P.R. “The New Pact on Migration and Asylum – Armed conflict in Ukraine and developments in Asylum Law”

P.R. “The New Pact on Migration and Asylum – Armed conflict in Ukraine and developments in Asylum Law”


Online Seminar “Asylum and Refugee Law: Recent European Developments

3rd Meeting: “The New Pact on Migration and Asylum – Armed conflict in Ukraine and developments in Asylum Law

On Thursday 11 May 2023 the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens held via the Webex platform the third meeting of the online seminar “Asylum and Refugee Law: Recent European Developments”. The specific theme treated in this session was “The New Pact on Migration and Asylum – Armed conflict in Ukraine and developments in Asylum Law”.

The discussion was coordinated by Ms Revekka – Emmanouela Papadopoulou, Associate Professor at the Law School of the University of Athens, and member of the Board of the Jean Monnet European Center of Excellence of the University of Athens. Ms Papadopoulou first welcomed the speakers and attendees to the meeting, and then made a short introduction to the theme.

The first speaker, Ms Metaxia Kouskouna, Associate Professor at the Law School of the University of Athens, and Executive Vice-President of the Jean Monnet Center, presented the developments in the Common European Asylum System (CEAS) from 2015 until the New Pact on Migration and Asylum (NPMA) in 2020. She remarked that the EU has been severely criticized over its handling of the 2015 crisis. What is more, the underlying disagreement among member states on matters of asylum, migration and control of the external border has come to the surface, notwithstanding the fact that it is precisely in these fields where solidarity -which holds a prominent place in the Area of Freedom Security and Justice (AFSJ)- is exemplified. Thus, the deficiencies of the legal framework became evident, hence the need to reform it.

The European Commission, as early as in September 2015, had already presented its -eventually unsuccessful- Proposal for the reform of the Dublin III Regulation. The issue was revisited in 2016 with a comprehensive proposal, comprising this time the reform of not only the Dublin system, but of the whole package of the CEAS legislative measures. Same as the previous one, the Proposal was not adopted. The 2016 revision comprised another two Proposals: one for the amendment of the Eurodac Regulation, and one for the replacement of the EASO by the upgraded EUAA, also invested with a broader mandate. The latter Proposal was adopted by means of the 2021/2303 Regulation. The speaker, after examining the particular measures of each one of the above Proposals, highlighted their overarching aim that has so far remained unattainable: reforming the CEAS in its entirety.

Next, Ms Kouskouna focused on the three main legal instruments of the NPMA. All three are Proposals for Regulations. The Proposal for a Regulation on asylum and migration management is the core of the Pact. The speaker presented the criteria for determining the member state responsible for examining an application for international protection, as well as the solidarity measures in times of migratory pressures and disembarkations following search and rescue (SAR) operations. The second Proposal introduces a mandatory screening of third-country nationals at the external borders. The third text is the Proposal for a Regulation addressing situations of crisis and force majeure.

The speaker made special mention of the Russian invasion of Ukraine on 24 February 2022 and the activation of the until then dormant 2001 Directive, by virtue of which Ukrainians were granted the temporary (initially one-year) protection status, already extended by one more year.

Ms Kouskouna also presented an interesting Proposal which is not included in the NPMA: a Proposal for a Regulation addressing situations of instrumentalisation in the field of migration and asylum. It is a tool and a response to the instrumentalization of humans by the Belarusian regime. Despite the fact that it mainly concerns and makes part of the amendment of the Schengen Borders Code (SBC), the speaker maintained that it should be considered in tandem with the Proposals for the NPMA.

In assessing the NPMA, Prof. Kouskouna said that the Proposals are similar to the 2016 ones, but the fact that they were presented as a whole makes the negotiation all the more difficult. She furthermore stressed that the Pact has failed to strike a balance in respect of solidarity, as the countries at the external EU border are rendered responsible for carrying out additional procedures, such as the screening one with all its subsequent problems, while the solidarity provisions include too many exceptions of which the other member states can make use, and are often optional. Prof. Kouskouna concluded that one can but await as to what will become of the Proposals.

The second speaker, Dr Markos Papakonstantis, Ph.D. in Law, Université Nancy II, Attorney-at-Law, delved into the solidarity principle in the AFSJ. He first gave a brief overview of the Dublin Regulation: in 1990 the inter-state Dublin Convention was signed outside the -then- European Community framework. Later, it was given the name Dublin I, and was revised in 2003 during the Greek Presidency.

In respect of solidarity, the way in which the principle materialized in 2015-16, was inferior to what Greece would have expected from its EU partners. The reasons are the absence of a strong European identity, the crisis that shakes the European integration endeavour, the increase of intergovernmentalism at the expense of supranationalism, and the securitization of asylum policy by certain member states.

