When Statistics Replace Rights

The EU’s New Pact on Migration and Asylum, the most significant overhaul of its asylum system since its inception, entered into force in June 2026. However, it was already clear before that date that the Pact seriously undermines the Refugee Convention and reduces the procedural rights of asylum applicants, as the European Parliament, many scholars, and civil society organizations such as the European Council on Refugees and Exiles (ECRE) have repeatedly pointed out.

The Asylum Procedures Regulation (APR) introduces a new crucial feature: a statistical threshold based on Eurostat data from the previous year that places applicants from countries with low asylum recognition rates into mandatory accelerated procedures and, under certain conditions, compulsory border detention. The logic extends the “Safe Country of Origin” (SCO) concept — itself an EU invention with no basis in the Refugee Convention — to treat low-recognition countries as de facto safe. As Safe Country concepts spread outside Europe in previous decades such as the Canada-USA Safe Third Country Agreement, this new instrument is likely to go global too.

In our analysis of this development, we focus on LGBTQI+ refugees, an especially vulnerable group, because many of these low-recognition countries are not safe for SOGIESC (sexual orientation, gender identity and expression, and sex characteristics) minorities. The exemptions that do exist are too weak and too discretionary to guarantee real procedural rights.

As we show through early frontline examples from across Europe, these discretionary decisions are already producing exactly the opposite of what the Pact intended: rather than consistency across the EU, the New Pact is leading to a de-harmonization of EU asylum law and practice.

Setting the Stage: The Legal Fiction of Non-Entry

Arguably, legal fictions — at least in administrative law — are seldom a good thing. They imply that state authorities treat a fact as if it were something else. The legal fiction of non-entry treats a person physically present in EU territory — having applied for asylum at an external border or in an airport transit zone — as if they had not yet arrived in that country. Under the new Screening Regulation, initial screening occurs under this fiction; afterward, applicants are either admitted and referred to the regular procedure or, under the new APR, kept in border detention centers under a continued fiction of non-entry for up to 12 weeks. During that time, asylum applications must be completed; otherwise, the person must be admitted. During these 12 weeks, even while sheltered in a camp, potentially appearing in court, or being treated in a hospital, the person is still considered “not here”.

One circumstance that triggers this border procedure — and makes it mandatory — deserves closer scrutiny for its impact on LGBTQI+ applicants.

Statistical Safety is not Real Safety

Any applicant from a country whose EU-wide asylum recognition rate fell at or below 20% the previous year is placed in an accelerated procedure and, if still under the fiction of non-entry, mandatory border detention (Article 42(1)j, Article 45(1) APR). Unlike the also expanded use of the Safe Country of Origin concept, the 20% threshold effectively treats countries as de facto “safe” without requiring any qualitative assessment. It only relies on first-instance decisions from the previous year, excluding any analysis based on objective and reliable reports. This creates a mechanism that no one can argue with. It is precisely what makes it dangerous for minorities: LGBTQI+ applicants’ experiences and asylum decisions will always be under-represented in aggregate statistics. That’s why they are called a minority.

Unsurprisingly, the first 20% list published by the EU Commission includes several LGBTQI+ criminalising countries such as Nigeria, Pakistan, or Algeria, and many other countries like Russia or Türkiye which are manifestly unsafe for LGBTQI+ people as recent crackdowns show.

We focus here on the impact of this new 20% threshold because it leads to a mandatory border procedure while an applicant coming from a “Safe Country of Origin” does not. Moreover, all countries that are on the new EU-wide list of safe countries are also on the 20% list (except Ukraine). And in sheer numbers, the new 20% instrument will have the bigger impact: there are more than 100 countries below a 20% threshold, while the EU list of Safe Countries of Origin has “only” 16 (!).

Being subjected to a border procedure is not simply “unpleasant” because of the detention that it entails. Applications are presumed to be ‘likely unfounded’ from the outset, shifting the burden of proof firmly onto the applicant; hearings happen within days of arrival, under detention; appeals must be filed within 5–10 days (Article 67(7)a APR), an exceptionally short window for the complexity of LGBTQI+ cases; and appeals carry no automatic suspensive effect unless a court grants it in time (Article 68(3)a.ii APR).

Also concerning is the fact that, according to a recent ECRE report, not a single Member State reported having specific detention conditions for LGBTQI+ persons. This puts transgender applicants and any applicant whose gender expression does not match the assigned legal sex particularly at risk.

The State decides on Exceptions

Two exemptions under Article 42(1)j APR exist, and both share the same defect: the asylum authority decides unilaterally, leaving applicants who disagree without legal remedy.

The first exception from this 20% rule relates to those applicants who belong to “a category of persons for whom the proportion of 20% or lower cannot be considered representative” of their protection needs. But no statistical data exists on which grounds people actually invoke to claim asylum, so there is no reliable way to assess whether the 20% rate is representative for LGBTQI+ applicants — leaving the determination entirely to the authority’s discretion.

The second exception refers to applicants for whom the “necessary support” cannot be provided in a border camp. Here, too, it is the state’s discretion — not the applicant’s right — to define what ‘necessary support’ means and whether it is available. For LGBTQI+ applicants, that could mean gender-affirming care, trauma-sensitive counselling, or HIV testing — services unlikely to exist, or be safely accessible, in a border camp.

