The new EU asylum laws, part 8: the ‘crisis’ Regulation – and conclusions

 

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.

The New EU Asylum Laws, part 1: the Qualification Regulation

 

Professor Steve Peers, Royal Holloway University of London*

Photo credit: Ggia, via Wikimedia Commons

*sentences with an asterisk have been corrected or updated since the original publication of this post. Most recently updated 18 June 2024.  

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, the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. I’ve looked at this new legislation in a series on this blog, based on a forthcoming article.* The other blog posts are: Part 2 (on reception conditions); Part 3 (on the resettlement Regulation); Part 4, (Eurodac); part 5 (on the screening Regulation); part 6 (on Dublin), part 7 (on the asylum procedures Regulation); and part 8 (on the crisis Regulation, plus general comments).* These laws are intended to be part of a ‘package’ of new or revised EU asylum laws. (Update: the European Parliament voted for the changes to EU asylum laws in April 2024, the Council formally adopted them on 14 May 2024, and they were published in the EU Official Journal on 22 May 2024)* 

The 2024 legislation joins the Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* 

The qualification Regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package is in effect a third phase,* although for some reason the EU avoids calling it that.

In each phase, the law on qualification is central: defining what is necessary to obtain refugee status or subsidiary protection status (ie protection other than as a refugee), and setting out what rights people have if they obtain either status. The first phase Qualification Directive was adopted in 2004; the ‘second phase’ Qualification Directive replaced it in 2011. (I analysed the negotiation of the latter Directive here; there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno Lax in EU Immigration and Asylum Law: Text and Commentary, and see also my asylum chapter in the latest edition of EU Justice and Home Affairs Law). The third phase, adopted in 2024, now includes a qualification Regulation.*  

There is CJEU case law on both the first phase Directive and the second phase Directive. It might be argued that the case law is still relevant to the new Regulation, unless the relevant text has been amended; in some cases the Regulation (or the preamble to it) reflects some of that case law.

The UK and Ireland opted in to the first phase Directive, but not the second phase Directive or the proposal for the 2024 Regulation. Of course, the UK is no longer bound by EU law, but Ireland is still bound by the first phase Directive. Denmark opted out of both.

Of course, none of the measures in the package can be fully understood without the context of all the others – which I discuss over the course of this series of blog posts.* For instance, it is possible that the effect of the other measures in the package will be to reduce the numbers of people who would otherwise apply for refugee or subsidiary protection status in the EU, or whose applications will be considered on the merits (the asylum procedures law provides that some applications can or must be considered inadmissible). The qualification law is only relevant to those who get to that stage. And for those who do obtain refugee or subsidiary protection status, they can eventually obtain EU long-term resident status, which inter alia provides for a limited prospect of movement between Member States – and that law is in turn being renegotiated too, separately from the asylum package (my comments on that renegotiation here).

The legislative process leading to the 2024 qualification Regulation started with the Commission proposal in 2016,* as a response to the perceived refugee crisis, followed by EU governments agreeing their position on the proposal, which had to be negotiated with the European Parliament (its negotiating position was set out here). I compared the three institutions’ positions in a blog post here. But this blog post will compare the 2024 Regulation only to the 2011 Directive, although I have updated some of the discussion in my previous blog post where relevant.

Basic issues

The first key issue is the type of law used, which is linked with the degree of harmonisation which the EU seeks in this field. The first and second phase qualification laws were Directives, which mean that Member States were bound to achieve the outcome required but had a choice of form and method. The 2024 law is a Regulation,* which is binding in and of itself, without national transposition.

As for the level of harmonisation, the Directives set a form of minimum standards: Member States could have higher standards, as long as those standards were compatible with the Directives. So they set not only a floor, but also a ceiling: the CJEU judgments in B and D, M’Bodj (discussed here), Ahmedbekova and LW discussed the limits of the power to set higher standards. But this will soon be history: the 2024 Regulation removes the power to set higher standards even with a ceiling, providing instead for uniform standards in principle, although some national options will remain in the text.* (The same two basic changes were also made to the 2013 asylum procedures Directive).*

The new Regulation, reflecting that case law, notes that Member States are however free to retain or establish a separate status of humanitarian protection,* as long as there is no confusion with the (EU harmonised) notions of refugee or subsidiary protection status. People with such national status will largely fall outside the scope of any EU law, although the equal treatment provisions in the recent amendment of the EU single permit Directive (discussed here) will apply to them, and the resettlement Regulation applies aspects of the qualification Regulation to those admitted on a humanitarian basis under the EU resettlement law (see Part 3 of this series).*

In practice the shift toward harmonisation may lead to some lowering of standards overall, due to the absence of the possibility to have higher standards generally (even subject to a ceiling) and the removal of some options, to the extent that Member States are now obliged to (for instance) provide for an ‘internal flight alternative’ in their law,* and to require two criteria (not just one criterion) to be satisfied to apply the ‘particular social group’ ground of refugee protection. But the effect of such changes is qualified: for example, the requirement to apply the ‘internal flight alternative’ rule comes with additional safeguards attached to that rule, and Member States may have had less enthusiasm to apply higher standards for refugees, as compared to the options in EU law to have higher standards for (say) employment and environmental law.

