Friday 22 September 2023

Responsibility in Joint Returns after WS and Others v Frontex: Letting the Active By-Stander Off the Hook


Melanie Fink and Jorrit J Rijpma

Melanie Fink is APART-GSK Fellow of the Austrian Academy of Sciences, Central European University and Assistant Professor, Europa Institute, Leiden University

Jorrit Rijpma is Professor of EU law, Europa Institute, Leiden University

Photo credit: Влада на Република Северна Македонија, via Wikimedia Commons

See also analysis of the human rights aspects of the judgment, by Francesca Romana Partipilo 

On 6 September 2023 the General Court delivered its long-awaited ruling in WS and others v Frontex. In a short and matter-of-fact judgment, it dismissed an action for damages by a Syrian refugee family against the European Border and Coast Guard Agency (Frontex). The family, escaping Aleppo at the height of the Syrian war in 2016, was returned to Turkey just days after their arrival in violation of the principle of non-refoulement. Their return was carried out as a joint return operation between Greece and Frontex. With the action brought before the General Court, they sought compensation from Frontex for its role in the violation of the principle of non-refoulement, as well as their degrading treatment in the return process.

After the many reports of fundamental rights violations at the external borders, including pushbacks, this was the first case in which Frontex came under judicial scrutiny for its role in potential violations. Earlier, a damning OLAF-report, demonstrating that the Agency had turned a blind eye to pushbacks in the course of operations it coordinated, had led to the resignation of its Executive Director.

Since its establishment, successive legislative amendments have consistently increased Frontex’s powers, short of transferring command and control over border guards and return officers. Yet, Frontex has always maintained that it cannot be held responsible for violations of fundamental rights as it merely acts as coordinator and facilitator in joint (return) operations. Wrongdoings in the context of joint operations, so Frontex, would be exclusively on the Member State in charge.

In an unsatisfactory judgment that fails to do justice to the plight of a refugee family that turned to the European Union for protection, the General Court now seems to confirm that stance. Doing so, it failed to acknowledge the role and obligations of Frontex during joint operations. Adopting an unreasonably and unnecessarily high threshold for the establishment of the causal link requirement, it also excludes almost any prospect of Frontex being accountable for any breaches of its obligations. After a brief overview of the judgment, we will discuss each of these points in turn. We refer to Regulation 2016/1624, which governed the activities of Frontex at the time of the return, even though it has been replaced with Regulation 2019/1896 in the meantime. However, the relevant provisions have not substantially changed.


The judgment

On admissibility, the Court rejected two arguments advanced by Frontex. First, it did not consider that it was called upon to make general statements of principle by ruling on the applicants’ damages claim. Second, it did not accept the argument that the applicants were barred from bringing an action for damages, as they could have brough an action for annulment against the letter of the Agency’s fundamental rights officers dismissing their complaint under the individual complaints’ mechanism. The Court held that these two actions do not preclude each other as they pursue different objectives, but explicitly left the question whether the actions of the Agency’s Fundamental Rights Officer within the framework of that administrative procedure constitute challengeable acts under Article 263 TFEU, which if they are would subject this procedure to judicial review by the Court.

On substance, non-contractual liability arises when three cumulative conditions are met: a sufficiently serious breach of a rule of EU law conferring rights on individuals, damage, and a causal link between the unlawful conduct and the damage. Reversing the order in which it assessed the conditions, the General Court dismissed the action based solely on the absence of a sufficiently direct causal link between the conduct of the Agency and the damage that was invoked. At the outset it had already recalled that the unlawful conduct would need to be the determining cause of the damage. It considered that the applicants wrongly departed from the presumption that without the alleged conduct by Frontex they would not have been returned. Here the General Court repeats Frontex’s mantra that it only provides technical and financial support. Most importantly, it emphasizes Frontex’s lack of competence to adopt a return decision or decide applications for international protection, leaving any liability with the responsible Member State.

