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3 June 2022
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ECRE Editorial: Better, Bad, Worse, Worst Approaches? The Asylum Reforms after “Ukraine”

ECRE views the EU’s approach to the Ukraine displacement crisis, including the decision to activate the TPD, as very positive, notwithstanding the serious implementation challenges and differing responses in the Member States. While it may seem too early to extract lessons to inform the wider management of asylum system systems in Europe, that has to be done, and not least because the TPD is part of the Common European Asylum System (CEAS). It is there to relieve pressure in order that the system can function effectively – not to generate a two-tier system. In addition, while the Ukraine crisis continues there appears to be movement on the reform proposals which all in any case remain on the table. Indeed, the table is groaning under the weight of the mountain of proposals launched in recent years.

Legislative proposals that fully or partially cover asylum law include the remaining proposals in the 2016 asylum package, the legislative reform proposals in the Pact, the 2021 Instrumentalisation package, and the Schengen Borders Code reform proposals. In the two years that remain of the European Parliament and European Commission mandates, it is impossible that all these proposals are agreed by the co-legislators and integrated into EU law, and not least because they are overlapping and contradictory in some cases. The two-year limit is also set by the run of EU Presidencies to follow France: Czech Republic, Sweden, Spain and Belgium, which will mostly try to make progress. They are followed by Hungary, Poland and Denmark.

The EU was already in the territory of “mini-deals” – that is, agreements on certain elements of the package(s) that have been put forward rather than on all the proposals. The deal on the EUAA signalled this as the way forward. Even for the Pact, which was presented as comprehensive framework, the whole set of proposals won’t go through, with RAMM, APR and Crisis Regulations looking least likely to move.

Two separate questions arise: what are the possible options for agreements that could be reached? And which elements from the reforms should and should not be pursued, inter alia given the response to the Ukraine crisis?

While ECRE’s preference would be a deeper re-thinking in the light of this year’s events, there are a number of approaches moving forward.

The Gradual Approach

First, “the gradual approach” which has been developed by the French Presidency and on which an agreement is sought this month – and according to rumours, likely to be agreed next week in the JHA Council. The gradual approach, simply put, involves agreement on the Screening Regulation and Eurodac on one side and, in exchange, a voluntary solidarity mechanism for countries at the borders. The hope of the French is to have agreed Council positions on Screening and Eurodac in the form of (Partial) General Approaches, which are binding on the Member States (usually – there are examples of where Member States rescind, including France in recent times). That would then be the Council’s position to be negotiated with the co-legislator, the European Parliament.

The details are all under discussion in confidential settings but some elements can be discerned from the outside. On the solidarity mechanism, it will include relocation as the main form of solidarity, as well as financial contributions. However, it is already clear from the Member State discussions that there will be no mandatory solidarity. The EUMS already offering relocation have suggested that they will continue to do so (France, Germany, Ireland, Luxembourg and Portugal) those strongly opposed have underlined that they won’t, and emphasise that the mechanism must be voluntary (Austria, Czechia, Denmark, Poland etc). The scope of the mechanism seems to cover the Mediterranean, Cyprus and Greece. Crucially, the mechanism will be restricted to those “in need of protection” which is a serious limiting factor, because it suggests that a filtering which pre-empts the asylum procedure might take place to make a rough determination of protection needs. There is then the risk of Member States “cherry-picking” applicants. Overall, it means less support to the countries of first entry than a wider scope.

An additional element that may or may not be integrated relates to the objective of implementing Dublin, suggesting that solidarity contributions will be reduced in the case of significant onward movements or refusals to accept take-back requests.

Even without this element, a challenge is that the deal is skewed. There is a clear imbalance in the status of the two offers – the Screening Regulation and Eurodac are pieces of legislation, giving rise to binding legal obligations, and a (Partial) General Approach locks in the Member States’ collective position. On the other side, is a limited, voluntary solidarity mechanism, that certain Member States will never contribute to and which falls short of providing a predictable, fair and clear relocation mechanism that ECRE has argued for. Indeed, the declaration is better described as a statement of intent than a mechanism to be applied.

