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EU IMMIGRATION AND ASYLUM LAW AND POLICY DROIT ET POLITIQUE DE L'IMMIGRATION ET
DE L'ASILE DE L'UE





GENEALOGY OF AND FUTUROLOGY ON THE PACT ON MIGRATION AND ASYLUM

06 Monday May 2024

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By Philippe De Bruycker, Professor at Université Libre de Bruxelles & Founder
and Coordinator of the Odysseus Network 



The instruments adopted as part of the pact on migration and asylum will be
extensively covered in the new courses of the Odysseus Summer School, taking
place from 1 to 12 July 2024

Alleluia! The white smoke that rose above the European quarter in Brussels early
in the morning of 20 December 2023, same as for the election of the Pope, was a
signal that the EU policy makers would receive the New Pact on Migration and
asylum as a Christmas gift. Following sleepless nights of negotiations under
pressure to succeed, combined with fear of failure because there is “no
agreement on anything as long as there is no agreement on everything”, the EU
remained true to itself with the dramatic method it uses to adopt a broad
compromise along a package of measures.

To conduct an inventory of what has been exactly adopted under the flagship of
the pact is not such an easy task (see here for a recent presentation by the
Commission). According to the Commission communication of 23 September 2020
titled “A new Pact on Migration and Asylum”, it is actually so extensive that it
is difficult to identify its content and limits as it embraces asylum law,
borders policy, legal migration, and the fight against smuggling, including the
external dimension of those policies. More precisely, the Commission tabled five
main legislative proposals together with four soft law instruments respectively
on screening, migration and asylum management, asylum procedures, Eurodac and
crisis and force majeure. Proposals such as the revision of the single permit
directive politically agreed on 12 April 2024 and of the long-term residence
directive that is still pending are presented as elements of the pact, and
indeed the Commission explicitly quoted  them Commission in its Communication of
23 September 2020. Other instruments such as the revision of the Schengen
borders Code agreed in February 2024 or the recast of the return directive still
pending are formally not considered as being part of the pact, despite their
close links with its content. Finally, one has to keep in mind four other
instruments, respectively on reception conditions, qualification, resettlement
and the asylum agency, that go back to 2016. These instruments  will only be
formally adopted in 2024 with the reset of the New Pact proposals due to “the
package approach” as explained below. On top, the European Parliament enumerates
the amendment of the Interoperability Regulation and of ECRIS-TCN Regulation
that the Commission proposed in liaison with the screening regulation as being
part of the pact, but the other institutions do not quote this very specific
instrument. 

Continue reading »


“GET THAT JUDGE OUT OF MY SIGHT”: THE SAFETY OF RWANDA (ASYLUM AND IMMIGRATION)
BILL

04 Monday Mar 2024

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Elspeth Guild, safe third country, UK-Rwanda agreement, Valsamis Mitsilegas

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By Professor Elspeth Guild, Queen Mary University of London and Valsamis
Mitsilegas, Professor of European and Global Law, University of Liverpool



The Rwanda policy to send asylum seekers from the UK to a country in Africa for
reception and determination of their claims is a perverse result of Brexit. As
long as the UK was part of the EU, the Dublin system of allocating
responsibility for asylum seekers across the then 28 Member States diminished
the possibility of secondary movements within the area (notwithstanding the
generally weak application of the system). The UK’s departure from the EU and
its inability to enter into a new similar agreement with France has resulted in
those asylum seekers applying in the UK but who have travelled through France to
be able to have their claims determined in the UK without the risk of being sent
back to France. The UK Government’s ‘solution’ to this ‘problem’ is to send them
to Rwanda. The project is not original nor a concoction of UK politics. A
similar project was contemplated in Denmark in 2021 but abandoned in 2023 for
reasons which were never fully fleshed out (about the policy of Denmark see
here). It seems that Rwandan officials had been suggesting to a variety of EU
states (and clearly the UK) the possibility as early as 2020. 

Continue reading »


REFORMING THE EU ‘FACILITATORS’ PACKAGE’: THE NEW COMMISSION PROPOSAL IN THE
LIGHT OF THE KINSHASA LITIGATION

13 Tuesday Feb 2024

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Criminal law, Facilitators package, Kinshasa reference, Valsamis Mitsilegas

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Valsamis Mitsilegas,  Professor of European and Global Law, University of
Liverpool 



Previously published in the blog of University of Liverpool’s School of Law and
Social Justice.

