by Eleni Giannakou, member of the International Law Research Team

On the 23rd of September 2020 the new European Pact on Migration and Asylum was adopted, aiming to ameliorate the EU’s control over migration and deal with past fallacies. This short paper discusses some of the measures that the Pact introduces and examines their possible impact on human rights protection.

Certainly, there are some welcome initiatives, but the overall Pact can really be considered “a fresh start”? One may underline, for example, the positive proposal of enabling refugees to access long-term residence after three years, as well as strengthening the right to move and work in other Member States (Joint Statement ECRE, 2020). However, one can argue that the EU’s focus on deterrence, containment and return outnumbers the benefits.

This paper will briefly comment on the Pact regarding three major issues: human rights violations, detention, and returns.

Denying access to procedures?

The Commission’s proposals were aligned with the envisioned “seamless” asylum and return border procedures. Rapid and effective control over the borders seem to have been ranked of higher importance than ensuring legal safeguards. The generated protection gaps may expose individuals to risks of maltreatment and violation of their rights (Article 3 ECHR, Article 4 and 19 of the EU Charter on Fundamental Rights, and the principle of non-refoulement).

The legislative proposals may appear to minimize migration’s complexity and limit their scope on a faux binary: (a) those who are granted asylum and (b) those who have to be returned as soon as possible. The access to alternative pathways is denied, alongside critical safeguards being neglected. Principles such as those of “non-refoulement”, “best interests of the child”, “protection of family” and “private life” might seem overlooked, as ‘grey zones’- where different sets of sub-standard procedures apply- are multiplied. Many people seeking asylum would face a range of different new laws. Introducing unequal standards of asylum procedures, that may lead to discriminatory treatment on  the basis of one’s origin, challenges the individual right to asylum. Based on general low refugee-recognition rates some people might be subjected to fast-track border-procedure because of their origin, rather than the regular individual examination after entering the country. This situation is translated into an obscure day-to-day reality for migrants, who are channeled to “ir-regular”, sometimes second-rate procedures. The Pact is accused of containing legal loopholes that may deprive migrants of their right to fair procedures and accessible mechanisms (PICUM, 2020). Moreover, FRONTEX and EASO are given power over these processes, influencing each individual decision-making within a legal landscape of accountability gap, since their role and competencies are not yet clearly defined (ECRE Policy Note#30, 2020).

It has been argued that the “new procedural steps introduced by the Pact, such as the screening at the external borders or the border procedure, neither take into account the particularities of the potential involvement of EU agencies in these processes nor do they frame these executive powers. This could have a potential impact on migrants’ procedural rights (…) This could potentially impact the effectiveness of administrative cooperation and migrants’ fundamental rights protection.”. This argument stands on the fact that “operational support under this framework will not be covered by the enhanced fundamental rights protection layer that has been developed by FRONTEX including, among others, a fundamental rights’ officer, a complaints mechanism, and fundamental rights’ monitors.” (Tsourdi, 2020).

On the other hand, the proposal might restrict the individual’s access to basic services, including legal assistance and representation (Joint Statement ECRE, 2020). Here in Greece the “hotspot system” is a characteristic case (DRC, 2017).

The quality of the introduced procedures may be deteriorated due to the shorter time limits, and from the misconception that most people seeking protection in Europe do not have protection needs. Such an assertion possibly justifies restrictive measures and may result in neglecting those who are actually in need (ECRE Policy Note#29, 2020).

To put it in a nutshell, the proposals seem to have been built on misinterpreted notions regarding the complex reality of displacement. The first notion is the legal fiction that people in the border procedures probably will not be finally “authorized” to stay, secondly that their multiple protection needs may  not be that pressing. Nevertheless, statistics based on first instance and appeal decisions prove that most people claiming asylum eventually receive a form of protection status, to which they are entitled. The Pact is quite often accused of refusing to fully protect those already present on a Member State’s territory, and opting for complicated procedural changes in a reduced timeframe. Nevertheless, the way to achieve fast asylum procedures does not have to go through reducing safeguards (Joint Statement ECRE, 2020).

A characteristic aspect of this problem is the screening process, during which the uncertainty about the rights of those who undergo such a process is noticeable. All those raising suspicions of unauthorized external border crossing would be subjected to the screening. Given that those who have applied for international protection will not be excluded from the screening either, almost all asylum seekers will need to pass through that process before having access to an asylum procedure. Thus, legal protections for asylum seekers might not be guaranteed to these categories. Consequently, there may be a delayed access to the asylum procedure.

