Take this job and shove it: the revised EU law on non-EU migrant workers

 

Professor Steve Peers, Royal Holloway University of London

*Text updated Dec 22 2023, to add a link to the agreed text of the Directive, and April 12 2024, on its final adoption 

Photo credit: Lasse Fuss, via Wikimedia commons

Overshadowed somewhat by the agreement on asylum legislation, the EU Member States and the European Parliament have also this week agreed on an amendment to EU law on migrant non-EU workers, known as the ‘single permit Directive’. Unlike the asylum deal, which (subject to seeing the legal texts; I’ll comment more when they are available) seems at first sight to be a reduction in standards, the revised single permit Directive is a modest but useful improvement in standards applicable to migrant workers. [Update: the revised law was officially adopted in April 2024.]

Background

The current single permit law dates back to 2011. It does not regulate the numbers of migrants coming from non-EU countries to seek work in Member States (the Treaties state that only Member States can regulate that).  Nor does it regulate the substance of when non-EU labour migrants are admitted (ie issues such as shortage occupations, pay thresholds or other criteria for admission). Rather it regulates two issues: the procedural aspects of applying to be a migrant non-EU worker in the EU, and the equal treatment of such migrant workers. (Note that there are also EU laws on specific groups of migrant workers, which regulate the details of admission of non-EU workers in more detail: the Blue Card law on highly skilled workers; the seasonal workers Directive; and the intra-corporate transferees Directive. The EU law on admission of non-EU students and researchers is also relevant to academic staff and trainees). There is limited CJEU case law on the 2011 Directive: all of it concerns equal treatment in Italy. The UK, Ireland and Denmark opted out of the law – although it has nevertheless become applicable to UK citizens who seek to move to the EU as labour migrants post-Brexit.

Believing that the law needed updating to streamline the admissions process and strengthen equal treatment, the Commission proposed replacing it with a new version in April 2022. (See also the impact assessment on the new proposal, and the 2019 fitness check and report on implementation of the 2011 law) At the same time, the Commission proposed replacing the EU law on long-term resident non-EU citizens (see my comments on that proposal here and here, and on the Council’s position here). The latter proposal is taking longer to negotiate.

The European Parliament and the Council adopted their positions on the single permit proposal in spring of this year, and have now concluded their negotiations. Again Ireland and Denmark opted out, and the law will be relevant to Brits who move to the EU. The revised law (the ‘2024 Directive’) will likely be formally adopted in the spring of 2024, and Member States will have two years to adapt their law to comply with it. The following describes the current law, while explaining how the 2024 version will change it; it also indicates which Commission proposals for amendments were rejected.

Scope of the single permit law

In addition to non-EU citizens admitted for work, who are covered by both the procedural and equal treatment parts of the Directive, the equal treatment part of the Directive also applies to non-EU citizens who are admitted for other reasons, but who are allowed to work. However, several groups of non-EU citizens are excluded from its scope, usually because they are subject to more specific rules in other EU law: non-EU family members of EU citizens who have moved between Member States; citizens of countries which have a free movement treaty with the EU, and their families; workers who are posted to provide services (the Commission’s proposal to clarify whom this exception refers to was rejected); applicants or workers who are seasonal workers or intra-corporate transferees (the 2024 version will define these groups by reference to other EU law); au pairs (the Commission’s proposal to define them by reference to EU law was rejected); who have applied for or obtained temporary protection (adding a reference to EU law; on the position of those fleeing the invasion of Ukraine, see here; the European Parliament’s amendment to drop this exclusion failed); who have applied for or obtained refugee status or subsidiary protection on the basis of EU law; who are EU long-term residents as defined by EU law; who have applied for or been admitted as self-employed workers; whose expulsion is suspended (the European Parliament tried to drop this exclusion too); or who have applied for or been admitted as seafarers.

Member States may also disapply the procedural part of the Directive (but not the equal treatment part) to those who were admitted for less than six months (the European Parliament tried, but failed, to cut this to three months), or who were admitted to study; and the procedural part does not apply at all to those admitted on the basis of a visa.

