The new Screening Regulation – part 5 of the analysis of new EU asylum laws

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Rock Cohen, via Wikimedia Commons

(Amended on 14 May and 10 and 18 June 2024 - changed sentences marked with an asterisk)

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 are a ‘package’ of new or revised EU asylum laws.* All the legislation was formally adopted on 14 May 2024, and published in the EU Official Journal on 22 May 2024.*

I’ve looked at all the new legislation on this blog in a series of blog posts, which are based on a forthcoming article.* This is the fifth post in the series, on the new Regulation on screening of migrants (mostly) at the external borders. The other blog posts in the series concern 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 revised Dublin rules on responsibility for asylum-seekers/AMMR (Part 6), the Regulation on asylum procedures (part 7), and the crisis Regulation plus general comments (Part 8).*

The 2024 asylum 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 Screening regulation: background

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

However, unlike most of the 2024 package of legislation, the Screening Regulation is entirely new – although to some extent it may provide a legal basis for things that were already going on in practice before its adoption. So unlike most of the other laws in the asylum package, there is no current version of the law to compare the new version to – and therefore no prior CJEU case law to consider either.

Having said that, the Screening Regulation amended a number of other EU measures, to ensure their consistency with it, namely the Regulations on: the Visa Information System; the entry-exit system; ETIAS (the travel authorisation system); and interoperability of databases.* Furthermore, a parallel Regulation amended two EU criminal law measures to ensure that they are also consistent with the main Screening Regulation.*

Why two parallel Regulations? Because the Screening Regulation, unlike the rest of the package of EU asylum law measures, is technically a law on external borders, not asylum. As such, it ‘builds upon the Schengen acquis’, and so is applicable in principle to the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) too.* Ireland must opt out (as it does not participate in Schengen) and Denmark is formally excluded (although it may apply the Regulation as a matter of national law). In contrast, the parallel amendment to EU criminal law is only relevant to Member States (but again, there will be an Irish and Danish opt out from it).

In this context, the preamble to the Regulation makes special provision for Cyprus, which has not yet fully applied Schengen; that country must apply the Regulation to those crossing the line separating the areas controlled by the Cypriot government and the Turkish Cypriot administration, even though it is not legally an international border from the perspective of EU law.  As for Denmark and Schengen associates, the preamble states that for them, references to the EU’s reception conditions Directive in the Screening Regulation should be understood as references to the relevant national law.   

As with all the new EU asylum measures, each must be seen in the broader context of all the others – which I discuss over the course of this series of blog posts.* Furthermore, the new Screening Regulation has links with the Schengen Borders Code, the main law governing crossing of external EU borders – although the Regulation did not formally amend the Code.* It will also link with (but again, not amend) the EU’s Returns Directive.

The legislative process leading to the agreed text of the screening Regulation started with the Commission proposal in 2020, as part of the attempt to ‘relaunch’ the process of amending EU asylum law, started back in 2016.* The proposal was subsequently negotiated between EU governments (the Council) and then between the Council and the European Parliament. But this blog post will look only at the final text, leaving aside the politics of the negotiations.

Like most of the other measures in the asylum package, the application date of the Screening Regulation will be about two years after adoption - namely 12 June 2026.* However, the provisions on queries of other EU information systems will only start to apply once those information systems enter into operation.

Scope

The Regulation applies to four categories of people, namely those who: 

without fulfilling the entry conditions [in the Schengen Borders Code], have crossed the external border in an unauthorised manner, have applied for international protection during border checks, or have been disembarked after a search and rescue operation

and of

third-country nationals illegally staying within the territory of the Member States where there is no indication that those third-country nationals have been subject to controls at external borders, before they are referred to the appropriate procedure.

The Regulation distinguishes between the first three categories, who are all connected with the external borders, and the fourth category (illegal staying where is there is no indication of having been controlled at external borders). For simplicity’s sake, this blog post refers to the first three categories as ‘external cases’, and the fourth category as ‘internal cases’. Both the first and third groups must be screened regardless of whether they apply for asylum or not.

Member States ‘may refrain’ from screening the fourth category of people (on the territory, having entered without authorisation), if they send the non-EU citizen back, ‘immediately after apprehension, to another Member State under bilateral agreements or arrangements or under bilateral cooperation frameworks.’ In that event, the other Member State must apply a screening process.

The Screening Process

For external borders cases, screening must be ‘carried out without delay’, and in any event completed within seven days of apprehension, disembarkation, or presentation at the border. For internal cases, the deadline is three days. Screening must end if the person concerned is authorised to enter the territory. Screening may end if the person concerned ‘leaves the territory of the Member States, for their country of origin or country of residence or for another third country’ to which they voluntarily decided to return to and were accepted by. In any case, screening ends once the deadline to complete it is reached.

