusions on the asylum package as a whole.
The previous blog posts in the series
concerned the new qualification
Regulation (part 1), the revised reception
conditions Directive (part 2), the new Regulation on resettlement
of refugees (part 3), the revised Regulation on Eurodac (part
4), the Regulation
on screening of migrants (part 5), the revised
Dublin Regulation/AMMR (part 6), and the procedures
Regulation (part 7).*
The new package joins the previous Regulation
revising the powers of the EU asylum agency, which was separated from the
package and adopted already in 2021.* (On EU asylum law generally, see my asylum law
chapter in the latest edition of EU
Justice and Home Affairs Law).
The crisis Regulation
The existence of a free-standing
Regulation on exceptions in the event of a crisis situation is new, although
there is also a Directive on temporary protection
in the event of a mass influx (invoked
after the Russian invasion of Ukraine) and some derogations to address large
numbers of asylum applications in other EU asylum laws. There were also emergency
laws on relocation of asylum seekers, to deal with the perceived refugee
crisis in 2015, but they expired in 2017.
Ireland has opted out of the
crisis Regulation, and the Regulation does not apply to Denmark, although
Denmark (and non-EU Schengen associates) will be covered by the crisis rules in
the border returns procedure Regulation.
The legislative process leading
to the 2024 Regulation began with a proposal in 2020, as part of the relaunch
of the proposed EU
Immigration and Asylum Pact.
Like most of the rest of the new
package, the Regulation will not apply for two years - on 1 July 2026.* The rationale
of the Regulation is that ‘[t]he EU and its Member States may be confronted
with migratory challenges that can vary greatly, in particular with regard to
the scale and the composition of the arrivals. It is therefore essential that
the Union be equipped with a variety of tools to respond to all types of
situations’, which are ‘complementary’ to the provisions in the 2024 Dublin
Regulation and the temporary protection Directive, ‘which may be used at the
same time’. (The original proposal would have repealed the temporary protection
Directive)
General Provisions and Scope
Among other things, as noted already,
the crisis Regulation provides for derogations from the Dublin Regulation and
the Procedures Regulation. However, it ‘shall not affect the fundamental
principles and guarantees’ in those Regulations, and the ‘[t]emporary measures’
it provides for are subject to necessity and proportionality, must ‘be
appropriate to achieving their stated objectives’, ensure the rights of
asylum-seekers and those with international protection, ‘and be consistent
with the obligations of the Member States under the Charter, international law
and the Union asylum acquis.’ It ‘shall be applied only to the extent
strictly required by the exigencies of the situation, in a temporary and limited
manner and only in exceptional circumstances’
The preamble emphasises that
besides the derogations, other EU asylum law applies fully. Furthermore,
the exceptions in the Regulation cannot be invoked by Member States unilaterally:
Member States can apply the provisions of the Regulation ‘only upon request and
to the extent provided for in’ the Council Decision triggering it.
As for its scope, the Regulation
applies to two types of ‘crisis’ and to ‘force majeure’, as further defined. The
first type of crisis is a ‘mass arrival’:
an exceptional
situation of mass arrivals of third-country nationals or stateless persons in a
Member State by land, air or sea, including of persons that have been disembarked
following search and rescue operations, of such a scale and nature, taking into
account, inter alia, the population, GDP and geographical specificities of the
Member State, including the size of the territory, that it renders the Member
State’s well-prepared asylum, reception, including child protection services,
or return system non-functional, including as a result of a situation at local
or regional level, such that there could be serious consequences for the
functioning the Common European Asylum System
The second type of crisis is an ‘instrumentalisation’
crisis, ie Belarus shoving people across the border:
where a third
country or hostile non-state actor encourages or facilitates the movement of
third-country nationals or stateless persons to the external borders or to a Member
State, with the aim of destabilising the Union or a Member State, and where
such actions are liable to put at risk essential functions of a Member State,
including the maintenance of law and order or the safeguard of its national
security.
The preamble qualifies this
definition: non-state actors ‘involved in organised crime, in particular
smuggling, should not be considered as instrumentalisation of migrants when
there is no aim to destabilise the Union or a Member State’; and ‘[h]umanitarian
assistance should not be considered as instrumentalisation of migrants when
there is no aim to destabilise the Union or a Member State’.