Is this enough to convince the external border countries and in particular the Med 5? France has made significant efforts to convince Spain and Italy to back the gradual approach deal, but with elections next year in the two countries, it’s not clear that they would accept something that increases their role and does little to change the overall rules on responsibility allocation. The fact that the solidarity mechanism is supposed to start work straightaway might help – that part of the agreement will be in place by the time of the elections, whereas the Screening Regulation will be a long way from being adopted and also requires Parliament’s support. There is also a risk that future governments renege on any agreement made now.

The Schengen Approach

The second deal that might work is the Schengen approach. Rather than, or as well as reforming the asylum acquis, changes could be effected through amending the Schengen Borders Code (SBC). The French Presidency also hopes to get agreement from the Member States next week on a (Partial) General Approach to the SBC. Here, the Member States have put forward proposals to worsen the already bad amendments proposed by the Commission.

This includes a broadened definition of instrumentalisation of migrants by suggesting it can be caused not only by third country governments but also non state actors. While there is an exemption of humanitarian actors and of actors involved in smuggling when there is no “aim to destabilise the Union or a Member State” included in a newly added recital, the vague formulation leaves a lot of room for interpretation and means that a much larger range of circumstances could be qualified as “instrumentalisation” where related derogations from EU asylum law could apply. The proposed compromise text also includes provisions to restrict access to asylum at borders in different circumstances, expands the grounds for identify checks which increases the danger of racial profiling and increases the potential use of the transfer procedure at internal borders, thereby encouraging a Member States practice which has been frequently deemed unlawful in national courts. Attempts to amend the legal framework so that internal border checks can continue to persist (rather than reinforcing their exceptional character) form part of the proposed agreement.

It seems that at least in some Member States, reluctance to hastily approve positions with far reaching implications on access to asylum and free movement in a supposedly border free Schengen area is rising. Let’s hope that these considerations are not brushed off in the rush to get a deal on Schengen.

The SBC amendments could run in parallel to the gradual approach – it is the intention of the French Presidency.

The Instrumentalisation Approach

A third possible deal, and the worst of the approaches, is the instrumentalisation approach, taking forward the Regulation on addressing situations of instrumentalisation (the Instrumentalisation Regulation), based on allowing derogation from the law in situation of instrumentalisation by third parties. There is some overlap with the Schengen approach because the definition of instrumentalisation is contained in the SBC amendments. If they are adopted, as seems likely, it codifies this toxic concept in the EU legal framework. There are major problems with the proposal, as ECRE has described, however it is receiving a lot of positive comment from the Member States (who doesn’t want to derogate from EU law?) The SBC amendments would open the door to the Instrumentalisation Regulation which creates the derogatory regime for these situations. Although it may seem unlikely that a later proposal moves forward instead of the (remaining) 2016 proposals and the Pact, the conflicts among Member States over responsibility sharing and solidarity versus border containment and “secondary” movement haven’t been resolved and they be able to reach unity on instrumentalisation instead. The (lack of) reaction to events at the border with Belarus, including legislative changes to legalise pushbacks, and the ongoing violations with impunity at many borders, suggest unfortunately that an approach that allows for restrictions and derogations, and seeks to legalise bad practice, will find favour among the Member States at least. But probably not at Parliament.

The Pact-Package Approach

That lead to the discussion of a fourth approach – that being pursued by the other co-legislator, the European Parliament. Nominally, Parliament’s approach is to continue with its examination of all the Pact files, and it remains committed to the package approach, meaning that nothing should be agreed until everything has been agreed.

Below the surface, however, all kinds of complex dynamics are at play. In contrast to the 2016 package, it is proving much harder for Parliament to arrive at joint positions – and the positions that it is developing are much less supportive of asylum and indeed less supportive of an EU approach than under the previous parliament. This is not due to an increased presence or assertiveness on the part of the Far Right political groups (which remains stable compared to the last Parliament). It is largely due to the increasingly extreme positions taken by the centre-right EPP group, and its willingness to work with the Far Right.

