Abstract
The New Pact on Migration and Asylum contains two pieces of proposed legislation which raise several concerns. A closer look at the Proposal for a Screening Regulation and the Proposal for Crisis and Force Majeure Regulation reveals that the frontline States are obliged to become border guards in an exacerbated way. The legislation is excessively technical and unrelated to the capacities of the affected States and, as such, will be difficult, if not impossible, for frontline States to implement. The primary argument of this article is that the mechanisms of the New Pact that are intended to contain the arrival of migrants and to level the imbalances caused by the geographical location of the EU Member states with external borders will actually allow the derogation of migrants’ rights and will hardly compensate for the special circumstances faced by frontline EU States. Instead of balancing the burdens of migration among Member States, the weight will be disproportionately borne by the very States the legislations propose to relieve.
1 Introduction: A “Better” Framework to Move the European Asylum System Forward?1
On September 23, 2020, the European Commission unveiled its inaugural Pact on Migration and Asylum.2 The Pact’s proposals are the most recent attempt in the effort to harmonise asylum law amongst EU Member States that has been underway for four decades. Under the 1992 Maastricht Treaty, asylum and immigration became an area of EU competence within the framework of intergovernmental cooperation. In 1997, the Treaty of Amsterdam provided the legal basis for the creation of the Common European Asylum System (CEAS) and the European Council was mandated to adopt specific set of measures on refugees and asylum seekers according to the 1951 Refugee Convention. The first explicit mention to the CEAS was made in 1999 in the Tampere Conclusions.3 Accordingly, the initial phase of the CEAS (2000–2006) defined common denominators and minimum standards to be accomplished by Member States. It was followed by a second stage of development with a shift of emphasis towards a common procedure and a uniform protection status as detailed in the 2007 Treaty on the Functioning of the European Union (2007–2014).4 Once the second stage was completed, the 2015–2016 refugee crisis emerged, and with it, the deterioration of the European asylum system during which Member States implemented a number of national and ad hoc responses jeopardising the implementation of common standards.
The 2015 responses were not aligned with the EU’s interest in orienting the migration and asylum systems within the Union’s institutional framework.5 This led the European Commission to launch the reform proposal of 2016. European co-legislators reached provisional agreements regarding the requirements for obtaining international protection,6 on the reception conditions for applicants,7 on the Eurodac Regulation,8 and on the Proposal for establishing the European Union Agency for Asylum.9 In spite of this significant progress, the Commission admitted that little progress was made on the proposals to amend the Dublin III Regulation10 as well as the Asylum Procedures Regulation.11 In 2018, a proposal on common standards and procedures for returning illegally staying third-country nationals was also launched, and is still pending.12 Therefore, although some measures were adopted, the 2016 package proposed for the reform of the CEAS did not prosper.
After the 2019 elections to the European Parliament, it became clear that a renewed approach to the CEAS was needed.13 The newly elected European Commission proposed the New Pact as part of a public statement marking its political agenda. The Commission’s renewed commitment to asylum and migration policies had to be reflected in this Pact. The asylum reform had been stalled for four years owing to one main reason, the lack of consensus among States on the scope of the solidarity principles provided for in Art. 80 of the Treaty on European Union (TEU).14 The New Pact sent the message that the Commission was ready to lead Member States out of the political impasse.15
In accord with this message, the Commission’s main objective in creating the New Pact is to incorporate the varying interests of Member States in the next reform of the asylum and migration systems. However, the consensus is hindered when the subject of the debate is the principle of solidarity. According to Frontex, in the first six months of 2022, the number of illegal border crossings through the Eastern, Central and Western Mediterranean routes and the Western African route was of 56.445.16 Taking these facts into account, the interest of the Mediterranean frontline States is to establish a mandatory solidarity mechanism,17 whereas the Eastern European States see any attempt to make solidarity a structural binding norm as contrary to their interests.18
The New Pact contains five legislative proposals,19 three recommendations20 and one guidance document.21 This article will focus on two of the proposals that apply directly to frontline States: (a) the Proposal for a Regulation introducing a screening of third country nationals (hereinafter the Screening Regulation) which puts forth a pre-screening procedure that will necessarily be performed by frontline States;22 and (b) the Proposal for Situations of Crisis and Force Majeure which establishes a new and very singular solidarity mechanism (hereinafter, the Crisis Regulation), which primarily will affect frontline States.23
The aim of this article is to explore the intrinsic contradictions contained in the two Proposals and to demonstrate that, rather than meeting the Pact’s objective of integrating the interests of different Member States, the performance of the pre-entry screening and the situations of crisis mechanism as established in the two Proposals place additional burdens on frontline States. These contradictions will inevitably cause imbalances and tensions to arise between Member States.24 Particularly between the ones next to the Central and Eastern Mediterranean routes (known as the MED5)25 and the Central European States. Indeed, the analysis of the Screening and Crisis Regulations reveals that the approach would not compensate for the geographical situation of the frontline States. Moreover, the Proposals are excessively technical and disconnected from contextual realities. They also fail to resolve the relevant evidence of human rights violations and humanitarian needs faced by the migrants entering the frontline States.26
The article is structured in two parts. The first part focuses on the Screening Regulation and its foreseeable effects on migrants and frontline States. Building on the argument that the realities faced by frontline States are not sufficiently addressed by the Pact as a whole, the second part addresses the Crisis Regulation, insofar as it is conceived as an assessment made by the European Commission and does not respond to the burden assumed by States that serve as main entry points to Europe. The core argument this article advances is that the two Proposals are likely to cause strong imbalances between frontline and non-frontline States if they are not accompanied by substantive cooperation to support the former.27
2 Border Containment Through Pre-entry Screening
The Explanatory Memorandum of the Screening Regulation states that the Proposal contributes to protecting the Schengen area, and to ensure efficient management of irregular migration.28 The method of the Proposal for the Screening Regulation is to establish a pre-entry screening according to a European framework of uniform rules.29 It proposes a two-step linked process which will have to be applied to all non-EU citizens wishing to enter an EU border and who do not fulfil entry requirements. Firstly, they are subject to a screening process. This preliminary assessment is designed to determine migrants’ identity, age, and reasons for migration.30 It implies as well the possibility for Member States to conduct a vulnerability check, a preliminary health check and a security check by national authorities.31
The Council failed to justify this redundancy in its June 2022 Decision and insisted that, “despite the applied border surveillance measures, Member States could be confronted with unauthorised border crossing by third country nationals trying to avoid border checks”.32
Except for rare cases where an asylum seeker fulfils the entry conditions or presents him/herself to asylum authorities within the territory, all asylum seekers and migrants will need to pass through the screening process before having access to an asylum procedure.33 The screening is designed, firstly, to identify those people who are “unlikely” to be accepted in the Member States because their applications are misleading, because they come from countries with low recognition rates, because they pose a threat to national security, or because they are applicants coming from safe countries; and secondly, to direct the persons to relevant procedures. It is essentially a preparatory stage for a posterior procedure – be it either asylum or return.34
As a consequence of the mandatory screening, migrants’ access to the asylum procedure is delayed, and the protection guaranteed to asylum seekers under the current Reception Conditions Directive (such as reception conditions, restrictions on detention, and procedural safeguards) is also delayed.35 In some ways, the Screening Regulation creates the negative presumption that the asylum seeker does not meet the criteria for entry. This broad presumption applies not only to those at the border but also extends to unauthorized third country nationals already within the territory who, under the Screening Regulation, are subject to apprehension and screening.36
The outcome of the screening is contained in a debriefing form (the screening form which provides with information, but it is not a formal decision) completed by the authorities responsible for screening, to be transmitted to asylum or return authorities respectively.37 In other words, the debriefing will direct the persons to appropriate procedures and in the case they are directed to an asylum procedure, the screening form will determine whether to channel asylum seekers to either a regular asylum procedure or possibly to a border procedure.38 The debriefing indicates the elements that might be crucial for deciding the submission of persons to one of the procedures.
