POST 20 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
By Iris Goldner Lang, Jean Monnet Professor of EU Law, Head of Department of European Public Law and Vice Dean at the Faculty of Law – University of Zagreb.
The term “Instrumentalisation” (of people) can be defined as using human beings as a means to achieve certain ends, or, in other words, treating humans as objects to obtain political or other goals. We can probably all agree that instrumentalisation of human beings, no matter whether they are EU citizens or third-country nationals, is morally unacceptable and that this applies also in the context of migration, asylum and border control policies. However, the concept of instrumentalisation has only recently become regulated in EU law, as a reaction to the developments at the EU’s external borders with Türkiye, Morocco, Russia and, most prominently, Belarus. This blog post will first outline the political developments that led to the regulation of the concept of instrumentalisation. It will then analyse the newly adopted EU rules on instrumentalisation of migrants under the New Pact and critically assess their effects and the safeguards they contain to protect fundamental rights. Notably, the post will explore whether the developments at the EU’s external borders legitimise the increasingly securitised approach towards EU border management and whether they jeopardise the right to seek asylum in the EU. Against this background, the concluding part will suggest that EU level regulation of instrumentalisation is a welcome development as it creates an additional legal basis to ensure that national measures are not unilateral and that they respect the principle of proportionality and the right to seek asylum, while granting Member States a legal tool to rely on, when faced with instrumentalisation.
Developments Leading to the Regulation of Instrumentalisation
The term “instrumentalisation” started figuring prominently in the political discourse in the EU at the end of February 2020, when Türkiye announced that it would no longer stop refugees and migrants trying to cross the Greek-Turkish border and to enter the EU. According to the Greek media, the following day more than 4,000 people repeatedly tried to cross the Greek border. However, the border was opened only on the Turkish side, as the Greek police stopped everybody who tried to cross the border by using tear gas and rubber bullets. The situation continued to escalate in the following weeks, with tens of thousands of people gathering on the Turkish side of the border, after having been reportedly transferred there by bus, either supported, or at least tolerated by Turkish authorities and non-state actors. At the same time, Greece decided to suspend all asylum applications for one month. In his response to the letter of then Frontex Executive Director Fabrice Leggeri, inquiring into Greek pushback allegations, the Greek Minister of Maritime Affairs and Insular Policy, Ioannis Plakiotakis referred to “the organized and massive character of the migration flows at the eastern Aegean” and continued by stating that “this instrumentalisation of migrants escalated the phenomenon to a hybrid nature threat, directly affecting the EU internal stability.”
Surprisingly, the Greek border conduct was strongly supported and praised by EU leaders. The President of the European Commission, Ursula von der Leyen, openly thanked Greece as Europe’s “shield” in blocking entry to the EU and promised financial and material support, as well as the deployment of Frontex. In parallel, the Commission refused to release a preliminary legal assessment into the Greek decision to temporarily freeze all asylum applications. After a while, the number of people trying to cross the border considerably decreased, partly since they realised that they would not be able to enter the EU, and partly due to the coronavirus crisis.
Similar developments took place in Spain in May 2021, when 8,000 migrants attempted to enter the Spanish enclave of Ceuta from Morocco, following a diplomatic dispute between Spain and Morocco over Spain’s medical treatment of Brahim Ghali, leader of the Polisario Front in Western Sahara. The Spanish government used this sudden inflow of migrants into its territory to justify “hot returns”’, that is direct deportations of migrants at the border without individual examination. The reasoning of the ECtHR’s Grand Chamber in its earlier judgment in N.D. & N.T. v. Spain, later developed in Shahzad v. Hungary, M.K. v Poland, M.H. v Croatia and A.A. and Others v North Macedonia, can be viewed as the judicial support to political developments at European external borders, as well as the Strasbourg Court’s recognition that, under certain conditions, pushbacks can be legal. At the political level, similar to the situation at the Greek-Turkish border, the European Commission President, Ursula von der Leyen, expressed her strong support to Spain by tweeting that the “EU stands in solidarity with Ceuta & Spain” and that the bloc needs “common EU solutions to migration management”.