Screening must take place at an ‘adequate and appropriate’ location decided by Member States; for external cases, that location should be ‘generally situated at or in proximity to the external borders’, although it could be at ‘other locations within the territory’. It must entail (referring in part to checks under other EU laws): checks on health, vulnerability, and identity; registration of biometric data ‘to the extent that it has not yet occurred’; a security check; and filling out a screening form.

For those who have made an asylum application, the registration of that application is governed by the asylum procedures Regulation. The preamble to the Screening Regulation explicitly states that an asylum application can be made during the screening process. Furthermore, the Screening Regulation is ‘without prejudice to’ the Dublin rules; and it ‘could be followed by relocation’ (ie movement to a Member State not responsible for the application) under the Dublin rules ‘or another existing solidarity mechanism’.

Member States are obliged to inform the persons being screened about the screening process itself, as well as asylum law and returns law, the Borders Code, national immigration law, the GDPR, and any prospect of relocation. Otherwise, there is no explicit reference to procedural rights. Conversely, the people being screened have procedural obligations: they must ‘remain available to the screening authorities’ and provide both specified personal data and biometric data as set out in the Eurodac Regulation. Finally, after screening ends, the person concerned should be referred to the appropriate procedure – either the asylum process or the returns process.

Treatment During Screening

As regards immigration law status during the screening process, external cases must not be authorised to enter the territory of the Member States, even though the screening might be carried out on the territory de facto. This is obviously a legal fiction, which is exacerbated by the prospect (under the procedures Regulation) of continuing that legal fiction under the ‘borders procedure’ for up to 12 weeks.

Moreover, Member States must provide in their national law that persons being screened ‘remain available to the authorities carrying out the screening for the duration of the screening, to prevent any risk of absconding and potential threats to internal security resulting from such absconding.’ This wording looks like a euphemism for detention, which the Regulation goes on to refer to more explicitly – providing that where the person being screened has not applied for asylum, the rules on detention in the Returns Directive apply.

For those who have applied for asylum, the reception conditions Directive applies to the extent set out in it. This cross-reference is potentially awkward because that Directive applies to those ‘allowed to remain on the territory’ with that status, whereas the Screening Regulation decrees that the people covered by it are not legally on the territory. Logically the reception conditions Directive must apply despite the non-entry rule of the Screening Regulation, otherwise that Regulation’s references to that Directive applying would be meaningless (the preamble to the Regulation also says that the detention rules in the reception conditions Directive ‘should apply’ to asylum seekers covered by the Regulation). Screening is not as such a ground for detention in the exhaustive list of grounds set out in the reception conditions Directive – so Member States will have to find some other ground for it from that list. The preamble to the Regulation sets out general rules on limits to detention, borrowing some language from the reception conditions directive.

As for other aspects of treatment, the Screening Regulation states that Member States ‘shall ensure that all persons subject to the screening are accorded a standard of living which guarantees their subsistence, protects their physical and mental health and respects their rights under the Charter [of Fundamental Rights].’ For asylum-seekers, this overlaps with the more detailed rules in the reception conditions Directive, but for non-asylum seekers, it in principle goes further than the Returns Directive – although the case law on that Directive has required some minimum treatment of people covered by it. Of course, for many people subject to screening, it will be the provisions on detention conditions under those two Directives which will be relevant in practice. There is a more specific provision on health care, stating that those being screened ‘shall have access to emergency health care and essential treatment of illness.’

The Regulation includes specific provisions on minors. The best interests of the child must always be paramount; the minor must be accompanied by an adult family member, if present, during the screening; and Member States must ensure the involvement of a representative for unaccompanied minors (overlapping with the relevant provisions of the reception conditions Directive).

Finally, as for contact with the outside world, ‘[o]rganisations and persons providing advice and counselling shall have effective access to third-country nationals during the screening’, although Member States may limit that access under national law where the limit is ‘objectively necessary for the security, public order or administrative management of a border crossing point or of a facility where the screening is carried out, provided that such access is not severely restricted or rendered impossible’. Presumably such access can help check that the rules on treatment are being applied, including possible challenges to detention and offering advice as regards subsequent asylum or returns procedures, or potential challenges to screening as discussed above.

