Immigration and Asylum Law and Policy Droit et Politique de lImmigration et de lAsile de lUE

Time 2020-12-08 13:10:49

Web Name: Immigration and Asylum Law and Policy Droit et Politique de lImmigration et de lAsile de lUE

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By Luc Leboeuf, Head of Research Group in the Department of Law Anthropology at the Max Planck Institute for Social AnthropologyThe New Pact on Migration and Asylum  includes a full section calling for further international cooperation with third countries to address migrant and refugee movements to Europe. This section lays the emphasis on the development of “legal pathways to protection” in Europe, amongst other international cooperation priorities presented elsewhere in this blog series (Guild here as well as Moreno-Lax and Moraru forthcoming). The New Pact is accompanied by a Commission recommendation (hereafter “the accompanying recommendation”) that specifies EU actions to be taken in the years to come, from the development of resettlement programmes at EU level and the adoption of a Union-wide resettlement framework, to the promotion of community sponsorship programmes at the domestic level.In both the New Pact and the accompanying recommendation, “legal pathways to protection” is used as an umbrella term. It refers to the resettlement of refugees under a global initiative run by the UNHCR (here, para. 9). It also refers to other humanitarian admission schemes developed at the domestic level, including protected entry procedures – e.g., humanitarian visas – and private/community sponsorship programmes – e.g., the “humanitarian corridors” set up by faith-based organisations in Italy (described by Bianchini here). Unlike legal pathways resulting from labour mobility schemes, which are aimed primarily at meeting EU labour market needs (to be discussed by Sarolea and Farçy as part of this blog series), the “legal pathways to protection” are being developed to guarantee access to safety for those fleeing persecution and other forms of serious human rights violations.This blogpost highlights how the New Pact and the accompanying recommendation contribute to the development of a common and comprehensive approach to legal pathways to protection, beyond resettlement. It argues that there is “soft” harmonisation at play, and seeks to identify the main driving policy logics and tensions behind the harmonisation process, including how they are likely to impact forthcoming developments in the field. Continue reading By Elspeth Guild, Jean Monnet Professor ad personam, Queen Mary University of London and emeritus, Radboud University Nijmegen.The most pressing problem for the EU as regards working with other countries and international partners on migration and asylum is the EU’s own image in this area. The image has two faces, one inwardly facing, how is the EU’s record perceived within the EU itself and the other outwardly facing, how is the EU’s record in this area perceived by states around the world. In this blog I will only examine the external dimension, how the international community views the EU’s policies, legislation and action on borders, migration and asylum. The new Pact on Migration and Asylum (2020) promotes greater cooperation with partner countries to achieve EU borders, migration and asylum objectives. The assumption is that states outside the EU are willing partners to achieve EU goals in this area. However, as I will discuss here, this rosy picture is not entirely justified. The EU finds itself face to face with a condundrum: the greater EU and Member State exercise of coercion in border, migration and asylum policies, the harder it is for the EU to find countries willing to partner with it to achieve the EU’s border management objectives.The EU’s action (or inaction) in this area is by no means a secret.  International media around the world extensively covered the 2015-16 refugee arrivals into the EU, revealing the appalling conditions of arrival and first ‘reception’ which pushed almost 2 million people in desperate need of refuge and assistance to walk the length of Europe in search protection. This attention has been sustained in the international media, from the New York Times to Al Jazeera or the South China Morning Post (to name only a few of the English language outlets with an international reach). Rarely are the images positive regarding the reception of asylum seekers or migrants at EU external borders or border control operations. Instead, almost without exception they focus on the horrors – the Moria refugee camp in flames, the Presidents of the Commission, Council and Parliament at the Greek Turkish border encouraging border guards to prevent people who resemble the popular image of a refugee or refugee policy in general. Continue reading By Dr Meltem Ineli-Ciger, Assistant Professor, Faculty of Law, Suleyman Demirel University.The European Commission presented the 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 (hereinafter Proposal for a Migration and Asylum Crisis Regulation) as part of the new European Pact on Asylum and Migration on 23 September 2020. The Proposed Regulation seeks to repeal the Temporary Protection Directive 2001/55/EC and aims at introducing immediate protection instead. A closer look at the new immediate protection status reveals that immediate protection resembles a lot to temporary protection in some respects though there are a number of differences.  Motivation behind introduction of the immediate protection status can be identified as to establish a group protection status that would be applied in situations of crisis as opposed to the Temporary Protection Directive which remains, to this date, unimplemented. To increase the protection framework’s chances of implementation, the Commission has changed the name of the protection status from temporary to immediate protection, simplified its activation/triggering mechanism, narrowed down its scope and limited its duration. Nevertheless, will these changes really increase the likelihood of implementation of the immediate protection status and make a difference in practice? This blog post intends to find an answer to the said question by reviewing the newly proposed immediate protection framework and comparing it with the temporary protection status. Continue reading By Lilian Tsourdi, Assistant Professor Dutch Research Council (NWO) VENI grantee, Maastricht University.The ‘New Pact on Migration and Asylum’, and the relevant legislative proposals that accompany it, adopt an ambivalent approach towards administrative integration. They partly recognise EU agencies’ increased involvement in the implementation in EU’s migration, asylum, and external border control policies. At the same time, they do not satisfactorily embed the novel functions of EU agencies, such as their increased executive powers. This means that, for example, new procedural steps introduced by the Pact such as the screening at the external borders or the border procedure, neither take to account the particularities of the potential involvement of EU agencies in these processes nor do they frame these executive powers. This could have a potential impact on migrants’ procedural rights and on the accountability of EU agencies. In addition, the Pact ingrains a two-track approach to administrative integration. This means, that alongside institutionalised