10 januari 2025
Approval of new Commission by the European Parliament: the hearings of Commissioners-designate
During the hearings, the Commissioner-designate for Internal Affairs and Migration, Magnus Brunner, committed to a balanced approach to border management and asylum, including enhancing Frontex and implementing digital border systems. He emphasized cooperation to combat irregular migration and uphold fundamental rights.
Dubravka Šuica, nominated for the Mediterranean, focused on migration management and strategic partnerships with North African and Mediterranean countries. She emphasized legal migration pathways, combating trafficking, and human rights monitoring, particularly with Tunisia.
In addition, other relevant Commissioners-designate are Henna Maria Virkkunen, Executive Vice-President for Tech Sovereignty, Security and Democracy, Kaja Kallas Commissioner-designate for Foreign Affairs and Security Policy, and Michael McGrath, Commissioner-designate for Democracy, Justice, and the Rule of Law.
Coming closer to a recast Return Directive
While the 2024 Pact has brought about many changes to the Common European Asylum System, it does not entail a revision of the Return Directive 2008/115/EC. Such a revision was initially proposed by the European Commission in 2018, however negotiations stalled, and only recently has the discussion been resumed. The Commission President has confirmed that the proposal on a recast Return Directive is indeed “one of the immediate tasks for the Commissioner for Internal Affairs and Migration.” With the topic being back on the political agenda, some fear that the proposal might bring harsher deportation policies and schemes that might reduce human rights standards, such as the “return hubs” that were also discussed in our previous update. The Meijers Committee published this December its response to such concerns, providing recommendations to EU legislators for an effective return system that simultaneously safeguards and strengthens the fundamental rights of third-country nationals.
Romania and Bulgaria officially joining the Schengen area without internal borders
The Council has decided to lift checks on persons at internal land borders between Bulgaria and Romania starting 1 January 2025, marking a milestone for the Schengen area. The two Member States, having applied parts of the Schengen acquis since joining the EU, will now fully integrate into the Schengen area. According to the European Commission’s statement “A robust Schengen area reinforces the EU’s unity and makes the EU stronger at a global scale. […] With Bulgaria and Romania now fully part of Schengen we are making another crucial step to build a strong and connected Union.”
Progress on the Entry/Exit System Ahead of Its Mid-2025 Operational Launch
The European Commission and EU-LISA briefed ministers on the progress of the Entry/Exit System (EES), an automated IT system for registering non-EU nationals traveling to the EU for short stays. The system will require border officers to scan fingerprints or take a photo of individuals crossing the border for the first time, storing this information digitally. The Commission’s proposal, released on December 4, 2024, outlines a gradual rollout of the system. The EES is part of a broader suite of EU border security and crime-fighting IT systems, including the ETIAS travel authorization system, which will assess the risks posed by non-EU nationals entering the Schengen area.
Poland’s migration and asylum reform
NGOs and civil society have raised concerns about the mistreatment of asylum seekers by Polish border officials, with reports indicating that Poland has been pushing asylum seekers back to Belarus without considering their protection needs. On December 18, the Polish government adopted new asylum laws, including the possibility of suspending asylum rights temporarily. The Polish government argued these measures were necessary to protect the border and national security against the weaponization of migration by Belarus and Russia.
The European Commission supported Poland’s policy, with its recent communication stating that EU Member States can suspend migrants’ rights in exceptional circumstances. This includes Poland’s situation, where hybrid threats, particularly from Belarus and Russia, are destabilizing the EU. The Commission proposed coordinated responses, including legislative measures, support from agencies like Frontex, and financial aid for border management. European Commission President Ursula von der Leyen praised the move as essential for frontline countries like Poland, while Polish deputy interior minister Maciej Duszczyk expressed appreciation for the EU’s recognition of Poland’s unique situation.
