Explanatory Memorandum to COM(2021)752 - Provisional emergency measures for the benefit of Latvia, Lithuania and Poland - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)752 - Provisional emergency measures for the benefit of Latvia, Lithuania and Poland. |
|---|---|
| source | COM(2021)752  |
| date | 01-12-2021 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Contents
The European Council Conclusions of 21 and 22 October 2021 underlined the EU’s non‑acceptance of any attempt by third countries to instrumentalise migrants for political purposes. Leaders committed to continue countering the ongoing hybrid attack launched by the Belarusian regime. They also recalled the need to ensure effective returns and full implementation of readmission agreements and arrangements, using the necessary leverage. They stated that the European Union remained determined to ensure effective control of its external borders. In this context, the European Council invited the Commission to propose any necessary changes to the EU’s legal framework and concrete measures underpinned by adequate financial support to ensure an immediate and appropriate response in line with EU law and international obligations, including the respect for fundamental rights.
In view of Latvia, Lithuania and Poland being confronted with an emergency situation characterised by a sudden inflow of nationals of third countries which have been instrumentalised by Belarus for political purposes, among the concrete measures being envisaged, the Commission is bringing forward a proposal for provisional emergency measures based on Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). It also responds to a request by the impacted Member States to be able to rely on provisional measures to address the emergency migratory situation at the EU’s external borders effectively. This is thus a response to the hybrid attack on the EU as a whole.
Belarus has been challenging the Union, especially Latvia, Lithuania and Poland, by action resulting in an unprecedented increase in irregular border crossings from Belarus. While recent years saw almost no attempts to cross the external borders illegally from Belarus into the EU, since the summer of 2021, the number of illegal crossing has been steadily increasing. These actions constitute a hybrid attack that show a determined attempt to create a continuing and protracted crisis as part of a broader concerted effort to destabilise the European Union and undermining society and key institutions. These actions represent a real threat and present danger to the Union’s security.
The objective of the proposal is to support Latvia, Lithuania and Poland by providing for the measures and operational support necessary to manage in a humane, orderly and dignified manner, fully respectful of fundamental rights, the arrival of persons being instrumentalised by Belarus. The proposal complements diplomatic efforts and other measures adopted by the Union to respond to this hybrid attack.
This instrumentalisation of migrants by Belarus has resulted in a grave situation for these people in the European Union-Belarus border region. Belarus’ actions have created a humanitarian crisis, with a number of fatalities already confirmed. The primary responsibility for addressing this crisis lies with Belarus. It is bound by the Geneva Convention, including the principle of non-refoulement, and it joined the Global Compact. Therefore, while the EU will continue to contribute to humanitarian aid for those in need on Belarus territory, Belarus must provide for adequate protection of the refugees on its territory and cooperate with the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) to this end. The Commission and the European External Action Service have been working very closely with the United Nations and its specialised agencies and with relevant human rights organisations in order to prevent a humanitarian crisis from further unfolding, also in view of deteriorating weather conditions.
Because of this instrumentalisation, in 2021 as of 21 November, 7 831 third country nationals have entered the territories of Latvia, Lithuania and Poland from Belarus in an unauthorised manner, compared to 257 in the entire 2020. In addition, there have been 2 676 asylum applications in Lithuania, 579 applications in Latvia and 6 730 applications in Poland. In addition, 42 741 attempts to cross have been prevented by the three Member States. While an exact estimate would be difficult to give, up to 10 000 more migrants may be currently stranded in Belarus with further arrivals on a daily basis.
As a result, Latvia, Lithuania and Poland have declared a state of emergency. Despite all Union and Member States’ efforts, the situation has continued to deteriorate. Third-country nationals continue to seek to enter into the territories of Latvia, Lithuania and Poland from Belarus and despite current improvements, the situation remains very volatile.
Following the notification in June by Lithuania, the Commission established a regular monitoring mechanism through the Migration Preparedness and Crisis Management Network (the “Migration Blueprint Network”) in accordance with Commission Recommendation (EU) 2020/1366 of 23 September 2020 on an EU mechanism for preparedness and management of crises related to migration 1 . Within this framework, the affected Member States, the European External Action Service, relevant EU Agencies and Commission services have shared data, information and insight, which are reported regularly.
