In September 2022, SIP signed a joint statement by more than 70 European NGOs opposing the adoption of a new EU law: the Regulation on the situation of instrumentalisation in the area of migration and asylum. The statement was published by the European Council of Refugees and Exiles, of which SIP is a member.
The draft regulation allows Member States to waive the application of the existing EU rules on persons seeking protection and persons returning to their country of origin in a situation of “instrumentalisation in the area of migration and asylum”. This is about situations where a non-EU country causes irregular migratory flows to the EU with the aim of destabilizing the situation in the entire Union or in one Member State.
The regulation is therefore intended to be an instrument that can be used by Member States in situations such as the ongoing humanitarian crisis on the Polish-Belarusian border. As reported by Grupa Granica, Amnesty International, the Helsinki Foundation for Human Rights and many other organizations, since August 2021 the Belarusian authorities have been forcing foreigners to cross the Polish border illegally, using threats and violence to this end. In response, the Polish authorities push foreigners back to Belarus without examining their individual circumstances, ignoring their applications for international protection and exposing them to re-inhuman treatment by Belarusian services. Many foreigners experience such ‘push-backs’ (collective expulsions) and inhuman treatment over and over again. The above actions are clearly inconsistent with national, EU and international law.
If the Instrumentalization Regulations enter into force, each Member State, subject to certain conditions, may not apply certain provisions of EU asylum law (in relation to the asylum procedure and reception of persons seeking international protection in the EU) and return, if a third country applies methods identical or similar to the activities of the Belarusian authorities described above. In the opinion of over 70 non-governmental organizations, the solutions proposed in the draft Regulation constitute too far-reaching deviations from the applicable EU regulations and ignore the rights of foreigners used and harmed by the authorities of a third country. Non-governmental organizations are against the proposed solutions because:
- they are disproportionate: The limitations on the human rights of foreigners subjected to measures characterized as “instrumentalization in the area of migration and asylum” are so far-reaching that they raise doubts as to their necessity and proportionality. Actions by third countries should not significantly adversely affect the scope of their rights, including the right to asylum.
- will be counterproductive: The proposed exceptions to EU law will weaken the Common European Asylum System. Member States already ignore EU law and will therefore be willing and free to make use of the derogations allowed under the proposed Regulation.
- are unnecessary: The current legal provisions already provide opportunities to respond to the changing situation at the border, including the possibility of derogations from EU law.
- they are aimed in the wrong direction: The proposed solutions hit foreigners who are victims of a third country and not the third country itself, which wants to destabilize the situation in the EU or a Member State.
- are unfair: Foreigners seeking international protection in the EU who have been the victim of instrumentalisation will be treated differently from those who have arrived in the EU by other means. Moreover, foreigners affected by “instrumentalisation” will be more likely to move to a Member State without derogations than to stay in a country that denies them some of their rights. This will burden the asylum systems of those countries that respect EU law.
According to more than 70 European NGOs, including ALI, Member States should focus on preparing reforms aimed at the effective functioning of the asylum system, protection of foreigners’ rights, increasing respect for the law and increasing trust between Member States. Meanwhile, the proposed Regulation has the opposite effect and dismantles the EU’s asylum system.
What can you do to prevent the Ordinance on instrumentalisation?
1. Write to the Minister of the Interior and Administration for Poland to oppose the adoption of this Regulation.
2. Write to the MEP to oppose the adoption of this Regulation. In the European Parliament, rapporteurs on this matter are, inter alia, Polish MEPs: Patryk Jaki and Róża Thun und Hohenstein.