De-Harmonization: First Spotlights from the Frontline

While it is still too early for a comprehensive comparison, there are already anecdotal experiences reported by LGBTQI+ NGOs working in the field such as Rainbow Railroad that allow a first glimpse into the practice on the ground (we greatly appreciate the insights shared with us). The differences that emerge across Member States applying the same EU Regulation could not be bigger: from surprising new legal remedies and general exemptions for LGBTQI+ applicants, to the general application of the border procedure.

In Austria, LGBTQI+ applicants in transit at an airport are usually allowed to enter the country and are referred to the regular asylum procedure. Additionally, there is the possibility of an independent appeal against being placed in the border procedure: the Federal Administrative Court (BVwG) currently directly applies Article 9 of the Reception Condition Directive (and particularly its Article 9(5)) through its reference in Article 54 APR. Currently, the court demands a formal written decision (Bescheid) on applying the border procedure that can be independently appealed (the first such decision can be found in full here). In a recent case, a gay Russian was placed in the border procedure against the usual practice; he successfully appealed pursuant to Article 9(5) RCD, with the result of having to be immediately allowed to enter Austria (BVwG, W600 2350261-2). The highest administrative court in Austria (VwGH) has not ruled on this direct application of an EU directive yet and this might lead to a preliminary ruling procedure before the CJEU.

Indeed, at the time of writing, a Dutch court had just referred a case for a preliminary ruling to the CJEU, asking whether the systematic ordering of detention and disregarding less intrusive measures is in line with European Union law, especially Article 52 of the Charter of Fundamental Rights.

The first experiences of LGBTQI+ applicants in transit both in Spain and France point towards referral to the regular procedure after a screening, without any significant issues.

Similarly, in Italy there is a clear line of jurisprudence on the 20% threshold emerging, holding that Eurostat data has only indicative purposes and does not replace the need of an individual assessment, including vulnerabilities. Indeed, the courts hold that there cannot be an automatism leading to a border procedure especially when belonging to a group whose protection needs cannot be regarded as representative. Thus Italian courts require authorities to “state in concrete terms why the applicant does not belong to categories exposed to specific risks and why the percentage is significant in the case at hand” (Tribunal of Bologna, 1 October 2026), greatly strengthening procedural rights.

Germany lies at the other end of the spectrum. The German asylum authority Bundesamt für Migration und Flüchtlinge (BAMF) is of the opinion that the necessary support can be given to LGBTQI+ refugees in detention centres and thus tends to place everyone in a border procedure. There is no written decision on the application of the border procedure itself and no independent right to appeal.

Counter-Strategies

Drawing on the discussions held at a workshop at Humboldt University in 2025 and speaking to activists from LGBTQI+ NGOs over this summer, we put forward a few suggestions here. We are indebted to them for their generous input.

First, following Italian jurisprudence LGBTQI+ applicants and their legal representatives should argue that overall recognition rates do not represent SOGIESC cases, which typically make up only a small share of all asylum applications. Recitals 17 and 62 and Article 53(2)(b) and (c) APR offer further grounds to argue that LGBTQI+ applicants’ special reception and procedural needs should exempt them from border procedures altogether. The UNHCR Guidelines Nr. 9 on SOGIESC asylum cases can be a very helpful tool, as well as the Yogyakarta Principles, a collection of Human Rights formulated from an LGBTQI+ perspective.

Second, strategic litigation could leverage a recent CJEU ruling on Safe Country of Origin. In Alace and Canpelli (C-758/24 and C-759/24) the CJEU held that safe country designations can be challenged where a country is not safe for a particular group — and similar reasoning is likely to apply to the new 20% threshold rule, as Italian courts already rule. LGBTQI+ applicants placed in border procedures could become central cases that decide whether this system survives judicial review. Additionally, lawyers across Member States should carefully study the “Austrian” path of direct application of Article 9(5) RCD and determine if their national legislation allows for a similar argument.

Third, Member States cannot apply exemptions to a threshold that relies on missing data. They need to start collecting and publishing data on the grounds invoked to apply for asylum, including SOGIESC cases — something the EUAA already recommends. Reliable second-instance decision data by country and by ground for asylum does not exist either, and this data is essential to assert whether the 20% rate truly reflects LGBTQI+ applicants’ protection needs.

Last, but not least, an EU-wide humanitarian visa instrument is needed for vulnerable refugees such as LGBTQI+ persons, something already explored by the European Parliament. While waiting for the EU to introduce an EU-wide humanitarian visa pathway, we need to rely on Member States to introduce or retain national humanitarian visa programmes, which they are free to do. France is a very positive example in Europe for granting Asylum Entry Visas, as is Canada in terms of resettlement specifically of LGBTQI+ refugees, if we want to look beyond Europe for inspiration.

These measures have the potential to allow “safe pathways to safety” instead of putting LGBTQI+ refugees in prison based on statistics that do not reflect their experiences. The 20% threshold rule is ultimately unjustifiable and needs to be completely overhauled.