With a new regulation, the controversial “border procedures” are to be extended in case of a “mass influx of migrants”. The renewed Schengen Border Code could even partially close off Fortress Europe – an absolute novelty in the history of the EU.
On 8 June, the interior ministers of the EU states agreed on their negotiating position on the reform of the Common European Asylum System (CEAS). Up for vote were a regulation for the reorganisation of asylum procedures and one on asylum and migration management. Both regulations would drastically restrict the right to asylum in the European Union.
Now the next proposals to seal off Fortress Europe are on the table of the EU interior ministers: with a bill known as the “Crisis Regulation”, asylum seekers are to be able to be detained at external borders for significantly longer. In addition, there is a new version of the Schengen Borders Code to follow, according to which member states may reintroduce controls at border crossings. Before that, the European Commission is to declare a “mass influx of migrants”.
The first proposals for the CEAS reform date back to 1999, but only gained momentum again with the refugee movements of 2015. However, the negotiations stalled because of the hard line taken by states such as Poland and Hungary. From 2020, the Commission has therefore proposed to divide the overall CEAS package into nine individual directives and regulations. In Brussels, the project is called the “Pact on Migration and Asylum”.
The Asylum Procedure Regulation, on whose negotiating position the interior ministers have now agreed, is to create the legal possibility of so-called border procedures. Asylum applications of persons from certain countries of origin could then be processed in a fast-track procedure in detention-like camps at the EU’s external borders. According to another new Screening Regulation, the first step would be to collect biometric data. In doing so, the persons concerned are pretended not to have entered the Union yet (the so-called “fiction of non-entry”). This accelerated asylum procedure is to be completed in a maximum of twelve weeks, with limited access to legal remedies against negative decisions. This affects all refugees who either do not have valid documents with them or who have given contradictory information during an interview. All persons rescued from distress at sea are also to be examined to see whether an accelerated procedure must be carried out. People who come from countries where asylum applications are frequently rejected must also go through the border procedure. According to the will of the EU states, this quota should not exceed 20 percent. Which “safe third countries” are involved has yet to be determined; the draft regulation mentions, for example, numerous Balkan states and Turkey. Rejected asylum seekers could then be deported to these countries.
The Asylum and Migration Management Regulation, which now was also adopted by the interior ministers, is to replace the Dublin III Regulation, according to which responsibility for asylum seekers lies with those states to which they first entered. Countries like Greece and Italy are disadvantaged by this and have therefore repeatedly encouraged refugees to travel on to other EU states. With the new regulation on asylum and migration management, however, they can, under certain conditions, declare increased “migration pressure” and ask other member states to take in protection seekers and process their asylum applications. All 27 EU member states are to notify the European Commission annually of their capacities for this purpose, which will then be recorded in a “solidarity pool”. The necessary financial resources are to be provided by Brussels. States that do not participate in the “solidarity pool” can buy their way out of it according to the new Asylum and Migration Management Regulation. For each asylum seeker not taken in, governments must pay €20,000 into a migration management fund, according to the current proposal.
The Crisis Regulation now being discussed by the interior ministers is intended to relieve the burden on the particularly affected countries of arrival of refugees in the EU. The prerequisite would be that the Commission determines a “crisis”, “force majeure” or “instrumentalisation” of refugees by a neighbouring third country or a “non-state actor” with regard to increasing migration. Other EU states could then be obliged to take over protection seekers and process their asylum applications – or provide financial resources for “managing the situation”, including for migration management in “relevant third countries”. However, the redistribution of asylum seekers would also go over the heads of the people concerned, because they would not be able to decide which countries they would be sent to. This is not the only reason why the crisis regulation is heavily criticised from various sides. For it would also allow border procedures to be extended to up to five months under conditions similar to detention. Moreover, the protection quota stipulated in the Asylum Procedures Regulation would be raised to 75 percent, thus forcing even more people into the controversial border procedure. “This is a crisis of humanity and a crisis of human rights. It is also a crisis of the rule of law in the EU,” 55 organisations from Germany have therefore stated in an open letter.
The EU interior ministers have yet to define their negotiating position on the Crisis Regulation; for the amendment of the Schengen Borders Code, this was already done last year. The Border Code regulates, among other things, the ban on internal border controls, which is binding for all old and new EU members according to the Amsterdam Treaty of 1997. However, there are exceptions, which are now being extended. This would be possible to combat the instrumentalisation of “migration flows” or in the case of a “health crisis”, such as a pandemic as under Corona conditions. Then controls at border crossings or “alternative measures” such as increased police checks in the border area could be introduced.
In addition to intensifying border surveillance, the new version of the Schengen Borders Code should also allow for the closure of individual border crossing points at the external borders – an absolute novelty in the history of the Union.
All of the regulations described in the “Pact on Migration and Asylum” still have to be discussed with the European Parliament. Only when the House has also adopted its position can the EU interior ministers negotiate with the MEPs. The timetable is ambitious: by spring 2024, i.e. shortly before the European elections, the Fortress Europe and their undermining of asylum law are to be completed.
Published in German in „nd“.
Image: Abolish Frontex.