The biggest change to the scope in the 2024 version is that the equal treatment part of the Directive will now apply to the beneficiaries of national protection (as distinct from EU-harmonised asylum law), if that national law allows them to work. Applicants for national protection are still fully excluded. This is a compromise between the Commission and European Parliament, which wanted to drop this exclusion for applicants for and those holding national protection status fully, and the Council, which wanted to retain it fully.

The single permit process

The 2011 law provides that a single permit is both a work permit and a residence permit, issued on the basis of a single application. Either an employer or employee applies for it (or both, if a Member State allows that). Applications must be made from outside the country, although Member States may allow applications for those who are legally present. The 2024 law will liberalise this, by always allowing in-country applications from non-EU citizens who are legally resident on the basis of a residence permit; Member States may allow in-country applications by those who are otherwise legally present. (The Commission and European Parliament wanted to require Member States to consider in-country applications from the latter group, but allowing in-country applications from holders of residence permits was as far as the Council was willing to go).

Member States must decide on single permit applications within 90 days, cut from four months under the current law at the behest of the European Parliament. Also, the 2024 law will streamline this further by requiring that this time limit also covers time to check the labour market (where national law provides for this). But the Commission’s more ambitious proposal (backed by the European Parliament) to streamline the process even more by applying this time limit also to the issue of a visa was rebuffed by the Council. So was the European Parliament’s attempt to cut the time limit to 45 days in certain cases. It will still remain possible to extend the deadline in exceptional cases.

The European Parliament’s attempt to introduce a minimum period of validity for single permits (two years for an indefinite contract, otherwise the duration of the contract) was not accepted by the Council, so this issue remains regulated by national law.

The current procedural rights to know the reasons for a rejection of an application or withdrawal of a single permit, and to challenge that decision in court, are retained. They are strengthened by adding requirements to consider the individual case and the principle of proportionality, at the European Parliament’s behest. The provisions on access to information will be expanded, including fees, legal redress and workers’ organisations – those additions again at the European Parliament’s behest. On application fees, it will now be specified that they must not be excessive; the European Parliament’s amendment to specify that an employer could not collect the fee from the worker (where the employer pays the fee) was accepted.

Employment rights

The current Directive provides for basic rights to live in the country and carry out employment once the single permit has been issued. The Commission sought to go further, and add two further rights of fundamental importance to the position of non-EU workers: the right to change employer and the protection of status in the event of unemployment. In both cases, the Council sought to offer much less improvement and the European Parliament sought to offer much more; and in both cases, the end result was a compromise.

Changing employer

Currently, this issue (like unemployment) is left to national law. Therefore it is not accurate to say that the 2011 directive requires workers to stick with their current employers; rather the Directive does not stand in the way of most Member States insisting upon such a requirement (for the details of which Member States require this, see the impact assessment).

The Commission proposed that workers could change employer, subject only to the option for Member States to require notification and a check of the labour market situation; this could be suspended for 30 days while Member States did checks. The Council position provided that Member States also could recheck the original conditions of admission, check a possible change of occupation, suspend the job move for 90 days (not 30) and require a minimum period with the first employer (but no more than a year), subject to an obligation to allow earlier employer changes in ‘exceptional’ cases. The European Parliament would have required notification but would only have allowed labour market checks in certain cases. The final text of the 2024 directive allows for notification and labour market checks, with a 45 day period to do checks (with an exceptional 15 day extension), and the possibility for Member States to require no more than six months with the same employer before attempting to change employer – subject to an obligation to let the worker change employer earlier if the employer has seriously breached the employment contract.

Unemployment

The Commission proposed that the worker could stay for three months of unemployment, and if they found a new job after they could stay for 30 days more while Member States did checks. The Council position cut that to two months over the entire validity of the permit. The European Parliament version provided for a nine month period, with a 12 month extension in the event of a ‘serious violation’ of the worker’s rights by an employer. The compromise in the final text of the 2024 directive is three months’ unemployment over the validity of the permit – rising to six months after two years holding a single permit, although for periods of unemployment above three months Member States can require the worker to have sufficient resources without recourse to social assistance. Moreover, if there are reasonable grounds to believe that a worker has suffered particularly exploitative working conditions, the unemployment period can be extended by four months.

