31 August 2023
Barbara Safradin and Shania Dharmawan, August 2023
In this second EU update of 2023, Barbara Safradin[1] and Shania Dharmawan[2] provide an overview of the recent developments on migration and asylum in the EU and the EU legislative proposals in the second quarter of 2023. This overview includes, amongst others: the latest developments related to the European Pact on Migration and Asylum, priorities of the Schengen Council in the period June 2023-May 2024, the situation on the Western Balkan route and the number of irregular migrants in the EU, the temporary protection of Ukrainians in Europe, and finally the kick-off of the Spanish EU Presidency.
Latest developments European Pact on Migration and Asylum
As already mentioned in our previous April 2023 update, the Renew Europe group of the European Parliament welcomed the adoption of the key regulations of the Asylum and Migration Pact at the end of March 2023, paving the way for a new system based on solidarity and responsibility sharing in the EU.[3] The new Pact on Migration and Asylum proposed by the European Commission in September 2020 aims to improve asylum procedures and a fair division of responsibility between the Member States. It contains the following regulations: the Asylum and Migration Management Regulations[4], the Crisis and Force Majeure Regulations[5], the Screening Regulations[6] and the amended Asylum Procedures Regulations. [7] The new regulations focus on more efficient border procedures, enhanced cooperation partnerships with third countries of origin, and the prioritisation of the best interests of the child.[8]
The legislative proposals concern the following files:
1. the replacement of the Dublin system with a new asylum and migration management system in which asylum applications are better spread across Member States and applications are processed in a timely manner due to a new solidarity mechanism;
2. temporary and exceptional measures in crisis and force majeure situations in the area of migration and asylum;
3. the strenghtening of the Eurodac regulation to improve the EU fingerprint database for asylum seekers;
4. the establishment of a fully-fledged EU asylum agency;
5. new mandatory pre-entry screenings consisting of identification, health ad safety checks, fingerprints and registration in the Eurodac database;
6. the replacement of the Asylum Procedure Directive with an amending Regulation to harmonise EU procedures;
7. the replacement of the Qualification Directive by a regulation to harmonise the protection standards and rights of asylum seekers;
8. a reform of the Reception Conditions Directive to ensure harmonised and dignified reception standards for asylum seekers;
9. a permanent EU resettlement framework.
On 8 June 2023, the EU Council took a decisive step towards modernising the agreements on asylum and migration. Member States have agreed on the Council’s negotiating position for two proposals for regulations: the Asylum Procedure Regulation and the Asylum and Migration Management Regulation, which are the main pillars of the EU asylum system consisting of responsibility, solidarity and procedural rules. The agreement has been discussed throughout the Swedish Presidency. On the basis of these general approaches, the Presidency of the Council will negotiate with the European Parliament on the final text of these two regulations.[10] Two member states have already opposed the agreement: Hungary and Poland, mainly because they do not believe that Europe should have an asylum system. Four Member States abstained: Bulgaria, Malta, Lithuania and Slovakia for various reasons. One of the most important points is that states have agreed on the majority of the procedural rules based on efforts to limit the number of people enjoying international protection in Europe. [11]
Criticism on pact from civil society
Several NGOs, including ECRE, believe that the proposals lower the protection standards for asylum seekers in Europe.[12] For example, ECRE argues that extensive use of the border procedure will mean that more people in detention centers at the external borders will be subjected to substandard asylum procedures. With the increasing responsibility for countries at the border, there is a risk that Member States will opt for pushbacks. In addition, ECRE believes that the definition of a ‘safe third country’ has been eroded: Member States are allowed to decide which countries meet this definition. A country must meet certain protection criteria and there must be a link between the person and the country based on international law. However, the relationship with the country is determined by national law. Examples in the text are family ties and previous residence, but a Member State could decide that simple transit is already sufficient. Finally, ECRE argues that the procedural rules seem to be so complex that they may be unworkable in practice.[13]
The EP and the rotating presidencies of the Council aim to approve the reform of Europe’s migration and asylum rules before the 2024 EU elections. [14]
Schengen Council priorities June 2023-May 2024
A year ago, the French Presidency initiated the Schengen Council, with the aim of improving the political governance of the Schengen area and ensuring coherence between political and operational management.[15]
In its 2023 report on the state of the Schengen area, the European Commission lists a number of priority measures that are needed to tackle the main problems in the Schengen area. This includes the governance of the Schengen area and the application of the acquis, making return systems more effective, fostering law enforcement cooperation to fight cross-border, serious and organised crime and tackle illicit drug trafficking, and finally improving the management of the EU borders.