Specifically, instead of tracing the vulnerable individuals and ensuring their protection, the screening might even generates more risks than safeguards. Vulnerable people may be subjected to detention and the quality of their reception conditions, the thoroughness of health checks, the access to legal assistance and the possibilities to challenge a negative decision are questionable (ECRE Policy Note#30, 2020). Regretfully, ECtHR has already found many violations of vulnerable groups’ human rights in Greece. All the above delay access to the asylum procedure and weaken the entitlements guaranteed only to asylum seekers (such as under the Reception Conditions Directive). So, the actual uncertainty of these people goes along with them being legally deprived from a set of safeguards.

Even if it is stated that there are only two possible outcomes of the screening, either asylum or return procedure, ECRE voiced the concern that they “are in fact four possible outcomes: 1) refusal of entry, 2) return, 3) asylum, or 4) relocation.” This means that there is a risk of refusal of entry without a procedure, since the stakeholder would merely be issued a debriefing form and (directly) refused entry without the minimum safeguards as per  the Schengen Borders Code, such as having the right to appeal based on precise reasons of refusal (ECRE Policy Note#30, 2020). The absence of a written decision liable to appeal and the risk of refusal of entry without a procedure cause great concerns. One can spot a possible violation of the right of defense, if the person is not entitled to be heard before the debriefing form is filled, as well as if he/she is not able to access the debriefing form in order to obtain reasons for the final decision (ECRE , 2020).

Additional procedural problems originate from the fact that the States would also apply screening to third-country nationals “found” or “apprehended” within their territory; a practice that might lead to a possible referral to a return or asylum procedure.

Furthermore, these procedures seriously challenge data protection and privacy rights. The “limitation principle” and the overall respect for private life and personal data is outlined in Article 7 and 8 of the EU Charter of Fundamental Rights. However, the authorities in charge of the screening will be offered access to EU databases for the purpose of identity and security checks (as with the EURODAC Regulation as well). In other words, there will be an expansion of the purposes and uses of EU information systems, which seems to aggravate data protection via lowering the safeguards with almost no satisfying justification on the necessity to do so (ECRE, 2020).

Consequently, many of the human rights’ provisions (those found in the EU Charter and ECHR) would be affected. Procedural unfairness becomes even more acute in situations of crisis. Whenever a Member State argues that it is facing an ‘exceptional situation of mass influx or even the risk of such an influx’, it will be allowed to derogate further from crucial safeguards (Atanassov N. 2021). Member States could suspend registration of asylum applications for four weeks up to three months, during which people would remain at risk of detention or refoulement, with their rights to adequate reception and basic services affected

Additionally, in case of a crisis, there would be a latitude for States to extend for an additional eight weeks both the asylum border procedure and the return procedure. Overall, time spent in border detention could be as long as 10 months (Joint Statement ECRE, 2020).

Detention

What is more, the proposed  legislative  instrument  could possibly lead  to  normalize  immigration detention. Many claim that the  COVID-19 pandemic was used as an excuse for further detaining migrants (as in the Greek camps) and the Pact may transform the problem into the norm, overlooking the long-lasting negative impacts on people’s mental health, well-being and human rights’ provisions (Red Cross EU, 2020). Respect for human rights would mean that even if there were reasons for restricting freedom of migrants, alternatives to detention should be considered first, such as alternative family accommodation or open camps. The Pact does not seem to clearly set out alternatives, but exacerbates detention’s use, imposing detention in designated facilities for up to ten days for anyone having crossed external borders irregularly, or disembarked after search and rescue operations. This would apply through the pre-entry screening, during which period access to information and to medical care might be severely limited (PICUM, 2020). However, the end of the pre-entry screening would not result in freedom of movement, since the return-or-asylum procedures would mostly be conducted in the same place, the border facilities. People already on EU territory fall also under the scope of the detention measures, no matter how long they have been living in Europe, as long as there is no evidence that they have entered legally [the difficulty of proving upon apprehension that the crossing of the external borders was in an authorised manner is vastly acknowledged]. These people could be detained in specialised facilities for up to three days (PICUM, 2020).