While disappointing, it perhaps predictable that the EPP takes this position. Surprising, to say the very least, is that the supposedly centrist Renew Europe (liberal) political group is also willing to enter alliances with the anti-EU, anti-asylum extreme right political groups – and even to adopt their positioning on some issues. Reaching compromises is thus a challenge; the state of affairs on the central RAMM file and related APR file is indicative of these developments.

Assessing and improving the “approaches”

The package approach is potentially the worst approach unless a deep and appropriate reform of the Dublin Regulation is part of the package. On the 2016 asylum package, from a protection perspective, as well as in terms of political feasibility, the Parliament’s (and some Member States’) commitment to the package approach was based on ensuring that certain proposals did not progress without the necessary reform of responsibility sharing – based, respectively, on the Wijkstrom Report or proposals of the Southern Seven Member States (as was). Now, more ambitious reforms are not being presented. The rapporteur’s positioning on the RAMM is worse than the Commission proposal. If the package approach is maintained, then a credible alternative which reforms the rules on responsibility sharing in Part III RAMM with a fairer system that removes the first entry principle and is based on matching and facilitating family reunion AND (or – but ideally and) introduces a serious solidarity mechanism (Part IV RAMM) based on relocation, i.e. sharing responsibility for the protection of people, is essential.

In any case, experience shows that Parliament will abandon the package approach when the Council manages to reach an agreement on something (anything) – unsurprising, given that the EU’s co-legislator has an interest in adopting EU legislation in response to a contemporary political challenge. Thus, the focus would have to switch on improving the other “approaches” should they move.

For the gradual approach, this means insisting on the full range of amendments to the Screening Regulation, on which the Parliament’s positioning is solid and needs to be maintained. It largely aligns with ECRE’s detailed analysis of the Regulation here, including elements like removing the fiction of non-entry (if it makes it into the Council agreement – some Member States are opposed). For Eurodac, the situation is more complicated due to the particular combination of parliamentarians involved.

Improving the gradual approach also means ensuring that the solidarity mechanism is adequate and focused on relocation, and a dilemma arises. If it is a voluntary mechanism created by a political agreement among the Member States, Parliament’s role is limited. However, is it worth pursuing the RAMM or the Crisis Regulation in order to have a solidarity mechanism provided for in legislation? Given the multiple damaging elements of these draft instruments, and the compromises that Parliament is likely to reach, the answer is surely no: introducing all the negative elements, from the rules on responsibility sharing in RAMM to whatever final provisions on derogations eventually make it into a Crisis Regulation, will probably outweigh the benefits of a codified solidarity mechanism (particular one that includes return sponsorship). Separating off the solidarity mechanism to become a standalone with a strong legal basis is one option that ECRE supports – but an unrealistic one. Otherwise, strengthening the mechanism has to be done in other ways, including political, practical and operational support. ECRE refers back to its proposals for a relocation solidarity mechanism, here.

If the Schengen approach moves forward instead of or as well as other proposals, there are key amendments that must be introduced, see ECRE’s detailed analysis here. Above all, the reference to instrumentalisation must be removed, especially as Member States are trying to widen the concept to also include the actions of non-state actors. Other points to amend include removing the legalisation of bilateral return agreements and ensuring safeguards across the board.

The worst of all approaches is the instrumentalisation package. See comments here. The proposed Council Decision covering Latvia, Lithuania and Poland has not moved forward, thankfully. There should be no movement, no negotiation or consideration of the Instrumentalisation Regulation. More to the point, a stronger line also needs to be taken in practice against the Member States who have put in place legislation that follows this approach and is not in conformity with the CEAS. Estonia is the latest country to try to “legalise” pushbacks but the legislative changes in the three Member States above and in Greece deserve particular attention.

Overall, the better approach would be to use the Ukraine crisis to rethink the model of asylum in Europe and develop alternatives – to apply the new approach to responsibility sharing and solidarity that is emerging; to incorporate the benefits of rapid access to territory and to protection and ensuring that people in need have a protection status as soon as possible; and reversing the trend towards precarity of status and lower content of protection. Beyond this, adequate resourcing of asylum systems and better compliance with the asylum regime that exists, and making the link with and investment in inclusion from day one, are all essential.