In this context, Member States can
ask to trigger the Regulation ‘in particular where there is an unexpected
significant increase in the caseload of applications for international protection
at the external borders’. And they can ‘only’ use the derogations in any Council
decision triggering the Regulation to people ‘who are subject to instrumentalisation
and who are either apprehended or found in the proximity of the external border’
– as distinct from internal borders – ‘in connection with an unauthorised
crossing by land, sea or air, or who are disembarked following search and
rescue operations or who have presented themselves at border crossing points’.
But the preamble to the Regulation also states that in this context, ‘effective
and genuine access to the international protection procedure must be ensured in
accordance with Article 18 of the Charter and the [Refugee] Convention.’
Finally, ‘force majeure’
means ‘abnormal and unforeseeable circumstances outside a Member State’s
control, the consequences of which could not have been avoided notwithstanding
the exercise of all due care, which prevent that Member State from complying
with obligations under’ the procedures and Dublin Regulations. The preamble
gives the examples of pandemics and natural disasters.
Process
The process of triggering the Regulation
starts with a request from a Member State, which believes it is
in a crisis or force majeure situation and so sends a request to the Commission.
Following this request, the Commission has two weeks to assess it and
adopt a decision determining whether that Member State is indeed in a
crisis or force majeure situation. Next, at the same time as adopting that
decision, the Commission must, ‘where appropriate’, propose a further
Council implementing decision to benefit that Member State; the Council
must also act within two weeks.
The Council decision
must set out some combination of derogations from EU asylum law, a ‘solidarity
response plan’, or an identification of which non-EU citizens are being ‘instrumentalised’.
Also, the Commission can adopt a
recommendation urging that Member State to apply an expedited procedure for applications
likely to be well-founded, in which case the Member State must decide on those
applications within four weeks, derogating from the usual time limits in the
procedures Regulation (see part 7).
The Council decision will
not apply indefinitely. It can apply only for a year in total:
initially three months, with a three month extension confirmed by the Commission;
then another Council decision amending it or prolonging it for three months,
again with a possible three month extension if the Commission agrees. It is not
clear how soon afterwards the Member State could ‘go back to the well’ to ask for
another Council decision. The Commission and Council must monitor whether the situation
of crisis or force majeure continues to exist, and the Commission ‘shall pay
particular attention to the compliance with fundamental rights and humanitarian
standards’. The EU Solidarity Coordinator, whose post was set up by the 2024
Dublin Regulation, also plays a role.
Solidarity Measures and
Derogations
A Member State facing a crisis situation
can request any of the various solidarity measures defined in the 2024 Dublin Regulation
(see part 6): relocation (including of recent beneficiaries of international protection),
financial contributions (including to non-EU states), and alternative measures.
If the relocation pledges fall short, there are a number of rules on offsets (ie
other Member States taking responsibility for applicants that they would otherwise
have transferred to the Member State in crisis).
As for derogations from other
EU asylum laws, the first potential derogation is from the procedures
Regulation (see part 7), in any crisis or force majeure situation: Member
States can have up to four weeks to register asylum applications,
instead of five days. Next, there are a series of possible derogations
from the borders procedure in the procedures Regulation: an extra
six weeks to apply the procedure (on top of the usual 12 week maximum);
an exemption from the obligation to apply the procedure to applicants
from countries with low recognition rates; a change to the threshold
of the ‘low recognition rate’ rule (either a reduction or an increase to
the threshold); or deciding on the merits of all ‘instrumentalisation’
cases in the border procedure, subject to detailed safeguards for minors
and families and those with special procedural or reception needs, and protection
of ‘the basic principles of the right to asylum and the respect of the
principle of non-refoulement as well as the guarantees’ in Chapters I and II of
the procedures Regulation.
Third, in the event of force
majeure or ‘mass arrival’ crises, the beneficiary Member State can extend
a number of deadlines in the Dublin rules, accompanied by a delay
in Dublin transfers to that Member State. Finally, in the case of ‘mass
arrival’ crises, a Member State may be relieved from certain obligations
to take back asylum applicants under the Dublin rules.
Border Return Procedure Regulation
The Regulation on a border return
procedure provides that in the event of a crisis, as defined in the crisis
Regulation, those who are subject to the border return procedure in that
Regulation, because their applications were rejected in the border procedure in
the procedures Regulation, and they have no right to remain, can be kept in the
border return procedure for an additional six weeks – on top of the ordinary 12
weeks allowed for in the border return procedure Regulation. But as with the
ordinary application of that Regulation, if they are not expelled before this
extra time runs out, any detention during this period counts toward the detention
time limits in the Returns Directive (see further part 7).
