5 november 2024
EU Migration Update 3/2024
In part three of the 2024 migration update, the Meijers Committee provides an overview of recent developments in the field of migration and asylum in the EU from August until October 2024. Among other things, this update discusses: the appointment of new Commissioner for migration, the implementation of the Asylum and Migration Pact, Frontex’s Joint Operation Opal Coast, and recent CJEU and ECtHR case law.
Conference on the implementation of the Asylum and Migration Pact hosted by Meijers Committee and the Dutch Council for Refugees
On the 26th of September, the Meijers Committee together with VluchtelingenWerk Nederland, organised a conference titled ‘Unveiling the Asylum and Migration Pact: implementation at national and European level’.
Participants included representatives from the ministeries, administrative authorities, advisory councils, academia, NGOs, European institutions, international organizations, scientific offices of political parties, the National Ombudsman and the human rights board.
During the conference, various aspects of the Pact were discussed (i.e., border procedures and detention; solidarity and the new Dublin; reception conditions; border screening and monitoring; Safe Third Country concept and deals; crisis and instrumentalisation) and challenges were formulated for its effective implementation. The Pact is due to enter into force across the EU by mid-2026 and the Netherlands plans to have an implementation plan in place before the end of this year.
The closing remarks stressed the importance of solidarity, humane treatment of asylum seekers, and monitoring mechanisms to ensure successful implementation while avoiding fundamental rights violations.
The European Commission appoints new Commissioner for Internal Affairs and Migration
Magnus Brunner, Austria’s Finance Minister since 2021, has been appointed as the new Commissioner-designate handling inter alia the migration portfolio of the newly elected Commission. Prior to this role, he served as a state secretary in the Federal Ministry of Climate Protection, Environment, Energy, Mobility, Innovation and Technology from 2020 to 2021. Additionally, from 2009 to 2020 Brunner was a member of the Federal Council of the Austrian People’s Party (ÖVP), affiliated to the European People’s Party (EPP) group in the European Parliament.
Commission President Ursula von der Leyen’s political guidelines prioritize security and migration for the next five years. In her mission letter to Brunner, she entrusted him with several tasks, including leading efforts to draft a new European internal security strategy that addresses both online and offline threats. His tasks include revising organized crime rules, enhancing Europol’s capacity, combating drug trafficking, cybercrime, and terrorism, and protecting children from sexual abuse. Plans also involve a new communication system for public safety authorities and measures to tackle antisemitism, anti-Muslim hatred, and continue the Article 17 TFEU dialogue with various religious and philosophical groups. Additionally, the guidelines emphasize securing and streamlining EU borders, aiming for a fully functional digital border management system. Brunner will focus on an integrated approach, including strengthening Frontex and tripling its border guards. Efforts will also enhance cooperation with non-EU countries on border security and develop an EU visa policy strategy.
With his confirmation hearing scheduled for November 5th, members of the European Parliament have voiced concerns. These focus primarily on his lack of experience in migration issues and Austria’s firm stance on border controls, as recently demonstrated by its veto of Schengen enlargement for Romania and Bulgaria.
Implementing the new Asylum and Migration Pact
Accelerated return procedures encouraged by the Commission
The returns of irregular migrants and rejected asylum seekers has been a reoccurring topic of discussion at the Union level, once again underscoring the importance of border control and cooperation with third countries.
The European Commission has urged EU institutions and Member States to intensify preparations for returns uder a new “return border procedure”, resulting from the new Pact on Migration and Asylum. This procedure targets applicants from countries with an EU asylum recognition rate of 20% or lower, such as Senegal and Tunisia, aiming for quick deportations if asylum is denied. Crucially, detainees could face up to 24 weeks in prison-like conditions at the EU’s external borders.
A classified report evaluates non-EU countries’ cooperation on deportations, with the Article 25a mechanism of the Visa Code playing a key role. This visa sanctions mechanism penalizes countries that don’t cooperate on deportations by restricting access to Schengen visas. The Gambia and Ethiopia have faced such sanctions, and the report assesses 34 countries for potential penalties.
The report discusses Return Case Management Systems (RCMSs), which are supposed to facilitate the deportation process by sharing biometric data between EU and third-country authorities. Countries like Bangladesh and Armenia already have operational RCMSs, while others are in development.
Additionally, in a letter dated 14 October, von der Leyen advocated for advancing a common Union approach to return operations. She noted the significant differences in return procedures among Member States and announced plans to introduce new legislation aimed at harmonizing these processes. While a similar attempt to establish uniform rules in 2018 did not reach an agreement between the Council and Parliament, the forthcoming proposal is expected to address these gaps by setting clear cooperation requirements for returnees and streamlining procedures. The proposal also aims to modernize return operations by digitizing case management and ensuring mutual recognition of return decisions across Member States.
In light of the legislative proposal, the concept of “return hubs” outside of the Union was also introduced as a potential innovative solution to combat irregular migration. These hubs would serve as centers for hosting individuals whose asylum applications have been rejected.
A few days later, the European Council in its conclusions also called for determined action to “facilitate, increase and speed up returns” and encouraged the use of all relevant EU policies, including diplomacy, development, trade and visas. In that regard, it invited the Commission to submit a new legislative proposal as “a matter of urgency”.
EU migration policies in Northern Africa linked to human rights concerns
Reports reveal that EU migration policies in North Africa are linked to serious human rights concerns. An investigation conducted by the Guardian shows EU funding has supported Tunisian security forces accused of abuses, such as violence and abandonment of migrants in the desert, while a recent Memorandum of Understanding aimed at curbing human trafficking has failed amid allegations of authorities’ collusion with smugglers. Additionally, a new complaint to the International Criminal Court accuses Tunisia of severe human rights violations against African migrants, just a year after the EU’s migration deal with the country.
