Member State experts debated, on Monday 17 July, a new compromise document from the Spanish Presidency of the EU Council on the regulation on crisis management and force majeure, which organises solidarity for the benefit of a Member State faced with an exceptional influx of people (see EUROPE 13210/18).
In particular, the regulation authorises derogations from the right of asylum or from the rules on reception conditions in order to manage these situations, and now includes one on the ‘instrumentalisation of migrants’, which had been proposed at the end of 2021 in a separate regulation that was not adopted by the EU Council (see EUROPE 13079/10).
Compared to the last text, the Spanish Presidency’s recital on the concept of mass influx states that “a mass influx of persons crossing the border, in particular within a short period, may lead to a situation of crisis in a particular Member State, taking into account its population, GDP and geographical specificities, including the size of the territory”.
On the instrumentalisation of migrants, which is also covered by this regulation, the Presidency explains, after defining instrumentalisation, that “any violent acts at the border must be avoided or, when necessary, addressed in a proportionate manner, 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”.
The text adds that “The Member State concerned may, in particular in a situation of instrumentalisation of migrants, where third country nationals or stateless persons attempt to force entry en masse by violent means, take the necessary proportionate measures, in accordance with its national law, to safeguard security and public order and to ensure the effective application of this Regulation”.
A new recital also specifies that humanitarian aid operations “should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State”.
NGOs call for deletion of ‘instrumentalisation’ aspect
On 14 July, more than 60 NGOs, including ECRE, Amnesty International, Coface and Oxfam, criticised the numerous derogations provided for, saying that “efforts in 2022 to reach an agreement among Member States on the Instrumentalisation Regulation were thwarted when some Member States saw the inherent risks in the proposal”.
“If adopted, the proposal would have a significant harmful effect on the fundamental rights of people seeking protection in Europe. As a result, there would be a “reduced access to asylum through delayed periods of registration” and a much greater number of so-called border procedures could be applied. This will also result in an “increased detention of people at the border including unaccompanied children and families”.
Link to the letter and the compromise: https://aeur.eu/f/83u ; https://aeur.eu/f/83z (Original version in French by Solenn Paulic)