Sunday 28 April 2024

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 10 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.* This is the eighth and final post in the series, on the Regulation on derogations in the event of a crisis, which derogates from the asylum procedures Regulation and the revised Dublin Regulation. It also includes discussion of the ‘crisis’ rules in the Regulation on a borders return procedure, and conclusions on the asylum package as a whole. 

The previous blog posts in the series concerned the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the Regulation on screening of migrants (part 5), the revised Dublin Regulation/AMMR (part 6), and the procedures Regulation (part 7).*

The new package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The crisis Regulation

The existence of a free-standing Regulation on exceptions in the event of a crisis situation is new, although there is also a Directive on temporary protection in the event of a mass influx (invoked after the Russian invasion of Ukraine) and some derogations to address large numbers of asylum applications in other EU asylum laws. There were also emergency laws on relocation of asylum seekers, to deal with the perceived refugee crisis in 2015, but they expired in 2017.

Ireland has opted out of the crisis Regulation, and the Regulation does not apply to Denmark, although Denmark (and non-EU Schengen associates) will be covered by the crisis rules in the border returns procedure Regulation.

The legislative process leading to the 2024 Regulation began with a proposal in 2020, as part of the relaunch of the proposed EU Immigration and Asylum Pact.

Like most of the rest of the new package, the Regulation will not apply for two years - on 1 July 2026.* The rationale of the Regulation is that ‘[t]he EU and its Member States may be confronted with migratory challenges that can vary greatly, in particular with regard to the scale and the composition of the arrivals. It is therefore essential that the Union be equipped with a variety of tools to respond to all types of situations’, which are ‘complementary’ to the provisions in the 2024 Dublin Regulation and the temporary protection Directive, ‘which may be used at the same time’. (The original proposal would have repealed the temporary protection Directive)

General Provisions and Scope

Among other things, as noted already, the crisis Regulation provides for derogations from the Dublin Regulation and the Procedures Regulation. However, it ‘shall not affect the fundamental principles and guarantees’ in those Regulations, and the ‘[t]emporary measures’ it provides for are subject to necessity and proportionality, must ‘be appropriate to achieving their stated objectives’, ensure the rights of asylum-seekers and those with international protection, ‘and be consistent with the obligations of the Member States under the Charter, international law and the Union asylum acquis.’ It ‘shall be applied only to the extent strictly required by the exigencies of the situation, in a temporary and limited manner and only in exceptional circumstances’

The preamble emphasises that besides the derogations, other EU asylum law applies fully. Furthermore, the exceptions in the Regulation cannot be invoked by Member States unilaterally: Member States can apply the provisions of the Regulation ‘only upon request and to the extent provided for in’ the Council Decision triggering it.  

As for its scope, the Regulation applies to two types of ‘crisis’ and to ‘force majeure’, as further defined. The first type of crisis is a ‘mass arrival’:

an exceptional situation of mass arrivals of third-country nationals or stateless persons in a Member State by land, air or sea, including of persons that have been disembarked following search and rescue operations, of such a scale and nature, taking into account, inter alia, the population, GDP and geographical specificities of the Member State, including the size of the territory, that it renders the Member State’s well-prepared asylum, reception, including child protection services, or return system non-functional, including as a result of a situation at local or regional level, such that there could be serious consequences for the functioning the Common European Asylum System

The second type of crisis is an ‘instrumentalisation’ crisis, ie Belarus shoving people across the border:

where a third country or hostile non-state actor encourages or facilitates the movement of third-country nationals or stateless persons to the external borders or to a Member State, with the aim of destabilising the Union or a Member State, and where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security.

The preamble qualifies this definition: non-state actors ‘involved in organised crime, in particular smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’; and ‘[h]umanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’.

In this context, Member States can ask to trigger the Regulation ‘in particular where there is an unexpected significant increase in the caseload of applications for international protection at the external borders’. And they can ‘only’ use the derogations in any Council decision triggering the Regulation to people ‘who are subject to instrumentalisation and who are either apprehended or found in the proximity of the external border’ – as distinct from internal borders – ‘in connection with an unauthorised crossing by land, sea or air, or who are disembarked following search and rescue operations or who have presented themselves at border crossing points’. But the preamble to the Regulation also states that in this context, ‘effective and genuine access to the international protection procedure must be ensured in accordance with Article 18 of the Charter and the [Refugee] Convention.’

