September 2022
In December 2021, the European Commission presented a proposal for a Regulation addressing situations of instrumentalisation in the field of migration and asylum. The proposal introduces a mechanism which allows Member States to derogate from their responsibilities under EU asylum law in situations of “instrumentalisation” of migration. The mechanism is permanently available to Member States who can invoke it in multiple situations, essentially enabling them to derogate at
will from their obligations.
We understand that there is broad support among Member States for the proposed Regulation and that the Czech Presidency aims at adoption of a common position by December. This would make it one of the fastest moving legislative files related to asylum in Council. The proposal allows states to derogate from the proposed Asylum Procedures Regulation of 2016 and amended APR proposal of 2020 (APR), the proposed recast of the Reception Conditions Directive (rRCD) of 2016, and the proposed recast Return Directive (rRD) of 2018. The derogations are substantial and substantive, significantly affecting the rights of people seeking protection.
The undersigned NGOs strongly oppose the introduction and use of the concept of instrumentalisation and its codification in EU law; we further reject reforms of EU law based on allowing widespread derogation from EU law for the following reasons:
In addition, there is a risk that these reforms will undermine respect for EU law as a whole. Introducing a model based on allowing derogations at will in a wide range of circumstances (most of the situations at the EU’s borders), may set a precedent, especially when rule of law is facing challenges across Europe. There is no evidence that regulating for derogations will encourage better implementation or compliance with EU asylum law in general.
Finally, a legal framework that allows countries to reduce standards for the treatment of people seeking asylum and refugees when instrumentalisation is involved (a very common occurrence) is likely to be replicated elsewhere in the world, thus undermining the global protection system.
Member States with an interest in the improvement of the CEAS should focus on agreeing on reforms that support asylum systems to function effectively, and that protect rights, increase compliance and contribute to trust among Member States in this conflictual policy area. An agreement on the proposed Instrumentalisation Regulation has the opposite effect and dismantles asylum in Europe, by allowing Member States to opt in and out of the CEAS.
Signatories:
11.11.11
Accem
Action for Women Hellas
Amnesty International
Arsis – Association for the Social Support of Youth
AsyLex
AWO Bundesverband e.V.
Boat Refugee Foundation (Stichting Bootvluchteling)
Caritas Europa
Center for Research and Social Development IDEAS
Centre for Peace Studies
Changemakers Lab
Child Circle
Conselho Português para os Refugiados (Portuguese Refugee Council)
Convive Fundación Cepaim
Danish Refugee Council (DRC)
Diotima Centre for Gender Rights & Equality
DRC Greece
Dutch Council for Refugees
ECHO100PLUS
ECRE
Equal Legal Aid
EuroMed Rights
Estonian Refugee Council
Europe Must Act
European Evangelical Alliance
European Lawyers in Lesvos (ELIL)
Fenix Humanitarian Legal Aid
Finnish Refugee Advice Centre
FOCSIV Italian federation christian organisations international volunteere service
France terre d’asile
Greek Council for Refugees (GCR)
Greek Forum of Migrants
Greek Forum of Refugees
HIAS Greece
Human Rights Watch
HumanRights360
I Have Rights
International Rescue Committee
Irida Women’s Center
Irish Refugee Council
Jesuit Refugee Service Greece – JRS
JRS Europe
Kids in Need of Defense (KIND)
Legal Centre Lesvos
Lighthouse Relief
medico international
METAdrasi
Mobile Info Team
MSF
Network for Children’s Rights
Northern Lights Aid
Norwegian Refugee Council
OPU – Organizace pro pomoc uprchlikum
Oxfam
PIC – Legal Center for the Protection of Human Rights and the Environment
Platform for International Cooperation on Undocumented Migrants (PICUM)
Plattform Asyl – FÜR MENSCHEN RECHTE
PRO ASYL
Red Acoge
Refugee Legal Support (RLS)
Refugee Support Aegean (RSA)
Refugees International
SAFE PASSAGE INTERNATIONAL AMKE
Save the Children
Second Tree
Spanish Commission for Refugees (CEAR)
Still I Rise
Stowarzyszenie Interwencji Prawnej (Association for Legal Intervention)
Swedish Refugee Law Center
Symbiosis-School of Political Studies in Greece, Council of Europe Network
The Border Violence Monitoring Network
The Swedish Network of Refugee Support Groups (FARR)
Transgender Europe
Vluchtelingenwerk Vlaanderen
Yoga and Sport With Refugees