The 2024 qualification Regulation provides that the previous Directive ceases to apply from 12 June 2026, while the new Regulation will apply from 1 July 2026.* There is no explanation of what happens between those two dates, and no transitional rule for applications pending, or status granted, before either of those dates.*  

The refugee parts of the Regulation (like the prior Directives) aim to implement the UN Refugee Convention (which the EU refers to as the ‘Geneva Convention’) in more detail, as regards both the definition of ‘refugee’ and the rights which refugees receive. The case law of the CJEU has often interpreted the Directive in light of the Convention, which seems likely to continue because the Regulation still makes many references to the Convention.

Turning to the details of the Regulation, there are five main elements to the law: common rules (applying to both refugee and subsidiary protection status); the definition of ‘refugee’; cessation, exclusion from and withdrawal of refugee status; the definition and cessation etc of subsidiary protection; and the content of status (ie the benefits people with status receive). This blog post mostly does not discuss the preamble, but keep in mind that the preamble adds some important detail to many of the points in the main text analysed here.

Common rules

Family members of refugees and people with subsidiary protection will be defined slightly more broadly. A ‘family member’ will now include relationships formed outside the country of refuge, not just those formed inside the country or origin. This means, for instance, that the spouse of a Syrian refugee who married him while in Turkey or Lebanon, and the children of that couple born in such countries, would now be defined as ‘family members’. It is still necessary for the family members to be present on the territory in connection with the asylum application, though (as confirmed by the recent CJEU judgment in Afrin – although note that in such cases, the separate EU law on family reunion applies for refugees). 'Family members' will now include dependent adult children.* A minor must be considered unmarried if the marriage would not have been allowed under the Member State’s national law, especially on grounds of age.

The Regulation ‘should’ apply to those covered by the planned new EU law on resettlement of refugees from non-EU countries (according to the preamble); the rules on assessment of asylum applications will expressly apply to them. (In fact, as discussed in Part 3 of this series, the resettlement Regulation will be clearer on this point).* As with the previous Directives – and unlike other EU asylum law measures – there is no provision on the territorial scope of the Regulation.

It will now be mandatory, not optional, for the main burden of proof to rest upon the applicant to show why the claim for refugee or subsidiary protection status is justified; and a new clause in the preamble will reflect the ECJ’s 2014 case law (discussed here) which limits the intrusiveness of Member States’ questioning of the credibility of LGBTI asylum-seekers.  The importance of the asylum seeker applying at the ‘earliest possible time’ will be de-emphasised.

As before, the Regulation will retain the possibility of becoming a refugee or needing subsidiary protection ‘sur place’ – ie because of events which took place after the asylum seeker left his or her country of origin, or due to activities of the applicant since leaving that country. But the exception to this rule will remain optional (‘may’): where the applicant has created the circumstances for use of this provision, Member States may refuse protection. This exception will be widened in two ways (extending it to include subsidiary protection claims, and applying it to initial applications, not just repeat applications), but also subject to a new safeguard (the circumstances created by the applicant must be for the for the ‘sole or main purpose of creating the necessary conditions for applying for international protection’). (For the position under the 2011 Directive, see the recent judgment in Case C-222/22).*

On the other hand, the option to refuse claims because the asylum seeker had an ‘internal flight alternative’ – ie he could have fled to a safe part of the country of origin, like a supposed ‘safe zone’ in Syria – will become mandatory. (The possibility of rejecting a claim because an asylum seeker would arguably have been safe in a different country is the subject of the asylum procedures Regulation). However, there are new safeguards: a strong presumption that the concept cannot apply where the source of persecution is the State; applying the main rules on qualification first; shifting the burden of proof to the authorities, and obliging them to consider contrary arguments submitted by the applicant; more on the personal circumstances of the applicant; a requirement to consider whether the applicant could meet their basic needs; and a specific protection for unaccompanied minors. There is also a new requirement to consider the country of origin information supplied by the EU Asylum Agency. Note that although the CJEU has not yet interpreted the rules on the ‘internal flight alternative’ as such, it has recently ruled that differences in interpretation of the rule between Member States are not a good enough reason to refuse to transfer an asylum seeker to another Member State under the Dublin rules. In that context, it is possible that the additional provisions in the Regulation will lead to a more harmonised interpretation of the rule between Member States.

As for the sources of persecution or protection, the Regulation will retain the current rules in the Directive, replacing a reference to considering whether EU acts define a country as providing effective protection from persecution with a reference to considering country of origin information, including from the EU asylum agency where available.

Definition of ‘refugee’

The Regulation retains the basic idea from the previous Directives – and the UN Refugee Convention – that a ‘refugee’ is someone persecuted because of their race, religion, political opinion, nationality or particular social group, elaborating upon each of these concepts. The definition of ‘persecution’ will not change, but there are some changes to the text on ‘particular social group’: adding a reference to how the group is perceived, dropping a reference to criminal law, and adding a reference to ‘gender expression’. Furthermore, there are some new elaborations of the concept in the preamble, including a reference to the possibility of persecution on grounds of disability. As noted above, all Member States will also now have to require that asylum-seekers show that they both perceive themselves as part of a distinct group and are perceived as different by the rest of society, due to the loss of the capacity to set higher standards. (In the meantime, the CJEU has ruled for the first time on the position of women as part of a particular social group, with a judgment in January on domestic violence – see earlier discussion here – and also a pending case on Afghan women, discussed here).*

More generally, a new clause will provide that asylum seekers cannot be expected to hide their identity or beliefs, confirming case law as regards sexuality and religion.