The Screening Regulation obliges Member States to use the border procedure in three circumstances: a) if the asylum seeker poses a risk to national security or public order; b) if the asylum seeker has misled the authorities by presenting false information or documents or by withholding relevant information or documents; or c) if the asylum seeker is from a third country for which the share of positive asylum decisions in the total number of asylum decisions is below 20 per cent.39 Only after the border procedure (which may take up to 12 weeks), do asylum seekers have a right to enter the territory of the Member State.
Although the debriefing contains critical information affecting the rights of the affected persons such as essential information for the further examination of the asylum application under the proposed Asylum Procedures Regulation, or even result in a non-entry decision, the Screening Regulation does not clarify if the debriefing form could be appealed, or if the concerned person has the right to be heard before the completion of the debriefing by the authorities.
The person submitted to the screening has virtually no right to appeal at this preliminary stage.40 According to the Commissions version, art. 7 of the Screening Regulation referred to monitoring of fundamental rights in a broad sense. However, according to the Council, the monitoring mechanism was reduced to the compromise of Member States to “provide for an independent monitoring mechanism to ensure compliance with EU and international law, the Charter of Fundamental Rights, including access to asylum procedure and the principle of non-refoulement”.41 The compliance with national rules on detention, including the grounds of the deprivation of liberty, and the assurance that allegations of non-respect for fundamental rights are dealt effectively and without undue delay are not covered by the mechanism.
2.1 Application ratione personae: “All” Third Country Nationals
The scope of application ratione personae of the pre-entry screening covers three categories of third-country nationals: those who are intercepted in connection with an unauthorised crossing; those who are disembarked following a rescue at sea (SAR) operation; and those who apply for international protection at external border crossing points or in transit zones, without fulfilling the entry conditions established in the Schengen Borders Code.42 By referring in general terms to the mixed flows – of irregular migrants and persons in need of international protection –, the Screening Regulation removes the line between economic migrants and people seeking international protection.43 This is yet another inconsistency between the Proposal and the current legal system.
The differentiation between applicants for international protection and migrants is rooted in a form of legal reasoning that can be mainly traced back to the 1951 Geneva Convention relating to the Status of Refugees. As well, according to the Qualification Directive, people seeking international protection are subject to special treatment in relation to entry and stay in the receiving State recognised in the 1951 Geneva Convention.44 The Screening Regulation cancels this distinction by placing the two types of migrants under the same regime. Thus, it promotes the stereotype that asylum seekers and irregular migrants are equivalent, and strengthens the practices whereby asylum seekers are treated in the same way as economic migrants.45 This contradicts the European Court of Human Rights (ECtHR) jurisprudence recognizing asylum seekers as a particularly vulnerable category of migrants in need of special protection (M.S.S. v. Belgium and Greece;46 Tarakhel v. Switzerland [GC],47 and A.S. v. Switzerland).48
As mentioned above, questions arise as to the rights of people undergoing the screening: the conditions of reception, legal assistance, consequences of the decision they receive, and whether and how it can be challenged; the grounds of refusal of entry, and the use of the collected data.49 The Proposal’s vague language leaves these questions unanswered, leaving not only migrants, but also States, in precarious positions.
In addition, the Screening Regulation does not provide for judicial review of the result of the border examination. The absence of any provision related to judicial review strips the migrants of the human right to an effective remedy (art. 13 ECHR and art. 47 of the EU Charter of Fundamental Rights). This contradicts the jurisprudence noted above as well as the ECtHR’s judgment in the case Darboe and Camara v. Italy, which concluded that regarding the applicant’s procedural rights during the age assessment procedure, there are guarantees for unaccompanied minor asylum-seekers under domestic and EU law.50
Furthermore, pre-entry screening contradicts the provisions of the Schengen Borders Code, which provides that
third-country nationals who do not fulfil one or more of the conditions laid down in paragraph 1 may be authorised by a Member State to enter its territory on humanitarian grounds, on grounds of national interest or because of international obligations.51
Crossing external borders at border crossings and during set opening hours is the general rule under the Schengen Borders Code and Member States are required to set sanctions in the case of unauthorised crossings.52 However, they must do so without prejudice to their obligations regarding international protection. When the Schengen Borders Code mentions international obligations, this relates to the prohibition of imposing penalties on refugees on account of their illegal entry provided for in Art. 31 of the Geneva Convention.
The Screening Regulation strengthens the close relationship between the control of external borders and the responsibility of examining asylum applications.53 While border control was originally related to migration, in asylum processes the prevailing objective is protecting those who are persecuted.54 The tendency to merge both phenomena – border control and examination of applications – shifts the burden towards countries of first entry. And exacerbates it as the Screening Regulation states that screening should be completed “as soon as possible, and should not exceed 5 days where it is conducted at the external border and 3 days where it is conducted within the territory of a Member State”.55 Once the Pact was launched, the Mediterranean bloc rejected the Screening Proposal, as it would force them to manage border control, including irregular migration, according to an additional regulation.