administrative cooperation through EU agencies, the Pact emphasizes bilateral and multilateral transnational co-operation between Member States, as portrayed by the new concept of return sponsorships. This could potentially impact the effectiveness of administrative cooperation and migrants’ fundamental rights protection.This post, first, analyses in greater detail which are the two tracks of administrative integration, and briefly outlines the novel functions that two EU agencies, FRONTEX (used as a shorthand for the EU’s European Border and Coast Guard Agency), and EASO (used as a shorthand for the EU’s European Asylum Support Office) undertake in these fields. Next, I explain which legal instruments are to regulate their mandate according to the Pact, and whether the Commission Communication  contains novelties regarding their role. Finally, I draw examples from two Pact legal instruments, notably the Proposal for an Asylum and Migration Management Regulation and the Amended Proposal for an Asylum Procedures Regulation to illustrate the Pact’s ambivalent approach to administrative integration. Continue reading By Daniel Thym, Research Centre Immigration Asylum Law, University of Konstanz, Germany.Trust is an essential prerequisite for a functioning area of freedom, security and justice – as the Court of Justice coined it so well: ‘At issue here is the raison d’être of the European Union and the creation of …, in particular, the Common European Asylum System, based on mutual confidence.’ Our theme is not the controversial case law on fundamental rights, which judges dealt with when emphasising the relevance of mutual trust, but the more generic question of how countries in northern and southern Europe interact when asylum seekers take advantage of the border-free Schengen area to relocate themselves autonomously.That phenomenon is usually referred to as ‘secondary movements’, even though the Commission evades the term in the ‘pact’, which nevertheless referred to the issue indirectly in the title of the accompanying press release with its call for a ‘balance between responsibility and solidarity.’ When it comes to policy debates among the Member States in the Council, enhanced rules on relocation (solidarity) and the prevention of secondary movements (responsibility) are two sides of the same coin.EU Asylum Reform: Two Competing NarrativesIn the debate about EU asylum policy, we are confronted with two competing narratives which underlie the breakdown of mutual trust among ‘southern’ and ‘northern’ states: While countries at the external border complain about having to shoulder the ‘burden’ without adequate solidarity, politicians further north often decry the alleged incapacity of their peers in running functioning asylum systems and in preventing onward movements. The first narrative is fed by the well-known pictures of arrivals at the southern and eastern shores of the Mediterranean. In relation with the second narrative, German or Dutch politicians, by contrast, will highlight statistical data: throughout the past five years Germany received more asylum applications than Italy, even though the Italian data for the latter include people who later moved elsewhere. Similarly, the numbers for the Netherlands have been between one-third and half of the figures for Greece. Germany made roughly 27 thousand take-back requests under the Dublin III Regulation towards Italy, Spain and Greece in 2019, of which about 3500 or less than 15% resulted in an actual transfer.This blogpost discusses those elements of the Commission proposals on the reform of EU asylum policy which address the phenomenon of secondary movements. In doing so, it complements the discussion of solidarity measures in the contribution by Francesco Maiani. The initial criticism of laxness on secondary movements by the deputy chairman of Angela Merkel’s CDU/CSU parliamentary group in the German Bundestag with a responsibility for migration policy, Torsten Frei, shows exemplarily how relevant these rules can be for the policy debate. To assess the draft legislation, it is useful to start with more generic comments. Continue reading By Lyra Jakulevičienė, Lawyer, Professor at Mykolas Romeris University (Lithuania).The New Pact on Migration and Asylum announced by the European Commission on 23 of September 2020 contains a new piece of legislation: a Proposal for a Regulation introducing a screening of third country nationals at the external borders and amending some related regulations (hereafter Proposal for a Screening Regulation).  From the first outlook it seems that a novelty – a pre-entry screening – procedure is introduced. A more thorough analysis raises several questions. Firstly, is this novelty really new, and if not, is it worthwhile investing almost 0.5 billion euros in re-decorating old practices that did not work? Second, will the measures proposed be adequate to address the challenges and meet the objectives indicated, or will they raise more legal and practical issues than the existing ones? Last, but not least, how realistically to implement are such provisions once adopted?1.  Novelties of the proposal or re-decoration of existing practices? The objective of the Proposal for a Screening Regulation is two-fold: a) to identity the persons, establish health and security risks at soonest; and b) to direct the persons to relevant procedures, be it either asylum or return (Art. 1). If compared with the current obligations of EU Member States at the borders, it is evident that identity, registration and security checks, as well as preliminary vulnerability assessments are happening anyway on the basis of Schengen Borders Code and the national legislation. While the Schengen Borders Code does not provide for any specific obligations concerning medical check of third country nationals apprehended during border surveillance, health checks have been recently introduced by the Member States in response to the COVID-19 pandemic. Thus it is no longer new.What might be new indeed is the projected outcome of such screening procedure and its implications for the entire asylum and return process, and the individuals concerned. The proposal envisages that the outcome of the screening will be direction of the persons to appropriate procedures – either asylum procedures or returns and also it will impact on whether to channel asylum seekers to border or regular asylum procedures. It will be discussed below to what extent this is a novelty and whether it raises legal questions.Pre-screening procedures are not new as such. They are employed, for instance, in Australia (so-called ‘enhanced screening process’, which ‘screens in’ to the refugee status determination and complementary protection system), although they have been criticized as risking excluding those with legitimate claims for protection due to too short interviews, absence of legal advise, lack of written record of the proceedings and other setbacks (Australian Human Rights Commission). Similar swift identification, registration and fingerprinting experiences were in the hotspots in Greece and Italy established in the aftermath of the 2015-2016 migration ‘crisis’ in Europe, which have failed to produce any tangible results according to Maiani. Will the pre-entry screening in the EU result in a different outcome? Continue reading

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