The European Commission tabled legislative proposals to amend the Schengen Borders Code and to address so-called “instrumentalisation” in migration and asylum, two months after 12 Member States, including Greece, Cyprus, Hungary, Poland, Lithuania and Latvia, requested the “adaptation of EU law to new realities” and after the European Council called on the Commission to take legislative measures.

This week, Refugee Support Aegean (RSA) published its detailed comments on the above legislative proposals:

• Comments on the proposal amending the Schengen Borders Code 
• Comments on the proposal for a Regulation on instrumentalisation in the area of asylum and migration

The European Commission proposals attempt an unacceptable dismantling of an already problematic Common European Asylum System by legislating unjustified and unlawful rules to essentially allow Member States to derogate from their international obligations. Specifically:

1. The proposals in fact incorporate the serious, systematic and thoroughly documented violations of EU law by certain Member States, which the Commission refuses to denounce through infringement proceedings. However, its tactic of entrenching “present illegality” as “future law” is extremely dangerous and wholly incompatible with the rule of law and international obligations on refugee protection. Member States which systematically infringe EU law not only benefit from the lack of sanctions and consequences from EU institutions, but openly declare practices and initiatives to deter refugee arrivals which contravene the principle of non-refoulement principle and put lives at risk. Moreover, the Commission’s view that governments violating basic legal standards would be obligated to comply with their duties following changes to the legal framework is dispelled to this day.
   
   Greece continues to hold a central “law-breaker” position. The legislative proposals draw inspiration from the most problematic aspect of our national asylum practice. The provisions on the use of the border procedure to all asylum caseloads and the generalised derogation from Return Directive procedures attempt to replicate the legacy of five years of implementation of the EU-Turkey deal. For its part, the unlawful precedent of suspension of the asylum procedure by way of emergency decree in March 2020 and similar unlawful practices recently followed by Poland and other countries are indirectly introduced as “urgent measures” through provisions delaying registration of asylum claims for up to four weeks.
   
   
2. The European Commission continues its poor law-making trend, insists on not complying with its obligations under the existing acquis and subscribes to a dangerous rhetoric of exclusion from protection and of militarisation of asylum. The Commission also contradicts the very positions it put forward in the recent case C-808/18 Commission v Hungary regarding the adequacy of the Asylum Directives in force to respond to potential pressure faced by Member States.
   
   
3. Further to the package of legislative proposals of the New Pact on Migration and Asylum, the new proposed measures mark yet again a retreat of EU law in favour of national discretion and initiative, and an entirely wrong use of directly applicable Regulations. The proposals undermine the objective of a common policy respecting the 1951 Refugee Convention and core international law on human rights, as well as the aim of harmonisation of EU asylum systems. They also contribute to further lack of legal certainty for both refugees and administrative authorities.