The European Union is supporting the Member States that are being targeted by the Belarusian regime. Since the start of the crisis, the Commission has worked to operationalise the Union’s solidarity with Latvia, Lithuania and Poland and granted emergency financial assistance of EUR 36 million to Lithuania in July. In addition to the EUR 360 million foreseen for these Member States under the Border Management and Visa Instrument (BMVI) for this financial period, the Commission has also made available a further top-up of around EUR 200 million for 2021 and 2022.
In addition, Lithuania activated the EU Civil Protection Mechanism on 15 July 2021, and the Commission has been coordinating assistance from 19 Member States. Through the Mechanism, Lithuania has received tents, beds, heating systems and other items crucial to attend to the needs of the migrants present in the territory of Lithuania. This option remains open to Latvia and Poland.
Another important aspect has been the operational support from EU agencies. Upon request by Lithuania, from the start of this crisis, the EU deployed assistance immediately. Operational support by the European Asylum Support Office (EASO) has been provided to Latvia and Lithuania to help them cope with the situation of instrumentalisation. EASO has notably assisted with the handling of asylum applications, reception management and interpretation. The European Border and Coast Guard Agency (Frontex) and Europol have also been providing support to the Member States who requested their assistance. In particular, EU agencies have deployed experts to carry out border control and intelligence measures and have been working to reinforce return capacity and carry out return operations. This support has already resulted in substantial numbers of return operations. Today, the support includes over 111 border guards, over 82 asylum experts, and two Europol guest officers. The agencies can now continue to step up operational support and it is important for the three Member States to make full use of that support.
This financial and operational support has been underpinned by foreign policy actions aimed at addressing the instrumentalisation of migrants and curtailing arrivals and taken in the context of the on-going standoff with Belarus after the fraudulent presidential elections in August 2020, followed by wide spread and increasing repressions of the Lukashenko regime against their own people and the forced landing of the Ryanair flight. In addition to the comprehensive package of economic and financial sanctions and the ban on flights through EU airspace and on access to EU airports by Belarusians carriers as a reaction to the fraudulent elections and the Ryanair flights diversion, the Union has taken additional measures as a specific response to the instrumentalisation of migrants by Belarus. On 9 November 2021, the Council adopted the Commission proposal on the partial suspension of the EU-Belarus Visa Facilitation Agreement. On 15 November 2021, the Council amended the EU sanctions regime regarding Belarus and the Union is now also able to target both individuals and entities organising or contributing to activities that facilitate illegal crossing of the EU’s borders. The Council has also reached political agreement on a fifth package of listings. On 23 November 2021, the Commission tabled a proposal to prevent and restrict the activities of transport operators that engage in or facilitate smuggling or trafficking of people into the EU.
The Commission, High Representative for Foreign and Security Policy and the Member States have also undertaken intense diplomatic efforts towards the main countries of origin and of transit to prevent further arrivals of nationals of these countries through Belarus. This has included outreach to third countries to counter Belarusian disinformation, and to get support for the return and readmission of their own nationals. The outreach has also included direct contacts with airlines and civil aviation authorities to explore ways to help limit non bona fide travel to Belarus.
These measures have brought rapid results, but the situation at the border remains very fragile with Belarus continuing to instrumentalise migrants who continue to arrive at the Union’s external borders. Vigilance and preparedness to react quickly to new developments are key.
As well as continuing to assist the Member States concerned both operationally and financially, the Union should equip the Member States concerned with the legal tools needed to react swiftly in defence of their national security and that of the Union. These measures should complement those taken by the Union and Member States concerned. Under Article 78(3) TFEU, the Council has a broad discretion in the choice of the measures it takes if these respond rapidly and efficiently to a particular emergency. These measures can evolve and adapt if they retain their provisional nature.
The measures included in this proposal allow the Member States concerned to manage the situation in a controlled and effective way with full respect for fundamental rights and international obligations as highlighted in the European Council call to the Commission.
The provisions go further than those foreseen in the Asylum Procedures Directive 2013/32/EU in the event of arrivals involving a large number of third country nationals or stateless persons and aim to cater for the specific situation of instrumentalisation of migrants, without undermining the right to asylum or the principle of non-refoulement.
