Agreement of the European Parliament and the EU Council on the Pact on Migration and Asylum

On December 20, 2023, the European Parliament and the Council of the European Union signed a political agreement on the main demands of the Pact on Migration and Asylum, which is being processed since 2020. The formal vote in the EP and Council will take place this spring. On February 8, 2024, Poland announced that it would object to individual legislative acts included in the Pact.

What is the Pact on Migration and Asylum?

The Pact on Migration and Asylum is a set of legal acts and policies in the field of migration and asylum in the European Union. It provides for a reform of the existing solutions, including regarding procedures for granting international protection, including determining the country responsible for examining applications, return procedures and detention of foreigners. Previously unknown solutions are also to be introduced, such as accelerated border procedures, increased identification of people when detained and border screening procedures. The purpose of the Pact is also to define a mechanism for solidarity in accepting refugees and in the event of a sudden migration crisis, including the instrumentalization of migration.

It includes five legal acts:

• Screening Regulation
• Eurodac Regulation
• Asylum Procedures Regulation
• Asylum Migration Management Regulation
• Crisis and Force Majeure Regulation

Main assumptions of individual regulations and identified threats

1. Screening Regulation

• provides for a 7-day border screening and de facto detention procedure in order to qualify the foreigner for the appropriate procedure: regular or accelerated border procedure for considering the application for international protection, or the return procedure;
• persons who do not meet the conditions for entry into the Member States are to be subject to screening, including those applying for international protection at a border crossing, persons detained after entering the EU territory outside the designated border crossing, as well as persons who entered the EU land territory as a result of a search and rescue operation; a screening check may also be carried out against a person already in the territory of a Member State if he or she crossed the external border in an irregular manner; the procedure in question is to include identity and security checks, but also health status and special treatment requirements;
• the assessment of the applicant’s health and individual vulnerability is to be carried out by qualified personnel, and applicants are to be provided with access to the information gathered in the assessment form; such a short period of 7 days may be insufficient to properly classify a person as particularly vulnerable, a decision against which there will be no appeal;
• allows a legal fiction of non-entry into the territory of a Member State for persons staying in border detention centers during the screening procedure;
• the only guarantees on detention in border centers are references to the “relevant rules” in the Return Directive and a non-binding designation of detention as a measure of last resort;
• the independent control mechanism will not cover all the activities related to border protection, but will be limited only to detention centers;
• state authorities will be granted direct access to all databases relating to a foreigner, including criminal and migration records, for the purposes of security research, which may raise concerns in the context of the right to privacy;
• provides for the primacy of consideration of the best interests of the child, in particular of an unaccompanied minor who is to be assigned an appropriate representative during the screening procedure.

2. Eurodac Regulation

• provides for the expansion of the catalog of collected data of applicants for international protection and persons with an irregular status;
• in addition to fingerprints, the following will be collected: personal data (name, surname, citizenship, date of birth), facial image, as well as information on decisions issued on expulsion, return and relocation;
• the age of minors whose data would be collected will be lowered to 6 years;
• increases law enforcement access to the Eurodac database, reinforcing the concept of linking movement with crime; this may raise concerns about the proportionality of such surveillance of people and its compliance with the right to the protection of personal data;
• provides for the so-called “security flags” against people posing a threat to internal security; they can be used to mark a foreigner who is aggressive, unlawfully armed, has links with terrorism or a terrorist group, or has been involved in a crime covered by the scope of the European arrest warrant;
• for statistical purposes, data on persons who entered the territory of the Member States as a result of a search and rescue operation will be collected separately.

3. Asylum Procedures Regulation

• harmonizes procedures for granting international protection in all Member States;
• introduces two types of procedures for granting international protection: the normal procedure and the accelerated border procedure;
• border procedures will be mandatory in the following cases: when the foreigner is considered a threat, when the foreigner misleads the national authorities (providing false information on identity or citizenship), when the foreigner comes from a country from which the recognition of applications for international protection is less than 20 %; 
• procedures for granting international protection will last less than 12 weeks, during which foreigners will stay in detention centers; 
• such accelerated procedures create a risk of omitting important individual circumstances in the foreigner’s case, which may also develop or come to light during his stay in the detention center;
• in the event of refusal to grant international protection in the border procedure, persons will be directed to the return procedure (also 12 weeks), while still staying in detention centers;
• the border and return procedure and therefore the period of stay in detention could be extended in a crisis situation (see below: Regulation on responding to situations of crisis and force majeure);
• no exclusions from border procedures for families with children – their applications would only be treated as a priority; unaccompanied minors would not be subject to the border procedure provided that they are not considered to pose a threat to state security; The European Commission would be able to recommend that a Member State should suspend border procedures for families with children if appropriate reception conditions are not met;
• as part of border procedures, applicants would not have to be provided with legal representation, but only legal advice at the stage of administrative proceedings;
• no suspensive effect of an appeal against a decision refusing to grant international protection in border procedures and against a decision on the inadmissibility of an application; an exception would be an automatic suspensive effect in border procedures concerning unaccompanied minors and if the decision on the inadmissibility of an application would be based on the concept of a safe third country;
• wider use of the safe third country concept in all member states to improve deportation; applications from persons who have a legitimate connection with a safe third country would be considered inadmissible; the concept of effective protection in a safe third country would refer to access to health care and education and sufficient means of subsistence; a part of a country could be considered safe, even if its entire territory would not meet this criterion; the burden of proof that a given third country cannot be considered safe for the applicant would be on the applicant; Initially, Member States will maintain their own lists of safe third countries, which will later be replaced by a single EU list of safe third countries and countries of origin.