Human Rights Monitoring

The Regulation sets out an overarching obligation to comply with human rights obligations, including the principle of non-refoulement (not sending a migrant to an unsafe country), as well as a requirement to have an independent human rights monitoring mechanism, which is specified in some detail. Member States must: ‘investigate allegations of failure of respect for fundamental rights’ as regards screening; ensure civil or criminal liability under national law ‘in cases of failure to respect or to enforce fundamental rights’; and create an independent mechanism to monitor human rights compliance during the screening, ensuring that allegations of human rights breaches are triggered or dealt with effectively, with ‘adequate safeguards’ to ensure its independence. The preamble points out that judicial review is not enough to meet these standards. (Also, these rules will apply to monitoring the borders procedure in the procedures Regulation)

Assessment

To what extent has this Regulation ensured a balance between migration control and human rights? It does aim towards a greater degree of migration control by imposing new legal obligations as regards many asylum seekers; but the key point as regards their rights is that the Regulation provides for a filtering process, not a final decision. In other words, the screening process does not entail in itself a decision on the merits or admissibility of an asylum claim, or a return decision. Whilst it is based on a legal fiction of non-entry, that process is strictly and absolutely limited in time, with no prospect of extending the short screening period even as a derogation under the Exceptions Regulation. (In contrast, the border procedure under the procedures Regulation lasts for longer, and can be extended in exceptional cases). And the legal fiction does not in any event mean that no law applies at all to the persons concerned; obviously at the very least, the screening Regulation itself applies, as do other EU laws which it makes applicable. (So does the ECHR: see Amuur v France) For instance, the Regulation refers to detention on the basis of the returns and reception conditions Directives, and although the lack of authorisation to enter means that the right to remain on the territory as an asylum seeker is not triggered as such, nevertheless the Regulation precludes Member States taking return decisions to remove asylum seekers, as it only provides for a filtering process.

Despite the absence of any express procedural rights in the Regulation, it is arguable that in light of the right to effective remedies and access to court set out in Article 47 of the Charter, it should at least be possible to challenge the application of the screening procedure on the basis that (for example) there is no legal ground for the screening at all, or that the screening has exceeded its permitted duration. In any event, the absence of express procedural rights should be seen in the context of the screening process not determining the merits of an asylum application.

The drafters of the Regulation chose instead to focus on the prospect of non-judicial processes to protect human rights in the context of the screening process. While non-judicial mechanisms of course play an important role in protection of human rights in general, it is useful if parallel judicial processes can be relied upon too. And one area where the Regulation should have explicitly provided for both judicial and non-judicial mechanisms is pushbacks from the territory – illegal not only under human rights law but also under EU law, as recently confirmed by the CJEU.

 

The New Pact on Migration and Asylum: Turning European Union Territory into a non-Territory

 

 

Jean-Pierre Cassarino* and Luisa Marin**

 

 

Externalization policies in 2020: where is the European Union territory?  

 

In spite of the Commission’s rhetoric stressing the novel elements of the Pact on Migration and Asylum (hereinafter: the Pact – summarized and discussed in general here), there are good reasons to argue that the Pact develops and consolidates, among others, the existing trends on externalization policies of migration control (see Guild et al). Furthermore, it tries to create new avenues for a ‘smarter’ system of management of immigration, by additionally controlling access to the European Union territory for third country nationals (TCNs), and by creating different categories of migrants, which are then subject to different legal regimes which find application in the European Union territory.  

 

The consolidation of existing trends concerns the externalization of migration management practices, resort to technologies in developing migration control systems (further development of Eurodac, completion of the path toward full interoperability between IT systems), and also the strengthening of the role of the European Union executive level, via increased joint management involving European Union agencies: these are all policies that find in the Pact’s consolidation.

 

This brief will focus on externalization (practices), a concept which is finding a new declination in the Pact: indeed, the Pact and several of the measures proposed, read together, are aiming at ‘disentangling’ the territory of the EU, from a set of rights which are related with the presence of the migrant or of the asylum seeker on the territory of a Member State of the EU, and from the relation between territory and access to a jurisdiction, which is necessary to enforce rights which otherwise remain on paper.

 

Interestingly, this process of separation, of splitting between territory-law/rights-jurisdiction takes place not outside, but within the EU, and this is the new declination of externalization which one can find in the measures proposed in the Pact, namely with the proposal for a Screening Regulation and the amended proposal for a Procedure Regulation. It is no accident that other commentators have interpreted it as a consolidation of ‘fortress Europe’. In other words, this externalization process takes place within the EU and aims at making the external borders more effective also for the TCNs who are already in the territory of the EU.

 

The proposal for a pre-entry screening regulation

 

A first instrument which has a pivotal role in the consolidation of the externalization trend is the proposed Regulation for a screening of third country nationals (hereinafter: Proposal Screening Regulation), which will be applicable to migrants crossing the external borders without authorization. The aim of the screening, according to the Commission, is to ‘accelerate the process of determining the status of a person and what type of procedure should apply’. More precisely, the screening ‘should help ensure that the third country nationals concerned are referred to the appropriate procedures at the earliest stage possible’ and also to avoid absconding after entrance in the territory in order to reach a different state than the one of arrival (recital 8, preamble of proposal). The screening should contribute as well to curb secondary movements, which is a policy target highly relevant for many northern and central European Union states.