Not by coincidence, the main operations launched by EASO (now EUAA) to support Member States’ reception systems during 2020 were deployed in Malta, Cyprus, Italy, and Spain.56 As a recent example, in July 2022 the Italian navy relocated hundreds of migrants and asylum seekers from the Sicilian island of Lampedusa after its refugee identification centre was overwhelmed with new arrivals. They were taken to another centre in Sicily and from there they were being sent elsewhere in the country.57 In addition, according to the statistics from the UNHCR, the number of sea arrivals to Italy, Greece, Spain, Cyprus and Malta was of 79.692 in 2022 (as updated 28 August 2022).58 The 2022 Asylum Report published by the EUAA declared that “the Central Mediterranean route continued being the most-used migratory route to Europe, accounting for one-third of all reported illegal border crossing”.59 Therefore, under the Screening Regulation new migrants would be added to the pending applications, which in the frontline States, was already too numerous during 2021: in Spain (72.271),60 Greece (31.787)61 and Italy (32, 800).62 While States utilize scarce resources to manage the mounting numbers, human beings are left virtually stateless – akin to nomads – while awaiting processing. The burdens on these procedures would further aggravate the overwhelming situations in these countries, which evidently are already unfavourable.63
2.2 Application ratione loci: Inside the Territory and outside the Territory
The Screening Regulation conveys the idea that the applicant or the migrant has not entered the territory of the Member State, but does not clarify where exactly the screening is to be carried out. According to Art. 4 of the Screening Proposal, “during the screening, the persons referred to in Article 3, paragraphs 1 and 2 shall not be authorised to enter the territory of the Member State”. For the duration of the screening, persons referred must remain at the disposal of the authorities, but are not allowed to enter the territory of a Member State. Screening shall take place on the national territory, but before the formal authorisation of entry. Therefore, it creates the so called legal “fiction of non-entry”.64
The Screening Proposal does not specify whether extraterritorial screening will be necessary, which would require third States to provide assistance in controlling entries.65 The issue is that control is being relocated to other spaces and to other actors, such as transit zones, hotspots, agencies, and third States.66 In fact, the dynamics of any extraterritorial border control measure entails transferring the location of specific activities to the territories of third countries.67 From an emphatic prism, Cassarino and Marin argue that the Pact “develops and consolidates policies and rules aimed at ‘deterritorializing’ the territory of the EU”,68 while contradicting the ECtHR’s judgment in M.K. and others v. Poland which stressed that while an application for international protection is being examined, the “State cannot deny access to its territory to a person presenting himself or herself at a border checkpoint who alleges that he or she may be subjected to ill treatment”.69
Furthermore, the ambiguity between the legal fiction of non-entry and detention will likely result in an increase in arrests,70 extended periods of time spent in “detention centres” and the exclusion of suspensive effects of appeals in border procedures.71 It is significant that the LIBE Committee questions the legal fiction of non-entry, which makes compliance with the guarantees of the Reception Conditions Directive and the Return Directive “impossible”.72 In the draft report by the LIBE Rapporteur on the Proposal for a Screening Regulation, one of the amendments proposed refers to the compliance with relevant European Union and international law, including the 1951 Geneva Convention, as amended by the New York Protocol of 1967, and the obligations related to international protection “in particular the principle of non-refoulement, and fundamental rights”.73
In the same vein, under both the Procedures Directive74 and the Proposed Regulation on Asylum Procedures,75 applicants for international protection enjoy the right to remain in the Member State in which the examination of their application is pending until the competent authority issues its decision. And the Schengen Borders Code provides for the refusal of entry into the territory of the Member States to third-country nationals who do not fulfil the conditions for entry, but adds that this shall not prevent the application of the special provisions relating to the right to asylum and international protection. Thus, the Screening Proposal, since it does not provide for the right to remain in the Member State, contradicts the provisions of the instruments referred to.
2.3 Application ratione temporis: In Five Days or as Soon as Possible
As a general rule, the pre-screening procedure shall be carried out within a maximum period of five days – which may be extended in exceptional circumstances by another five days. The time period begins to run after the third-country national has been intercepted in the external border area, has landed on the territory of the Member State concerned, or has presented himself at the border crossing point.76 Given the “immediacy” in which the process must take place, it is questionable to what extent sensitive aspects such as asylum and migration, family ties or other relevant connections of the applicant can be taken into consideration.77
This time limit has to be read in conjunction with the Proposal for a Regulation establishing a common procedure on international protection.78 Its provisions foresee that the time limits for registering applications will only apply after the end of the five days of the prior check (or ten days in case of an extension) referred to above. Consequently, it may take ten days before the asylum seeker can register his application for international protection in a Member State. The Explanatory Memorandum to the proposed Common Procedures Regulation explains that
this does not affect the right of the person to lodge an asylum application immediately upon arrival on the territory of a Member State, it only means that his application will be registered once the check has been completed.
However, the situation in which the applicant finds him/herself between the lodging of the application and its registration is not explained. As regards to asylum seekers, the provisions in the Asylum Procedures Regulation regulating time limits for registering their applications will only become applicable after the screening has ended.79 Consequently, a substantial period of time can pass before an applicant for asylum is registered in a Member State. The general rule of five to ten days contradicts the Court of Justice reference to an “effective, easy and rapid access to the procedure guarantees the effectiveness of the right to asylum protected by Article 18 of the Charter”.80
The ECtHR’s judgment in the M.A. and Others v. Lithuania declared that the border guard’s failure to allow the applicants to submit asylum applications, and their removal to Belarus in the absence of any examination of their claim, amounted to violation of Article 3 of the Convention.81 In the case of M.K. vs. Poland, delivered on 23 July 2020, and cited above, the Court provided some guidance on the interpretation of State’s obligations regarding asylum seekers arriving at their borders which is not considered in the Screening Regulation. Concerning the issue of entry, the Court held that a State cannot deny access to its territory to persons presenting themselves at a border checkpoint alleging a risk of ill-treatment if they have to stay in the neighboring State.82
In addition, the establishment of a time limit enforced by the national authorities of frontline (receiving) States means that there is an expression of exercise of the receiving State’s effective control, irrespective of the domestic legal qualification. In this sense, it contradicts the European Court of Human Rights, which confirmed the applicability of national law during such processes.83
Moreover, the focus of the Screening Regulation implies, but does not state, dependence on third States, who should be required or compelled to assist in controlling entries.84 This would lead down the path to the instrumentalization of migrants for political purposes and destabilisation of the EU by third countries. The Union’s reliance on third countries to manage migration can backfire like a boomerang. Tensions between frontline and third States are inevitable, not only as a result of a massive influx of migrants, but also because relations between them oscillate according to international and domestic problems. The 2015 crisis demonstrated that migrants and refugees from Syria, Afghanistan, Iraq and the Sub-Saharan region are instrumentalized by transit States such as Morocco, Turkey, Libya and Belarus.85 Thus, neighbouring non-EU States see new opportunities in their external relations, and using their own political objectives, put pressure at the EU borders.86
While the underlying objectives of the Screening Proposal are hopeful – to reduce entries, intensify control, and minimise the political, economic and social costs of control procedures – it fails to outline methods to achieve these objectives. In an effort to improve the Proposal, on 15 June 2022, the French Presidency of the Council circulated its proposed compromise text, conceived as “gradual approach” which involved agreements on the Screening Regulation and Eurodac, and in exchange, a voluntary solidarity mechanism for countries at the borders.87 This approach will form the basis of the negotiations with the European Parliament which is taken into account in this analysis.88
3 Quid Solidarity for Situations of Crisis and Force Majeure?
This section focuses on the system of solidarity to be applied in “crisis and force majeure situations” as specifically proposed in the Crisis Regulation. The Pact foresees the principle of solidarity as “a permanent feature”,89 while proposing a reform with a “flexible” mechanism of solidarity.90 The purpose of this approach is to adapt to the different situations and contingencies regarding migration matters that pose challenges to Member States.91 On the one hand, the Pact’s solidarity system introduces a novel term for situations in which States are subject to “migratory pressure” or in which rescue and disembarkation operations have been carried out (in the Regulation for Asylum and Migration Management or RAMM). This is not provided in the current CEAS system and is intended to specifically support frontline States. On the other hand, the Pact provides for circumstances in which States are immersed in “situations of crisis” and for circumstances of force majeure (in the Crisis Regulation). Thus, there are three options for States to decide from when defining a situation.
