Considerations on COM(2021)890 - Addressal of situations of instrumentalisation in the field of migration and asylum - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)890 - Addressal of situations of instrumentalisation in the field of migration and asylum. |
|---|---|
| document | COM(2021)890  |
| date | December 14, 2021 |
(2) This Regulation follows the invitation of the European Council to the Commission in its conclusions of 22 October 2021 to propose any necessary changes to the Union’s legal framework and concrete measures to ensure an immediate and appropriate response to the hybrid threat in line with Union law and international obligations. Furthermore, it contributes to establishing a comprehensive and permanent framework to equip the Member States concerned with the necessary tools to respond effectively and swiftly to an instrumentalisation situation in full respect of fundamental rights and international obligations.
(3) One of those tools in this Regulation is the introduction of an emergency migration and asylum management procedure providing the possibility for Member States to have recourse to legal tools to face future situations of instrumentalisation of migrants.
(4) This Regulation respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular Articles 1, 4, 7, 24, 18 and 19(2) and (2) thereof as well as the Geneva Convention of 28 July of 1951. In order to reflect, in particular, the primary consideration that must be given to the best interests of the child, the need to respect family life, and to ensure the protection of the health of the persons concerned, this Regulation provides for specific rules and safeguards applying in respect of unaccompanied minors and minors and their family members, and of applicants whose state of health requires a specific and adequate support. The rules and guarantees set out in Regulation (EU) XXX/XXX 19 [Asylum Procedure Regulation] should continue to apply in respect of persons subject to the asylum emergency management procedure, except where this Regulation provides otherwise. The rules set out in Directive XXX/XXX [Reception Conditions Directive recast] 20 , including those concerning the detention of applicants for international protection, should continue to apply, from the moment an application for international protection is made, except where this Regulation provides otherwise.
(5) To assist the Member State facing an instrumentalisation situation with the orderly management of the flows, under the emergency asylum management procedure, it should be possible for the Member State concerned to decide in relation to third-country nationals or stateless persons that have been apprehended or found in the proximity of the external border with the third country instrumentalising migrants after an unauthorised crossing or who have presented themselves at border crossing points, to register applications for international protection only at specific registration points designated for this purpose situated in the proximity of the border, and provide an effective possibility for lodging an application for international protection only at the specific points that have been designated for such purposes and which should be easily accessible. An effective and genuine access to the international protection procedure must be ensured in accordance with Article 18 of the Charter of Fundamental Rights of the European Union and the Geneva Convention of 28 July of 1951. To this end, the Member State concerned should ensure that sufficient registration points, which may include border crossing points, are designated and open for such purpose. Applicants should be duly informed about the locations where their application will be registered and can be lodged.
(6) In a situation of instrumentalisation of migrants, it is essential to prevent the entry of those who do not fulfil entry conditions, while ensuring the protection of fundamental rights. In order to ensure that the Member State facing such a situation has the necessary flexibility and avoid that a hostile third country targets specific nationalities or specific categories of third-country nationals or stateless persons, it should be possible under the emergency migration and asylum management procedure set out in this Regulation for the Member State concerned to take a decision in the framework of the border procedure, as set out in Article 41 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation] on admissibility and the merits of all applications for international protection by third-country nationals or stateless persons apprehended or found in the proximity of the border with the third country after an unauthorised crossing or who presented themselves at border crossing points. The principles and guarantees set out in Regulation (EU) XXX/XXX [Asylum Procedure Regulation] have to be respected.
(7) Where the emergency asylum management procedure is applied, the best interests of the child and the safeguards for applicants with medical conditions should be a primary consideration for the competent authorities. For this reason, the Member State facing a situation of instrumentalisation should exclude from the emergency asylum management procedure cases where there are medical reasons for not applying the border procedure in line with Article 41(9)(c) of Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. This should also be the case if the health problems become apparent during the examination of the application. The Member State concerned should also prioritise the examination of applications from persons whose claims are likely to be well-founded or from minors and their family members, as well as from unaccompanied minors. If during the screening under Regulation (EU) XXX/XXX [Screening Regulation] 21 or the examination of the application it becomes apparent that an applicant is in need of special procedural guarantees and adequate support cannot be provided in the context of the procedure at the border, in accordance with Article 41(9)(b) of Regulation (EU) XXX/XXX [Asylum Procedure Regulation], the Member State concerned should not apply, or cease to apply, the emergency asylum management procedure at the border.