 

In the new design, the screening procedure becomes the ‘standard’ for all TCNs who crossed the border in irregular manner, and also for persons who are disembarked following a search and rescue (SAR) operation, and for those who apply for international protection at the external border crossing points or in transit zones. With the screening Regulation, all these categories of persons shall not be allowed to enter the territory of the State during the screening (Arts 3 and 4 of the proposal). 

 

Consequently, different categories of migrants, including asylum seekers which are by definition vulnerable persons, are to be kept in locations situated at or in proximity to the external borders, for a time (up to 5 days, which can become 10 at maximum), defined in the Regulation, but which must be respected by national administrations. There is here an implicit equation between all these categories, and the common denominator of this operation is that all these persons have crossed the border in an unauthorized manner.

 

It is yet unclear how the situation of migrants during the screening is to be organized in practical terms, transit zones, hotspot or others, and if this can qualify as detention, in legal terms. The Court of Justice has ruled recently on Hungarian transit zones (see analysis by Luisa Marin), by deciding that Röszke transit zone qualified as ‘detention’, and it can be argued that the parameters clarified in that decision could find application also to the case of migrants during the screening phase. If the situation of TCNs during the screening can be considered detention, which is then the legal basis? The Reception Conditions Directive or the Return Directive? If the national administrations struggle to meet the tight deadlines provided for the screening system, these questions will become more urgent, next to the very practical issue of the actual accommodation for this procedure, which in general does not allow for access to the territory.

 

On the one side, Article 14(7) of the proposal provides a guarantee, indicating that the screening should end also if the checks are not completed within the deadlines; on the other side, the remaining question is: to which procedure is the applicant sent and how is the next phase then determined? The relevant procedure following the screening here seems to be determined in a very approximate way, and this begs the question on the extent to which rights can be protected in this context. Furthermore, the right to have access to a lawyer is not provided for in the screening phase. Given the relevance of this screening phase, also fundamental rights should be monitored, and the mechanism put in place at Article 7, leaves much to the discretion of the Member States, and the involvement of the Fundamental Rights Agency, with guidance and support upon request of the MS can be too little to ensure fundamental rights are not jeopardized by national administrations.

 

This screening phase, which has the purpose to make sure, among other things, that states ‘do their job’ as to collecting information and consequently feeding the EU information systems, might therefore have important effects on the merits of the individual case, since border procedures are to be seen as fast-track, time is limited and procedural guarantees are also sacrificed in this context. In the case the screening ends with a refusal of entry, there is a substantive effect of the screening, which is conducted without legal assistance and without access to a legal remedy. And if this is not a decision in itself, but it ends up in a de-briefing form, this form might give substance to the next stage of the procedure, which, in the case of asylum, should be an individualized and accurate assessment of one’s individual circumstances.   

 

Overall, it should be stressed that the screening itself does not end up in a formal decision, it nevertheless represents an important phase since it defines what comes after, i.e., the type of procedure following the screening. It must be observed therefore, that the respect of some procedural rights is of paramount importance. At the same time, it is important that communication in a language TCNs can understand is effective, since the screening might end in a de-briefing form, where one or more nationalities are indicated. Considering that one of the options is the refusal of entry (Art. 14(1) screening proposal; confirmed by the recital 40 of the Proposal Procedure Regulation, as amended in 2020), and the others are either access to asylum or expulsion, one should require that the screening provides for procedural guarantees.

 

Furthermore, the screening should point to any element which might be relevant to refer the TCNs into the accelerated examination procedure or the border procedure. In other words, the screening must indicate in the de-briefing form the options that protect asylum applicants less than others (Article 14(3) of the proposal). It does not operate in the other way: a TCN who has applied for asylum and comes from a country with a high recognition rate is not excluded from the screening (see blog post by Jakuleviciene).

 

The legislation creates therefore avenues for disentangling, splitting the relation between physical presence of an asylum applicant on a territory and the set of laws and fundamental rights associated to it, namely a protective legal order, access to rights and to a jurisdiction enforcing those rights. It creates a sort of ‘lighter’ legal order, a lower density system, which facilitates the exit of the applicant from the territory of the EU, creating a sort of shift from a Europe of rights to the Europe of borders, confinement and expulsions. 

 

 

The proposal for new border procedures: an attempt to create a lower density territory?

