EU Asylum Law in the Face of a Paradigm Shift

In April 2024, the European Parliament voted in favour of new EU migration rules, the so-called Pact on Migration and Asylum, which was formally endorsed a month later by the Council of the EU. As I have previously demonstrated on this blog, the consistent enforcement of some aspects of the Pact remains highly questionable as it seemingly does not go far enough to satisfy the demand for harshness in response to irregular migration. In the context of this symposium on the legal challenges of European security, I delve deeper into this theme by demonstrating the implications of an overarching securitization of asylum law. Implications which, I claim, amount to frustrating the essence of this law. I do this by taking the Force Majeure Regulation as an illustrative example and juxtaposing it with the latest political developments—developments which go significantly further than the Pact in undermining international asylum law, forcing me to question its ongoing relevance when faced with such wholesale disregard.

I set out to show that the Force Majeure Regulation struggles to strike the delicate balance between the demands of international asylum law and the apparent trend toward securitization of migration across the EU. Despite the troubling implications for human rights, the final outcome of this balancing exercise still fails to satisfy many EU Member States. These states addressed the Commission in an open letter, in which they imply that the newly adopted reform, which took years to negotiate, is unsustainable. More recent events, such as Poland’s plan to officially suspend the right to seek asylum and the Commission’s greenlighting of this plan, suggest that the Pact may de facto collapse even before becoming applicable, due to it being not harsh enough. A reflection upon these events leads me to suggest that we might be facing a paradigm shift in the field of migration and asylum law, whereby the focus on the individual gives in to the political demand for harsh, indiscriminate measures in the name of ‘security’.

Force Majeure Regulation—a Derogation Regime Stretching Permissible Limits

The Pact on Migration and Asylum as a whole is replete with provisions designed to curb irregular migration and enhance security (to what extent it includes the security of migrants themselves is an entirely different question). Some of these provisions are highly questionable from a human rights perspective. Criticism pertains, for instance, to the expansion of the safe third country concept, ultimately shifting responsibility for asylum seekers to third states, to the wide deployment of accelerated and border asylum procedures, or to controversial ‘pre-screening’ which, in essence, perpetuates a deeply problematic hotspot approach to the management of irregular arrivals to Greece and Italy introduced in 2015. Perhaps the most controversial and sensitive aspect, due to the ongoing crises on the Belarus– and Russia–EU borders, is the Force Majeure Regulation.

The Force Majeure Regulation is essentially a detailed derogation regime, to be deployed in situations of crisis, such as large-scale arrivals of third-country nationals or the so-called instrumentalization of migrants (vaguely defined in the Article 1(4b) of the Regulation). The Regulation can thus be seen as the apex example of proliferation of exceptions and derogations which permeate the Pact as a whole; derogations that are justified by framing irregular migration predominantly as a threat, requiring crisis response. However, there are limits to permissible derogations, deeply embedded within international law, which no EU legislation may breach. The 1951 Refugee Convention, to which all EU Member States are party, does not contain a general derogation clause. Barring access to refugee status determination procedures would thus clearly breach this treaty. The principle of non-refoulement, provided for in the 1951 Refugee Convention but expanded since, not least as a result of the jurisprudence of the European Court of Human Rights (ECtHR), is another legal boundary. According to this principle, a state may not return a person to territories where they could be subjected to torture or other inhumane or degrading treatment or punishment. Finally, while the detention of refugees arriving in an irregular manner is not ruled out under the 1951 Refugee Convention, it must not be arbitrary, its ordering must be subject to a particularly rigorous scrutiny, and detention of minors and individuals with particular vulnerabilities must be treated strictly as a measure of last resort, according to the ECtHR’s jurisprudence.

Against this background, it is clear that the Force Majeure Regulation significantly waters down safeguards currently in place in EU law to secure the above-mentioned principles. By dramatically expanding the so-called asylum border procedures, featuring speedy consideration of asylum claims in border areas, paired with a legal fiction of non-entry (whereby asylum-seekers are not granted the right to enter despite being physically within territory), it greatly limits access to territory for asylum seekers and effectively does away with the current standard of the right to remain on the territory of Member States for the purposes of the asylum procedure (Article 9(1) of the Procedures Directive, to be repealed by the Regulation 2024/1348). In situations of instrumentalization of migrants states will be entitled, upon the authorization of the Council, to take decisions on the merits of, in principle, all applications in border procedures, with exceptions for minors under the age of twelve, their family members, and other vulnerable groups. The Force Majeure Regulation thus constitutes a vivid illustration of Ancite-Jepifánova’s critique of the concept of instrumentalization: it serves as a convenient justification to impose harsh and indiscriminate measures in highly complex situations. This is problematic because, as it would seem, the less clear-cut the situation, the more robust procedures are required to determine whose claim to protection is valid and whose claim is indeed intended to disrupt the asylum system. Instead, the Force Majeure Regulation effectively presupposes that all those purportedly instrumentalized are ‘bogus’ asylum-seekers, which seemingly warrants a profound dilution of the safeguards available to them.

Beyond that, border procedures are problematic for a number of reasons. The legal fiction of non-entry exemplifies the notion of a ‘shifting border’, whereby states manipulate the very concept of territoriality to their advantage—and to the migrants’ disadvantage. They effectively involve mass detention in the border areas, which seems to run contrary to the ECtHR’s standard of detention as a measure requiring particularly robust scrutiny. Finally, they risk subjecting asylum seekers to sub-standard asylum procedures, making it more difficult to meaningfully present the case for international protection.

