In a new report published on Wednesday 23 July, the European Union Agency for Fundamental Rights (FRA) called on European legislators not to make responses to the instrumentalisation of migration “a blueprint for the treatment of all migrants and refugees crossing the border in an unauthorised manner”.
The instruments adopted as part of the ‘Pact on Migration and Asylum’, which will apply from mid-2026, provide for legal and political responses to manage these arrivals, including in the event of mass movements.
“Nor should the response to such exceptional instances of instrumentalisation become the way to respond to migrant smuggling and the facilitation of irregular entry”, warns the FRA in this report devoted to ways of countering the use of migrants for hostile purposes against the EU while respecting fundamental rights and European law.
In this context, “repressive measures must target the criminal networks involved, (...) and not punish the individuals who are the object of the crime of migrant smuggling. Also, measures against migrant smuggling should not target humanitarian actors supporting migrants and asylum seekers at EU external borders”.
The FRA has four types of action: the first set of actions are those “targeting the actor who instrumentalises such people. These may include combating state-sponsored smuggling of migrants, imposing sanctions and other national law measures and restricting visa policies (...). Restrictions to such rights are possible, provided they are provided for by law, are necessary and proportionate to counter instrumentalisation”.
The second targets transport companies and other commercial operators actively involved in transporting migrants to the EU or its external borders on behalf of a third country.
The third set of measures concerns the way in which the EU and its Member States deal with instrumentalised third-country nationals who arrive in the EU. Member States may close border crossing points to traffic or limit their opening hours. Under the ‘Pact’, Member States will also be able to request additional time to register asylum applications. For the FRA, at least seven fundamental rights safeguards require particular attention when taking measures targeting instrumentalised migrants or refugees such as the use of force, which must always remain necessary and proportionate, or the fact that denial of access to asylum procedures is unlawful.
Lastly, there is the trend to militarise borders. Border management authorities could share more operational information with the army and entrust it with border control support functions. These activities are governed by EU law and must be carried out in full compliance with the Charter.
But the FRA is concerned that this trend to militarise borders blurs the line between border management - which falls within the scope of EU law and the Charter - and defence policies, where Member States typically act outside the scope of EU law. “This creates a real risk of circumventing EU fundamental rights law”.
Link to the report: https://aeur.eu/f/hyy (Original version in French by Solenn Paulic)