The most recent and prominent examples of instrumentalisation of migrants and use of instrumentalisation discourse in relation to migration influxes at the EU’s external borders, have been the situations at the Finnish border with Russia and at the Polish, Lithuanian, and Latvian borders with Belarus. The crisis at the EU-Belarus border started in summer 2021, following the EU’s decision to impose sanctions on Belarus. As a retaliation measure, Belarus started issuing tourist visas to third-country nationals from the Middle East, enabling them to get to Belarus safely and then continue their journey by trying to cross the border into the EU irregularly. As a reaction to these developments, Poland, Latvia and Lithuania strongly condemned the Belarusian actions using instrumentalisation discourse and adopted national emergency measures that enabled them to forcefully push back and return third-country nationals to third countries without an individual assessment of their asylum applications. Poland deployed 20,000 border officers, used water cannons and teargas to prevent entry, and constructed a border fence at its border with Belarus. It declared a state of emergency, preventing lawyers, journalists and NGOs from accessing the border area, and adopted national legislation that legalised pushbacks, while accusing Belarus of launching a “hybrid war”. Poland is planning further restrictions at the time of writing this post. Just a few days ago, on 12 October 2024, when addressing the Belarus border crisis, Polish Prime Minister Donald Tusk, announced that he would “temporarily suspend the right to seek asylum” and “demand recognition in Europe for this decision”.
Latvia and Lithuania also declared a state of emergency with the aim to legitimise pushbacks of third-country nationals who tried to cross the border, without examining their asylum claims. In his letter, dated 23 August 2021, addressed to the EU Commissioner for Human Rights, Lithuanian Prime Minister Ingrida Šimonytė stated that the migration influx from Belarus to Lithuania was a “hybrid attack launched by the Belarusian regime” and that “Lithuania has repeatedly expressed its deep concern over instrumentalisation of migrants by the Lukashenka regime”. In sum, all three EU Member States regarded migration as a weapon in a hybrid war (see here and here).
Pushback practices at the Polish, Latvian and Lithuanian borders were heavily criticised by different organisations and bodies, including the CoE Commission for Human Rights, ECRE and Amnesty International. Additionally, in its 2022 judgment in M.A., the Court of Justice declared that the Lithuanian asylum law, which limited the right to apply for asylum based on a state of emergency, was incompatible with the Asylum Procedures Directive. The Court further stated that there are EU procedures that “enable the Member States to carry out, at the European Union’s external borders, their responsibilities with regard to the maintenance of public order and the safeguarding of internal security, without it being necessary to rely on a derogation under Article 72 TFEU” (para. 74 of the judgment). In other words, the Court of Justice argued that EU law had adequate mechanisms to respond to the challenges at the EU-Belarus border.
Nevertheless, the Commission did not start infringement proceedings against the three Member States, but supported them in their effort to fight instrumentalisation. The Commissioner for Home Affairs, Ylva Johansson stated that Lukashenko is “using human beings in an instrumentalised way”, thus committing an “extreme act of aggression towards the European Union”. In her State of the Union speech from 15 September 2021, the Commission President, Ursula von der Leyen gave full support to the three Member States and embraced the “instrumentalization” and “hybrid war” discourse by confirming that “we will continue to stand together with Lithuania, Latvia and Poland”, and continued by adding “and, let’s call it what it is: this is a hybrid attack to destabilise Europe”.
EU Rules on Instrumentalisation: Flexible Derogations from Regular EU Asylum Rules
As a response to the EU-Belarus border crisis, on 14 December 2021, the European Commission put forward a set of legislative proposals aimed to address the issue of instrumentalisation. The package included amendments to the Schengen Borders Code, the proposal for a new Instrumentalisation Regulation, further sanctions against Belarus (see here and here) and discussions on developing a toolbox of measures designed to respond to instrumentalised migration. The amendments to the Schengen Borders Code were adopted on 13 June 2024 and have already entered into force. They enable Member States to limit border traffic to the minimum in a case of instrumentalisation by temporarily closing or limiting the opening hours of some border crossing points (Art. 1(3) of the amendment). The proposed Instrumentalisation Regulation would introduce derogations from the existing EU asylum rules on asylum procedure, reception conditions, and return. However, it failed to be adopted, due to the lack of majority at the Council interior ministers’ meeting. As a consequence, instrumentalisation rules were incorporated in the new Crisis and Force Majeure Regulation, which was adopted on 14 May 2024 as part of the EU’s New Pact on Migration and Asylum. The Regulation is already in force but the new rules will apply as of 1 July 2026.