3.1 An Ambiguous Scope of Application: Situations of Crisis and Force Majeure
The situation of “crisis” is defined in the Crisis Regulation as
an exceptional situation of mass influx of third-country nationals or stateless persons arriving irregularly in a Member State or disembarked on its territory following search and rescue operations, being of such a scale, in proportion to the population and GDP of the Member State concerned, and nature, that it renders the Member State’s asylum, reception or return system non-functional and can have serious consequences for the functioning the Common European Asylum System […], or an imminent risk of such a situation.92
The term “mass influx” in the definition is not defined while the term “non- functional” system of the Member State is described as a situation of “such a scale, in proportion to the population and GDP of the Member State concerned that it renders the Member State’s asylum, reception or return system “non-functional”. The Proposal also describes situations where there is merely a probability that a State will face a crisis (“an imminent risk of such a situation”) in which derogations from the Regulation are allowed to assume that the mere existence of “a risk of a crisis” justifies the derogation of some rights would be difficult to assess and to control.93
Under the Crisis Regulation, States can also notify the Commission of the existence of a situation of force majeure. While it would allow a State to unilaterally declare a situation of force majeure, it does not specifically define the term or describe such a situation. However, the Explanatory Memorandum provides examples of events such as the Covid-19 pandemic and “the political crisis witnessed at the Greek-Turkish border in March 2020”.94
As with the situation of crisis, force majeure only requires a notification to the Commission: it is sufficient for the Member State concerned to indicate the reasons why it considers that an extension of the deadlines should apply.95 The notification Member becomes the carte blanche to circumvent EU obligations.96 From a legal point of view this is redundant because current EU law already allows Member States to repeal the application of a European rule if they are faced with a situation of force majeure.97
As noted above, a separate Proposal, which is the RAMM, defines “migratory pressure” as a “situation where there is a large number of arrivals of third-country nationals or stateless persons, or a risk of such arrivals, including where this stems from arrivals following search and rescue operations, as a result of the geographical location of a member state and the specific developments in third countries which generate migratory movements that place a burden even on well-prepared asylum and reception systems and requires immediate action”.98
Depending on whether a situation is defined as “migratory pressure,” a “situation of crisis,” or “force majeure”, a different regulation will be triggered to address it. While States have to justify their choices, they would have broad discretion when defining a situation. This sacrifices predictability for flexibility. While Italy may define a situation as migratory pressure and implement the measures of the RAMM, Spain may define the same situation as a crisis or force majeure, thus triggering the Crisis Regulation. Moreover, the three situations described in the Crisis Regulation and the RAMM are overlapping. In essence, a situation of “migratory pressure” implies a “crisis”, and normally a “crisis” can be identified with a situation of “force majeure”. There is no indication that force majeure and crisis situations cannot be invoked simultaneously.99 The overlaps complicate the legal understanding and applicability of the instruments targeted to trigger the principle of solidarity.
3.2 Solidarity in Crisis
The Crisis Regulation requires Member States to submit a reasoned request to the Commission where they consider themselves to be in a situation of crisis and deem the application of a specific procedure necessary.100 The Commission, with the assistance of the Committee of Representatives from EU countries, would adopt an implementing decision triggering the granting of immediate protection status.101 The implementing decision shall determine the number of persons to be relocated and/or subject to return sponsorship from the Member States on the basis of a series of distribution key criteria, and it will duly justify imperative grounds of urgency due to the situation of crisis present in the benefiting Member State.102 While waiting for the Commission’s response, the Member State can unilaterally extend the five-day deadline for registration to a maximum of ten days.103 Once the Commission considers that the request is justified, the Member State may apply the derogatory rules for a maximum of six months, with can be extended up to one year.104 One of the significant changes, compared to the Temporary Protection Directive, is that immediate protection can be activated without a decision by the Council.
With respect to the EU’s principle of solidarity, the Court of Justice, in the case of the European Commission v. Poland and others, noted that:
the burdens […] must, in principle, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States, since, in accordance with Article 80 TFEU, that principle governs the Union’s asylum policy.105
However, the differentiating features of the New Pact compared to the reform proposal presented in 2016 lie in the elimination of an absolute mandatory share of applicants for international protection to be relocated among Member States.106 The Pact replaces mandatory quotas with a set of alternative and diversified collaboration procedures between Member States when migratory pressure situations as well as rescue and disembarkation situations are justified.107
According to the RAMM, the solidarity framework for situations of migratory pressure and rescue and disembarkation operations is channelled through three types of solidarity options: a) States can participate in the relocation of applicants; b) States can participate in the sponsorship of returns of third-country nationals in an irregular situation; c) and alternatively, States can contribute in the capacity building measures in terms of asylum, reception and return capacities in the form of operational support for Member States.108 Thus, RAMMs principle of solidarity contains three substantially different types of mandatory contributions. It has been aptly described as “adjectival solidarity”.109 However, in the Crisis Regulation the third measure is excluded. In situations of crisis and force majeure mandatory solidarity focuses on a specific relocation system and on return sponsorship of irregular migrants. Capacity-building measures in the field of asylum, reception and return, and operational support as established in the RAMM are excluded as they are considered to be applicable for long term migratory pressure situations only.
Thus, solidarity contributions come at the expense of predictability for EU frontline States facing situations of crisis or migration pressure, leaving this assessment largely to the discretion of the authorities of each Member State. At the same time, the European Commission enjoys wide discretion in terms of classifying these situations, which will have to be corroborated by the affected Member States. In practical terms, this kind of situation has already occurred when the Interior ministers from Italy, Cyprus, Greece, Malta and Spain (Med5), declared their fear for the potential increase of arrivals due to hunger sparked by the food crisis of 2020 and urged the EU to provide “an adequate mechanism of distributing migrants”.110 According to the LIBE Committee’s suggestion, the Crisis Regulation should include the protection of third-country nationals or stateless persons not only those arriving irregularly, as established in the Crisis Regulation, but also those who arrive “following evacuation programmes” as established in the Temporary Protection Directive.111 Failure to include these recommendation would constitute a restriction in comparison with the current regime.
3.3 Some New and Specific Rules: Crisis-Oriented Procedures
The Crisis Regulation establishes a new procedure allowing Member States to take immediate measures to address extreme situations when they occur.112 It seeks to repeal the current framework – mainly the Temporary Protection Directive – and includes provisions that allow for adaptation to emergency situations of the rules on asylum and return procedures provided in the Proposal for Asylum Procedures Regulation, the proposal for the Return Directive and the RAMM Proposal.
