A summary of our webinar with Ana Puljiz, 14 November 2024
Ana Puljiz is a Croat/Montenegrin national with expertise in migration and foreign policy, particularly in EU policy-making. She is currently serving as the Executive Secretary at Church’s Commission for Migrants in Europe (CCME), focusing on advocacy towards the EU following the adoption of the Pact, while also addressing various asylum and migration issues and collaborating with CCME’s membership and partners.
Overview of the Pact
The Common Implementation Plan of the Pact was published in June, with national implementation plans to be submitted by 12 December 2024 and full application expected by mid-2026. New return policies are to be proposed by the Commission in 2025.
The new Pact has a comprehensive approach to address long standing gaps in reception conditions and access to asylum, and ensures that there are consequences for Member States that would not respect certain elements and legal obligations. There is an enhanced solidarity and responsibility mechanism, a stronger focus on family reunification and meaningful links, and better reception conditions. However, selective implementation and prioritisation of funding specific elements, such as border procedures, could lead to an uneven implementation and hinder other elements of the legislation. The timeline for processing applications is quite short, bringing concerns about the quality of the preparation and processing of the applications. While the screening period creates a legal fiction of non-entry on the EU territory, there are concerns regarding access to applicants and their right to counsel and legal assistance.
Journey of an applicant
- Upon arrival at the border, a 7-day screening will be conducted to determine the situation of the application : identity check, security screening, health and vulnerability assessment.
- Choice of procedure : high recognition rate asylum requests will be fast-tracked, some will be put in border procedures while other profiles may be directed to accelerated border procedure such as people considered security threats, to have misled the authorities, or who have a low recognition rate (less than 20%)
- In case of high arrival numbers, the solidarity and relocation mechanism comes into play and the applicant might be moved to another member state.
- The application should receive a decision within 12 weeks of processing. Legal counselling and assistance should be provided throughout the administrative stage. This processing time can be extended to 16-weeks under crisis regulation.
- In case of rejection, the applicant will receive the decision of rejection and of return together, while retaining the right to appeal with free legal assistance.
Border procedures
Border procedures may be processed in facilities at the border or anywhere else on the national territory, with advocacy towards locations in urban areas to facilitate access to services and civil society. The plans for health and vulnerability checks during screening will need to be watched closely to ensure vulnerable applicants are not funnelled through accelerated border procedures. Overall, there is an argument for minimal use of accelerated border procedures, both for fundamental rights, and because of the administrative burden it puts on the Member State.
Reception standards
The material conditions on reception are strengthened, as well as the access to healthcare and education for minors. While reception was already mandatory and not respected by some countries, we will see if there are consequences if the rules aren’t respected now.
There is a will to promote quicker implementation of pre-integration measures, with staff needs to be met accordingly. The utilisation of contingency plans should help avoid ‘reception crisis’, as well as limiting crisis regulation which give a lot of derogatory power to the Member States to revoke certain rights.
Solidarity and responsibility mechanisms (AMMR)
For the first time solidarity is mandatory, however flexible and with an array of problems in how it is accessed.
The criteria for responsibility have been reinforced, including an extended definition of family to include families formed in transit and less requirement to factually demonstrate family connections with evidence. A diploma criterion has been added, meaning a country where the applicant has received a diploma could be responsible for his application – with a lower weight than other criteria. Family cases should be prioritised, especially the reunification of children and the Commission is advocating for stronger family tracing, including between member states.
The role of practitioners
Supporting applicants and upholding fundamental rights
Key challenges include :
- Requesting on-site checks at border facilities
- Monitoring a person’s ability to apply for international protection, and the respect of their ensuing rights, at borders and during screening
- Reminding authorities that detention is not mandatory and cannot be applied automatically
- Ensuring that the health and vulnerability checks are sufficient
- Limiting the use of accelerated border procedures
- Advocating for a more direct role of civil society in counselling and having access to applicants
- Reminding authorities that legal counselling in the text includes provision of legal advice and guidance, preparation for personal interviews and ongoing legal information throughout the administrative stage; and ensuring there are enough means for free legal assistance during the appeal stage.
Opportunities for collaboration
At the national level, as there are no obligations for Member States to involve civil society, who should reach out to authorities to seek consultation and identify potential interlocutors in order to facilitate monitoring and advocacy. There is also an opportunity and need for training and capacity building, both for people working with authorities and practitioners and civil society.
There is a necessity for collaboration not only at the national and EU level, but also with international organisations and between practitioners across Europe. We should advocate for broad inclusion of different scope of authorities in the process so applicants can be channelled to the procedure applicable to them. In the Common Implementation Plan, the EU Commission emphasised the role of civil society and experts, as well as organisations like the IOM and UNHCR.