Exclusion, cessation and withdrawal of status

The 2011 Directive elaborates on the Refugee Convention on exclusion, but the Regulation elaborates further.* First, the preamble to the new Regulation enshrines the basic elements of CJEU case law on the special status of some Palestinians (case law starting with Bolbol and El Kott; note also the recent Advocate-General’s opinion relating specifically to Gaza).* Secondly, a new provision on exclusion on grounds of terrorism states that no proportionality test is required in such cases, confirming the judgment in B and D; the preamble also takes account of the judgment in Lounani on the exclusion of foreign fighters, discussed here). Finally, another new provision will require consideration of whether a minor would be considered criminally responsible for acts under the law of a Member State, when considering if a minor would be excluded on grounds of war crimes, terrorism et al.

On cessation – loss of refugee status because, inter alia, the situation has improved significantly in the country of origin – the Regulation will provide again that account must be taken of country of origin information supplied by the EU asylum agency, or other sources.

As for the withdrawal of refugee status, withdrawal will be mandatory in more cases, now including where ‘there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present’ and where ‘he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the Member State in which he or she is present’. Previously withdrawal of refugee status was only optional in some cases. The CJEU has recently interpreted the latter of the two newly mandatory exceptions (see the trilogy of judgments here, here and here). Also, the Court has more broadly ruled that even if refugee status is withdrawn, the person concerned remains a refugee, still benefiting from non-refoulement and the rights which the Refugee Convention sets out for refugees who are unlawfully resident.

Subsidiary protection

The core definition of subsidiary protection (a threat of serious harm deriving from the death penalty, torture or similar treatment, or facing a specified threat from armed conflict) will not be affected by the Regulation – although the preamble will entrench some of the relevant CJEU case law on how much violence against civilians, and what types of conflict, trigger the ‘armed conflict’ ground of subsidiary protection (Elgafaji and Diakité). The provision on cessation of subsidiary protection will refer to country of origin information, including from the EU Asylum Agency.

There will be some changes to the rules on exclusion from subsidiary protection (it will be necessary to show that there was a conviction for a ‘serious crime’, if committed after admission to the territory; the person concerned must be a danger to national security, not security generally); and the prospect of exclusion from subsidiary protection due to commission of less serious crimes will remain optional. As with refugee status, the rules on exclusion will now specify that no proportionality test is required, along with special provision for minors.

Rights of refugees and persons with subsidiary protection

The Regulation will change the provisions on the rights of those with refugee status or subsidiary protection in several ways. First, if a Member State has not issued a residence permit within 15 days, it must at least issue some provisional documentation so that access to rights is more effective. Secondly, the list of vulnerable people now includes parents of adult dependent children. Thirdly, there will be a common template for information to be given to people with refugee status or subsidiary protection, which will emphasise the limits on their movement to other Member States.

Fourthly, due to the abolition of the right for Member States to set higher standards where compatible with the qualification law, it will no longer be possible for them to give refugee or subsidiary protection status automatically to family members who do not qualify separately for refugee or subsidiary protection status in their own right (see Ahmedbekova). On the other hand, there is still an obligation to extend the same rights in the law to family members covered by it, even if they will not have refugee or subsidiary protection status as such. This will include having a residence permit with the same date of expiry as the person with refugee or subsidiary protection status, which is an improvement on the current Directive. But the Regulation precludes a residence permit being issued to a spouse or unmarried partner ‘where there are strong indications that the marriage or partnership was contracted for the sole purpose of enabling the person concerned to enter or reside in the Member State’.

Fifthly, there will be more harmonisation of the rules on residence permits, as regards fees, an explicit requirement to use the EU uniform format, an obligation to issue a permit within 90 days, and a requirement not to leave people with gaps between permits when they are renewed. The prospect for non-renewal of permits will now be linked to withdrawal of status (compare with the T judgment on the current law, discussed here).

Sixthly, there will be parallel harmonisation of the rules related to travel documents, which are issued by Member States to beneficiaries of international protection in place of passports, given that it would probably be unsafe for them to contact officials from their country of origin. (In the case of refugees, this supplements the rules already set out in the Refugee Convention). They will be valid for more than one year and will be expressly subject to the EU’s passport security rules.

Seventh, the provisions on movement within the territory will be redrafted to add the proviso that equal treatment with other non-EU citizens applies where they are ‘generally in the same circumstances’. This may be an attempt to confirm the case law in Alo and Osso (discussed here), which permits a link between limiting movements and the grant of benefits in some cases.

Eighth, there will be a new rule emphasising that refugees and people with subsidiary protection do not have the right to move between Member States – unless they are allowed to stay on the basis of national or other EU law, and subject to the right to make short-term visits under the Schengen rules. As noted already, the EU rules in question include a limited right to move between Member States under the EU long-term residence Directive, which is also being renegotiated. Any unauthorised movement between Member States can be punished by ‘resetting the clock’ on acquisition of long-term residence status under that law. However, Member States will have to fully count the time spent as an asylum-seeker when determining if a refugee or person with subsidiary protection has spent five years’ legal residence in order to qualify as an EU long-term resident under that Directive.

