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EU: Tracking the Pact: Meijers Committee analysis of asylum proposals

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26 November 2020

The Meijers Committee of experts on international immigration, refugee and criminal law have analysed a number of the proposals published as part of the European Commission's Pact on Migration and Asylum. The committee examines the Asylum Screening Regulation, the Asylum Procedures Regulation, the Asylum and Migration Management Regulation, the Crisis and Force Majeure Regulation, the Strategy on the Future of Schengen and provide some general comments. Serious concerns are expressed over the proposals, in particular with regard to the use of detention, limits to legal assistance for individuals seeking protection, a lack of oversight mechanisms and the situation for unaccompanied children, amongst other things.

General comments

The New Pact provides a comprehensive response through a number of new or updated regulations and other instruments. The Meijers Committee realises that this set of proposals must be seen in the context of a politically divided European Union. Member States differ deeply in their views on (legal) migration and their willingness to take in refugees. We recognise that improvements in this field cannot be reached overnight or by making revolutionary steps. Indeed, the New Pact is primarily an attempt at breaking the deadlock in the Council to agree on core elements of the European Agenda on Migration that was published in 2015. While this is recommendable and realistic, it also risks to lose sight of the structural issues in the current design of the EU asylum system as well as the human rights of migrants concerned.

General comments of the Meijers Committee on the New Pact on Migration and Asylum 2020 (pdf)

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Asylum Screening Regulation

In this document, the Meijers Committee presents its comments on the proposal for an asylum screening regulation (hereafter the SR proposal), which supplements and in part replaces the Asylum Procedures Directive and the Reception Conditions Directive.

The proposal puts into place a ‘pre-entry screening’ of third country nationals. The screening applies to all third country nationals who crossed the external borders in an unauthorised manner, request international protection at the external borders, or are disembarked following a search and rescue operation. Its overall aim is to establish the identity and health or security risks of a person quickly in order to determine the appropriate follow-up procedure (a return procedure, an asylum procedure, or a relocation procedure).

The main concerns of the Meijers Committee are:

1. Fundamental rights risks during the screening, in particular concerning reception conditions and the consequences of the fiction of non-entry.
2. Insufficiencies of the newly introduced monitoring and investigation obligations.
3. Identity and security checks and the use of biometrics and databases.
4. Limits to access to justice.

Meijers Committee Comments on the Migration Pact – Asylum Screening Regulation (pdf)

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Asylum Procedures Regulation

The proposal amends the earlier proposal for replacing the asylum procedures directive with a regulation. New elements are the scope and functioning of the asylum border procedure, a new border procedure for carrying out return and stricter rules for subsequent applications.

Below, we express a number of concerns and recommendations concerning

1. The asylum border procedure.
2. The right to an effective remedy.
3. The return procedure.

Meijers Committee Comments on the Migration Pact – Asylum Procedures Regulation (pdf)

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Asylum and Migration Management Regulation

In this document, the Meijers Committee presents its comments on the Commission proposal for an Asylum and Migration Management Regulation.

The Meijers Committee finds that the new Asylum and Migration Management Regulation (hereafter AMMR) does not address the fundamental shortcomings of the existing Dublin Regulation which it seeks to replace. It is common knowledge that the current Dublin system is problematic from a solidarity standpoint, as it places an excessive responsibility on Member States with external borders. Those Member States have indicated that they are not able or willing to shoulder this burden any longer. The Asylum and Migration Management Regulation regretfully does not address this issue in a significant manner.

In 2018, the Meijers Committee expressed its concerns on the proposed recast of the current Dublin III Regulation (henceforth referred to as Dublin IV).1 The Meijers Committee noted that the proposed system appeared complex, its goals were not fully thought through, and its feasibility in practice seemed doubtful. The Meijers Committee also expressed its concerns with regard to the proposed limitations to the right to legal remedies. Since the Dublin IV proposal was blocked by the Council, the European Commission now proposes new amendments to the Dublin system in the new AMMR.

Below we will express concerns and recommendations with regard to this proposal, concerning

1. The proposed solidarity mechanisms.
2. The right to effective legal protection.
3. The reception facilities.
4. Unaccompanied children.
5. Detention.

Meijers Committee Comments on the Migration Pact – The Asylum and Migration Management Regulation (pdf)

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Crisis and Force Majeure Regulation

In this document, the Meijers Committee presents its comments on the proposal for a crisis and force majeure regulation.

The proposal aims to put in place a system with tools necessary to deal with crisis situations and situations of force majeure. A situation of crisis is to be understood as an exceptional situation of mass influx, rendering the Member State’s asylum, reception or return system non-functional (Article 1(2)(a)). A situation of force majeure is a situation which renders it impossible to comply with the time limits set out in Article 27 of the Asylum Procedures Regulation. For crisis situations, the proposal includes derogations to the applicable procedural rules, an extension of the scope of application of the border procedure and a compulsory solidarity mechanism triggering the relocation of applicants for international protection. For force majeure situations, the proposal allows for the extension of time limits regarding the implementation of solidarity contributions and the implementation of the Asylum and Migration Management Regulation (previously: the Dublin Regulation). Article 10 of the proposal, replacing the Temporary Protection Directive forms a legal basis in EU law to offer immediate protection to certain groups of asylum applicants.

The Meijers Committee expresses concerns and recommendations concerning

1. the extension of the scope of the asylum border procedure in situations of crisis;
2. the extension of time limits in situations of crisis as well as situations of force majeure;
3. the proposed procedure to determine the existence of situations of crisis as well as situations of force majeure.

Meijers Committee Comments on the Migration Pact – Crisis and Force Majeure Regulation (pdf)

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A new Strategy on the Future of Schengen

The European Commission emphasizes in its new Pact on Migration and Asylum that effective management of EU external borders is a key element of a Schengen area without internal borders. To ensure a ‘well-functioning Schengen area’, the Commission announces, in section 4.4, the presentation of a new Strategy on the future of Schengen, including ‘initiatives for a stronger and more complete Schengen’. In this contribution, the Meijers Committee focuses on four subjects which need further development in this new strategy:

1. The temporary reintroduction of internal border controls.
2. The Schengen evaluation mechanism.
3. Controls in the territory.
4. The enlargement of the Schengen area.

Meijers Committee Recommendations for a new Strategy on the Future of Schengen (pdf)