Equal treatment

First of all, a reminder that as noted above, the equal treatment provisions of the Directive have a wider scope, applying also to those admitted for other reasons but allowed to work, and now to be extended also to those with a form of national protection.

There is a long list of equal treatment rights, but also a long list of exceptions. The Commission proposed that the possible derogation from equal treatment as regards housing be narrowed so that it applied only to public housing, and that those admitted on the basis of a visa have equal treatment as regards family benefits. The final text accepted the first of those amendments, subject to qualifying wording (and an explanation in the preamble, inter alia on the importance of workers having a choice not to have to take housing tied to the employer), but rejected the second (at the Council’s behest). There are also elaborations on the work-related equality rights.

Finally, in addition to some amendments to the obligations to provide information on the public, there are two wholly new provisions on bad employers: one on public sector monitoring and checks, and the other on workers’ rights of individual redress against them.  

Comments

It is obvious that the Member States in the Council were willing to accept a lot of the proposals from the Commission, as well as many of those from the European Parliament. The social democratic party in the Parliament has taken credit for insisting on these amendments, and indeed it should be congratulated if it had the main role, because the agreed law does improve the position of non-EU migrant workers. But we should not forget that as assiduously as they defended migrant workers’ rights, the social democrats (and liberals) were simultaneously reportedly throwing asylum seekers and refugees under the bus in the asylum negotiations.

To recap, the main changes to the current law are: rights to change employer and protection during unemployment; an extension of personal scope of the equal treatment rules (and their qualified extension to private housing); monitoring of, and facilitation of challenges against, bad employers; in-country applications for all holders of residence permits and a shorter deadline to decide on applications.

The main points rejected by the Council concerned visas: including the visa process within the deadline to decide on applications; and equal treatment in family benefits for visa holders. The main successes of the Parliament (besides defending Commission proposals, particularly as regards changes of employer and unemployment) are the shorter deadline to decide on applications, and an extra stay if victimised by a particularly vile employer.   

Indeed, one striking feature of the amendments is how much they aim to protect against bad employers – not only as regards that possible extra stay, but also as regards redress against them and greater monitoring of them. The provisions on private housing, and also obviously protection in the event of unemployment and the right to change employers, implicitly help to protect against exploitative employers too. A set of revisions on the law on migrant workers that mainly concerns how to protect them against predatory employers could be seen as a sign of late capitalism.

While all of the revised law formally concerns immigration, most of it is in effect about the relationship between workers and their employers: only the provisions on in-country applications and application deadlines are immigration law in the purest sense. Of course, any law on migrant workers can only be fully understood in context as an aspect of labour markets; the situation on the labour market will in turn be fundamental in practice for any migrant worker who contemplates changing employer, or who is looking for a new job during unemployment. And the key points left to national law (admission quotas, conditions of admissions) are also strongly affected by how labour markets operate in practice. Leaving these aspects of economic migration to national law mirrors the aspects of employment law as such which are left to national law by the EU, in order to take account of differences between Member States as regards the functioning of labour markets and traditions of employment regulation.

 

 

Discriminating against families: Italian family benefits before the ECJ

 

 

Virginia Passalacqua, post-doctoral researcher in EU law, Utrecht University

 

In Italy, if you are a multimillionaire and you just had a baby, the State gives you 960 euros. However, if you are, say, the non-EU domestic employee of such a millionaire and you also just had a baby, the State gives you zero.

How is this possible? Thanks to Italian legislation that for 20 years has discriminated systematically against foreign families. No wonder, these families are also poorer compared to Italian ones: 25% of them were in absolute poverty in 2020, against 6% of Italian ones.

In July 2020, the issue of discriminatory criteria for access to family benefits arrived before the ECJ, thanks to a reference by the Italian Constitutional Court (ICC), currently pending (O.D. and others, C-350/20).

