EDITORIAL: Migration policies drifting ever further away from evidence, stranded ever closer to inhumanity

By Julie Lejeune

Taking stock of recent European policy developments in the field of asylum and migration, most prominently the recent Justice and Home Affairs (JHA) Council meeting, requires a clear head as new lows have been reached in terms of respect for fundamental rights. Here is an overview.

1. Balancing responsibility and solidarity: the forgotten ‘humanity’ factor

The overall ambition for solidarity in 2026 has been set at 21,000 relocations or other solidarity efforts or EUR 420 million in financial contributions. The countries that the European Commission (EC) found to be “under migratory pressure” and which can therefore benefit from the solidarity pool are Cyprus, Greece, Italy and Spain. A separate group of countries (Austria, Bulgaria, Croatia, Czechia, Estonia and Poland) have been identified as facing a “significant migratory situation” due to the cumulative migratory pressure of the previous years. They have the possibility to request a full or partial deduction from their contributions to the solidarity pool. A third group of countries considered to be “at risk” of migratory pressure will have priority access to the EU Migration Support Toolbox which includes assistance by EU agencies and support from EU funds.

While it is positive that the EC has recognised most Mediterranean countries as being under pressure, the extent to which they can actually benefit from solidarity measures will be dependent on the evaluation of whether their asylum and reception systems suffer from systemic shortcomings, and this has been postponed until 2026 when the full system will become operational. For countries such as Italy and Greece, this means that they are expected to resolve obstacles to accepting people returned under Dublin; in Italy’s case, a declared suspension of incoming Dublin transfers.

The agreement on the solidarity pool is positive as it finally signals that the solidarity side of the Pact is receiving attention. Whether the promise of solidarity will be delivered on in reality remains to be seen. Likewise, whether the question of assessing the shortcomings of EU member states’ (MS) systems goes beyond the limited question of Dublin transfers to a more comprehensive assessment of compliance with EU asylum rules is also uncertain.

Of course, the establishment of the solidarity pool has to be seen in the overall context of the Pact and the Asylum and Migration Management Regulation (AMMR) which preserves the system in which the allocation of responsibility rests largely with the MS of first entry and, therefore, inherits many of the structural problems of the current Dublin system. ECRE’s recent statistical update on Dublin highlights its various flaws. The solidarity mechanism is nothing more than an attempted corrective layer on top of an unfair system; the chance of a fundamental overhaul of the responsibility rules has been missed.

While allowing different forms of contribution to count as solidarity may make the mechanism more workable, it also (1) dilutes what “solidarity” means in practice and may reduce the impact for both applicants and MS under pressure; and (2) provides for a quasi-permanent negotiation of MS’ contributions on which the solidarity mechanism relies, which is not favourable to mutual trust between them. Focusing on the forms of solidarity that involve individuals would be key to addressing this. Both the primary form of solidarity (i.e. relocations) and responsibility offsets should remain the priority (rather than defaulting to financial or capacity support). Ensuring transparency on the choices made and criteria used by MS is equally important. For instance, financial contributions or capacity support could be directed to support border control or develop infrastructure, rather than improving reception or access to rights.

2. The strategy of limiting access to protection for refugees in Europe is further embodied

A general approach was found for all of the legislative proposals on the agenda of the recent JHA Council meeting. The files under discussion were (1) two amendments to the Asylum Procedure Regulation (APR) that seek to mainstream and expand the “safe country” concepts (i.e. safe country of origin (SCO), safe third country (STC) and first country of asylum) as instruments for harmonising and accelerating asylum processing across MS and, (2) the proposal for a Return Regulation.

2.1 Safe countries and territories: a theory of relativity

In substance, the Council added new aggravating measures to the various major issues already identified with the amendments to the APR. These include the presumption that all EU candidate countries and several additional third countries are considered “safe” despite well-documented human rights risks for several groups of their nationals, and the weakening of both the connection criterion and of appeal rights.

New additions regarding SCOs include:

• adjustments to the exclusion criteria for SCOs that would allow MS to treat applications from nationals of Türkiye and Ukraine under accelerated procedures;
• a process allowing the EC to assess if a country of origin is partially safe (i.e. specific parts of its territory) or only for certain categories of people (provided the categories are clearly identifiable);
• a clarification that the 20% rule – a ground for procedural acceleration of applications made by nationals who do not reach a 20% recognition rate – relates to a recognition rate at first instance;
• allowing MS to frontload SCO as a ground for acceleration from the date of approval of the text.