The General Court skipped the question whether the return of the applicants and their treatment during the return procedure constituted a violation of EU law altogether. Although this may be interpreted as a sign of judicial economy, it is also a way to avoid having to pronounce itself on the behaviour of the Member State in question. In addition, the Court may have otherwise been required it to address the limits of its own jurisdiction under Article 276 TFEU, which precludes it from assessing the validity or proportionality of Member States’ law enforcement authorities.


The Role, Obligations, and Responsibility of Frontex

By virtue of Article 28 Regulation 2016/1624, Frontex is prohibited from ‘entering into the merits of return decisions’ because these ‘remain the sole responsibility of the Member States’. The Court rightly held that Frontex cannot be responsible for any potential unlawfulness of the return decision itself. As with any other national administrative decision, it would be for the Member State authorities to ensure its lawfulness.

Aside from the question whether a return decision was even taken under the Return Directive, and whether this decision was then lawful, the applicants’ allegations in the case go well beyond the decision itself. Frontex’s alleged wrongdoing concerns the implementation of the decision, despite clear indications of a risk of refoulement, and the degrading treatment of the applicants as the expulsion was carried out. This phase of the return process, i.e. the implementation of return decisions in the form of joint return operations, is a core competence of Frontex, which by virtue of Article 28(1) Regulation 2016/1624 renders ‘the necessary assistance’ to return operations and ensures their ‘coordination or […] organisation’.

This coordinating role comes with obligations. Concretely, Article 28(3) Regulation 2016/1624 explicitly states that ‘Agency shall ensure that the respect for fundamental rights, the principle of non-refoulement, and the proportionate use of means of constraints are guaranteed during the entire return operation’ (see also generally Article 34 Regulation 2016/1624). In addition, as an EU body, Frontex is bound by the EU Charter of Fundamental Rights, including the absolute prohibitions of refoulement in Article 19 and of inhuman or degrading treatment in Article 4. These rights are widely understood under European human rights law to include positive obligations that require authorities to actively ensure the protection of a right, for example by taking practical steps to protect a person against interferences by others. Frontex has a whole toolbox of means available to meet these obligations, including reporting and communication duties. As a last resort, Article 25(4) Regulation 2016/1624 requires the agency to withdraw, should violations of fundamental rights or international protection obligations occur that are serious or likely to persist.

Frontex conducts joint return operations together with the Member States. However, if it violates its own obligations under EU law, it bears responsibility that may be invoked through an action for damages. This responsibility is independent from any possible responsibility of the Member State who in turn bears responsibility for its own failures in the process (see also here). Not separating the return decision from its implementation, the Court failed to acknowledge the role of Frontex in the latter. In addition, shielding the agency from responsibility for a violation of its obligations in joint return operations emasculates these provisions, which also negatively affects the credibility of the EU as a rule of law advocate.


Causation and Joint Liability

An important complicating factor in this case, is the interplay between the actions of Frontex and the host Member State. Situations where more than one actor is involved in causing harm are not uncommon, but incredibly complex when it comes to allocating legal responsibility (see also here).

First, it might be unclear who is considered the ‘author’ of a violation, in other words, to whom the unlawful conduct is attributable. As a national administrative decision, the return decision is clearly attributable to the host state. Things are more complicated at the implementation level, where the actions of the host state and Frontex are more intertwined. However, since the Court did not separate the return decision from its implementation, the question of attribution played no role in the case.

The second difficulty concerns causation, that is the link between the unlawful conduct and the damage. The Court denies the existence of a sufficiently direct causal link between Frontex’s conduct and the harm complained of because Frontex lacks the competence to interfere with the return decision or grant international protection. In other words, in the Court’s view, the return decision is the cause for the applicants’ harm, not Frontex’s conduct. Underlying this argument seems to be an assumption that ‘exclusive’ causation might be required for liability to arise. This is also the view the General Court defended in the recent case Kočner v EUROPOL, a case currently under appeal with Advocate General Rantos suggesting the Court of Justice take a less restrictive approach to the causation requirement.