The procedural rules in the main crisis
Regulation apply – ie a Member State cannot extend the border returns procedure
unilaterally, but needs a Council decision authorising it. In that event, though,
the extension of the border returns procedure can apply even to those whose
asylum application was rejected before that extension was authorised.
Assessment of the crisis
Regulation
To what extent, as some seem to
believe, can Member States simply end the right to asylum in the
event of a crisis or force majeure? In principle, not at all. The derogations
in the exceptions and border return procedures Regulations are for a limited
time, and only permit delays in registering applications, extensions of the
Dublin deadlines, and longer periods to apply the border procedure or border
return procedure – neither of which terminate the right to asylum as such.
This is reinforced by the provisions of the Regulation that emphasise that
other provisions of EU law, along with human rights obligations, still apply
when the derogations are used. This is, of course, consistent with the Charter
rights and Treaty obligations relating to human rights and asylum, including
non-refoulement.
Moreover, the wording of the
Regulation suggests that Member States can only derogate from EU asylum law
to the extent provided for in this or other EU measures, confirming the
prior case law of the CJEU (Case
C-72/22 PPU; the Court has also ruled in that and many other cases that the
‘law and order’ clause in Article
72 TFEU does not give Member States carte blanche to derogate from EU asylum
law). In particular, the Court ruled that, in situations of instrumentalization,
Member States could not simply detain asylum-seekers on the grounds of
illegal entry (as it is not a ground for detention under the reception
conditions Directive, which remains the case: see part 2) or refuse to
consider their asylum applications. The crisis Regulation does not
provide for either of those measures as such; but Member States may attempt similar
measures indirectly – by detaining people on border procedure grounds, and by
closing border posts pursuant to the amendments to the Schengen Borders Code –
although that and other measures regarding ‘instrumentalisation’ in the recent Borders Code amendments are subject to human rights safeguards.
Overall assessment of the asylum
package
Taken as a whole, the 2024 EU asylum
laws are obviously not a shift towards a more liberal legal framework for asylum
and migration control. Still less are they a shift toward a radical abolition
of border control, as some on the populist right are likely to claim. But nor can
they plausibly be characterised, as some on the opposite side of the political
spectrum claim, as a de facto abolition of the right to asylum in the EU
– at least on paper. Yet it is possible that having been given an inch, Member
States will take a mile; and given the record of its approach to the EU/Turkey
and Italy/Albania agreements, the EU Commission may do more to help Member States
in this goal than to hinder them. In that context, the role of national courts,
including their requests for preliminary rulings from the CJEU, may continue to
be crucial as regards the interpretation and application of EU asylum law.
Analysing the letter of the new
laws (as distinct from how Member States might try to apply them), the moves
towards sanctions for secondary movements and greater harmonisation of the law –
rationalised as an indirect method of dissuading secondary movements – are consistent
across the package. This is a reversal of the usual EU paradigm, which
justifies harmonisation of law as a measure to facilitate movement across
borders, not deter it.
The sanctions for secondary
movement (alongside applying the Dublin rules for longer, and simply locking more
people up to prevent any movement at all) entail the (conditional) loss of
benefits and access to employment, the reset of the clock on obtaining EU
long-term residence status, and (crucially) the deemed withdrawal of asylum
applications. There is a deep inconsistency between encouraging greater
negative mutual recognition of asylum refusals, while doing very little to
promote positive mutual recognition (transfer of protection, mobility of international
protection beneficiaries), despite the Treaty commitment to a uniform asylum status
‘valid throughout the Union’. As for harmonisation, it is not complete, but it
has gone a long way, with the bonfire of most options for Member States and a lot
of additional detail added to ensure that decision-making diverges less.
From the human rights
perspective, it is the harmonisation of procedural standards that raises the biggest
concerns. As we have seen, the restriction of appeals against Dublin transfers,
a number of the deadlines to apply for appeals, and the curtailment of automatic
suspensive effect of appeals are all problematic – depending on how the CJEU
might approach them in light of its case law on effective remedies. On the
merits, there are various default protections against non-refoulement, but it
is uncertain how they will work in practice. And while the multiple fast track
procedures are all subject to the observance of basic standards on paper, there
are doubts about whether that is true in practice – leaving the possibility
that the protections of EU asylum law will for many be a form of Potemkin village.
There is nonetheless the risk
that, since NGOs have asserted that the new package destroys the right to
asylum, some governments may interpret it as a licence to do just that. In this
area, the problem with ‘crying wolf’ may not be so much that people stop believing
your warnings – but rather that people use your cries as an inspiration to develop
a wolf-based asylum policy.
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