Ninth, the rules on integration will be amended by an obligation to ensure equal treatment as regards work-related matters, including taking account of experience in an occupation obtained outside the country of refuge. The rules on education will provide for equal treatment for adults (subject to an optional exception for loans and grants) and an express right to finish secondary school after the age of majority. Social assistance benefits can be linked to compulsory integration courses, and it will still be possible for Member States to limit beneficiaries of subsidiary protection to ‘core benefits’, which will now be listed in the main text instead of the preamble (adding housing benefits, which takes account of analogous case law). It will also now be explicit that Member States may make integration measures compulsory, subject to provisions on fees and accessibility. Finally, there will be new provisions on the guardians of unaccompanied minors.

Assessment

To what extent will the Regulation achieve the objectives which it sets out in its preamble?

To ensure harmonisation and more convergence in asylum decisions and as regards the content of international protection in order to reduce incentives to move within the […] Union, encourage beneficiaries of international protection to remain in the Member State that granted them protection and ensure an equality of treatment of beneficiaries of international protection

The assumption that harmonisation of refugee decisions deters movements within the EU is often questioned, but in any event the Regulation should in principle increase harmonisation of decision-making somewhat. This stems not only from converting a Directive into a Regulation and removing the qualified option to have higher standards, but also from removing some of the options in the main part of the law, and providing more details of how the common rules must be interpreted – for instance, as regards sur place applications, the internal protection alternative, and the definition of ‘particular social group’.* Note that in some cases this takes the form of integrating the case law into the main text or preamble, thereby making it more visible – and this blog post only mentions some of the new details which will be added to the preamble.

On discouraging movements between Member States, the sanction of restarting the clock on EU long-term residence status for those who move without authorisation, plus allowing easier access to that status for those who stay put, aims to provide a simultaneous carrot and stick. Awkwardly the Regulation does not provide for the situation, recognised by the case law (albeit subject to a very high threshold), when it is legitimate for a refugee or person with subsidiary protection to move to another Member State because the conditions in the Member State which extended them protection have deteriorated to the point where they breach the EU Charter of Fundamental Rights.

As for equality of treatment of those with international protection, the changes in the rules on the rights after obtaining refugee or subsidiary protection status appear liable to reduce differences between Member States – if that is the issue of equal treatment being referred to. On the other hand, some differences between refugees and people with subsidiary protection (as regards social assistance, and being covered or not by the family reunion Directive, which will be particularly relevant where family members are not already present) will remain.  

More fundamentally, as noted already this Regulation will form part of a broader package aiming at the same objectives; in particular the new Regulation on asylum procedures will in parallel harmonise the law on the procedural side, and changes to the law on reception conditions will also aim to discourage movements between Member States. And going beyond this, the bigger impact of the asylum package may come not from this Regulation, but from the new constraints planned on asylum seekers’ applications being considered on the merits in the first place – potentially leaving the EU law on qualification for refugee and subsidiary protection status, whatever its form or legal content, as a form of Potemkin village less frequently accessible in practice. Some of the other blog posts in this series will examine the extent to which the new asylum package could lead to this result.

 

Barnard & Peers: chapter 26

JHA5: chapter I:5

**Disclaimer: I was an independent adviser for a consultancy advising the European Commission on the implementation of and possible amendment of the current Directive.

 

First analysis of the EU’s new asylum proposals

Professor Steve Peers, Law School, University of Essex*

This week the EU Commission published its new package of proposals on asylum and (non-EU) migration – consisting of proposals for legislation, some ‘soft law’, attempts to relaunch talks on stalled proposals and plans for future measures. The following is an explanation of the new proposals (not attempting to cover every detail) with some first thoughts.  Overall, while it is possible that the new package will lead to agreement on revised asylum laws, this will come at the cost of risking reduced human rights standards.

Background

Since 1999, the EU has aimed to create a ‘Common European Asylum System’. A first phase of legislation was passed between 2003 and 2005, followed by a second phase between 2010 and 2013. Currently the legislation consists of: a) the Qualification Directive, which defines when people are entitled to refugee status (based on the UN Refugee Convention) or subsidiary protection status, and what rights they have; b) the Dublin III Regulation, which allocates responsibility for an asylum seeker between Member States; c) the Eurodac Regulation, which facilitates the Dublin system by setting up a database of fingerprints of asylum seekers and people who cross the external border without authorisation;  d) the Asylum Procedures Directive, which sets out the procedural rules governing asylum applications, such as personal interviews and appeals; e) the Reception Conditions Directive, which sets out standards on the living conditions of asylum-seekers, such as rules on housing and welfare; and f) the Asylum Agency Regulation, which set up an EU agency (EASO) to support Member States’ processing of asylum applications.

The EU also has legislation on other aspects of migration: (short-term) visas, border controls, irregular migration, and legal migration – much of which has connections with the asylum legislation, and all of which is covered by this week’s package. For visas, the main legislation is the visa list Regulation (setting out which non-EU countries’ citizens are subject to a short-term visa requirement, or exempt from it) and the visa code (defining the criteria to obtain a short-term Schengen visa, allowing travel between all Schengen states).  The visa code was amended last year, as discussed here.