 

Another crucial piece in this process of establishing a stronger border fence and streamline procedures at the border, creating a ‘seamless link between asylum and return’, in the words of the Commission, is constituted by the reform of the border procedures, with an amendment of the 2016 proposal for the Regulation procedure (hereinafter: Amended Proposal Procedure Regulation).  

 

Though border procedures are already present in the current Regulation of 2013, they are now developed into a “border procedure for asylum and return”, and a more developed accelerated procedure, which, next to the normal asylum procedure, comes after the screening phase.

 

The new border procedure becomes obligatory (according to Art. 41(3) of the Amended Proposal Procedure Regulation) for applicants who arrive irregularly at the external border or after disembarkation and another of these grounds apply:

 

-          they represent a risk to national security or public order;

-          the applicant has provided false information or documents or by withholding relevant information or document;

-          the applicant comes from a non-EU country for which the share of positive decisions in the total number of asylum decisions is below 20 percent.  

 

This last criterion is especially problematic, since it transcends the criterion of the safe third country and it undermines the principle that every asylum application requires a complex and individualized assessment of the particular personal circumstances of the applicant, by introducing presumptive elements in a procedure which gives fewer guarantees.

 

During the border procedure, the TCN is not granted access to the EU. The expansion of the new border procedures poses also the problem of the organization of the facilities necessary for the new procedures, which must be a location at or close to the external borders, in other words, where migrants are apprehended or disembarked.

 

Tellingly enough, the Commission’s explanatory memorandum describes as guarantees in the asylum border procedure all the situations in which the border procedure shall not be applied, for example, because the necessary support cannot be provided or for medical reasons, or where the ‘conditions for detention (…) cannot be met and the border procedure cannot be applied without detention’.

 

Also here the question remains on how to qualify their stay during the procedure, because the Commission aims at limiting resort to detention. The situation could be considered de facto a detention, and its compatibility with the criteria laid down by the Court of Justice in the Hungarian transit zones case is questionable. 

 

Another aspect which must be analyzed is the system of guarantees after the decision in a border procedure. If an application is rejected in an asylum border procedure, the “return procedure” applies immediately. Member States must limit to one instance the right to effective remedy against the decision, as posited in Article 53(9). The right to an effective remedy is therefore limited, according to Art. 53 of the Proposed Regulation, and the right to remain, a ‘light’ right to remain one could say, is also narrowly constructed, in the case of border procedures, to the first remedy against the negative decision (Art. 54(3) read together with Art. 54(4) and 54(5)). Furthermore, EU law allows Member States to limit the right to remain in case of subsequent applications and provides that there is no right to remain in the case of subsequent appeals (Art. 54(6) and (7)). More in general, this proposal extends the circumstances where the applicant does not have an automatic right to remain and this represents an aspect which affects significantly and in a factual manner the capacity to challenge a negative decision in a border procedure.

 

Overall, it can be argued that the asylum border procedure is a procedure where guarantees are limited, because the access to the jurisdiction is taking place in fast-track procedures, access to legal remedies is also reduced to the very minimum. Access to the territory of the Member State is therefore deprived of its typical meaning, in the sense that it does not imply access to a system which is protecting rights with procedures which offer guarantees and are therefore also time-consuming. Here, efficiency should govern a process where the access to a jurisdiction is lighter, is ‘less dense’ than otherwise. To conclude, this externalization of migration control policies takes place ‘inside’ the European Union territory, and it aims at prolonging the effects of containment policies because they make access to the EU territory less meaningful, in legal terms: the presence of the person in the territory of the EU does not entail full access to the rights related to the presence on the territory.

 

 

Solidarity in cooperating with third countries? The “return sponsorship” and its territorial puzzle

 

Chapter 6 of the New Pact on Migration and Asylum proposes, among other things, to create a conditionality between cooperation on readmission with third countries and the issuance of visas to their nationals. This conditionality was legally established in the 2019 revision of the Visa Code Regulation. The revision (discussed here) states that, given their “politically sensitive nature and their horizontal implications for the Member States and the Union”, such provisions will be triggered once implementing powers are conferred to the Council (following a proposal from the Commission).

 

What do these measures entail? We know that they can be applied in bulk or separately. Firstly, EU consulates in third countries will not have the usual leeway to waive some documents required to apply for visas (Art. 14(6), visa code). Secondly, visa applicants from uncooperative third countries will pay higher visa fees (Art. 16(1) visa code). Thirdly, visa fees to diplomatic and service passports will not be waived (Art. 16(5)b visa code). Fourthly, time to take a decision on the visa application will be longer than 15 days (Art. 23(1) visa code). Fifthly, the issuance of multi-entry visas (MEVs) from 6 months to 5 years is suspended (Art. 24(2) visa code). In other words, these coercive measures are not aimed at suspending visas. They are designed to make the procedure for obtaining a visa more lengthy, more costly, and limited in terms of access to MEVs.

