M.LAX Crisis as (Asylum) Governance

Articles
Schengen and European Borders

edited by Iris Goldner Lang
Crisis as (Asylum) Governance:

The Evolving Normalisation
of Non-access to Protection in the EU
Violeta Moreno-Lax *
TABLE OF CONTENTS: I. Introduction: structuralising crisis. – II. “Crisification”: the incremental normalisation of
exceptions. – III. The 2015 ”Refugee Crisis”: the suspension of governance (as a form of governance) – III.1.
Relocation (and Dublin prorogation) – III.2. The Hotspot Fiasco – IV. The New Pact Reforms: generalising
derogations – IV.1. Screening process: hotspots extended – IV.2. Border Procedure: hotspots normalised –
V. Conclusion: reversing the rule, decreasing legality.
ABSTRACT: This Article problematises the role of crisis in the governance of asylum in Europe. It unveils
its nature, predominance, and implications as a structural component of EU law and policy in this
domain. The main point I intend to convey is that crisis, in and by itself, constitutes a system of
governance producing very problematic effects. The association between (unwanted) migration and
refugee flows with crisis in the European context has allowed for the exceptionalisation of rights and
legal safeguards, with the pre-emption of unauthorised arrivals becoming the main concern. The
danger, instability, and abnormality connected with crisis pervades law and policy, justifying mech-
anisms that contravene minimal rule of law standards, including due process guarantees and effec-
tive judicial protection. The incremental normalisation of exceptions has led to a position where the
suspension of (rule of law-based) governance has become a form of governance. The prorogation
of “normal” (rule of law-compliant) arrangements has given way to “exceptional” means of managing
asylum, starting with the 2015 “refugee crisis” and the relocation-plus-hotspots scheme, which have
*
Professor of Law (on special leave), Queen Mary University of London, and Ramón y Cajal Professorial
Research Fellow, University of Barcelona (Grant No. RYC2020-030012-I), [email protected].
I am thankful to Philippe De Bruycker (ULB) and Iris Goldner-Lang (Zagreb) for their generous feedback on
a previous draft. The Article was completed prior to the conclusion of the negotiations of the New Pact
package of reforms commission.europa.eu, the final adoption of which is foreseen for May/June 2024. See
European Parliament News, ‘MEPs approve the new Migration and Asylum Pact’ (10 April 2024) www.euro-
parl.europa.eu; and European Council, ‘Work on the Asylum and Migration Pact’ (undated) www.consil-
ium.europa.eu. The analysis, therefore, relies on the text of the Commission proposals, the bulk of which
has been retained by the co-legislators. All errors remain mine.
European Papers www.europeanpapers.eu ISSN 2499-8249

Vol. 9, 2024, No 1, pp. 179-208 doi: 10.15166/2499-8249/752
(CC BY-NC-ND 4.0)
180 Violeta Moreno-Lax
now been streamlined as part of the New Pact on Migration and Asylum reforms. The resulting gen-
eralisation of derogations, the proliferation of legal fictions and rights negations that the envisaged
amendments involve, is progressively normalising a situation of non-access to international protec-
tion in the EU, with deleterious consequences not only for asylum seekers, but for the integrity of
the EU legal order and fundamental rights at large.
KEYWORDS: crisification – asylum governance – New Pact on Migration and Asylum – access to inter-
national protection – exceptionalisation – rule of law.
I. Introduction: structuralising crisis

This Article problematises the role of crisis in the governance of asylum in Europe. It un-
veils its nature, predominance, and implications as a structural component of EU law and
policy in this domain. The main point I intend to convey is that crisis, in and by itself,
constitutes a system of governance producing very problematic effects. 1 The association
between (unwanted) migration and refugee flows with crisis in the European context has
allowed for the exceptionalisation of rights and legal safeguards, with the pre-emption of
unauthorised arrivals becoming the main concern. The danger, instability, and abnormal-
ity connected with crisis pervades law and policy, justifying mechanisms that contravene
minimal rule of law standards, 2 including due process guarantees and effective judicial
protection. 3 The incremental normalisation of exceptions has led to a position, especially
in the aftermath of the 2015 “refugee crisis”, where the suspension of (rule of law-based)
governance has become a form of governance. The prorogation of “normal” (rule of law-
compliant) arrangements has given way to “exceptional” means of managing asylum that
have now been consolidated as part of the New Pact on Migration and Asylum reforms. 4
The resulting generalisation of derogations, the proliferation of legal fictions and rights
negations that the envisaged amendments involve, is progressively normalising a situa-
tion of non-access to international protection in the EU, with deleterious consequences
not only for asylum seekers, but for the integrity of the legal order and fundamental rights
at large. The move can be inscribed in the “trend to legitimise pushback[s] through the
introduction of legislation…as a means to whitewash unlawful practices” the UN Special
1
For the full-length argument, V Moreno Lax, ‘The “Crisification” of Migration Law: Insights from the
EU External Border’, in K Cope, S Burch Elias and J Goldenizel (eds), The Oxford Handbook of Comparative
Immigration Law (Oxford University Press, forthcoming) papers.ssrn.com.
2
Art. 2 TEU and case C-64/16 Associação Sindical dos Juízes Portugueses ECLI:EU:C:2018:117 para. 36;
case C-156/21 Hungary v Parliament and Council ECLI:EU:C:2022:97 para. 232; and C-157/21 Poland v Parlia-
ment and Council ECLI:EU:C:2022:98 para. 264..
3
Arts 41 and 47 of the Charter of Fundamental Rights of the European Union [2012]. For analysis, V
Moreno-Lax, Accessing Asylum in Europe (Oxford University Press 2017) ch.10.
4
Communication COM(2020) 609 final from the Commission of 23 September 2020 on a New Pact on
Migration and Asylum. See also the Migration and Asylum Package accompanying the document: commis-
sion.europa.eu.
Crisis as (Asylum) Governance: The Evolving Normalisation of Non-access to Protection in the EU 181
Rapporteur on the human rights of migrants has denounced, regarding developments in

several Member States and the European Union as a whole. 5
In reality, asylum policy has long been permeated by migration control preoccupa-
tions in the EU, to the point that both policies have been “gradually merging”. 6 Consider-
ations of border management and the fight against unauthorised movement have infil-
trated the Common European Asylum System (CEAS) on a systemic basis, defining the
object and purpose of the regime. The CEAS has been framed not only as a common
European scheme of international protection, but first and foremost as a “flaking meas-
ure” of the EU’s Area of Freedom, Security and Justice (AFSJ), 7 facilitating “the free move-
ment of persons” within the Single Market and “the absence of internal border controls”
as the core element of the Schengen cooperation. 8 Instead of a sole (or even predomi-
nant) focus on refugee protection, the administration (if not containment) of refugee
flows and the prevention of abuse have been the main goals from the early stages of
inception. 9 It has long been considered that “effective asylum…systems” are those which
are “capable of identifying refugees expeditiously and accurately thereby balancing refu-
gee protection with immigration control”. 10 This has rendered the CEAS a factor of migra-
tion management, with more of a control task than a protective function. 11 A key element
has enabled this transformation: the consideration of refugee claimants as potentially
bogus, ungenuine, as irregular migrants in disguise. In consequence, the supposed recip-
ients of international protection have also become the target of “the fight against illegal
immigration”. 12 The assimilation of “claimed” refugees (or “asylum seekers” yet to demon-
strate the genuineness of their status) to the wider group of irregular (and unwanted)
migrants 13 is what has allowed for the conversion of asylum policy into yet another
means to counter clandestine entry.
5
United Nations Special Rapporteur on the human rights of migrants, Report of Human rights viola-
tions at international borders: trends, prevention and accountability, A/HRC/50/31(2022), para. 27.
6
G Noll and J Vedsted-Hansen, ‘Non-Communitarians: Refugee and Asylum Policies’, in Philip Alston
(ed.), The European Union and Human Rights (Oxford University Press 1999) 359, 368.
7
Art. 61(a) TEC (Amsterdam).
8
Art. 3(2) TEU and art. 67(1) and (2) TFEU.
9
Communication COM(2000) 755 final from the Commission to the Council and the European Parlia-
ment of 22 November 2000 towards a common asylum procedure and a uniform status 7.
10
Communication COM(2000) 757 final from the Commission to the Council and the European Parlia-
ment of 22 November 2000 on a Community immigration policy 14 (emphasis added).
11
For the full argument, see V Moreno-Lax, ‘Life after Lisbon: EU Asylum Policy as a Factor of Migration
Control’, in D Acosta and C Murphy (eds), EU Justice and Security Law (Hart 2014) 146.
12
European Parliament, The fight against illegal immigration and people smuggling in the Mediterranean
(topical debate), www.europarl.europa.eu.
13
For an approximation to the notion of “unwanted migration”, see V Moreno-Lax and N Vavoula, ‘The
(Many) Rules and Roles of Law in the Regulation of “Unwanted Migration”’ (2022) ICLR 285.
The next step has been the consideration of irregular migration (including by refugees)
as unruly, undesirable, and ultimately dangerous, thus warranting a security response. 14
From framings of “invasion”, 15 a “jungle” that may overtake the “garden” of Europe, 16 to
flood “water against a dam” metaphors, 17 irregular migration has been routinely portrayed
as an indomitable power that may shake the “very foundation” of the integration project. 18
Recently, EU High Representative Josep Borrell has warned that it may constitute “a dissolv-
ing force for the European Union”. 19 This negative perception of unwanted migration is due
to its association with crime, terrorism, and other (existential) threats to public order and
internal security. Irregular migrants challenge EU and State power to control territory and
population. Their deterrence therefore requires a “continuum of…measures” 20 capable of
repelling and controlling their advance at “all stages”, 21 from the beginning of their journeys
up to their destination, so as to produce an “optimal level of protection [of the Union]” 22
and an “as high as possible level of security for the public”. 23
The resulting securitisation of migration (and refugee) flows has helped to tie the rise in
asylum applications to a perceived generalised misuse of the asylum system, with little regard
for underlying realities – specially the fact that there are no legal channels to access the EU
from abroad to seek protection.24 The widespread, if unproven, conviction that the asylum
system is being exploited to circumvent migration restrictions emerged in the 1990s, 25 when
refugee flows started to become more voluminous and more complex, due to the dissolution
14
J Huysmans, ‘The European Union and the Securitisation of Migration’ (2000) JComMarSt 751.
15
S Walker ‘Hungarian leader says Europe is now “under invasion” by migrants’ (15 March 2018) The
Guardian www.theguardian.com.
16
EEAS, European Diplomatic Academy: Opening remarks by High Representative Josep Borrell at the
inauguration of the pilot programme (13 October 2022) www.eeas.europa.eu.
17
European Commission, Speech by European Commission President Jean-Claude Juncker at the 20th
anniversary of the European Policy Centre, ‘The road to Rome: from crisis management to governing the
EU’ 13 October 2016 ec.europa.eu.
18
Ibid.
19
P Wintour, ‘Migration could be “dissolving force for EU”, says bloc’s top diplomat’ (22 September
2023) The Guardian www.theguardian.com.
20
Communication 2005/C 53/01 from the Council of the European Union of 3 March on The Hague
Programme: strengthening freedom, security and justice in the European Union (hereinafter “Hague Pro-
gramme”) 7.
21
Art. 79(1) TFEU; and European Council Conclusions of 15-16 October 1999 para. 22.
22
Hague Programme cit. p. 2.
23
Action Plan of the Council and the Commission on how best to implement the provisions of the
Treaty of Amsterdam on an area of freedom, security and justice - Text adopted by the Justice and Home
Affairs Council of 3 December 1998 paras 25 and 32.
24
See further V Moreno-Lax, Annex I: Legal Aspects, in European Added Value Assessment accompanying
the European Parliament’s legislative own-initiative report (Rapp. Lopez Aguilar) on Humanitarian Visas (Euro-
pean Parliamentary Research Service 2018) www.europarl.europa.eu 23-124.
25
See, e.g., Communication SEC(91) 1857 final from the Commission to the Council and the European
Parliament of 11 October 1991 on the right of asylum.
of the USSR and the process of decolonisation.26 Since then, refugee flows (towards the EU)
have been approached with caution and apprehension, as fundamental challenges to the
project of EU integration. The identification of refugees/(irregular) migration with “crisis” situ-
ations (capable of dismantling the Schengen system) has increasingly become more potent.
“Crisis thinking” in relation to migration and asylum is, actually, structural in the EU;
the main force driving initial harmonisation and subsequent reforms. 27 A political choice:
the illegalisation of protection seekers’ travel to the EU based on their assimilation to the
general class of irregular/unwanted migrants, 28 has, from the start, determined the limits
of the policy, contributing to the very “crises” (humanitarian, practical, political) it was
supposed to avoid. The Dublin regime, 29 the oldest piece – the “cornerstone” – of the
CEAS, 30 has constrained the possibilities of deployment and evolution of the system. The
“one-chance only” rule and the “authorisation” principle, according to which applicants’
claims can only be assessed in one of the Dublin countries whose responsibility is deter-
mined by the part it may have played in allowing the refugee’s presence in the EU – un-
derstood as a sign of negligence in the control of the common external borders 31 – is
what has led to the very failings considered as “crisis” of the system. The uneven distri-
bution of responsibility and concentration effects of applicants in external border Mem-
ber States inscribed in the rules is what brought it to implosion in 2015. 32
What I show in the next sections is how this “crisis thinking”, in the origins and design of
the CEAS, has come to dominate law and policy in the field, structuralising crisis (its means
and modes of action) as a form of governance. In my view, it is the ensuing “crisification” of
(irregular) migration, expounded in Section II, that has led to the incorporation of strategies
that negate access to rights (including to international protection) as part of the system. The
process will be traced starting with the reaction to the 2015 “refugee crisis”, explored in Sec-
tion III. This was marked by the suspension of the Dublin arrangements and their replace-
ment with a (sub-par) relocation-plus-hotspots scheme beset by a host of problems, ranging
from lack of capacity and coordination of the actors and authorities concerned to the viola-
tion of key legal commitments. However, rather than a return to pre-crisis norms, a package
26
D Joly and R Cohen, ‘Introduction: the “New Refugees” of Europe’, in D Joly and R Cohen (eds), Reluc-
tant Hosts (Aldershot 1989) 5.
27
S Lavenex, ‘“Failing Forward” Towards Which Europe? Organized Hypocrisy in the Common Euro-
pean Asylum System’ (2018) JComMarSt 1195.
28
See further V Moreno-Lax, Accessing Asylum in Europe cit. especially ch. 3.
29
Regulation (EU) No 604/2013 of the Parliament and of the Council of 26 June 2013 establishing the
criteria and mechanisms for determining the Member State responsible for examining an application for
international protection lodged in one of the Member States by a third-country national or a stateless per-
son (recast) (“Dublin Regulation”).
30
Ibid. recital 7.
31
Ibid. recital 25. See also case C-646/16 Jafari EU:C:2017:586 para. 88.
32
See, e.g., E Guild, C Costello, M Garlick and V Moreno-Lax, Enhancing the CEAS and Alternatives to
Dublin (European Parliament 2015) www.europarl.europa.eu.
of reforms attached to the New Pact, 33 currently under negotiation, has been put forward,
which, once formally adopted, will embed and generalise crisis-based derogations as part of
the “normal” borders and asylum framework. This will reverse the usual relation between
rule and exception, using harmonisation to “influence the flow of asylum seekers”, 34 to con-
trol the numbers (through deflection, containment, and coercion 35), standardising measures
that impede, rather than facilitate, access to asylum in the EU.
II. “Crisification”: the incremental normalisation of exceptions

