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EU Crisis Regulation: Securing reforms or constructing a crisis?

Migration / COMMENTARY
Olivia Sundberg Diez

Date: 20/11/2023
In October 2023, member states reached an agreement on the contentious Crisis and Force Majeure Regulation, enabling negotiations with the European Parliament to begin on this piece of the migration and asylum reforms package. Despite its name, this proposal will not usher in a better approach to ‘crises’ or increased arrivals at borders. If adopted, it risks normalising the use of emergency measures and lowering asylum standards further.

After months of difficult discussions and mounting pressure to advance on the package negotiations, the Council of the EU recently reached a deal on the Crisis and Force Majeure Regulation proposal (the ‘Crisis Regulation’). Germany had delayed its support for the text, seeking additional safeguards and protective measures for children and families. Several Eastern states demanded more substantial restrictions, while a priority for Baltic states, Greece and Cyprus was that the text included provisions on the so-called ‘instrumentalisation’ of migrants. Finally, enough states voted in favour for the Council to reach a common approach, with Poland and Hungary voting against it, and Austria, the Czech Republic and Slovakia abstaining.

The agreement was quickly billed as historic, the missing piece in the puzzle of EU asylum reforms, and a step towards a common approach should arrivals at borders increase. Yet, if adopted in the form agreed by the member states, the proposal will not meet these ambitions.

With only a few months left to conclude negotiations ahead of the 2024 European elections, there is a high risk that a final compromise between the Parliament and the Council will normalise the use of emergency measures – undermining, not improving, the EU’s common approach to people seeking safety at its borders. Without significant amendments, the Regulation will foster disproportionate responses, denying people access to asylum and placing more people in detention-like conditions.

Constructing a crisis at EU borders

The crux of the October deal is to allow states to suspend specific rules on access to asylum under a broad and vaguely defined set of scenarios – namely, ‘crisis’, including ‘instrumentalisation’ of migrants, and ‘force majeure’. The first refers to an “exceptional situation of mass influx” (including after search and rescue) considered to render the well-prepared “asylum, reception, or return system non-functional”. Exceptions to asylum rules are also envisaged where third countries and non-state actors facilitate (or ‘instrumentalise’) people’s entry to the EU “with the objective to destabilise” the Union or a member state. Derogations could, lastly, be triggered under ‘force majeure’ or abnormal and unforeseen circumstances. While the recitals refer to pandemics or natural disasters as examples, this concept is not defined in the Council's text, enabling a potentially expansive disapplication of EU ordinary asylum law.

In its negotiating position, reached in April, the European Parliament notably rejects the force majeure regime. Whereas it does not have a formal position on the Instrumentalisation Regulation proposal, and related derogations, the Parliament commissioned a Substitute Impact Assessment that exposes its significant flaws and the risks of codifying the concept in EU law.

Some differences also exist concerning the procedure to trigger, monitor, and end derogatory regimes. Broadly, under the Council’s common approach, states would need to issue a reasoned request to the Commission to trigger these measures – which would then propose a Council Implementing Decision authorising derogations. States could apply them immediately, pending approval, up to 15 days. Measures would apply for an initial six months extendable to maximum a year. Given the open-ended definition of the different scenarios, which may also apply concurrently, time limits may be extended further in practice. The Parliament’s position differs, inter alia, in providing greater detail as to how situations of crisis should be assessed; decisions would be adopted with the involvement of both the Parliament and Council; it also removes the possibility to apply emergency measures before the decision is issued; and it limits the ‘emergency’ period to six months.

Disproportionate restrictions, limited solidarity

Per the Council’s position, the Crisis Regulation would allow states to delay registrations of asylum seekers for up to four weeks upon arrival. When Greece unilaterally applied a similar measure in 2020, it resulted in people who were seeking safety being charged with irregular entry and automatically detained. Without documents proving their asylum seeker status, people risk being denied basic assistance and rights they are entitled to, including reception or protection from refoulement.

The Council’s agreed text would also leave a wide margin of discretion to apply second-rate border procedures: states could use them for virtually anyone from countries below a 75% recognition rate (only five nationalities met this threshold last year: Syria, Belarus, Ukraine, Eritrea and Yemen). This procedure foresees reduced legal safeguards, potentially leading to more claims being wrongly rejected.

While the Council’s position does not include derogations on material reception standards, it bears noting that most people would be detained and confined at borders for the duration of border procedures – which could also extend up to nearly ten months. Children – accompanied or not – and others in vulnerable situations would not be exempted.

Lastly, while proposing wide-ranging exemptions on asylum responsibilities, the Council’s position offers little by way of predictable solidarity towards states facing a ‘crisis’ situation. All states would have to contribute but could choose from various possible solidarity measures, which may be far from protection objectives. This includes relocations of asylum seekers or, for instance, financial contributions (including projects in third countries) or support with return and readmission. By contrast, a swift and mandatory relocation system in times of crisis had been central to the Parliament’s position on the proposal. While maintaining derogations, the Parliament also introduced tighter limits and safeguards surrounding these.