 

Moreover, it is important to stress that the revision of the Visa Code Regulation mentions that the Union will strike a balance between “migration and security concerns, economic considerations and general external relations”. Consequently, measures (be they restrictive or not) will result from an assessment that goes well beyond migration management issues. The assessment will not be based exclusively on the so-called “return rate” that has been presented as a compass used to reward or blame third countries’ cooperation on readmission. Other indicators or criteria, based on data provided by the Member States, will be equally examined by the Commission. These other indicators pertain to “the overall relations” between the Union and its Member States, on the one hand, and a given third country, on the other. This broad category is not defined in the 2019 revision of the Visa Code, nor do we know what it precisely refers to.

 

What do we know about this linkage? The idea of linking cooperation on readmission with visa policy is not new. It was first introduced at a bilateral level by some member states. For example, fifteen years ago, cooperation on redocumentation, including the swift delivery of laissez-passers by the consular authorities of countries of origin, was at the centre of bilateral talks between France and North African countries. In September 2005, the French Ministry of the Interior proposed to “sanction uncooperative countries [especially Morocco, Tunisia and Algeria] by limiting the number of short-term visas that France delivers to their nationals.” Sanctions turned out to be unsuccessful not only because of the diplomatic tensions they generated – they were met with strong criticisms and reaction on the part of North African countries – but also because the ratio between the number of laissez-passers requested by the French authorities and the number of laissez-passers delivered by North African countries’ authorities remained unchanged.  

 

At the EU level, the idea to link readmission with visa policy has been in the pipeline for many years. Let’s remember that, in October 2002, in its Community Return Policy, the European Commission reflected on the positive incentives that could be used in order to ensure third countries’ constant cooperation on readmission. The Commission observed in its communication that, actually, “there is little that can be offered in return. In particular visa concessions or the lifting of visa requirements can be a realistic option in exceptional cases only; in most cases it is not.” Therefore, the Commission set out to propose additional incentives (e.g. trade expansion, technical/financial assistance, additional development aid).

 

In a similar vein, in September 2015, after years of negotiations and failed attempt to cooperate on readmission with Southern countries, the Commission remarked that the possibility to use Visa Facilitation Agreements as an incentive to cooperate on readmission is limited in the South “as the EU is unlikely to offer visa facilitation to certain third countries which generate many irregular migrants and thus pose a migratory risk. And even when the EU does offer the parallel negotiation of a visa facilitation agreement, this may not be sufficient if the facilitations offered are not sufficiently attractive.”

 

More recently, in March 2018, in its Impact Assessment accompanying the proposal for an amendment of the Common Visa Code, the Commission itself recognised that “better cooperation on readmission with reluctant third countries cannot be obtained through visa policy measures alone.” It also added that “there is no hard evidence on how visa leverage can translate into better cooperation of third countries on readmission.”

 

Against this backdrop, why has so much emphasis been put on the link between cooperation on readmission and visa policy in the revised Visa Code Regulation and later in the New Pact? The Commission itself recognised that this conditionality might not constitute a sufficient incentive to ensure the cooperation on readmission.

 

To reply to this question, we need first to question the oft-cited reference to third countries’ “reluctance”[n1] to cooperate on readmission in order to understand that, cooperation on readmission is inextricably based on unbalanced reciprocities. Moreover, migration, be it regular or irregular, continues to be viewed as a safety valve to relieve pressure on unemployment and poverty in countries of origin. Readmission has asymmetric costs and benefits having economic social and political implications for countries of origin. Apart from being unpopular in Southern countries, readmission is humiliating, stigmatizing, violent and traumatic for migrants,[n2] making their process of reintegration extremely difficult, if not impossible, especially when countries of origin have often no interest in promoting reintegration programmes addressed to their nationals expelled from Europe. 

 

Importantly, the conclusion of a bilateral agreement does not automatically lead to its full implementation in the field of readmission, for the latter is contingent on an array of factors that codify the bilateral interactions between two contracting parties. Today, more than 320 bilateral agreements linked to readmission have been concluded between the 27 EU Member States and third countries at a global level. Using an oxymoron, it is possible to argue that, over the past decades, various EU member states have learned that, if bilateral cooperation on readmission constitutes a central priority in their external relations (this is the official rhetoric), readmission remains peripheral to other strategic issue-areas which are detailed below. Finally, unlike some third countries in the Balkans or Eastern Europe, Southern third countries have no prospect of acceding to the EU bloc, let alone having a visa-free regime, at least in the foreseeable future. This basic difference makes any attempt to compare the responsiveness of the Balkan countries to cooperation on readmission with Southern non-EU countries’ impossible, if not spurious.

