Navigating the Human Rights Trajectory of the EU Migration and Asylum Pact in Search and Rescue Operations (Part One)

[Patricia Vella de Fremeaux is Professor and Head of the International Law Department of the Faculty of Laws, University of Malta. Dr Felicity G. Attard is a lecturer in the Department of International Law at the University of Malta.]

The problem of maritime migration has been at the forefront of the European Union (EU)’s legislative and policy making landscape for decades. The Common European Asylum System (CEAS) was established in 1999 with the objective of improving cooperation on asylum matters and has developed in stages periodically since then. Following unprecedented numbers of arrivals in 2015, the European Commission attempted to reform the CEAS through a package of proposals aimed at addressing the deficiencies apparent in the existing framework. These ultimately failed due to disagreement on the principles of solidarity and shared responsibility. In the meantime, the migration crisis has shown no signs of being alleviated. As of 8 of September 2024, sea arrivals in Italy, Greece, Spain, Cyprus and Malta amounted to 114, 547 with 1,006 estimated dead or missing.

The EU Pact on Migration and Asylum (EU Pact) was consequently proposed by the European Commission in September 2020 and agreed to between Council and Parliament in December 2023 with the aim of overhauling the asylum and migration policies of the EU by advocating an approach based on solidarity, shared responsibility and respect for human rights. The EU Pact represents a significant effort to create a more cohesive, effective and humane approach to migration, reflecting the EU’s attempt to learn from past crises and better prepare for future challenges. The Council of the EU adopted the Pact on the 14 May 2024 and Member States have two years to implement the laws with the help of an implementation plan being prepared by the EU Commission.

The 2020 Communication introduces the new Pact as “a fresh start” in order to create “a system that manages and normalizes migration for the long term and which is fully grounded in European values and international law”. The proposal of the Pact was set against a backdrop of varying political views on migration across EU Member States, making negotiations delicate. While the aim was to reach a consensus among EU Member States, negotiations were complex due to the varying political views on migration ranging from more stringent border controls to more humane approaches to the phenomenon. It is arguable that this consensus could equate to a lowest common denominator approach. An initial question would therefore be whether this dichotomy has affected the human element intrinsic in maritime migration. This piece attempts to answer this question by examining a selection of the main features of the current Pact. Of particular interest is a common European approach to search and rescue (SAR), with attention being given to the smuggling of migrants and their disembarkation. In this respect, the EU has launched a number of initiatives such as the Global Alliance to Counter Migrant Smuggling (November 2023). The EU Commission thus maintains that “developing a more coordinated EU approach to the evolving SAR practice, grounded in solidarity, is crucial”.

The newly approved Pact adopts a comprehensive approach to address migratory and asylum challenges centred around a number of key elements. Foremost amongst these is a fairer sharing of responsibility in an attempt to avoid EU border States being overwhelmed by migratory pressures. Linked to this are streamlined asylum procedures (including pre-entry screening and faster border procedures) with the aim of expediting the processing of asylum applications. Simultaneously the introduction of efficient return policies intends to expedite return procedures. A particularly welcome aspect is the enhancement of legal pathways into Europe thus potentially diminishing the need to rely on migrant smugglers. Furthermore, the integration of migrants and refugees and the strengthening of partnerships with third countries in the management of migration is praiseworthy.

Overview

The Pact consists of a number of legislative instruments aimed to regulate migratory and asylum issues in an integrated way. Together with these, the Commission issued recommendations in other crucial areas such as search and rescue operations by private vessels, and guidance regarding non-criminalisation of humanitarian assistance. Further action plans and strategies were presented by the Commission amongst which, in 2021, a Communication on a renewed EU action plan against migrant smuggling (2021-2025). This represents a recognition of the link of the various branches of law dealing with irregular migration, which had also been outlined in Section 5 of the 2020 Communication dealing with the fight against migrant smuggling.

The Screening Regulation establishes uniform rules for pre-entry screening of a health, identity and security nature for all irregular migrants and asylum seekers arriving at the EU border (Screening Regulation, Articles 12-16). Screening according to Article 5 is carried out at the external borders and includes those “disembarked in the territory of a Member State following a search and rescue operation” (Article 5(1)(b)). Screening is to be carried out “without delay and shall in any case be completed within seven days” from arrival at the external border or disembarkation (Article 8(3)). The Screening Regulation also provides for screening in the territory in the case of individuals found illegally in the State (Article 7(1)). In such cases, the screening is to be carried out “without delay and in any case shall be completed within 3 days from apprehension” (Article 8(4)).