In the past, there have been cases in which the Court seemed accepting of the idea that the existence of an additional determining causes for a damage does not necessarily bar a finding of liability. In light of the coordinating nature of Frontex’s tasks, allegations of wrongdoing will usually, if not always, go hand in hand with (potential) wrongdoing by one or more Member States. If Frontex is not accountable simply because a Member State may have acted unlawfully too, this appears to exclude any reasonable prospect of Frontex being held accountable for breaches of its obligations. In fact, it would seem to stand in the way of joint liability between the Union and a Member State altogether, which has been recognised by the Court as early as 1967 and is a necessary means to ensure accountability in the EU’s multi-level administration (for more detail see here).



The Court, in limiting itself to an assessment of causality, failed to acknowledge a clear violation of one of the core tenants of EU refugee law, the prohibition of refoulement, as well as a range of safeguards laid down in EU secondary legislation. Frontex was present during this violation, and rather than intervened, contributed to it. All of this would not in itself have resulted in Frontex being held liable, but the argument that it is excluded because of a lack of competence regarding the decisions on return and international protection is flawed and lays bare a misconception of the practical reality of joint law enforcement operations as well as the role and obligations of Frontex under EU law in that context.

This judgment begs the question what Frontex’s fundamental rights obligations are worth in the absence of a meaningful way to enforce them. Even if a Member State could, at least in theory, be held responsible before the national judge, and ultimately before the ECtHR, that should not mean that the exercise of public power by a Union body should be allowed to escape judicial review. In a system of shared administration, which the management of the shared external borders has become, joint responsibility carries a need for joint liability.

This case shows how the ‘complete system of remedies’ fails to provide effective judicial control of public power in the EU's area of freedom, security and justice, which is characterised by integration through operational cooperation rather than law. Enforcement powers remain the Member States’ exclusive prerogative in name, but in practice are increasingly exercised jointly by the Member States and the EU. This judgment could have provided a welcome correction to this constitutional oversight. If upheld on appeal, it will reinforce the need for the long overdue accession of the EU to the ECHR.


The EU General Court’s judgment in the case of WS and Others v Frontex: human rights violations at EU external borders going unpunished



Francesca Romana Partipilo, PhD candidate in International Law at Sant'Anna School of Advanced Studies (Pisa) 


Photo credit: Rock Cohen, via Wikimedia commons

(see also critique of the judgment, by Melanie Fink and Jorrit Rijpma) 


On the 6th of September, the EU General Court dismissed a claim filed by a Syrian family who alleged to have suffered material and non-material damages – consisting in feelings of anguish, fear and suffering – at the hands of Frontex on the occasion of a return operation jointly carried out by the EU agency and the Hellenic Republic on the 20th of October 2016.


The case was filed in 2021, five years after the Syrian family was deported by plane to Turkey from the Greek island of Kos, despite having filed a request for international protection. The applicants, arrived on the island of Milos (Greece) on 9 October 2016 and subsequently deported to Turkey, maintained that, if Frontex had not infringed its obligations relating to the protection of fundamental rights in the context of joint operations – in particular the principle of non-refoulement, the right to asylum, the prohibition of collective expulsion, the rights of the child, the prohibition of inhuman and degrading treatment, the right to good administration and to an effective remedy – they would not have been unlawfully returned to Turkey and they would have obtained the international protection to which they were entitled, given their Syrian nationality and the situation in Syria at the material time. However, the Luxembourg-based court decided that, since Frontex does not have the competence to assess the merits of return decisions or applications for international protection, the EU agency cannot be held liable for any damage related to the return of refugees to Turkey. As explained by the EU General Court, Member States alone are competent to assess the merits of return decisions and to examine applications for international protection (para. 65). The judges added that, as regards return operations, under Article 27(1)(a) and (b) and Article 28(1) of Regulation 2016/1624, Frontex’s task is only to provide technical and operational support to the Member States and not to enter into the merits of return decisions.