Developments in the Mediterranean Member States’ approach to migration
Italy’s Flows Decree and the state of asylum treatment in the country
On December 4, the Italian Senate passed the “Migrant Flows Decree,” a law that NGOs fear will criminalize assistance to people in distress at sea and reduce the presence of humanitarian ships, potentially leading to more deaths. A provision known as the “Musk rule,” which would grant appeals courts the power to rule on migrant detention, was rejected by the judicial branch. In response, Doctors Without Borders (MSF) halted operations of its Geo Barents rescue vessel due to challenges posed by Italy’s laws and policies. MSF and other NGOs criticized Italy and the EU for obstructing humanitarian efforts, predicting increased deaths at sea.
Indeed, such measures against assisting migrants are not limited to Italy. In a European level, the Facilitators Directive 2002/90/EC is currently under consideration for amendment, with the aim of strengthening the fight against migrant smuggling. Nevertheless, concerns have been raised for the consequences of the proposal, especially regarding the criminalization of humanitarian aid workers such as the NGOs that seized operations in Italy. Specifically referring to the misuse of criminalization provisions to prosecute humanitarian actors, the Meijers Committee has already urged the European Commission to initiate infringement actions against Member States that act as such.
Italy’s asylum system faces significant challenges, with issues such as the halted Italy-Albania deal and the withdrawal of Italian police officers from Albanian asylum centers. The center has been open for over a month but received just 24 asylum seekers, who eventually were also transported back to Italy, after their detention was deemed unlawful. Moreover, the treatment of refugees and asylum seekers has also raised concerns, particularly regarding conditions in pre-removal detention centers (CPRs) and the widespread use of unprescribed psychotropic drugs. The European Committee for the Prevention of Torture condemned the conditions and treatment in Italian detention centers.
Additionally, Italy is restricting transparency on immigration management, including denying public access to documents related to border and immigration control. This follows an agreement with the EU to assist Libya, Tunisia, and Egypt with border control, raising concerns about human rights and further secrecy.
Greece faces mounting criticism over human rights violations in migration policies
Once again, Greek authorities have faced accusations of human rights violations regarding their treatment of migrants and asylum seekers. NGOs have criticized ongoing maritime pushbacks, with Turkey’s coast guard reporting that Greek forces pushed back 22 adults and 5 children in December 2024. The UNHCR has expressed concern over rising deaths in the Aegean Sea. Greece has also seen an increase in child arrivals, with many children reporting poor living conditions in refugee camps, including moldy housing and expired food. NGOs like the Greek Council for Refugees and Save the Children have called for urgent action from the EU and Greece.
A new report from several NGOs highlighted severe human rights abuses in Greece’s pre-removal detention centers, with conditions amounting to “torture or inhuman and degrading treatment.” Despite recommendations from the European Committee for the Prevention of Torture, violations continue. Protests have erupted in refugee camps, partly due to a lack of interpreters, exacerbating deficiencies in the asylum system.
Greece also reported a 53% increase in arrests for people smuggling, though NGOs like Aegean Boat Report argue that many arrested individuals are not smugglers. A journalistic investigation revealed that nine Egyptian men wrongfully imprisoned for nearly a year in connection with the 2023 Pylos shipwreck were not part of a trafficking network. The case of the “Pylos 9” highlights concerns about Greece’s handling of migration and asylum procedures, with growing calls for the country to address systemic issues. Nevertheless, this increased push on arresting migrant smugglers is in line with European priorities, once again evident from the proposed amendment of the Facilitators Package already commented on by the Meijers Committee. This Greek example however highlights the negative impact of such priorities on migrant and asylum-seekers’ rights, indicating the need for further caution of legislators and judiciary in both Member State and EU level.
Individuals seeking asylum allowed to enter Cyprus after months of being trapped in a buffer zone
After six months of being stuck in the buffer zone between northern and southern Cyprus, asylum seekers were allowed to enter the Republic of Cyprus. These individuals had initially attempted to cross into the EU-controlled southern part of Cyprus but were pushed back by police. The Cypriot government evacuated temporary camps in the buffer zone, transferring individuals to third countries or a reception center in Kofinou for further processing, including transfer or deportation. Although the government stated these individuals would not be integrated into the asylum system, the Cyprus Refugee Council reported that they were granted access to asylum procedures.