The Crisis and Force Majeure Regulation defines a situation of instrumentalisation broadly, as a type of a crisis situation (for the other elements of the Crisis and Force Majeure Regulation see here in this series). According to the Regulation, a situation of instrumentalisation takes place “where a third country or a hostile non-state actor encourages or facilitates the movement of third-country nationals or stateless persons to the external borders or to a Member State, with the aim of destabilising the Union or a Member State, and where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security” (Art. 1(4)(b)). Recitals 15 and 16 of the Preamble qualify the definition. Recital 15 provides that “situations in which non-state actors are involved in organised crime, in particular smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State”. Recital 16, on the other hand, states that “humanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State”. Recital 12 of the amendment to the Schengen Borders Code provides the same qualifications. Considering the broad definition of instrumentalisation, it will be crucial to establish whether the aim of the undertaken activities is political destabilisation in order to differentiate instrumentalisation from smuggling and humanitarian assistance, which could at times be difficult.
Based on the Crisis and Force Majeure Regulation, Member States faced with a situation of instrumentalisation may derogate from regular asylum rules. First, they may derogate from Art. 27 of the new Asylum Procedures Regulation by extending the time to register asylum application from five days to four weeks as of the date the application has been made (Art. 10(1)). Further, Member States can extend border procedures normally lasting for maximum twelve weeks, as stipulated by Art. 51(2) of the Asylum Procedures Regulation, by an additional six weeks (Art. 11(1)). Additionally, even though border procedures will, in regular circumstances, be mandatory for nationalities for whom the proportion of decisions granting international protection is 20 % or lower of the total number of decisions for that third country, in case of instrumentalization, Member States will have flexibility. They will be able to lower the threshold from 20% to 5% (Art. 11(3)), or to raise it up to 50% (Art. 11(4)). This gives Member States the flexibility to significantly reduce or increase the number of border procedures they conduct. However, the possibility to extend time limits for take charge requests and take back notifications, as well as to suspend Dublin transfers, applies only to crisis situations caused by mass arrivals and not by instrumentalisation (Art. 12(4) and 13). Consequently, Member States will not be able to change Dublin deadlines and to suspend Dublin transfers in a situation of instrumentalisation. However, based on the amendment of the Schengen Borders Code, Member States can temporarily close or limit the opening hours of specific border crossing points (Art. 1(3)).
Member States must not apply these derogations unilaterally. Instead, they need to undergo a structured procedure and get Council approval. They need to submit a reasoned request to the Commission, explaining how they are faced with a situation of instrumentalisation (Art. 2(2)(a)(ii) of Crisis and Force Majeure Regulation). Based on its assessment and provided the situation qualifies as instrumentalisation, the Commission will adopt an implementing decision within two weeks, thereby proposing the list of derogations to the Council (Art. 3). Finally, the Council has to decide within two weeks and, in case it agrees with the proposal, it will adopt its implementing decision, specifying the derogations the Member State can apply (Art. 4(3)). Derogations may be applied for three months, with a possible extension of an additional three months, after which period, upon request by the respective Member State, the Commission may submit a proposal for a new Council implementing decision to amend or extend the specific derogations for a period not exceeding three months, which can again be extended by additional three months (Art. 5(1) and (2)).
Safeguards to Protect Fundamental Rights: Limitations in Time and Space
Both the Crisis and Force Majeure Regulation and the amendment to the Schengen Borders Code provide detailed safeguards to protect fundamental rights in case a Member State derogates from regular EU rules due to instrumentalisation. Consequently, the issue is not the inconsistency of EU secondary law with Union values and principles, but their actual implementation. In other words, it will be paramount whether the right to seek asylum and other individual rights will be effective in practice when derogations are applied, especially in view of many allegations of fundamental rights violations in the context of instrumentalisation (see here, here and here).
The Crisis and Force Majeure Regulation stipulates that instrumentalisation derogations must “meet the requirements of necessity and proportionality, be appropriate to achieving their stated objectives and ensuring the protection of the rights of applicants and beneficiaries of international protection, and be consistent with the obligations of the Member States under the Charter, international law and the Union asylum acquis” (Art. 1(2)). It further states that such derogations “shall be applied only to the extent strictly required by the exigencies of the situation, in a temporary and limited manner and only in exceptional circumstances” (Art. 1(3)). The Regulation commits Member States to respect “the basic principles of the right to asylum and the respect of the principle of non-refoulement … to ensure that the rights of those who seek international protection, including the right to an effective remedy, are protected”. Special protection is granted to children and people with special needs. Consequently, Member States have to exclude from border procedures minors below the age of twelve and their family members, and people with special procedural or reception needs (Art. 11(7)(a)) or cease to apply border procedures to them when it is determined that their applications are well founded (11(7)(b)).