At first glance, the judgment reveals an argumentative short-circuit. Whilst the examination of asylum applications undeniably falls outside Frontex’s competence, being attributed by EU law to the Member States of the EU, the imperative to respect human rights is contained in Frontex Regulation and in several other documents referring to the agency’s activities, thus representing a legal obligation which is binding on the agency. The fact that Frontex lacks the competence to examine the merits of asylum applications or return decisions does not exempt the EU agency from the respect of migrants’ human rights. As noted by the General Court itself (para. 63), “Regulation 2016/1624, in particular Article 6(3) thereof, provides that [Frontex] shall contribute to the consistent and uniform application of Union law, including the Union acquis concerning fundamental rights, at all external borders”. In addition, the Court stressed that “Article 34(1) of that regulation states that the European Border and Coast Guard shall ensure the protection of fundamental rights in the performance of its tasks under this Regulation in accordance with relevant Union law, in particular the [Charter of Fundamental Rights], relevant international law – including the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol thereto and obligations on access to international protection, in particular the principle of non-refoulement’.”


In addition to the legal instruments binding Frontex to the respect of fundamental rights in its operations, references to human rights have been incorporated into Frontex official documents or press releases since the first years of its operations. For instance, in the annual report for 2008, for the first time, Frontex specified that “[f]ull respect and promotion of fundamental rights […] is the most important corner stone of modern European border management”. Similarly, the 2009 annual report stated that “full and sincere respect of fundamental rights is a firm and strategic choice of Frontex”. More recently, the now disgraced former director of Frontex, Fabrice Leggeri, declared that Frontex was “determined to uphold the highest standards of border control within [its] operations [and] to further strengthen the respect of fundamental rights in all [its] activities”.


In the light of these observations, it needs to be noted that Frontex’s actions in the case of WS and Others v Frontex could have resulted in chain (or indirect) refoulement. Considering that Turkey adopts substantial geographical limitations to the definition of refugee contained in the Refugee Convention, the country may not be considered a “safe third country” where asylum claimants can effectively apply for international protection. In fact, at the time of the ratification of the Additional Protocol to the Refugee Convention, in 1968, Turkey opted for a geographical limitation pursuant to Article 1b of the Convention, limiting the scope of the Convention to “persons who have become refugees as a result of events occurring in Europe”. Consequently, only asylum-seekers fleeing “events occurring in Europe” can enjoy refugee status in Turkey. This is confirmed by the circumstance that Turkey does not grant the status of refugees to people fleeing the war in Syria, but only offers them a form of temporary protection, pursuant to the Turkish Law on Foreigners and International Protection.


It should be noted that Turkey is a signatory of the European Convention of Human Rights, and thus legally bound by Article 3, prohibiting torture and inhuman or degrading treatment or punishment. As well known, in Soering v The United Kingdom the ECtHR established that, pursuant to Article 3, expulsion to torture is never permitted, even in cases where the returnee is not an asylum-seeker or refugee. Accordingly, Article 3 ECHR could have represented a solid legal basis for the protection of the applicants in the case of WS and Others v Frontex, even in the absence of a formal refugee status. Nonetheless, it should also be recalled that, in July 2016, following a failed coup, Turkey had declared a state of emergency and submitted a formal notice of derogation from the ECHR, under Article 15 of the ECHR. Whilst Article 3 ECHR belongs to the list of non-derogable rights, Turkey exploited the state of emergency to introduce a series of amendments to the Law on Foreigners and International Protection, including substantial changes relating to deportation orders and the suspensive effect of appeals against such orders. As a result of the amendments introduced in 2016, a deportation order could be issued at any time to certain applicants/holders of temporary protection (e.g. people suspected of being supporters of a terrorist organization or people who posed a public security threat, in the eyes of the government). For these groups of people, the appeal procedure no longer had a suspensive effect, therefore increasing the risk of refoulement, as noted by Amnesty International. As a consequence, it appears evident that people forcibly expelled to Turkey in 2016 could have suffered chain (that is indirect) refoulement to their countries of origin. Interestingly, this danger was explicitly acknowledged by the EU General Court itself, in the paragraph of the judgment where the Court noted that applicants feared “being returned to Syria by the Turkish authorities” (para. 68). Finally, it has been repeatedly noted that “procedural safeguards that are in place within the EU are not applicable to Turkey, leading to instances where the guarantees to the right to life and prohibition against torture are denied in direct violation of the principle of non-refoulement in the human rights context”. On the basis of such observations, it is evident that Frontex’s return operation was, at the very least, problematic under both EU and international law.