That said, the Regulation does not provide a basis for pushbacks or explicit denial of the right to seek asylum, even in situations of ‘instrumentalization’. Beyond the dramatic expansion of border procedures, it provides for extensions of deadlines in relevant procedures, responsibility offsets, and the like. The Regulation, therefore, significantly stretches the boundaries of what might be permissible under international law and at times likely oversteps those boundaries, but does not come close to matching the outright violations of international law currently deployed by states administering the external borders of the EU.

Legally Questionable and Politically Unsustainable

From the moment the Pact was officially adopted, it was clear that it was politically unsustainable. Hungary and Poland openly manifested their dissent by voting against it. Additionally, 15 ministers responsible for migration matters from across the EU addressed the Commission in an open letter, calling on it and the Member States ‘to identify, elaborate and propose new ways and solutions to prevent irregular migration to Europe.’ In other words, after years of negotiations culminating in the adoption of the Pact, it is deemed unsatisfactory by the majority of the Member States.

The undersigned ministers call for no less than more externalization of migration and more harshness. Their postulates include further making use of the safe third country concept, more externalization agreements with third states (such as the EU–Turkey deal), expediting return procedures and, last but not least, more effective tools in the ‘instrumentalization’ scenario. On this latter theme, the ministers stop short of proposing specifics of what they believe would constitute ‘appropriate and effective tools and measures for Member States to be able to act swiftly to counter instances of instrumentalization—such as the hybrid attacks orchestrated most recently by the Belarusian and Russian regimes […].’ It is, however, clear that by stating this, they consider the adopted measures to be insufficiently ‘effective’.

Let me repeat: the Force Majeure Regulation provides for blanket border procedures in the event of ‘instrumentalization’, de facto implying mass detention and sub-standard procedures. It is hard to think of more far-reaching measures that do not involve outright violations of the principle of non-refoulement, such as pushbacks or explicit barring of access to asylum procedures. One could presume, however, that this is exactly what some of the undersigned ministers had in mind, especially since among them were those of countries deploying such practices, such as those bordering Belarus. Explicitly calling for the introduction of such measures to the common legal framework would, however, clearly contradict the last paragraph of the letter: the one where the ministers ‘reiterate that all new measures must be implemented in full compliance with our international legal obligations, including the principle of non-refoulement, as well as the EU Charter of Fundamental Rights and applicable EU law.’

It is unclear if, and if so, when we might expect further additions to the Force Majeure Regulation to enhance its ‘effectiveness’ in situations of ‘instrumentalization’ while supposedly remaining ‘in full compliance with […] international legal obligations’. What is quite clear, however, is that this latter passage is now merely an empty slogan. Member states bordering Belarus and Russia no longer stop at the de facto barring of access to asylum procedures, but do so on a de jure basis, with the explicit approval of other Sember States and, crucially, the European Commission. These developments amount to a direct assault on the international refugee protection framework as we know it and signal a breakdown of the Pact long before it becomes applicable. A breakdown not caused by the fact that it likely violates international law, as shown above, but by the fact that it does not violate it enough.

Are We Witnessing a Paradigm Shift?

To sum up the above, the Force Majeure Regulation constitutes (so far) the peak of framing irregular migration as a security threat in the EU legislation, to the point where, as Moreno-Lax demonstrates, ‘the [Common European Asylum System has become] a factor of migration management, with more of a control task than a protective function.’  It adopts the controversial notions of instrumentalization and hybrid threat in relation to migration, giving in to the demand for indiscriminate measures in response to such events. However, it stops short of allowing pushbacks or explicitly barring access to asylum procedures. In response, Member States do exactly that, and the Commission explicitly agrees while outright ignoring applicable laws, including the Charter of Fundamental Rights and ECJ’s jurisprudence.

This leads me to my final point. The cornerstone of international human rights law and human security is the focus on the individual. Any collective responsibility or denial of agency to entire groups of people is incompatible with the spirit of this law as it is currently codified. The Force Majeure Regulation goes dangerously far down this path, particularly by introducing indiscriminate border procedures in situations of ‘instrumentalization’. The EU migration agenda, in turn, is at a point where international standards of protection for asylum seekers are still placed on a pedestal as a reference point for adopted laws and those being proposed—even though they effectively hollow out precisely those standards.

The practice on the EU’s borders has already, on many occasions, turned those standards into dead letters, virtually unenforceable at the EU level. The Pact undoubtedly represents another step back from their effective application. At this point, however, it is clear that what we are really facing is not ‘just’ watering down of safeguards for asylum seekers, but an outright denial of the international refugee regime, including the right to seek asylum and prohibition of refoulement. Measures that are now explicitly accepted on the EU level amount to a collective punishment of those who are purportedly ‘instrumentalised’—regardless of their individual circumstances, they can be subjected, as a group, to drastic and potentially irreversible measures, such as pushbacks to danger with no recourse to the right to seek asylum. A fundamental question thus emerges: is it already time to admit that we are witnessing a paradigm shift in the field of asylum law, decisively away from the focus on the individual and toward harsh, indiscriminate measures, whenever ‘security’ so dictates?