 

Today, patterns of interdependence between the North and the South of the Mediterranean are very much consolidated. Over the last decades, Member States, especially Spain, France, Italy and Greece, have learned that bringing pressure to bear on uncooperative third countries needs to be evaluated cautiously lest other issues of high politics be jeopardized. Readmission cannot be isolated from a broader framework of interactions including other strategic, if not more crucial, issue-areas, such as police cooperation on the fight against international terrorism, border control, energy security and other diplomatic and geopolitical concerns. Nor can bilateral cooperation on readmission be viewed as an end in itself, for it has often been grafted onto a broader framework of interactions.

 

This point leads to a final remark regarding “return sponsorship” which is detailed in Art. 55 of the proposal for a regulation on asylum and migration management. In a nutshell, the idea of the European Commission consists in a commitment from a “sponsoring Member State” to assist another Member State (the benefitting Member State) in the readmission of a third-country national. This mechanism foresees that each Member State is expected to indicate the nationalities for which they are willing to provide support in the field of readmission. The sponsoring Member State offers an assistance by mobilizing its network of bilateral cooperation on readmission, or by opening a dialogue with the authorities of a given third country where the third-country national will be deported. If, after eight months, attempts are unsuccessful, the third-country national is transferred to the sponsoring Member State. Note that, in application of Council Directive 2001/40 on mutual recognition of expulsion decisions, the sponsoring Member State may or may not recognize the expulsion decision of the benefitting Member State, just because Member States continue to interpret the Geneva Convention in different ways and also because they have different grounds for subsidiary protection. 

 

Viewed from a non-EU perspective, namely from the point of view of third countries, this mechanism might raise some questions of competence and relevance. Which consular authorities will undertake the identification process of the third country national with a view to eventually delivering a travel document? Are we talking about the third country’s consular authorities located in the territory of the benefitting Member State or in the sponsoring Member State’s? In a similar vein, why would a bilateral agreement linked to readmission – concluded with a given ‘sponsoring’ Member State – be applicable to a ‘benefitting’ Member State (with which no bilateral agreement or arrangement has been signed)? Such territorially bounded contingencies will invariably be problematic, at a certain stage, from the viewpoint of third countries. Additionally, in acting as a sponsoring Member State, one is entitled to wonder why an EU Member State might decide to expose itself to increased tensions with a given third country while putting at risk a broader framework of interactions.

 

As the graph shows, not all the EU Member States are equally engaged in bilateral cooperation on readmission with third countries. Moreover, a geographical distribution of available data demonstrates that more than 70 per cent of the total number of bilateral agreements linked to readmission (be they formal or informal[n3]) concluded with African countries are covered by France, Italy and Spain. Over the last decades, these three Member States have developed their respective networks of cooperation on readmission with a number of countries in Africa and in the Middle East and North Africa (MENA) region.

 

 

Given the existence of these consolidated networks, the extent to which the “return sponsorship” proposed in the Pact will add value to their current undertakings is objectively questionable. Rather, if the “return sponsorship” mechanism is adopted, these three Member States might be deemed to act as sponsoring Member States when it comes to the expulsion of irregular migrants (located in other EU Member States) to Africa and the MENA region. More concretely, the propensity of, for example, Austria to sponsor Italy in expelling from Italy a foreign national coming from the MENA region or from Africa is predictably low. Austria’s current networks of cooperation on readmission with MENA and African countries would never add value to Italy’s consolidated networks of cooperation on readmission with these third countries. Moreover, it is unlikely that Italy will be proactively “sponsoring” other Member States’ expulsion decisions, without jeopardising its bilateral relations with other strategic third countries located in the MENA region or in Africa, to use the same example. These considerations concretely demonstrate that the European Commission’s call for “solidarity and fair sharing of responsibility”, on which its “return sponsorship” mechanism is premised, is contingent on the existence of a federative Union able to act as a unitary supranational body in domestic and foreign affairs. This federation does not exist in political terms.

 

Beyond these practical aspects, it is important to realise that the cobweb of bilateral agreements linked to readmission has expanded as a result of tremendously complex bilateral dynamics that go well beyond the mere management of international migration. These remarks are crucial to understanding that we need to reflect properly on the conditionality pattern that has driven the external action of the EU, especially in a regional context where patterns of interdependence among state actors have gained so much relevance over the last two decades. Moreover, given the clear consensus on the weak correlation between cooperation on readmission and visa policy (the European Commission being no exception to this consensus), linking the two might not be the adequate response to ensure third countries’ cooperation on readmission, especially when the latter are in position to capitalize on their strategic position with regard to some EU Member States.