Under a different perspective, the case of WS and Others v Frontex reveals that the responsibility for human rights violations at EU borders may arise as a result of joint actions of States and international organizations (or their agencies). In these instances, interesting questions arise regarding the rules of attribution of conduct, the content and implementation of international responsibility. In the case at hand, while Frontex was under the legal obligation to respect the human rights of asylum-seekers under its jurisdiction and the principle of non-refoulement, Greek authorities had the duty to examine their application for international protection. In fact, as recalled by the European Court of Human Rights in the case Sharifi v. Italy and Greece (appeal no. 16643/09), failure to access the asylum procedure or any other legal remedy within the port of disembarkation constitutes a violation of Article 4 of Protocol no.4 (enshrining the prohibition of collective rejections). In that judgement, the Court highlighted the link between the collective expulsions of the applicants and the fact that they had been prevented from applying for international protection.


It should be mentioned that Greece has not ratified Protocol no.4 of the ECHR and therefore cannot be held responsible of a violation of its Article 4. Nonetheless, although not formally bound by Protocol no.4, Greece could still be held responsible of a violation of the Asylum Procedures Directive as well as the Dublin Regulation III, requiring Member States to allow asylum-seekers effective access to an asylum procedure which hinges on exhaustive and comprehensive information, as stressed by the ECtHR in Sharifi and Others v. Italy and Greece (para. 169).


With regard to the issue of shared responsibility, it is interesting to note that, alongside the complaint against Frontex before the EU General Court, the Syrian family also filed a complaint against the Hellenic Republic before the European Court of Human Rights. In this submission, the family alleged the violation of Articles 5(1), (2), and (4) of the European Convention on Human Rights, Article 4, Article 3, and Article 13 taken together with Articles 3 and 5 of the Convention. This choice was probably motivated by the circumstance that – as stated above – Greece has not ratified Protocol No. 4 of the ECHR. Apparently, the submission resulted in a friendly settlement between the family of asylum-seekers and the Hellenic Republic, pursuant to Article 39 of the Convention.


In conclusion, whilst human rights activists hoped that the case of WS and Others v Frontex would set an important precedent, the judgment of the General Court is both worrying and discouraging. It appears that Frontex got away – once again – with human rights violations. Since its creation, in fact, Frontex has received a considerable amount of criticism. In particular, observers and legal scholars have raised questions about whether and how core fundamental rights, particularly the right to life, the respect of human dignity, the right to an effective remedy and the right not to be sent back to torture, persecution and inhumane treatment (the principle of non-refoulement), are safeguarded at Europe’s external borders. In June 2021, the ONG Sea Watch published a report where it maintained that “[a]erial reconnaissance enables Frontex to gather extensive knowledge about developments in the Central Mediterranean Sea and relay information about boats in distress to the “competent authorities” […] When spotting a boat in the Libyan search and rescue zone, Frontex […] often only informs the Libyan authorities […], despite NGOs or merchant vessels also being in the vicinity. By forwarding the information to the Libyan Joint Rescue Coordination Centre and sometimes even directly guiding the so-called Libyan Coast Guard to the position of a boat, Frontex coordinates and facilitates the interceptions and pullbacks of people in distress to Libya”. Regrettably, the case of WS and Others v Frontex will be remembered as just another episode in which the EU agency disregarded its obligations and violated asylum-seekers human rights at European external borders without incurring in legal consequences.

