Geneva - The EU Commission’s extensive, vague, and dangerous proposal concerning the “instrumentalisation of migrants” will make it easier and more legitimate for EU Member States to derogate from their responsibilities and undermine the fundamental rights of migrants, asylum seekers, and refugees guaranteed by international and EU law, Euro-Med Human Rights Monitor warned in a statement today.

On 23 November 2021, the European Commission adopted a Communication summarising the emergency measures already taken or likely to be taken in the future, to address the so-called “instrumentalisation of migrants”. As part of these measures, the Commission adopted a proposal on 1 December 2021 aimed at supporting Latvia, Lithuania and Poland “to manage in an orderly and dignified manner the arrival of persons being instrumentalised by Belarus”.

Article 78(3) of the Treaty on the Functioning of the European Union, on which the aforementioned proposal is said to be based on, can be used only “in exceptional circumstances in the event of a sudden inflow of nationals of third countries, inasmuch as it makes the normal functioning of the EU common asylum system impossible”, as stated in 2017 by the CJEU.

   Migrants, refugees, and asylum seekers could not be used as a political tool to destabilise Europe if they weren’t dehumanised and politically weaponised by Europe in the first place   

Michela Pugliese, Migration and Asylum Researcher at Euro-Med Monitor

Despite the increase in arrivals in these countries, the absolute numbers are not critical, especially if compared to migration flows in the Mediterranean or the “Global South” states, which host the largest numbers of refugees in the world. However, Latvia, Lithuania and Poland have already adopted extreme measures, including the declaration of the state of emergency, the militarisation of their borders, and the implementation of national legislation legitimising detention at the border and pushbacks.

The EU-Belarus border zone is already a very hostile area for migrants and asylum seekers, and resulted in the death of more than 21 people last winter. Many NGOs, including Euro-Med Rights Monitor, as well as other international organisations and experts such as the Council of Europe Commissioner for Human Rights, Dunja Mijatović, have accused Latvia, Lithuania, and Poland of breaching core provisions of EU and international law, reminding these countries that reprehensible actions by Belarus do not absolve them from their own human rights’ obligations.

The proposal, titled “Regulation addressing situations of instrumentalisation in the field of migration and asylum”, introduces a mechanism which allows all Member States to derogate from their responsibilities under EU asylum law in situations of “instrumentalisation” of migration—essentially enabling them to derogate at will from their obligations.

This “exemption regime” is hardly compliant with the principles of necessity, proportionality and efficiency.

The consequences of the extensive derogations are exceedingly unnecessary and disproportionate, especially as they will significantly and negatively affect the rights of vulnerable people seeking protection, by lowering asylum standards, confusing applicants—as well as authorities—with regard to where to submit an asylum application, the registration of applications received solely at specific border points, increasing the use of accelerated border procedures and administrative detention, fostering arbitrariness with Member States applying different standards, and opting in and out of the Common EU Asylum System (CEAS) at will. This proposal would eventually create a cherry-picking system between EU Member States reducing the fundamental rights of migrants, asylum seekers and refugees guaranteed under EU law.

The breach of EU standards is already rampant; Hungary, Czechia, and Poland were already referred by the European Commission to the CJEU for noncompliance with their legal obligations on relocation. The Commission’s proposal on the broad, vague, and dangerous concept of “instrumentalisation”, however, if codified into law, will just make further breaches easier and more legitimate. It is not surprising, therefore, that the Czech Presidency of the Council of the EU is pushing for the swift adoption of the “Instrumentalisation Regulation”—before the end of this year.

“It cannot be considered a new proposal if it is grounded on the same old unnecessary emergency-response rhetoric and fueled by familiar dated narratives focused exclusively on national security and public order”, said Michela Pugliese, Euro-Med Monitor’s Migration and Asylum Researcher.

“Actions by third countries deemed to be threatening for the EU should be met by policy measures directed at those governments, rather than at people seeking protection—the primary victims of such actions”, added Pugliese. “Migrants, refugees, and asylum seekers could not be used as a political tool to destabilise Europe if they weren’t dehumanised and politically weaponised by Europe in the first place”.

Euro-Med Human Rights Monitor calls on the European Commission and its Member States to end all attempts to legalise pushbacks and inhumane political stand-offs at borders, and to respect, protect, and fulfill international and European law, particularly the fundamental principle of non-refoulement, prohibition of arbitrary and collective expulsions, and migrants’ right to seek protection and access individualised asylum procedures.