The provisions of the Asylum Procedures Directive are not designed to deal with situations where the Union’s integrity and security is under attack as a result of the instrumentalisation of migrants. For this reason, this proposal sets a temporary emergency migration and asylum management procedure tailored to the needs of the Member States concerned in the current situation. The emergency migration and asylum management procedure and the other measures in this Decision aim to help the Member States concerned to take the steps necessary to respond effectively to the hostile actions of the third country in line with the Union’s fundamental values.
Lithuania, Latvia and Poland have intensified border surveillance and other border control measures to protect the Union’s integrity and security. They must in addition manage the third-country nationals arriving at their borders. As part of these measures, these Member States have been forced by the current circumstances to limit the number of border crossing points open and have deployed a significant number of border guards along the green border.
The measures included in this Decision are of a temporary, extraordinary and exceptional nature, and will complement border control measures with specific measures in the area of asylum and return. Given the current situation and taking into account the fact that the Union’s concerted actions have started to bring results in reducing arrivals, these measures should be applicable for a period of six months. This period is considered sufficient to allow the Member States concerned to effectively manage the exceptional situation. Before the expiry of this six-month period, the Commission will regularly reassess the situation and may propose to the Council to prolong or repeal the application of the measures in this proposal.
The emergency migration and asylum management procedure established in this proposal foresees specific procedural provisions for the registration and lodging of applications of international protection, longer registration deadlines and the possibility to decide at the border or at transit zone on the admissibility or substance of all applications, except where specific vulnerabilities cannot be catered for. It also foresees specific provisions for return and material reception conditions. These measures are accompanied by a series of safeguards. In all other aspects, the Asylum Procedures Directive, and in particular the guarantees foreseen in Chapter II of the Directive, apply.
The proposal also includes an operational support Chapter in view of a possible stepping up of the support by the EU agencies upon request of the three Member States concerned.
• Consistency with existing policy provisions in the policy area
This proposal is fully consistent with the New Pact on Migration and Asylum adopted in September 2020 and the accompanying legislative proposals.
• Consistency with other Union policies
This proposal is consistent with the need to sustain a reduced pressure from irregular arrivals and maintain strong external borders in line with the comprehensive approach set out in the New Pact on Migration and Asylum. It complements the Schengen Borders Code and the upcoming Schengen reform, in which the Commission intends to propose a permanent framework for addressing possible situations of instrumentalisation that may still confront the Union in the future. It also aims to reduce onward movements of irregular migrants and stress on the Schengen area. Swift and effective return and readmission are effectively addressed in a situation of instrumentalisation, in line with the comprehensive approach to migration management set out in the New Pact on Migration and Asylum. It is also consistent with, and should be used in parallel to, the Union’s external action, such as EU restrictive measures. This proposal is part of a comprehensive set of EU actions to counter the hybrid attack and artificially created migratory pressure at the EU borders.
2. LEGAL ELEMENTS OF THE PROPOSAL
Emergency migration and asylum management procedure at the external borders
Faced with a hybrid attack, Latvia, Lithuania and Poland have been forced to restrict to the minimum the border traffic by limiting the number of border crossing points open with a view to preventing unauthorised entry and protecting their national security and territorial integrity.
However, many migrants are still stranded in the territory of the three Member States concerned and the situation remains volatile on the Belarusian side of the border with irregular arrivals still continuing to come. To ensure a coherent approach with the border control measures in the current emergency situation and allow Latvia, Lithuania and Poland to manage the current flows but also the people already present in their territories, this proposal sets up an emergency migration and asylum management procedure in relation to third-country nationals apprehended or found in the vicinity of the border with Belarus after an unlawful entry or after having presented themselves at border crossing points.
(a)Asylum procedure at the external borders
The main features of this procedure are:
·Possibility for the Member States concerned to register an asylum application and offer the possibility for its effective lodging only at specific registration points located at the vicinity of the border including the border crossing points designated for that purpose
Under this procedure, it should be possible for the Member States concerned to require that the registration and lodging of applications for international protection take place at specific registration points located at the vicinity of the border, which may also include the border crossing points designated for that purpose. This would allow a more orderly management of the flows and is also in accordance with the possibilities already offered by the Asylum Procedures Directive.
