14 Juli 2022
12 July 2022 by Barbara Safradin[1]
In this update, some recent highlights at EU and national levels will be discussed in the field of EU migration and asylum law for the period April to mid July 2022. The following topics will be discussed, amongst others: pushbacks at the European borders, the war in Ukraine and its impact on individual EU member states, abuses within Frontex and amendments in the EU Schengen Border Code.
New package of EU migration measures
On 27 April 2022, the European Commission presented a new package of measures to increase legal pathways of migration and address shortages in the European labour market. In its proposal, the Commission is suggesting legal, operational and policy initiatives that will benefit the EU’s economy, strengthen cooperation with non-EU countries and improve overall migration management in the long term. The set of proposals also includes specific actions to facilitate integration of those displaced by the war in Ukraine into the EU’s labour market. The measures also include the establishment of an EU Talent Pool, that is supposed to match employers with people looking for jobs in other countries. Finally, the measures aim to establish so-called “talent partnership” with Tunisia, Egypt and Morocco “to improve access to work and training, in a bid to prevent smuggling and also to improve cooperation with countries on returns and readmissions of those who arrived illegally”.[2]
Pushbacks
In the period from April to June 2022, different reports have illustrated that pushbacks still take place in EU Member States. Greece continues to refuse nationals from Syria, Afghanistan, Somalia, Pakistan and Bangladesh on the grounds that Turkey is a „safe third country“ for them, despite Turkey having not accepted any takeovers since March 2020.[3]
In addition, recent reports from the Balkan route continue to point to the high number of pushbacks in the EU. The European Parliament also discussed violations of the right to asylum within EU member states during the plenary session that was held on 6 April 2022.[4] Several times, media and human rights organisations sounded the alarm about the pushbacks of migrants, especially on the southern and eastern borders of Europe. Attention is also being paid to this in the European Parliament and the investigation is continuing. In their recent blog about Europe’s failing asylum system, MEP Groen Links, Tineke Strik, and Policy Adviser from the Green Left Party stipulate that the pushbacks also send the EU a signal that shifting responsibility to other countries may be justified; a message from Western countries (including Australia and the United States) that mainly affects the poorer part of the world, which is already hosting 86% of refugees.[5]
In addition, the Council of Europe (CoE) published a report that denounces the “generalised” refoulement of migrants at the borders. A practice punctuated by “serious and systematic violence”, according to the organisation, which calls on member states to put an end to these human rights violations.[6]
Developments within EU agency Frontex
The German civil rescue organisation Sea Watch sued Frontex for its lack of transparency on the cooperation with the Libyan Coast Guard. The lawsuit addresses a case of a pushback carried out by the Libya Coast Guard from the Maltese SAR zone with the alleged help of a Frontex drone. [7]
The European Parliament also used its budgetary scrutiny powers , from the second year in a row, to withheld its approval of the management of Frontex’s budget. The budgetary scrutiny is one of the most powerful cards the European Parliament can play to make effective its oversight over a decentralised agency such as Frontex, in this area, the Council only has the competence to issue a recommendation in this area. By contrast, the budgetary procedure offers to the European Parliament less possibility to influence the functioning of an agency.[8] As far as the adoption of the annual budget is concerned, the European Parliament and the Council are almost on equal footing when it comes to their competences. Since the EU Council and the Parliament have to find a common ground within the annual budgetary procedure, this did result in a positive outcome for the European Parliament, i.e. to promote its agenda and increase its influence on the management of Frontex.[9]
A new investigation by Le Monde, Lighthouse Report, Der Spiegel and Republik presents evidence of Frontex covered up illegal expulsions of migrants from Greece to Turkey. Between March 2020 and September 2021, the agency hid at least 22 cases of illegal expulsion by registering them as prevented departures operations by Turkey.[10]
All these events recently led to the resignation of the Frontex director.[11] According to GroenLinks MEP Tineke Strik, Leggeri’s resignation is a necessary first step, but the member states and the European Commission must also take responsibility for effectively banning pushbacks. Strik led an investigation by the European Parliament last year into Frontex’s role in pushbacks.[12] The practice of pushbacks also tested the limits of the Dutch constitutional state: The Council of State (Raad van State) in April 2022 ruled that the Netherlands may no longer deport asylum seekers to EU countries where systematic pushbacks take place.[13]
On 3 May 2022, Statewatch published a report called “At what cost? Funding the EU’s security, defense, and border policies, 2021–2027”.[14] The report reveals that, amongst others, the 2021–27 Multi-annual Financial Framework allocates an unprecedented amount of European public money for security and defence purposes, more than doubling its budget from one spending cycle to the next.[15] Frontex, will be provided with unprecedented funding of €5.6 billion from 2021-2027, a 194% increase compared to the previous budgetary cycle, and a key role in overseeing member states’ use of EU migration funds.[16]
War in Ukraine
As already explained in the EU update of March 2022, the Russian invasion in Ukraine causes unprecedented challenges for the EU. Many of those challenges are still unfolding. However, it is already clear that individual Member States are targeted as well. According to the EU Commission, a total of 5,6 million people fled Ukraine, and more than 1 million have returned to Ukraine according. In addition, EU observer indicates that more than 2,5 million Ukrainians have registered for temporary protection status in the EU.[17]