Given that the asylum and return border procedures can last up to six or even ten months in times of “exceptional mass influx” or risk of it, detention seems to be the standard treatment of migrants.  Moreover,  it is sporadically claimed  that  detention  would  severely  affect  people  and communities of colour, who are already in the territory and are “found” or “apprehended”. Increased identity checks may incite discrimination profiling and intensify migrant communities’ feeling of being “over-policed and under-protected” (PICUM, 2020). These cases refer to people who claim that they already face discriminatory policing and police harassment, as the EU recently recognized in the newly released EU Action Plan Against Racism, which aimed at “countering discrimination by law enforcement authorities” and was avoiding “profiling that results in discrimination”. The Pact is accused of enhancing the risk of racial profiling and delays the start of the asylum procedure, even for those who visit the authorities voluntarily in order to apply for international protection (ECRE, 2020). 

While immigration detention should be regarded as a last resort, while international principles of necessity and proportionality indicate against it, the Pact might be interpreted as tolerating stigmatising and punitive approach. The de facto continued detention could end only at the end of asylum and return border procedures, while during the whole time of the screening procedure, there would be no judicial review or access to a lawyer. Human rights organizations and institutions stress that “the idea of applying the pre-entry screening procedures (…) is a shameless attempt to extend these legal “loopholes” to deny fundamental rights to resident individuals and groups.” (PICUM, 2020)

In conclusion, the Pact does not oblige States to prioritise alternatives to detention, despite that there are other possible sufficient and less coercive measures – such as regular reporting requirements, financial guarantees or limitations on freedom of movement- while the asylum procedure takes place. Additionally, the de facto detention is not formally defined and this results in a sort of lack of lawfulness, necessity, proportionality, and in a deficiency of procedural guarantees and a privation of adequate facilities. The use of vague terms (as “risk to public security” or “national security”) as grounds for detention challenge human rights protection provisions (Red Cross EU, 2020) and encourage discriminatory law enforcement activities. At this point it should be highlighted that it derives from ECHR’s case-law that States have a measure of discretion in assessing national security threats. However, the Court requires national bodies to verify that any threat has a reasonable basis. With regard to the quality of the law, the Court has been developing relatively restrictive standards. Detention could only be the result of a written decision -concerning individual cases and not moving populations- subject to judicial review and regulated under clear provisions (see Khlaifia and Others v. Italy).

Returns

Avoiding to rise to the challenge of “a fresh start”, the Pact’s system builds on past proposals, many of which have failed (FRA Opinion, 2019 & Majcher, I. 2018), and others that are highly questionable, such as the proposed Recast Return Directive. The  Pact  is  overshadowed  by  the  persistence  on  returns,  sometimes overlooking  the  impact  of deportation on the lives of parents and children and the detrimental break of economic, social and family ties. Neglecting to assess the experience of those deported after their return and the personal and family impact on their future choices and opportunities is shortsighted (PICUM, 2020).

The return strategy is not a panacea for migration issues, but an exceptional and extreme measure, which seems to be inefficient to operate as a deterrent or as a relief-congestion measure. Nonetheless, the weight of the plan is given to returns rather than integration. Similarly the Pact focuses on border controls, so that fundamental human rights are seriously challenged (Generation 2.0 Joint Announcement, 2020). In the Commission Communication on the Pact, the word “return” is encountered more than 100 times -whereas the term “rights” only 14 (PICUM, 2020). NGOs argue that the “plan reinforces the racist narrative that refugees and migrants are “invaders” in Europe.” (Generation 2.0 Joint Announcement, 2020)

One can spot an eventual deficiency of legal aid and accessible information in the pre-entry screening procedures and inadequate provisions in order to appeal against negative decisions. The structures with dubious roles, such as FRONTEX, which will participate in the returns, challenge the accountability. Hence, the return initiatives undermine the character of the EU and are at odds with its human rights foundations.

Conclusion

To conclude, a number of proposed measures that could have severe effects on the protection of human rights is identified. The remarks made do not cover the full extent of the problematic provisions spotted in the Pact. We briefly examined how main fundamental rights could be affected by the current proposals. Namely, we analysed the impacts on the right to asylum (Article 18 EU Charter), the prohibition of torture and inhuman or degrading treatment or punishment (Article 4 EU Charter, Article 3 ECHR), the right to liberty and security (Article 6 EU Charter, Article 5 ECHR), the protection in the event of removal, expulsion or extradition (Article 19 EU Charter) and the right to an effective remedy (Article 47 EU Charter, Article 13 ECHR) (ECRE Comments, 2020).