The purpose of these screening procedures is to ensure that individuals are efficiently assessed prior to entering the EU, thus creating a more organized management of migration flows. This screening creates a “legal fiction” of non-entry, in that individuals are not considered to have legally entered the EU until they pass this screening, even if they are physically present at the border.

The recast version of the Eurodac Regulation aims to enhance the existing system to broaden its use for migration management including the return of irregular migrants, aside from its previous use as an asylum database. In doing so, its purpose is inter alia to “support the asylum system” (Eurodac Regulation, Article 1(1)(a)) and “assist with the control of irregular immigration to the Union” (Article 1(1)(c)). The existing database is now a comprehensive asylum and migration database. It also expands the various types of data collected, including facial images and identity documents aside from merely finger prints (see Article 2) in order to achieve improved tracking of applications and applicants.

The Asylum Procedure Regulation (APR) (including the Return Border Procedure Regulation) establishes common procedures for granting and withdrawing international protection (APR, Article 1). To this end, it introduces mandatory border procedures for “all applications for international protection made in the territory of the Member States, including at the external border, on the territorial sea or in the transit zones of the Member States” (Article 2(1)). In other words, when applying for asylum such application is to be examined under the established border procedure. The aim is to ensure a quick assessment in determining the admissibility and merits of asylum claims:

The purpose of the border procedure for asylum and return should be to quickly assess in principle at the external borders whether applications are unfounded or inadmissible and to swiftly return those with no right to stay, in a manner that fully respects the principle of non-refoulement, while ensuring that those with well-founded claims are channelled into the regular procedure and provided quick access to international protection (Preamble, para 58).

Following screening, it will be determined whether an asylum seeker will fall under the normal asylum procedure or into an accelerated procedure. Article 42 provides for this accelerated examination procedure in certain cases, for example, cases of “clearly inconsistent or contradictory” statements (Article 42(1)(b)), where the third country may be considered a safe country of origin (Article 42(1)(e)), or in cases of “reasonable grounds to consider the applicant a danger to the national security or public order of the Member States…” (Article 42(1)(f)).

To this end, the border procedure is envisaged to be “as short as possible while at the same time enabling a complete and fair examination of the claims” (Article 51(2)). As a general rule, the border procedure duration should not exceed 12 weeks, although provision is made for extension in certain cases (Article 51(2)). Should no decision be reached in a maximum of 16 weeks, applicants for international protection are referred to the regular asylum procedure and thus permitted to access the territory of the Member State (Article 51(2)).

In the case that the application is rejected under the border procedure, the applicant falls to be transferred under the procedures established in the Return Border Procedure Regulation aimed at expediting the return of those who do not qualify for asylum.

Inspired by the obligations of solidarity and fair sharing of responsibility embodied in Article 80 of the Treaty on the Functioning of the European Union (TFEU), Article 1 of the Asylum and Migration Management Regulation (AMMR) lays out the three pillars emanating from “the objective of reinforcing mutual trust”. To this end, the Regulation establishes a common framework for managing asylum and migration within the EU and also for the functioning of the CEAS (AMMR, Article 1(a)); sets out a mechanism for solidarity (Article 1(b)) which is mandatory but flexible and lastly it replaces the Dublin III Regulation (See Part III, Chapter 2) and lays down expanded criteria for determining the Member State responsible for examining applications for international protection (Article 1(c)). The ultimate aim is that of ensuring a comprehensive approach to the actions of Member States aiming at a balanced approach to the management of migration reflecting principles of fairness and shared responsibility.

Article 56 of the AMMR explains that the Annual Solidarity Pool is the “main solidarity response tool” whereby Member States pledge their contribution to the Pool (Article 57(3)). This system does not go down the route of binding asylum quotas which had proved ineffective in previous years. The solidarity mechanism thus established is flexible in that Member States may choose from different mechanisms to this end, ranging from relocation (Article 57(2)(a)), financial contributions (Article 57(2)(b) and Article 64), responsibility offsets (Article 63) and alternative measures such as providing operational support, capacity building, staff support and technical equipment.  It is stated in Article 57(4) that Member States are given full discretion when choosing between these different types of solidary mechanisms.