(8) In accordance with Article 8(3)(d) of Directive XXX/XXX [Reception Conditions Directive recast], an applicant may be detained in order to decide, in the context of a procedure, on the applicant’s right to enter the territory. Article 8(2) of that Directive also provides that Member States may detain an applicant only, if other less coercive alternative measures – like restrictions to freedom of movement under its Article 7 – cannot be applied effectively. The rules and safeguards regarding detention set out in Directive XXX/XXX [Reception Conditions Directive recast], in particular those concerning unaccompanied minors, minors and their families should be respected. Alternatives to detention, such as restrictions in the freedom of movement in accordance with Article 7 of Directive XXX/XXX [Reception Conditions Directive recast], may be as effective as detention in a situation of instrumentalisation of migrants and should therefore be considered by the authorities, particularly for minors. In any case, if detention is applied and the guarantees and conditions for detention are not met or cannot be met at the border, the emergency asylum management procedure should not apply or should cease to apply, as foreseen in Article 41(9)(d) of Regulation (EU) XXX/XXX [Asylum Procedure Regulation].
(9) In a situation of instrumentalisation of migrants, it should be possible for the Member State concerned to register applications for international protection within an extended period of four weeks. In addition, it should be possible to examine applications for international protection at the border for a maximum duration of sixteen weeks. If the decision on the application, including a decision on a possible appeal against a negative decision, which should not have automatic suspensive effect, is not taken within the sixteen weeks, entry to the territory should be granted, unless the person is subject to the return procedure. These procedural timelines are conceived to help the Member State concerned to deal with the situation of instrumentalisation of migrants. When confronted with such a situation, the Member State concerned need to divert resources to manage the third country nationals arriving at its borders or that are already present in its territory. As a result, in such situations, the Member State concerned may need time to reorganise their resources and increase their capacity, including with the support of the EU agencies. Furthermore, the number of applicants under the border procedure will be higher than under normal circumstances, and therefore the Member State facing a situation of instrumentalisation may need more time to be able to take decisions without allowing entry into the territory. However, the Member State concerned should prioritise the registration of applications of well-founded cases and unaccompanied minors and minors and their family members.
(10) Any violent acts at the border must be avoided at all costs, not only to protect the territorial integrity and security of the Member State facing a situation of instrumentalisation but also to ensure the security and safety of the third-country nationals or stateless persons, including families and children that are awaiting their opportunity to apply for asylum in the Union peacefully. Where the Member State concerned is confronted at its external border with violent actions, including in the context of attempts by third country nationals to force entry en masse and using disproportionate violent means, the Member State concerned should be able to take the necessary measures in accordance with their national law to preserve security, law and order, and ensure the effective application of this Regulation.
(11) Where a Member State is faced with a flow of third-country nationals or stateless persons at the border due to instrumentalisation, it might not be possible for the Member State in practice to ensure the material reception conditions normally required as the Member State’s capacities might be overstretched. For this reason, in a situation of instrumentalisation, the Member State concerned should be able to set modalities for material reception conditions that differ from those provided for in Directive XXX/XXX [Reception Conditions Directive recast] in cases other than those referred to in Article 17(9) of that Directive, while providing third-country nationals and stateless persons with temporary shelter which should be adapted to seasonal weather conditions and covering their basic needs, in particular by providing food, water, clothing, adequate medical care, and assistance to vulnerable persons, in full respect of the right to human dignity. Without prejudice to the obligations set in that regard upon Member States by this Regulation, Member States should also ensure access and allow for the provision of humanitarian assistance by the humanitarian organisations in line with the existing needs of the persons concerned.
(12) In order to complement and ensure full coherence with the emergency asylum management procedure at the external border, the competent authorities of the Member State facing a situation of instrumentalisation of migrants should be provided with the necessary flexibility to carry out return procedures, following the application of an emergency asylum management procedure. For this reason, in a situation of instrumentalisation, the Member State concerned should be allowed to derogate from the application of Directive XXX/XXX [Return Directive recast] 22 in relation to third-country nationals and stateless persons whose application for international protection was rejected in the context of an emergency asylum management procedure as set out in this Regulation. Where a subsequent application is made merely to delay or frustrate the return, it is possible for Member States to apply the rules set out in Articles 42 and 43 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. The rules set out in this Regulation are without prejudice to the possibility for Member States to derogate from the application of Directive XXX/XXX [Return Directive recast] by virtue of Article 2(2)(a) of that Directive, in relation to illegally staying third-country nationals or stateless persons apprehended in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or right to stay in that Member State.