This decision followed prolonged government resistance but was influenced by an intervention from the European Court of Human Rights (ECtHR). The Court responded to a joint application from NGOs KISA and the Rule 39 Initiative, urging clarification on asylum access and the risk of refoulement in the buffer zone. KISA praised the ECtHR intervention for the policy change and vowed to continue advocating for compensation for rights violations.
Spain’s migration surge sparks ambitious reform
In regards to the “Spanish route” of migration in the Mediterranean, recent research shows that in 2024, irregular migration to the Canary Islands reached a record 41,425 arrivals, surpassing 2023’s total of 39,910. Most migrants came from Mali, Senegal, and Morocco, with a rise in arrivals from Asia. Frontex linked the surge to Mauritanian smuggling networks and restricted alternative routes to Europe.
In response to these findings, Spain announced its intention of reforming its migration system. Under the new scheme, Spain will grant residency, and work permits to 300,000 undocumented migrants annually for three years to address labor shortages and demographic challenges. Minister Elma Saiz called it the most ambitious reform in 13 years, emphasizing its focus on prosperity, cultural enrichment, and sustaining the welfare state.
Libyan search and rescue center becomes operational
An EU-funded search and rescue (SAR) center in Libya, part of a 2017 project, is soon to become fully operational after years of delays. The Libyan maritime rescue coordination centre (MRCC) has faced criticism, including a September report from the European Court of Auditors highlighting delays and inadequate training for the Libyan coastguard. While this development is viewed as part of the EU’s strategy to externalize migration control, it has sparked opposition. German aid organization SOS Humanity accused the EU of funding entities involved in human rights violations against refugees and migrants, arguing that the Libyan center and coast guard fail to meet international law standards and contribute to systematic human rights abuses in EU migration policy.
EU’s reaction to the fall of Assad’s regime in Syria
On December 8th, 2024, Syrian opposition forces seized Damascus, ousting President Bashar al-Assad after 13 years of civil war. While the news brought joy within Syria, it raised concerns for those who had fled the regime.
The EU’s approach to Syrian asylum seekers has raised significant concerns over the erosion of asylum rights, with restrictive measures potentially undermining core refugee protections, such as the EU-backed actions at the Eastern border discussed above. Furthermore, there is a growing trend of postponing asylum applications and the potential for premature refugee returns to Syria, which critics warn should only occur once the situation in Syria is deemed truly safe and stable. The EU is encouraged to support an inclusive political transition and ensure refugee returns comply with international and EU law.
Ombudsman criticises Commission’s failure to inform public how it assessed human rights risks in EU-Tunisia Agreement
After opening an “own-intuitive inquiry” the European Ombudsman criticised the European Commission for lacking transparency about the human rights assessments conducted before signing a 2023 agreement with Tunisia, which allocates EU funds for border management. While the Commission relied on a risk management exercise to evaluate Tunisia’s human rights situation, it did not conduct or publish a formal human rights impact assessment, limiting public oversight. The Ombudsman urged the Commission to release a summary of its findings, establish clear criteria for suspending EU funding in cases of human rights violations, and support mechanisms for reporting abuses. Regular updates on monitoring efforts were also recommended to enhance accountability.
Updated CJEU case-law and AG opinions on asylum and migration matters
A few cases have been decided upon in the CJEU during the last months of 2024 that create crucial precedent in regard to asylum and migration matters. For instance, Joined Cases C-123/23 and C-202/23 concerned the interpretation of Article 33(2)(d) of Directive 2013/32/EU regarding the rejection of asylum applications as inadmissible when a previous application was rejected in another Member State. The Court here clarified that such rejections are permissible unless the previous application was discontinued due to implicit withdrawal before the second Member State’s authorities took a decision.
Additionally, in other Joined Case C-185/24 and C-189/24 the CJEU ruled on the interpretation of Article 3(2) of Regulation (EU) No 604/2013, the Dublin III Regulation, in relation to the determination of the responsible Member State for asylum applications. The Court found that systemic flaws in the asylum procedure or reception conditions, resulting in a risk of inhuman or degrading treatment, cannot be determined solely because a Member State has suspended the transfer of asylum seekers, and such a finding requires an analysis based on reliable, specific, and updated data.