Beyond these, the rights of the child (Article 24 EU Charter) would be menaced by the expansion of migration-related detention. Despite the fact that all EU Member States have ratified the UN Convention on the Rights of a Child which prioritizes the best interest of the child, the European Commission seems to lower the protection standards for children. According to  Pact’s  suggestions only children younger than 12 years old should be protected from harmful procedures, such as detention (Joint Statement ECRE, 2020). Furthermore, civil society is reported to be often exposed to harassment; activists that provide food, shelter, car lifts or information, without being members of official NGOs, “authorized” to execute such activities, are risking criminalization (PICUM, 2020). These practices challenge solidarity itself.

It would be preferable if the EU pointed towards maintaining and raising asylum and human rights standards in Europe, rather than amplifying returns and expanding detention. Member States are not to derogate from responsibilities, when facing or declaring a state of “crisis” as an excuse for lowering asylum standards. On the contrary, the EU should work towards ameliorating regular asylum procedures, with the intention of constructing fair, efficient and adequately resourced asylum instruments.

Difficult times require more commitment to shared values (Joint Statement ECRE, 2020). The proposals in their current form tend to violate -in a potentially irreversible manner- human rights’ standards in EU’s migration policy.

References

Atanassov N. (January 2021). EN Crisis and force majeure regulation. Briefing , EPRS | European Parliamentary Research Service. Available here.

Danish Refugee Council (DRC) (2017). Fundamental rights and the EU Hotspot approach. Available here.

ECRE . (2020, October 18). ECRE Comments: on the Commission Proposal for a Screening Regulation COM (2020) 612. European Council on Refugees and Exiles. Available here

ECRE Comments. (2020, December 18). On the Commission Amended Proposal for an Asylum Procedures Regulation COM (2020) 611 Border Asylum Procedures and Border Return Procedures. European Council on Refugees and Exiles. Available here

ECRE Policy Note#29. (2020, December 18). Relying on a Fiction: New Amendments to the Asylum Procedures Regulation. European Council on Refugees and Exiles. Available here

ECRE Policy Note#30. (2020, December). Screening out rights? Delays, Detention, Data concerns and the EU’s Proposal for a Pre-entry Screening process. European Council on Refugees and Exiles. Available here

European Union Agency for Fundamental Rights (FRA) (04 March 2019). Update of the 2016 FRA Opinion on fundamental rights in the hotspots set up in Greece and Italy. Opinion Number: 3/2019. Available here.

Generation 2.0 Joint Announcement. (2020, September 29). Joint Announcement on the European Pact on Μigration and Asylum. Generation 2.0 for Rights, Equality & Diversity. Available here

Joint Statement ECRE. (2020, October 6). The Pact on Migration and Asylum: to provide a fresh start and avoid past mistakes, risky elements need to be addressed and positive aspects need to be expanded. European Council on Refugees and Exiles. Available here

Majcher, I. (2018) The EU Hotspot Approach: Blurred Lines between Restriction on and Deprivation of Liberty (PART II). Available here.

PICUM. (2020, February). How do the new EU regulations on interoperability lead to discriminatory policing?. Available here.

PICUM. (2020, October 14). More detention, fewer safeguards: How the new EU Pact on Migration and Asylum creates new loopholes to ignore human rights obligations. Platform for International Cooperation on Undocumented Migrants. Available here

Red Cross EU. (2020, December 18). Minimising the humanitarian impact of immigration detention: time to promote alternatives. Available here

Tsourdi, L. (2020, November 16). Immigration and asylum law and policy. Maastricht University. Available here

Legal texts

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on a New Pact on Migration and Asylum. Available here

COMMUNICATION FROM THE COMMISSION Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence. Available here.

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU. Available here.

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL addressing situations of crisis and force majeure in the field of migration and asylum. Available here.

Returning illegally staying third-country nationals. Recast 2018/0329(COD) Repealing Directive2008/115/EC 2005/0167(COD) Available here.

Schengen Borders Code. Available here.

EU Anti-racism Action Plan 2020-2025. Available here.

Charter of Fundamental rights of the European Union. Available here.

Convention on the Rights of the Child. Available here.