This is the fourth time that the ECJ is asked to assess Italian discriminatory criteria to access family benefits (after Martinez Silva, VR, and WS). But this time, the ECJ is called to interpret a new legal parameter: Art. 34.2 of the Charter of Fundamental Rights of the EU (the Charter). Can this be a game-changer?

The relevance of Art. 34.2 of the Charter has been questioned by commentators: admittedly, secondary norms are sufficient to declare the Italian law incompatible with EU law. Yet, it is argued that the ECJ should not miss this opportunity to clarify that migrants’ equal access to benefits is a fundamental right in the EU, providing guidance both to the Italian top Court and to the lawmaker.

 

The dispute before the ICC and the preliminary question

 

The facts of the case are rather simple. O.D. and seven other TCNs applied for family benefits, either assegno di maternità or bonus bebè, alias maternity and childbirth allowance.

The maternity allowance exists since 2001 and is granted to low-income women that do not receive a job-related maternity allowance. Instead, the childbirth allowance was introduced in 2014 to support families with a newborn. This was originally granted only to low-income families, but a 2019 amendment made all families eligible; still, the amount of the allowance varies according to their income (from 960 to 1920 euros p/y).

The Italian National Institute for Social Security (INPS) refused to grant O.D. and others the maternity and childbirth allowances because only Italian nationals, EU citizens, and TCN long-term residents are eligible under Italian law. Instead, the applicants are single permit holders: legally residing TCN workers whose status is regulated by the Single Permit Directive 2011/98/EU.

O.D and others challenged such refusal on the grounds that it entailed discrimination and was contrary to EU law. Indeed, Art. 12 of the Single Permit Directive imposes to Member States to grant single-permit holders equal treatment with nationals in several areas, including “branches of social security, as defined in Regulation (EC) No 883/2004”. They argued that the two allowances must be considered as social security and that they are equally entitled to them.

The applicants, supported by ASGI - a pro-migrant association, won all the proceedings against INPS before first and second-instance courts, until they reached the Italian Supreme Court. This decided to refer their cases to the ICC for a constitutionality assessment, which, in turn, decided to make a preliminary reference to the ECJ, under the consideration that this is an area “marked by the growing influence of EU law”.

The preliminary reference asks whether the childbirth and maternity allowances can be considered as branches of social security under Regulation 883/2004 so that they would fall in the scope of application of Art.12 Directive 2011/98 and Art. 34.2 of the Charter, which grants equal treatment to any legally resident person in matters of social security and social advantage.

I will tackle these issues in order.

 

Are the maternity and childbirth allowances to be considered as social security under Regulation 883/2004?

 

Arguably, EU law and case law leave little space for interpretation on this question. The ECJ has consistently held that to understand whether a benefit falls within the scope of Regulation 883/2004 we need to look at its “constituent elements”, i.e. “its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation” (UB C-447/18, at 22).

First, the benefit’s purpose must be related to one of the risks listed in Art. 3 of Regulation 883/2004, among which appear “maternity and equivalent paternity benefits” and “family benefits”, defined as “all benefits in kind or in cash intended to meet family expenses” (Art. 1).

Second, the benefit must be granted automatically on the basis of objective criteria, without any individual or discretionary evaluation of personal needs (Martinez Silva, at 22).

Both maternity and childbirth allowances are granted on the basis of objective criteria (i.e. income and the birth of a new child) and give economic support to families. They perfectly match the ECJ definition of social security, and this is why all first and second-instance Italian courts upheld the applicants’ view and granted them equal access to the allowances as required by Art. 12 of the Single Permit Directive.

INPS and the Italian government, however, advanced an exception in respect to the childbirth allowance. They argued that its goal is to incentivizing birthrate, rather than meeting family expenses; this would be confirmed by the fact that (from 2019) the childbirth allowance is a universal benefit, granted to all families and not only to low-income ones.

