After the recent breakout of Belarus border crisis, involving Lithuania, Latvia and Poland, the Council invited the Commission to adopt a proposal providing concrete measures to ensure an immediate and appropriate support to the Member States concerned. The proposal in question should be in line with EU law and international obligations, including the respect for the fundamental human rights.
Since the summer 2021, an increasing number of illegal crossings of the EU external border with Belarus has been witnessed. In particular, at the moment there are up to 2.000 migrants stranded at the Poland-Belarus border attempting at forcing the entrance in the territory. This is the area where the crisis reached the highest level of violence with clashes that have involved Polish policy officers and migrants.
The Commission has declared that this phenomenon should be considered as a “hybrid attack” orchestrated by Lukashenko’s regime in response to the recently imposed EU sanctions to punish the Belarus fraudulent elections and the crackdown on civil society and opposition, as well as the forced landing of the Ryanair flight in May. The reason why it is defined as “hybrid attack” lies in the fact Belarus authorities, with the cooperation of travel agents, airlines and a network of smugglers, are held liable for the arrival of thousands of migrants to Minsk and their transport to the EU external border. Evidence has been found of the involvement of the Belarusian authorities in pushing migrants to cross the EU border even providing them with the tools to cross the barriers and preventing them from returning to the cities. In view of that, it is clear, not only for the European institutions but also for their international allies, that Lukashenko has exploited migration strategically not only to put pressure on the EU to abandon sanctions, but also to create discord within the bloc through an humanitarian crisis.
On December 1, the Commission adopted a proposal that provides emergency measures to allow Poland, Latvia, and Lithuania to derogate some specific provisions, set out in the Asylum Procedures Directive, in the Reception Conditions Directive and in the Return Directive, to manage the situation in the full respect of the international obligations and fundamental rights. In particular, the principle of non-refoulement enshrined in the Article 33 of the 1951 Refugee Convention and in the Article 19 of the Charter of Fundamental Rights of the European Union must be respected when derogations are applied to the Return Directive.
These measures will remain in force for a period of six months, at the end of which they may be extended or repealed, and will be valid only for non-EU nationals who have irregularly entered the EU territory and who are, or will be, at the vicinity of the border intending to cross it.
The main features of the proposal contained in the Chapter II regard the asylum and the return procedure, the material reception conditions and the specific guarantees.
The Derogation from the Asylum Procedure Directive allows the Member States involved to extend the period of registration for asylum applications up to four weeks, instead of the 3 to 10 days provided by the Article 6(1) of the Directive, giving them the possibility to process all the asylum applications at their border or transit zones, enabling the entrance only for the applicants whose state of health requires specific treatment that cannot be ensured in this areas. It establishes also the faculty for the Member States in question to extend the time limit before granting access to the territory up to 16 weeks, during which they may process all the asylum application including the appeal. Then, the article concerning the return procedure allows Member States to not apply the Directive 2008/11/EC and, instead, to manage through simplified and quicker national procedures the return of third-country nationals whose application for international protection is rejected. Specifically, the national procedures of return in question must respect the principle of non-refoulement and have to take into account the best interested of the child, the integrity of the family and the health of the third-country nationals involved. Regarding to the material reception conditions, the proposal sets out the chance for Latvia, Lithuania and Poland to derogate from the Directive 2013/33/EU in relation to the applicants apprehended or present in the proximity of the border after an unlawful entry or after having found them at the border crossing points, ensuring the duty of these Member States to provide the applicant’s basic needs, in particular food, water, clothing, adequate medical care and temporary shelter in the full respect of human dignity.
The proposal presented by the Commission has raised several critics from civil society and international organisations. The main element of criticism, moved against the Commission, concerns the dangerousness of this emergency measures that could appear as an authorization for the Member States to carry out aggressive policing against third-country nationals who try to enter in the territory of the EU unlawfully.
Surely, the most controversial element of the proposal regards the extension of the time accorded to Latvia, Lithuania and Poland in order to deal with the registration and the examination of the claims for the international protection. The latter measures, combined with the possibility for those Members States to process all the applications, including the appeal, at the border or in the transit zones, according to critics, would expose the applicants at the risk of being subjected to violence, forced pushbacks and summary removals, as well as to inhuman conditions.
In addition, one further point on which the opposition to the proposal in question is based, lies in the fact that it has been developed after the adoption by Polish Parliament of a legal amendment allowing Polish authorities to push back migrants who have entered illegally and to ban them from entering the country for a period ranging from “six months to three years”. Furthermore, this amendment gives to the authorities the right to not examine the asylum application submitted by a third-country national who has entered unlawfully, unless its life and freedom are threatened.
For a better understanding of the destiny of the proposal under consideration, we should wait for the approval by Council by qualified majority vote, which is expected to happen during the next few weeks, after prior consultation of the European Parliament.
References
“How the Belarus Standoff Is Unlike Recent Migrant Crises”, available at:
“Is the Belarus migrant crisis a ‘new type of war’? A conflict expert explains”, available at: https://theconversation.com/is-the-belarus-migrant-crisis-a-new-type-of-war-a-conflict-expert-explains-171739
“Tensions are rising on the Poland-Belarus border. Here’s what you need to know”, available at:
https://edition.cnn.com/2021/11/11/europe/belarus-poland-crisis-explainer-cmd-intl/index.html
“Belarus border crisis: How are migrants getting there?”, available at: https://www.bbc.com/news/59233244
“Brussels accused of ‘weakening asylum rights’ to deal with Belarus border crisis”, available at: https://www.euronews.com/2021/12/01/brussels-accused-of-weakening-asylum-rights-to-deal-with-belarus-border-crisis
European Commission, “Asylum and return: Commission proposes temporary legal and practical measures to address the emergency situation at the EU’s external border with Belarus”, Press Release (Brussels, 1 December 2021) available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6447
European Commission – High Representative Of The Union For Foreign Affairs And Security Policy, “Joint communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Responding to State-sponsored instrumentalisation of migrants at the EU external border” (Strasbourg, 23 November 2021) available at: https://ec.europa.eu/info/files/communication-responding-state-sponsored-instrumentalisation-migrants-eu-external-border_en
European Commission, “Proposal for a Council decision on provisional emergency measures for the benefit of Latvia, Lithuania and Poland” (Brussels, 1 December 2021), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2021%3A752%3AFIN&qid=1638547296962
By The European Institute for International Law and International Relations.