For border controls, the main legislation is the Schengen Borders Code, setting out the rules on crossing external borders and the circumstances in which Schengen states can reinstate controls on internal borders, along with the Frontex Regulation, setting up an EU border agency to assist Member States. On the most recent version of the Frontex Regulation, see discussion here and here.

For irregular migration, the main legislation is the Return Directive. The Commission proposed to amend it in 2018 – on which, see analysis here and here.

For legal migration, the main legislation on admission of non-EU workers is the single permit Directive (setting out a common process and rights for workers, but not regulating admission); the Blue Card Directive (on highly paid migrants, discussed here); the seasonal workers’ Directive (discussed here); and the Directive on intra-corporate transferees (discussed here).  The EU also has legislation on: non-EU students, researchers and trainees (overview here); non-EU family reunion (see summary of the legislation and case law here) and on long-term resident non-EU citizens (overview – in the context of UK citizens after Brexit – here). In 2016, the Commission proposed to revise the Blue Card Directive (see discussion here).

The UK, Ireland and Denmark have opted out of most of these laws, except some asylum law applies to the UK and Ireland, and Denmark is covered by the Schengen and Dublin rules. So are the non-EU countries associated with Schengen and Dublin (Norway, Iceland, Switzerland and Liechtenstein). There are also a number of further databases of non-EU citizens as well as Eurodac: the EU has never met a non-EU migrant who personal data it didn’t want to store and process.

The Refugee ‘Crisis’

The EU’s response to the perceived refugee ‘crisis’ was both short-term and long-term. In the short term, in 2015 the EU adopted temporary laws (discussed here) relocating some asylum seekers in principle from Italy and Greece to other Member States. A legal challenge to one of these laws failed (as discussed here), but in practice Member States accepted few relocations anyway. Earlier this year, the CJEU ruled that several Member States had breached their obligations under the laws (discussed here), but by then it was a moot point.

Longer term, the Commission proposed overhauls of the law in 2016: a) a Qualification Regulation further harmonising the law on refugee and subsidiary protection status; b) a revised Dublin Regulation, which would have set up a system of relocation of asylum seekers for future crises; c) a revised Eurodac Regulation, to take much more data from asylum seekers and other migrants;  d) an Asylum Procedures Regulation, further harmonising the procedural law on asylum applications; e) a revised Reception Conditions Directive; f) a revised Asylum Agency Regulation, giving the agency more powers; and g) a new Resettlement Regulation, setting out a framework of admitting refugees directly from non-EU countries.  (See my comments on some of these proposals, from back in 2016)

However, these proposals proved unsuccessful – which is the main reason for this week’s attempt to relaunch the process. In particular, an EU Council note from February 2019 summarises the diverse problems that befell each proposal. While the EU Council Presidency and the European Parliament reached agreement on the proposals on qualification, reception conditions and resettlement in June 2018, (Update, 1 October 2020: for the texts of the deals reached on qualification and reception conditions, see the Statewatch website). Member States refused to support the Presidency’s deal and the European Parliament refused to renegotiate (see, for instance, the Council documents on the proposals on qualification and resettlement; see also my comments on an earlier stage of the talks, when the Council had agreed its negotiation position on the qualification regulation).

On the asylum agency, the EP and Council agreed on the revised law in 2017, but the Commission proposed an amendment in 2018 to give the agency more powers; the Council could not agree on this. On Eurodac, the EP and Council only partly agreed on a text. On the procedures Regulation, the Council largely agreed its position, except on border procedures; on Dublin there was never much prospect of agreement because of the controversy over relocating asylum seekers. (For either proposal, a difficult negotiation with the European Parliament lay ahead).

In other areas too, the legislative process was difficult: the Council and EP gave up negotiating amendments to the Blue Card Directive (see the last attempt at a compromise here, and the Council negotiation mandate here), and the EP has not yet agreed a position on the Returns Directive (the Council has a negotiating position, but again it leaves out the difficult issue of border procedures; there is a draft EP position from February). Having said that, the EU has been able to agree legislation giving more powers to Frontex, as well as new laws on EU migration databases, in the last few years.

The attempted relaunch

The Commission’s new Pact on asylum and immigration (see also the roadmap on its implementation, the Q and As, and the staff working paper) does not restart the whole process from scratch. On qualification, reception conditions, resettlement, the asylum agency, the returns Directive and the Blue Card Directive, it invites the Council and Parliament to resume negotiations. But it tries to unblock the talks as a whole by tabling two amended legislative proposals and three new legislative proposals, focussing on the issues of border procedures and relocation of asylum seekers.

Screening at the border

This revised proposals start with a new proposal for screening asylum seekers at the border, which would apply to all non-EU citizens who cross an external border without authorisation, who apply for asylum while being checked at the border (without meeting the conditions for legal entry), or who are disembarked after a search and rescue operation. During the screening, these non-EU citizens are not allowed to enter the territory of a Member State, unless it becomes clear that they meet the criteria for entry. The screening at the border should take no longer than 5 days, with an extra 5 days in the event of a huge influx. (It would also be possible to apply the proposed law to those on the territory who evaded border checks; for them the deadline to complete the screening is 3 days).