Thursday 14 September 2023

The EU’s New Pact on Migration and Asylum: three key arguments



Lilian Tsourdi, Assistant Professor, University of Maastricht

 *Photo credit Délmagyarország/Schmidt Andrea


The New Pact on Migration and Asylum is the EU’s latest policy framework on asylum, migration, and border management policies, and the series of legislative proposals that accompany it. Its stated aim is to establish ‘seamless migration processes and stronger governance’. Negotiations on the Pact legislative instruments have been ongoing since September 2020.


The European Parliament (April 2023) and the Council of the European Union (June 2023) recently adopted negotiating positions on two key instruments: the Asylum Procedures Regulation (APR) that reforms rules on asylum determination and related rights, and the Asylum and Migration Management Regulation (AMMR) reforming the EU’s system on allocating responsibility for processing asylum claims and establishing a solidarity mechanism.


This commentary develops three key arguments: i) while not inherently negative, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights; ii) the Pact instruments pay greater attention to the policies’ administrative design and carry potential to enhance implementation; iii) the Pact instruments contain a vision of flexible solidarity that remains linked with pressure and misses the mark of fair sharing. 



Externalization as the red thread


Creating seamless migration processes is not inherently negative. This approach acknowledges the intricate links between different policies at the operational level, especially at border areas. The UNHCR had voiced the need for swift identification at the external borders, differentiation between categories of persons making up mixed flows, and referral to an appropriate procedure, as early as 2007 through its so-called Ten Point Plan.


Nonetheless, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights. First, the Pact instruments establish accelerated screening, asylum, and return procedures at the external borders with curtailed procedural guarantees. Combined with logistic constraints (e.g. facilities, access to counsel) they risk undermining migrants’ (procedural) rights. The instruments also blur the lines between deprivation of liberty and restrictions to the freedom of movement and could lead to the propagation of widespread de facto detention.


Next, the latest negotiating position of the Council on asylum procedures expands the use and scope of the safe third country concept. Where third counties have either not ratified the 1951 Refugee Convention or retain a geographical limitation to its scope (the latter is the case for Turkey for example) the APR introduces the notion of having access to effective protection instead as part of the third country safety assessment. The provisions contain minimal guarantees to ascertain what effective protection entails, which establish standards below those foreseen by the 1951 Refugee Convention.  


In parallel, migration management has been streamlined in the EU’s external relations affecting areas such as development and trade. One way the EU is establishing these linkages is through making access to funding for non-EU countries conditional to cooperation on migration management objectives. The ‘deal’ with Tunisia spearheaded by the EU, Italy, and the Netherlands is the most recent illustration.


A greater attention to the system’s governance


One of the main ills of the EU’s asylum policy is its lack of attention to the administrative dimension. The current administrative design allocates the vast majority of operationalisation obligations – including financial ones – to Member States with different levels of economic development and different conceptualisations of welfare.


The Pact instruments recognise, more adequately than previously, the policies’ implementation dimensions. The Council positions on the AMMR and the APR highlight the opportunities generated through EU funding and EU agencies to implement policy. Nonetheless, the Pact instruments fail to adequately regulate the implications of agency involvement in implementation, while the current design of the EU budget (Multi-Annual Framework 2021-2027) precludes the existence of truly structural forms of EU funding.


Next, the AMMR and APR provide a structured approach to define Member States’ relative capacities and to apportion responsibilities in some areas (e.g. implementing border procedures) on this basis. The triggering of solidarity measures is also linked with quantitative and qualitative indicators that, overall, seem to be well suited to provide a holistic picture and assess relative pressure.