In March 2023, the Schengen Council called for closer supervision of the EU’s visa waiver policy and encouraged the European Commission to present a legislative proposal to amend the visa Regulation with regard to the visa suspension mechanism. Based on a communication from the European Commission and the discussions in the Schengen Council on visa policy and supervision of visa-free regimes from 8 June 2023, work in this direction will continue. In addition, the Swedish EU Presidency, in cooperation with the Spanish and Belgian Presidencies (the so-called troika), has identified areas to which the Schengen Council should pay particular attention during the future cycle.[16]
Governance of the Schengen area and application of the acquis
The inaugural Schengen Council was a crucial first step in strengthening control over the Schengen region. Based on these developments, the Swedish Presidency has concluded that the Schengen Council needs to be strengthened by streamlining and anticipating the preparatory process in Council meetings. Several tools need to be assessed and streamlined, namely: the ‘Schengenbarometer+’, the Commission’s report on the state of Schengen, Schengen evaluations and a Schengen scoreboard. [17]
Making return systems more effective
The return rate in the EU remained below 20% in 2022, despite efforts to address internal issues that hamper the ability to return undocumented migrants. There is an urgent need for operational action consisting of, amongst others: the adoption of the renewed legal framework for return based on the recast Return Directive; smoother and faster return procedures; analysis of the extent to which Member States make use of operational and practical Frontex support in the field of return and reintegration; encouraging countries to use the procedure described in Article 25a of the Visa Code, including the possibility of imposing strict visa requirements on third countries that refuse to assist in return. [18]
Combating organised crime and illegal drug trafficking
One of the greatest risks to the internal security of the Schengen area is the trafficking of illicit drugs. The European Commission is currently examining possible new policy initiatives to support and reinforce the actions already set out in the EU Drugs Strategy and Action Plan 2021-2025 and in the EU Strategy against Organised Crime 2021-2025. The thematic Schengen evaluation in 2023 will identify best practices for Member States to combat drug trafficking.[19]
Improving the management of EU borders
The effective management of the EU’s external borders is essential for a well-functioning Schengen area. In this context, several actions should be given special attention, such as increasing the effectiveness of national plans for integrated border management before March 2024 and implementing relevant strategic procedures, which would improve the effectiveness of national administration in relation to return and border management.[20]
Eastern borders by Hungarian embassy in violation of EU and international law
According to the European Court of Justice (hereinafter: CJEU), Hungary has not fulfilled its commitments since the introduction of the embassy procedure in 2020.[21] According to an updated information note from the Helsinki Hungarian Committee (HHC), the Hungarian asylum system has been essentially suspended since May 2020, when the embassy procedure was implemented. To apply for international protection in Hungary, foreign nationals must first submit a pre-asylum application to their country’s consulate in Serbia or Ukraine. Rejected applicants receive an email notifying them of the decision without any factual rationale or legal grounds, while accepted candidates are granted entry into the country.
