The New Year was bookended by worrying developments on the right to asylum in Europe:  legislative proposals which, together with the proposed Council Decision of November 2021, could be classed as a new asylum mini-package. In the reductio ad absurdum that is EU asylum law, one of the main ideas of the legislative reforms is the normalisation of derogation from legal obligations. Some of the content overlaps with proposals in the 2020 Pact, which are currently subject to legislative scrutiny, while other elements were rejected in the preparation of the Pact and have now returned via the backdoor. All of which is highly dubious.

Mini-package components

The two pieces of legislation are Regulation 890 for addressing situation of instrumentalisation in the field of migration and asylum (“the Instrumentalisation Regulation”), presented in December, and the long-promised proposals to amend Regulation (EU)2016/399, the Schengen Border Code (“SBC amendments”), presented in January. The Instrumentalisation Regulation contains a set of measures that will be available to Member States for use when they are faced with the arrival of people seeking protection as a result of “instrumentalisation” by another state. Among other changes, the SBC amendments enlighten us with the definition of instrumentalisation, heard so frequently in recent months (and successfully trumping “weaponisation” as the favoured description of Belarus’ tactics). ECRE will release detailed analysis on both shortly. The background and implications of the Instrumentalisation Regulation already merit some attention.

Building on an undecided Decision

The measures contained in the Instrumentalisation Regulation (and its objective) are the same as appear in the Council Decision proposal of November 2021. As ECRE described in its Comments paper on the Decision, the emergency measures would allow the three Member States affected to derogate from provisions in EU asylum law as a response to Belarus’ actions. To over-simplify, in the situations falling within the scope of the Decision, Member States would operate a different type of asylum regime – all people arriving would be subject to a border asylum procedure, with limited procedural guarantees, and held in conditions likely to constitute detention at the border, with reduced material conditions.

Derogations on tap

The Instrumentalisation Regulation would make these derogatory measures available to Member States on a permanent basis. That is, whenever a Member State is facing arrivals due to instrumentalisation it would be able to invoke the Regulation and put in place these measures, a sub-standard asylum regime of border procedures and border detention for all.

Handily, the definition of instrumentalisation is sufficiently broad as to capture most situations at the EU’s external borders. Arrivals from Turkey to Greece neatly fits within it, no doubt a key requirement in its drafting. Situations covered are where, “.. a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals to the external borders, onto or from within its territory and then onwards to those external borders…”. The actions should “indicate” that the third country’s intention is to “destabilise” the EU or a particular Member State although it is not clear how the intent is to be judged and by whom. Destabilisation is when actions are “liable to put at risk essential state functions” – note the broadness with “liable” and “to put at risk” rather than requiring that essential state functions are compromised. The functions given as examples are also broad categories “…including its territorial integrity, the maintenance of law and order or the safeguard of its national security”.

Thus, emergency measures designed for a particular crisis – at the borders with Belarus – which haven’t yet even been agreed, are already the subject of proposals that aim to render them available permanently.

To be clear, it is not that the derogatory measures will necessarily become permanent or integral parts of the EU asylum system – but they could. It is likely that Member States will take advantage of them being available and invoke them frequently – who doesn’t want to evade the rules? – so the CEAS will become even more complex, with standard rules and then special rules based on derogating for those invoking the Instrumentalisation Regulation.

The CJEU warned that Article 78(3) should be used strictly for provisional measures – temporary measures – not for making permanent changes to EU asylum law. The Instrumentalisation Regulation attempts to make a permanent change building on a Decision using Article 78(3) as a legal basis – although that Decision itself has not yet been accepted.

Why worry about legalising non-compliance?

ECRE’s concerns are manifold. An overview:

First, all the derogatory measures reduce protection standards; generally, they also add to rather than alleviate administrative burdens on the Member States. In terms of protection, delaying registration increases the risk of violations occurring because people are unprotected while unregistered; the border procedure is a sub-standard asylum procedure with protection needs less likely to be recognised due to difficulties in accessing procedural guarantees, inter alia; the border procedure usually takes place in detention which is likely to be the case here; the right to an effective remedy – a fundamental human right and a key element of any legal process – is weakened; and material conditions are reduced to the point that they may fall below the requirements of human dignity.

ECRE has regularly criticised efforts to expand or universalize border asylum procedures on fundamental rights grounds but it should be noted that they also increase demands on the Member States, and partly for that reason remain little used and unpopular (Member States currently may use border procedures but overwhelmingly choose not to do so). As well as the obvious need to create physical and judicial infrastructure at the borders, running multiple asylum procedures – effectively different asylum regimes – is inefficient in that it requires recruiting, training and deploying different cadres of staff, and managing and monitoring multiple procedures. In over-stretched asylum systems, ECRE’s recommendation is always to invest in the regular procedure to ensure that the core system is well-resourced, and thus fair and efficient.

Political bias creeps in; pushbacks follow

Second, reliance on border containment and processing is in the interests of the Member States for whom onward (“secondary”) movement is the primary concern and insisting on it undermines efforts to reach overall agreement on reforms. Opposition to this model among the Member States at the external borders makes it more likely that they will engage in pushbacks if it is imposed. The argument that allowing Member States to run fast procedures in border centres is a way to encourage access and preserve asylum is barely credible: just look at the Grexperiment.

