Human rights organisations including PICUM, Save the Children, Jesuit Refugee Service Europe, EuroMed Rights and European Network Against Racism have reacted to outcomes of this week’s trilogue discussions on the EU Migration and Asylum Pact. This follows an open letter penned on Monday to EU co-legislators from 57 civil society groups highlighting human rights risks in the Pact.
“The EU Pact maintains the dangerous concept of “safe third countries” to enable Member States to return asylum seekers despite the risk of human rights violations. This means that asylum seekers could be sent to countries such as Tunisia, even if the government supported violent and collective expulsions of Sub-Saharan African migrants to Libya and Algeria.
The Pact also integrates budget support to the external dimension and border management at external borders as a form of “solidarity”. The EU should not be the facilitator of such human rights violations. The EU Pact needs to protect asylum seekers from violence and open legal pathways, instead of encouraging more and more detention and pushbacks.”
Sara Prestianni, Advocacy Director at EuroMed Rights
This briefing note refers to changes to the status of EU’s New Pact on Migration and Asylum in December trilogue discussions. A more detailed version can be found here.
Negotiators for the EU Commission, Council and Parliament met in a series of lengthy trilogue discussions which closed on 20 December on five files within the Pact. The trilogue followed an open letter from over 50 civil society organisations urging co-legislators to reconsider the Pact in light of human rights risks. The European Parliament’s stated position would have mitigated some of those risks, but with Member States unwilling to move, parliament conceded on all key points. The current result is the 2020 Commission proposal worsened by Council amendments; a devastating blow to the human right to seek asylum.
Screening Regulation: This file envisions a 7 day procedure that will de facto detain new arrivals to screen them and categorise them into either regular or accelerated border procedures for the processing of their claims.
- Parliament achieved a guarantee that medical and vulnerability assessments must be carried out by qualified medical personnel.
- It was agreed that applicants will have “access to the information on [their] screening form” – a form of words that potentially leaves individuals with inadequate access to information on their claim.
- Information available so far suggests that the ‘legal fiction’ of non entry, i.e. whether or not a person in a screening centre is considered to be on the territory of the member state, has been included in the text. The scope of the independent monitoring mechanism will not extend to border surveillance activities but only to the screening centres themselves. The Parliament lost its battle on preventing in-territory screening – which has been criticised as normalising racial profiling, and on access to security-related databases and the threat this could pose in the wider framework of criminalising movement.
Asylum Procedures Regulation (APR): This file covers the system for assessing asylum seekers claims. After screening, people will be funnelled into ‘normal’ or ‘accelerated’ border procedures – which will see claims assessed within 12 weeks with the potential for detention and deportation.
- It appears border procedures will be obligatory for all Member States and there will be no exemptions for families with minors – though families with minors will have their assessments prioritised. This is a hardening of last week’s controversial proposal to lower the age at which children can be de facto detained to six.
- It is likely that unaccompanied children will be included in border procedures when considered a so-called ‘security risk’.
- No legal representation is envisioned for applicants in the border procedure, only legal advice or counselling.
- The use of the ‘safe third country’ concept (which includes many demonstrably unsafe countries) is expected to proliferate across the bloc to speed up returns.
Regulation on Asylum and Migration Management (RAMM): This file defines which Member State is responsible to assess asylum claims, and deals with solidarity contributions to EU-wide migration management.
- The country of first arrival will remain responsible for most claims. Contrary to what was established by the European Court of Justice, children could also be sent back to where they first registered.
- There are three forms of solidarity that hold equal value – relocating persons, funding frontline Member States, or funding third countries. This can finance fences, walls, and prison-like structures in Member States. For third countries, the funding could also go to border management activities.
- Mandatory relocation for individuals disembarked after SAR operations in frontline Member States is now unlikely – contradicting plans for ‘fair and equal distributions’ of applicants.Member States are not bound by Commission recommendations on relocations or funding, nor will these be made available to the public to scrutinise.
- For those under RAMM procedures there is no legal representation provided for, only legal counselling as in APR. Furthermore, siblings will not count as family members, which severely limits the possibilities for family reunion. The Council is opposed to reuniting children with family members that are legally residing in the European Union. Meanwhile the Council’s clause for ‘relocations for returns’ as a form of solidarity has been deleted.
Eurodac Regulation: Reform of the Eurodac database is the file closest to conclusion.
- Children from the age of 6 years old will have to comply with biometric data collection. Database access for law enforcement authorities has been expanded, and photographic facial data for people entering Member States will be collected. These provisions violate data protection rights.
- The Council secured a wide range of ‘security flags’ into the EURODAC database during screening, aimed at increasing the overlap between criminal and migration databases.
Crisis Regulation: This file covers moments of ‘crisis’, such as an unexpected “mass arrival of people”.
- Under APR, individuals from a country with a recognition rate below 20% can be directly admitted to border procedures. In ‘crisis’ situations, this will be expanded to include those with a recognition rate of below between 60% and 70% (threshold not yet agreed). ‘Crises’ are loosely defined, enabling states to manufacture crises in order to push more applicants into accelerated border procedures.
- Despite widespread condemnation from a centre-left coalition of political groups (Renew, S&D, the Greens and the Left) on the Instrumentalisation Regulation, concessions have been made to include the concept of “instrumentalisation” in the Crisis Regulation, circumventing Parliament’s rejection. Parliament are fighting for safeguards that explicitly state NGOs cannot be categorised as ‘hostile non-state actors’ involved in instrumentalisation.
The deal reached on December 19th is not the end. It remains a political understanding and has yet to be formally adopted. Further technical negotiations are likely to be necessary in early 2024. Notably, the concessions made by the Parliament go way beyond its original mandate on the proposals.