These alternatives need to be pursued even though – or perhaps because – the large pile of legislative proposals on the metaphorical table goes in completely the opposite direction. Nonetheless, mini-deals on some of the elements in the proposals, as described in the three approaches above, are emerging, and could well be concluded within the two-year limit. They reflect old thinking and approaches to some extent so an effort to amend and improve them must be pursued.

Editorial:Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)

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Central Med: Death Toll Reach 600 as Civilian Rescuers Fight to Save Lives, Malta Ignoring Distress at Sea and Detaining Children on Land

The International Organization for Migration (IOM) has recorded 600 people dead or missing on the central Mediterranean route in 2022 as of 28 May. Civilian search and rescue operators continue to save lives. Malta continues strategy of ignoring distress calls as the country’s detention of unaccompanied minors is under renewed scrutiny.

The 600 people dead or missing in 2022 so far and more than 1,500 in 2021 recorded by IOM on the central Mediterranean might not be the full extent of the unfolding tragedy on the world’s deadliest migration route. As pointed out by InfoMigrants: “The real number for both years is likely to be higher, as not all deaths are reported or recorded”. On 25 May, 76 people were reported presumed dead after their boat, which departed from Libya, sank off the coast of Tunisia. “What is worrying the most in the EU’s dealing with the drownings of migrants and asylum seekers is that the concerned parties seem to be indifferent when dealing with these incidents, as if the lives of the victims are not so important to take any special action to put an end to this ongoing tragedy,” Michela Pugliese, Migration and Asylum Researcher at Euro-Med Monitor, stated. The organisation points to the need for the EU to reactivate its official rescue missions.

Meanwhile, civilian search and rescue operators continue an uphill battle to save lives at sea. On 29 May SOS Méditerranée could finally announce the granted permission to disembark 294 survivors – rescued by the Ocean Viking vessel between 19 and 23 May – in Pozzallo, Sicily. Reportedly a survivor jumped of the vessel in desperation during the wait at sea but was recovered alive. “The wait of over a week for a port to disembark these people was senseless,” said Candida Lobes, communications officer on the Ocean Viking. On 29 May the new Sea-Watch vessel Aurora rescued 85 people on its first mission assisted by the NGO hotline Alarm Phone and the German NGO, RESQSHIP. The Civil Fleet stated: “authorities failed once again to respond to a refugee boat in distress in the central Mediterranean today, leaving activists rescuers to save the lives of over 80 people within Malta‘s search-and-rescue (SAR) zone”. Reportedly, the survivors were allowed to disembark on Lampedusa. On 2 June Sea-Watch announced a second rescue of 25 people by its vessel Sea-Watch 3 after saving 49 people earlier on the same day. According to the organisation: “A total of 74 rescued people are now on board with us, safe for the moment after their escape over the Mediterranean”. After additional rescues on 3 June the organisation reported: "Our crew takes care of 222 survivors at the moment, rescued in four operations within less than 24hours".

The strategy of Maltese authorities to ignore distress calls was again at display on 27 May when Alarm Phone reported of eight people in distress in Malta’s SAR zone. The organisation stated on 28 May: “We are relieved that the 8 people were rescued – thanks to captain & crew of the vessel Antigone. While authorities refuse responsibility, merchant vessels have to step in”. Meanwhile, the continued detention of unaccompanied children in Malta has again come under scrutiny. Researcher and human rights activist, Dr Maria Pisani stated in a recent interview  that despite the government committing to end the practice eight years ago: “To date we still detained all unaccompanied minors that come to Malta by boat and detain them under the most horrific conditions”. ECRE members Jesuit Refugee Service (JRS) Malta and Aditus are set to release a report entitled ‘Children in Limbo: Youth Transitions Among Asylum Seekers in Malta’ based on the voices of youth detainees in the “hope that the voices of these young people be heard and understood as a clear indictment of Malta’s present reception system and the State’s failure to meet its international human rights obligations, including, but not limited to the UN Convention on the Rights of the Child”. The report includes the experience of a 16-year old boy detained for months without access to any information after arriving to Malta: “Maybe I wouldn’t want to go through that time, and I die. I could – I would take a rope, I would die and that’s it… as I would prefer to die than to go through that time,” he stated.

