In June, the EU’s new Pact on Migration and Asylum — a set of ten regulations changing the rules for asylum seekers across Europe — enters into force. The reform aims to ensure that more cases are handled directly at external borders and at airports before people are admitted to EU territory. It will also allow for faster rejections and returns, and tighten controls on movement within the European Union. For human rights defenders, this means that protecting people will become significantly more difficult, as applicants will be confined to border zones.

The new regulations introduce several procedures for asylum applications:

Screening

Screening is mandatory for all persons who have crossed an EU external border without authorization or entered an EU Member State without having undergone border checks. Within this procedure, biometric data are collected and updated as necessary, and the person’s identity, travel route, potential security risks, and individual risks are assessed. Throughout this stage, the person is formally considered to be present at the external border and not yet admitted to the territory of an EU Member State, which enables states to apply a “non-entry” regime under EU law.

Under normal conditions, the entire procedure must last no more than 7 days, but may be extended in crisis situations. The results of the screening and the information gathered are used to determine the subsequent procedure, such as the border procedure, the regular procedure, the return procedure, and others.

Border procedure

The border procedure is an expedited procedure for examining asylum applications. Throughout the procedure, the person remains in a border or transit centre, where a substantive asylum interview is conducted, and the travel route, documents, and databases are checked and potential security risks assessed. States may place the following categories of applicants in the border procedure where they have lodged their application directly at an external border or in a transit zone (including airports):

• Nationals of countries for which the average EU-wide asylum recognition rate falls below the established threshold (approximately 20%), in the absence of indicators of vulnerability or special circumstances.
• Persons whose asylum applications are considered “manifestly unfounded” or potentially subject to the concepts of a “safe country of origin” or a “safe third country.”

States are required to identify vulnerable applicants (unaccompanied children, persons with serious illnesses, severe psychological trauma, etc.) and, as a general rule, to transfer them to the regular asylum procedure rather than keeping them in the border procedure.

The entire examination cycle (the decision, the appeal, and, in the event of rejection, the initiation of the return procedure) must be completed within twelve weeks; thereafter, the case must either conclude with a final decision or be transferred to the regular procedure on the territory of the EU Member State. The tight timeframes leave lawyers and NGOs almost no time for appeals, while applicants remain in closed facilities throughout.

Airport procedure

The airport procedure is a particular form of the border procedure applicable to persons who lodge an asylum application in an airport transit zone and who are not entitled to regular entry into the country. Throughout the procedure, the applicant remains in the airport transit zone, and their case is examined under the expedited rules. For LGBTIQ people and individuals with PTSD or chronic illnesses, extended stay in a closed terminal constitutes a distinct risk in itself; timely medical documentation and documentation of vulnerability will therefore be of particular importance.

Return procedure

If an asylum application has been rejected under the border procedure, the person may be subjected to the border return procedure, which supplements the EU’s general rules on the removal of third-country nationals. Even following the rejection of an asylum application, the principle of non-refoulement remains in force — a fundamental rule of international refugee law and human rights law under which a state is prohibited from forcibly returning a person to a place where they face serious human rights violations. Where new risks are identified, removal can be challenged, but this is considerably more difficult from a closed border zone, where applicants must remain throughout the entire examination and pending removal period — totalling approximately six months.

Replacement of the Dublin System

The new Asylum and Migration Management Regulation (AMMR) replaces the Dublin System and determines which EU Member State is responsible for examining an asylum application. The AMMR establishes a hierarchy of criteria for selecting the state responsible for the case. In simplified form, the order of priority is as follows:

1. Family reunification.
2. Previously issued visas and residence permits.
3. The first unauthorized (irregular) border crossing.
4. Additional and humanitarian criteria: for example, the actual centre of the person’s life, linguistic, social and educational ties.

If a state has failed to issue a transfer request or physically transfer the person within the prescribed timeframe, it becomes responsible and must examine the case itself.