The Hungarian authorities are required to go through a new procedure following several court rulings that found rejection by email to be a serious breach of procedural standards. However, the Hungarian authorities have not yet taken any effective action on this matter. On 22 June 2023, the CJEU ruled that the embassy policy of Hungarian Prime Minister Viktor Orbán violated international protection law, as it denies stateless persons or nationals of other countries the possibility to apply for refuge. [22]
Balkan route and continued pushbacks
Our April 2023 update illustrated that over 308,000 irregular entries were detected at the EU’s external borders in the first eleven months of 2022. This is an increase of 68% compared to the same period last year and is the highest increase since 2016.[23] The Western Balkans route remains the most active route, with 45% of all registered irregular entries into the EU since the beginning of the year. According to data from the European Border and Coast Guard Agency, Frontex, the number of unauthorised crossings at the EU’s external borders rose to 102,000 in the first five months of 2023, an increase of 12% compared to the same period last year.[24]
Crossings at the Mediterranean sea
The crossing of the Mediterranean Sea is considered the most dangerous migration route in the world. More than 25,000 people have gone missing or died in the Mediterranean since 2014.[25] With more than 50,300 crossings in 2023, the Central Mediterranean is the busiest route to the EU. Arrivals on this route increased by 12% of all arrivals to the EU in 2023, despite a decrease on other migratory routes, accounting for about half of irregular arrivals. In addition, arrivals and rescue operations continue. [26]
On June 17, 103 persons were taken to the port of Roccella by the Italian Coast Guard after being rescued from the ship. According to reports, the boat was near the site of the June 15 disaster near Pylos, Greece, which left at least 81 people dead and hundreds missing. [27] Among the 117 rescued by the Open Arms Fund rescue vessel on the same day were 25 women, 31 children and a 3-year-old. After the Italian coastguard rescued 44 people from a shipwreck off the coast of Lampedusa, three people were reported missing on June 20. The three people were wanted by the Italian authorities, who asked RESQSHIP for help, but unfortunately have not been found until this day. [28]
EU-Tunisia deal
The EU and Tunisia signed a Memorandum of Understanding on 16 July for a “strategic and comprehensive partnership” aimed at combating irregular migration and strengthening economic ties. The EU will provide Tunisia with €105 million to halt deadly irregular migration across the Mediterranean, improve border management and tackle smuggling. The agreement is strongly criticised by civil society organisations. For example, Human Rights Watch states that everyone has the right to leave any country, including their own country, and everyone has the right to apply for asylum. Trying to prevent people from leaving violates that right. In addition, Human Rights Watch argues that the migration deal would strengthen Tunisia’s security forces, including the police and the naval national guard, both of which have committed serious abuses against migrants and asylum seekers. [29]
Temporary Protection of Ukrainians in the EU
In April 2023, almost four million people fleeing war in Ukraine benefited from the EU’s Temporary Protection Scheme, which was recently extended until 4 March 2024. The Council may decide to extend it for another year. However, even if the war ends before March 2025, a successful return to Ukraine depends on the reconstruction and stability in Ukraine. Experiences with refugees from the war in the former Yugoslavia learn us that many refugees will not return. A recently published commentary by the Meijers Committee addresses two key questions in this context:
In its comment, the Meijers Committee recommends that the EU legislator should adapt EU legislation in such a way that a common solution can be offered for beneficiaries from Ukraine who wish to continue their (temporary) stay in the EU after the Temporary Protection Regulation has expired. Their future residence in the EU should not depend solely on national law or practices in their Member State of residence, which can differ significantly between Member States. In this context, the Meijers Committee concludes that if the war in Ukraine continues as of March 2025:
If the EU Council were to decide to end the temporary protection scheme before March 2025 and the current beneficiaries would automatically lose their protection status, the Council would have to regulate which EU status should be obtained by the former beneficiaries.
In addition to the common EU solution discussed above, the Meijers Committee makes the following recommendations to the European Parliament and the Council in its comment:
Start of the Spanish EU Presidency
The Presidency of the Council of the European Union rotates between EU Member States and changes every 6 months. Spain has taken over the Presidency of the Council of the European Union from Sweden on 1 July 2023. The motto of the Spanish Presidency is ‘Europe, closer’. Spain will hold the presidency from 1 July 2023 to 1 January 2024. The four priorities of the new presidency include reindustrialisation of Europe and ensuring Open Strategic Autonomy, greater social and economic justice, green transition and a united Europe. On the themes of migration and asylum specifically, the Spanish Presidency will advocate greater deepening of the internal market, more efficient and coordinated management of migration and asylum processes and coordinated support for Ukraine and other neighboring countries. [32]
[1] Executive Secretary of the Meijers Committee.
[2] Intern at the Meijers Committee in the period January – July 2023.
[3] ECRE, ‘European Pact on Migration and Asylum – Latest Developments’ (17 March 2023), available at https://ecre.org/editorial-european-pact-on-migration-and-asylum-latest-developments/
[4] Ordinary Legislative Procedure, 2020/0279(COD) crisis and force majeure Regulation, available at https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/0279(COD)&l=nl
[5] Ordinary Legislative Procedure, 2020/0277(COD) available at https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/0277(COD)&l=nl
[6] Ordinary Legislative Procedure, 2020/0278(COD), available at https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2020/0278(COD)&l=nl
[7] Ordinary Legislative Procedure, 2016/0224(COD), available at https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2016/0224(COD)&l=nl
[8] See in this context: C. Rhawi. Migration and Asylum Pact’, available at https://www.reneweuropegroup.eu/news/2023-03-28/migration-and-asylum-pact-parliament-breakthrough-must-be-quickly-followed-up-by-the-council
[9] See in this context: https://www.consilium.europa.eu/nl/policies/eu-migration-policy/eu-asylum-reform/
[10] See: https://www.consilium.europa.eu/nl/press/press-releases/2023/06/08/migration-policy-council-reaches-agreement-on-key-asylum-and-migration-laws/.