Derogating at will

Third, responses based on derogations from legal obligations undermine the EU’s legal order, especially when the derogations become available on a permanent basis, and especially in an area of EU law characterised by widespread non-compliance. Limited derogations for exceptional situations are already available, but their use is – rightly – tightly circumscribed by the CJEU, as ECRE has analysed. Expanding their use to the point of normalising derogations may signal the end of a common system, especially given the ease with which Member States would be able invoke the derogatory regime and the broad definition of instrumentalisation. It will be derogation at will, generating the risk identified by the CJEU of an arbitrary situation, where Member States are following different rules and opting in and out of the CEAS as they wish.

There is something inherently contradictory about legal proposals that allow Member States to circumvent the law, which after all is not so onerous. The underlying argument may be that it is better to regulate bad practice than for these practices to remain unlawful because then limits to the bad practices are set (?). However, there is no indication that Member States will respect those limits.

The downsides of the political Commission

It is another reductio ad absurdum of EU asylum law which derives from the Commission’s self-redefinition as tool of the Member States. In an important article doing the rounds, Keleman and Pavone explain that since 2004 the Commission has been far less willing to play its enforcement role, noting a “plummeting” in the number of infringement procedures which derives not from greater compliance but – they argue – from the Commission’s “forbearance”, a deliberate political strategy based on not antagonising the Member States. The strategy has had a “chilling effect” on enforcement. Following Holland, forbearance is a “a deliberate choice not to enforce the law.” To put it in non-academic language, the Commission decided to go soft on the Member States so as to keep their support and limit their complaints.

Nowhere is the choice not to enforce more evident than in the field of EU asylum law. As ECRE has consistently argued, since 2015 (and before) the Commission has declined to play its role as Guardian of the Treaties and instead adopted a supine approach towards the Member States. This goes beyond (non) enforcement however. The Commission is also basing legislative proposals on what it thinks the Member States want. While for Keleman and Pavone enforcement is sacrificed in order to get support for a policy agenda, in this area, the policy agenda is also determined by the Member States. (The article also rightly notes that MEPs also see “little glory” in enforcement, preferring to produce new legislation.)

Instrumentalising is commonplace

A fourth concern lies in the definition of instrumentalisation which is so broad that many situations at the border will fall within it, including Greece-Turkey which it was clearly drafted to capture. If states can invoke the derogatory regime whenever there is an instance of instrumentalisation then they will potentially be invoking it all the time.

The reality is that states instrumentalise displaced people all the time – and always have done, from the religious wars in Europe to contemporary ethnic conflict, to Turkey, Belarus, Libya… – but that is no reason to dismantle protection systems.

The proposal does not provide a convincing argument as to why individuals who arrive at the EU’s external borders after activities by third country governments that constitute instrumentalisation should be treated differently from other applicants of international protection. The suggestion that they are less likely to have protection needs is unfounded. It is not clear how hollowing out the EU’s asylum system will have an impact on the motives and actions of third countries, and the complex security questions underlying them.

Democratic processes

A fifth concern is that the mini-package, or at least the Decision, Regulation and some SBC amendments, appear to be an attempt to circumvent proper legislative procedures. The content of the Decision and now the Regulation includes measures that are part of the Pact. As such, they are subject to legislative scrutiny, with the Council and Parliament examining them and proposing amendments. As ECRE has commented, to put the measures in a Council Decision bypasses Parliament as it only has the right to express an opinion rather than acting as co-legislator as it does in the ordinary legislative procedure.

Of course, the Instrumentalisation Regulation will be subject to co-legislation but it is still disconcerting that measures already proposed re-appear. The whole point about the Pact was that it was “comprehensive”, i.e. a new framework covering all relevant issues. With all the proposals on the table, why then launch a new set of measures which partially duplicates what has been presented?

But the dubiousness does not end here. The mini-package contains some measures in the Pact but it also goes beyond it, by proposing derogations wider in range and scope than appear in the Pact proposals (specifically in the Crisis Regulation), and establishing a derogatory regime is its main function. It is widely known that an early version of the Pact contained such a wider set of derogations, following lobbying from Greece in particular. Those proposals did not make it into the Pact – it is safe to assume we are seeing them return through the backdoor. Whoever lost the battle the first time around is re-staging it (the EPP rapporteur’s proposed amendments to the RAMM might be viewed in a similar light).

What should happen now?

The three proposals are linked. The Council Decision may be limited to the three affected Member States but it is still dangerous: note how other Member States are clamouring to also be allowed to ignore the law within a derogation regime. In the LIBE Committee discussion on the proposed decision, pitches were made for Cyprus and for Italy to be allowed to derogate. If the Decision is agreed, then the logic will be to pursue the Regulation in order to make derogatory measures available to all Member States on a permanent basis.

Thus, rejecting the Council Decision is imperative. Unfortunately, the necessary qualified majority is looking more and more likely. At first, the affected Member States – and Poland in particular – rejected the proposal, potentially then bringing other Member States with them given that it would seem paradoxical to accept a proposal not supported by the intended beneficiaries. Now, however, a change in tactic is in evidence, with the three Member States signalling that they could support the Decision, while working together to prepare amendments that would further reduce standards. Other Member States should reject the Decision on the basis that it is the gateway to the widespread derogatory regime provided for by the Regulation.

After that, the focus should be on the Instrumentalisation Regulation and the SBC amendments. The Instrumentalisation Regulation should be rejected, for reasons of democracy and rule of law, if nothing else. ECRE will of course propose amendments in its Comments as usual, but the more courageous and democratic – and European – approach would be non-engagement. This is a package too far.

Editorial:Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)

Photo: (CC) Ray Sadler, January 2007

This article appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.