Despite these issues, the EU continues to prioritise cooperation with Tunisia, risking violations of its own commitments, and rejects any involvement of EU funds.
In Libya, the European Court of Auditors criticised the EU Trust Fund for Africa for not adequately addressing migration root causes, noting funds were diverted to projects like infrastructure rather than migration management. Additionally, NGOs have condemned forced returns of migrants at the Morocco-Spain border, calling for legal migration pathways and better reception systems to uphold migrant rights. These findings raise questions about the EU’s role and accountability in the ongoing human rights violations in its migration policies.
Frontex’s Joint Operation Opal Coast
Frontex’s Joint Operation (JO) Opal Coast began in 2021 to increase border surveillance between France and the UK. Essentially, under this scheme the agency deployed an aircraft to monitor the coastline crossings “day and night”. Since then, over 100 people have died attempting to cross the Channel, with fatalities rising yearly despite more French search and rescue efforts. This increase is speculated to be linked to overcrowded boats, as police intercept equipment and disrupt launch attempts.
Although JO Opal Coast was launched after a major disaster, its focus remains on preventing illegal crossings rather than prioritizing search and rescue, despite both being part of its mandate. This lower emphasis on rescue is evident in recent activities, with 2024 surveillance flights concentrating on nighttime land patrols to intercept groups before crossings, rather than monitoring the Channel during peak times. This approach was clear on 2 and 3 September, when overnight patrols failed to prevent the deadliest Channel shipwreck since 2021 the next morning, resulting in at least 14 deaths and raising concerns about increased risks for migrants.
Italian government insisting in the implementation of the Italy-Albanian deal despite recent court ruling
The agreement Italy made with Albania to transfer 36,000 of its asylum seekers every year to detention centers in Albania has been controversial since its inception. Nevertheless, recently, a Roman court ruled that the first group of migrants subjected to the deal could not be detained offshore because their countries of origin could not be considered safe. According to the judgment, this was not only against Italy’s own rules for the scheme, which provided that only adult men and from safe countries can be sent to the centers, but also EU law. In regards to the latter, the judges cited an ECJ ruling stating that Member States can only declare countries safe as a whole, and not only their specific regions.
However, this development does not appear to deter Italian Prime Minister Giorgia Meloni, who responded by approving a decree aimed at bypassing legal obstacles and designating entire countries as “safe” for the return of migrants.
Although Meloni is determined to go through with the deal, the Italian court’s decision has cast further doubt on the legality of plans discussed on an EU level, to explore ways of establishing migrant processing and detention offshore.
Stricter migration rules in the Netherlands
In September, the Dutch government announced plans for the country’s strictest asylum policy, aiming to make the Netherlands less attractive to asylum seekers. Minister of Asylum and Migration Marjolein Faber declared an intention to opt out of the EU’s Migration and Asylum Pact, stating that the country needed to regain control of its own policies. Nevertheless, the European Commission responded by noting that opting out of adopted legislation is not permissible. The government also announced the end of housing payments for rejected asylum seekers by January 2025, shifting the financial responsibility for emergency housing to local municipalities. Additionally, in the same spirit, the Dutch government is considering the employment of a new scheme, under which rejected asylum seekers would be sent to Uganda. While it is very early to determine whether his scheme can be enforced, the Netherlands has clearly signaled its intention for tougher migration controls.
These moves have been criticized by civil society, as they are likely to exacerbate the challenges faced by vulnerable individuals and worsen conditions for migrants while neglecting long-term solutions.
Updated CJEU case-law and AG opinions on asylum and migration matters
Several landmark judgments have been published by the CJEU. For instance, a key judgment was delived in regards to the Joined Cases C-608/22 and C-609/22. The Court in this case ruled that Afghan women facing systematic, gender based oppression under the Taliban can qualify for refugeee status without individual assessment. Thus, it was recognised that cumulative discriminatory measures can consitute persecution, which in turn expanded the asylum protections granted in the Union and promoted a gender-sensitive approach to refugee law.
Further, in Case C-352/23 the Court found that Directive 2011/95 does not prevent a Member State from granting humanitarian stay to third-country nationals, provided it is clearly distinguished from refugee protection. Additionally, Member States are not required to grant residence permits for humanitarian reasons but must ensure basic rights for those illegally staying.
Additionally, in Case C-63/23, the Court clarified that Article 15(3) of Directive 2003/86 does not mandate autonomous residence permits for family members of a sponsor who lost their permit. It emphasized national discretion while ensuring compliance with the directive’s objectives, requiring individual assessments and hearings, especially for minor children.
Importantly, the Court also found in Case C-156/23 that national authorities must ensure compliance with the principle of non-refoulement when rejecting residence permit applications and enforcing return decisions, requiring reassessment of torture or inhuman treatment risks. According to the judgment, national courts must also, on their own motion, identify non-refoulemnt violations during legal reviews.
Lastly, interesting Advocate General Opinions were published on the conditions for being eligible for international protection or subsidiary protection (C‑217/23) and the common standards and procedures for returning third-country nationals (C‑387/24 PPU).
New decisions of the ECtHR on expulsion and force returns
In Trapitsyna and Isaeva v. Hungary, the ECtHR found a violation of Article 8 ECHR due to the expulsion of a Russian mother and daughter over national security concerns. The Court criticized the lack of transparency in the process and inadequate consideration of the child’s best interests.
The case M.D. and others v Hungary involves the forced return of applicants from Hungary to Serbia without a valid expulsion decision or access to legal assistance. The Court ruled that Hungary violated Article 4 of Protocol No. 4 by not adequately assessing individual circumstances before the expulsion.