[11] ECRE, Editorial: Migration Pact Agreement Point by Point (9 June 2023), available at https://ecre.org/editorial-migration-pact-agreement-point-by-point/.
[12] Ibid.
[13] Supra note 11.
[14] ‘Migration and Asylum: Roadmap on way forward agreed between European Parliament and rotating Presidencies’ (European Parliament, 7 September 2022), available at https://www.europarl.europa.eu/news/en/press-room/20220905IPR39714/migration-and-asylum-roadmap-on-way-forward-agreed.
[15] See: Mededeling van de Europese Commissie, Verslag over de staat van Schengen 2023, 16 May 2023, available at https://eur-lex.europa.eu/legal-content/NL/TXT/HTML/?uri=CELEX:52023DC0274.
[16] Ibid.
[17] Supra note 16.
[18] Supra note 16.
[19] Ibid.
[20] Ibid.
[21] CJEU Case C-823/21 Commission v Hungary (Declaration of intent prior to an asylum application) ECLI:EU:C:2023:504.
[22] Supra note 19.
[23] ECRE, ‘Balkan Route: Ongoing Systematic Violence and Pushbacks Across Balkans, Frontex to Assist North Macedonia in “Border Management”, Bulgaria Sees Deadly Incident Leaving 18 Afghans Dead’ (3 March 2023), available at: https://ecre.org/balkan-route-ongoing-systematic-violence-and-pushbacks-across-balkans-frontex-to-assist-north-macedonia-in-border-management-bulgaria-sees-deadly-incident-leaving-18-afghans-dead/
[24] ECRE, Mediterranean: Ongoing Arrivals and Deaths Amid Negotiations Between Tunisia and EU Officials for “Better Border Control”, Maltese Prime Minister Renews Calls for Joint Cooperation to “Combat Migration” As Accusations by NGOs of Pushbacks & Non-Response Tactics Mount Up, Abuses by Libyan Coast Guard Continue (23 June 2023), available at: https://ecre.org/mediterranean-ongoing-arrivals-and-deaths-amid-negotiations-between-tunisia-and-eu-officials-for-better-border-control-maltese-prime-minister-renews-calls-for-joint-cooperation-to/
[25] See for statistics: https://missingmigrants.iom.int/region/mediterranean.
[26] See Frontex. Half of arrivals to the EU through the Central Mediterranean, 16 June 2023, available at https://frontex.europa.eu/media-centre/news/news-release/half-of-arrivals-to-the-eu-through-the-central-mediterranean-h45xHQ.
[27] See in this context: https://www.rodekruis.nl/nieuwsbericht/bootramp-op-middellandse-zee-we-moeten-oppassen-dat-we-niet-aan-deze-verdrietige-berichten-gaan-wennen/
[28] Supra note 24.
[29] See in this context: https://www.dw.com/en/tunisia-eus-migration-proposal-turns-a-blind-eye-to-human-rights/a-65906201.
[30] Meijers Committee, ‘Comment on what will happen whe the temporary protection scheme for refugees from the war in Ukraine ends’, 14 July 2023, available at http://www.commissie-meijers.nl/wp-content/uploads/2023/07/230714-Meijers-Committee-Comment-on-End-of-Ukraine-Temporary-Protection-Scheme-.pdf.
[31] Meijers Committee, ‘Comment on what will happen whe the temporary protection scheme for refugees from the war in Ukraine ends’, 14 July 2023, available at http://www.commissie-meijers.nl/wp-content/uploads/2023/07/230714-Meijers-Committee-Comment-on-End-of-Ukraine-Temporary-Protection-Scheme-.pdf.
[32] For the official website of the Spanish Presidency, see: https://parleu2023.es/en/the-spanish-presidency/.