The association of irregular migration with crisis has a long history in EU politics, 36 to the
point that it has been deemed a “permanent” condition. 37 Irregular migration in itself is rou-
tinely apprehended as crisis. 38 Irregular migration is (viewed as) crisis, framed as abnormal,
aberrant, as “threatening” and jeopardising socio-economic and democratic structures in
countries of destination. 39 It constitutes a challenge to the “normalcy” (or normative desira-
bility) of regular migration (considered the preferred state of affairs), authorised and sanc-
tioned by the legal regime (in line with the sovereign preferences of the Member States).
Rather than a factual reality, however, (the constant threat of) irregular migration is
legally and politically constructed as crisis 40 – its size, dimensions and actual implications
not being determinant for portraying the possibility of its occurrence as perilous and un-
wanted. 41 Recourse to crisis discourse in this connection is performative. 42 It produces a
33
New Pact on Migration and Asylum cit.
34
This has always been the veritable object and purpose of harmonisation in this field, according to:
Report from the Ministers Responsible for Immigration to the European Council Meeting in Maastricht -
Work Programme, SN 4038/91 (WGI 9030) 3 December 1991, 450, unpublished but printed in E Guild and J
Niessen (eds), The Developing Immigration and Asylum Policies of the European Union (Kluwer 1996) 449-491.
35
Mapping these dynamics, see E Tsourdi and C Costello, ‘The Evolution of EU Law on Refugees and
Asylum’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press 2021) 793.
36
See, e.g., D Maddaloni and G Moffa, ‘Migration Flows and Migration Crisis in Southern Europe’, in C
Menjívar, M Ruiz and I Ness (eds), The Oxford Handbook of Migration Crises (Oxford University Press 2019) 603.
37
M Rice-Oxley and P Walker, ‘Europe’s Worsening Migrant Crisis’ (5 May 2015) The Guardian
www.theguardian.com.
38
A Lindley, ‘Exploring Crisis and Migration: Concept and Issues’, in A Lindley (ed.), Crisis and Migration:
Critical Perspectives (Routledge 2014).
39
A Boin, ‘Lessons from Crisis Research’ (2004) International Studies Review 165.
40
Cf. R Paul and C Roos, ‘Towards a New Ontology of Crisis? Resilience in EU Migration Governance’
(2019) European Security 393.
41
Compare EU approaches to the 2015 “refugee crisis”, where most of the (non-white, non-Christian)
one million refugees came from Syria, to the (predominantly white and Christian) Ukrainian refugee out-
flow, in relation to which crisis labelling has been much less pervasive and nearly six million persons have
been granted either Temporary Protection or a similar national protection arrangement according to:
UNHCR, ‘Ukraine situation Flash Update #66’ (12 March 2024) data.unhcr.org.
42
On the “narrative” process of crisis constitution, see, e.g., C Estes, ‘Social Security: the Social Con-
struction of a Crisis’ (1983) Health and Society 445; C Hay, ‘Narrating Crisis: The Discursive Construction of
specific disposition (an aversion) that justifies “exceptional” measures. The crisis con-
strual introduces a cognitive order that rationalises irregular migration as anomalous,
calling for urgent and extraordinary interventions to reverse it and counter it. 43 The en-
suing “crisification” of the (irregular) migration field – the process and result of (re)pre-
senting and governing unauthorised migration as crisis 44 – allows (EU) law – and policy-
makers to reorient the political agenda to address and defuse the phenomenon. The task
becomes one of crisis identification, prevention, and minimisation (in the case of eventu-
ation). As a result, dealing with crisis (and the continual prospect of its materialisation),
managing risks, reacting to events, and coping with their aftermath, has developed into
a system of governance with its own dynamics and inertia. 45
The conceptualisation of irregular migration as crisis (and its administration as such)
rests on the understanding of unauthorised movement across borders as suspect, po-
tentially dangerous, 46 and as subversive of the established (or intended) political and le-
gal order. 47 Against this background, migration control – “transformed into the new last
bastion of sovereignty” 48 – acquires symbolic value as a marker of State authority. In this
context, the securitisation of migration works as a vehicle of validation; it reasserts the
relevance and legitimacy of the State and its control over national territory. 49 It also al-
lows for targeted forms of exceptionalism, directed at specific (typically “undesirable”)
groups, and the exercise of “emergency” or “extraordinary” powers that normally restrict
freedoms and curtail the rights of law-defying subjects (including irregular migrants).
Experience shows that once new, emergency-countering measures have been
adopted to regulate crisis situations, they are not retracted. They tend to consolidate. 50
A process of “incremental normalisation” leads to their incorporation within the system. 51
the “Winter of Discontent”’ (1996) Sociology 253; A De Rycker and Z Mohd Don (eds), Discourse and Crisis:
Critical Perspectives (John Benjamins 2013).
43
A Broome, L Clegg, and L Rethal, ‘Global Governance and the Politics of Crisis’ (2012) Global Society 3.
44
See further, V Moreno Lax, ‘The “Crisification” of Migration Law’ cit.
45
For an early formulation of crisis as governance, see J Brassett and N Vaughan-Williams, ‘Crisis is
Governance: Subprime, the Traumatic Event, and Bare Life’ (2012) Global Society 19.
46
J Huysmans and V Squire, ‘Migration and Security’ in M Dunn Cavelty and V Mauer (eds), The
Routledge Handbook of Security Studies (Routledge 2010) 169.
47
On the “sedentarist metaphysics” pervading Global North understandings and regulation of mobil-
ity, see T Cresswell, On the Move: Mobility in the Modern Western World (Routledge 2006) 26.
48
C Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’ (2004) ModLRev 588, 588
and 600.
49
D Bigo, ‘Security and Migration: Toward a Critique of the Governmentality of Unease’ (2002) Alter-
natives: Global, Local, Political 63.
50
See, e.g., P Genschel and M Jachtenfuchs, ‘From Market Integration to Core State Powers: the Euro-
zone Crisis, the Refugee Crisis and Integration Theory’ (2018) JComMarSt 178.
51
A Neal, ‘Securitization and Risk at the EU Border: The Origins of Frontex’ (2009) JComMarSt 333, 353.
They eventually become standard. The crisis label sticks and perpetuates them with last-
ing effects. 52 Cycles of (actual or prospective) “acute” and “protracted” crises combine and
extend the (perceived) need for continued exceptionalism (at least, in certain circum-
stances), 53 demanding pre-emptive action and infusing a sustained sense of urgency that
legitimises constant “special” derogations to confront the challenges they entail. Excep-
tional actions ( possibly including those formerly considered to be violations of the appli-
cable norms) become justifiable and widespread. Crisis foments a notion of necessity
that conceals and normalises transgressions, making them admissible, legitimate, and
even indispensable. It obscures the structural complexities and long-term causes under-
lying the phenomenon thereby being “crisified”.
This applies to irregular migration. Once “crisification” enters the scene and becomes the
dominant rationality of governing, arranging, and managing, irregular migration transfigures
into an area of “routinized emergency”, 54 requiring a permanently “crisified” response that
progressively normalises exceptions, limitations, and derogations from the relevant rules. 55
New legalised restrictions and contractions of pre-existing legal safeguards transform the EU
acquis as a result, downgrading protections (of the target group) on a durable basis.
As the next Sections demonstrate, this is precisely what has happened with the sup-
posedly “exceptional” and “temporary” measures introduced by the EU legislator in re-
sponse to the 2015 “refugee crisis”. 56 What was originally conceived of as short-term,
emergency-driven interventions have crystalised in permanent reforms – for the EU “to
be prepared for any similar situations in the future”. 57 Once adopted, these reforms will
fragment and discontinue the legal protections that irregular migrants, including refu-
gees, derive from the EU borders and asylum framework. The risk is that they generalise
derogations to a point that reverses the relation between rules and their exceptions, with
fundamental rights becoming only formally applicable but their protection illusory and
practically unattainable.
52
F Schimmelfennig, ‘Theorising Crisis in European Integration’ in D Dinan, N Nugent and W Paterson
(eds), The European Union in Crisis (Palgrave Macmillan 2017) 316.
53
N Perkowski, M Stierl and A Burridge, ‘The Evolution of EUropean Border Governance through Crisis:
Frontex and the Interplay of Protracted and Acute Crisis Narratives’ (2023) Environment and Planning D:
Society and Space 110.
54
R van Reekum, ‘The Mediterranean: Migration Corridor, Border Spectacle, Ethical Landscape’ (2016)
Mediterranean Politics 336, 339.
55
Mapping these developments, see Z Sahin-Mencutek, S Barthoma, NE Gökalp-Aras and A Trianda-
fyllidou, ‘A Crisis Mode in Migration Governance: Comparative and Analytical Insights’ (2022) Comparative
Migration Studies 1.
56
Communication COM(2015) 240 final from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions of 13 May 2015 on a European
agenda on migration (hereinafter “EU Agenda on Migration”).
57
Proposal COM(2021) 890 final for a Regulation of the European Parliament and of the Council of 14
December 2021 addressing situations of instrumentalisation in the field of migration and asylum (“Instrumen-
talisation Proposal”), Explanatory Memorandum 8.
III. The 2015 “refugee crisis”: the suspension of governance (as a form
of governance)
The 2015 “refugee crisis” has been portrayed as “a crisis of unprecedented magnitude”,
tied to “the largest refugee crisis since the end of World War II” 58 (at least, until the Rus-
sian invasion of Ukraine 59). The arrival of up to one million protection seekers through
irregular means 60 (since there were no legal pathways to reach safety in the EU other-
wise) led then Commissioner Avramopoulos to demand for “that…collective European
sense of urgency…consistently shown…in times of crisis” to be mobilised. 61 Proposals for
“immediate” operational, budgetary, and legal measures to “manage” the crisis followed
promptly, 62 in a bid to implement the European Agenda on Migration adopted earlier that
year to confront the situation. 63
Rather than developing a humanitarian response to cater for the heightened need for
international protection, the “four pillars” strategy put forward by the Commission to “man-
age migration better” 64 mostly replicated past initiatives, doubling down on securitisation. 65
It focused on “[r]educing the incentives for irregular migration”, 66 through “[t]he fight
against smugglers and traffickers” 67; on “securing external borders”, 68 via enhanced border
management; on guaranteeing “[a] coherent implementation of the [CEAS]”, as a “more ef-
fective approach to [counter] abuses” of the system 69; and on providing a ”[w]ell managed
regular migration and visa policy”, maximising EU and Member State interests. 70 In the
short term, the Commission proposed some “immediate action”, 71 reinforcing
EUNAVFORMED and Frontex presence at sea, “[t]argeting criminal smuggling networks”,
and “[w]orking in partnership with third countries to tackle migration upstream” in order to
prevent departures. 72 In relation to refugees, two measures were suggested, designed as
58
Joint Communication JOIN(2015) 40 final from the Commission and the High Representative of the
Union for Foreign Affairs and Secutirty Policy of 9 September 2015 addressing the Refugee Crisis in Europe:
The Role of EU External Action 2.
59
Cf. UNHCR, ‘Ukraine situation Flash Update #66’ cit.
60
UNHCR, ‘Over one million sea arrivals reach Europe in 2015’ (30 December 2015) www.unhcr.org.
61
European Commission, ‘Ten Point Action Plan on Migration’ (20 April 2015) ec.europa.eu.
62
Communication COM(2015) 490 final from the Commission of 23 September 2015, Managing the ref-
ugee crisis: immediate operational, budgetary and legal measures under the European Agenda on Migration.
63
EU Agenda on Migration cit.
64
Ibid. 6.
65
J Jeandesboz and P Pallister-Wilkins, ‘Crisis, Routine, Consolidation: The Politics of the Mediterranean
Migration Crisis’ (2016) Mediterranean Politics 316.
66
EU Agenda on Migration cit. 7.
67
Ibid. 8.
68
Ibid. 10.
69
Ibid. 12.
70
Ibid. 14.
71
Ibid. 3.
72
Ibid. 3 and 5.
“tools to help frontline Member States” 73: a relocation scheme, to “[r]espond[] to high-vol-
umes of arrivals within the EU”, 74 and a “hotspot approach” to buttress it. The two instru-
ments entailed the suspension of CEAS and Schengen structures as a way to address the
“crisis”. So, the suspension of governance became a new form of governance.
iii.1. Relocation (and Dublin prorogation)

