2 February 2023
Barbara Safradin[1], January 2023
In this fourth EU Update of 2022, Barbara Safradin, the executive secretary at the Meijers Committee, gives an overview of the recent EU migration developments and the legislative and non-legislative proposals from the European Commission in the fourth quarter of 2022. This overview includes, amongst others: the latest Schengen accession of Croatia, the war in Ukraine, new Russian measures and the impact on the European Union, developments of migration ‘instrumentalisation’, the situation on the western Balkanroute, the new Swedish presidency and finally, the newest developments regarding the latest asylum deal in the Netherlands.
Schengen accession of Croatia
Croatia joined the Schengen Member States on 1 January 2023 and the Schengen acquis therefore applies. This means that from 1 January, controls will be lifted from internal land and maritime borders. As of March 26, 2023, internal air borders will be lifted for Croatia.
During the Justice and Home affairs Council of 8-9 December, the possible accession of Romania and Bulgaria was also discussed. However, agreement could not be reached on the accession of these countries. According to some Member States, the potential risks to the functioning of the Schengen area were too high. This in turn could lead to secondary migration flows and high migratory pressure. In addition, there were also a number of rule of law concerns – in particular with regard to Bulgaria. Austria in particular has blocked the accession of these two countries.
From January 2023, the new Swedish Presidency of the Council will work to make Bulgaria and Romania part of the Schengen Acquis.
Despite the fact that Croatia received unanimous support to enter the Schengen zone, NGOs such as ECRE, Amnesty International and Human Rights Watch have published a joint statement on 8 December 2022 in which they argue that human rights are frequently violated by Croatian authorities, including denial of entry to the territory and to asylum requests, violent pushbacks and inadequate police investigations into misconduct towards refugees.
War in Ukraine and Russian measures
The EU update of October 2022 discussed the war situation in Ukraine and the impact thereof on EU Member States. This was illustrated by a number of EU Member States (i.e., Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia) that have signed a joint statement asking the European Commission for more resources to regulate the refugee flow of Ukrainian citizens.[2]
Since the Russian invasion of Ukraine in February 2022, the UNHCR has registered more than 7,8 million Ukrainian refugees. The activation of the EU’s Temporary Protection Directive has provided legal pathways to protect and enabled rapid and effective assistance to Ukrainian citizens. A number of factors support this treatment of Ukrainian refugees in Europe, such as Ukraine’s geographic and cultural close proximity and the status of Ukraine as an EU accession country.[3]
Temporary Protection Directive in the Netherlands
As discussed in the update of October 2022, Ukrainian citizens have faced various challenges in protecting their rights. The Temporary Protection Directive has assigned a number of substantive rights to those temporarily protected.[4] These rights are of a fairly high level.[5] In the Netherlands, however, the Temporary Protection Directive has been implemented by obliging those temporarily protected to submit an application for asylum in order to qualify for the promulgated temporary protection regime. This obligation does not have a basis in the Directive itself. As a result, those temporarily protected in the Netherlands do not receive a residence permit, but they receive a status of an asylum seeker. At the time of writing, no new policy has been adopted.[6]
On the 4th of March 2023, the right to temporary protection under the Directive will expire for third-country nationals with a temporary residence permit in Ukraine who have registered themselves in the Dutch Basis Registration of Persons (BRP) before July 19 2022. In total, around 6600 third-country nationals are registered in the BRP as refugees from Ukraine. This concerns both persons who are still covered by the Directive after 4 March and persons who are no longer covered after 4 March 2023. The Immigration and Naturalisation Service (in Dutch: Immigratie en Naturalisatiedienst, IND) is currently looking into which part of this group will no longer fall under the scope of the Directive.[7] A significant part of third-country nationals came from safe countries with a relatively small chance of asylum. In this context, implementation of a targeted remigration policy is being considered, which will give these persons the opportunity to voluntarily return to their country of origin with support before 4 March 2023. The Dutch Repatriation and Departure Service (in Dutch: Dienst Terugkeer en Vertrek, DT&V) is currently looking into the feasibility of such a policy in the short term. In addition, the Dutch Council for Refugees (in Dutch: VluchtelingenWerk Nederland) has been asked to inform this group about the expiration of temporary protection and the possibility for this group to return to their country of origin, submit a regular application for residence, or – if desired – continue their application for asylum. The IND is currently working on an action plan for these asylum applications, also in view of the current pressure on the Dutch asylum chain.[8]