Under Article 6(3) of the Asylum Procedures Directive, a Member State may require that applications for international protection be lodged at a designated place. However, the Directive does not specify where the registration shall take place. Article 6(1) of the Directive only requires that when a person makes an application for international protection, the application must be registered. Member States can therefore designate specific registration points, which may include border crossing points, as the place for registering and lodging an application for international protection. Under Article 6(2) Member States shall ensure that applicants have an effective opportunity to lodge an application made as soon as possible. For this reason, and to ensure a genuine and effective access to the asylum procedure, Latvia, Lithuania and Poland must ensure that a sufficient number of registration points, including border crossing points, are designated and open for such purpose and that the applicants receive information about the location of the nearest points where their application can be lodged.
·Registration deadline extended to up to four weeks
The specific asylum procedure at the external borders provides that the registration deadline for applications for international protection would be up to four weeks (as opposed to the Asylum Procedures Directive which sets three or six days and in case of mass influx up to 10 days).
Latvia, Lithuania and Poland may need this flexibility to respond effectively to the hostile actions by Belarus whilst enabling them to managing the sudden inflow given the instrumentalisation situation and hybrid attack by Belarus.
Given the sudden and unforeseeable interference/intervention by Belarus, the Member States concerned need to deviate resources to protect their territorial integrity in addition to managing the third-country nationals arriving at their borders. As a result, the Member States concerned may need time to reorganise their resources and increase their capacity, including with the support of the EU agencies.
If Member States make use of the longer registration deadline, they shall prioritise the registration and the examination of applications that are likely to be well-founded or lodged by minors and their family members.
·Possibility to apply the accelerated procedure at the border for all applications
In the current situation, the measures should support the Member States concerned in protecting their territorial integrity and preventing the entry of those who do not fulfil entry conditions, while protecting the fundamental rights. The possibility to examine an application at the border without authorising entry to the territory in accordance with Article 43 of the Asylum Procedures Directive offers this kind of protection but under the current rules, the merits of applications may be examined in a border procedure only in a limited set of circumstances. Although this could be the case, under certain conditions, for applicants who entered the territory unlawfully, this Decision extends this possibility to all applicants by not excluding any category of applicants.
The proposal allows, under the specific asylum procedure, Latvia, Lithuania and Poland to apply the accelerated border procedure to decide on the admissibility and substance of all applications, except where adequate support for applicants with particular health issues cannot be provided. This measure will limit the possibility for Belarus to target for instrumentalisation third-country nationals to whom the border procedure cannot be applied. As provided for in the Asylum Procedures Directive and explicitly stated in this proposal, during the border procedure the basic principles and guarantees of Chapter II of the Asylum Procedures Directive apply to ensure that the rights of those who seek international protection are protected, while maintaining the right to asylum and respect of the non-refoulement principle. Furthermore, the proposal includes the mandatory prioritisation of well-founded claims and those of families and children.
In addition, Latvia, Lithuania and Poland may extend the duration of the border procedure for sixteen weeks. A decision on the application including on a possible appeal against an administrative decision should be taken within those sixteen weeks. Similar to the extension of the registration deadline above, a longer duration for the border procedure can be considered to help the Member States in relation to instrumentalisation of migrants, given the nature and sudden character of Belarus’ action. The Member States concerned may need time to reorganise their resources and increase their capacity, including with the support of the EU agencies. In addition, the number of cases to be processed in the border procedure will be larger (as in principle all applicants can be subject to it) than under normal circumstances. Therefore, the extension will help the Member State to apply the fiction of non-entry for a longer period of time providing for more flexibility to deal with the increased workload.
Latvia, Lithuania and Poland may also extend the application of the rules set out in Article 46(6) of the Asylum Procedures Directive, which allows Member States to limit the automatic suspensive effect of an appeal, to all border procedures and instead confer on a court or tribunal the power to rule whether or not the applicant may remain on the territory provided that the guarantees under Article 46(7) and (8) are respected.