Given the collapse of the domestic asylum systems in Italy and Greece, overburdened by
the sudden arrival of a high volume of applicants – who, under Dublin rules, were their
(sole) responsibility, two Relocation Decisions were adopted in September 2015 and Sep-
tember 2016, 75 aiming for the relocation of a combined total of 160,000 asylum seekers
to other (less affected) Member States. They were explicitly conceptualised as “emer-
gency measures” in the sense of art. 78(3) TFEU, 76 based on the suspension of Dublin
arrangements (derogating from the usual responsibility allocation criteria 77) to alleviate
overstretched domestic reception and processing facilities. The continued operation of
Dublin provisions would have worsened the situation. The “first country of entry” rule
would have added pressure, exacerbating the Member States’ (capacity) crisis – the Relo-
cation scheme came, precisely, to correct the imbalances generated by the Dublin re-
gime. Performance, however, was meagre and plagued by multiple complications. Only
a fraction of the intended relocations was carried out due to resistance by fellow Member
States, lack of adequate capacity by the beneficiary countries, and disengagement on the
part of the refugees concerned. 78
Structural inadequacies compounded the workability of the scheme. Eligibility was
based on nationality. And only certain nationalities were considered eligible for relocation
if the average recognition rate EU-wide in the previous year was 75 per cent or above, 79
which did not account for rapid changes, actual necessities, or the wide disparities in
recognition rates across Member States for the same cohorts. 80 Nationality as a proxy for
protection needs is, also, generally inadequate in relation to complex cases where no
generalised risk of persecution affecting the population at large may be identified but
73
Ibid. 6.
74
Ibid. 4.
75
Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the
area of international protection for the benefit of Italy and Greece; and Council Decision (EU) 2016/1754 of
29 September 2016 amending Decision (EU) 2015/1601 establishing provisional measures in the area of
international protection for the benefit of Italy and Greece.
76
Council Decision 2015/1601 cit. recitals 1, 21, 22; and Council Decision 2016/1754 cit. recital 1.
77
Dublin Regulation cit. ch. III.
78
For a thorough analysis, see E Guild, C Costello and V Moreno-Lax, Implementation of the 2015 Council
Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and
Greece (European Parliament 2017) www.europarl.europa.eu.
79
Council Decision 2015/1601 cit. art. 3(2).
80
E Guild, C Costello and V Moreno-Lax, Implementation of the 2015 Council Decisions cit. 17 ff.
where specific profiles do, nonetheless, qualify for refugee recognition under the 1951
Convention – e.g., due to gender, sexual orientation or other individual factors . 81 The
scheme was thus flawed on this basis – which is, however, the same utilised in the New
Pact reforms reviewed below. Also, subordinating relocation to nationality determination
maintained the need for processing (to identify potential beneficiaries), thus not relieving
Italy and Greece of their key burden.
Although the relocation Decisions were legally binding, several Member States defied
their application. Bitter disagreements over solidarity and responsibility allocation sparked
across the Union, revealing deep rifts on how to address the “crisis”. Hungary, Czech Re-
public, and Slovakia, which had voted against their adoption in the Council, either failed to
relocate any asylum seekers (a strategy also shared by Austria and Poland) or brought a
legal challenge against the scheme. 82 Other countries failed to pledge or to provide suffi-
cient relocation places, while still others rejected requests for relocation on “national secu-
rity” (as authorised by the Decisions), on other grounds (beyond those allowed), or without
providing any reasons at all. 83 Italy and Greece also faced internal obstacles impeding
smooth implementation, ranging from lack of preparedness and coordination between the
authorities concerned to cumbersome procedures leading to long delays. 84 Other prob-
lems included the interaction with Dublin rules, which was not clear – at some point the
Commission proposed to resume Dublin transfers in parallel to relocations, which would
neutralise the solidarity impact of the scheme. 85 That the relocation preferences of asylum
seekers were not necessarily taken into account and that the avenues for appeal and re-
dress against (non)transfer decisions were defective were also major drawbacks. 86
iii.2. The Hotspot Fiasco