Strengthening the EU’s External Borders
The asylum crisis has led the EU to strengthen its external borders. Given the pressure on the national reception systems, the risk of an increase in the number of Ukrainian refugees due to Russia’s latest attacks on energy infrastructure and the fact that the social support for asylum decreases, most EU Member States have paid more attention to reducing irregular migration from the Western Balkans and other migratory routes from Africa. This is illustrated, for instance, in the Western Balkans by the EU’s pressure on Serbia to change the visa regulations, and the agreement between Austria, Hungary, and Serbia[9] to reduce migration flows. For the Central Mediterranean route, the European Commission has presented a renewed action plan to do the same.[10]
Migration Instrumentalisation
In the October update of 2022, developments in the context EU instrumentalisation were discussed. In December 2021, the European Commission submitted a proposal for a regulation to address situations of instrumentalisation in the scope of migration and asylum.[11] The proposal introduced a mechanism allowing Member States to derogate from their responsibilities under EU asylum law in situations of ‘instrumentalisation’ of migration, which according to the revised Schengen Borders Code refers to “a situation where a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals to the external borders, onto or from within its territory and then onwards to those external borders”. The mechanism is permanently available to the Member States.[12]
On 8 December 2022, a compromise proposal by the Czech EU Presidency failed to secure a majority at a Council meeting of EU interior ministers. There is also resistance to the instrumentalisation proposal from the majority of the political groups in the European Parliament; this means that the proposal for the instrumentalisation regulation should be withdrawn. Several NGOs welcome these developments: for instance, ECRE states that these developments show that, although the right to asylum is under threat in Europe, a significant group of Member States is prepared to act to defend it. ECRE and other NGOs, such as Amnesty Internationals, Caritas Europa, Vluchtelingen Werk Nederland, and Human Rights Watch, previously urged states to reject the proposal.[13]
The instrumentalisation regulation creates, according to ECRE, a mechanism that would allow Member States to deviate from the standards related to asylum procedures, reception, and return in any situation they consider to be an incident of “instrumentalisation”. The compromise agreement drafted by the Czech Presidency, which Member States should adopt on 8 December, went even further than the European Commission’s proposal, for example by making it easier to activate the derogation mechanism.[14]
In this context, ECRE argues that the idea of an Instrumentalisation Regulation is fading, but the idea of allowing far-reaching deviations from the standards in the Common European Asylum System (CEAS) could return through the back door – by integrating it into other reform proposals. According to ECRE, it is therefore necessary that EU Member States and Members of the European Parliament (MEPS) who are concerned about the introduction of widespread derogations from the asylum acquis remain vigilant and continue to defend access to asylum in Europe.
The situation on the Western Balkan Route
According to preliminary calculations, more than 308,000 irregular entries were detected at the external borders of the European Union 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. The Western Balkans route remains the most active route, with 45% of all recorded irregular entries into the European Union since the beginning of the year.
In November 2022, EU Member States recorded around 27,000 irregular border crossings, 15% more than in the same month in 2021. The second most active migratory route to the EU, after the Balkan route, is the Central Mediterranean area. Here, from the beginning of the year, the number of detected irregular border crossings increased by 49% compared to 2021 with almost 94,000. Meanwhile, the Eastern Mediterranean route recorded a 116% increase at the end of November with nearly 40,000 detections.[16]
The International Organization for Migration reported 30 deaths along the Mediterranean route at the beginning of this year. During the speech of European Commissioner, Johansson, at the plenary debate on the criminalization of humanitarian aid on 19 January 2023, she announced, among other things, that the main aim of the EU is to prevent dangerous journeys by taking action along migration routes with countries of origin, by fighting smugglers, improving opportunities for regular migration and creating a working European Migration Policy.[17] What should be made a criminal offense in this respect is facilitating illegal entry or exit across the border for money and profit. Rescue workers and volunteers are concerned about this EU policy as they fear being penalized for helping people. Johansson states: “We want Member States to comply with their national legislation. To make it crystal clear that humanitarian aid should not be made a criminal offence.”[18]
To support countries facing severe migratory pressure and other challenges at their borders, Frontex is currently providing more than 2,100 standing corps officers and various equipment in joint operations.
