On Friday 4 November, the Czech Presidency of the EU Council submitted a new compromise document on the draft regulation on the instrumentalisation of migration, the regulation that the Commission had proposed at the end of 2021 in order to respond to the situations faced by the Baltic and Eastern EU countries with Belarus. It will present its views on Wednesday 9 November at a further meeting of the EU Council working group.
In this last text, as seen by EUROPE, the Presidency does not revisit the processing times given to Member States to manage the influx of files (see EUROPE 13038/8) which it had decided to reduce. But it clarifies certain things again, for example the wording allowing Member States to signal that they are experiencing an instrumentalisation situation, allowing them to apply the right of asylum and return in a more flexible way. These derogations will thus be possible “on the basis of evidence demonstrating the existence of a situation of instrumentalisation”.
The language is also somewhat strengthened with regard to the possibilities for Member States to detain migrants in order to decide whether or not to let them enter the EU. The new wording states that detention is applicable only when it “is proven to be necessary and on the basis of an individual assessment of each case. A detention measure is only possible if no other less coercive alternative can be applied”.
Rescue operations at sea
Furthermore, the text reiterates that situations in which non-state actors are involved in organised crime, including smuggling, should not be considered as instrumentalisation of migrants where there is no aim to destabilise the Union or a Member State.
Furthermore, humanitarian aid operations “should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State”, adds the new text, which could potentially worry NGOs.
The text also includes for the first time rescue operations at sea and their impact - in the same way as other migrant arrival routes - on the number of asylum applications for the States concerned, which can therefore apply longer procedural deadlines. There is no direct link to instrumentalisation, but the introduction of these operations, known as SAR, to the text may reflect the concern of some Member States.
The text also specifies that the regulation on ‘screening’ of migrants or the regulation on Eurodac as well as the regulation on ‘migration and asylum management’ should continue to apply regardless of the derogations provided for by this regulation on instrumentalisation.
The Czech Presidency hopes to make progress on this issue as soon as possible in order to obtain a mandate from the EU Council at the December Home Affairs Council.
On the rest of the ‘Pact on Migration and Asylum’, it hopes to make progress also on the legislative aspects of the solidarity mechanism contained in the regulation on asylum and migration management. There is consensus of a majority of countries to move forward, but a General Approach on this regulation is not realistic at this time.
Possible progress in the European Parliament in November
On 14 November, the European Parliament, for its part, could decide whether it can agree this year to enter into first trilogues with the EU Council on three texts, namely the resettlement regulation, the qualifications directive and the Eurodac regulation.
Should the European Parliament give its approval, the first symbolic trilogues could then take place under the Czech Presidency of the EU Council. But the European Parliament is not yet ready on Eurodac, according to one source, as several political groups still have strong reservations about this future large ‘migration’ database.
It is not certain, in this context, that the EU Council will agree to make progress on the other two texts, while it remains essentially interested in Eurodac, which, together with the ‘Screening’ regulation, constitutes the ‘security’ component of the ‘Pact on Migration and Asylum’.
Link to the text: https://aeur.eu/f/3xf (Original version in French by Solenn Paulic)