BAKGRUNN (fra kommisjonsforslaget)

In September 2019, European Commission President Ursula von der Leyen announced a New Pact on Migration and Asylum, involving a comprehensive approach to external borders, asylum and return systems, the Schengen area of free movement and the external dimension.

The Communication on a New Pact on Migration and Asylum, presented together with a set of legislative proposals, including this proposal addressing situations of crisis and force majeure in the field of migration and asylum, represents a fresh start on migration. The aim is to put in place a broad framework based on a comprehensive approach to migration management, promoting mutual trust among Member States. Based on the overarching principles of solidarity and a fair sharing of responsibility, the new Pact advocates integrated policy-making, bringing together policies in the areas of asylum, migration, return, external border protection and relations with third countries.

The New Pact builds on the Commission proposals to reform the Common European Asylum System from 2016 and 2018 and it adds new elements to ensure the balance needed for a common framework that contributes to the comprehensive approach to migration management through integrated-policy making in the field of asylum and migration management, including both its internal and external components. As part of this framework, it is necessary to put in place a system with tools necessary to deal with crisis situations and situations of force majeure.

The solidarity mechanism established by the Regulation on Asylum and Migration Management is flexible and responsive in design in order to be adjustable to the different situations presented by the different migratory challenges faced by the Member States, by setting solidarity measures from among which Member States can choose to contribute. This new approach to solidarity provides continuous and diverse support to Member States under pressure or risk of pressure and includes a specific process to address the specificities of disembarkations following search and rescue (SAR) operations. In the same vein, the procedural rules set out in the new Asylum Procedures Regulation will increase the overall efficiency and coherence of the asylum and migration management systems. Taken together with the wider set of measures that should be applied as part of the comprehensive approach to asylum and migration management, the Union and its Member States should be better prepared to avoid that a situation of crisis arises in the field of migration and asylum.

However, it cannot be excluded that a situation of crisis will arise given the various factors operating outside the control of the Union and its Member States, as recent experience demonstrates. As our experience during the 2015 refugee crisis also shows, the Union needs a structured approach to handle crisis in order to avoid ad hoc responses. It is therefore appropriate that the legislative framework operating in this field is complemented by an instrument that ensures that the Union has at its disposal specific rules that can address the exceptional situation of crisis in an effective manner, complementing the compulsory solidarity mechanism and the procedures that normally would apply. Such rules would provide for appropriate procedural rules and derogations and a rapid triggering of solidarity to the benefit of one or more Member States to respond to crisis situations of such a magnitude that put under significant strain even well prepared and functioning asylum and migration management systems.

This crisis instrument therefore covers exceptional situations of mass influx of third-country nationals or stateless persons arriving irregularly in a Member State, being of such a scale and nature that it would render a Member State’s asylum, reception or return system non-functional and which risk having serious consequences for the functioning of, or result in the impossibility of applying, the Common European Asylum System and the migration management system of the Union. Situations where there is a risk of such arrivals will also be covered. The proposed Regulation also addresses situations of force majeure in the field of asylum and migration management within the Union. It provides the necessary adaptation to the EU rules on the asylum and return procedures as well as to the solidarity mechanisms set out in the Regulation (EU) XXX/XXX [Asylum and Migration Management].

This proposal, together with the proposal amending the 2016 proposal for an Asylum Procedures Regulation 1 , the new proposal for a Regulation on Asylum and Migration Management 2 , the proposal introducing a screening 3 and the proposal amending the Eurodac proposal 4 , establish the legislative framework that puts this comprehensive approach to migration and asylum management into practice.

The proposal amending the 2016 proposal for a recast Eurodac Regulation 5 puts in place a clear and consistent link between specific individuals and the procedures they are subjected to in order to better assist with the control of irregular migration and the detection of unauthorised movements. It also supports the implementation of the new solidarity mechanism established by the Regulation on Asylum and Migration Management, provides the necessary consequential amendments that will allow Eurodac to function within the interoperability framework, and will support Member States in monitoring the granting of assistance for voluntary return and reintegration.

The reform aims to tackle the fact that, despite significantly increased cooperation at EU level, including as regards support from EU agencies, Member States’ asylum, reception and return systems remain largely not harmonised. This creates inefficiencies and has the unintended consequence of not providing the same fair treatment to asylum seekers throughout Europe and incentivising therefore the movement of large numbers of migrants across Europe to seek better conditions and prospects for their stay. In this context, the Commission supports the provisional political agreements already reached on the Qualification Regulation, the Reception Conditions Directive, the EU Resettlement Framework Regulation and the EU Agency for Asylum Regulation. These should be finally adopted as soon as possible. The negotiations on the recast Return Directive 6 should also be swiftly concluded, together with the reform of the Common European Asylum System, to ensure that EU rules are successful in preventing absconding, providing assistance to voluntary returns and streamlining administrative and judicial procedures, reinforcing the effective functioning of the asylum and migration management systems.