The hotspot approach was equally unsound. It was equally designed as an emergency, tem-
porary mechanism, to support the relocation scheme. 87 Discursively, it designated the phys-
ical locations where new arrivals tended to concentrate as well as the policy strategy to be
applied in those locations. But, differently from the relocation scheme, there was no specific
legal framework sustaining the approach. Originally, it worked to facilitate the identification
of candidates for relocation, involving the EU agencies (mainly Frontex and EASO) to “swiftly
identify, register and fingerprint incoming migrants”. 88 Mixed teams, of host country, EU
81
United Nations Convention relating to the Status of Refugees [1951] (hereinafter “Refugee Convention”).
82
Joined cases C-643/15 and C-647/15 Slovakia and Hungary v Council ECLI:EU:C:2017:631.
83
E Guild, C Costello and V Moreno-Lax, Implementation of the 2015 Council Decisions cit. 25-35.
84
Ibid. 35-40.
85
Ibid. 60 ff.
86
Ibid. 40-43.
87
European Council Conclusions of 25 and 26 June 2015, 4.
88
EU Agenda on Migration cit. 6.
agencies, and seconded personnel from other Member States, assumed a variety of func-
tions, including screening, referral, and direct assistance in the implementation of the rele-
vant procedures, on the assumption that persons could be triaged quickly to the appropriate
channel (relocation, asylum or return) and some of them “returned immediately” without
extensive investigations of their individual circumstances. 89
The approach rapidly deteriorated into a warehouse and expulsion mechanism, fo-
cusing mostly on border control and “the conduct of policing activities”, including through
“the use of force”. 90 In Italy, only soft law, in the form of a Roadmap and SOPs, 91 but-
tressed the scheme. Given the difficulties of swift referrals and the lack of sufficient relo-
cation spaces elsewhere in the EU, removal procedures soon became predominant, with
credible reports proliferating of beatings, ill treatment (via the deprivation of food, water,
and basic necessities), and de facto detention (without any judicial oversight) used to ef-
fect them. 92 Even the Italian police officers’ Union expressed criticism of the malpractices
burgeoning at the hotspots. 93 Return proceedings were undertaken without proper hear-
ing, legal assistance, or access to adequate processing, treating arrivals from non-reloca-
tion countries automatically as non-refugees (solely on grounds of nationality) and di-
rectly expelling them, 94 in a manner akin to pushbacks. 95 A de-briefing form, called the
foglio notizie, was used to record information and note the intention of the person con-
cerned to apply for international protection. But asylum seekers were not properly in-
formed that, “[f]or those who ha[d] not expressed the intention to apply” at this prelimi-
nary stage, the return procedure would start right away for their expulsion to “be exe-
cuted immediately”. 96 In practice, therefore, the screening process worked as a super-
accelerated border procedure impeding access to asylum without effective safeguards –
89
European Commission, 'Exploratory Note on the Hotspot Approach' (July 2015) www.statewatch.org, 4-5.
90
Italian Ministry of the Interior, Standard Operating Procedures (SOPs) applicable to Italian Hotspots
www.libertaciviliimmigrazione.dlci.interno.gov.it 4 and 15.
91
Ibid. and Ministero dell’interno, Roadmap Italiana, 28 September 2015 www.meltingpot.org. In fact,
Italy has been condemned for the inadequacy of these arrangements in a string of cases, see ECtHR J.A. and
Others v Italy, App n. 21329/18 [30 March 2023] (Lampedusa hotspot); ECtHR M.A. v Italy, App n. 13110/18 [19
October 2023] (Lampedusa hotspot); ECtHR A.S. v Italy, App n. 20860/20 [19 October 2023] (Lampedusa
hotspot); ECtHR A.B. v Italy, App n. 13755/18 (Lampedusa hotspot); ECtHR A.T. and Others v Italy, App n.
47287/17 [23 November 2023] (Taranto hotspot). In all instances has the Court declared a violation of arts 3
and 5 of the European Convention on Human Rights [1950] (“ECHR”), in both their substantive and procedural
facets (adding art. 13 ECHR cit. in A.T., concerning the situation of thirteen unaccompanied minors).
92
ECRE, The Implementation of the Hotspots in Italy and Greece: A Study (October 2016) www.ecre.org,
16 and 23.
93
UGL Polizia di Stato, ‘Fotosegnalamento forzoso, la risposta del Dipartimento’ (11 January 2016)
www.uglpoliziadistato.it.
94
D Neville, S Sy and A Rigon, On the Frontline: The Hotspot Approach to Managing Migration (European
Parliament, 2016) 40.
95
The ECtHR in fact draws on its caselaw on pushbacks to condemn this practice in J.A. cit. paras 115-116.
96
Italian Standard Operating Procedures (SOPs) cit.
in a way not dissimilar to the one suggested by the Commission as part of the New Pact
instruments.
In fact, the Strasbourg Court has condemned Italy on various counts for its malprac-
tices at the Lampedusa and Taranto hotspots. In J.A. – which acts as a “pilot case” to which
all the other judgments refer, 97 it considered the living/detention conditions as amount-
ing to inhuman and degrading treatment and recalled the “absolute” obligation to honour
human rights even when confronted with “difficulties deriving from the increased inflow
of migrants” to which “States which form the external borders of the European Union”
are particularly exposed. 98 The lack of hygiene, basic necessities, and overcrowding at the
centre had already been denounced by multiple organisations, including the European
Committee for the Prevention of Torture (CPT) as well as the UN Committee against Tor-
ture, on several occasions. 99
The situation of de facto detention, without an adequate legal basis either in Italian
or EU law, 100 not subjected to judicial scrutiny, 101 nor to any effective remedy, and given
the “absence of a reasoned measure ordering their retention before being [forcibly] re-
moved to their country of origin” also led the Court to find a violation. 102 Without “a clear
and accessible legal basis for detention”, the Court “fail[ed] to see how the authorities
could have informed the applicants of the legal reasons for their deprivation of liberty or
have provided them with sufficient information or enabled them to challenge the
grounds for their de facto detention”, which contravened arts 5(2) and 5(4) on top of art.
5(1)(f) ECHR. 103 The Court considered that it was for “the Italian legislature to clarify the[]
nature [of the hotspots’ regime] as well as the substantive and procedural rights of the
individuals staying therein” to guarantee their protection against arbitrariness. 104 Soft law
was deemed insufficient in this regard.
The immediate removal of the applicants following their unlawful detention was
equally considered in breach of the Convention. The practice of serving deferred-refusal-
of-entry orders (respingimento differito), without an interview and with no consideration
of the individual situation of each applicant, 105 “constituted a collective expulsion”. 106 The
whole process occurred with the sole intermediation of the foglio notizie questionnaire,
97
J.A. cit.; M.A. cit. paras 16, 19, 21; A.S. cit. paras 23 and 25; A.B. cit. paras 24, 27, 30; A.T. cit. paras 17
and 24.
98
J.A. cit. para. 65.
99
Ibid. paras 39 (CPT), 41 (CAT), and 55-63 (both).
100
Ibid. para. 90.
101
Ibid. para. 92.
102
Ibid. para. 97.
103
Ibid. paras 98-99.
104
Ibid. para. 96, repeated nearly verbatim in M.A. cit. paras 23-24; A.S. cit. paras 26-27; A.B. cit. paras 32-
33; A.T. cit. paras 26-27.
105
J.A. cit. paras 107-112 and 115.
106
Ibid. para. 116.
that the Court considered “standardised”, 107 “formulated in an extremely concise way”
and “difficult to understand”, 108 with no possibility to contact a lawyer or to appeal against
the decisions it buttressed. The lack of translation and adequate legal information, the
confiscation of mobile phones until after expulsion, the lack of evidence of a proper iden-
tification procedure having been undertaken, the practice of not handing out copies of
the relevant decisions nor of ensuring that the applicants understood the content of of-
ficial documents before signing them, as well as the swift character of proceedings con-
tributed to the infringement. 109
The situation in Greece was equally despairing. Two phases need to be distinguished
in this context, before and after the EU-Turkey Statement. 110 Before the Statement, the
focus of the Greek hotspots (in the islands of Lesvos, Chios, Samos, Leros, and Kos) was
reception for EU relocation, channelling sea arrivals to the appropriate procedure (relo-
cation, asylum or return). However, only a minority were concerned, since most of them
instead continued their (irregular) journeys across the Balkan route (up until its closure)
to other destinations. 111 The intolerability of “secondary movements” led EU leaders (at
Germany’s behest) to conclude an agreement with Turkey (which eventually took the
form of a Council Press Release) to contain departures. 112 The practical implementation
of the Statement, on the EU side, in respect of those irregularly reaching Schengen
shores, fell on Greece. This is how the Greek hotspots transformed into grand scale,
closed, pre-removal detention centres. 113 The Commission itself encouraged the trans-
formation, requiring that “the current focus on registration and screening before swift
transfer to the [Greek] mainland [in preparation for relocation, was to be] replaced by
the objective of implementing returns to Turkey”. 114
107
Ibid. para. 108.
108
Ibid. para. 112.
109
Ibid. paras 107-110 and 113.
110
European Council, EU-Turkey Statement, 18 March 2016 www.consilium.europa.eu.
111
Danish Refugee Council, ‘Closing Borders, Shifting Routes: Summary of Regional Migration Trends
Middle East, Report’ (31 May 2016) reliefweb.int.
112
For analysis, V Moreno-Lax, ‘EU Constitutional Dismantling through Strategic Informalisation: Soft
Readmission Governance as Concerted Dis-integration’ (2024) ELJ (forthcoming) cadmus.eui.eu.
113
According to the ECtHR, confinement on an island the person cannot leave without authorisation
amounts to detention. See ECtHR Labita v Italy, App n. 26772/95 [6 April 2000]. The CJEU has reached a
similar conclusion in case C-808/18 Commission v Hungary (Accueil des demandeurs de protection internatio-
nale) ECLI:EU:C:2020:1029 para. 159, construing “detention” as “any coercive measure that deprives that
applicant of his or her freedom of movement and isolates him or her from the rest of the population, by
requiring him or her to remain permanently within a restricted and closed perimeter”. See also joined cases
C-924/19 PPU and C-925/19 PPU FMS and Others ECLI:EU:C:2020:367 paras 223-224, according to which
“detention” has a uniform and autonomous meaning under EU law.
114
Communication COM(2016) 166 final from the Commission of 16 March 2016 on next operational
steps in EU-Turkey cooperation in the field of migration 4.
The new orientation was supported by domestic legal reforms in April and June 2016.
Law 4375/2016 introduced a new fast-track asylum procedure at border sites – a precursor
of the border procedure proposed by the Commission as part of the New Pact package
discussed below. It incorporated the notions of “safe third country” (STC) and “first country
of asylum” (FCA) into Greek law to allow for expulsions to Turkey. However, many removals
were prevented by the courts, with most inadmissibility decisions being reversed, given the
serious human rights violations facing applicants in Turkey. 115 Under pressure from the EU,
Greece changed the composition of Asylum Appeal Committees via Law 4357/2016 in a bid
to enable deportations. 116 The new arrangements foresaw (and continue to foresee) very
short time limits (at least on paper) for the submission, processing, and appeal of claims
(just a few days) – again, similarly to the Commission plans for its screening and border
procedure discussed in the next section, which hardly amount to the “reasonable time” re-
quired under the Asylum Procedures Directive that applicants are to be granted to prepare
their submissions. 117 The insufficient, stereotypical substantiation of rejection decisions
(most of which based on STC rules and worded in identical terms), 118 the absence of auto-
matic suspensive effect of legal challenges, and the lack of other minimum safeguards, 119
permitted “immediate” expulsions – equivalent to refoulement. 120
Like Italy, Greece has also been condemned for its hotspot policy. Conditions in the
Moria camp have been deemed contrary to arts 3 and 13 ECHR. 121 Placement in a re-
duced and extremely overcrowded space, similar to a “cage”, for the “screening” of new
arrivals before registration, 122 alongside inhuman living and detention conditions upon
115
Communication COM(2016) 792 final from the Commission to the European Parliament, the Euro-
pean Council and the Council of 8 December 2016 Fourth Report on the Progress made in the implemen-
tation of the EU-Turkey Statement 6.
116
Keep Talking Greece, ‘Greece’s Asylum Appeals Committees denounce changes to facilitate mass
deportations to Turkey’, Keep Talking Greece (20 June 2016) www.keeptalkinggreece.com.
117
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common
procedures for granting and withdrawing international protection (recast) (‘APD’), art 43. See also case C-
69/10 Diouf ECLI:EU:C:2011:524 and ECtHR, Jabari v Turkey, App n. 40035/98 [11 July 2000].
118
ECRE, The Implementation of the Hotspots in Italy and Greece cit. 38.
119
European Commission, Implementing the EU-Turkey Statement – Questions and Answers ec.europa.eu.
120
Ekathimerini, ‘Greece and Turkey build on plan for return of refugees’ (23 March 2016)
www.ekathimerini.com.
121
ECtHR, H.A. and Others v Greece Appn. 4892/18 and 4920/18 [13 June 2023] (in French) (Moria
hotspot). Cf. earlier cases, where the Court did not find a violation of art. 3 ECHR cit., only of art. 5 ECHR cit.
due to the lack of sufficient information regarding the reasons for detention (art. 5(2) ECHR cit.) and the
absence of judicial oversight (art. 5(4) ECHR cit.): J.R. and Others v Greece App n. 22696/16, 25.1.2018 (in
French) (Chios hotspot) (violations of arts 5(2) and 5(4) ECHR cit.); and O.S.A. and Others v Greece App n.
39065/16, 21.3.2019 (in French) (Chios hotspot) (violation of art.5(4) ECHR cit.). The newer case of ECtHR,
A.K. and A.S. v Greece App No. 45337/20 [2 February 2023] (Samos hotspot), has been stricken out the list of
cases because of the absence of a response by the applicants’ lawyer to Court communications.
122
H.A. cit. para. 41, referring to description by applicants in paras 8-12.
registration, 123 have been considered a breach of the prohibition of ill treatment and the
right to an effective remedy. 124 Forced to live in tents, exposed to heat, wind and rain,
without safe and sufficient food or medicine, 125 electricity, 126 or access to water, toilets,
and washing facilities, 127 in dirty and unhygienic conditions, surrounded by waste, excre-
ments, swage and fumes from burning plastic bottles used to cook, heat and warm up,
made for a “nauseating environment”, 128 putting health at risk. The sheer overpopulation
of the centre (housing 9,000 rather than 3,000 inmates 129) also made the delivery of ad-
equate legal information, let alone legal aid, 130 to contest rights abuses impossible in
practice – the lack of legal assistance and legal representation are of concern in the Chios
hotspot cases as well. 131 In such circumstances, according to the Court, no effective rem-
edies were available to the applicants, placing Greece in violation of the Convention. 132
Against this background, the Commission’s approach to the “emergency” relocation-
plus-hotspots formula is most disquieting. Despite irregular arrivals having decreased by
92 per cent, 133 instead of propounding a return to the status quo ante or a fundamental
revision of the Dublin principles to avoid future (capacity/solidarity) “crises”, the plan is to
embed the scheme as part of the permanent EU borders and asylum acquis. The New
Pact instruments, examined in the next section, prolong and normalise the crisis re-
sponse in ways that erode the legal framework – arguably pushing the CEAS and the
Schengen regime beyond the rule of law.
IV. The New Pact reforms: generalising derogations