 

 

Conclusions  

 

This brief reflection has highlighted a trend which is taking shape in the Pact and in some of the measures proposed by the Commission in its 2020 package of reforms. It has been shown that the proposals for a pre-entry screening and the 2020 amended proposal for enhanced border procedures are creating something we could label as a ‘lower density’ European Union territory, because the new procedures and arrangements have the purpose of restricting and limiting access to rights and to jurisdiction. This would happen on the territory of a Member State, but in a place at or close to the external borders, with a view to confining migration and third country nationals to an area where the territory of a state, and therefore, the European territory, is less … ‘territorial’ than it should be: legally speaking, it is a ‘lower density’ territory.  

 

The “seamless link between asylum and return” the Commission aims to create with the new border procedures can be described as sliding doors through which the third country national can enter or leave immediately, depending on how the established fast-track system qualifies her situation. 

 

However, the paradox highlighted with the “return sponsorship” mechanism shows that readmission agreements or arrangements are no panacea, for the vested interests of third countries must also be taken into consideration when it comes to cooperation on readmission. In this respect, it is telling that the Commission never consulted third states on the new return sponsorship mechanism, as if their territories were not concerned by this mechanism, which is far from being the case. For this reason, it is legitimate to imagine that the main rationale for the return sponsorship mechanism may be another one, and it may be merely domestic. In other words, the return sponsorship, which transforms itself into a form of relocation after eight months if the third country national is not expelled from the EU territory, subtly takes non-frontline European Union states out of their comfort-zone and engage them in cooperating on expulsions. If they fail to do so, namely if the third-country national is not expelled after eight months, non-frontline European Union states are as it were ‘forcibly’ engaged in a ‘solidarity practice’ that is conducive to relocation.

 

Given the disappointing past experience of the 2015 relocations, it is impossible to predict whether this mechanism will work or not. However, once one enters sliding doors, the danger is to remain stuck in uncertainty, in a European Union ‘no man’s land’ which is nothing but another by-product of the fortress Europe machinery. 

 

Barnard & Peers: chapter 26

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

Photo: asylum seekers arriving at Lesbos, by Ggia - Own work, via Wikicommons CC BY-SA 4.0

 

* College of Europe, Warsaw, Poland.

** European University Institute, San Domenico di Fiesole, Italy. Luisa Marin acknowledges funding from the European Union’s Horizon 2020 research and innovation programme, Marie Skłodowska-Curie grant agreement No 891762: “Controlling Escapes from Law. Re-designing accountability in the externalisation of migration control policies”.

 

While the introduction and the concluding remarks are common, sections a) and b) have been written by Luisa Marin, and section c) by Jean-Pierre Cassarino. Both Authors are affiliated to ADIM, Accademia ‘Diritto e Migrazioni’, of the University of Tuscia. The usual disclaimer applies.

 

 

[n1] For a critical approach to the use and abuse of the notion of “reluctance” in the West, see A. Acharya, “How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism”, International Organization, 2004, 58(2), pp. 239-275; J.-P. Cassarino, “Beyond the Criminalisation of Migration: A Non-Western Perspective”, International Journal of Migration and Border Studies, 2018 4(4), pp. 397–411; M. Cebeci, Deconstructing "Ideal Power Europe": The EU and the Arab Change, 2019, London: Lexington Books.

 

[n2] Among many others, see U. Von Lersner, Th. Elbert and F. Neuner, “Mental health of refugees following state-sponsored repatriation from Germany”, BMC Psychiatry 2008 8:88. L. Schuster and N. Majidi, “Deportation stigma and re-migration”, Journal of Ethnic and Migration Studies, 2015 41(4): 635–652. J. Alpes, Ch. Blondel, N. Preiss and M. Sayos Monras, “Post-deportation risks for failed asylum-seekers”, Forced Migration Review, 2017 54.

 

[n3] On the informalization of agreements linked to readmission at bilateral and supranational levels, see J.-P. Cassarino, “Informalising Readmission Agreements in the EU Neighbourhood”, The International Spectator, 2007, 42 (2): 179-196, J.-P. Cassarino, “Informalizing EU Readmission Policy” In A. Ripoll Servent and F. Trauner (eds.), The Routledge Handbook of Justice and Home Affairs Research. 2018, London: Routledge, pp. 83-98. On its implications for access to fundamental rights, see M. Giuffré, The Readmission of Asylum Seekers under International Law. 2020, Oxford: Hart, pp. 160-170. See also, S. Carrera, Implementation of EU Readmission Agreements: Identity Determination Dilemmas and the Blurring of Rights. 2016, Heidelberg: Springer International Publishing.

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.