The overall objective of the proposal is to provide for the necessary adaptation of the rules on asylum and return procedures (Asylum Procedures Regulation and Return Directive 7 ) as well as of the solidarity mechanism established in the Regulation on Asylum and Migration Management, in order to ensure that Member States are able to address situations of crisis and force majeure in the field of asylum and migration management within the EU. Such situations may occur very quickly and be of such a scale and nature that they require a specific set of tools in order to be effectively addressed. For this purpose, a simplified procedure and shortened timeframes are set out for triggering the compulsory solidarity mechanism provided for situations of pressure in the Regulation on Asylum and Migration Management. The rules and measures set out in this proposal to address a situation of crisis are in addition to the operational and technical support the European Union Agency for Asylum can provide 8 in case the Member State’s asylum or reception systems are subject to disproportionate pressure.

Moreover, the solidarity mechanism procedure in situations of crisis provides for a wider scope for relocation and reinforces the possibility for Member States to provide assistance to each other in carrying out returns, in the form of return sponsorship. According to the normal rules established in the Regulation on Asylum and Migration Management, Member States providing return sponsorship commit to returning irregular migrants on behalf of another Member State, carrying out all the activities necessary for this purpose directly from the territory of the benefitting Member State (e.g. return counselling, leading policy dialogue with third countries, providing support for assisted voluntary return and reintegration). When return is not finalised within eight months, the irregular migrants would be transferred to the territory of the sponsoring Member State in view of finalising the enforcement of return. The return sponsorship in situations of crisis provided for in this proposal differs from the one in the Regulation on Asylum and Migration Management because the obligation to transfer the irregular migrant is triggered if the person concerned does not return or is not removed within four months.

The proposal also includes provisions related to crisis situations which allow for certain derogations from the proposed Asylum Procedures Regulation. In particular, it will be possible to extend the scope of application of the border procedure to third-country nationals and stateless persons whose EU-wide first instance recognition rate is 75% or lower, in addition to the grounds already provided by the Asylum Procedures Regulation, as well as to extend the duration for the examination of an application of international protection under the border procedure by an additional eight weeks. It is also proposed to allow Member States to derogate from the provisions on registering applications for international protection with a longer deadline of four weeks.

Moreover, the proposal provides for the possibility to derogate from certain provisions on the border procedure to carry out return as set out in the proposed Asylum Procedures Regulation and in the Return Directive, in order to facilitate the enforcement of such procedures in situations of crisis, when specific adjustments are needed to allow the competent authorities under strain to exercise their tasks diligently and cope with significant workload. For this purpose, the proposal extends the maximum duration of the border procedure for carrying out return by an additional period of eight weeks (the proposed Asylum Procedures Regulation sets the maximum time-limit to twelve weeks) and introduces new specific and well-targeted cases, additional to the ones set in the proposal for a recast Return Directive, in which the existence of a risk of absconding in individual cases can be presumed, unless proven otherwise. The return crisis management procedure is without prejudice to the possibility for Member States to derogate from the application of the Return Directive by virtue of Article 2(2)(a) of that same Directive, in relation to illegally staying third-country nationals apprehended in connection with the irregular crossing by land, sea or air of the external border of a Member State and who, following the screening carried out in accordance with Regulation (EU) No XXX/XXX [Screening Regulation], have not subsequently obtained an authorisation or right to stay in that Member State (e.g. did not apply for international protection).

To enable Member States and the Union to deal effectively with situations of force majeure, as in the situation experienced due to the COVID-19 pandemic declared by the World Health Organisation on 11 March 2020, the proposed Regulation also provides for the possibility for a Member State to extend the time limits set out in the proposed Asylum Procedures Regulation for the registration of applications for international protection, and to extend the time limits for sending and replying to take charge requests and take back notifications and to carry out the transfer to the Member State responsible set out in the proposed Regulation on Asylum and Migration Management. This proposal also provides for an extension of the timeframe for the implementation of the obligation to relocate or undertake return sponsorship when a Member State is in a situation of force majeure which renders it impossible to fulfil these obligations as set out in this Regulation and in the Regulation on Asylum and Migration Management.