New Swedish EU Presidency
From 1 January 2023, Sweden holds the six-month rotating presidency of the Council of the European Union. The Swedish Presidency continues the implementation of the Trio program launched under the French Presidency in early 2022 and taken over by the Czech Republic in the second half of 2022.[20]
Sweden takes over the Presidency of the Council of the European Union at a challenging time for the Member States and the Union as a whole. The Russian invasion of Ukraine poses a threat to European security, with serious migratory consequences and major impacts on global food and energy supplies. The Swedish EU Presidency has promised to continue pursuing an active and united EU policy to counter Russian aggression against Ukraine. At the beginning of the presidency, Sweden promised to focus on four priority areas: 1) security, 2) competitiveness, 3) a transition to green energy, and 4) democratic values and the rule of law.[21]
In the area of migration and asylum in particular, Sweden intends to continue negotiations on the new Pact on Migration and Asylum and to finalise this process during the current legislative period. According to the Swedish Presidency, a review of the migration and asylum system is strategically important and essential for effective Schengen cooperation. In this context, the Swedish Presidency has translated the progress made under the French and Czech Presidencies of the EU Council on the balance between solidarity and responsibility into a first-ever compromise text. In that context, on Wednesday 18th of January, a first text amending the Regulation on Asylum and Migration Management (ex-Dublin) was submitted to the Council of the EU Working Group, which was presented in 2020 as an essential part of the Pact on Migration and Asylum. This regulation specifically regulates solidarity in times of migratory pressure, but also concerns the so-called ‘Dublin criteria’, which define the responsibilities of Member States with regard to asylum applications.[22] . The Council’s Swedish work program intends to find political agreement on this file in June 2023.
Commission Proposal for a Qualification Regulation
In the context of the 2016 proposals for the reform of the Common European Asylum System (CEAS), the European Commission proposed to replace the Qualifications Directive with a regulation that should lead to uniform standards of protection and rights for refugees and beneficiaries of subsidiary protection (the so-called Qualification Regulation).[23]
At the SCIFA meeting of the Strategic Committee on Immigration, Borders, and Asylum on 29 November 2022, most Member States expressed support for the (then Czech) EU Presidency for the set of proposals on which negotiations with the European Parliament will start or will soon resume, namely: the Qualification Regulation, the Resettlement Framework, the Reception Conditions Directive, the Eurodac Regulation, and the Screening Regulation.[24]
Recent Asylum Deal in the Netherlands in Violation of EU Legislation
In an earlier migration update, we addressed the asylum deal in which the Dutch government announced measures to reduce the number of refugees in Ter Apel and to promote the outflow. Various organisations, including the Meijers Commission and the Dutch Council for Refugees, have expressed serious concerns about the compatibility of the proposed measures with EU law. In the note of August 2023, the Meijers Committee specifically listed the measures that are most problematic from a European legal perspective, namely: 1) the de facto housing requirement for family reunification and inserting an extra term/extension of the issue of a provisional residence permit for family reunification (in Dutch: maatregel van voorlopige voorziening, mvv) by 6 months is in violation of the Family Reunification Directive 2003/86/EU; 2) a generic extension of the decision period on applications for international protection is contrary to the Procedures Directive 2013/32/EU; 3) a resumption of the transfer of asylum seekers in the context of Dublin to Greece is contrary to the case law of the Administrative Jurisdiction Division of the Council of State (ABRvS).
The asylum agreement of the Dutch coalition parties VVD, D66, CDA and Christen Unie has recently come under further pressure. Due to a ruling in a lawsuit by an asylum seeker at the end of December 2022, the court has again criticised an important aspect of the asylum deal. In the asylum agreement between the coalition parties, it has been agreed that the terms in which asylum can be granted or extended can be temporarily extended from six to fifteen months. The case concerned a new scheme that delays family reunification for asylum seekers (the so-called ‘family reunification measure’). The claimant, a Turkish refugee, has been successful in fighting the measure and as such may bring his family to the Netherlands.[26] The District Court of The Hague argued that the new regulation of the Dutch government violated the Dutch Aliens Act, the EU Family Reunification Directive, the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union and the International Convention on Human Rights on the Rights of the Child.[27]
Earlier, judges have already reprimanded the Dutch government for the asylum measures. For example, the District Court of The Hague ruled, among other things, that a housing requirement violates several provisions of the EU Family Reunification Directive and that the interest of the minor children to be with their mother outweighs the interest of the State Secretary to deal with the reception crisis. In the concrete case of the Syrian family, the ruling meant that the family members could still receive their provisional residence permit within 24 hours and could use it to come to the Netherlands.[28]
In four other court cases, judges overturned the cabinet’s asylum measures, ruling that these measures go against at least five laws and treaties, including the Aliens Act and the European Convention on Human Rights.