Given the safeguards provided in the Asylum Procedures Directive and the Reception Conditions Directive, also in the context of the asylum procedure at the border, detention of applicants should be a measure of last resort, where other sufficient but less coercive measures cannot be applied in a specific case. Therefore, the asylum procedure will not imply a systematic detention of applicants. In order to allow vulnerable applicants to benefit from their rights, where the state of the health of the applicant does not ensure the examination of the application at the border or transit zones with the necessary support, Latvia, Lithuania and Poland shall not apply the border procedure.
(b)Material reception conditions – Possibility to cover only basic needs
In a situation of instrumentalisation, where there is a sudden arrival of third country nationals, it might be difficult for the Member State to ensure the material reception conditions standards are met. However, Latvia, Lithuania and Poland need to ensure that any actions respect basic humanitarian guarantees, such as providing third‑country nationals on their territory with food, water, clothing, adequate medical care, assistance to vulnerable persons and temporary shelter, as also set out by the European Court of Human Rights in recent orders for interim measures in relation to these Member States.
Article 18(9) of the Reception Conditions Directive allows the Member State, in duly justified cases and under certain conditions, to set modalities for material reception conditions different from those provided in the Reception Conditions Directive, if in any event basic needs are covered. This proposal extends the possibility to set different material reception conditions in the current situation of instrumentalisation of migrants provided that basic needs are covered, including temporary shelter, food, water, clothing, adequate medical care, assistance to vulnerable persons, in full respect of the right to human dignity.
(c)Return procedure at the external borders
In order to help Latvia, Lithuania and Poland cope with the current inflow of third country nationals, the proposal includes a possibility to derogate from the application of Directive 2008/115/EC for third country nationals and stateless persons whose application for international protection has been rejected in accordance with the procedure set out in Article 2 of this proposal. In relation to third country nationals who did not apply for international protection, the provision of Article 2(2)(a) of the Return Directive can be applied by Latvia, Lithuania and Poland. The derogation set out in Article 3 of this proposal aims at establishing a mechanism that is similar to the derogation as set out in Article 2(2)(a) of the Return Directive specifically for those third country nationals and stateless persons whose application for international protection has been rejected in accordance with the procedure as set out in Article 2 of this proposal.
(d)Additional safeguards
The proposal ensures that arrangements exist securing the right to request protection in a genuine and effective manner by ensuring sufficient locations where applicants can formally lodge the application for asylum are available. In order to guarantee access to the asylum procedure, Latvia, Lithuania and Poland shall duly inform third-country nationals or stateless persons in a language which the third-country national understands or is reasonably supposed to understand about the measures applied, the points accessible for registering and lodging an application for international protection, in particular the location of the nearest point where they can lodge an application for international protection, the possibility to challenge the decision taken on the application, and the duration of the measures.
Operational support by EU agencies
As the effects of the Belarus’ actions might easily spill over (or even have as their objective) to impact more broadly neighbouring Member States and the European Union, it is necessary to foresee the means for providing support at EU-level. If Latvia, Lithuania and Poland request support from EU agencies, the agencies should prioritise their operational support. This would particularly be the case for the European Asylum Support Office (EASO) which can help register and process the applications, to ensure screening of vulnerable migrants, support the management, design and putting in place of adequate standards of reception facilities; or from Frontex to support border control activities, including screening and return operations, or from Europol to provide intelligence.
Other provisions
The proposal also includes provisions on cooperation, between the Commission, Member States and EU agencies, as well as on the obligation of Member States to continue reporting relevant data and statistics via the EU Migration Preparedness and Crisis Management Network, and for the Commission to regularly assess the situation. It also includes provision on the personal scope, making sure that persons who arrived prior to this Decision, but still in the context of instrumentalisation, and whose applications for international protection have not yet been registered or for whom the return procedure has not started, are covered and benefit from the provisions of the Decision. This will ensure legal certainty and predictability for these third country nationals about the procedural rules applicable. Several recitals address variable geometry, with regard to the matter of participation of Ireland and Denmark in this Decision. The Member States concerned are obliged to discontinue any measure if the emergency situation no longer exists.