A key feature of the EU policy to prevent migrants from reaching the EU external
border has been the criminalisation – and in essence the overcriminalisation- of
facilitation of unauthorised entry, transit and stay. The EU criminal law
framework dates back from over twenty years ago, in the third pillar, pre-Lisbon
era. This framework is known as the EU ‘facilitators’ package’ and consists of a
(then) first pillar Directive on the facilitation of unauthorised entry, transit
and residence accompanied by a (then) third pillar Framework Decision on the
strengthening of the penal framework to prevent the facilitation of unauthorised
entry, transit and residence confirming that the conduct defined as facilitation
in the Directive will be treated as a criminal offence by EU Member States. The
criminalisation of facilitation is very broad.  In terms of the facilitation of
irregular entry or transit, criminal sanctions will be imposed on any person who
intentionally assists a person who is not a national of a Member State to enter,
or transit across, the territory of a Member State in breach of the laws of the
State concerned on the entry or transit of aliens (Article 1(1)(a) of the
facilitation Directive combined with Article 1(1) of the facilitation Framework
Decision.).

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THE MEMORANDUM OF UNDERSTANDING BETWEEN THE EU AND TUNISIA: ISSUES OF PROCEDURE
AND SUBSTANCE ON THE INFORMALISATION OF MIGRATION COOPERATION

26 Friday Jan 2024

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Development, Eleonora Frasca, external action, Paula Garcia Andrade, Soft law,
Third countries cooperation, Tunisia

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By Paula García Andrade, Associate Professor,  Universidad Pontificia Comillas,
Eleonora Frasca, Université catholique de Louvain (UCLouvain)



The Memorandum of Understanding between the EU and Tunisia:

Issues of procedure and substance on the informalisation of migration
cooperation

On 16 July 2023, the European Union and Tunisia signed a Memorandum of
Understanding (MoU) “on a strategic and global partnership” whereby, in short,
the EU engages to disburse direct budgetary support and accelerate EU funding
with a view to strengthening cooperation with Tunisia in macroeconomic
stability, economy and trade, renewable energies and people-to-people contacts,
in exchange for Tunisia’s cooperation on migration control. In particular,
Tunisia’s commitments relate to the prevention of migrant departures by sea, the
fight against migrant smuggling and trafficking as well as the return of
foreigners from Tunisia to their countries of origin. In turn, the EU promises
to enhance Tunisian citizens’ mobility to the Member States. 

Regarding its nature, the EU-Tunisia MoU is yet another illustration of the
process of informalisation of international law-making to which the EU and its
Member States significantly contribute, and of the proliferation of soft law
instruments particularly in the external dimension of the EU migration policy. 

Continue reading »


THE EU SUPPORT FOR ALTERNATIVES TO IMMIGRATION DETENTION IN TÜRKIYE: A CURIOUS
CASE AT ODDS WITH EU’S EXTERNAL MIGRATION POLICY?

17 Wednesday Jan 2024

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Dr Meltem Ineli-Ciger, Associate Professor, Suleyman Demirel University Faculty
of Law



Over the years, the EU-Turkey Statement of March 2016 and particularly EU
funding have notably increased Türkiye’s detention capacities, raising questions
about the EU’s support to the establishment and widespread use of alternatives
to immigration detention in Türkiye. Türkiye’s recent amendments to its main
asylum and migration law introduced seven alternatives to immigration detention,
aiming to uphold the rights of migrants and reduce detention reliance. This
shift necessitates academic scrutiny. This post provides a brief overview of
alternatives to detention in Türkiye and argues that the EU’s support for
alternatives to detention in Türkiye is at odds with the EU’s externalisation
policies and containment focus in these policies.

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THE SUPREME COURT RULES THE UK-RWANDA POLICY UNLAWFUL

21 Tuesday Nov 2023

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Valsamis Mitsilegas,  Professor of European and Global Law, University of
Liverpool 



Previously published in the blog of University of Liverpool’s School of Law and
Social Justice.

The ruling (R (on the application of AAA (Syria) and others) (Respondents/Cross
Appellants), [2023] UKSC 42), emanates from an appeal concerned with the Home
Office’s policy that asylum seekers in the UK should not have their claims
considered in country, but should instead be sent to Rwanda to claim asylum
there. With their claims being decided by the Rwandan authorities; if their
claims are successful, they will be granted asylum in Rwanda (para 1). The
policy is based on a Memorandum of Understanding between the UK and Rwandan
governments and two Notes Verbales including assurances by the Rwandan
Government (para. 8). The Supreme Court reminds us that the MoU is not binding
in international law, that it does not create or confer any right on any
individual, and that compliance with it is not justiciable in any court of law
(para. 12).

In a unanimous ruling, the Supreme Court held that the UK-Rwanda scheme is
contrary to the principle of non-refoulement (para 105). The present commentary
will highlight three key strands in the Court’s reasoning: 1) the legal
foundations of the principle of non-refoulement; 2) the assessment of Rwanda as
a safe third country; and 3) the role of the judiciary in scrutinising
government assessments on the designation of third states as safe.

Continue reading »

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