According to some specific EU Member States, the negative impact of the war in Ukraine is asymmetric andseveral of the effects, in particular humanitarian ones, are particularly and disproportionately severe. As such, ten EU countries (i.e. Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia) signed a joint statement asking the EU Commission for more funds to tackle to refugee influx from the war in Ukraine.[18]
Impact of Ukrainian war on EU Member States
In the Netherlands, as well, Ukrainian citizens face legal challenges in protecting their rights. The Temporary Protection Directive[20] confers a number of substantive rights on temporarily protected persons. These rights are of a pretty high standard. The European Commission, in its proposal for the Directive, cited as one of the reasons for the high level of rights the possibility that there are many refugees among those temporarily protected and that therefore the level of rights cannot be much lower than the rights provided for in the Refugee Convention. to refugees.[21]
The Meijers Committee recently wrote a comment about the inadequate application of the Temporary Protection Directive in the Netherlands.[22] The Commission is of the opinion that the implementation of the Temporary Protection Directive in the Netherlands for temporarily protected persons from Ukraine does not meet the requirements of that directive on an essential point. In the Netherlands, the Temporary Protection Directive has been transposed by obliging those temporarily protected to submit an asylum application in order to qualify for the promulgated temporary protection regime. This obligation has no basis in the Directive. The decision on this asylum application is then suspended. The consequence of this is that temporarily protected persons in the Netherlands do not receive a residence permit but the status of asylum seeker.[23]
The lack of a residence permit can have serious legal and practical consequences for those temporarily protected. In the long term, these consequences are also not conducive to the integration of those who stay longer in the Netherlands. This form of implementation of the Directive in the Netherlands is clearly contrary to the intention of the Union legislator when drafting the Temporary Protection Directive. It also conflicts with the Operational Guidelines of the European Commission of March 2022. The Meijers Committee therefore urges the Dutch government to grant protected persons from Ukraine a residence permit instead of a sticker comparable to the so-called W document (in the passport) or O document.[24]
Amendments in the EU Schengen Borders Code
In December 2021, the European Commission presented a legislative proposal to improve the functioning of the Schengen area by strengthening the external borders and restoring free movement across internal borders while increasing security. The proposal stems from the roadmap for a new pact on migration and asylum, more specifically the European Commission’s Schengen Strategy, as published in June 2021.[25] The proposal includes an amendment to the Schengen Borders Code and a targeted amendment to the Return Directive. The proposal should be read in conjunction with the proposal for a regulation dealing with instrumentalisation situations in the field of migration and asylum[26] and the proposal for a Council Recommendation on operational police cooperation.[27]
In its recent note of May 2022 on the amendments to the Schengen Borders Code, the Meijers Committee argues that the European Commission’s proposal raises concerns about safeguarding the EU’s fundamental freedoms as laid down in the EU treaties, in particular the free movement of EU citizens and fundamental rights, in particular the right to asylum, the protection of personal data and non-discrimination.[28] The EU treaties explicitly define the area of freedom, security and justice as an area without internal border controls. For EU citizens, the right of free movement and residence within the territory of the Member States is protected in Article 21 TFEU. In addition, in accordance with Article 67 TFEU, the Union must ensure that there are no internal border controls for EU and non-EU citizens. This was recently confirmed by the Court of Justice of the EU in a judgment on the legality of the long-term reintroduction of internal border controls.[29]
The European Commission does not regard the reintroduction of internal border controls as a barrier to the free movement of EU citizens, even though the Commission itself requires Member States to report on its impact on the free movement of citizens. The negative effects of the reintroduction of controls on the free movement of persons have been widely reported by, among others, the EU Fundamental Rights Agency.[30] At a very symbolic level, the proposal even allows the construction of speed limits or other physical barriers at road crossing points.[31] Finally, with this proposal, the European Commission reaffirms a sovereign right for Member States to reintroduce internal border controls, whilst remaining silent on the disproportionate nature of the scale and duration of internal border controls witnessed at Member States internal borders since 2015.[32]
EU Council Presidency
The Czech Republic took over the EU’s rotating presidency on Friday (1 July), which will focus on tackling the massive wave of migration caused by the conflict and Ukraine’s costly reconstruction. The Kiev School of Economics estimates that damage inflicted by the Russian military could amount to €600 billion, or even more if the invasion continues.[33]
The European Commission has put forward some initial ideas for raising the huge amount of money, including special allocations from the EU budget, contributions from EU member states and in particular the EU common debt. The debate is still in its early stages and the EU Council has not yet reached a unified position. The Presidency will oversee discussions on the next set of sanctions against Russia.[34] The Czech presidency will also have to deal with Ukraine’s application for membership to join the EU, which must be unanimously approved by the 27 EU member states. Once Ukraine gains candidate status, a lengthy and complex accession process will officially begin.[35]
[1] Executive Secretary Meijers Committee.