Screening has six elements, as further detailed in the proposal: a health check, an identity check, registration in a database, a security check, filling out a debriefing form, and deciding on what happens next.  At the end of the screening, the migrant is channelled either into the expulsion process (if no asylum claim has been made, and if the migrant does not meet the conditions for entry) or, if an asylum claim is made, into the asylum process – with an indication of whether the claim should be fast-tracked or not. It’s also possible that an asylum seeker would be relocated to another Member State. The screening is carried out by national officials, possibly with support from EU agencies.

To ensure human rights protection, there must be independent monitoring to address allegations of non-compliance with human rights. These allegations might concern breaches of EU or international law, national law on detention, access to the asylum procedure, or non-refoulement (the ban on sending people to an unsafe country). Migrants must be informed about the process and relevant EU immigration and data protection law. There is no provision for judicial review of the outcome of the screening process, although there would be review as part of the next step (asylum or return).

Asylum procedures

The revised proposal for an asylum procedures Regulation would leave in place most of the Commission’s 2016 proposal to amend the law, adding some specific further proposed amendments, which either link back to the screening proposal or aim to fast-track decisions and expulsions more generally.  

On the first point, the usual rules on informing asylum applicants and registering their application would not apply until after the end of the screening. A border procedure may apply following the screening process, but Member States must apply the border procedure in cases where an asylum seeker used false documents, is a perceived national security threat, or falls within the new ground for fast-tracking cases (on which, see below).  The latter obligation is subject to exceptions where a Member State has reported that a non-EU country is not cooperating on readmission; the process for dealing with that issue set out under the 2019 amendments to the visa code will then apply. Also, the border process cannot apply to unaccompanied minors or children under 12, unless they are a supposed national security risk. Further exceptions apply where the asylum seeker is vulnerable or has medical needs, the application is not inadmissible or cannot be fast-tracked, or detention conditions cannot be guaranteed. A Member State might apply the Dublin process to determine which Member State is responsible for the asylum claim during the border process. The whole border process (including any appeal) must last no more than 12 weeks, and can only be used to declare applications inadmissible or apply the new ground for fast-tracking them.

There would also be a new border expulsion procedure, where an asylum application covered by the border procedure was rejected. This is subject to its own 12-week deadline, starting from the point when the migrant is no longer allowed to remain. Much of the Return Directive would apply – but not the provisions on the time period for voluntary departure, remedies and the grounds for detention. Instead, the border expulsion procedure would have its own stricter rules on these issues.

As regards general fast-tracking, in order to speed up the expulsion process for unsuccessful applications, a rejection of an asylum application would have to either incorporate an expulsion decision or entail a simultaneous separate expulsion decision. Appeals against expulsion decisions would then be subject to the same rules as appeals against asylum decisions. If the asylum seeker comes from a country with a refugee recognition rate below 20%, his or her application must be fast-tracked (this would even apply to unaccompanied minors) – unless circumstances in that country have changed, or the asylum seeker comes from a group for whom the low recognition rate is not representative (for instance, the recognition rate might be higher for LGBT asylum-seekers from that country). Many more appeals would be subject to a one-week time limit for the rejected asylum seeker to appeal, and there could be only one level of appeal against decisions taken within a border procedure.

Eurodac

The revised proposal for Eurodac would build upon the 2016 proposal, which was already far-reaching: extending Eurodac to include not only fingerprints, but also photos and other personal data; reducing the age of those covered by Eurodac from 14 to 6; removing the time limits and the limits on use of the fingerprints taken from persons who had crossed the border irregularly; and creating a new obligation to collect data of all irregular migrants over age 6 (currently fingerprint data for this group cannot be stored, but can simply be checked, as an option, against the data on asylum seekers and irregular border crossers). The 2020 proposal additionally provides for interoperability with other EU migration databases, taking of personal data during the screening process, including more data on the migration status of each person, and expressly applying the law to those disembarked after a search and rescue operation.  

Dublin rules on asylum responsibility

A new proposal for asylum management would replace the Dublin regulation (meaning that the Commission has withdrawn its 2016 proposal to replace that Regulation). The 2016 proposal would have created a ‘bottleneck’ in the Member State of entry, requiring that State to examine first whether many of the grounds for removing an asylum-seeker to a non-EU country apply before considering whether another Member State might be responsible for the application (because the asylum seeker’s family live there, for instance). It would also have imposed obligations directly on asylum-seekers to cooperate with the process, rather than only regulate relations between Member States. These obligations would have been enforced by punishing asylum seekers who disobeyed: removing their reception conditions (apart from emergency health care); fast-tracking their substantive asylum applications; refusing to consider new evidence from them; and continuing the asylum application process in their absence.

It would no longer be possible for asylum seekers to provide additional evidence of family links, with a view to being in the same country as a family member. Overturning a CJEU judgment (see further discussion here), unaccompanied minors would no longer have been able to make applications in multiple Member States (in the absence of a family member in any of them). However, the definition of family members would have been widened, to include siblings and families formed in a transit country.  Responsibility for an asylum seeker based on the first Member State of irregular entry (a commonly applied criterion) would have applied indefinitely, rather than expire one year after entry as it does under the current rules. The ‘Sangatte clause’ (responsibility after five months of living in a second Member State, if the ‘irregular entry’ criterion no longer applies) would be dropped. The ‘sovereignty clause’, which played a key part in the 2015-16 refugee ‘crisis’ (it lets a Member State take responsibility for any application even if the Dublin rules do not require it, cf Germany accepting responsibility for Syrian asylum seekers) would have been sharply curtailed. Time limits for detention during the transfer process would be reduced.  Remedies for asylum seekers would have been curtailed: they would only have seven days to appeal against a transfer; courts would have fifteen days to decide (although they could have stayed on the territory throughout); and the grounds of review would have been curtailed.