The Court’s judgment in Joined Cases C-244/24 and C-290/24 is also significant as it addresses temporary protection for displaced third-country nationals living in Ukraine when the war began in 2022. The CJEU ruled that Member States may withdraw temporary protection which it has granted to those individuals earlier than that on which the temporary protection decided by the Council ceases to have legal effects, as long as it does not undermine the TPD 2001/55 and complies with Union law principles. It also ruled that return decisions cannot be issued before the protection ends, even if its termination is imminent, and the decision’s effects are suspended until then. Very relevant to this judgment is the Meijers Committee’s comment on the issues that may arise after the end of the Temporary Protection scheme adopted for individuals fleeing the Ukraine war, including also recommendations for the EU legislator.
AG De la Tour gave his opinion on Case C-460/23 (Kinsa), concerning a third-country national mother who used false documents to facilitate the unauthorized entry of her daughter and niece into the EU while applying for asylum. The Advocate General emphasized that penalties must be proportionate, allowing courts to distinguish between humanitarian or family-driven actions and criminal intent, with Member States retaining discretion to exempt such cases from criminal liability. However, this discretion can potentially have negative consequences, as Member States often opt for a narrow interpretation of “humanitarian assistance”. As such, the Meijers Committee has urged for the adoption of a broad definition of such assistance in EU level, so as to avoid the misuse of legislation targeting migrant smugglers.
Moreover, in his opinion regarding Case C-662/23 (Zimir), AG Medina stated that extensions of asylum processing deadlines must be justified by objective data showing a sudden increase in applications, not by pre-existing backlogs or staffing issues. The case concerned the Netherlands’ extension of such deadlines, with X challenging the State Secretary’s decision to extend beyond six months.
New decisions of the ECtHR in regard to asylum seekers’ treatment and expulsion
In case M.A. and Z.R. v. Cyprus, the ECtHR found multiple violations in regard to Articles 3 and 13 ECHR as well as Article 4 Protocol 4. The case concerned the forced return by Cypriot authorities of two Syrian nationals to Lebanon, after they were intercepted at sea. The Court criticized the lack of individual risk assessments and procedural safeguards during their expulsion, as well as the conditions on board their vessel during interception.
Furthermore, the Court also found violations of Article 3 in case H.T. v. Germany and Greece. In this case, the violation was based on the degrading treatment suffered by the applicant due to detention conditions in Greece, and procedural deficiencies in both Germany and Greece. The Court emphasized the failure of German authorities to assess individual risks before removal and the inadequacy of Greek facilities to safeguard against inhumane treatment.
In J.B. and Others v. Malta, the ECtHR highlighted serious deficiencies in the independence and judicial character of Malta’s Immigration Appeals Board (IAB), citing concerns over member appointments, short terms, and ties to the executive. The Court also criticized the ineffectiveness of constitutional redress proceedings and called for legislative reforms to ensure compliance with Article 5 § 4.
In Y and Others v. Switzerland, the ECtHR found no violations of Articles 2 and 3, ruling that Swiss authorities conducted proper risk assessments and reasonably deemed Albania a safe country. The Court concluded that the applicants’ concerns about political persecution were unfounded, as Albanian authorities could provide adequate protection.
Another case brought against Switzerland is M.I. v. Switzerland. Here the Court held that expelling a homosexual Iranian national without a new risk assessment would violate Article 3. The Court highlighted the severe risks of ill-treatment due to Iran’s criminalization and active enforcement of laws against homosexuality.
Lastly, in Winther v. Denmark, the ECtHR ruled that the applicant’s expulsion following serious criminal convictions was justified by relevant and sufficient reasons, ultimately finding no violation of Article 8. The Court noted that domestic authorities thoroughly considered the seriousness of his crimes, his family ties, and his connections to both Denmark and Syria.
