EDITORIAL: Syria in the headlines; undermining the right to asylum in the background

By Catherine Woollard

While Europe grappled with the momentous events in Syria, other developments this week may also have a lasting impact on refugees in Europe. As well as a heavy agenda at and in the margins of the Justice and Home Affairs (JHA) Council, on Wednesday the Commission produced a Communication on countering hybrid threats, presented at a less than persuasive press conference.

ECRE’s detailed analysis of the JHA Council and the Communication will follow, however a few preliminary conclusions can be drawn.

First, the coordinated assault on the right to asylum continues…

In the Communication on hybrid threats, the European Commission addresses the situation at the Eastern border and the actions of Belarus and Russia, which are now termed “weaponisation” of migrants rather than instrumentalisation, marking the departure of Commissioner Johanssen who reportedly resisted the former conceptualisation.

The Commission explains the actions the EU has taken and also attempts to explain the legal rules that apply in emergency and exceptional situations. On some of these points, it accurately describes the law, on other perhaps less so.

While the statement has been widely interpreted as endorsing the Member States’ actions and marking a new direction for the Commission, that isn’t exactly what is going on.

The Communication is not a greenlight to the Member States to go ahead with limiting the right to asylum or indeed any other restrictive measure. It is not in the Commission’s gift to render unlawful actions lawful. It is also not the role of the Commission to interpret the law, which it seems to be seeking to do, as well as pushing for an expansion of certain legal concepts, including instrumentalisation, and strands of jurisprudence, notably those deriving from the often misrepresented ND and NT case.

In so doing, the Communication could be understood as an attempt to influence three crucial cases pending at the European Court of Human Rights, which concern the states’ actions at the Eastern border. Judgments will be passed by the Grand Chamber in February. The timing and rather rushed nature of the Communication suggests this; the content strongly resembles the arguments made by the State Parties which are intervening in these cases. No doubt a coincidence.

Another explanation may lie in the push from Member States to re-open the EU’s legal framework in order to revise provisions on “instrumentalisation”. As ECRE has covered extensively, the concept of instrumentalisation was integrated into the Crisis Regulation, which allows for certain derogations from the law in three emergency situations. It doesn’t – however – allow for states to suspend the right to asylum and that is what they seek.

The Commission may be reluctant to launch new legislative proposals – and it should be. If priority is implementation of the Pact, that will be doomed if a new reform process begins. With the Communication, the Commission is suggesting that Member States can do what they want within the current legal framework. Thus, a tactic of construing the law to support the claim that unlawful actions are lawful rather than changing the law in order to render them supposedly lawful.

The JHA Council for its part emphasised and strengthened border management and kept the focus on implementing the Pact, skirting around the issue of potential reform: Strategic Guidelines on planning refer to “strengthening” the legal framework but with no further details. On implementation, allowing “frontloading” of the Pact is also as way to keep Member States committed to implementation rather than reform – a letter from the Commission explaining the measures that can be brought forward shows many of the political priorities of key states.

As ECRE has previously argued, proper implementation of the law, genuinely in line with EU primary law and international law, is now key. Otherwise the system will unravel.

Second, …but these developments do not mark a dramatic new policy

While some of the argumentation is new and presumably aimed at a Strasbourg-ian audience, not much changes in practice. Since 2021 when the actions of Belarus triggered a crisis at the Eastern border, Member States have engaged in all kinds of actions of questionable legality and indeed have changed their national laws in order to do so and in ways that appear not to conform with EU and international law – and very little has been done in response. It is clear that an EPP-dominated and -led Commission will never act against the current government of Poland. But the previous Commission wasn’t acting against the previous Polish government either.

On the contrary, when states and political actors seized upon the 2021 crisis to justify a more restrictive approach, the Commission obliged with the launch of the Instrumentalisation Regulation proposal. Wider ranging derogations that didn’t make it into the Pact in 2023, returned by the backdoor. When the Member States failed to agree a position on the Instrumentalisation Regulation and it looked like it might fade away, the Swedish Presidency, Commission and European Parliament worked together to integrate the provisions into the Crisis Regulation.

But it wasn’t enough – of course it wasn’t. For some states, nothing less than the end of the right to asylum will be enough. They want to be able to ignore the core principle of non-refoulement and to push back with impunity. The EU institutions should not be abetting this, neither by ignoring non-compliance nor by changing the law. But how this story ends will be determined by the courts.

Third, anti-smuggling reforms are part of the general trend

At the JHA Council, Member States reached decisions inter alia on fully integrating Bulgaria and Romania into Schengen, on the new Entry-Exit System, and on access to data. The “innovative solutions” discussion was confined to lunch and no doubt featured all the old favourites. In a decision which will also have consequences for refugees, the Member States agreed on a common position on the proposed Directive on minimum rules to prevent migrant smuggling. The Directive replaces the existing Facilitation Directive and sets revised minimum rules on combating the facilitation of “unauthorised entry, transit and stay”.

ECRE will analyse the Member States’ amendments to the Commission’s proposal in detail, suffice to say that the Council position either reinforces or worsens the points of concern. These include a very broad definition of facilitation, not fully aligned with the UN’s, and relatedly, very narrow exemptions covering humanitarian actors. In parallel, the Directive will not address state efforts to criminalise humanitarian action, such as rescue at sea and provision of basic support to people on territory. As well as the broad definition of facilitation, this is also due to the introduction of a new and ill-defined offence of “public instigation”, which may even capture those who provide information, as well as the fact that the Directive sets out only the minimum rules, allowing states to ignore them and introduce their own provisions, which often support the criminalisation trend.

The fight against the smugglers, including the infamous destruction of their “business model” should properly be understood as part of the battle against refugees. In the absence of safe routes, people need to use smugglers to reach safety and efforts to crack down on smugglers are a sanitised way to crack down on refugees, although the impact is often the opposite as restrictions increase the cost smugglers can charge, generating a boom and attracting ever more serious and dangerous organised criminal groups.

Fourth, on Syria – the diplomats are leading for now

The EU’s response to the momentous events in Syria has been led by Kaja Kallas, EU High Representative for Foreign Affairs and Security Policy, and should remain firmly in the hands of the foreign policy actors. The JHA Council appears not to have touched upon it, although Commissioner Brunner rightly underlined the need for caution given the uncertain situation during the press conference. While the EU is a minor player in the region it could still play a useful role in supporting Syrians to manage an inclusive transition. The EU institutions and European states have extensive experience – good and bad (and very bad) – of supporting peace and justice following the fall of repressive regimes and in post-conflict environments, and the EU will provide funding which buys itself a seat in the process. Kallas has underlined the need to support Syrian leadership and to work with regional and international partners.

For the internal side, a priority will be to ensure that Member States manage refugee returns in a lawful and smart manner. The Commissioner rightly underlined the importance of voluntary return. Beyond that, strict rules apply to cessation of status and solid analysis of the situation in country is essential. Pausing asylum applications has started and is allowed under certain circumstances but was hardly priority on day one. ECRE suggests that detailed guidance and management of a collective approach by the Commission is essential for future JHA Councils.

In a week of dramatic events, while the discussion of stripping protection from one group of refugees was “morally irresponsible” as noted above, the efforts in the background to remove the right to asylum for all refugees may be more dangerous in the long term.