In the case of States facing either “migratory pressure” (Article 1(24)) or “signficant migratory pressure” (Article 1(25)), there is the possibility envisaged that such Member States may request a deduction in their contributions (see Articles 61 and 62). Once again, situations of SAR have been considered by the Regulation, where in Article 11(3) it is stated that Member States which have “faced large number of arrivals due to recurring disembarkations following search and rescue operations” during the past 12 months can be considered by the Commission to be under migratory pressure “provided those arrivals are of such a scale that they create disproportionate obligations even on the well-prepared asylum, reception and migration system of the Member State concerned.”

The solidarity mechanism aims to create a balanced and equitable system and the flexibility provided therein is intended to accommodate the diverse capabilities and needs of different Member States. However, it requires robust monitoring and enforcement to ensure that commitments are met and support is adequately distributed. Ultimately, its effectiveness will depend on the consistent and committed participation of all Member States.

The Crisis and Force Majeure Regulation provides the legislative frameworks for managing migration during “exceptional situations of crisis, including instrumentalisation, and force majeure” (Article 1(1)). These terms are defined as follows:

1. Situation of crisis:

a. an exceptional situation of mass arrivals of third-country nationals or stateless persons in a Member State by land, air or sea, including of persons that have been disembarked following search and rescue operations, of such a scale and nature, taking into account, inter alia, the population, GDP and geographical specificities of the Member State, including the size of the territory, that it renders the Member State’s well-prepared asylum, reception, including child protection services, or return system non-functional, including as a result of a situation at local or regional level, such that there could be serious consequences for the functioning of the Common European Asylum System; (Article 1(4)(a)) or

b. a situation of instrumentalisation 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 (Article 1(4)(b)).

2. Force majeure:

a. abnormal and unforeseeable circumstances outside a Member State’s control, the consequences of which could not have been avoided notwithstanding the exercise of all due care, which prevent that Member State from complying with obligations… (Article 1(5)).

In such cases, the Member State affected is to submit a “reasoned request” to the Commission in order to trigger the solidarity mechanism and possible derogations (Chapters III and IV) owing to the Member State whilst still ensuring that fundamental rights are respected (Article 2(1)). This framework ensures a rapid and effective response to such events with the solidarity mechanism effectively redistributing asylum seekers among Member States so as to alleviate the burden on Member States most affected. The above mechanism is particularly important in the current scenario of mass arrivals by sea, as in cases outlined in the Regulation, temporary measures of solidarity (Article 1 and Chapter III), derogations (Chapter IV) and expedited procedures (Chapter V) are applied ensuring that arrivals are swiftly processed and if needed, relocated.

Three additional instruments proposed in 2016 and agreed to in 2022 complete EU Pact.

1. The Qualification Regulation replaces the previous Directive and incorporates the provisions of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol into EU law. The subject matter of the Regulation consists of standards for: a) the qualification of third-country nationals or stateless persons as beneficiaries of international protection; b) a uniform status for refugees or for persons eligible for subsidiary protection; and c) the content of the international protection granted (Qualification Regulation, Article 1(a)-(c)). The aim is to standardize the criteria for the granting of international protection: refugee status or subsidiary protection status within the EU (see Article 3).
2. The Reception Conditions Directive establishes minimum standards “for the reception of applicants for international protection in Member States” (Article 1) thus aiming to ensure a humane reception system that provides adequate standards of living for asylum seekers arriving in the EU.
3. The Union Resettlement and Humanitarian Admission Framework is focused on another aspect of the enhancement of solidarity and responsibility sharing amongst EU Member States and aims to provide a standard procedure for resettlement of refugees from third countries to EU Member States so that consistency and predictability will be features in such resettlement. It also aims to provide safe and legal pathways for those in need of international protection enhancing the EU’s ability to respond to global refugee situations effectively and in a coordinated way (Preamble, para 3 and Articles 1 and 3). Once again, the Regulation is based on the full application of the 1951 Refugee Convention and 1967 Protocol (Preamble, para 2).

See Part Two for the analysis of the maritime search and rescue considerations of the Pact.