Commission proposes common model to respond to instrumentalisation of migrants

On 14 December, the European Commission issued a proposal for a Regulation addressing situations of instrumentalisation in the field of migration and asylum. The Regulation would allow all EU Member States to derogate from certain provisions on the EU asylum procedure, reception of asylum seekers and return in situations of instrumentalisation. The Government expressed its position on the proposal in its communication submitted to Parliament on 17 February.

The aim of the proposal is to create a permanent legal framework to respond to instrumentalisation of migrants. These situations would be defined in the Schengen Borders Code. Instrumentalisation of migrants refers to a situation where a third country instigates people into the Union by actively encouraging or facilitating such movement to the external borders from within its territory. The aim of such actions is to destabilise the European Union or a Member State.

In practice, the Commission’s proposal includes the same measures as the previous proposal for provisional emergency measures for the benefit of Latvia, Lithuania and Poland. They would allow the Member States to derogate from three legal acts still under negotiation in the EU, namely the Asylum Procedure Regulation, the Reception Conditions Directive recast and the Return Directive recast. 

1. The registration deadline for asylum applications could be extended to four weeks.
2. Under certain conditions, the so-called border procedure could be applied to all applicants. This means that their applications could be examined at or near the border. 
3. Material reception conditions could be limited to basic needs, which include food, water, clothing, adequate healthcare and temporary shelter from the moment an application is made.
4. Rather than applying the EU Return Directive, the return procedure could be decided on at the national level.

Member States would not be obliged to introduce these measures, but they could, at their discretion, request this from the Commission. They could also send a request to the Commission for support from other Member States to manage the situation.

Government supports clear legal framework

The Government considers it important that the EU clearly defines the legal framework for the asylum and return procedure and reception conditions in which the Member States can act in situations of instrumentalisation. It must be clear at every stage of the process what is required of a Member State and what the rights and obligations of an asylum seeker are.

The Government approves the proposals if certain minimum conditions are met. It stresses that individuals must be able to apply for asylum also in situations of instrumentalisation. The applications must be examined individually, and the applicants must have access to sufficient legal remedies. 

The rights and special needs of vulnerable persons and the best interests of the child must be taken into account at all stages. The material reception conditions must cover at least the basic needs. Detention must be a last-resort measure, and the principle of non-refoulement must be fully respected.

The Government stresses that, alongside these exceptional measures, work to reform the Common European Asylum System must continue. The System must be developed in a way that enables efficient, proportionate and more flexible ways for Member States to respond to changing situations. If necessary, the negotiations can proceed at different paces with regard to different proposals. In the longer term, however, the aim should be to ensure consistent and coherent regulation on all situations of crisis and emergencies in the field of migration.

Regulation would improve EU countries’ preparedness

The most significant factors behind the Commission’s proposal are the actions of Belarus, which were targeted against Poland, Latvia and Lithuania in autumn 2021. This could also happen at other external borders of the EU. Non-EU countries can seek to use migration to promote their own political objectives and thereby undermine the stability of the EU and its Member States. 
The aim of the proposed Regulation is to improve preparedness. The purpose is to improve the ability of the Member States to respond to situations of instrumentalisation of migrants in an orderly, humane and dignified manner.

The EU is trying to agree on the Regulation as soon as possible. More extensive political discussion on how to respond to the instrumentalisation of migrants will probably continue in early 2022 in different Council configurations.

Inquiries:

Kukka Krüger, Chief Specialist, tel. +358 295 488 270, kukka.kruger@govsec.fi