The relocation and hotspot initiatives have been heavily criticised for their suspension of
basic legal guarantees, their disregard for the rights and agency of asylum seekers, and
the serious violations they have led to. 134 However, instead of pressing for an overhaul
123
Ibid. paras 41 and 43, referring to description by applicants in paras 8-12 and paras 15-22.
124
Ibid. paras 45-46.
125
Ibid. para. 11.
126
Ibid. para. 12.
127
Ibid. para. 10.
128
Ibid. para. 9.
129
Ibid. para. 22.
130
Ibid. para. 30.
131
J.R. cit. para. 102, and O.S.A. cit. paras 53 and 56.
132
H.A. cit. paras 45-46. The same conclusion is reached with regard to art. 5(4) ECHR in both J.R. cit.
and O.S.A. cit.
133
Amended Proposal COM(2020) 611 final for a Regulation of the European Parliament and of the
Council of 23 September establishing a common procedure for international protection in the Union and
repealing Directive 2013/32/EU (hereinafter “Border Procedure Proposal”), Explanatory Memorandum 1.
134
ECRE, The Implementation of the Hotspots in Italy and Greece cit. See also FRA, ‘Update of the 2016
Opinion of the European Union Agency for Fundamental Rights on fundamental rights in the “hotspots” set
up in Greece and Italy’ (4 March 2019) fra.europa.eu.
of (pre-)crisis arrangements, as mentioned above, the Commission has pushed for their
incorporation into the mainstream via a new screening and border procedure 135 – which
the Council and the European Parliament have largely endorsed and is expected to be
formally adopted by June 2024. 136 This will provide legal coverage to existing malprac-
tices, consolidating pushback-like initiatives into “the de facto general policy” of the EU. 137
Much like the hotspot triage system, these have been designed as filtering mechanisms,
introduced at a (fictional) pre-entry stage, giving access to a series of solidarity relocation
(and other) measures – that will not be further investigated here, since they are depend-
ent on, and subsequent to, the pre-entry process. 138 The (potential) disruption that the
constant “challenge” of irregular arrivals may pose (including of refugees reaching the EU
as part of “mixed flows”) is considered best confronted by deepening control and coer-
cion, 139 rather than by fundamentally revisiting the (failed) vision underpinning the CEAS
– that led to the Dublin suspension in the first place.
The idea is to embrace a “comprehensive approach”, based on “integrated policy-mak-
ing”, bringing together related policies, “enhancing the synergies between external border
controls, asylum and return procedures” in order to tackle “the whole of migration man-
agement” at “all stages of the migration procedure”, ultimately with a view to “protecting
the Schengen area” – rather than the rights of refugees and migrants under EU law. 140 The
“efficient management of irregular migration” constitutes the overarching aim, introducing
“[a] seamless link between asylum and return” to “prevent[] and reduc[e] absconding”,
135
Proposal COM(2020) 612 final for a Regulation of the European Parliament and of the Council of 23
September introducing a screening of third country nationals at the external borders and amending Regu-
lations (EC) n. 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 (hereinafter “Screening Pro-
posal”); Border Procedure Proposal cit.
136
European Commission, Historic agreement reached today by the European Parliament and Council on
the Pact on Migration and Asylum (20 December 2023) home-affairs.ec.europa.eu. See also European Parlia-
ment News, MEPs approve the new Migration and Asylum Pact (10 April 2024) www.europarl.europa.eu; and
European Council, Work on the Asylum and Migration Pact www.consilium.europa.eu.
137
United Nations Special Rapporteur on the human rights of migrants, Report of Human rights viola-
tions at international borders: trends, prevention and accountability cit. para. 70.
138
Proposal COM(2020) 279 final for a Regulation of the European Parliament and of the Council 23 Sep-
tember 2020 on Asylum and Migration Management and amending Council Directive (EC) 2003/109 and the
proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund] (‘Asylum and Migration Management’ or ‘AMM
Proposal’); and Proposal COM(2020) 613 final for a Regulation of the European Parliament and of the Council of
23 September 2020 addressing situations of crisis and force majeure in the field of migration and asylum (‘Crisis
and Force Majeure Proposal’). For analysis, see F Maiani, ‘Into the Loop: The Doomed Reform of Dublin and Soli-
darity in the New Pact’ in D Thym (ed) Reforming the Common European Asylum System (Nomos 2022) 43.
139
Screening Proposal cit. Explanatory Memorandum 1; Border Procedure Proposal cit. Explanatory
Memorandum 1; and AMM Proposal cit. Explanatory Memorandum 1.
140
Screening Proposal cit. Explanatory Memorandum 1-2 and draft Regulation, recital 2. See also Bor-
der Procedure Proposal cit. Explanatory Memorandum 1 and 3; and AMM Proposal cit. Explanatory Mem-
orandum 1.
adopting the broad understanding that “entry is not [considered] authorised to third-coun-
try nationals unless they are explicitly authorised entry”. 141 The plan is to introduce “simpler,
clearer and shorter procedures” with a view to responding to “abuses” of the asylum system
and “preventing unauthorised movements”. 142 In this context, the special treatment appli-
cable to (irregularly arriving) refugees under the 1951 Convention is not given particular
attention. The special provisions contemplated therein, preventing the penalisation of un-
authorised entry under certain conditions (on consideration that normally refugees have
no access to legal means for reaching safety), are not even mentioned in the Commission
proposals. 143 To the contrary, the Commission plans to generalise derogations to existing
legal protections, eroding the “fine line” that separates protection seekers from other mi-
grants in international and EU law, 144 building on the premise that both pertain to the same
category of (unwanted) unauthorised entrants. 145
iv.1. Screening process: hotspots extended