(13) When applying the derogation to the application of Directive XXX/XXX [Return Directive recast], the Member State concerned should ensure full respect of the Charter of Fundamental Rights of the European Union and their international obligations. This includes full respect of the principle of non-refoulement and taking due account of the best interests of the child, family life and the state of health of the third-country national concerned as otherwise set out for derogations in the Return Directive. The Member State also needs to ensure that the treatment and level of protection in relation to limitations on the use of coercive measures, postponement of removal, emergency health care and needs of vulnerable persons and detention conditions, are no less favourable than those set out in Directive XXX/XXX [Return Directive recast].
(14) Where a Member State applies one or more of the measures in this Regulation, the Member State should inform third-country nationals and stateless persons thereof. In particular, the Member State facing a situation of instrumentalisation should 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 derogations applied, the points accessible for registering and lodging an application for international protection, in particular the location of the nearest points where their application can be registered and lodged, the possibility to appeal the decision on the application, and the duration of the measures.
(15) In case of instrumentalisation of migrants, the Member State facing a situation of instrumentalisation should have the possibility to request from other Member States support and solidarity measures that are most suited to its needs to manage the instrumentalisation situation. The support and solidarity measures could take all forms to address the situation of instrumentalisation, including capacity-building measures, support for return and support on the external dimension of the crisis and measures aimed at responding to instrumentalisation situation through cooperation with third countries or outreach to third countries whose nationals are being instrumentalised.
(16) The other Member States which are not themselves facing a situation of instrumentalisation should be invited to contribute for the benefit of a Member State facing a situation of instrumentalisation by means of support and solidarity measures corresponding to the needs identified. The Commission should coordinate those support and solidarity measures as soon as possible after receiving the request from the Member State facing a situation of instrumentalisation.
(17) A Member State facing a situation of instrumentalisation of migrants may request support from the EU Asylum Agency, the European Border and Coast Guard Agency or Europol in accordance with their mandates. As appropriate, the Asylum Agency may propose assistance on its own initiative in accordance with Article 16(1)(d) of Regulation XXX/XXX [EUAA Regulation], whereas the European Border and Coast Guard Agency may propose assistance in the field of return in accordance with Articles 48, 50, 52 and 53 of Regulation (EU) 2019/1896 in agreement with the Member State concerned and Europol may propose assistance in accordance with Article 6(1) of Regulation (EU) 2016/794.
(18) If the application of the relevant derogations set out in this Regulation is requested by the Member State concerned, and taking into account whether the European Council has acknowledged that the Union or one or more of its Member States are facing a situation of instrumentalisation of migrants, the Commission should, where appropriate, bring forward a proposal authorising a Member State to apply the derogatory rules provided for in this Regulation. To ensure a high level of political scrutiny and support and to reinforce the expression of the Union’s solidarity towards the Member State facing an instrumentalisation of migrants, implementing powers should be conferred upon the Council. Therefore, the Implementing Decision authorising the Member States to apply derogatory rules should be adopted by the Council.
(19) The Council Implementing Decision should include an authorisation of the specific derogations that the Member State facing a situation of instrumentalisation of migrants could apply, and set the date from which they should apply, as well as their duration.
(20) In order to support the Member State concerned in providing the necessary assistance to third country nationals falling under the scope of this Regulation, including by promoting voluntary return activities or by carrying out their humanitarian duties, UN agencies and other relevant partner organisations, in particular the International Organization for Migration and the International Federation of Red Cross and Red Crescent Societies, should have effective access to the border under the conditions set out in the Directive (EU) XXX/XXX [Reception Conditions Directive recast] and Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. In accordance with Regulation (EU) XXX/XXX [Asylum Procedure Regulation], the United Nations High Commissioner for Refugees should be allowed access to applicants, including those at the border. To this end, the Member State concerned should work in close cooperation with UN agencies and relevant partner organisations.
(21) [In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.]
OR
[In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified (by letter of …) its wish to take part in the adoption and application of this Regulation.]
(22) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.