Finally, the Council negotiating position on the AMMR foresees new permanent governance mechanisms, such as annual High Level EU Migration and Technical Level EU Migration fora that are meant to play pivotal roles in animating inter-state solidarity through pledges. Such permanent structures, mirroring UN level processes, seem more apt to establish effective and predictable inter-state cooperation compared to ad hoc bargaining and emergency-driven responses.   


An inadequate vision on solidarity


The AMMR largely keeps intact the basic premises of the current ‘Dublin system’, EU’s responsibility allocation system. In brief, Dublin allocates responsibility to the state primarily ‘responsible’ for the person’s presence in the EU. In practice, this should mean the state of first irregular entry to the EU territory is responsible. However, states have sought to evade their Dublin responsibility (by not registering asylum applications for example) and asylum seekers move clandestinely through the EU and evade Dublin procedures.


To counter this, the AMMR Council negotiating position aims for a more predictable operationalisation of inter-state solidarity through annual Member State pledges. Nonetheless, solidarity measures, gathered under the framework of a so-called Solidarity Pool, are still meant to be triggered in situations of pressure.


The Solidarity Pool will consist of i) relocations (i.e. organised intra-EU transfers) of asylum seekers or recently recognised beneficiaries of international protection or of migrants under a return obligation; ii) direct financial contributions provided by Member States aimed either at boosting Member State or third country capacities in the areas of asylum, migration, or border management; iii) alternative contributions such as capacity building, staff support, equipment etc. All these contributions are meant to be ‘considered of equal value’.


In breaking with the past, solidarity has a mandatory character in the sense that Member States are to annually contribute their fair share that will be calculated through a formula that takes to account their population size (50% weighting) and their total GDP (50% weighting). Nonetheless, to appease Member States that opposed relocation, the Pact instruments foresee that Member States retain full discretion in choosing between the types of solidarity measures they will contribute.


Overall, the Pact’s approach is likely to miss the mark on fair sharing. While creating permanent governance structures, the Pact continues to link the activation of solidarity with pressure. Thus, instead of establishing structural fair sharing, solidarity remains a palliative solution. Next, it is unlikely that capacity building activities in third states, or sharing of personnel and equipment, will be considered by the benefitting Member States as having equivalent impact on the ground as people sharing.


The Long and Winding Road Ahead


June 2023 saw one of the deadliest shipwrecks involving migrants seeking to reach the EU’s shores with more than 500 persons missing and presumed dead off the coast of Pylos in Greece. Unfortunately, such unnecessary loss of life is being normalized with IOM reporting over 27,500 missing migrants in the Mediterranean alone since 2014. Action to reform the EU’s migration policies is imperative.    


EU official cycles hailed the Council’s early June negotiating position as a breakthrough. The timing of the forthcoming European Parliament elections, scheduled for June 2024, generates additional impetus for the EU’s co-legislators to reach compromise positions in the next months. Nevertheless, political rifts remain intense with Poland and Hungary blocking a joint political statement of Heads of State on migration during the late June 2023 European Council meeting.


What promise do the Pact instruments carry? They pay greater attention to policy implementation, governance structures, and the operationalisation of solidarity. Nevertheless, by prioritizing externalization, and by seeking to appease a limited number of Member States that seem to oppose (inter-state solidarity in) migration, they are likely to undermine migrants’ fundamental rights, while missing the mark on fair-sharing. A reform that will fail to deliver results, risks enhancing polarization in migration matters.


Legislative developments in the EU echo the UK’s recently adopted Illegal Migration Act. They testify to Europe’s increasingly defensive policy stance in migration. It is to be hoped that future policy will eventually aim at mutually beneficial partnerships with third countries, migrant, and local populations that move beyond Eurocentric frames to meaningfully address the different components of migration processes and aim at co-development.