• Legal basis
This proposal includes provisional measures for the benefit of three Member States (Latvia, Lithuania and Poland) which are confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, created by an instrumentalisation of migrants. The necessary provisional support measures may go beyond the Common European Asylum System. Therefore, the appropriate legal basis for the Council to adopt these provisional measures is Article 78(3) TFEU, after consulting the European Parliament.
According to CJEU jurisprudence 2 , the concept of ‘provisional measures’ within the meaning of Article 78(3) TFEU is sufficiently broad to adopt all the provisional measures necessary to respond effectively and swiftly to an emergency situation characterised by a sudden inflow of nationals of third countries, in this case created by an instrumentalisation of migrants for political purposes. These measures may in principle also derogate from provisions of legislative acts. Generally, the Commission and the Council have a broad discretion in the choice of the measures they take if these respond rapidly and efficiently to a particular emergency. These measures can evolve and adapt if they retain their provisional nature 3 .
Therefore, in line with this jurisprudence, the proposal includes specific provisional measures in the areas regulated by the Asylum Procedures Directive (on registration, formal lodging and the border procedure), the Reception Conditions Directive and the Return Directive, accompanied by the necessary safeguards to respect fundamental rights, and operational support measures by European Union agencies for the benefit and on request of the Member States concerned.
• Subsidiarity
Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on the European Union, i.e., if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the European Union.
A situation where the territorial integrity and security of Member States are at risk because of the sudden arrival of third-country nationals due to a third country actively engaging in facilitating the arrival of those third-country nationals should be considered as impacting the EU as a whole and therefore requiring EU solutions and EU support. There is a need for all Member States to quickly react and rally support to the Member State concerned.
Achievement of these objectives requires action at the EU level since they are cross-border by nature. It is clear that actions taken by individual Member States cannot satisfactorily reply to the need for a common EU approach to a common problem.
Such a common approach cannot be sufficiently achieved by the Member States individually and can, by reason of the scale and effects of this proposed Decision, be better achieved at Union level. The Union must therefore act and may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5(3) of the Treaty on European Union.
• Proportionality
In accordance with the principle of proportionality, as set out in Article 5 i of the Treaty on the European Union, this proposed Decision sets out the exact conditions when specific asylum procedural rules can be applied as well as provide for the scope and time limit of applying such rules, and necessary safeguards.
All the elements of the measures proposed to deal with the specific situation of instrumentalisation of migrants are limited to what is necessary to ensure Member States can manage the situation in an orderly and effective way while ensuring the equality of treatment in terms of rights and guarantees for applicants. The duration of these measures is also limited in time to what is strictly necessary to enable the Member States concerned to address the situation that endangers their security or territorial integrity.
The proposal establishes safeguards for applying the derogations. These measures are proposed together with other measures and when foreign policy measures are starting to yield results to help the Member States concerned to manage the situation, particularly given the significant number of third country nationals still arriving into these three Member States from Belarus and as there is still a significant number of migrants stranded in the EU‑Belarus border. The Commission proposes them as a matter of urgency and as measures of an extraordinary and exceptional nature, limited in time.
The specific measures in those aspects regulated by the Asylum Procedures Directive and the Return Directive are proportionate, with a number of safeguards put in place that strike a balance between the immediate needs of the Member States concerned in order to manage the situation of instrumentalisation and the necessary protection of the third country nationals being instrumentalised.
• Choice of the instrument
The legal basis of Article 78(3) TFEU for this proposal requires a Council Decision, after consulting the European Parliament.
• Fundamental rights
This proposal respects fundamental rights and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union, as well as the obligations stemming from international law.
The framework provided for in this Decision shall be applied in full respect of fundamental rights as enshrined in the Charter, including the right to human dignity (Article 1), prohibition of torture and inhuman or degrading treatment or punishment (Article 4), the right to liberty and security (Article 6), the right to asylum (Article 18), the prohibition of collective expulsions and protection from refoulement (Article 19(1) and (2)), the right to non-discrimination (Article 21), the principle of equality between men and women (Article 23), the rights of the child (Article 24) and the right to an effective remedy (Article 47). This proposal fully takes into account the special needs of vulnerable persons. The safeguards provided for children and vulnerable persons in the Reception Conditions Directive 2013/33/EU shall be of primary consideration for competent authorities.
