The European Parliament has voted on ten legal acts, totaling more than 900 pages long, which together form the Common European Asylum System (CEAS). Four acts and two additions make up the political core of the reform, which has been fought over for years. The screening regulation determines how all third-country nationals without entry authorization must be registered at the EU borders in the future. The Asylum Procedure Ordinance defines the new fast-track procedure at the border that people with a low probability of recognition must undergo. It also regulates the circumstances under which asylum applications may be rejected and applicants may be returned to safe third countries.
The Asylum and Migration Management Regulation replaces the previous Dublin Regulation. It describes the new solidarity mechanism to relieve states in pressure situations. If a crisis escalates, the rules will be tightened in accordance with the new crisis regulation. The four other legal texts are more technical in nature. The Eurodac Regulation expands the data collection of asylum seekers. The admission guidelines stipulate minimum standards for admission conditions. The Recognition Ordinance states which criteria asylum seekers must meet in order to receive protection status. Another regulation sets the framework for the resettlement and humanitarian reception of those in need of protection. These last three regulations were already agreed upon in the previous legislative period, but were never voted on because an overall package was supposed to be put together.
As expected, the result in the parliament in Brussels was close. Large numbers of Christian Democrats, Social Democrats and Liberals voted for the sensitive legal acts, while left and right radicals and Greens voted against them. The narrowest majority was for the crisis regulation with only 29 votes in a parliament with 705 seats. Six MPs from Giorgia Meloni’s right-wing nationalist Brothers of Italy party also voted for this legal act. In contrast, the twelve MPs from Donald Tusk’s Polish Civic Platform, which belongs to the EPP, rejected all legal acts. Among the Social Democrats, around thirty MPs voted against the core of the reform, including many Italians and some from the German Social Democrats. Member states gave their consent at the end of last month. You then have two years to implement the essential provisions.
Every person who enters the territory of the EU states without permission will in future have to be registered according to a uniform system. Identity, health, vulnerability and whether there is a risk to security are checked. This also applies to people who have crossed the border illegally and are picked up by security forces. From a legal point of view, they are also considered not to have entered the country and must be accommodated in closed facilities. The screening must be completed after seven days at the external border and after three days inside the country. Member States must set up an independent mechanism to monitor fundamental rights.
After screening, all asylum seekers from countries with a recognition rate of less than 20 percent must go through a rapid procedure under prison-like conditions. This already exists at airports today; in the future, the member states will have to set up 30,000 spaces for this. The recognition rate is based on the average of first instance decisions in all member states. For example, it is currently below the 20 percent threshold for Albanians, Indians, Tunisians and Colombians, and above it for Afghans, Syrians, Turks and Somalis. Asylum seekers from these countries are allowed to enter the country and begin a regular asylum procedure. This also applies to unaccompanied minors, regardless of their origin, as long as they do not pose a security risk. For families with children, however, there is no blanket exception, as Germany wanted to enforce. The border procedure takes up to 12 weeks. If no decision has been made by then, the people will also be allowed to enter. If the application for protection is rejected, those affected must remain in closed facilities for a further 12 weeks. During this time they should be deported.
Member States can reject asylum applications as inadmissible if the applicants have a sufficient connection to a safe third country. This is particularly true if family members are in the state or the applicant has lived there for a long time. Courts will have to decide whether transit alone on the way to Europe gives rise to such status. The Rwanda model, in which asylum seekers are allowed to be taken to a country with which they have no connection whatsoever, is definitely excluded. The EU will create a common list of safe third countries, which will then be binding for all member states. In addition, the member states may continue to designate their own safe third countries as long as the EU Commission does not object to this. Safe third countries must effectively protect fundamental rights, provide minimum social security and access to health services and education; they do not have to have ratified the Geneva Refugee Convention. A country can be classified as safe even if protection is not guaranteed for all groups of people or throughout its entire territory.
So far, EU states have only deported around one in five rejected asylum seekers. The EU Commission expects this rate to double in the next five years with the new reform. On the one hand, this expectation is based on the countries of origin working better with the EU and concluding further return agreements. A positive example is Iraq, which for a long time did not take back its own nationals, but is now cooperating extensively. On the other hand, deportations will be made easier by the new regulations. This applies in any case to the border return procedure – people can no longer go underground as long as they are in closed facilities. They may also be deported before they have exhausted the legal process. Deportations will also be made easier in the regular asylum procedure because in future an exit notice will automatically have to be issued with every rejection notice. So far, the examinations of the right to asylum and the right of residence have been decoupled, which allows for multiple challenges and thus prolongs the process. Applicants are entitled to free legal advice at all stages of the asylum procedure, and also to individual legal counsel during the appeal phase.
In principle, it remains the case that the countries of first entry are responsible for examining an asylum application. The jurisdiction period is even extended from 12 to 20 months after entry, with the exception of sea rescue cases. However, states should in future be relieved by a binding solidarity mechanism if they come under “migration pressure”. The EU Commission decides on this on the basis of an annual report. It also names necessary solidarity measures to relieve the burden on states. This can be the acceptance of asylum seekers according to a fixed key or a financial contribution, but also logistical support from border officials or a contribution to increase reception capacities in third countries. The benchmark for the so-called solidarity pool is 30,000 relocations or 600 million euros in financial compensation, i.e. 20,000 euros per asylum seeker, which a state does not cover. However, the Commission can also demand more if necessary. The value of “alternative solidarity measures” must be negotiated between states. If asylum seekers have already traveled on to other countries, they show their solidarity by processing these applications instead of taking in more people. This is intended to protect the interests of states like Germany, which are affected by high levels of secondary migration.
If a pressure situation escalates into a crisis, exceptions and special regulations apply. They are set out in the Crisis Ordinance, a completely new legal act that states have fought for for a long time. It applies when a large number of people enter the EU at once, in cases of force majeure, such as in a pandemic, and in the case of instrumentalization of migrants, such as those used by Belarus and Russia against EU states that border them. A state could also claim instrumentalization if aid organizations act as “hostile non-state actors” to “destabilize” the Union.
The EU Commission determines whether such a case exists at the request of the affected states. It then also determines which exceptions the state can make and what solidarity contributions the other states have to make to it. Member states can be given four weeks to accept asylum applications and examine applicants. The border procedure and the border return procedure can each be extended by 6 weeks. In addition, in the case of instrumentalization, all applicants can be transferred to the border procedure, in other cases applicants with a protection rate of up to 50 percent.
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