Additionally, the Crisis Regulation is complemented by the Commission’s Recommendation to implement an EU mechanism for Preparedness and Management of Crisis Related to Migration (called “Migration Preparedness and Crisis Blueprint”).113 Indeed, the Crisis Blueprint establishes the procedures envisaged in the Crisis Regulation by providing timely and up-to-date information according to which the Commission should determine the existence of a situation of crisis. It would support coordinated EU response to crisis situations by identifying suitable solidarity measures.114
Coming back to the Crisis Regulation, one of its key features is that it simplifies the procedure and timeframes for triggering the solidarity mechanism. The new system would allow for derogations to the EU rules on asylum and return procedures by applying the “asylum crisis management procedure”115 and the “return crisis management procedure”.116 The former allows Member States to apply the “border procedure” to decide on the merit of an application for international protection of applicants with a nationality that is recognized EU-wide at a rate of 75% or lower. Moreover, while the maximum duration of the border procedure in normal terms is twelve weeks, in crisis situations an additional period of eight weeks is provided.117 Therefore, the length of the “seamless” asylum and return border procedure could be extended up to twenty weeks plus ten days of screening.
The “return crisis management procedure” also permits Member States to extend the period of twelve weeks by eight additional weeks. During this time, the persons subject to the return procedure (according to the Asylum Procedures Regulation proposal) can be kept “in locations at, or in proximity to the external border or transit zones” or “other locations within the territory”, which is another example utilizing deterritorialized places in the EU territory.118
Although other current Proposals such as the Asylum Procedures Regulation119 and the Reception Conditions Directive120 give Member States flexibility when facing situations of large arrivals of migrants, the Crisis Regulation attempts to introduce a separate instrument to the system. However, it would be an instrument set out in the framework of EU law. This means that Member States would not be allowed to unilaterally interpret the new piece of legislation. This would be contrary to the decision in the 2018 infringement case against Hungary, in which the Commission claimed that Hungary had failed to fulfil its obligations in view of the EU’s asylum and migration system when the country’s asylum law was shown to be derogating from several provisions of the EU asylum acquis. As stated by the Commission “the crisis caused by mass immigration on which Hungary relies can and must be resolved in the framework of EU law”.121 The Court concluded that Hungary did not demonstrate how the offences it invoked made it necessary, in order to ensure the maintenance of public order and internal security, to derogate for the guarantees governing the detention of applicants for international protection.
3.4 “Immediate Protection” Status
The Crisis Regulation introduces a kind of solidarity based on granting “immediate protection status” to the persons concerned.122 The beneficiaries of immediate protection are:
the displaced persons from third countries who are facing a high degree of risk of being subject to indiscriminate violence, in exceptional situations of armed conflict, and who are unable to return to that third country.123
Two considerations can be given: First, the group that can be granted the immediate protection status is defined in a narrower sense than the one set out in the Temporary Protection Directive, which extends to persons fleeing political persecution, and systematic violations of their human rights.124 Second, the beneficiaries of immediate protection remain categorized as persons who would be eligible for subsidiary protection on the basis of Art. 15 (c) of the Qualification Directive 2011/95/EU. As a consequence, they would have the rights laid down in the proposal for Qualification Regulation applicable to beneficiaries of subsidiary protection.125 This would encompass the protection from refoulement, information of the rights and obligations relating to their status, the right to be issued a residence permit, freedom of movement within the Member States, swifter access to employment, education, recognition of qualifications, social security, social assistance and healthcare while they wait for a definite decision on their application for international protection.126
A further benefit of the Crisis Regulation would be the option of granting prima facie recognition to those in need of protection on objective grounds. This would mitigate administrative pressure on the Member States and reduce the multiplication of qualification features for classifying third-country nationals. However, the Crisis Regulation provides Member States the possibility to delay registration of applications for international protection up to four weeks (instead of the usual three working days in the proposed APR).127 In practice, this rule could result in a duration of a stay at the external border of a long periods of time. It does not relieve frontline States of the obligation to determine the Member State responsible for examining the application pursuant to Regulation on Asylum and Migration Management. ECRE argues that the extended and expanded border procedure “seems more likely to exacerbate a crisis rather than alleviate it, while the solidarity measures seem inadequate despite the adaptations. In addition, the measures, and the impact they have on the rights of individuals are not proportionate to goals”.128
In sum, the immediate protection scheme is built on different pieces of law and does not clarify how its effective implementation will be ensured, nor does it provide for a monitoring system or penalties for non-compliance situations.129 These weaknesses in the Pact would require frontline Member States to introduce a new national legislation with a set of rules, detailed deadlines and processes, and delegation of different rights for each of the protected groups.
4 Concluding Remarks
The New Pact includes two legislative Proposals designed specifically to address the irregular arrivals of third country nationals which have serious consequences on the functioning of the overall CEAS and particularly in the frontline States. The Screening Regulation as well as the Crisis Regulation involve respectively the multiplication of the legal requirements for the external control of the European borders and the derogation of EU rules during situations of crisis and force majeure. Rather than improving the problems faced by frontline States, the two Proposals actually work against these States – placing them at a social, political and economic disadvantage in the EU migratory and asylum system. These Proposals contain a set of contradictory measures that impose duplicative and redundant border check systems with unmanageable new technical and financial costs. They do not resolve or even minimize the practical burdens faced particularly by the Mediterranean States.
The organisational model proposed in the Screening Regulation requires adopting measures with inescapable bureaucratic and financial costs. Frontline States would need to invest in infrastructure and personnel in order to implement the EU processes and fulfil their international human rights obligations. Additionally, the fiction of non-entry would lead to an uncertain degree of protection for the rights of migrants during screening and border procedures. Pre-border screening implies detention measures and the absence to the right to appeal comes to show that the new approach removes the recognised rights of those arriving to the borders of Member States and ignores the necessity of legal paths in order to avoid the implosion of the system. Within the regulatory structure of screening, the proposed model provides more measures for the Member States and agencies such as Frontex and EASO to take, which results in a higher risk that the system could become dispersed.
While solidarity is a permanent feature of the Pact, its flexible approach to the principle leaves many questions unanswered. The Crisis Regulation does not make a statement on the extent to which the affected States can legitimately assert a right to invoke the application of the solidarity mechanism in the case of migratory pressure. The form of solidarity is subordinated to formalised measures and procedures evaluated by the European Commission. The Crisis Regulation is not focused on the specific problems faced by the States concerned, which are exposed to the arrival of irregular migrants every year. In the cases of Greece, Italy and Spain, even if their border controls were effective, the problem of migrants who run the risk of dying off their coasts remains unresolved. The marked absence of a response to these situations in collective and imperative terms in these situations is one of the key weaknesses of the Pact.
To conclude, from the reading of the Screening Regulation and the Crisis Regulation it can be deduced that the obligations and expectations of Member States are inadequate and unrealistic. It can certainly be anticipated that these measures will be ineffective from the point of view of domestic implementation as well as from the point of view of building a “common” asylum system inspired in the 1951 Geneva Convention.
This article is part of the project “The European Pact on Migration and Asylum and the Mediterranean States in the post-covid context” (EURASYLUM II), financed by the Ministry of Economy and Competitiveness and the European Regional Development Fund (DER 113999RB-100), of which the author is the main researcher.
Commission, Communication from the Commission to the European Parliament, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, COM (2020)609, (September 23, 2020) (hereinafter, “the Pact” or “the New Pact”).
European Council, Presidency Conclusions, Tampere Council 15 and 16 October 1999 SN 200/ 99, Brussels, paragraph 13.