[2] EU Commission, ‘Legal migration: Attracting skills and talent to the EU’, [27 April 2022] available at https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2654.
[3] ECRE, ‘Greece: Deadly End to 2021, Pushbacks Prevent Arrivals and Drive People Towards More Deadly Routes, Closed Controlled Camps Again Face Legal Scrutiny and Criticism’, available at <https://ecre.org/greece-deadly-end-to-2021-pushbacks-prevent-arrivals-and-drive-people-towards-more-deadly-routes-closed-controlled-camps-again-face-legal-scrutiny-and-criticism/>
[4] See https://www.europarl.europa.eu/doceo/document/CRE-9-2022-04-06-ITM-012_EN.html.
[5] T. Strik, J. Verheul, ‘Een alternatief voor Europa’s falende asielsysteem’, WBS, 9 June 2022, accessed on 12 July 2022, available at https://wbs.nl/publicaties/een-alternatief-voor-europas-falende-asielsysteem.
[6] See: https://www.infomigrants.net/fr/post/39722/le-conseil-de-leurope-denonce-le-refoulement-generalise-des-migrants-aux-frontieres-europeennes.
[7] See in particular N. Nielsson. ‘Transpareny lawsuit filed against Fronbtex’, available at https://euobserver.com/migration/154814?utm_source=euobs&utm_medium=email, accessed on 20 June 2022.
[8] S. Saurel, ‘Frontex under the budgetary scrutiny of the European Parliament’, available at https://eumigrationlawblog.eu/frontex-under-the-budgetary-scrutiny-of-the-european-parliament/#more-8412, accessed on 26 June 2022.
[9] In the case of Frontex, the aim of the European Parliament was to urge the agency to implement swiftly a set of measures, identified by the Special Report of the European Court of Auditors, to address issues concerning the agency’s management and operational activities. These include recruiting twenty missing fundamental rights monitors and three deputy executive directors sufficiently qualified to fill these positions, setting up a mechanism for reporting serious incidents on the EU’s external borders and an effective fundamental rights monitoring system. See in this regard: S. Saurel, ‘Frontex under the budgetary scrutiny of the European Parliament’, available at https://eumigrationlawblog.eu/frontex-under-the-budgetary-scrutiny-of-the-european-parliament/#more-8412, accessed on 26 June 2022.
[10] J. Pascual, ‘European Border control agency has been covering up illegal returns of migrants, available at https://www.lemonde.fr/en/international/article/2022/04/30/frontex-the-european-border-control-agency-has-been-masking-illegal-returns-of-migrants-in-the-aegean-sea_5982031_4.html, accessed on 25 June 2022.
[11] Politico Europe, EU border agency chief resigns after critical watchdog probe, 29 april 2022.
[12] P. Wagemaker, ‘Frontex topman Leggeri stapt op’, ‘goede stap volgens Strik’, available at https://brusselsenieuwe.nl/frontex-topman-leggeri-stapt-op-goede-stap-volgens-strik-groenlinks/.
[13] Afdeling bestuursrechtspraak van de Raad van State, Uitspraak 202102939/1/V3, 13 april 2022.
[14] Statewatch, ‘At what cost: funding the EU’s security defense and border policies 202-2027, available at https://www.statewatch.org/publications/reports-and-books/at-what-cost-funding-the-eu-s-security-defence-and-border-policies-2021-2027/.
[15] Ibid.
[16] Statewatch, ‘At what cost: funding the EU’s security defense and border policies 202-2027, available at https://www.statewatch.org/publications/reports-and-books/at-what-cost-funding-the-eu-s-security-defence-and-border-policies-2021-2027/.
[17] EU observer, Over 2.5 million Ukrainians register form EU protection, [4 may 2022], available at https://euobserver.com/tickers/154871?utm_source=euobs&utm_medium=email.
[18] See in particular: https://www.politico.eu/wp-content/uploads/2022/05/02/Joint-statement-on-the-needs-and-challenges-regarding-the-unprecedented-humanitarian-migration-to-the-European-Union.pdf?utm_source=POLITICO.EU&utm_campaign=d351aa7783-EMAIL_CAMPAIGN_2022_05_03_04_33&utm_medium=email&utm_term=0_10959edeb5-d351aa7783-190899872.
