The EU is preparing to introduce new measures that will allow member states to limit migrants’ access to asylum in “exceptional” cases, such as Russia’s weaponization of migration throughout the eastern border of the EU. Henna Virkkunen, the Commission’s new Executive Vice-President for Tech Sovereignty, Security and Democracy announced the change in policy on Wednesday, December 11th.
The steps are in line with the resolutions of the previous European Council summit, during which member states demanded to be given the freedom to act against what they call “hybrid warfare.”
The term refers to the practice of Russia and Belarus sending tens of thousands of Middle Eastern migrants directly to the EU borders via fake travel agencies in order to draw away resources and destabilize member states such as Poland, Finland, and the Baltic countries.
After the new amendments are in place, member states “may invoke Treaty provisions to exceptionally and under stringent conditions go further than what is provided for by EU secondary legislation” and close the door on asylum seekers, the Commission stated.
Bending the rules, however, will have to be justified and only temporarily, Virkunnen stressed. EU countries “may limit the right to asylum, but it has to happen in very strict conditions and legal limits. They have to be truly exceptional, temporary proportionate, and for clearly defined cases” the Finnish security chief stressed.
At the same time, the Commission underlined that member states, at all times, “must respect fundamental rights and the principle of non-refoulement,” meaning that they cannot return migrants to the other side of the border, a practice more commonly referred to as “pushbacks.”
When Euractiv asked Virkunnen directly whether denying the right to asylum (and to enter the EU altogether) does not constitute ‘pushback’—as Greece and others are frequently accused of doing so by the Left—Virkunnen only said that all measures must be taken according to EU law.
It remains unclear, therefore, how these new rules will look in practice and how member states can simultaneously deny entry to migrants while not violating their fundamental rights or the principle of “non-refoulement.”
For instance, the humanitarian NGO Human Rights Watch (HRW) just released a report detailing the “inhumane and illegal pushbacks” of migrants trying to cross from Belarus to Poland—the country leading the call for easing the rules—in which it described the practice not only as border police returning migrants once they’re inside the country but also as preventing migrants from entering through physical force.
So, if pushbacks remain illegal under EU law, it appears member states would still be technically obliged to let migrants in and allow them to request asylum—only to reject it later. But since an effective ‘Returns Directive’ is still missing from the EU framework, this would just produce more failed asylum seekers who member states are unable to deport.
The more likely scenario is that the rules around what does and doesn’t constitute pushbacks will also be softened, at least in practice. The Commission doesn’t need to admit that it allows ‘human rights violations,’ it’s enough if it just looks the other way. It already does, to be fair, as it couldn’t stop Poland and the others from strictly policing their borders even if it wanted to.