Finally, ‘force majeure’ means ‘abnormal and unforeseeable circumstances outside a Member State’s control, the consequences of which could not have been avoided notwithstanding the exercise of all due care, which prevent that Member State from complying with obligations under’ the procedures and Dublin Regulations. The preamble gives the examples of pandemics and natural disasters.

Process

The process of triggering the Regulation starts with a request from a Member State, which believes it is in a crisis or force majeure situation and so sends a request to the Commission. Following this request, the Commission has two weeks to assess it and adopt a decision determining whether that Member State is indeed in a crisis or force majeure situation. Next, at the same time as adopting that decision, the Commission must, ‘where appropriate’, propose a further Council implementing decision to benefit that Member State; the Council must also act within two weeks.

The Council decision must set out some combination of derogations from EU asylum law, a ‘solidarity response plan’, or an identification of which non-EU citizens are being ‘instrumentalised’.  Also, the Commission can adopt a recommendation urging that Member State to apply an expedited procedure for applications likely to be well-founded, in which case the Member State must decide on those applications within four weeks, derogating from the usual time limits in the procedures Regulation (see part 7).

The Council decision will not apply indefinitely. It can apply only for a year in total: initially three months, with a three month extension confirmed by the Commission; then another Council decision amending it or prolonging it for three months, again with a possible three month extension if the Commission agrees. It is not clear how soon afterwards the Member State could ‘go back to the well’ to ask for another Council decision. The Commission and Council must monitor whether the situation of crisis or force majeure continues to exist, and the Commission ‘shall pay particular attention to the compliance with fundamental rights and humanitarian standards’. The EU Solidarity Coordinator, whose post was set up by the 2024 Dublin Regulation, also plays a role.

Solidarity Measures and Derogations

A Member State facing a crisis situation can request any of the various solidarity measures defined in the 2024 Dublin Regulation (see part 6): relocation (including of recent beneficiaries of international protection), financial contributions (including to non-EU states), and alternative measures. If the relocation pledges fall short, there are a number of rules on offsets (ie other Member States taking responsibility for applicants that they would otherwise have transferred to the Member State in crisis).

As for derogations from other EU asylum laws, the first potential derogation is from the procedures Regulation (see part 7), in any crisis or force majeure situation: Member States can have up to four weeks to register asylum applications, instead of five days. Next, there are a series of possible derogations from the borders procedure in the procedures Regulation: an extra six weeks to apply the procedure (on top of the usual 12 week maximum); an exemption from the obligation to apply the procedure to applicants from countries with low recognition rates; a change to the threshold of the ‘low recognition rate’ rule (either a reduction or an increase to the threshold); or deciding on the merits of all ‘instrumentalisation’ cases in the border procedure, subject to detailed safeguards for minors and families and those with special procedural or reception needs, and protection of ‘the basic principles of the right to asylum and the respect of the principle of non-refoulement as well as the guarantees’ in Chapters I and II of the procedures Regulation.

Third, in the event of force majeure or ‘mass arrival’ crises, the beneficiary Member State can extend a number of deadlines in the Dublin rules, accompanied by a delay in Dublin transfers to that Member State. Finally, in the case of ‘mass arrival’ crises, a Member State may be relieved from certain obligations to take back asylum applicants under the Dublin rules.

Border Return Procedure Regulation

The Regulation on a border return procedure provides that in the event of a crisis, as defined in the crisis Regulation, those who are subject to the border return procedure in that Regulation, because their applications were rejected in the border procedure in the procedures Regulation, and they have no right to remain, can be kept in the border return procedure for an additional six weeks – on top of the ordinary 12 weeks allowed for in the border return procedure Regulation. But as with the ordinary application of that Regulation, if they are not expelled before this extra time runs out, any detention during this period counts toward the detention time limits in the Returns Directive (see further part 7).

The procedural rules in the main crisis Regulation apply – ie a Member State cannot extend the border returns procedure unilaterally, but needs a Council decision authorising it. In that event, though, the extension of the border returns procedure can apply even to those whose asylum application was rejected before that extension was authorised.