In addition, a new “mandatory solidarity” mechanism is being introduced: overburdened EU Member States may demand support in the form of redistribution of asylum applications, financial contributions, or operational assistance (the provision of equipment, experts, etc.). Refugees and asylum seekers still do not have the right to choose the country responsible for their protection.

“Safe Countries” and the export of responsibility

The new Pact also reinforces the use of two dangerous concepts already applied in the EU’s existing asylum system:

1. Safe country of origin. The new Pact establishes a common EU list of such countries. Nationality alone does not entail automatic rejection, but the applications of nationals of these countries are examined under an expedited procedure, with a presumption that the application is unfounded. In such cases, the state proceeds from the premise that applicants arriving from a “safe country” and applying for asylum do not, as a general rule, require protection, and applicants themselves must demonstrate that, in their particular individual cases, a risk nonetheless exists.
2. Safe third country. An EU Member State may refuse to examine the application and transfer the person to a third country, provided that formal protection mechanisms exist there and the applicant has some demonstrable connection to it. In practice, this amounts to “externalisation”: the EU concludes deals with third countries and seeks to shift responsibility for refugees to them.

Both concepts are premised on a general picture of conditions in the countries concerned: they are activated where a person arrives from a country in which there is “generally” no war, mass repression, or torture. However, for vulnerable groups (LGBTIQ people, political activists, women who have survived violence), this is a particularly high risk: a country that is “safe on average” may be life-threatening for them specifically.

What the reform means for nationals of Russia, Ukraine, Belarus, and Central Asia

Ukraine continues to be covered by a separate temporary protection regime; many applicants do not fall under the standard asylum application system at all (the Asylum Procedures Regulation, APR, or the new AMMR), although the new rules are gradually tightening this framework as well.

For nationals of Russia and Belarus, there is no special regime; the recognition-rate threshold and border procedure remain applicable. In practice, much will depend on the specific circumstances of each individual case: prior visas, travel route, available evidence of individual risks, and so forth. Thus, Europe generally acknowledges repression in Russia and Belarus, while simultaneously attempting to limit access to protection for nationals of these countries through common “safe country” lists and agreements with third countries.

Many Central Asian countries are also considered candidates for designation as “safe countries” or as countries with low recognition rates, which entails a high risk of expedited rejections and border procedures.

What the reform means for NGOs and human rights defenders

In practice, the “non-entry” regime and the placement of applicants in closed transit centres amount to de facto prolonged detention with limited access to lawyers and human rights defenders, particularly in remote border areas. Under expedited procedures, access to free legal assistance will also be severely limited. The reinforcement of the “safe third country” concept and the overall focus on accelerated returns increase the risk of refoulement — the practice of expelling or returning refugees and asylum seekers to places where they may face persecution, torture, or other serious human rights violations.

Implementation of the Pact is likely to represent a continuation of the EU’s policy of “deterrence, detention, and deportation” rather than access to international protection. The number of cases of border violence, arbitrary detention, and discriminatory policing and border controls, particularly against LGBTIQ people and groups subject to racial discrimination, is also likely to increase. In order to continue to effectively assist people, human rights defenders must adapt their work to the new constraints, including:

1. Early access at the border. The screening stage and the first days of the border procedure represent the only window during which it is possible to effectively document vulnerability and influence the decision on the applicable procedure.
2. Appeals within expedited timeframes. In cases subjected to the border procedure, there are only 7–10 days in which to file an appeal; NGOs must organize their work so that they can intervene in cases before rejection decisions are issued, rather than after.
3. Challenging the application of “safe country” and “safe third country” concepts. It is necessary to compile case documentation and analytical data on LGBTIQ people, political activists, and women who have survived violence, in order to demonstrate that a “safe country” is not safe for specific vulnerable groups.
4. Monitoring new return practices. The new return procedure carries the risk of dehumanization; it is therefore essential to document detention conditions and instances of refoulement.