Legal provisions of COM(2021)890 - Addressal of situations of instrumentalisation in the field of migration and asylum

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dossier COM(2021)890 - Addressal of situations of instrumentalisation in the field of migration and asylum.
document COM(2021)890 EN
date December 14, 2021


CHAPTER I

General Provisions

Contents

Article 1 - Subject matter

This Regulation provides for specific rules derogating from those set out in Regulation (EU) XXX/XXX [Asylum Procedure Regulation], Directive (EU) XXX/XXX [Reception Conditions Directive recast] and Directive (EU) XXX/XXX [Return Directive recast] that may be applied by a Member State in a situation of instrumentalisation of migrants as defined in [Article 2(27)] of the Schengen Borders Code where necessary for responding to such a situation. It also provides for specific rules on support and solidarity measures that may be taken in such situation.

CHAPTER II

Emergency migration and asylum procedure in a situation of instrumentalisation of migrants

Article 2 - Emergency migration and asylum procedure in a situation of instrumentalisation of migrants

1. In a situation of instrumentalisation of migrants as referred to in Article 1, the Member State faced with the arrival of third-country nationals or stateless persons at its external border as a consequence of such situation may apply, in relation to third-country nationals or stateless persons who are apprehended or found in the proximity of the external border with the third country instrumentalising migrants in connection with an unauthorised crossing or who have presented themselves at border crossing points, one or more of the following derogations, in accordance with the procedure laid down in Article 6:

(a)by way of derogation from Article 27 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation], register applications for international protection made within the period during which this point is applied no later than four weeks after the application is made.

Where applying this derogation, the Member State concerned shall prioritise the registration of applications likely to be well-founded and those of unaccompanied minors and minors and their family members.

(b)by way of derogation from Article 41(2)(a) and (b) and Article 41(5) of Regulation (EU) XXX/XXX [amended Asylum Procedure Regulation], decide at their borders or transit zones on the admissibility and on the merits of all applications registered within the period during which this point is applied.

Where applying this derogation, the Member State concerned shall prioritise the examination of applications for international protection likely to be well-founded and those lodged by unaccompanied minors and minors and their family members.

(c)by way of derogation from Article 41(11) of Regulation (EU) XXX/XXX [Asylum Procedure Regulation], the maximum duration of the emergency asylum management procedure for the examination of applications registered within the period during which this point is applied shall be sixteen weeks. Following that period, provided that the applicant is not subject to the return procedure in accordance with Article 4, the applicant shall be authorised to enter the Member State’s territory for the completion of the procedure for international protection.

2. Where applying this Article, the principles and guarantees of Regulation (EU) XXX/XXX [Asylum Procedure Regulation] shall apply.

Article 3 - Material Reception Conditions

By way of derogation from Directive XXX/XXX [Reception Conditions Directive recast], and in accordance with the procedure laid down in Article 6, the Member State faced with the arrival of third-country nationals or stateless persons at their external border as a consequence of a situation of instrumentalisation of migrants may temporarily set modalities for material reception conditions different from those provided for in Articles 16 and 17 of that Directive in relation to applicants apprehended or found in the proximity of the border with the third country instrumentalising migrants in connection with an unauthorised crossing or who have presented themselves at the border crossing points, and are subject to the measures in Article 2 of this Regulation, provided these Member States cover the applicants’ basic needs, in particular food, water, clothing, adequate medical care, and temporary shelter adapted to the seasonal weather conditions, and in full respect of human dignity.

Article 4 - Emergency return management procedure in a situation of instrumentalisation of migrants

In a situation of instrumentalisation of migrants, and in accordance with the procedure laid down in Article 6, the Member State faced with the arrival of third-country nationals or stateless persons at its external border as a consequence of a situation of instrumentalisation of migrants may, in respect of third-country nationals or stateless persons who do not fulfil the conditions of entry and whose applications were rejected in the context of the emergency asylum management procedure at the border in accordance with Article 2(1) points (b) and (c), and who have no right to remain and are not allowed to remain, decide not to apply 41a of Regulation (EU) XXX/XXX [Asylum Procedure Regulation] and Directive XXX/XXX [Return Directive recast]. Where resorting to this derogation, the Member State concerned shall:

(a)respect the principle of non-refoulement and take due account of the best interests of the child, family life and state of health of the third country national concerned as set out in Article 5 of Directive XXX/XXX [the Return Directive recast];

(b)ensure that their treatment and level of protection are no less favourable than as set out in Article 10(4) and (5) (Limitations on use of coercive measures)] Article 11(2)(a) – (postponement of removal), Article 17(1)(b) and (d) [emergency health care and taking into account needs of vulnerable persons], and Articles 19 and 20 [conditions for detention and detention of minors and families] of Directive XXX/XXX [Return Directive recast].