But this point too had already been addressed by the ECJ, in the case law on free movement of workers. In Reina, the Court assessed whether a German measure (“childbirth loan”) could be legitimately reserved to German nationals on the grounds that it was aimed “to make up the relative deficit in births among the German population in relation to the foreign population”.

Unsurprisingly, this chauvinistic argument did not convince the ECJ. The Court stated that the sole fact that a social measure pursues a demographic aim is not enough to exclude it from the scope of application of EU law and that social security and advantages must be granted equally to EU migrants (Reina at par 15; Commission v. Greece, C-185/96, at 34). Ironically enough, in the case of Reina the discriminated family was of Italian nationality.

 

Art. 34.2 of the Charter: a hollow hope or an added value?

 

As mentioned, the Italian Constitutional Court’s decision to invoke Art. 34.2 of the Charter was met with skepticism by commentators, who deemed it superfluous and of questionable relevance (Giubboni, 2021). This is because, as previously shown, secondary law is sufficient to declare unlawful the exclusion of single permit holders from the beneficiaries of the two allowances. So, does the Charter lack any added value?

Upon a closer look, the answer is no. Art. 34.2 of the Charter states:

Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices.

This provision does present at least three important advantages. First, it refers to both social security and social advantages, while Art. 12 of the Single Permit Directive refers only to social security. Second, it grants equal treatment to all migrants residing legally, without making distinctions based on status. Third, it confers to the migrants’ right to equality a fundamental status in the EU.

The concreteness of the first two advantages is tempered by their limited scope of application (the Charter applies to Member States only when they implement EU law) and by their being subject to limitations under EU and national law. Instead, the third advantage, abstract as it is, is more significant.

In a context where even the European Social Charter grants migrants only limited access to social benefits (see Art. 19), the broad scope of Art. 34.2 sounds revolutionary. This confirms that, despite the (often valid) criticisms against the restrictive EU migration policy, fighting discrimination against migrants is a hallmark of the EU.

Indeed, the ECJ has fought discrimination against (EU and TCN) migrants for decades, pioneering the idea that equality is a necessary precondition for inclusion and integration (Kamberaj, at 90).

The case of O.D. and Others offers the ECJ the opportunity to clarify the fundamental nature of the principle of equal access to benefits for TCN migrants, which so far has been relegated to an ‘ordinary legislative function’ (Muir, 2020, at 121). This would pursue not only a rhetorical function, but it would provide guidance amidst a very confusing “polycentric” adjudication practice (Kilpatrick, 2014).

Especially in Italy, national courts have suffered from a lack of uniform interpretation when adjudicating migrants’ equal treatment (also because of the ‘dual preliminarity’ controversy, Lazzerini 2020). And the ICC denounced this situation in its reference: “The sheer number of pending disputes is testament to the serious uncertainty concerning the meaning to be ascribed to EU law.”

Moreover, Italian norms in many parts contain discriminatory provisions against migrants, and a current proposal to reform family benefits features again discriminatory selection criteria, despite a pending Commission infringement on the matter.

The ECJ evaded its obligation to interpret Art. 34.2 once (in the case of UB, C-447/18). This time, it should state clearly that migrants’ equal access to benefits is a fundamental principle of the Union, sending a powerful message to the Italian Constitutional Court and the Italian lawmaker.

 

Conclusion

 

The preliminary reference in the case of O.D. and Others speaks of an alarming phenomenon. In Italy, TCN families in need have been denied equal access to social benefits for decades, and the childbirth allowance reached a low point in this respect: it is universally granted to all but to TCN migrants.

Against this background, the preliminary reference in the case of O.D. and Others offers an important opportunity. The ECJ has a long tradition of fighting discrimination and constitutionalizing equality. In the case of O.D. and Others, its ruling can acquire erga omnes effect thanks to the follow-up ICC judgment.

The EU Court should not miss this opportunity for stating out and loud that equality is a fundamental principle of the EU also when it comes to TCN migrants, which cannot be disposed of by the erratic will of the government of the day.

 

Barnard & Peers: chapter 26

JHA4: chapter I:6

Photo Credit: Guiseppe Milo, via Wikimedia Commons

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.