After 52 months of investigation Prosecutors in Trapani, Italy have cleared the Eritrean priest, Mussie Zerai of all charges related to aiding illegal immigration. Zerai, who is a rights activist and Nobel Peace Prize nominee in 2015 and founded and led the news agency Habeshia (migrants lifesaver) stated on the accusations: “Before informing NGOs … after receiving a call from refugees departing from Libya, I always called the operations center of Italian coast guards and Malta’s command”. Zerai had never been in contact with Iuventa – the civilian rescue vessel seized by prosecutors in Trapani with crew members among the more than 21 NGO staff accused of colluding with human smugglers. However, he confirmed sending rescue signals to the UN refugee agency (UNHCR) as well as aid organizations active in the Mediterranean at that time. Zerai was against the conclusion in 2014 of the Mare Nostrum search-and-rescue operation in the Mediterranean and warned against potential risks for civilian search and rescuers: “I said they were useful to the political power because they saved human lives while at the same time becoming easy scapegoats. And it ended in that way, but I couldn’t imagine that I would be involved too”.

IOM mission chief in Libya, Federico Soda recently warned of the silence of EU member states on the vicious cycle of abuse in Libya urging “more condemnation” and “more calls for law and order for investigations” in the country. According to the UN agency more than 7,000 people have been intercepted and returned to Libya in 2022 as of 28 May.

For further information:

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EU Eastern Borders: Scrutiny of Polish Authorities at Belarus Border, UNHCR Joins Choir of Critique over Estonian Amendments of the State Borders Act

The office of Poland’s commissioner for human rights (RPO) has declared pushbacks at the Belarus border “incompatible with Polish law and international standards” and the provincial administrative court in Warsaw has ruled border guards violated international law during pushback operations. The UN Refugee Agency (UNHCR) has published its observations to amendments of the State Borders Act in Estonia – marking the latest expert critique of the proposed legislation.

According to a recent report from PRO there continues to be a “humanitarian crisis” on Poland’s border with Belarus. “Foreigners, including families with children, under the pressure of the Belarusian [security] services, are still attempting to cross the border in places not intended for that purposes,” wrote deputy human rights commissioner, Hanna Machińska in the report, also noting: “The humanitarian crisis on the border continues, though on a smaller scale”. The Polish human rights office further states that Polish authorities continue to use pushbacks deeming the controversial practice “incompatible with Polish law and international standards”. Spokeswoman for the Polish border guard, Anna Michalska has confirmed that recent video documentation of “brutal behavior of Belarusian officers forcing migrants through barbed wire fencing on the border into Poland, despite screams of protests from the group,” was recorded by its officers. Michalska stated that: “The foreigners were informed about the possibility to apply for international protection in Poland,” adding that as they declined to do so they were informed that under the law they are obliged to leave Polish territory.

The provincial administrative court in Warsaw has ruled that Polish border guards violated international law including the non-refoulement principle when forcing a group of Yemenis and Iraqis back across the border into Belarus in November 2021. The ruling in a case brought forward by ECRE member, Association for Legal Intervention (SIP), marks the second such ruling by a Polish court. The court reportedly “pointed to number of procedural shortcomings. A key issue was the border guard failing to show that it had checked whether the group wanted to apply for international protection in Poland. There was no record at all of the group being interviewed or any notes from conversations with them. The court also noted that foreigners in Belarus are often denied their rights and can even face actions from the authorities there that threaten their health and life”. The court further noted that international and EU law requires that the lodging of an appeal should temporarily stop the expulsion of foreigners. A number of other legal challenges against pushbacks at the Polish border with Belarus are currently pending. Since the declaring of a state of emergency in the border region with Belarus in September 2021 and legislation approved in October 2021 allowing a person entering “illegally” to be ordered to leave Polish territory based on a decision by the local Border Guard chief, Poland has pushed back large numbers of people mainly from the Middle East, Asia and Africa. While the government finds such practices conform with national and international law this is disputed not only by Polish courts and human rights office but also the UN’s human rights office and leading INGOs. A group of Kurdish Iraqi’s and Turks detained in a guarded center in Lesznowola after arriving to Poland from Belarus have been on hunger strike since early May to protest their detention conditions and the slow process of their asylum applications. According to figures provided by the Polish border guard a total of 5,143 people attempted to reach the country in an “unlawful way” in 2022, a decrease compared to 2021 when 17,500 attempts were made in October alone. JRS International points to the: “At least 24 people” who “lost their lives in attempts to cross the border from Belarus to the EU in 2021 and early 2022”.