Dr Papakonstantis raised the question whether the notion of EU solidarity is concretized in the Treaties. In the Treaty on European Union (TEU), it is regarded as an obligation (e.g., art. 1 and 2, EU Charter of Fundamental Rights). Conversely, in the Treaty on the Functioning of the European Union (TFEU) it is an externalized behaviour, that is to say, member states should act accordingly. If one tried to -arbitrarily to a certain extent- identify the characteristics of solidarity as they appear in the corpus of EU texts, one would say that it is general, open, evolving and dynamic. This is because the legislator did not want to specify its modes and content, but favoured its ad hoc definition as an outcome of negotiations each time taking place among member states. In sum, solidarity is open and everchanging.

The Common Foreign and Security Policy (CFSP) and the policy on civil protection and counter-terrorism are two instances in which the notion of solidarity is exemplified. The CFSP explicitly introduces a mutual defence clause whereby if a member state is the victim of armed aggression on its territory, the other member states have an obligation to aid and assist it by all the means in their power -of course, it is a general and rather vague solidarity that the clause sets forth. By contrast, art. 222 TFEU determines more specific forms of solidarity, if a member state is the object of a terrorist attack or the victim of a natural or man-made disaster. These forms can be defined in secondary law, but it will be member states that will specify their details.

Furthermore, Dr Papakonstantis holds the view that, given the difficulties (unanimity in the European Council, ratification, potential referenda) for the revision of the Treaties, there will be no change as regards migration and asylum. However, and due to the fact that the issue of the evolution of the EU is pressing and requires the revision of the Treaties, the discussion is also about how migration and asylum issues can be resolved on a permanent basis, independently from member states’ will. Dr Papakonstantis appeared pessimistic as to whether the general discussion will pave the way for negotiation, let alone the discussion about migration and asylum.

The speaker also touched on Greece’s demographic decline, as opposed to third countries’ demographic growth, as well as on climate refugees. Of course, international law does not give a definition of climate refugees, because recognition of the status means conferring rights upon the persons. Dr Papakonstantis predicted that Greece will be faced with this issue in the future.

The speaker commented that the Screening Regulation is a display of EU hypocricy: it provides for the relocation in EU mainland of those who can be recognized as refugees, while those who do not qualify for the status, will remain in Greece awaiting return. This pretentious solidarity towards Greece will be serving as a window dressing of the hypocricy underneath, concluded Dr Papakonstantis.

The third speaker, Ms Chryssi Tsirogianni, Lawyer, EUAA, Researcher at the Jean Monnet European Center of Excellence of the University of Athens, made a presentation of the role of the European Union Agency for Asylum (EUAA) in the NPMA in her capacity as legal officer of the Agency. The latter is under the European Commission, and does not take part in the negotiations for the NPMA. Regulation 2021/2303, by force of which the EUAA was founded, is the only of the Commission’s Proposals that has been adopted so far. The Agency is now vested with a broader mandate, in relation to its predecessor, the European Asylum Support Office (EASO):

– The new mandate facilitates the quick deployment of operational aid towards member states.

– Apart from the asylum support teams, the Agency now also has an asylum reserve pool amounting to a minimum of 500 experts/national officials from member states.

– The position of fundamental rights officer, enjoying independence, was created.

– The Agency engages in close dialogue with civil society through an independent consultative forum. In this body participate relevant civil society organizations operating in the field of asylum.

– The EUAA is linked to the European External Action Service (EEAS): the new Regulation provides on the appointment of liaison officers in member states but also in third countries for the furtherance of cooperation and the promotion of EU norms and standards on asylum in these countries.

– A complaints mechanism has been established to examine grievances by those who consider that their fundamental rights have been violated due to the Agency’s actions.

– A monitoring mechanism is being set up (expected to be operable in late 2023, provided a certain level of political consensus on the NPMA Proposals is reached). The operational and technical application of the CEAS will thus be monitored, in order for possible shortcomings in the asylum and reception systems of the member states to be prevented or identified, with a view to a more harmonized common system.

If the Asylum Procedures Regulation is finally adopted, the Agency will provide training to member states’ experts. As far as the border procedure is concerned, the Agency will provide them with guidance notes and information on countries of origin. In relation to the Regulation on asylum and migration management, in the framework of which the proposed solidarity mechanism will mainly be effectuated, the EUAA will be actively contributing by means of regularly updated reports and information analysis. These documents will be used for designing a European Asylum and Migration Management Strategy.

Overall, in the NPMA the EUAA functions on three levels: operational, data and legal. At the operational level, the Agency will provide member states with operational and technical assistance and staff. At the data level, by virtue of its founding Regulation and according to the proposed NPMA, the EUAA provides information and data on migratory flows. At the legal level, and as an educational hub, it offers specialized and reliable knowledge on the European asylum system to member states’ officials.

Last, Ms Tsiorgianni emphasized that cooperation among organs and institutions is one of the NPMA’s main principles. For instance, the NPMA specifically provides on the close cooperation between the EUAA and Frontex.

The discussion that followed was coordinated by Professor Papadopoulou.

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