Article 5 - Support and solidarity measures

1. Where a Member State is facing a situation of instrumentalisation of migrants, it may request support and solidarity measures from other Member States in order to manage that situation. Support and solidarity contributions for the benefit of a Member State facing a situation of instrumentalisation of migrants may include the following types of contributions:

(a)capacity-building measures in the field of asylum, reception and return; 

(b)operational support in the field of asylum, reception and return;

(c)measures aimed at responding to instrumentalisation situation, including specific measures to support return, through cooperation with third countries or outreach to third countries whose nationals are being instrumentalised; or

(d)any other measure considered adequate to address the instrumentalisation situation and support the Member State concerned.

2. The Member State facing a situation of instrumentalisation shall send a request to the Commission for support and solidarity contributions from other Member States specifying the solidarity measures requested.

3. Without prejudice to the solidarity provisions of Regulation (EU) XXX/XXX [Crisis and force majeure Regulation], the Commission, as soon as possible after receiving the request for support and solidarity measures as referred to in paragraph 2, shall invite other Member States to contribute by means of the support and solidarity measures referred to in paragraph 1 that correspond to the needs of Member State facing a situation of instrumentalisation. The Commission shall coordinate the support and solidarity measures referred to in this Article.

4. A Member State facing a situation of instrumentalisation of migrants may request support from the EU Asylum Agency, from the European Border and Coast Guard Agency, or from Europol in accordance with their mandates. As appropriate, the EU Asylum Agency may propose assistance on its own initiative in accordance with Article 16(1)(d) of Regulation XXX/XXX [EUAA Regulation]. The European Border and Coast Guard Agency may propose assistance in the area of return in accordance with Articles 48, 50, 52 and 53 of Regulation (EU) 2019/1896 to the Member State concerned. Europol may propose assistance in the area of law enforcement cooperation in accordance with Article 6(1) of Regulation (EU) 2016/794.

Article 6 - Specific guarantees

1. Where applying the derogations referred to in Articles 2, 3 and 4, the Member State concerned shall duly inform third-country nationals or stateless persons in a language which the third-country national or stateless person understands or is reasonably supposed to understand about the measures applied, the location of the registration points, including the border crossing points, accessible for registering and lodging an application for international protection, and the duration of the measures.

2. The Member State facing a situation of instrumentalisation of migrants shall not apply Articles 2, 3 and 4 longer than what is strictly necessary to address the situation of instrumentalisation of migrants, and in any case, no longer than the period set out in the Council Implementing Decision referred to in paragraph 4 of Article 7.

CHAPTER III

Procedural rules

Article 7 - Authorisation procedure

1. A Member State faced with the arrival of third-country nationals or stateless persons at its external border as a consequence of a situation of instrumentalisation of migrants, may request the authorisation to apply the derogations provided for in Articles 2, 3 and 4.

2. Where the Commission considers it appropriate, on the basis of the information provided by the requesting Member State facing a situation of instrumentalisation of migrants, the Commission shall, without delay, make a proposal for a Council Implementing Decision referred to in paragraph 3.

3. The Council shall assess this proposal as a matter of urgency and adopt an Implementing Decision authorising the Member State concerned to apply the specific derogations provided for in Articles 2, 3 and 4.

4. The Council Implementing Decision referred to in paragraph 3 shall set the date from which the rules laid down in Articles 2, 3 and 4 may be applied, as well as the time period for their application, which shall not exceed an initial period of six months.

5. The Commission shall keep the situation of instrumentalisation of migrants under constant monitoring and review. Where the Commission considers it appropriate, it may propose the repeal of the Council Implementing Decision referred to in paragraph 3 or the adoption of a new Council Implementing Decision authorising the prolongation of the application of the specific derogations referred to in Articles 2, 3 and 4 for a period, which shall not exceed six months. The Member State concerned shall provide the Commission specific information needed for it to carry out this review and to make the proposal for repeal or prolongation as well as any other information the Commission may request.

Article 8 - Cooperation and assessment

1. The Commission, relevant European Union institutions and agencies and the Member State facing a situation of instrumentalisation of migrants shall closely cooperate and regularly inform each other on the implementation of the derogations and measures referred to in Article 7. The Member State concerned shall continue reporting all relevant data including statistics that are relevant for the implementation of this Regulation, via the EU Migration Preparedness and Crisis Management Network.

2. The Member State facing a situation of instrumentalisation of migrants shall ensure close cooperation with the United Nations High Commissioner for Refugees and relevant partner organisations to determine the modalities for support to applicants in the instrumentalisation situation in line with the rules set out in this Chapter and in Regulation (EU) XXX/XXX [Asylum Procedure Regulation] and Directive XXX/XXX [Reception Conditions Directive recast].

CHAPTER IV

Final provisions

Article 9 - Entry into force

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.