20 Juni 2023

EU asylum and migration: When is the crisis over and when is it business as usual?

By Alezini Loxa
Refugees on a boat crossing the Mediterranean Sea

The EU asylum governance is marked by constitutional anomalies, minimizing the role of law and weakening the protection of fundamental rights.

EU migration and asylum has been one of the most criticized areas of EU law since its inception. The intergovernmental origins of the Area of Freedom, Security and Justice, its mixed objectives and the politicized areas it covers have conditioned its constitutionalization (see Walker). To this day, EU asylum and migration governance struggles to balance security considerations and sovereign claims to population control with the protection of fundamental rights and respect for democratic processes and judicial accountability. The former has always been at the expense of the latter.

Following the arrivals of 2015/16, proposals for reform of the EU asylum system had reached a stalemate. This stalemate was broken on June 8th, when the Council reached an agreement on key parts of the New Asylum and Migration Pact. This contribution will look at the constitutional deficits that have appeared in EU migration and asylum law from 2015/16 to the present. It will not deal with the problems of national application, which have been documented in the literature and have been attributed, inter alia, to the very institutional design of the area (Thym). Rather, this blog post will map the EU’s approach to asylum and migration governance after 2015/16, it will question the extent to which constitutional anomalies have left their mark on this area of EU law and it will reflect on the implications of the recent political agreement for the future.

The crisis is over, long live the crisis!

The crisis rhetoric surrounding the arrival of migrants and refugees in Europe in the summer and autumn of 2015 created a sense of urgency and expediency behind EU action on asylum and migration. This was eventually translated into an institutional rhetoric that sought to reinvent the EU’s approach to asylum and migration governance, as expressed in the New Asylum and Migration Pact. This rhetoric of reinvention and calls for a more equitable and efficient management of flows have not been followed in practice. Instead, EU asylum and migration governance has developed by minimizing the role of law and has led to a regression in the protection of fundamental rights.

Many authors have looked at different elements of the relevant developments, describing EU action in this area as characterized by bifurcation of law (Spijkerboer), legislative stasis and flight from law (Tsourdi and Costello), or non-enforcement, non-compliance and informalization (Loxa and Stoyanova). More recently, Kochenov and Ganty have coined the term ‘lawlessness law’ to describe the EU approach to migration and asylum. There is a broader consensus in academic and policy circles that EU’s governance of migration and asylum is failing at many levels.

In the following sections, I will outline the main characteristics of the past period, namely the proliferation of non-binding instruments that escape the legal guarantees of the EU framework, the role of the Commission in legitimizing regression, and the conservative approach of the European Court of Justice, before reflecting on the potential for reform in the future.

Rule by soft law

The use of soft law as a tool of EU governance is not new, nor is it unique to the area of migration and asylum. However, after 2015/16, the proliferation of non-binding legal instruments in EU asylum and migration governance has had the effect of circumventing EU law and minimizing, if not pre-empting, democratic accountability and judicial oversight.

The central informal instrument at the heart of this area is the EU-Turkey Agreement. This agreement, published in the form of a press release and lying outside the scope of EU law (according to the European Court of Justice), is seen as a blueprint for the management of migration and asylum.

In addition to this agreement, various informal instruments govern the EU’s relations with third countries involved in migration management (see, for example, the Joint Way Forward on Migration Issues between Afghanistan and the EU and other readmission agreements). Such informal instruments have significant implications for the constitutional structure of the EU, shaping a framework that deflects the rights of migrants, excludes scrutiny by the European Parliament and deprives individuals of means of judicial control (see also Molinari and Idriz).

This all-encompassing rule by soft law in the area of migration and asylum creates spaces of ‘liminal legality’ within the EU framework, not unlike the EU’s approach during the economic crisis (see Killpatrick).

The Commission, no longer Guardian of the Treaties

What is the role of the Commission as guardian of the Treaties in an environment where both member states and the Council seek to circumvent the EU’s legal framework? As Guild and Costello noted back in 2018, the Commission has ‘failed to shine as technical coordinator, to maintain its integrity as guardian of EU legality, or even stealthily act to maintain EU scrutiny before the CJEU’.

Traditionally, the Commission has launched very few infringement proceedings over deficiencies in the Common European Asylum System (CEAS), even when these deficiencies were well documented. Already before 2015/16, the Commission did not treat non-compliance with asylum and migration law as a real threat to EU law – similar to the Commission’s inaction in relation to Schengen and its collapse after 2015/16. As Schade has already discussed in this blog series, several member states violated the deadlines set by the Schengen Border Code for the reintroduction of border controls without any reaction from the Commission.

The cases where the Commission has taken more rigorous action concern the usual suspects for breaches of the rule of law (see C-715/17, C-718/17 and C-719/17, Commission v Poland, Hungary and the Czech Republic; C-808/18, Commission v Hungary; C-821/19, Commission v Hungary and C-823/21, Commission v Hungary). These infringement procedures, however, must be seen in the context of the broader rule of law problems in certain member states and do not point to an independent line of action against breaches of EU asylum and migration law.

