34

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Reforming asylum and migration management: A shift towards greater solidarity?

30-10-2020

In September 2020, the European Commission submitted a proposal on asylum and migration management, to replace the 2013 Dublin Regulation that determines the EU Member State responsible for examining asylum applications. While the proposal 'essentially preserves' the current criteria for determining this responsibility, it would also make changes and additions to the regulation, especially on solidarity and responsibility-sharing for asylum-seekers among Member States. The proposal comes after a ...

In September 2020, the European Commission submitted a proposal on asylum and migration management, to replace the 2013 Dublin Regulation that determines the EU Member State responsible for examining asylum applications. While the proposal 'essentially preserves' the current criteria for determining this responsibility, it would also make changes and additions to the regulation, especially on solidarity and responsibility-sharing for asylum-seekers among Member States. The proposal comes after a failed attempt to reform EU asylum policy following the 2015 migration crisis. While the migratory context has changed since, both in terms of arrivals and the composition of flows, the migration situation remains fragile, as evidenced by pressures on national asylum systems and continual disembarkations after search and rescue operations. According to the Commission, addressing this situation requires a relaunch of the reform of the common European asylum system to achieve a more efficient, fair and harmonised framework that is more resistant to future migratory pressures. The new system would ensure international protection to those who need it and be effective and humane towards those who have to be returned. First edition. The 'EU Legislation in Progress' briefings are updated at key stages throughout the legislative procedure.

Reform of the Dublin system

30-09-2020

The refugee and migrant crisis in Europe has exposed the need for reform of the Common European Asylum System, in general, and of the Dublin rules, in particular. The Commission’s proposal of 4 May 2016 to reform the Dublin system would not change the existing criteria for determining which Member State is responsible for examining an asylum application. Instead of a fundamental overhaul of the Dublin regime, as suggested by Parliament, the Commission proposed to streamline and supplement the current ...

The refugee and migrant crisis in Europe has exposed the need for reform of the Common European Asylum System, in general, and of the Dublin rules, in particular. The Commission’s proposal of 4 May 2016 to reform the Dublin system would not change the existing criteria for determining which Member State is responsible for examining an asylum application. Instead of a fundamental overhaul of the Dublin regime, as suggested by Parliament, the Commission proposed to streamline and supplement the current rules with a corrective allocation mechanism. This mechanism would be triggered automatically were a Member State to be faced with disproportionate numbers of asylum-seekers. If a Member State decided not to accept the allocation of asylum-seekers from another one under pressure, a ‘solidarity contribution’ per applicant would have to be made instead. An agreement on the balance between responsibility and solidarity regarding the distribution of asylum-seekers will be a cornerstone for the new EU asylum policy. Although Parliament’s LIBE committee adopted its positon in autumn 2017, the Council has been unable to reach a position on the proposal. Third edition of a briefing originally drafted by Detelin Ivanov. The ‘EU Legislation in Progress’ briefings are updated at key stages throughout the legislative procedure. Please note this document has been designed for on-line viewing.

The need for solidarity in EU asylum policy

23-09-2020

In early September 2020, a fire in the over-crowded migrant camp of Moria in Greece pushed thousands of people onto the streets, exacerbating the already dire conditions faced by asylum-seekers and migrants. The incident also shows the need to find a solution to a crisis of solidarity in EU asylum policy that has remained unresolved since the unprecedented influx of migrants into the EU in 2015. The European Commission presented a new Pact on Asylum and Migration on 23 September 2020. In that, it ...

In early September 2020, a fire in the over-crowded migrant camp of Moria in Greece pushed thousands of people onto the streets, exacerbating the already dire conditions faced by asylum-seekers and migrants. The incident also shows the need to find a solution to a crisis of solidarity in EU asylum policy that has remained unresolved since the unprecedented influx of migrants into the EU in 2015. The European Commission presented a new Pact on Asylum and Migration on 23 September 2020. In that, it puts forward a compromise on solidarity and fair sharing of responsibility for asylum-seekers among EU Member States.