Finally, the 2016 proposal would have tackled the vexed issue of disproportionate allocation of responsibility for asylum seekers by setting up an automated system determining how many asylum seekers each Member State ‘should’ have based on their size and GDP. If a Member State were responsible for excessive numbers of applicants, Member States which were receiving fewer numbers would have to take more to help out. If they refused, they would have to pay €250,000 per applicant.

The 2020 proposal drops some of the controversial proposals from 2016, including the ‘bottleneck’ in the Member State of entry (the current rule, giving Member States an option to decide if a non-EU country is responsible for the application on narrower grounds than in the 2016 proposal, would still apply). Also, the sovereignty clause would now remain unchanged.

However, the 2020 proposal also retains parts of the 2016 proposal: the redefinition of ‘family member’ (which could be more significant now that the bottleneck is removed, unless Member States choose to apply the relevant rules on non-EU countries’ responsibility during the border procedure already); obligations for asylum seekers (redrafted slightly); some of the punishments for non-compliant asylum-seekers (the cut-off for considering evidence would stay, as would the loss of benefits except for those necessary to ensure a basic standard of living: see the CJEU case law in CIMADE and Haqbin); dropping the provision on evidence of family links; changing the rules on responsibility for unaccompanied minors; retaining part of the changes to the irregular entry criterion (it would now cease to apply after three years; the Sangatte clause would still be dropped; it would apply after search and rescue but not apply in the event of relocation); curtailing judicial review (the grounds would still be limited; the time limit to appeal would be 14 days; courts would not have a strict deadline to decide; suspensive effect would not apply in all cases); and the reduced time limits for detention.

The wholly new features of the 2020 proposal are: some vague provisions about crisis management; responsibility for an asylum application for the Member State which issued a visa or residence document which expired in the last three years (the current rule is responsibility if the visa expired less than six months ago, and the residence permit expired less than a year ago); responsibility for an asylum application for a Member State in which a non-EU citizen obtained a diploma; and the possibility for refugees or persons with subsidiary protection status to obtain EU long-term resident status after three years, rather than five.

However, the most significant feature of the new proposal is likely to be its attempt to solve the underlying issue of disproportionate allocation of asylum seekers. Rather than a mechanical approach to reallocating responsibility, the 2020 proposal now provides for a menu of ‘solidarity contributions’: relocation of asylum seekers; relocation of refugees; ‘return sponsorship’; or support for ‘capacity building’ in the Member State (or a non-EU country) facing migratory pressure. There are separate rules for search and rescue disembarkations, on the one hand, and more general migratory pressures on the other. Once the Commission determines that the latter situation exists, other Member States have to choose from the menu to offer some assistance. Ultimately the Commission will adopt a decision deciding what the contributions will be. Note that ‘return sponsorship’ comes with a ticking clock: if the persons concerned are not expelled within eight months, the sponsoring Member State must accept them on its territory.

Crisis management

The issue of managing asylum issues in a crisis has been carved out of the Dublin proposal into a separate proposal, which would repeal an EU law from 2001 that set up a framework for offering ‘temporary protection’ in a crisis. Note that Member States have never used the 2001 law in practice.

Compared to the 2001 law, the new proposal is integrated into the EU asylum legislation that has been adopted or proposed in the meantime. It similarly applies in the event of a ‘mass influx’ that prevents the effective functioning of the asylum system. It would apply the ‘solidarity’ process set out in the proposal to replace the Dublin rules (ie relocation of asylum seekers and other measures), with certain exceptions and shorter time limits to apply that process.

The proposal focusses on providing for possible exceptions to the usual asylum rules. In particular, during a crisis, the Commission could authorise a Member State to apply temporary derogations from the rules on border asylum procedures (extending the time limit, using the procedure to fast-track more cases), border return procedures (again extending the time limit, more easily justifying detention), or the time limit to register asylum applicants. Member States could also determine that due to force majeure, it was not possible to observe the normal time limits for registering asylum applications, applying the Dublin process for responsibility for asylum applications, or offering ‘solidarity’ to other Member States.

Finally, the new proposal, like the 2001 law, would create a potential for a form of separate ‘temporary protection’ status for the persons concerned. A Member State could suspend the consideration of asylum applications from people coming from the country facing a crisis for up to a year, in the meantime giving them status equivalent to ‘subsidiary protection’ status in the EU qualification law. After that point it would have to resume consideration of the applications. It would need the Commission’s approval, whereas the 2001 law left it to the Council to determine a situation of ‘mass influx’ and provided for the possible extension of the special rules for up to three years.

Other measures

The Commission has also adopted four soft law measures. These comprise: a Recommendation on asylum crisis management; a Recommendation on resettlement and humanitarian admission; a Recommendation on cooperation between Member States on private search and rescue operations; and guidance on the applicability of EU law on smuggling of migrants – notably concluding that it cannot apply where (as in the case of law of the sea) there is an obligation to rescue (see further analysis here).

