On May 14, 2024, the Council of the European Union (Council) adopted 10 legislative acts to create a more efficient and uniform migration system. With the new Pact on Migration and Asylum, the European Union (EU) aims to introduce simple and clear procedures across EU member states, achieve a fair balance of responsibility for asylum applications between the EU member states, and ensure secure borders.
The Council and the European Parliament, the co-legislators of the EU, negotiated the terms of the pact over several years. The European Parliament approved the acts on April 10, 2024. With the Council’s approval, the acts are now final.
Most of the acts are regulations, which are binding in their entirety and directly applicable in the EU member states. (Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) art. 288, para. 2.) To give the member states sufficient time to adapt their national procedures, the regulations will not apply until 2026.
Background
Over the past decade, Europe has been confronted with significant migration challenges. In particular, the lack of harmonization between EU member states’ asylum and return systems led to a number of issues, including unauthorized movements, inefficient returns of people who were not granted asylum, and legal uncertainty for applicants and authorities. A new Pact on Migration and Asylum was proposed in 2020 and was provisionally approved on December 20, 2023.
The Pact on Migration and Asylum consists of several new regulations, including a Screening Regulation, an Asylum and Migration Management Regulation (AMMR), an Asylum Procedure Regulation (APR), a Return Border Procedure Regulation, a Crisis and Force Majeure Regulation, and a Eurodac Regulation on the EU’s biometric database.
Security of External Borders
The Screening Regulation introduces new uniform requirements for the screening of individuals who do not fulfill the conditions for entry into an EU state. The screening will encompass checks regarding the identity, security, health, and vulnerability of irregular entrants. The screening will also determine whether a person needs health care or poses a threat to public health. (Screening Regulation, arts. 1, 8, para. 5.) The member states’ authorities must carry out the screening at their external borders within a maximum period of seven days. (Art. 8, para. 3.) Screening of persons apprehended within member states’ territories must be carried out within three days. (Art. 8, para. 4.) To guarantee the fundamental rights of those undergoing screening, the member states must implement an independent monitoring mechanism. (Art. 10.)
Eurodac, the EU’s fingerprint database of migrants and asylum applicants, will be expanded to facilitate the screening and tracking of asylum seekers and irregular migrants more effectively. In addition to fingerprints, the database will contain other biometric data such as facial image data. (Eurodac Regulation, art. 3, para. 6; art. 17, para. 1.) The age at which an individual’s biometric data can be collected and used for identification purposes has been lowered from 14 years to six years. (Art. 15, para. 1; art. 18, para. 1; 20, para. 1; 22, para. 1; 24, para. 1; 26, para. 1.) In the event that an applicant poses a threat to internal security or is violent or armed, the authorities of EU member states are directed to update the Eurodac database. (Art. 16, para. 1; art. 17.)
Fast and Effective Border Procedures
The Asylum Procedure Regulation (APR) introduces a new mandatory border procedure for the asylum process. It seeks to ensure the protection of the rights of asylum seekers throughout the process by guaranteeing, for example, the right to receive legal counselling and assistance at all stages. (APR, art. 15.)
The APR requires asylum seekers to provide personal information for their registration (such as biometric data), submit the application within 21 days from registration, and attend a personal interview. (Art. 9, para. 2, arts. 11-14, 28.) If the asylum seeker fails to comply with the rules, the authorities can declare the application as implicitly withdrawn. (Art. 41, para. 1.)
The APR establishes deadlines for each step of the asylum process. For example, the whole border procedure can only last 12 weeks. (Art. 4, para. 2.) During the application process, the applicant has the right to remain on the territory of the member state in which he applies. (Art. 10.)
The Return Border Procedure Regulation sets out a clear procedure for the return of persons whose asylum application has been rejected, for example by regulating that the return procedure should not exceed 12 weeks. (Return Border Procedure Regulation, art. 4, paras. 1, 2.)
Fair Asylum and Migration System
The Asylum Migration Management Regulation (AMMR) will replace the 2013 Dublin Regulation and aims to introduce “fair sharing of responsibility between the member states.” (AMMR, recital 1; art. 1.) It includes measures to prevent secondary movements of asylum seekers between member states, such as requiring them to apply for protection in the member state in which they first entered the EU and remain there until their application is processed. (Art. 17, paras. 1, 4.) If asylum seekers move to another member state in an unauthorized manner, they must be transferred back to the member state responsible. (Art. 36.)
In addition, member states are required to establish national strategies to ensure they have sufficient capacity for an effective asylum and management system. The European Commission will “draw up a five-year European Asylum and Migration Management Strategy … to ensure the consistent implementation of national strategies.” (Arts. 7, 8.)
As an additional measure of solidarity, member states must aid those member states facing disproportionate migration pressure by shifting responsibilities and relocating asylum seekers. (Arts. 67, 68.) The EU will provide appropriate and proportionate financial support to member states undertaking relocation. (Arts. 12, 71.)
Dealing with Crisis Situations
The Crisis and Force Majeure Regulation provides a framework for the member states to prepare for and manage crises or force majeure in the area of migration by establishing a system of solidarity and fair sharing of responsibility. (Crisis and Force Majeure Regulation, art. 1; recitals 5, 6.) Such situations may include mass arrivals of asylum seekers in a single member state or the instrumentalization of migrants from a third country. (Art. 1, para. 4.)
If a member state is confronted with a situation of crisis, it may request the relocation of its applicants to another member state, financial contributions, or other forms of solidarity from the Commission. (Arts. 3; 8, para. 1.) The Commission is required to issue a decision within two weeks. (Art. 3.) The Commission and the Council both must continuously monitor the situation. In addition, the Commission must report to the European Parliament and the Council on the effectiveness of the measures. (Art. 6.)
Prepared by Eva Dauke, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist
Law Library of Congress, June 13, 2024
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