EASO, An Introduction to the Common European Asylum System for Courts and Tribunals. A Judicial Analysis, 2016, 13.
EU-Turkey Statement, 18 March 2016, https://www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/. One of the comments to the Statement can be read in Akin Yavuz, Ç., 2019. Analysis on the EU-Turkey Readmission Agreement, a Unique Case, European Journal of Migration and Law, 21 (4) pp. 486–508; Council of the European Union, Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, (September 14, 2015); Council of the European Union, Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, 22 September 2015 and Valletta Summit, 11–12 November 2015 Political Declaration.
Commission, Proposal for a Regulation of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, COM(2016) 466 final, (July 13, 2016).
Commission, Proposal for a Directive of the European Parliament and of the Council on Common laying down standards for the reception of applicants for international protection (Recast) COM(2016) 465 final (July 13, 2016).
Commission, Proposal for a Regulation of the European Parliament and of the Council on the establishment of Eurodac for the comparison of fingerprints for the effective application of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person], for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (Recast) COM(2016) 272 final (May 4, 2016).
Commission, Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, COM(2016) 270 final, (May 4, 2016).
Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM(2016) 270 final, (May 4, 2016).
Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2016) 4677 final, (July 13, 2016).
Commission, Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast), COM(2018) 634 final (September 12, 2018).
European Pact on Migration and Asylum, op. cit., p. 3.
The then candidate to become President of the European Commission had previously announced that she would propose a New Pact on Migration and Asylum in: Von Der Leyen, U., (2019). A Union that strives for more results. My agenda for Europe. Political guidelines for the next European Commission 2019–2024, 9 October 2019, p. 17.
Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A European Agenda on Migration, COM(2015) 240 final (13 May 2015), and Commission, Communication to the European Parliament and the Council. Towards a reform of the Common European Asylum System and enhancing legal avenues to Europe, COM(2016) 197 final (May 6, 2016).
Frontex, Migratory Map, (10 August 2022).
Nielsen, N. “EU ‘Front-Line’ States Want Clearer Migration Rules”, (EU Observer, 26 November 2020) <https://euobserver.com/migration/150196>.
Capicchiano Young, S., 2017. Dublin IV and EXCOM: Aspirational Blunders and Illusive Solidarity, European Journal of Migration and Law, 19, pp. 370–395; Thielemann, E., El-Enany, N., 2010. Refugee protection as a collective action problem: is the EU shirking its responsibilities? European Security, 19 (2), pp. 209–229; Thielemann, E., 2018. Why Refugee Burden-Sharing Initiatives Fail: Public Goods, Free-Riding and Symbolic Solidarity in the EU, Journal of Common Market Studies, 56 (1), pp. 63–82; Thym, D., Questioning EU citizenship: judges and the limits of free movement and solidarity in the EU, Hart Publishing, 2017.
This article focuses on two of the Pact’s Proposals: the Proposal for a Screening Regulation and the Proposal for Migration and Asylum Crisis Regulation. The other three Proposals and the three Recommendations are outside the scope of this article. They include an amended proposal revising the Asylum Procedures Regulation; an amended proposal revising Eurodac Regulation; a new Asylum and Migration Management Regulation, the amended and non-binding recommendations which address situations of crisis, resettlement, humanitarian admission and complementary pathways, search and rescue operations by private vessels and facilitation of irregular entry (as regulated by the Facilitation Directive).
A new migration preparedness and crisis blueprint; a new recommendation on resettlement and complementary pathways; a new recommendation on search and rescue operations by private vessels.
New guidance on the Facilitators Directive.
Commission, Proposal for a Regulation introducing a screening of third country nationals at the external borders, COM(2020) 612 final, 23 September 2020.
Commission, Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum, COM(2020) 613 final, 23 September 2020.
Cassarino, J.P., and Marin, L., 2022. The Pact on Migration and Asylum: Turning the European Territory into a Non-territory?, European Journal of Migration and Law 24 (1), pp. 1–26.
When in this article the term MED5 is used it refers to the five Member States of the EU most exposed to irregular migration (Cyprus, Italy, Greece, Spain, and Malta). It takes into account as well the Eastern European Member States of Poland, Hungary, Slovakia, Estonia, Latvia and Lithuania as they will be affected by the Proposal for the Screening Regulation. Romania and Bulgaria are not considered in this article as frontline States as they are not part of the borderless area of Schengen.
Cornelisse, G., and Campesi, G., (2021). The European Commission’s New Pact on Migration and Asylum: European Substitute Impact Assessment. European Parliament Research Service.
The focus of this article is the Proposal for a Screening Regulation and the Proposal for Crisis Situations. The rest of the Pact is outside the scope of the author’s analysis.
Screening Regulation, COM(2020) 612 final, op. cit., p. 3.
These two processes are currently regulated by different instruments: Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, JO L 180, (June 29, 2013) (the Procedures Directive) and the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, JO L 348, (December 24, 2008) (Return Directive).
New Pact, op. cit., p. 4.
Screening Regulation, COM(2020) 612 final, op. cit., art. 1.
Council of the European Union, Presidency, Proposition de règlement du Parlement européen et du Conseil établissant un filtrage des ressortissants de pays tiers aux frontiers extérieures et modifiant les règlements (CE) nº 767/2008, (UE 2017/2226, (UE) 2018/1240 et (UE) 2019/817, Texte de compromise de la Présidence, 9726/22, (June 15, 2022), para. 2. Detailed examination of the Proposal began under the German Presidency, by the Working Party on Frontiers on November 2020, was estimated at the level of JHA Counsellors under the Portuguese and Slovenian Presidencies in 2021, and was concluded at the JHA Counselors meeting on 3 June 2022 under the French Presidency.
ECRE, “Screening out rights? Delays, detention, data concerns and the EU’s Proposal for a Pre-Entry Screening Process. A Summary of ECRE’s assessment of the screening Regulation COM(2020) 612 and its proposed amendments”, Policy Note 30, 2020. See Peers, S. (2020). First analysis of the EU’s new asylum proposals. EU Law Analysis Blogspot, 25 September 2020. The new steps regarding health and security checks are only relatively innovative; in response to the Covid pandemic, the Member States introduced the obligation to carry out health checks for migrants. See: European Commission (2020). Communication COVID-19: Guidance on the implementation of relevant EU provisions in the area of asylum and return procedures and on resettlement, OJ C 126/12, (April 17, 2020).
Jakuleviciene, L., “Pre-Screening at the Border in the Asylum and Migration Pact: A Paradigm Shift for Asylum, Return and Detention Policies?”, in Thym, D. and Odysseus Academic Network (eds.) (2022). Reforming the Common European Asylum System, Nomos, p. 81.
The only circumstance in which the screening is not meant to apply is when a third-country national fulfils the conditions of entry set out in Article 6 of Regulation 2016/399 (the Schengen Borders Code). This circumstance is beyond the scope of this article as it is focused on the conditions proposed on the referred Proposal.
The Explanatory Memorandum of the Screening Regulation affirms that it also creates an EU framework by “putting in place uniform rules for the screening of irregular migrants apprehended in the territory and who eluded border control”, in Proposal for Screening Regulation, p. 3.