Upholding human rights in Europe during the pandemic

23-09-2020

The severe coronavirus outbreak has forced governments across the world to resort to drastic measures in order to slow down the spread of the virus and prevent a public health crisis. As elsewhere, these emergency measures taken in Europe have affected all aspects of societal life and profoundly impacted people's personal freedoms and individual rights, as enshrined in the European Convention on Human Rights (ECHR). Although certain human rights can be suspended in situations of emergency, human ...

The severe coronavirus outbreak has forced governments across the world to resort to drastic measures in order to slow down the spread of the virus and prevent a public health crisis. As elsewhere, these emergency measures taken in Europe have affected all aspects of societal life and profoundly impacted people's personal freedoms and individual rights, as enshrined in the European Convention on Human Rights (ECHR). Although certain human rights can be suspended in situations of emergency, human rights conventions, such as the ECHR, continue to apply even then. In fact, many human rights instruments provide for such situations and contain dedicated 'emergency clauses' that give governments additional flexibility to address crises. Indeed, within the ECHR framework, Article 15 is one such clause that allows Council of Europe (CoE) member states to temporarily diverge from their ordinary convention obligations to resolve an emergency, provided certain conditions are met. During the coronavirus pandemic, derogation clauses such as Article 15 of the ECHR, have gained particular importance, as so far 10 CoE member states have notified their intention to derogate from certain ECHR provisions in order to tackle the outbreak. This briefing explains the functioning of Article of the 15 ECHR and its application to the current health emergency. Furthermore, it lists some fundamental rights and freedoms that have been affected by the coronavirus emergency measures, while also showcasing how Member States have sought to reconcile measures to protect public health with the fundamental rights principles enshrined in the ordinary framework of the ECHR. The briefing also stresses that it is key to protect the human rights of vulnerable persons, including during the implementation of recovery strategies.

Coronavirus and elections in selected Member States

17-06-2020

With the outbreak of the coronavirus pandemic, many countries around the world that were or are due to organise elections or referendums, have had to decide whether to hold them as originally planned, introducing mitigating measures, put them on hold or postpone them to a later date. When deciding whether to continue with elections or not, decision-makers have needed to take into account a variety of legal, technical and sanitary parameters and implications, as well as constitutional arrangements ...

With the outbreak of the coronavirus pandemic, many countries around the world that were or are due to organise elections or referendums, have had to decide whether to hold them as originally planned, introducing mitigating measures, put them on hold or postpone them to a later date. When deciding whether to continue with elections or not, decision-makers have needed to take into account a variety of legal, technical and sanitary parameters and implications, as well as constitutional arrangements, to ensure that democratic institutions function as they would in normal circumstances and to ensure people's fundamental rights and freedoms are upheld. While postponing an election may be the most feasible and responsible option from the public health perspective, the decision may open the door to other risks, including undermining people's trust in democracy and casting doubt on the regular nature of elections. However, as experts suggest, democracy can also be undermined by holding elections during the pandemic, as their free and fair nature might be questioned. In order to protect election staff and voters, health and safety procedures can be built into election-related procedures, and special voting arrangements can be introduced, such as postal or e-voting, that allow citizens to cast their votes remotely. These entail other technological, security and social challenges, however, that need to be taken into account. This briefing provides example of how selected EU Member States have dealt with elections and referendums that were due to take place during the coronavirus pandemic.

States of emergency in response to the coronavirus crisis: Situation in certain Member States II

13-05-2020

Member States have adopted a range of emergency measures in response to the unprecedented public health crises generated by the coronavirus pandemic. Whereas not all Member States dispose of constitutional mechanisms to enable the declaration of a 'state of emergency', all have taken exceptional and far-reaching emergency measures that affect citizens' rights and freedoms as well as democratic processes. These institutional changes and the restrictions imposed on citizens' lives pose significant ...