On Thursday, January 12, 2023, the Administrative Jurisdiction Division of the Council of State held a court hearing on the so-called family reunification measure of the State Secretary of Justice and Security. On February 8, 2023, the Administrative Jurisdiction Division of the Council of State ruled, in the three court cases, that the family reunification measures is in violation of Dutch and European law. According to the Administrative Jurisdiction Division, there is no legal basis under Dutch law for the family reunification measure. For this reasoning alone, the Administrative Jurisdiction Division deemed the appeal by the State Secretary unfounded. The Dutch Aliens Act of 2000 stipulates that family members have three months to collect a provisional residence permit, and as such, the waiting period of six months under the family reunification measure is in violation of this Act. In the three court cases ruled by the Administrative Jurisdiction Division, the State Secretary granted the provisional residence permit to the asylum seekers. In the context of the European Family Reunification Directive, the limitations in asylum reception do not reach the exceptionally high standard necessary for an exemption to set aside EU law. Finally, the Court held that the family reunification measure cannot be seen as a suitable and necessary solution for the asylum reception problem.[29]
[1] Working as executive secretary at the Meijers Committee.
[2] See: 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.
[3] See: https://ecdpm.org/work/war-ukraine-impacting-africa-europe-relations-migration-dialogue.
[4] See Chapter III of the Council Directive 2001/55/EC of 20 July 2001 on minimum standards for the granting of temporary protection in the event of a mass influx of displaced persons and measures to promote a balance between Member States’ efforts 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 Member States’ obligations towards 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 those set out in Articles 8-16. In addition, they must be fair and provide an adequate level of protection for data subjects (para. 15 of the preamble).
[5] See 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 juni 2022.
[6] See also the ECRE Information Sheet – Measures in response to the arrival of displaced persons fleeing the war in Ukraine (last update: 6 May 2022).
[7] Kamerbrief over opvang Oekraïne (Verzamelbrief), available at https://www.rijksoverheid.nl/documenten/kamerstukken/2022/10/14/tk-verzamelbrief-opvang-oekraine.
[8] Ibid.
[9] See in this context: https://www.euronews.com/2022/11/17/austria-serbia-and-hungary-strike-migration-deal-saying-eu-measures-have-failed.
[10] See: https://ec.europa.eu/commission/presscorner/detail/en/IP_22_7068.
[11] See: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=COM:2021:890:FIN.
[12] Ibid.
[14] See: https://ecre.org/ecre-reaction-no-majority-for-instrumentalisation-regulation/.
[15] See: https://frontex.europa.eu/media-centre/news/news-release/eu-external-borders-in-november-western-balkans-route-most-active-ULSsa7.
[16] Ibid.
[19] See: https://frontex.europa.eu/media-centre/news/news-release/eu-external-borders-in-november-western-balkans-route-most-active-ULSsa7.
[20] See: https://swedish-presidency.consilium.europa.eu/en/programme/the-trio-programme/
[21] See: https://www.eulisa.europa.eu/Newsroom/News/Pages/u-LISA-welcomes-the-Swedish-Presidency-of-the-Council-of-the-EU.aspx.
[22] See: EUROPE B13080A2); link to the text: https://aeur.eu/f/4y7 (Originele versie door Solenn Paulic).
[23] 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 […] on the status of third-country nationals who are long-term residents and repealing Council Directive 2011/95/EU 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: 2016-0223-QUALIFICATION-MandateAmended-st16109.en22.
[24] Ibid.
[25] CM2207 Reactie van de Commissie Meijers op de Kamerbrief inzake besluitvorming omtrent de opvangcrisis, beschikbaar via http://www.commissie-meijers.nl/wp-content/uploads/2022/09/220905-CM2207-Reactie- van-de-Commissie-Meijers-op-de-Kamerbrief-inzake-besluitvorming-omtrent-de-opvangcrisis.pdf.
[26] AWB 22/7709, ECLI:NL:RBDHA:2022:13902.
[27] AWB 22/7709, ECLI:NL:RBDHA:2022:13902.
[28] 22/6816, ECLI:NL:RBDHA:2022:12986.
[29] Uitspraak 202207360/1/V1, ECLI:NL:RVS:2023:506, Uitspraak 202207400/1/V1, ECLI:NL:RVS:2023:508, Uitspraak 202207496/1/V1, ECLI:NL:RVS:2023:507. See also int his context: https://www.raadvanstate.nl/actueel/nieuws/@134804/livestream-zitting-nareismaatregel/; https://www.raadvanstate.nl/actueel/nieuws/@135568/nareismaatregel-mag-niet-toegepast/.