The right to liberty and freedom of movement is protected given that, if detention is used in the context of the asylum border procedure or in the area of return, such rules can only be applied in a strictly regulated framework and for a limited time. Under Article 26(1) of the Asylum Procedures Directive, Member States shall not hold a person in detention for the sole reason that he or she is an applicant. The same provision references Article 8 of the Reception Conditions Directive for the grounds and conditions of detention. In accordance with Article 8(3)(c) of the Reception Conditions Directive, 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) 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 principle of non-refoulement enshrined in Article 33 of the 1951 Refugee Convention and Article 19 of the Charter of Fundamental Rights of the European Union is also respected when derogations from the Return Directive are applied. The proposal explicitly recalls the duty of Member States to always observe this principle in the fulfilment of their obligation to control borders. Respecting the principle of non-refoulement includes an assessment of whether there is neither a risk of persecution, torture or inhumane or degrading treatment, nor a risk of chain refoulement.
As regards the application of the asylum border procedure and the derogation from the Return Directive, the basic principles and guarantees provided by the Asylum Procedures Directive, the Reception Conditions Directive and the Return Directive remain applicable to applicants subject to the border procedure. Furthermore, the proposal includes the mandatory prioritisation of well-founded claims and those of families and children. It is to the benefit of these applicants to have their asylum applications decided upon as quickly as possible. The proposal guarantees the right to an effective remedy, ensuring that Courts have power to rule whether or not the applicant may remain on the territory of the Member State pending a decision on an appeal and with the right guarantees applicable to enable an applicant to make such requests to the Courts.
3. CONSULTATIONS OF INTERESTED PARTIES
• Evidence-based policy-making
The proposal was prepared as a matter of urgency. It can rely on the work conducted in preparation of the crisis and force majeure proposal in the context of the New Pact on Migration and Asylum and on information provided by stakeholders during the consultation process since the beginning of the hybrid threat in the summer of 2021.
• Stakeholder consultations and Collection and use of expertise
Since the beginning of the situation of a hybrid threat emerged in the summer of 2021, the Commission has been consulting all relevant stakeholders on how to cope with the situation. The Member States concerned by the current instrumentalisation, in particular Lithuania, suggested concrete legislative initiatives, which in their view would adequately address the situation. This proposal takes on board a number of these suggestions. The Commission met and exchanged letters with international and non-governmental organisations, which have been assessing the situation and proposed adequate reaction. The Commission visited Poland and Lithuania several times, both at a political and at a technical level. During these visits, the Commission, other than meeting the national authorities, gathered information from the national branches of UNHCR and IOM, and from national non-governmental human rights organisations supporting migrants in the border regions.
4. BUDGETARY IMPLICATIONS
Due to the nature of this proposal linked to a case of instrumentalisation of migrants, it is not possible to estimate a priori the possible budgetary impact. It will be accommodated within the budget of the existing EU funding instruments under the period 2014-2020 and 2021-2027 in the field of migration, asylum and border management. Where exceptionally necessary, if the situation aggravates further, the flexibility mechanisms within the MFF 2021-2027 could be used. The European Commission and the Member States have been discussing the financial needs arising from the situation at the external borders with Belarus on a regular basis. As a result, the European Commission provided emergency assistance support to Lithuania this autumn, while Lithuania, Latvia and Poland have taken measures to shift (unspent) resources under their 2014-2020 national programmes of these funding instruments. In this context, in addition to the €360 million foreseen for these Member States under the BMVI for this financial period, a further top-up of around €200 million will be available for 2021 and 2022, from within existing resources, mainly the BMVI Thematic Facility envelope. Continued regular dialogue will enable the optimal use of the available resources under these instruments.
For the reason mentioned above, it is not possible to estimate a priori the possible budgetary impact on the decentralised agencies concerned. They have some flexibility within their existing budgets but, depending on future developments and reflecting the fact that the agencies’ resources are limited, it is not excluded that a redeployment of resources might be needed.
The financial needs in this proposal are compatible with the current multiannual financial framework and might entail the use of special instruments.
In terms of the asylum procedural aspects, this proposal does not impose any additional financial or administrative burden on the Union. On those parts, therefore, it has no impact on the Union budget.