On 24 June 2020, ECRE published a Legal Note entitled ‘Derogating from EU Asylum Law in the Name of “Emergencies”: The Legal Limits Under EU Law’.
The Note examines whether, and in what circumstances, Member States may lawfully bend legislative processes as a result of emergency measures and justify non-compliance with EU and International asylum obligations. The analysis is effectively presented in two sections. The first lays out the derogations which exist in EU asylum law and which Member States could potentially use as a legal basis to displace obligations under the asylum acquis. The second offers an examination of the principles that underpin the application of derogations in EU asylum law.
The declaration of emergency measures does not provide a carte blanche to derogate from asylum procedures. The Note highlights that there must, firstly, be a legislative basis for States to derogate from asylum procedures. Secondly, a lawful derogation must relate to circumstances provided for by EU law including, inter alia, the maintenance of law and order and the safeguarding of internal security under Article 72 TFEU. Thirdly, the security situation prompting the introduction of emergency measures must require the use of legislative basis to derogate, and the scope of this derogation may only then be justified to the extent provided for in the applicable EU Regulations and Directives.
Furthermore, if a State successfully argues that the asylum acquis does not sufficiently cover its security interests, the State must present evidence demonstrating that the measures are proportionate, necessary and appropriate to the action taken. Finally, all introduced measures must be fully compliant with non-derogable rights established under the ECHR and corresponding to the rights of the Charter.