Instead, the Commission has legitimized violations of the current framework by proposing revisions that are aligned with member states’ actions to circumvent EU law. Similar to this is the Commission’s inaction on the militarized violence experienced by refugees and migrants at EU borders. In a complete change of rhetoric from 2020, the Commission has put forward a proposal for a regulation on the instrumentalization of refugee flows in order to legitimize the pushbacks at the Polish-Belarusian border. After all, such measures – i.e. a militarized response to the arrival of people at the EU’s borders – were hailed by the EU Commission as a ‘shield’ for Europe during the pushbacks at the Greek-Turkish land border (see, however, Case C-72/22 PPU, Valstybės sienos apsaugos tarnyba, where the Court demanded the full application of the guarantees of the CEAS in the meantime).

The Court not at the top of its game

The Court of Justice of the EU has been studied with great enthusiasm by lawyers and political scientists alike because of its central role in creating a constitutional architecture for the EU. In many judgements over the years, the Court has emphasized the telos of an “ever closer union” to take EU integration further than the expressed will of member states in negotiating and adopting various EU legal instruments.

In the area of migration and asylum, the Lisbon Treaty gave the Court full powers of judicial review. While commentators expected the Court to scrutinize EU and member state action in this area with equal rigour, thereby promoting further integration, the Court has been much more formalistic in its interpretations.

Goldner Lang has described the Court’s approach as judicial passivism. Indeed, the Court has on many occasions had the opportunity to restore legality and apply EU constitutional guarantees to EU asylum and migration governance. After all, it wouldn’t be the first time that EU institutions and/or member states try to bypass the EU constitutional guarantees in a crisis by orchestrating actions outside the scope of EU law. In the context of the economic crisis, and after a series of judgements, the Court finally ruled that the EU institutions are bound by the Charter even when they act outside the EU legal framework (C-8/15 P, Ledra Advertising v Commission and ECB).

The Court has not come close to this in the EU measures reviewed after 2015/16: The Court declined jurisdiction to review the EU-Turkey Agreement, holding that it could not be considered an EU act within the meaning of Art. 263 TFEU (see Joined Cases C-208/17 P to C-210/17 P, NF and others v European Council and, for an analysis of the Court’s rulings, see Carrera, den Hertog and Stefan). Similarly formalistic was the ECJ’s approach in the humanitarian visa case (C-638/16 PPU, X and X v État belge), which held that visa applications for the purpose of seeking asylum were outside the scope of EU law (for a critique see Brouwer).

A final example of limited judicial oversight and accountability with major human rights implications concerns the activities of Frontex. Violations of fundamental rights at the EU’s borders have been widely documented (see here, here and here) and have led to scrutiny by the European Parliament and OLAF, the European Anti-Fraud Office.

The actions of Frontex, as part of closer administrative cooperation in border management, create accountability gaps that have yet to be addressed by the courts (see also Gkliati and Fink). Individual actions before the Court are subject to strict criteria which make it excessively difficult to seek redress for violations of fundamental rights. So far, one action against Frontex for failure to act has been declared inadmissible (T-282/21, SS and ST v Frontex), while actions for damages are pending before the General Court (T-136/22, Hamoudi v Frontex and T-600/21, WS and Others v Frontex).

Glimpses of hope …

A superficial reading of all the relevant journals and publications on EU asylum and migration law paints a bleak picture of the future of the field. The proliferation of informal measures that bypass EU constitutional guarantees, new proposals that legitimize non-compliance with EU law and the minimization of fundamental rights standards all point towards disintegration. At the same time, closer administrative cooperation is being pursued without the necessary guarantees of good administration and effective protection of fundamental rights (see Tsourdi).

The most hopeful moment for the future of EU migration and asylum law took place last year with the activation of the Temporary Protection Directive following the Russian war against Ukraine. While the first-time activation of the Directive was not without criticism, it was a welcome step of hope for renewed solidarity in the EU and the protection of vulnerable individuals.

… and persistent disillusionment

The recent political agreement reached in the Council, however, is in stark contrast to the response to Ukrainian displacement. The deeply politicized nature of EU asylum and migration law, combined with the prevalence of Euroscepticism and populism, created a tense environment in which attempts to move forward with legislative reform only served to further regression.

The agreement of the member states on a general approach to the Asylum and Migration Management Regulation and the Asylum Procedures Regulation is not capable of remedying the dysfunctionalities of the CEAS. The European Council on Refugees and Exiles already commented on how the agreement reached reduces protection standards by providing extensive border procedures (and thus higher risk of detention and pushbacks) and allowing for a flexible solidarity mechanisms.

If the agreement moves forward without substantial amendments after negotiation with the European Parliament, the only hope for the future would exist in the interpretation of the relevant instruments by the Court with strong grounding on the Charter. This would take years to happen, while many refugees and migrants would continue to face serious violations of their rights in the meantime. At this stage, one is left wondering how much a judicial actor could do to restore fundamental rights guarantees in a system shaped to bypass them.

This contribution is part of the thematic forum “Supranational governance between diplomacy and democracy – current debates on EU reform”, published in cooperation with the online magazine Regierungsforschung.de.

Pictures: Refugees on a boat: Mstyslav Chernov/Unframe [CC BY-SA 4.0], via Wikimedia Commons; portrait Alezini Loxa: Stina Johansson / Lund University [all rights reserved]; EU flag: Arno Mikkor (EU2017EE) [CC BY 2.0], via Flickr.

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