4. Asylum Migration Management Regulation

• introduces a reform of the existing Dublin III Regulation, emphasizes the principles of determining the country responsible for examining a foreigner’s application for international protection, as well as the mechanism of solidary management of migration;
• provides for three forms of solidarity engagement by Member States, of equivalent value: relocation of foreigners, financial assistance to Member States at external borders (in practice, these may be funds for strengthening border protection, detention centers, improving reception conditions), financing of third countries;
• does not provide for mandatory relocation of people arriving in the EU as a result of search and rescue operations, which may undermine the assumptions of fair and equitable relocation of refugees; The European Commission may recommend to countries how they should provide relocation support or financing, but these recommendation would not be binding;
• the Member State where the foreigner first crossed the border would still be responsible for the majority of applications; the remaining countries would have more time to send applicants to the first member state; the procedure that does not require obtaining the consent of the first country crossing the border would also be facilitated; foreigners would be obliged to submit an application for international protection or another form of residence in the first country crossing the border with the EU; the purpose of the regulation is therefore to limit the possibility of transferring liability between countries and the choice by a foreigner of the country appropriate to consider his application;
• adult siblings will not be considered family members; children will be able to be reunited only with family members who have international protection in another Member State, a long-term residence permit or citizenship of that country obtained as a result of previously granted international protection;
• for persons subject to a decision to be sent back to another country, there is no right to free representation, only legal advice is provided.

5. Crisis and Force majeure Regulation

• provides procedures for responding to future migration crisis situations, including those related to the instrumentalization of migration;
• defines three types of crisis situations: force majeure, mass influx of migrants, instrumentalization of migration; for a situation to be considered a crisis, it must cause the asylum and reception, child protection or return system in a given Member State to be incapable of functioning and could have serious consequences for the proper functioning of the common asylum system of the European Union;
• in the event of a crisis situation, the affected Member State must submit a reasoned application to the European Commission, which assesses the existence or absence of a crisis situation; the European Commission then turns to the Council of the European Union, where it may also recommend the use of specific solidarity measures (relocations, targeted financial support, other alternative measures) and derogations from the traditional course of procedures, as well as the categories of persons who should be entitled to prima facie protection ( e.g. people from a specific country) – applications for international protection from people in these categories would need to be considered with priority as they come from people who are most likely to qualify for international protection;
• all countries would be obliged to support the country affected by the crisis; however, the obligatory relocation of foreigners to other Member States has not been introduced;
• procedural derogations: in a crisis situation, the registration of applications for international protection may take up to 10 days; border procedures for international protection and return may be extended by additional 6 weeks each; in the event of a mass influx of migrants, border procedures will be mandatory for people from countries with an application recognition rate of 50%; in a situation of instrumentalization of migration, 100% of applications will be considered in border procedures; however, after an individual assessment, persons requiring special treatment and families with children under 12 years of age may be excluded from the border procedure;
• a broad definition of instrumentalization of migration – “a situation of instrumentalisation where a third country or hostile non-state actor encourages or facilitates the movement of third country nationals and stateless persons to the external borders or to a Member State, with the aim of destabilizing the Union or a Member State where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security;
• non-governmental organizations would be protected against being recognized as hostile non-state actors, provided that their actions are not aimed at destabilizing a member state, which may create a risk of repercussions in the form of abusive criminalization of humanitarian activities.

Critical assessment of the solutions of the Pact on Migration and Asylum

The solutions proposed by the EU are widely commented and criticized by civil society. National and international non-governmental organizations argue that they would lead to violations of the basic human rights of migrant people.

On December 18, 2023, over 50 non-governmental organizations signed an open letter to the parties negotiating the last version of the Pact, which stated that the Pact in this form would not only not solve existing problems, but would augment them, and would also turn out to be a costly and harmful system that would fall apart immediately after implementation. It was stated that the proposed solutions would normalize the arbitrary use of detention, including detention of families and children, increase racial profiling, perpetuate discriminatory practices and enable the use of the crisis condition to more quickly send people to the so-called safe third countries where their fundamental human rights may be violated.

The International Rescue Committee (IRC) warns that responsibility for accepting refugees will continue to rest primarily with Member States at the EU’s external borders. As a consequence, this may lead to an increase in the number of pushbacks and border violence, as well as long-term detention of children and families in border detention centers.

The Border Violence Monitoring Network (BVMN) called the agreement concluded on December 20, 2023 a devastating attack on the right to seek asylum.

In the past, the Association for Legal Intervention has also opposed, together with other non-governmental organizations, the proposed legislative changes under the Pact on Migration and Asylum.

Current legislative status

The final texts of individual legal acts are not yet known. Currently, work on the final version of the Pact is still in progress. The Council and the European Parliament have committed to adopting the Pact before the European parliamentary elections in June 2024.