Proposal for Screening Regulation, Art. 14 (1).
Jakuleviciené, L., 2020. Re-decoration of existing practices? Proposed screening procedures at the EU external borders, EU Immigration and Asylum Law and Policy, October 27, 2020. Cfr. Tsourdi, E., Ott, A., and Vankova, Z., 2022. The EU’s shifting borders reconsidered: Externalisation, Constitutionalisation, and Administrative Integration. European Papers, vol. 7(1), pp. 87–108.
Art. 41(3) of the Screening Regulation, linked to the Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2016) 467 final, Art. 40(1), which provides for cases in which accelerated procedures may be used to decide on the merits on an asylum application.
The Explanatory Memorandum expressly states that “As the screening as such is a mere information-gathering stage which prolongs or complements the checks at the external border crossing point and which does not entail any decision affecting the rights of persons concerned, no judicial review is foreseen regarding the outcome of the screening” (pg. 12).
Council of the European Union, 9726/22, op. cit., art. 7.
Screening Regulation COM(2020) 612 final, Art. 3, op. cit.
Ibid., art. 4.1.
Arts. 9 and 20 of the Qualification Directive 2011/95/EU.
Jakuleviciené, L., 2020. Re-decoration of existing practices? Proposed screening procedures at the EU external borders, EU Immigration and Asylum Law and Policy blog, Odysseus Network.
ECtHR, MSS v Belgium and Greece [GC] No30696/09, of 21 January 2011.
ECtHR, Tarakhel v Switzerland [GC] No 29217/12, of 4 November 2014.
ECtHR, AS v Switzerland App No 39350/13, of 30 June 2015.
ECRE, Editorial: The Pact on Migration and Asylum: it’s never enough, never, never, 25 September 2020.
ECtHR, Darboe and Camara v. Italy, No. 5797/17, of 21 July 2022.
Art. 6.5 of the Schengen Borders Code.
Art. 5 of the Schengen Borders Code.
Morgades, S., (2021). The impact in international protection of the New EU Pact on migration and asylum, The New EU Pact and its impact on Mediterranean Migration Governance: Continuity or rupture? EuroMedMig Policy Paper Series 3, pp. 6–9. To support her claim, the author refers to the judgment of the CJEU, European Commission v. Republic of Poland, Hungary and the Czech Republic, C-715/17, C-718/17 and C-719/17, 2 April 2020, ECLI: EU: 2020: 257.
Gilbert, G., (2021). The New Pact on Migration and Asylum and The Global Compact on Refugees and Solutions in: Carrera, S. and Geddes, A., (eds.), The EU Pact on Migration and Asylum in light of the United Nations Global Compact on Refugees, European University Institute, Italy, pp. 37–49.
The Proposal for Screening Regulation contemplates an extension of the 5 days’ time limit for exceptional situations at the external borders, “where the capacities of the Member State to handle screenings are exceeded for reasons beyond its control such as crisis situations referred to in Article 1 of Regulation XXX/XXX [Crisis Proposal]”.
EASO, “Spain: EASO launches new operation to support reception system”, 18 December 2020, https://euaa.europa.eu/news-events/spain-easo-launches-new-operation-support-reception-system.
Aljazeera, “Italy relocates refugees after Lampedusa centre overwhelmed”, 10 July 2022, in https://www.aljazeera.com/news/2022/7/10/italy-relocates-refugees-after-lampedusa-center-overwhelmed.
UNHCR, Operational Data Portal, Refugee Situations, Mediterranean Situation: https://data.unhcr.org/en/situations/mediterranean.
EUAA, Asylum Report 2022, Luxembourg, p. 37.
Asylum in Europe, “Country report Spain: Border procedure (border and transit zones)”, 2021.
Asylum in Europe, “Country report Greece: Safe country of origin”, 2021.
Asylum in Europe, “Country report Italy: Short overview of the asylum procedure”, 2021.
Euronews, “Europe must share the burden of migrant flow, say EU border nations”, https://www.euronews.com/2021/03/20/europe-must-share-the-burden-of-migrant-flow-say-eu-border-nations (last consulted: 21 March 2021).
Article 4 Proposal for a Screening Regulation. Cf. Thym, “Never-Ending Story? Political Dynamics, Legislative Uncertainties, and Practical Drawbacks of the ‘New’ Pact on Migration and Asylum”, in Thym, D., (2022). Reforming the Common European Asylum System, op. cit., 23 and Jakuleviciene, L., “Pre-Screening at the Border in the Asylum and Migration Pact: A Paradigm Shift for Asylum, Return and Detention Policies?”, in Thym, D. and Odysseus Academic Network (eds.) (2022). Reforming the Common European Asylum System, op. cit., pp. 88 and 96.
Cassarino, J.P., and Marin, L., 2022, “The Pact on Migration and Asylum: Turning the European Territory into a Non-territory?”, 24 (1) European Journal of Migration and Law, op.cit.
ECRE, “Screening out Rights? …”, op. cit., 3.
Nagore, M., (2021). Los acuerdos de capacitación a terceros Estados para la contención migratoria: nuevos desarrollos en el concepto de jurisdicción de los tratados de derechos humanos, in: Abrisketa, J., (dir.) Políticas de asilo de la Unión Europea: convergencias entre las dimensiones interna y externa, Thomson, Spain, 2021, pp. 223–250.
Cassarino, J.P., and Marin, L., 2022, “The Pact on Migration and Asylum: Turning the European Territory into a Non-territory?”, 24 (1) European Journal of Migration and Law, op. cit. See also, Marin, L., (2020), The 2020 proposals for pre-entry screening and amended border procedures: a system of revolving doors to enter (and leave) Europe?, European University Institute, Accademia Diritto e Migrazioni, Università degli Studi della Tuscia.
ECtHR, M.K. and others v. Poland, No. 40503/17 and No. 42902/1, of 23 July 2020, para. 179.
Cornelisse, G. and Campesi, G., (2021), op.cit., p. 55. The main concern regarding the potential impact of the Pact highlighted by stakeholders was the potential increase in detentions, p. 234.
Ibid.
Committee on Civil Liberties, Justice and Home Affairs, Draft Report on the proposal for a Regulation of the European Parliament and of the Council introducing a screening of third-country nationals at the external borders and amending Regulation (EC) No 767/2008, (EU) 2018/1240 and (EU) 2019/817 (COM (2020) 612, Rapporteur: Birgit Sippel, (November 15, 2021), p. 83.
Ibid., Recital 4.
Procedures Directive, Arts 2 (d) and (k) and 7.
Commission, Proposal for a Regulation establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2016) 467 final, 13 July 2016, Arts. 4 (h) and 7 (hereinafter, Regulation establishing a common procedure).
Committee on Civil Liberties, Justice and Home Affairs, Draft Report on the proposal for a Regulation of the European Parliament and of the Council introducing a screening of third-country nationals at the external borders, Art. 6 (3) op. cit. The exceptional circumstances are defined as “where a disproportionate number of third-country nationals needs to be subject to the screening at the same time”. And see also Art. 3, on time limits for screening.