Pre-entry arrangements in the New Pact proposals, including a screening process and a
border procedure, are designed as “applicable to all third-country nationals who are pre-
sent at the external border without fulfilling the entry conditions”, expressly without dis-
tinction (and whatever the mode of arrival, by land or sea, including upon disembarkation
following a search and rescue operation). 146 What is more, the proposal excludes “per-
sons seeking international protection” from the scope of the exceptions contemplated in
the Schengen Borders Code, 147 according to which third-country nationals (presumably
including refugees) who do not fulfil the entry conditions may, nonetheless, be author-
ised admission “on humanitarian grounds…or because of international obligations”. 148
The situation of those “who request international protection at a border crossing point
141
Screening Proposal cit. Explanatory Memorandum 2 (emphasis added); and Border Procedure Proposal
cit. Explanatory Memorandum 2. Cf. on this particular point V Moreno-Lax, ‘Beyond Saadi v UK: Why the “Unnec-
essary” Detention of Asylum Seekers is Inadmissible under EU Law’ (2011) Human Rights and International Legal
Discourse 166, relying on the Joint Partly Dissenting Opinion of Judges Rozakis, Tulkens, Kovler, Hajiyev, Spiel-
mann and Hirvelä in Saadi v UK App n. 13229/03 [29 January 2008].
142
Border Procedure Proposal cit. Explanatory Memorandum 2-4.
143
Especially art. 31 Refugee Convention cit. See also, V Moreno-Lax, Accessing Asylum cit. 351ff.
144
L Jakuleviciene, ‘Pre-Screening at the Border in the Asylum and Migration Pact: A Paradigm Shift for
Asylum, Return and Detention Policies?’ in D Thym (ed) Reforming the Common European Asylum System cit.
81, 83-84.
145
J Vedsted-Hansen, ‘Border Procedure on Asylum and Return: Closing the Control Gap by Restricting
Access to Protection?’ in D Thym (ed) Reforming the Common European Asylum System cit. 99, 110.
146
Screening Proposal cit. Explanatory Memorandum 1 and 3, and draft Regulation arts 1 and 3.
147
Ibid. Explanatory Memorandum 14.
148
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a
Union Code on the rules governing the movement of persons across borders (“Schengen Borders Code” or
“SBC”) art. 6(5)(c), explicitly referred to in Screening Proposal cit., draft Regulation, art. 3(3).
without fulfilling the entry conditions”, which constitute the near-totality of refugees ar-
riving in the EU, 149 is assimilated to the case of “third-country nationals who try to avoid
border checks”. 150 This equalises their treatment and disregards the good faith attacha-
ble to presenting oneself to an official check point, 151 presuming an intention to abuse
and deceive the system by default.
Mimicking the arrangements deployed at the Italian and Greek hotspots, the Com-
mission proposes a “swift” screening procedure “allowing for the identification, at the
earliest stage possible, of persons who are unlikely to receive protection” 152 – the whole
process is skewed towards expulsion/non-admission, rather than effectively ensuring ac-
cess to protection; the ambition is to “complement[] the obligations of the Member
States…to prevent unauthorised entry [and] carry out border controls” for the benefit of
the entire Schengen area, “help[ing] to combat illegal migration…and to prevent any
threat to the Member States’ internal security”. 153 Accordingly, on arrival, those con-
cerned will be subjected to “preliminary” health and vulnerability checks (unless omitted
on indeterminate grounds 154), an identity check (against EU and national databases), the
registration of their biometric data, and a security control. 155 Upon completion of a de-
briefing process (undertaken without legal representation or assistance) that should last
no more than five days, 156 each person will be directed to the “appropriate procedure”,
whether non-admission/return, asylum, or relocation. 157
Those who (unprompted) may apply for international protection, “at the moment of
apprehension or in the course of border control…or during the screening”, will be chan-
nelled to the asylum procedure. 158 But there is no obligation foreseen to explicitly inform
them of their right to do so. 159 By contrast, those “not asking for international protection
149
European Parliament resolution (2018/2271(INL)) of 11 December 2018 with recommendations to
the Commission on Humanitarian Visas, para E: “an estimated 90 % of those granted international protec-
tion have reached the Union through irregular means” www.europarl.europa.eu.
150
Screening Proposal cit. draft Regulation recital 7. See also recitals 2, 11, and 45.
151
Explicitly mentioned in art. 31 Refugee Convention cit.
152
Screening Proposal cit. Explanatory Memorandum 1 (emphasis added).
153
Ibid. Explanatory Memorandum 6 and 8, and draft Regulation recital 4 and art. 1.
154
Ibid. draft Regulation art. 9(1): The “preliminary medical examination” may be omitted if “the rele-
vant competent authorities are satisfied that no preliminary medical screening is necessary”, whatever the
reasons, which makes it unclear how, then, are medical care needs and vulnerabilities to be established.
155
Ibid. draft Regulation recitals 26, 28 and 35, and arts 1, 6(6), and 9-12.
156
Ibid. draft Regulation recital 19 and arts 6(3) and 13.
157
Ibid. draft Regulation recitals 8 and 17, and art. 14.
158
159
What the Screening Proposal foresees in draft art 8(1) is generically that “[t]hird-country nationals
subject to the screening shall be succinctly informed about the purpose and modalities of the screening” and, in
draft art 8(2)(b), that “…where they have applied, or there are indications that they wish to apply, for international
protection, information on the obligation to apply for international protection in the Member State of first entry…”
should be provided (emphasis added). Nowhere does the proposed instrument provide for a clear obligation,
who neither fulfil the entry conditions […] should be refused entry in accordance with
Article 14 of [the] Schengen Borders Code”. 160 Not asking for international protection im-
mediately at this preliminary stage will, therefore, be directly equated with a lack of pro-
tection needs and attract non-admission. It is unclear who will instead be referred to the
(full) return procedure under the Return Directive. 161 Possibly, only the cases “related to
search and rescue operations” will, 162 which leaves vast discretion to the Member States
(and further diminishes the procedural guarantees available to the person concerned
against potential pushbacks 163).
The screening process should be conducted “at or in proximity to the external bor-
der”, including specifically “in hotspot areas” (on which the Proposal builds), 164 and it en-
tails a duty for the persons concerned “to remain in the designated facilities during the
screening”. 165 This will require the concentration of third-country nationals in closed
spaces in conditions of de facto detention, without making express provision for judicial
oversight or other safeguards – arrangements that, contrary to the Strasbourg Court’s
caselaw regarding hotspots, may generate the impression that the right to liberty is un-
affected and does not apply. The absence of specific safeguards generates ambiguity and
possibly arbitrariness, which is why ECHR parties are obliged to adopt legislation that
provides for a “clear and accessible legal basis” for detention, regulating its purpose,
grounds, and conditions, specifying the need for reasoned and well-substantiated deten-
tion orders for each individual concerned, subjecting them to judicial scrutiny and related
guarantees. 166 A general and implicit renvoi to the EU Charter or the ECHR in this context
is simply not enough. It fails the legal “quality” test that Strasbourg imposes, according to
which any deprivation of liberty must be specifically provided for in a legal instrument,
as currently reflected in art 8(1) APD, to the effect that “[w]here there are indications that third-country nation-
als…present at border crossing points…may wish to make an application for international protection, Member
States shall provide them with information on the possibility to do so” including by “mak[ing] arrangements for
interpretation to the extent necessary to facilitate access to the asylum procedure”.
160
Screening Proposal cit. Explanatory Memorandum p 4.
161
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on
common standards and procedures in Member States for returning illegally staying third-country nationals
(“Return Directive”).
162
Screening Proposal cit. draft Regulation art. 14(1): “The third-country nationals…who have not ap-
plied for international protection and [who do] not…fulfil [the] entry conditions…shall be referred to
the…return [procedure]”, however “[i]n cases not related to search and rescue operations, entry may be
refused in accordance with Article 14 [SBC]” (emphasis added).
163
A practice already explicitly condemned by the ECtHR vis-à-vis several Member States, e.g., in ECtHR,
M.H. v Croatia App n. 15670/18 and 43115/18 [18 November 2021]; ECtHR, Shahzad v Hungary App n.
12625/17 [8 October 2021]; ECtHR D v Bulgaria App n. 29447/17 [20 July 2021]; ECtHR, D.A. v Poland App n.
51246/17 [8 July 2021]; ECtHR, M.K. and Others v Poland App n. 40503/17, 42902/17 and 43643/17 [23 July
2020]; and ECtHR, M.A. and Others v Lithuania App n. 59793/17 [11 December 2018].
164
Screening Proposal cit. draft Regulation recitals 12 and 20 and art. 6(1).
165
Ibid. draft Regulation art. 8(1)(b).
166
Cf. J.A. cit. paras 79-99, specially 90, 92, 96 and 97.
introducing a “procedure prescribed by law” – a law adopted by the “legislature” 167 – that
manages, in effect, to “protect[] the individual from arbitrariness”. 168 “Compliance with
national law is not … sufficient” on its own, if it does not succeed in this objective. 169 In
such circumstances, “a deprivation of liberty may be lawful in terms of domestic law but
still arbitrary and thus contrary to the Convention”. 170
The Commission proposal also foresees that it is the “relevant information obtained dur-
ing the screening” that will be used as a basis for referral and further processing, 171 which
makes the absence of robust legal representation and assistance provisions particularly dis-
quieting. These arrangements, indeed, set the scene for a replica of the defects observed at
the Italian and Greek hotspots. In fact, the Commission suggests that the persons concerned
be only “succinctly informed about the purpose and the modalities of the screening” and re-
ceive any further information (only) “as appropriate” and in a language they may “reasonably
[be] supposed to understand”, 172 using a “standardised” 173 “de-briefing form”, 174 very similar
to the failed foglio notizie, containing very little information, “formulated in an extremely con-
cise way”, 175 that will not allow for proper consideration of “the applicants’ personal situa-
tions”. 176 Applicants may thus remain unaware of the implications of their (non)statements
at this level and their consequences for subsequent processing. No appeals or judicial review
of any of the screening steps have been contemplated, which seriously risks excluding those
with legitimate claims through incomplete and abrupt assessments, 177 reproducing the col-
lective expulsion and other malpractices already condemned by the Strasbourg Court. 178 In
addition, given past experience in Italy and Greece, unless significant investments are made
by the Member States, vastly increasing material and procedural resources, the envisaged
“swiftness” of proceedings may reveal impracticable and translate into prolonged periods of
despair and the quick spread of Moria-like conditions. 179
167
Ibid. para. 96.
168
Ibid. para. 80.
169
Ibid.
170
Ibid.
171
Screening Proposal cit. draft Regulation recitals 16 and 24, art. 10(1)(b) and 13, and Annex I.
172
Ibid. draft Regulation art. 8(1), (2) and (3) (emphasis added).
173
J.A. cit. para. 108.
174
Screening Proposal cit. draft Regulation art. 13 and Annex I.
175
J.A. cit. para. 112.
176
Ibid. para. 108.
177
L Jakuleviciene ‘Pre-Screening at the Border in the Asylum and Migration Pact: A Paradigm Shift for
Asylum, Return and Detention Policies?’ cit. 82.
178
J.A. cit. paras 106-116.
179
Cf. H.A. cit.
iv.2. Border Procedure: hotspots normalised