Assessment of the crisis Regulation

To what extent, as some seem to believe, can Member States simply end the right to asylum in the event of a crisis or force majeure? In principle, not at all. The derogations in the exceptions and border return procedures Regulations are for a limited time, and only permit delays in registering applications, extensions of the Dublin deadlines, and longer periods to apply the border procedure or border return procedure – neither of which terminate the right to asylum as such. This is reinforced by the provisions of the Regulation that emphasise that other provisions of EU law, along with human rights obligations, still apply when the derogations are used. This is, of course, consistent with the Charter rights and Treaty obligations relating to human rights and asylum, including non-refoulement.

Moreover, the wording of the Regulation suggests that Member States can only derogate from EU asylum law to the extent provided for in this or other EU measures, confirming the prior case law of the CJEU (Case C-72/22 PPU; the Court has also ruled in that and many other cases that the ‘law and order’ clause in Article 72 TFEU does not give Member States carte blanche to derogate from EU asylum law). In particular, the Court ruled that, in situations of instrumentalization, Member States could not simply detain asylum-seekers on the grounds of illegal entry (as it is not a ground for detention under the reception conditions Directive, which remains the case: see part 2) or refuse to consider their asylum applications. The crisis Regulation does not provide for either of those measures as such; but Member States may attempt similar measures indirectly – by detaining people on border procedure grounds, and by closing border posts pursuant to the amendments to the Schengen Borders Code – although that and other measures regarding ‘instrumentalisation’ in the recent Borders Code amendments are subject to human rights safeguards.

Overall assessment of the asylum package

Taken as a whole, the 2024 EU asylum laws are obviously not a shift towards a more liberal legal framework for asylum and migration control. Still less are they a shift toward a radical abolition of border control, as some on the populist right are likely to claim. But nor can they plausibly be characterised, as some on the opposite side of the political spectrum claim, as a de facto abolition of the right to asylum in the EU – at least on paper. Yet it is possible that having been given an inch, Member States will take a mile; and given the record of its approach to the EU/Turkey and Italy/Albania agreements, the EU Commission may do more to help Member States in this goal than to hinder them. In that context, the role of national courts, including their requests for preliminary rulings from the CJEU, may continue to be crucial as regards the interpretation and application of EU asylum law.

Analysing the letter of the new laws (as distinct from how Member States might try to apply them), the moves towards sanctions for secondary movements and greater harmonisation of the law – rationalised as an indirect method of dissuading secondary movements – are consistent across the package. This is a reversal of the usual EU paradigm, which justifies harmonisation of law as a measure to facilitate movement across borders, not deter it.

The sanctions for secondary movement (alongside applying the Dublin rules for longer, and simply locking more people up to prevent any movement at all) entail the (conditional) loss of benefits and access to employment, the reset of the clock on obtaining EU long-term residence status, and (crucially) the deemed withdrawal of asylum applications. There is a deep inconsistency between encouraging greater negative mutual recognition of asylum refusals, while doing very little to promote positive mutual recognition (transfer of protection, mobility of international protection beneficiaries), despite the Treaty commitment to a uniform asylum status ‘valid throughout the Union’. As for harmonisation, it is not complete, but it has gone a long way, with the bonfire of most options for Member States and a lot of additional detail added to ensure that decision-making diverges less.

From the human rights perspective, it is the harmonisation of procedural standards that raises the biggest concerns. As we have seen, the restriction of appeals against Dublin transfers, a number of the deadlines to apply for appeals, and the curtailment of automatic suspensive effect of appeals are all problematic – depending on how the CJEU might approach them in light of its case law on effective remedies. On the merits, there are various default protections against non-refoulement, but it is uncertain how they will work in practice. And while the multiple fast track procedures are all subject to the observance of basic standards on paper, there are doubts about whether that is true in practice – leaving the possibility that the protections of EU asylum law will for many be a form of Potemkin village.

There is nonetheless the risk that, since NGOs have asserted that the new package destroys the right to asylum, some governments may interpret it as a licence to do just that. In this area, the problem with ‘crying wolf’ may not be so much that people stop believing your warnings – but rather that people use your cries as an inspiration to develop a wolf-based asylum policy.

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