V. Moreno-Lax, “Towards a Thousand Little Morias: The EU (Non-)Rescue Scheme – Criminalising Solidarity, Structuralising Defection”, in Thym, D. and Odysseus Academic Network (eds.) (2022). Reforming the Common European Asylum System, op. cit., pp. 161–185.
Regulation establishing a common procedure, COM (2016) 467 final, op. cit.
Ibid., p. 5.
CJEU, Commission v. Hungary, C-808/18, op. cit., paras. 102–106.
ECtHR, M.A. and others v. Lithuania, No. 59793/17, of 11 December 2018, para.115.
ECtHR, M.K. and others v. Poland, op. cit., para. 179.
ECtHR, Ilias and Ahmed v. Hungary, No. 47287/15, of 14 March 2017, para. 54.
Cassarino, J.P., and Marin, L., 2022. The Pact on Migration and Asylum: Turning the European Territory into a Non-territory? European Journal of Migration and Law, 24, pp. 1–26.
Commission, Proposal for a Regulation addressing situations of instrumentalization in the field of migration and asylum, COM (2021), 14 December 2021.
Guild, E. The Pitfalls of Migration Diplomacy: The EU Pact and Relations with Third Countries, in Thym, D. and Odysseus Academic Network (eds.) (2022). Reforming the Common European Asylum System, op. cit., pp. 209–222.
Council of the European Union, Presidency, Proposition de règlement du Parlement européen et du Conseil établissant un filtrage des ressortissants de pays tiers aux frontiers extérieures et modifiant les règlements (CE) nº 767/2008, (UE 2017/2226, (UE) 2018/1240 et (UE) 2019/817, Texte de compromise de la Présidence, 9726/22, (June 15, 2022), para. 2.
ECRE, Editorial: Better, Bad, Worse, Worst Approaches? The Asylum Reforms after “Ukraine”, 3 June 2022.
European Pact on Migration and Asylum, op. cit., p. 11.
Ibid., p. 7.
Commission, Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund], COM(2020) 610 final, 23 September 2020, (also called RAMM).
Art. 1 (2) of the Crisis Regulation.
ECRE recommends the deletion of any reference to an imminent risk, in ECRE, ECRE Comments on the Commission Proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum COM(2020) 613, February 2021.
Crisis Regulation, op. cit., p. 9.
Ibid., Art. 7.
Amnesty International. 2021. The Proposed Crisis Regulation, Position Paper, p. 8.
Maiani, F. 2020. A “Fresh Start” or One More Clunker? Dublin and Solidarity in the New Pact, EU Immigration and Asylum Law and Policy blog, Odysseus Network. See one of the judgments handed down on force majeure situations: CJUE, Commission v. Italy, C-101/84, (July 11, 1985).
Asylum and Migration Management Regulation (RAMM), op.cit., Article 2 (w).
Amnesty International. (2021). The Proposed Crisis Regulation, Position Paper, p. 7.
Ibid., Art. 3 (1).
Notably, if the Commission justifies imperative grounds of urgency, it can adopt an implementing act without submitting it to the Committee first (art. 11.2 of the RAMM). Art. 8 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers OJ L 55 of 28 February 2011.
Proposal for a Crisis Regulation, Explanatory Memorandum, pp. 15–16, Recitals 19, 36 and Art. 3.
Ibid., Article 3 (7).
In accordance with Art. 1.8 of the Proposal: “The Commission shall examine the reasoned request […] on the basis of substantiated information, in particular the information gathered by the Commission pursuant to the EU mechanism for Preparedness and Management of Crises related to Migration […] and by the European Asylum Support Office (EASO) […], the European Border and Coast Guard Agency […] and the Migration Management Report”.
CJEU, European Commission v. Republic of Poland and Others, Joined Cases C-715/17, C-718/17 and C-719/17, 2 April 2020, ECLI: EU: C: 2020: 257.
Zaun, N., 2018. States as Gatekeepers in EU Asylum Politics. Explaining the Non-adoption of a Refugee Quota System. Journal of Common Market Studies, 56 (1), pp. 44–62.
Based in Articles 78 (2) (d) and Article 79 (2) (c) TFEU.
Commission, Proposal for a Regulation on Asylum and Migration, Art. 45, op. cit.
Garcés, B., 2020. Solidaridades adjetivadas, CIDOB Opinión, 638, pp. 1–3.
Pollina, E., 2022, Europe’s south expects over 150,000 migrant arrivals this year, minister says. Reuters, https://www.reuters.com/world/europe/europes-south-expects-over-150000-migrant-arrivals-this-year-minister-2022-06-04/.
Committee on Civil Liberties, Justice and Home Affairs, I Draft Report on the Proposal for a regulation of the European Parliament and of the Council addressing situations of crisis in the field of migration and asylum (COM(2020)0613-C9-0308/2020-2020/0277(COD9), Rapporteur: Juan Fernando López Aguilar, (November 16, 2021), Art. 1 (a).
SWD (2020) 207, p. 64.
Commission, Commission Recommendation on an EU mechanism for Preparedness and Management of Crises Related to Migration (Migration and Crisis Blueprint), C(2020) 6469 final, 23 September 2020.
Carrera, S., Cortinovis, R., (2021). Proposal for a Crisis and Force Majeure Regulation, in: The European Commission’s legislative proposals in the New Pact on Migration and Asylum, Study on the European Parliament, July 2021, pp. 122–140.
Art. 4 of the Crisis Regulation.
Ibid., Art. 5.
Ibid. Art. 4.
Tsourdi, E., “The New Pact and EU Agencies: A Tale of Two Tracks of Administrative Integration and Unsatisfactory Embedding” in Thym D. and Odysseus Academic Network (eds.) (2022). Reforming the Common European Asylum System, op. cit., 113–128.
Commission, Proposal for a Regulation establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2016) 467 final, 13 July 2016 (Articles 27 (3), 12 (4), 34 (3) (a), 41 (1) (4).
Commission, Proposal for a Directive laying down standards for the reception of applicants for international protection (recast) COM(2016) 465 final, 13 July 2016.
CJEU, Commission v. Hungary, C-808/18, 17 December 2020, paras. 137 and 220, ECLI: EU:C:2020:1029.
Arts. 10 of the Crisis Regulation.
Recital 21 and Art. 10 of the Crisis Regulation.
Ineli-Ciger, M. (2022). Immediate Protection in the New Pact on Migration and Asylum: A Viable Substitute for Temporary Protection?, in Thym, D. and Odysseus Academic Network (eds.) (2022). Reforming the Common European Asylum System, op. cit., pp. 149–160.
Art. 10 (3) of the Crisis Regulation.
Crisis Regulation, op. cit., p. 10.
COM(2020) 619 final, Article 6, by derogation from Article 27 of the Asylum Procedures Regulation COM(2016) 467 final.
ECRE, ECRE comments on the Commission Proposal for a Regulation addressing situations of crisis and force majeure in the field of Migration and Asylum COM(2020) 613, op. cit.
Pinyol, G. 2020. The New Pact on migration and asylum: A proposal on (maritime) border control, op. cit.