A new border procedure is intended to complement screening arrangements at the pre-
entry stage for the “better management of [supposedly] abusive and inadmissible asylum
requests [made] at the border”, impeding “migrants from delaying [expulsion/non-ad-
mission] procedures…and misusing the asylum system”, and “without authorising
the[ir]…entry into the Member State’s territory” for the duration of the process. 180 Most
asylum claimants at the border are thus considered a priori bogus/non-genuine, with this
assumption then used to structure and justify the new arrangements. This is intended to
“reduce the risk of absconding and the likelihood of unauthorised movements”. 181 As
mentioned already, despite the 92 per cent decrease in arrivals since 2015, 182 the Com-
mission unreservedly equates “recognition rates lower than 20 per cent” of certain na-
tionalities with abuse of the CEAS and the “resulting increased administrative burden and
delays” of processing these claims with a form of crisis or, at least, a “challenge” requiring
“new migration management tools”. 183 For the purpose, the new “joint asylum and return
border procedure” will “provide the necessary flexibility to Member States” so they can
“quickly assess abusive asylum requests” and expel those concerned. 184
That flexibility translates into “quick” processing targets and reduced procedural
safeguards, on account that such claims – deemed a priori “abusive” – will be categorised
as “unfounded or inadmissible”. 185 The depersonalised assessment of individual applica-
tions, 186 based on fixed percentages of (non)recognition rates and STC/FCA rules – as
used in the Italian and Greek hotspots, is also part of the procedure, as are “limit[ed]
appeal possibilities”, while applicants await decisions without authorisation to (legally)
enter the territory. 187 The proposal provides “additional grounds” to “accelerate” proce-
dures and assess asylum requests summarily at the external border, 188 while simultane-
ously “extending the maximum length of such procedure[s]” – an arrangement that, al-
beit incoherent with the “swiftness” target, somehow, should “deliver faster decisions”
that “contribute to a better and more credible” system. 189
180
Border Procedure Proposal cit. Explanatory Memorandum 4, 5 and 7, and draft Regulation recital 40.
181
Ibid. draft Regulation recital 31a.
182
183
Ibid. Explanatory Memorandum 1 and 4.
184
185
186
Cf. according to art. 47 CFR and art. 13 ECHR, as reflected in art. 10(3)(a) APD cit., “applications are
[to be] examined and decisions are [to be] taken individually, objectively and impartially”. This is a require-
ment that the proposed border procedure arrangements will water down to a point difficult to reconcile
with the standards of effective legal and judicial protection applicable under EU law.
187
Border Procedure Proposal cit. Explanatory Memorandum 4, 7 and 14, and draft Regulation recast
art. 41(6).
188
189
Ibid. Explanatory Memorandum 12-14, and draft Regulation recast art. 41(11).
The proposal allows Member States to subject to the new procedure all applicants
who have not yet been authorised admission, having made their claims at an external
border, following apprehension in connection with an irregular crossing, following dis-
embarkation upon rescue, or even following relocation 190 – capturing the situations in
which the absolute majority of protection seekers find themselves. 191 Not only admissi-
bility but also decisions on the merits may be adopted in this format, 192 which is obliga-
tory for applicants who are considered to pose a risk to national security or public order;
for those who may be deemed to have misled the authorities (e.g., by presenting false
documents, which most refugees need to use to be able to flee 193); and for those coming
from countries for which the past average recognition rate EU-wide in the previous year
was 20 per cent or lower. The latter measure is bound to artificially consolidate low recog-
nition levels over time, since such claims will be processed without looking into their full
substance, 194 thereby perpetuating assumptions of unfoundedness and undeservability
for the nationalities concerned. 195 Member States will also be permitted, on an “optional”
basis, to use these arrangements regarding applicants to whom a STC/FCA clause can be
applied or who are coming from supposedly “safe countries of origin” (SCO). 196
Only a few exceptions are contemplated (for minors and their family members, regard-
ing some vulnerable cases, and for those whose expulsion is unlikely in practice 197). The 20
per cent rule, in particular, should not apply in situations of a “significant change” of circum-
stances in the country concerned since the last statistics or when the individual applicant
belongs to a specific group for whom the figure “cannot be considered as representative
for their protection needs”. 198 But these terms have not been defined. When will a “signifi-
cant change” or under which conditions will the 20 per cent rule be considered unrepre-
sentative has not been specified. The Commission also fails to determine how exactly the
190
Ibid. draft Regulation recast art. 41(1).
191
European Parliament resolution on Humanitarian Visas cit. For analysis, see ECRE, Access to protec-
tion in Europe: Borders and entry into the territory (June 2018) asylumineurope.org.
192
Border Procedure Proposal cit. draft Regulation recast art. 41(2).
193
Art. 31 Refugee Convention cit. and V Moreno-Lax, Accessing Asylum cit. 351 ff and references therein.
194
It will seemingly only be once an applicant attempts to rebut the presumption that the substance
of their claims will come to the fore. The problem with this approach is that it is not clear when, how and
through which means may claimants submit a rebuttal, nor which level of proof will be considered suffi-
cient. Also, such an arrangement undoes prevailing rules on “benefit of the doubt” and “shared” burden of
proof propounded by UNHCR and partly reflected in current art. 4 of the Qualification Directive
2011/95/EU. See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (re-issued
2019), www.unhcr.org paras 196 (shared burden of proof) and 203-4 (benefit of the doubt).
195
Border Procedure Proposal cit. Explanatory Memorandum, and draft Regulation recital 40b and
recast art. 41(3).
196
Ibid. For a critique, see C Costello, ‘Safe Country? Says Who?’ (2016) IJRL 601.
197
Border Procedure Proposal cit. Explanatory Memorandum 14-15, and draft Regulation recital 40d
and recast art. 41(4), (5) and (9).
198
Ibid. draft Regulation recast art. 40(1)(i).
safety presumption may be rebutted in such cases or how rebuttals may possibly be artic-
ulated effectively in this context. What the level of proof or the type of evidence to be ad-
duced should be, in an environment of “swift” processing, without legal representation or
proper guidance, is also left obscure. In addition, the New Pact package foresees that in a
(declared) “crisis” or “an imminent risk of such situation” 199 (according to an evaluation by
the European Commission as part of the proposed yearly Migration Management Re-
port 200) the rate of applicants to be subjected to the border procedure can be lifted to cover
also those coming from countries for which the average recognition rate EU-wide in the
past year was up to 75 per cent. This generalises the presumption of safety of the country
concerned beyond any reasonable basis and against actual realities on the ground. 201 And,
in emergency scenarios involving the “instrumentalisation of migrants” 202 (similar to the
ongoing “crisis” at the border with Belarus 203), all applicants can be assessed on an en-
hanced version of the procedure: the “emergency migration and asylum management pro-
cedure”, with even less guarantees. 204 Such arrangements will completely “exceptionalise”
the general rule of effective legal and judicial protection at the heart of the rule of law prin-
ciple that supposedly governs the whole of the EU legal order. 205
Similarly to the screening phase, for the full length of proceedings, applicants should
be accommodated in purpose-built facilities located “at external borders or transit zones”
situated “in proximity”. 206 Those whose asylum claims are rejected in the asylum part of
the process will directly enter the “border return procedure” and be “kept at the external
borders” throughout (either in formal detention or in detention-like conditions). 207 On
199
Crisis and Force Majeure Proposal cit., draft Regulation arts 1(2)(a)-(b).
200
AMM Proposal cit. draft Regulation art. 6(4); and Crisis and Force Majeure Proposal cit. draft Regu-
lation art. 3(8).
201
Crisis and Force Majeure Proposal cit. draft Regulation recital 14 and arts 1(2) 4(1)(a). Cf. arrange-
ments applicable in situations of exceptional “migratory pressure” in AMM Proposal cit. draft Regulation
arts 50-53 and 49(3).
202
The Proposal COM(2021) 891 final for a Regulation of the European Parliament and of the Council of 14
December 2021 amending Regulation (EU) 2016/399 on an Union Code on the rules governing the movement
of persons across borders, draft recitals 8-16 and art. 2(27), vaguely and broadly defines the "instrumentalisa-
tion of migrants”, as “a situation where a third country instigates irregular migratory flows into the Union by
actively encouraging or facilitating the movement of third country nationals to the external borders, onto or
from within its territory and then onwards to those external borders, where such actions are indicative of an
intention of a third country to destabilise the Union or a Member State, where the nature of such actions is
liable to put at risk essential State functions, including its territorial integrity, the maintenance of law and order
or the safeguard of its national security”.
203
For a critique and further references, see V Moreno Lax, ‘The “Crisification” of Migration Law’ cit.
204
Instrumentalisation Proposal cit. Explanatory Memorandum 5, and draft Regulation recital 3 and
arts 2-6.
205
Associação Sindical dos Juízes Portugueses cit. para. 35.
206
Border Procedure Proposal cit. Explanatory Memorandum 15, and draft Regulation recital 40c and
recast art. 41(15).
207
Ibid. cf. draft Regulation recitals 40f and 40i, and arts 41(13) and 41a(1), (2), (5)-(7).
the whole, the pre-entry phase will, therefore, necessitate the construction of massive
“border camps” at the external frontiers of the Member States 208 – in the image of the
Greek island-hotspots and running similar risks of illegality. 209
The procedural guarantees available to claimants during this process are scarce. Very
short time limits will play against the preparation of their cases and the planned “stream-
lining” of appeals – whereby asylum rejections and return decisions are intended to be
examined together, “within the same judicial proceedings and time limits” – fails to reach
effective remedy standards. 210 Claimants will only have five days from registration to for-
mally lodge their complete applications and five days upon receipt of a rejection decision
to request to be allowed to remain during the appeal process, with no special provision
made for legal assistance or representation – except at the appeal level and under strict
conditions. 211 This is particularly problematic. The Strasbourg Court has made clear that
“insufficient information for asylum seekers about the procedures to be followed,…short-
age of interpreters…[as well as the] lack of legal aid effectively depriving the asylum seek-
ers of legal counsel”, insofar as it may impede “access to the asylum procedure”, contra-
venes art. 3 ECHR. 212 Adequate procedural guarantees, including legal assistance, are es-
sential to ensure the appropriate conduct of proceedings already at first instance. 213 And
when the person concerned does not have sufficient resources, free legal aid, represen-
tation, and translation must be facilitated 214 – a requirement also imposed by EU law,
when the opposite would undermine access to justice. 215
The whole process should take no more than a few weeks, “encompassing both the
decision on the examination of the application as well as the decision of the first level of
appeal” 216 – which the experience at the hotspots has proven wholly unrealistic. Such
208
G Campesi, ‘The EU Pact on Migration and Asylum and the Dangerous Multiplication of “Anomalous
Zones” for Migration Management’ in S Carrera and A Geddes (eds), The EU Pact on Migration and Asylum in
Light of the United Nations Global Compact on Refugees (EUI 2021) 195.
209
H.A. cit.; and Commission v Hungary cit.
210
Border Procedure Proposal cit. Explanatory Memorandum 17. Cf. ECtHR, I.M. v France App n.
9152/09 [2 May 2012]; and ECtHR, A.C. and Others v Spain App n. 6528/11 [24 April 2014]. See further, V
Moreno-Lax, Accessing Asylum in Europe cit. 395ff.
211
Border Procedure Proposal cit. draft Regulation recast art. 41(10) and art. 54(5).
212
ECtHR, M.S.S. and Others v Greece App n. 30696/09 [21 January 2011] para. 301; H.A. cit. para. 30.
213
Ibid. para. 304. See also I.M. cit. paras 151ff; ECtHR, Sharifi and Others v Italy and Greece App n.
16643/09 [21 October 2014] para. 168.
214
M.S.S. cit. para. 319.
215
Case C-279/09 DEB ECLI:EU:C:2010:811 para. 60.
216
Border Procedure Proposal cit. draft Regulation recital 40e and recast art. 41(11). The asylum bor-
der procedure should last 12 weeks, while “to ensure continuity between the asylum procedure and the
return procedure, the return procedure should also be carried out in…a period not exceeding [an addi-
tional] 12 weeks”.
time pressure and limited safeguards are due to impact the overall quality of assess-
ments and decisions by the relevant authorities, putting rights in jeopardy. 217 This will be
aggravated by the fact that there will only be one level of appeal where the applicant may
be allowed a right to remain (remain, not inside the Member State in the legal sense, but
at the external border facility where the processing is taking place 218); subsequent levels
will not produce automatic suspensive effect. 219 However, the Strasbourg Court requires
that any and every action by a public authority that exposes to a risk of refoulement be
challengeable under the ECHR. To avoid the irreversible damage that may otherwise en-
sue, the Convention requires thorough examinations of art. 3 ECHR risks to be conducted
ex nunc and with appeals endowed with automatic suspensive effect at the time of as-
sessment. 220 So, if there are several levels of appeal, where several assessments by dif-
ferent authorities are to be conducted at different points in time, the execution of the
removal/non-admittance measures envisaged must be automatically suspended. Other-
wise, refoulement may well materialise.
The merging of asylum and return procedures is equally controversial, since each sup-
posedly has different objects and scopes, and are adjudicated by different organs with dif-
ferent functions and expertise, and for different purposes, which will become blurred. This
is why the rules governing the regimes of detention under the first and the second limbs of
art. 5(1)(f) ECHR are separate, because they serve separate objectives. Pre-entry detention
is intended to prevent unauthorised entry, while pre-removal detention is supposed to fa-
cilitate the conduct of deportation or extradition proceedings that must be “in progress”
and “prosecuted with due diligence” for the related deprivation of liberty to be legitimate. 221
Their relationship is (and should be kept) sequential. It is “when the first limb…ceases to
apply…if entry has been refused [e.g. upon an asylum rejection that] any deprivation of
liberty under the second limb…will be justified”. 222 Assimilation, therefore, contravenes
ECHR standards; it risks banalising automatic detention on grounds of administrative con-
venience for prolonged periods and with no judicial control.
Yet, not only does the Commission ignore this separation, it equally suggests that, if the
application is rejected in the asylum part of the process, the applicant, rather than sub-
jected to the full “border return procedure”, may instead be summarily refused entry
217
G Cornelisse and M Reneman, ‘Border Procedures in the Member States: Legal Assessment’, in
Asylum Procedures at the Border: European Implementation Assessment (European Parliament Research Ser-
vice 2020) www.europarl.europa.eu 39, 100 ff. See also M Den Heijer, ‘The Pitfalls of Border Procedures’
(2022) CMLRev 641.
218
Border Procedure Proposal cit. draft Regulation recast arts 41(13) and 41a(1).
219
Ibid. Explanatory Memorandum 17-18, and draft Regulation recitals 65, 66, 66a and 66b, and art.
41(12), referring to arts 53-54.
220
Cf. I.M. cit. para. 127ff; and A.C. cit. para. 81ff.
221
J.A. cit. para. 83.
222
Ibid.
“where the conditions of Article 14 [SBC]… are met”. 223 Such refusal of entry (in disregard
of effective remedy standards) “shall take effect immediately” and “shall not have suspen-
sive effect”. 224 It is not clear whether and how any persisting refoulement risks may be eval-
uated and with which procedural guarantees. The problem is also that the criteria for the
application of art. 14 SBC are somewhat circular, especially when taken together with the
proposed reforms. The Schengen Borders Code, as currently drafted, obliges (the border
rather than the asylum authorities of the) Member States to refuse entry to any “third-coun-
try national who does not fulfil all the entry conditions…and does not belong to the catego-
ries of persons referred to in Article 6(5) [of the Code]”. The exception in that provision, as
already noted, is intended to cover asylum seekers, as persons whose admission Member
States may authorise “on humanitarian grounds…or because of international obliga-
tions”, 225 taking into account that entry rules are “without prejudice to the application of
special provisions concerning the right of asylum and to international protection”. 226 How-
ever, the Screening Proposal seems to nullify the applicability of this exception precisely vis-
à-vis refugees, establishing that pre-entry arrangements, as designed by the Commission,
are “without prejudice of the application of Article 6(5) [of the Schengen Borders Code] ex-
cept the situation where the beneficiary of an individual decision [based on that provision]
is seeking international protection”. 227 This, coupled with the fact that Member States issu-
ing a refusal of entry (based on the exiguous foglio notizie-like de-briefing process discussed
above) may also decide “not to apply” Return Directive guarantees 228 – subject only to a
duty to ensure standards in their national law that are “equivalent” to the minimum pro-
vided for in art. 4(4) thereof – cannot effectively exclude refoulement. The provision on rem-
edies in the Border Procedure Proposal, as it currently stands, further contributes to this
risk, when establishing that “the right to an effective remedy” only applies against decisions
rejecting the asylum claim or a return decision, 229 omitting any mention of refusals of entry.
So, with refusals of entry designed in the Schengen Code as “immediate” and without sus-
pensive appeals, 230 pushbacks may become normalised.
Indeed, that persons in need of international protection arriving at the external borders
may not be systematically informed of their right to asylum, 231 since there is no obligation
inscribed in the envisaged reforms to do so, 232 along with the fact that potential applicants
will be (de facto) detained and with no clear provision for them to access legal assistance,
223
Border Procedure Proposal cit. draft Regulation recital 40g.
224
SBC cit. art. 14(2) and (3).
225
Ibid. art. 6(5)(c).
226
Ibid. art. 14(1).
227
Screening Proposal cit. draft Regulation art. 3(3) (emphasis added).
228
Border Procedure Proposal cit. draft Regulation art. 41a(8).
229
Ibid. art. 53(1).
230
SBC cit. art. 14(2)-(3).
231
CFR cit. art. 18.
232
See discussion above on draft art. 8 of the Screening Proposal.
will expectedly lead to the generalisation of a refusal of entry process very similar to the
“deferred refusal of entry” or respingimento differito operating at the Lampedusa hotspot
that the Strasbourg Court has specifically condemned as a violation of the prohibition of
collective expulsion. 233
Therefore, if adopted as they are or without substantial variation, the Commission
proposals will firmly entrench the problematic hotspot arrangements deployed during
the 2015 “refugee crisis”, structuralising unfairness against protection seekers on a grand
scale. 234 These arrangements rest on and routinise a (long discredited 235) legal fiction of
non-entry that (re)conceptualises territory as non-territory, through an artifice of de-ter-
ritorialisation that splits geography from the legal order for the purpose of excluding the
full application of fundamental rights. 236 Since neither during the screening nor during
the border procedure should “the third-country nationals concerned…be authorised to
enter the territory” in the juridical sense, 237 un-doing the whole extent of legal guarantees
normally applicable upon physical arrival at the external frontiers of the Member States
becomes essential. The pre-entry phase, ignoring the norms currently delimiting the ter-
ritorial reach of the CEAS, 238 in an environment of default de facto detention, thereby
denies full reception conditions, the guarantees attached to the “normal” asylum proce-
dure, and the general Return Directive safeguards, which “should apply only after the
screening has ended”. 239 As a result, frontally contradicting the Strasbourg Court, the pro-
posed regime “selectively restrict[s]” the application of central protections to which asy-
lum seekers are entitled “by means of an artificial reduction in the scope” of the rules
233
J.A. cit. para. 100ff.
234
Very similar “fast-track detained” arrangements have been deemed unlawful in the UK. See Detention
Action, R (on the Application of) v Secretary of State for the Home Department, [2014] EWCA Civ 1634; Detention
Action v Secretary of State for the Home Department, [2014] EWHC 2245 (Admin); Detention Action v First-Tier Tri-
bunal (Immigration and Asylum Chamber) and Ors, [2015] EWHC 1689 (Admin); and Detention Action, R (on the
Application of) v Secretary of State for the Home Department, [2014] WLR(D) 426, [2014] EWCA Civ 1270).
235
ECtHR, Amuur v France App n. 19776/92 [25 June 1996]. On the EU side: Commission v Hungary cit.
236
J-P Cassarino and L Marin, ‘The Pact on Migration and Asylum: Turning European Territory into a
Non-territory’ (2022) European Journal of Migration and Law 1. See also, M Mouzourakis, ‘More Laws, Less
Law: The European Union’s New Pact on Migration and Asylum and the Fragmentation of “Asylum Seeker”
Status’ (2021) ELJ 171; and V Moreno-Lax, ‘Meta-Borders and The Rule of Law: From Externalisation to Re-
sponsibilisation in Systems of Contactless Control’, (2024) NILR (forthcoming) papers.ssrn.com.
237
Screening Proposal cit. Explanatory Memorandum 1, and draft Regulation art. 4(1); and Border
Procedure Proposal cit. Explanatory Memorandum 4, and draft Regulation arts 41(13) and 41a.
238
Current art. 3(1) APD cit. specifies that: “This Directive shall apply to all applications for international
protection made in the territory, including at the border, in the territorial waters or in the transit zones of
the Member States” (emphasis added). There are similar provisions in Dublin Regulation, art. 3(1), and in
Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards
for the reception of applicants for international protection (recast), art 3(1). See also case C-36/20 PPU
Ministerio Fiscal v VL ECLI:EU:C:2020:495.
239
Screening Proposal cit. Explanatory Memorandum 5 (emphasis added), cf. draft Regulation recital 27.
concerned. 240 The fiction does not entirely negate the application of the law – it is more
sophisticated; it rather restricts it in fundamental ways but only vis-à-vis a specific cate-
gory of persons: the (unwanted) irregular migrants (including the refugees amongst
them) that apply for asylum at the external border (the only option available to them in
practice). “Crisification” is what propels this transformation.
V. Conclusion: reversing the rule, decreasing legality