Exceptional responses following Latvia and Lithuania: A new normal in Europe?

While the Crisis Regulation proposal had been billed as a means to strengthen the EU’s resilience to exceptional situations at borders, there is no evidence that it would achieve this in practice. Instead, the situations it covers are so broad, vaguely defined, and overlapping that they are likely to apply regularly. Once in place, it may prove challenging to unwind these exceptions, leading to a normalisation of emergency provisions in Europe.

The possible impact of these proposals is clear. One only has to look at Latvia, Lithuania, and Poland, who, since 2021, responded with similar emergency measures to a few thousand people seeking protection in their territories, which they labelled as the ‘instrumentalisation’ of migrants by Lukashenka’s regime in Belarus.

Amnesty International and other international organisations have widely documented the systemic human rights violations that followed. Authorities in Latvia and Lithuania passed rules allowing, in practice, border guards to conduct summary returns across the Belarus border, amounting to a violation of the principle of non-refoulement. They employed widespread automatic and, therefore, arbitrary detention, including in centres whose conditions amount to inhumane and degrading treatment and in undisclosed areas of the forest. The reports highlight how authorities curtailed the right to asylum, denying effective legal aid and remedies, and, in Latvia, misled people into accepting ‘voluntary’ returns. NGOs and journalists’ access to border areas was blocked, limiting their ability to monitor the situation or provide humanitarian assistance, as hundreds of people were left stranded in the forest in freezing temperatures, leading to numerous deaths.

Many of these emergency measures have been transposed into ordinary national legislation and remain in place two years later.

Furthermore, in June 2023, Latvia passed legislative amendments granting border guards powers to “prevent entries”, which in practice entails conducting summary returns at the border, including by force, and enabling the activation of an “enhanced” border protection regime in case of “disproportionately large” irregular crossings. To qualify as such, the number of people crossing could be as low as 15-20 people per day over ten consecutive days. Latvia promptly invoked this regime in August 2023 until February 2024. Until then, between August 2021 and August 2023, Latvian authorities continuously extended a state of emergency that explicitly curtailed the right to seek asylum at various border areas.

Similar amendments entrenching the use of border pushbacks were previously adopted by Lithuania in April 2023, leaving the government ample discretion on when to deploy such powers. Coupled with the construction of a fence along the entire land border with Belarus and the closure of multiple border crossing points, it has become virtually impossible for people to seek protection.

The European Commission has declined to highlight the inconsistency between these measures and existing EU and international asylum law or encourage member states to comply with a common framework. Rather, the proposed measures on crisis and instrumentalisation and the position taken by the Council appease states that knowingly flouted existing EU standards in the (perhaps ill-judged) hope that they will therefore comply with future frameworks.

Negotiators must avoid creating a system in even greater need of reform

An effective, humane, and sustainable response at borders ensures that people can effectively seek asylum, have their claims promptly registered and examined fairly, and be received in dignity. In allowing extensive and almost discretionary derogations from these standards, particularly in the Council’s position, the Crisis Regulation proposal is disproportionate and risks creating more suffering and blind spots for human rights at borders.

Beyond this, it risks weakening the coherence and consistency of European border responses and adding unnecessary, complex, and overlapping exceptional regimes to an already labyrinthine web of reform proposals –when existing laws already suffer from a severe implementation gap. The Council’s position moves the EU further from a measured and well-resourced common response to arrivals at its external borders. It discourages states from investing in their reception and asylum systems to manage migration humanely and effectively. This may lead to sustained onward movements within the EU, as the gap between states’ practice is widened, and asylum seekers may seek to avoid lengthy detention and enjoy a fair assessment of their protection claims – exacerbating, in turn, a race to the bottom in protection standards across Europe. By contrast, crisis preparedness obligations, a strength of the Parliament’s position, are absent from the Council’s position.

The Crisis Regulation proposal is now being negotiated with the Parliament, whose initial position on the file differs widely from that of the Council. Issues remain regarding the applicability of derogations, their safeguards, and limitations; the triggering and monitoring of exceptional regimes; and the strength and predictability of the solidarity scheme.

With few months left, there is significant political pressure on all institutions to deliver the migration and asylum reforms. However, human rights considerations should not be sidelined to rush an agreement. Policymakers should likewise avoid sleepwalking into creating a less coherent, more dysfunctional European response to people seeking safety. Otherwise, they risk creating a system in even more desperate and urgent need of reform than the current one.

Olivia Sundberg Diez is an EU Advocate on Migration and Asylum at Amnesty International and former Policy Analyst at the European Policy Centre.

The support the European Policy Centre receives for its ongoing operations, or specifically for its publications, does not constitute an endorsement of their contents, which reflect the views of the authors only. Supporters and partners cannot be held responsible for any use that may be made of the information contained therein.

Photo credits:
John Thys / AFP

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