[19] See https://www.infomigrants.net/fr/post/39833/irlande–pres-de-10-000-ukrainiens-risquent-de-se-retrouver-sans-hebergement.
[20] See Chapter III of Directive 2001/55/EC of the Council of 20 July 2001 on minimum standards for the provision of temporary protection in the event of a mass influx of displaced persons and on measures to promote a balance between the efforts of the Member States to reception and bearing the consequences for the reception of these persons (OJ L 212, 7.8.2001, pp. 12–23). (Articles 8-16). This chapter is entitled Obligations of the Member States towards the beneficiaries of temporary protection. This means that Member States are obliged to grant temporarily protected persons a certain level of rights. The rights granted to displaced persons in this regard shall not be less favorable than the rights set out in Articles 8-16. In addition, they must be fair and offer the data subjects an adequate level of protection (ref. 15 of the preamble).
[21] Commissie Meijers, ‘Notitie betreffende de gebrekkige toepassing van de Tijdelijke beschermingsrichtlijn in Nederland juni 2022, available at http://www.commissie-meijers.nl/comment/notitie-betreffende-de-gebrekkige-toepassing-van-de-tijdelijke-beschermingsrichtlijn-in-nederland/, consulted on 30 June 2022.
[22] Ibid.
[23] Ibid.
[24] ECRE Information Sheet – Measures in response to the arrival of displaced persons fleeing the war in Ukraine (last update: 6 May 2022).
[25] See Meijers Committee, ‘Commentary on the Commission Proposal Amending the Schengen Borders Code (COM(2021) 891)’, available at http://www.commissie-meijers.nl/wp-content/uploads/2022/05/CM2205-Commentary-on-the-Commission-Proposal-Amending-the-Schengen-Borders-Code-COM2021-891.pdf, p. 2. NB In November 2020, the Meijers Committee published its recommendations for the Schengen strategy, as announced in the New Pact on Migration and Asylum in September 2020, which can be consulted via: http://www.commissie-meijers.nl/wp-content/uploads/2021/09/cm2011_new_strategy_for_schengen.pdf.
[26] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021PC0890&from=EN
[27] https://eur-lex.europa.eu/resource.html?uri=cellar:11ecbb04-58d8-11ec-91ac-01aa75ed71a1.0001.02/DOC_1&format=PDF.
[28] Meijers Committee, ‘Commentary on the Commission Proposal Amending the Schengen Borders Code (COM(2021) 891)’, available at <http://www.commissie-meijers.nl/wp-content/uploads/2022/05/CM2205-Commentary-on-the-Commission-Proposal-Amending-the-Schengen-Borders-Code-COM2021-891.pdf>, p. 2.
[29] Joined Cases Joined Cases C-368/20 and C-369/20, NW, 26 April 2022, par. 6
[30] Commission, ‘Towards a phased and coordinated approach for restoring freedom of
movement and lifting internal border controls – COVID-19’ [2020] OJ C 169; Fundamental Rights Agency, Coronavirus pandemic in the EU – Fundamental Rights Implications – Bulletin 6 (1.45 MB), beschikbaar via https://fra.europa.eu/en/publication/2020/covid19-rights-impact-november-1.
[31] See Meijers Committee, ‘Commentary on the Commission Proposal Amending the Schengen Borders Code (COM(2021) 891)’, available at http://www.commissie-meijers.nl/wp-content/uploads/2022/05/CM2205-Commentary-on-the-Commission-Proposal-Amending-the-Schengen-Borders-Code-COM2021-891.pdf, p. 2.
[32] Meijers Committee, ‘Commentary on the Commission Proposal Amending the Schengen Borders Code (COM(2021) 891)’, available at <http://www.commissie-meijers.nl/wp-content/uploads/2022/05/CM2205-Commentary-on-the-Commission-Proposal-Amending-the-Schengen-Borders-Code-COM2021-891.pdf>, p. 2.
[33] J. Liboreiro, ‘Ukraine, energy and supply chains: the Czech Republic unveils priorities for EU Council presidency’, 15 juni 2022 (Euronews), geraadlplegd op 5 juli 2022, beschikbaar via https://www.euronews.com/my-europe/2022/06/15/ukraine-energy-and-supply-chains-the-czech-republic-unveils-priorities-for-eu-council-pres.
[34] J. Liboreiro, E. Koutsokosta, S. Murray, ‘Patriarch Kirill excluded from EU sanctions after Hungary’s objection’, 2 Juni 2022 (Euronews), geraadpleegd op 20 juni 2022, available at https://www.euronews.com/my-europe/2022/06/02/patriarch-kirill-excluded-from-eu-sanctions-after-hungary-s-objection.
[35] Ibid.