“Because there is a strong emphasis on solidarity and cooperation, and because Member States will have to work together closer than before, it is important that, like we are doing right now, we share information across borders to manage all these procedures, to engage in advocacy and monitoring”
Q&A with Ana
In your opinion, what are the most negative aspects of the pact?
- A lot of vague provisions in APR, which is an incredibly important framework for asylum procedures. Border procedures are sure to lead to court cases and proceedings, with the monitoring of applicants’ access to their full rights. There are also worries that people who fall into border procedures because of a low recognition rate will not receive an assessment of their case as in detail as others.
- The screening process creates a legal fiction of non-entry, meaning that applicants are considered to have not yet entered the EU territory, reducing the scope of their rights.
- The safe third-country concept is to be reopened next year, and it is yet to be seen how it will look like and what countries will be considered safe. We had a lot of negative experiences with the EU-Turkey agreement, and hopefully it doesn’t go in the same direction.
What are the provisions to extend the 12-week processing time?
There are provisions to extend the processing time from 12 to 16 weeks if the crisis regulation is triggered, with a high influx and arrival of people either pressuring certain border points or a country. In this regulation there are definitions of what a crisis is, but it will be subjected to interpretation from each Member State. Any country can involve crisis regulation, with different circumstances of course, but they will need to request and justify the situation of crisis.
The pact was passed with a slim margin, 300 to 270 – what is the term of the pact and when can it be reopened.
There was a lot of criticism of the pact, and fairly so. The centre left and left parties were against, and in the far right some members didn’t want to get included or vote on certain files. Currently there is a lot of debate to reopen the legislation on specific aspects, while some Member States like Hungary or the Netherlands want to completely opt-out. Even though the pact has a lot of negative sides, it would be problematic to reopen it because there was such a long waiting period for this balance to be accomplished on the EU level. If we reopen negotiations, it might mean years of negotiations between the parliament and council again, and it would lean more to the far right because of the composition of the parliament and the council. It would delay the actual implementation of the rules, and the monitoring of even the good aspects. And in a lot of instances of countries not conforming to the existing rules, the Commission was saying the infringement procedure should not be triggered, because a new set of rules are coming.
What do you have to say about the cooperation between civil society organisations? How can civil society actually have insight into everything that’s going on, especially during the screening process?
In theory, national authorities should provide space for civil society to access the applicants. So even if they’re in remote areas, practitioners should be able to come and provide legal counselling and assistance. When it comes to practitioners networking with each other, it would always be good to couple different expertise and to know what everyone is doing so they can refer applicants towards the right organisation at each stage. Trying to reach out to national authorities is also very important, to offer your services and expertise in certain areas, but also just to ask for more information about something that is really impacting your work.
How will Frontex be involved in the screening process and border procedures?
So far, Frontex has been aiding screening at the borders, and Member States can reach out to Frontex for help when there is a high influx of arrivals. In any case, it is the discretion of the Member State to call on Frontex for the screening process. Next year the legal framework governing Frontex will have to be reviewed, and it is yet to be seen what the legal text will look like – but we already know it should triple in size and budget.
Can you elaborate on the solidarity mechanism? What happens to countries that want to opt-out?
The solidarity and rule are closely aligned with current Dublin regulation, which is a negative side because we know it doesn’t work, but solidarity has been strengthened and is now mandatory. All countries need to provide some sort of solidarity : relocation of asylum applicants, financial contribution, or capacity building. Capacity building can range from sending help for building infrastructures to training working professionals.
Even though there are some very technical ideas in the text, it will need to be followed in practice. There are differences in the mechanism in regular times and in times of crisis, how solidarity will correlate with relocation numbers, who can trigger requests for solidarity and when…
To opt out, a formal request should be submitted to the Commission and be approved if based on reasonable request. It is a very complex procedure and for now, neither Hungary nor the Netherlands have officially requested this opt out procedure.
Do you think there is an opening to renegotiate cooperation with the UK, especially on the diploma criterion and safe and regular pathways routes on family link, for instance?
It is difficult to say from this perspective. Currently, there is no talk on the EU level as far as I know about reopening negotiations with the UK. Having legal pathways to the UK would definitely be positive, but that is again something that is done with third countries and asylum cooperation. I don’t see any indication they will come back to renegotiate.
Some countries are relying on their national laws to push back people at their borders. Is the EU planning on doing anything against this?
Unfortunately, pushbacks are recurring procedures across the EU. They are not legal, not by international law and not allowed by the pact. Suspending the right to seek asylum because of instrumentalisation of the people on certain border points should also be illegal because applicants should always be granted the right to seek asylum and lodge their application. What the EU will do about this is a good question, we haven’t gotten a concrete response yet. Hopefully, the new Commission will keep members responsible and they will respond to the law.