Member States have adopted a range of emergency measures in response to the unprecedented public health crises generated by the coronavirus pandemic. Whereas not all Member States dispose of constitutional mechanisms to enable the declaration of a 'state of emergency', all have taken exceptional and far-reaching emergency measures that affect citizens' rights and freedoms as well as democratic processes. These institutional changes and the restrictions imposed on citizens' lives pose significant institutional and democratic challenges. Given their impact on fundamental rights and freedoms and on the normal functioning of democracy, emergency measures need to be carefully examined, matched with adequate legal safeguards, and subject to close democratic scrutiny. This is particularly true in the context of rapid changes of circumstances and in view of new evidence about the evolution of the crisis and its implications. This briefing covers the following countries: Bulgaria, Estonia, Latvia, Malta, Austria, Romania, and Slovenia. It focuses on three key aspects: i) the constitutional framework of the state emergency or legitimation of the emergency legislation; ii) the concrete measures adopted; and iii) the extent of parliamentary oversight exercised on the adopted measures. This briefing is the second in a series aimed at providing a comparative overview of Member States' institutional responses to the coronavirus crisis. The first in the series covered an initial set of seven Member States.

Tackling the coronavirus outbreak: Impact on asylum-seekers in the EU

22-04-2020

To curb the spread of coronavirus and to protect their populations, the EU and its Member States have restricted crossings of their external borders, and many internal EU borders, as well as restricted freedom of movement within their territory. These steps have also served to address the challenges the pandemic has posed to public order, public health and national security. However, the resulting restrictions on people's movement and access to EU territory could disproportionately affect the most ...

To curb the spread of coronavirus and to protect their populations, the EU and its Member States have restricted crossings of their external borders, and many internal EU borders, as well as restricted freedom of movement within their territory. These steps have also served to address the challenges the pandemic has posed to public order, public health and national security. However, the resulting restrictions on people's movement and access to EU territory could disproportionately affect the most vulnerable, among them asylum-seekers-already in the EU or trying to reach its territory to seek asylum. The situation of asylum-seekers during the current pandemic is especially critical in the EU hotspots; Greece, for instance, whose reception capacity has been stretched to the limit, is struggling to ensure the safety of the most vulnerable asylum-seekers, especially unaccompanied minors. While the EU has been assisting Greece to protect stranded asylum-seekers, NGOs and international organisations as well as the European Parliament have called for greater efforts to improve their living conditions and ensure the preventive evacuation of those at high risk. Several Member States have adopted emergency measures to deal with the pandemic. To protect public health, they have closed their external borders and ports to asylum-seekers, suspended asylum procedures and returns, and imposed mandatory confinement in asylum reception centres to restrict freedom of movement. All those measures risk having a negative impact on asylum-seekers' fundamental rights under EU and international law.

Solidarity in EU asylum policy

23-03-2020

The unprecedented arrival of refugees and irregular migrants in the EU in 2015 exposed a number of deficiencies in EU external border, asylum and migration policy, sparking EU action through various legal and policy instruments. While the EU has been relatively successful in securing external borders, curbing irregular migrant arrivals and increasing cooperation with third countries, Member States are still reluctant to show solidarity and do more to share responsibility for asylum-seekers. International ...

