As announced last week in a Communication on Belarus and its instrumentalisation of migrants (see EUROPE 12838/2), the Commission proposed on 1 December, putting forward a proposal for an EU Council Decision, that Poland, Lithuania and Latvia could implement exceptional measures for a period of 6 months, allowing them to adapt to or derogate from the current rules on asylum and migration management.
With 40,000 people attempting to cross the borders of these three countries in 2021, according to the Commission’s figures, and 8,000 people arriving since the beginning of the year - and even 10,000 in Germany - the Commission on Wednesday proposed relaxations to European law to deal with this type of situation, which was once again described as a “hybrid threat” by the Vice-President responsible for Promoting our European Way of Life, Margarítis Schinás, and the Commissioner for Home Affairs, Ylva Johansson.
While both officials acknowledged that the situation had now stabilised with migrants already being returned to their countries of origin, they have to remain “vigilant”, as the Commissioner said, refusing to “trust the Minsk regime for a second”.
They also assured that all these proposals were in line with respect for fundamental rights and the principle of non-refoulement and that there was nothing “arbitrary” about them.
Among the measures proposed to these three countries, and based on Article 78.3 of the Treaty, are extensions of the time limit for registering asylum applications to 4 weeks instead of the usual 3 to 10 days.
Member States will also be able to apply the border asylum procedure to process all asylum applications, including the appeal phase, within a maximum of 16 weeks, except where adequate support cannot be provided to applicants with particular health problems. Well-founded applications and those from families and children should be given priority, the Commission recommends.
The extension of the registration deadlines will also help “the Member State to apply the fiction of non-entry (to the EU territory) for a longer period of time providing for more flexibility to deal with the increased workload”, the Commission says, while at the same time indicating that detention of the persons concerned should remain a measure of last resort.
Latvia, Lithuania and Poland will also be able, for a period of 6 months, to limit the automatic suspensory effect of an appeal for all border proceedings and instead give a court or tribunal the power to rule whether or not the applicant can appeal.
On reception conditions, these States may also derogate from the Directive and organise temporary camps or accommodation as they wish, if the basic conditions are met, such as ensuring food, warm places to sleep, blankets, clothing as well as access to medical care and other types of services for the most vulnerable.
Regarding return procedures, the Member States concerned will also be able to apply simplified and accelerated national procedures for the return of persons whose applications for international protection have been rejected. The proposal allows them to derogate from the application of Directive 2008/115/EC for third country nationals and stateless persons whose application for a residence permit is rejected, i.e. not to offer these same persons the same safeguards as those provided for in other cases of irregular returns.
These proposals have not been well received by some groups in the European Parliament, which is being consulted on this proposal, and by NGOs such as Amnesty International.
Disproportionate measures
The S&D Group members considered these measures “disproportionate” in that they “include the de facto detention of asylum seekers” and “are used as a cover for national authorities to spread fear about a migration crisis and fuel a national political agenda” or not to respect “their international obligations to guarantee the right to asylum in the EU”.
“The emergency measures proposed by the Commission are in fact merciless towards vulnerable people seeking protection”, commented Germany’s Birgit Sippel. “Measures to suspend European asylum laws are worrying and extreme”, said the MEP, who opposes the legal fiction of non-entry in her own report on the ‘Screening’ Regulation for migrants (see EUROPE 12843/9).
For Spanish MEP Juan Fernando López Aguilar (S&D), Chairman of the Committee on Civil Liberties, Parliament “must have its say on these measures, which are both excessive and disproportionate”.
“The decreasing number of people seeking asylum at the EU’s border with Belarus in no way justifies allowing governments to waive their obligations to provide access to asylum under international law. Nor is there any reason to turn a blind eye to the illegal practice of pushback”, he said, even though the Commission has acknowledged difficulties with certain emergency laws adopted by Poland, Lithuania and Latvia.
For Amnesty International, these exceptional measures only “normalise the dehumanisation of asylum seekers”.
Link to the proposal: https://bit.ly/3plQfOx (Original version in French by Solenn Paulic)