ECRE has published a comments paper on the Regulation on addressing situations of crisis and force majeure in the field of migration and asylum.

The Crisis Regulation creates three special legal regimes for managing the asylum system in three exceptional situations: (1) crisis – mass influx, (2) crisis – instrumentalisation, and (3) force majeure. The special regimes are based on allowing Member States (MS) to derogate from EU asylum law, with a range of derogations that they can request when faced with one or more of the three situations.

In ECRE’s view, an approach based on allowing derogations will have a significant negative impact on the rights of people on the move, especially in a context of widespread non-compliance, and given that the current and new legal frameworks already provide for sufficient flexibility to address challenging situations. The Crisis Regulation is an example of initially exceptional and temporary measures designed for limited use in emergency situations being integrated into permanent law.

The Crisis Regulation merges two proposals, the Crisis and Force Majeure Regulation and the Instrumentalisation Regulation proposals, into a single text. From the start, ECRE has questioned the added value of the measures in supporting MS, and raised concerns about the impact on both the global protection system and the fundamental rights of displaced people. The Crisis Regulation not only codifies new legal concepts, but also provides for the expanded and more flexible use of restrictive and harmful rules mainly found in the Regulation on Asylum and Migration Management (RAMM) and the Asylum Procedures Regulation (APR), such as allowing expanded use of the border procedure.

Concerns include the risk of building in de-harmonisation of the Common European Asylum System (CEAS), whereby MS will be permitted to apply different legal rules, the increased complexity of the CEAS – which will in turn render monitoring compliance more of a challenge, the unpredictable impact of the new Regulation, and the lack of conceptual clarity. The negative impact on the right to asylum is potentially significant.

There are several ways to mitigate the risks posed. First, by ensuring that implementation, including the interpretation and application of the concepts of crisis, instrumentalisation and force majeure is carried out in accordance with the fundamental principles of EU primary law, including the principles of proportionality and necessity, and with full respect for fundamental rights.

Second, the use of the special regimes should be confined to genuinely exceptional situations rather than becoming standard or regular. There is a strong risk that MS seek to overuse or misuse the special regimes by regularly invoking them in order to benefit from the increased solidarity and, in particular, the use of derogations. Tightly circumscribing their use will then be necessary. It will also be important to ensure that MS do not attempt to apply special regimes in parallel or consecutively in order to get around the maximum one year time limit for the application of a special regime in response to a particular situation.

Third, there are other safeguards that seek to prevent misuse, including that there should be serious consequences for the functioning of the CEAS as a whole, that the MS should demonstrate that other available measures are not adequate, and that the system should have been well-prepared.

There are also measures which could assist in ensuring that asylum systems function better if they are well-used. Primarily, the concept of the well-prepared system which appears in the RAMM is also included as a safeguard in the Crisis Regulation: MS can only benefit from a special regime if there is disruption to the functioning of a “well-prepared” system. They need to show that, despite being well-prepared, the exceptional situation rendered the system non-functional. ECRE argues that “well-preparedness” should be defined as an asylum system that generally functions in compliance with all elements of the CEAS, which should render it robust enough to deal with an exceptional situation. A system where there are significant, long-standing or regularly occurring implementation gaps – concerning any area of the asylum acquis – is not a well-prepared system ready to deal with a crisis.

While ECRE cautiously welcomes the role of the European Commission (EC) in determining the existence and persistence of the situation of crisis or force majeure, which is a requirement for measures to be authorised, the extent to which it prevents misuse of the Regulation remains to be seen in practice. It will be essential for the EC to take a politically neutral, objective and evidence-based approach, with strict application of the fundamental principles of EU law and the related jurisprudence of the Court of Justice of the European Union.

Finally, the Crisis Regulation includes a menu of solidarity measures and derogations from which MS can choose when facing a situation of crisis or force majeure. ECRE urges the use of measures that alleviate pressure on MS facing crisis or force majeure while ensuring continued access to an asylum procedure in Europe and full respect for international and EU law, including fundamental rights obligations.

Thus, among the available solidarity measures, relocation of applicants and capacity support to reception systems would be useful options. The use of responsibility offsets, whereby other MS assume responsibility for applicants on their territory rather than seeking to transfer them back to a MS facing a crisis, would also be relevant. Derogations to the RAMM that allow for longer timelines for take charge requests, replies and transfers may in the short-term create uncertainty for an applicant but are likely to increase the number of successful take charge requests, for instance on the basis of the family criteria, thus providing benefits to applicants and MS in a crisis situation. The suspension of take back transfers and possible eventual cessation of responsibility for MS in crisis are also positive measures. Finally, the possible use of an expedited procedure is also an important measure at it will accelerate access to asylum when applied.

On the other hand, certain other derogations are likely to have a significant negative impact on the rights of applicants and should be avoided. These include delaying registrations, limiting border crossings, extending the time period and the scope of the border procedure, and extending time limits for requests, replies and transfers for take back notifications.

The comments paper is available here.