New additions regarding STCs include:

• a broad definition of transit (passing through or being at the border or in a transit zone would constitute transit);
• the possibility of applying the STC concept not only based on an agreement between MS but also on a non-binding arrangement providing it contains provisions requiring the examination of the merits of any request for effective protection (irrespective of the case processing modalities, including simplified, group or prima facie procedures);
• application of the STC concept to unaccompanied children in case either the transit or connection criteria applies;
• the lack of an automatic right to remain on the territory of a MS when an appeal is lodged against an inadmissibility decision when the applicant is holding a protection status in another MS.

2.2 Agreements on returns: humanity at a loss or lost humanity

The EC’s proposal for a Return Regulation already marked a significant step backwards by weakening safeguards, introducing more punitive measures and further narrowing the space for rights-based approaches within the EU return framework (see ECRE’s detailed analysis on the proposal here and a summary here). The Council’s position suggests that MS should be able to effectively frontload a series of provisions (e.g. expansion of countries of return, establishment of return hubs and mutual recognition of return decisions) while the rest of the Regulation would only come into effect two years later.

The list of provisions on which the wide political consensus was achieved could fill a reader with dread:

• potentially indefinite immigration detention, up to 30 months per MS, including for children;
• optional alternatives for detention, limited to three options ((1) financial guarantees by returnees; (2) electronic monitoring; and (3) measures provided by national law;
• no requirement to determine the country of return in the return decision;
• broadened grounds and scope for issuing an entry ban;
• far-reaching duties on individuals to continuously demonstrate co-operation (e.g. pending financial penalties, reduction in support intended for reintegration after removal and even criminal detention);
• broadened search and visit powers for authorities, including possibility to confiscate personal items, home inspections…;
• weakened assessment of non-refoulement risk during appeal process (e.g. no more ex officio obligations, possibility of effective removal while an appeal is pending, possibility of return decisions being issued even where there is a risk of violation of the principle of non-refoulement (provided the effective removal is suspended)).

The European Parliament’s (EP) Committee on Civil Liberties, Justice and Home Affairs (LIBE) adopted its position on the APR amendments in early December with the support of a coalition of the European People’s Party (EPP) and the far-right groups, the so-called ‘Venezuela coalition’, effectively breaching the cordon sanitaire that has existed in the EP for decades. For both the SCO and the STC file, the EP’s position is extremely close to that of the Council, leaving very little hope that any of the multiple risks to people’s ability to access to asylum in Europe will be addressed during the trilogue.

That said, there is an ongoing attempt to challenge the EP’s draft reports in next week’s plenary which should be supported by all MEPs who are committed to protecting access to asylum in Europe.

On the Return Regulation, the Council’s position diverges significantly from the EC’s proposal and even more so from the EP’s draft report which is currently being discussed in the LIBE Committee. The hope here is that the rapporteur will seek to form a majority with progressive parties.

3. Denying the fundamental rights, manufacturing the disenfranchised

Keeping a clear head, one would state the obvious: while MS claim the European ‘new comprehensive approach to migration (…) should go hand in hand with full respect for fundamental rights’, the means they consistently choose to achieve their declared goals are what have been documented for decades as the most detrimental to fundamental rights: extended deprivation of liberty as a default setting, accelerated procedures, limited access to legal support and reduced appeal rights, detection of vulnerabilities by means of a written form, jeopardising legal certainty by allowing partial frontloading… This is the final demonstration of many MS’ strong taste for performativity when it comes to upholding the fundamental rights of people on the move.

We are all left with the question of the sheer compatibility of these provisions with regional and international legal frameworks, from Article 2 of the Treaty on European Union to Article 5 of the European Convention on Human Rights to which the EU is a party, including the whole the EU acquis and the very ius cogens nature of the non-refoulement principle. Not to mention the question of implementation and how all actors involved at national level will manage to operate the more than 5000 pages of new legislation by 12 June 2026, amidst the multiple options for frontloading bits and pieces of each new legal instrument.

This week also marks the 25^th anniversary of the EU Charter of Fundamental Rights. The EU institutions committed to take it into account in the design and implementation of legislation or policies both on internal EU issues and in its external relations. This is clearly at odds with the current active manufacturing of a constantly larger group of disenfranchised people, the deliberate aggravation of humane suffering and the blanket imposition of time- and resource-heavy measures that are clearly not evidence-based.