The unprecedented arrival of refugees and irregular migrants in the EU in 2015 exposed a number of deficiencies in EU external border, asylum and migration policy, sparking EU action through various legal and policy instruments. While the EU has been relatively successful in securing external borders, curbing irregular migrant arrivals and increasing cooperation with third countries, Member States are still reluctant to show solidarity and do more to share responsibility for asylum-seekers. International cooperation and solidarity is key in helping to manage migration to and between states. Under international law, countries have certain legal obligations to assist and protect refugees that they accept on their territory, but the legal duties of other states to help and share that responsibility are less clear. At EU level, the principle of solidarity is set out in Article 80 of the Treaty on the Functioning of the European Union (TFEU), however there is currently no consensus on whether it can be used as a stand-alone or joint legal basis for secondary legislation. Furthermore, the notions of 'solidarity' and 'fair sharing of responsibilities' for refugees or asylum-seekers are not defined in EU law. This has prompted EU institutions, academics and other stakeholders to propose different ways to resolve the issue, such as sharing out relevant tasks and pooling resources at EU level, compensating frontline Member States financially and through other contributions – such as flexible solidarity – and changing the focus of the European Court of Justice when interpreting EU asylum law. In recent years, the EU has provided the Member States most affected by migrant arrivals with significant financial and practical support, notably through the EU budget and the deployment of personnel and equipment. Nevertheless, the continued failure to reform the EU asylum system, as well as the implementation of temporary solidarity measures based on ad-hoc solutions, has exposed a crisis of solidarity that shows no signs of being resolved. The von der Leyen Commission has made it clear that the new EU asylum system 'should include finding new forms of solidarity and should ensure that all Member States make meaningful contributions to support those countries under the most pressure'.

Emergency measures on migration: Article 78(3) TFEU

06-03-2020

Article 78(3) of the Treaty on the Functioning of the European Union (TFEU) provides for the adoption of provisional measures in emergency migratory situations at the EU's external borders. It was first used during the 2015 migration crisis. On the basis of that article, the Council of the EU adopted binding decisions providing for the relocation from Italy and Greece of 160 000 people so as to ensure a fair and balanced distribution of, and sharing of responsibility for, asylum-seekers who were ...

Article 78(3) of the Treaty on the Functioning of the European Union (TFEU) provides for the adoption of provisional measures in emergency migratory situations at the EU's external borders. It was first used during the 2015 migration crisis. On the basis of that article, the Council of the EU adopted binding decisions providing for the relocation from Italy and Greece of 160 000 people so as to ensure a fair and balanced distribution of, and sharing of responsibility for, asylum-seekers who were already present in the EU. However, despite most Member States' willingness to relocate asylum-seekers, some challenged the Council's decision before the Court of Justice of the EU (CJEU) or refused to help implement the decision. On 1 March 2020, in the light of events on its Turkish border, Greece announced that it wanted Article 78(3) TFEU to be used to ensure full EU support in the situation of a sudden influx of third-country nationals into the EU.

Family reunification rights of refugees and beneficiaries of subsidiary protection

14-02-2020

Separation of family members can have devastating consequences on their well-being and ability to rebuild their lives. This is true for everybody, but especially so for persons who have fled persecution or serious harm and have lost family during forced displacement and flight. In the case of beneficiaries of international protection, family separation can affect their ability to engage in many aspects of the integration process, from education and employment to putting down roots, as well as harming ...

Separation of family members can have devastating consequences on their well-being and ability to rebuild their lives. This is true for everybody, but especially so for persons who have fled persecution or serious harm and have lost family during forced displacement and flight. In the case of beneficiaries of international protection, family separation can affect their ability to engage in many aspects of the integration process, from education and employment to putting down roots, as well as harming their physical and emotional health. That is why family reunification is a fundamental aspect of bringing normality to the lives of such people. While EU law ensures refugees and holders of subsidiary protection – the two types of beneficiaries of international protection – equal treatment in most areas, differences remain, among others, as regards family reunification in accordance with the Family Reunification Directive. Unlike refugees, beneficiaries of subsidiary protection do not enjoy the favourable conditions associated with the right to family reunification. After 2015, most EU Member States witnessed a significant increase in the number of asylum-seekers arriving in their territory, paralleled by an increase in the number of beneficiaries of international protection seeking reunification with their families. To establish some form of control over this unprecedented flow of people, Member States shifted away from awarding refugee status towards granting subsidiary protection, thus restricting the possibility of beneficiaries to reunite with their families. According to many legal experts, the fact that beneficiaries of subsidiary protection face stricter requirements regarding family reunification than do refugees disregards the particular circumstances related to their forced displacement and the corresponding difficulties they are likely to face in meeting these stricter requirements.

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