3rd Feb 2023


New deregulation will see EU states cherry-picking asylum law

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The Czech presidency of the Council of the European Union is currently pushing fast for the adoption, before the end of 2022, of the so-called Instrumentalisation Regulation.

This legislative proposal initially dates from December 2021 and stems directly from a previous EU Commission proposal aiming at introducing a series of emergency measures to address the migratory situation at the eastern borders of the EU, between Latvia, Lithuania, Poland and Belarus.

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As detailed in a joint statement led by the European Council on Refugees and Exiles (ECRE) and signed by 80 civil society organisations including EuroMed Rights, the regulation would allow member states to derogate from their responsibilities under EU asylum law in situations when migration flows are "instrumentalised" for political purposes.

In simpler words, when people on the move are used as bargaining chips in geopolitical games.

Through this mechanism, member states would permanently be able to derogate at will from their obligations under EU asylum law.

The regulation introduces a series of disproportionate measures which will have severe negative consequences for people on the move. The first and main concern raised by the potential adoption of the regulation is the possibility to introduce derogations to EU asylum law.

This would de facto create a cherry-picking system between EU member states which would reduce the fundamental rights guaranteed under EU law. This would be detrimental to the right of migrants, asylum seekers and refugees.

The regulation also risks reducing access to asylum and reception conditions. It would reduce the timeframe of the asylum request process and confuse applicants as to where they could lodge an asylum application. It will also increase the use of accelerated border procedures, with a likely consequence of increased detention and reduction in rights guaranteed for refugees and migrants.

Last but not least, under the regulation, the dangerous concept of "instrumentalisation", would be codified into EU law, without a clear definition having been established, and with the risk of involving non-state actors in the "instrumentalisation" process.

This is even more absurd knowing that it is the logic of conditionality imposed by the EU and member states in the negotiation on migration with third countries that led to the blackmail approach seen recently in Belarus, Morocco and Turkey.

What happens next?

Member states (justice and home affairs counsellors on asylum) are due to meet on Wednesday (9 November) to discuss the proposal.

In the meantime, EuroMed Rights, its members and partners as well as all 80 civil society organisations behind the petition will call on EU member sates to counter the regulation and propose significant amendments to the text from the Czech presidency.

Indeed, by creating derogations to EU asylum law, the instrumentalisation regulation undermines the rule of law and creates a dangerous precedent that could be used in other areas of EU law, migration-related or not.

Finally, before adopting measures that substantially impact access to protection and asylum of migrants and refugees, it is paramount that member states implement a pre-risk assessment on the impact any decision will have on the fundamental rights of people on the move.

This article was updated on Wednesday 9 November to clarify that the proposal will be discussed, not voted upon.

Author bio

Elena Bizzi is coordinator of the migration & asylum programme at EuroMed Rights, and works with several NGOs on the protection of migrants' and refugees' rights.


The views expressed in this opinion piece are the author's, not those of EUobserver.

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