On other issues, the Commission plan is to use current legislation – in particular the recent amendment to the visa code, which provides for sticks to make visas more difficult to get for citizens of countries which don’t cooperate on readmission of people, and carrots to make visas easier to get for citizens of countries which do cooperate on readmission. In some areas, such as the Schengen system, there will be further strategies and plans in the near future; it is not clear if this will lead to more proposed legislation.

However, on legal migration, the plan is to go further than relaunching the amendment of the Blue Card Directive, as the Commission is also planning to propose amendments to the single permit and long-term residence laws referred to above – leading respectively to more harmonisation of the law on admission of non-EU workers and enhanced possibilities for long-term resident non-EU citizens to move between Member States (nb the latter plan is separate from this week’s proposal to amend this law as regards refugees and people with subsidiary protection already). Both these plans are relevant to British citizens moving to the EU after the post-Brexit transition period – and the latter is also relevant to British citizens covered by the withdrawal agreement.

Comments

This week’s plan is less a complete restart of EU law in this area than an attempt to relaunch discussions on a blocked set of amendments to that law, which moreover focusses on a limited set of issues. Will it ‘work’? There are two different ways to answer that question.

First, will it unlock the institutional blockage? Here it should be kept in mind that the European Parliament and the Council had largely agreed on several of the 2016 proposals already; they would have been adopted in 2018 already had not the Council treated all the proposals as a package, and not gone back on agreements which the Council Presidency reached with the European Parliament. It is always open to the Council to get at least some of these proposals adopted quickly by reversing these approaches.

On the blocked proposals, the Commission has targeted the key issues of border procedures and allocation of asylum-seekers. If the former leads to more quick removals of unsuccessful applicants, the latter issue is no longer so pressing. But it is not clear if the Member States will agree to anything on border procedures, or whether such an agreement will result in more expulsions anyway – because the latter depends on the willingness of non-EU countries, which the EU cannot legislate for (and does not even address in this most recent package). And because it is uncertain whether they will result in more expulsions, Member States will be wary of agreeing to anything which either results in more obligations to accept asylum-seekers on their territory, or leaves them with the same number as before.

The idea of ‘return sponsorship’ – which reads like a grotesque parody of individuals sponsoring children in developing countries via charities – may not be appealing except to those countries like France, which have the capacity to twist arms in developing countries to accept returns. Member States might be able to agree on a replacement for the temporary protection Directive on the basis that they will never use that replacement either. And Commission threats to use infringement proceedings to enforce the law might not worry Member States who recall that the CJEU ruled on their failure to relocate asylum-seekers after the relocation law had already expired, and that the Court will soon rule on Hungary’s expulsion of the Central European University after it has already left.

As to whether the proposals will ‘work’ in terms of managing asylum flows fairly and compatibly with human rights, it is striking how much they depend upon curtailing appeal rights, even though appeals are often successful. The proposed limitation of appeal rights will also be maintained in the Dublin system; and while the proposed ‘bottleneck’ of deciding on removals to non-EU countries before applying the Dublin system has been removed, a variation on this process may well apply in the border procedures process instead. There is no new review of the assessment of the safety of non-EU countries – which is questionable in light of the many reports of abuse in Libya. While the EU is not proposing, as the wildest headbangers would want, to turn people back or refuse applications without consideration, the question is whether the fast-track consideration of applications and then appeals will constitute merely a Potemkin village of procedural rights that mean nothing in practice.

Increased detention is already a feature of the amendments proposed earlier: the reception conditions proposal would add a new ground for detention; the return Directive proposal would inevitably increase detention due to curtailing voluntary departure (as discussed here). Unfortunately the Commission’s claim in its new communication that its 2018 proposal is ‘promoting’ voluntary return is therefore simply false. Trump-style falsehoods have no place in the discussion of EU immigration or asylum law.

The latest Eurodac proposal would not do much compared to the 2016 proposal – but then, the 2016 proposal would already constitute an enormous increase in the amount of data collected and shared by that system.

Some elements of the package are more positive. The possibility for refugees and people with subsidiary protection to get EU long-term residence status earlier would be an important step toward making asylum ‘valid throughout the Union’, as referred to in the Treaties.  The wider definition of family members, and the retention of the full sovereignty clause, may lead to some fairer results under the Dublin system. Future plans to improve the long-term residents’ Directive are long overdue. The Commission’s sound legal assessment that no one should be prosecuted for acting on their obligations to rescue people in distress at sea is welcome. The quasi-agreed text of the reception conditions Directive explicitly rules out Trump-style separate detention of children.

No proposals from the EU can solve the underlying political issue: a chunk of public opinion is hostile to more migration, whether in frontline Member States, other Member States, or transit countries outside the EU. The politics is bound to affect what Member States and non-EU countries alike are willing to agree to. And for the same reason, even if a set of amendments to the system is ultimately agreed, there will likely be continuing issues of implementation, especially illegal pushbacks and refusals to accept relocation.

Barnard & Peers: chapter 26

JHA4: chapter I:3, chapter I:4, chapter I:5, chapter I:6, chapter I:7

Photo credit: DW

*I have worked as an independent consultant for the impact assessment regarding the background of some of this week’s proposals. My views are, however, independent of any EU institution or Member State.