EDITORIAL: The proposed European Emergency Response Framework: Old habits die hard
By Julie Lejeune
Some old habits die hard. Earlier this month, the idea to temporarily suspend access to asylum in emergency situations was pushed once again by Greece. This time, it has been presented in the guise of the “European Emergency Response Framework” that was announced in the State of the European Union address in September. And once again, the European Commission (EC) seems to be accommodating EU member states’ (MS) demands to further restrict the rights of people seeking asylum.
Today, the event that apparently requires yet another ad hoc tool is the arrival of an estimated 70,000-80,000 people in Ceuta at the end of July. Back in 2021, it was the unauthorised entry of 7,831 third country nationals into Latvia, Lithuania and Poland from Belarus. As a response, the EC proposed the use of emergency measures – in substance: allow MS to derogate from certain provisions of EU asylum law – in case of the “instrumentalisation of migrants”.
Since then, the concept of instrumentalisation and three special legal regimes that allow for derogations have made it into the Crisis and Force Majeure Regulation (the “Crisis Regulation”). This has been accompanied by the toxic rhetoric that the people themselves are a security threat and could be referred to or treated as if they were some sort of weapon. This is in spite of all accounts showing that in Ceuta this summer, just like at the Belarusian border in 2021, many highly vulnerable groups, including people in need of international protection, are among the arrivals.
The events that occurred in Ceuta in August also illustrate the limited role that the EU Pact on Migration and Asylum (“the Pact”) has played so far in shaping responses to situations of increased arrivals. Despite the existence of new instruments, including the Crisis Regulation, the overall response remained largely based on national measures rather than on the activation of Pact mechanisms.
The Crisis Regulation creates three special legal regimes for managing the asylum system in three situations: crisis – mass influx, crisis – instrumentalisation, and force majeure. It not only codified new legal concepts but also provided for the expanded and more flexible use of restrictive and harmful rules that are mainly found in the Regulation on Asylum and Migration Management (RAMM) and the Asylum Procedures Regulation (APR), including allowing for increased use of the border procedure.
ECRE commented on the potential impact of the Crisis Regulation on international protection in Europe back in May 2024. A little more than four months after the entry into application of the Pact with its lofty ambition of delivering “a comprehensive approach to migration by establishing a seamless link between all stages of the migration process”, it is worth recalling that the creation of derogatory regimes not only adds a set of rules that are so complex that monitoring, enforcement, scrutiny and workability may be challenging, but also works against the harmonisation of the Common European Asylum System (CEAS), by enabling MS to apply different legal rules.
Under EU and international law, anyone seeking asylum at a border, has the right to make an asylum application, irrespective of the manner of their arrival. Hence, legally speaking, the EC cannot give MS what they want. So why is this idea of suspending asylum still entertained and compulsively paired with the claim that the EU will always comply with own values and fundamental rights? What is it that MS would need when the current legal framework already provides flexibility for them to deal with changing events at their borders, including already allowing for derogations, albeit tightly circumscribed by the Treaties and jurisprudence?
These demands appear even more absurd in a year in which the number of people detected trying to cross the EU’s external borders by irregular means has decreased to the lowest level since 2021, irregular crossings of the Mediterranean have fallen for three years in a row and the number of asylum applications is steadily declining.
ECRE’s view remains that most situations at EU borders are manageable and should be approached with a sense of perspective but also that responses should include a firm defence of the right to asylum and of both EU and international law. This was clearly not the case in Ceuta where an estimated 141 people died during the recent border crossings. There is still no clarity about how exactly the screening procedure was applied by the Spanish authorities and, although most of the people who entered the territory on 30-31 July were returned to Morocco within days, many of those who have remained are living in deplorable conditions and, in some cases, have not been able to register an asylum application.
The EC should depart from the line it has held since 2016 that Europe’s dysfunctional asylum system does not deserve enforcement. It should show full ownership for the Treaties and the Pact, and fulfil its role in upholding existing laws: ensuring MS’ consistent, transparent and accountable compliance with the Pact provisions. It should certainly stop entertaining any MS ideas that are clearly incompatible with international law.
EU MS should be actively investing in the comprehensive application of the Pact. ECRE has found that the entry into application of the Pact has not, in itself, resolved existing deficiencies in national asylum systems. In some cases, it has created additional challenges. Applying the ‘Last In First Out’ management rules to asylum applications lodged after 12 June 2026, authorities in the Netherlands are leaving aside more than 54,000 applications for which waiting times will consequently increase. In Germany, applicants subject to AMMR procedures who are hosted in “secondary migration centres” have reduced access to services.
Given that authorities began enforcing directly applicable provisions before the national legal and institutional arrangements needed to give them effect have been fully established, the new rules are unevenly applied and the levels of legal uncertainty have risen critically. This is particularly problematic when national legislation is needed to determine how procedural safeguards and appeal rights should operate in practice. In Italy, field research conducted as the Pact became applicable has identified difficulties in the effective identification of vulnerabilities during screening. According to the healthcare professionals interviewed, the current organisational conditions in the main border areas do not generally allow health and psychosocial assessments to be conducted in full compliance with the model established by the Screening Regulation.
Since 12 June, national asylum systems have faced a number of important challenges, including delayed legislation, persistent situations of non-compliance and, to some extent, worsening conditions that impact the ability of asylum applicants to exercise their rights. EU MS should therefore focus on making the framework that they have already adopted work in practice, in full compliance with the Charter of Fundamental Rights, the Refugee Convention and the principle of non-refoulement. Most importantly, the safeguards contained in the Pact should be fully respected. Clearly, the ongoing debates on further reforms and innovative solutions shift attention away from these challenges. Unless they are deliberate distractions to avoid attention devoted to the current levels of compliance of the national asylum systems with EU law?
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