Additionally, Member States will be geographically limited when applying derogations “only in respect of third-country nationals or stateless persons who are subject to instrumentalisation and who are either apprehended or found in the proximity of the external border … in connection with an unauthorised crossing … or who are disembarked following search and rescue operations or who have presented themselves at border crossing points” (Art. 1(4)).
The amendment to the Schengen Borders Code stipulates that any closure or limitation of opening hours of specific border points needs to be proportionate and take full account of the right to seek asylum, rights of long-term resident third-country nationals and EU citizens (Art. 1(3)). This is important, since the actual possibility for a third-country national to reach the place where they may apply for asylum is decisive for the right to asylum to be effective and real. In case distances between border crossing points are too long, this creates a practical obstacle to the right to seek asylum. This is in line with the judgments of the ECtHR in N.D. & N.T. v. Spain, Shahzad v. Hungary, M.K. v Poland , M.H. v Croatia and A.A. and Others v North Macedonia, where the Strasbourg court stated that pushbacks at the “green border” do not violate the Convention provided the host state genuinely and effectively enables individuals to apply for asylum at its official border crossing points and there are no cogent reasons for individuals not to make use of official entry procedures (for the discussion of these cases, see here and here). Additionally, as stated by the Court of Justice in M.A. (see above), even though Member States may require applications for international protection to be lodged in person and/or at a designated place, this right should not undermine “the practical effectiveness of the right to seek asylum” as access to the asylum procedure should be “effective, easy and rapid” (para. 65).
To summarise, based on the new EU instrumentalisation rules, Member States will not be able to suspend the right to seek asylum. Consequently, a unilateral decision, such as the one announced by Poland on 12 October 2024 would not be possible. All the derogations will have to be consistent with international and EU human rights obligations contained in other EU acts, the Charter and the Treaties. Derogations will have to be limited in time and space and applied only upon the Commission’s assessment of the Member States reasoned request and the Council’s approval.
Concluding Remarks
The developments at the EU’s borders with Türkiye, Morocco, and Belarus corroborate the statement that migrants are increasingly being used by third countries for political goals. Against this background, EU Member States have shown understandable concerns, but also worrying legislative and practical reactions, marked by excessive use of force and restrictions of asylum seekers’ rights. Additionally, past experience has shown that the European Commission generally supports the Member States exposed to instrumentalisation by expressing strong political support and gratitude towards them and by avoiding initiating infringement proceedings against them. The instrumentalisation rhetoric has permeated EU migration discourse, particularly at the EU’s eastern borders with Belarus. Against this background, Member States’ political concerns are understandable. However, they cannot justify violations of EU law and disproportionate use of force. From this perspective, EU level rules on instrumentalisation are a welcome move to prevent unilateral and excessive national measures. However, practical application of EU instrumentalisation rules needs to adhere to the same basic principles, notably the right to seek asylum and proportionality.
Finally, no matter whether a third-country national is being instrumentalised or not, they have the right to seek asylum in the EU, both based on EU and international law. Two arguments have been used to justify the adoption of EU instrumentalisation rules. The first is the need to protect national security and essential functions of a Member State, including law and order. The second is the argument that, by instrumentalising migrants, the third country creates artificial migration flows to the EU borders. In case the word “artificial” means that the third country is encouraging or facilitating the movement of third-country nationals to the EU’ borders, this has been corroborated by factual evidence. However, in case the word “artificial” also implies that the instrumentalised third-country nationals are (mostly) economic migrants who, anyhow, would not be entitled to asylum, this is less certain and would need reliable evidence.
In other words, based on EU and international law, even if a third-country national is brought to the EU’s borders by third country agents for political reasons, they should have the right to seek asylum. EU instrumentalisation rules rely on strong safeguards, aimed at protecting fundamental rights, in particular the right to seek asylum. On paper, they try to find the right balance between the conflicting interests of Member States to protect their national security and other state functions, with asylum seekers’ rights. Time will tell whether this balance will be achieved in practice. However, against the background of unilateral national decisions to respond to instrumentalisation by reducing or completely suspending the right to seek asylum, EU level regulation of instrumentalisation is a welcome move, as it creates an additional legal basis to ensure that national measures are proportionate and not unilateral, while granting Member States a legal tool to rely on, when faced with instrumentalisation. As in other policy areas, here again, the European Commission, as the “guardian of the Treaties”, will have the responsibility to control national compliance with EU instrumentalisation rules and to initiate infringement proceedings in case a Member State fails to do so.