As the previous sections have shown, the “crisification” of irregular migration entails sig-
nificant continuities and path-dependency in the manner in which it is governed, 241 ce-
menting deficient norms and institutions as part of the “normal” legal framework, despite
their proven inadequacy/illegality. With the pre-entry screening process and border pro-
cedure proposals, the “crisis” paradigm dominating the hotspot approach infiltrates the
CEAS, converting it into a system of summary and systematic rejection of “unwanted”
migrants. Protection needs (including those deemed “genuine” 242) become secondary.
The main preoccupation becomes “the need to sustain a reduced pressure from irregular
arrivals and maintain strong external borders” (whatever the cost). 243 Whether in a (de-
clared) crisis or non-crisis situation, the standardisation of hotspot arrangements in the
“streamlined” procedures tabled by the Commission embed and normalise the fiction of
non-entry, denying fundamental protections to third-country nationals, negating them
“access not only to territory but also to law”, 244 thereby dismantling the rule of law – not
generally, but for the specific (target) group of unwanted migrants, carving out a space of
decreased legality (exclusively) for them.
This “crisification” trend contravenes recent pronouncements by the Grand Chamber
of the Strasbourg Court affirming that
“the special nature of the context as regards migration cannot justify an area outside the
law where individuals are covered by no legal system capable of affording them enjoy-
ment of the rights and guarantees protected by the [European] Convention [of Human
Rights and, by extension, EU law 245] which the [EU Member] States have undertaken to
secure to everyone within their jurisdiction”. 246
240
Cf. ECtHR, N.D. and N.T. v Spain App n. 8675/15 and 8697/15 para 110.
241
On this point and further on the contribution of law to the construction (and exacerbation) of crisis,
see J Ramji-Nogales, ‘Migration Emergencies’ (2017) HastingsLJ 609, 611-612.
242
Border Procedure Proposal cit. Explanatory Memorandum 1.
243
Instrumentalisation Proposal cit. Explanatory Memorandum 8.
244
V Mitsilegas, ‘The EU External Border as a Site of Preventive (In)justice’ (2022) ELJ 263, 263.
245
Art. 52(3) CFR cit.: “In so far as this Charter contains rights which correspond to rights guaranteed
by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope
of those rights shall be the same as those laid down by the said Convention…” (emphasis added).
246
N.D. and N.T. cit. para. 110.
What is more, the legal order “cannot be selectively restricted to only parts of the
territory of a State by means of an artificial reduction in the scope of its territorial juris-
diction”. 247 The opposite “would amount to rendering the notion of effective human
rights protection…meaningless”, undoing the rule of law at will, to the detriment of spe-
cific/targeted individuals. 248
With this in mind, the pre-entry arrangements, as currently designed, geared as they
are towards repelling irregular entrants above all else, should be abandoned. Like their
hotspot precursors, there is a high chance that they, too, become a vehicle for cursory
decisions without substantive assessment of protection needs, “closing the control gap”
decried by Member States, 249 but by unduly restricting, if not entirely exceptionalising,
access to protection. Such an outcome would fundamentally reverse the relation be-
tween (what should remain) the rule and its exception, normalising hotspot-like deroga-
tions from the applicable norms, treating all (potential) irregular migrants (including ref-
ugees) as undesirable, undeserving, and as a “threat” (through their mere presence) to
the integrity of the Schengen zone.
The mobilisation of crisis as (asylum/migration) governance and its structuralisation
as part of the EU acquis takes law outside the law, unmooring it from its core founding
values, including minimum human rights standards. 250 At the receiving end of the pro-
posed reforms are “not…those who have committed criminal offences [that may attract
punishment] but…aliens who, often fearing for their lives, have fled from their own coun-
try”, 251 to whom the EU owes and has pledged protection, not as a grace or a favour, but
as a matter of legal commitment. 252 “Un-crisis” thinking is thus necessary, 253 for the “hu-
mane” CEAS and Schengen regime promised by Commission President von der Leyen to
materialise. 254 As shown by the hotspot case law, 255 it is essential to find and formulate
“liberatory solutions” 256 to the regulation of irregular migration that align with the funda-
mental principles at the centre of the EU system. 257 A return to non-crisis formulas is vital
to regain normative soundness and restore the rule of law.
247
Ibid.
248
Ibid.
249
J Vedsted-Hansen, ‘Border Procedure on Asylum and Return’ cit. 102.
250
Art. 2 TEU and art. 67(1) TFEU.
251
J.A. cit. para. 82.
252
Art. 18 CFR.
253
D Otto, ‘Decoding Crisis in International Law: A Queer Feminist Perspective’, in B Stark (ed.), Inter-
national Law and its Discontents: Confronting Crisis (Cambridge University Press 2015) 115, 135.
254
European Commission, Press statement by President von der Leyen on the New Pact on Migration and
Asylum ec.europa.eu.
255
J.A. cit.; M.A. cit.; A.S. cit.; A.B. cit.; A.T. cit.; H.A. cit.; J.R. cit.; and O.S.A. cit.
256
D Otto, ‘Decoding Crisis in International Law’ cit.
257
Art. 6 TEU and art. 51 CFR.

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Schengen and European Borders

Crisis as (Asylum) Governance:

European Papers www.europeanpapers.eu ISSN 2499-8249

I. Introduction: structuralising crisis

Rapporteur on the human rights of migrants has denounced, regarding developments in

II. “Crisification”: the incremental normalisation of exceptions

iii.1. Relocation (and Dublin prorogation)

iii.2. The Hotspot Fiasco

IV. The New Pact reforms: generalising derogations

iv.1. Screening process: hotspots extended

iv.2. Border Procedure: hotspots normalised

V. Conclusion: reversing the rule, decreasing legality

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