A controversial bill to amend the State Border Act and related acts approved by the Estonian government in April continues to generate critique as it passes the legislative process. Council of Europe Commissioner for Human Rights, Dunja Mijatović recently called on parliamentarians to amend the bill “which would, among other things, allow pushbacks in situations of emergency”, the commissioner also stressed: “that designating certain border crossings as the only ones where asylum applications can be filed should not lead to violations of member states’ obligations under human rights instruments. Other concerns about the bill include the lack of suspensive effect of appeals against a decision to immediately return”. On 30 May UNHCR published extensive observations on the proposed legislation, among other reservations the UN agency states it: ”regrets that the draft Amendments lay down rules that may restrict the possibility for persons apprehended in the border area to seek asylum in Estonia. It is crucial to stress that the right to seek and enjoy asylum does not depend on the mode of arrival of an asylum-seeker to a country. In some cases, asylum-seekers simply do not have a choice but to flee without valid travel documents and enter the country without prior authorization of the authorities”. The Estonian Human Rights Center and ECRE member the Estonian Refugee Council sent a letter to the parliament in April warning of the dire implications of the proposed legislation. Director for the Estonian Refugee Council, Eero Janson states in a written comment to ECRE: “Estonia has historically relied heavily on international law – it has been the guarantor of survival and re-independence. It is very alarming that this steadfastness in support of international law is waning and day-to-day political currents and fears are starting to have its influence”. Janson further notes: “The amendment, once passed, would be infringing the 1951 Refugee Convention and the European Convention of Human Rights, not to mention EU’s asylum acquis”. Finally, Janson points to the fact: “that the EU has not taken any strong steps towards Lithuania and Poland who have already passed similar laws, is creating a regional domino effect where the universal right to asylum is being downgraded to right-to-asylum-when-it-suits-us”.

On 31 May the government of Estonia’s neighboring Baltic state Latvia granted almost one million Euro to the Ministry of Interior to cover reinforcing the guarding of the border of Latvia-Belarus.

For further information:

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Ukraine Displacement: Over 6.8 Million Refugees, Heightened Risk for Women and Girls, Updated Information Sheet and Revised ECRE Advocacy Messages to the EU

Earlier this week, UNHCR reported the number of people who have fled Ukraine to be 6.8 million. Rapid assessment reveals risks for women and girls in neighbouring countries. ECRE publishes latest updated information sheet on Measures in response to the arrival of displaced people fleeing the war in Ukraine and key-advocacy messages towards EU decision makers on Ukraine displacement.

With the number of refugees from Ukraine approaching 7 million and the number of internally displaced (IDPs) at 7.7 million as of April 2022, according to the International Organization for Migration (IOM), the total displacement is close to 15 million since the Russian invasion on 24 February. Almost 3.7 million refugees have fled into Poland where UNHCR is in the process of expanding its operations.

HIAS and VOICE have published a report of a four-week rapid assessment of the situation of women and girls in Ukraine, Hungary, Moldova, Poland, Romania, and Slovakia. The report reveals the high risks of trafficking and sexual exploitation and abuse (SEA), as well as conflict-related sexual violence, domestic violence, and other forms of gender-based violence (GBV). It further highlighted protection concerns related to shelter and unsustainable housing, a lack of access to livelihoods and cash based assistance; and inconsistent access to reliable information. Overall, displaced persons throughout the region lack access to GBV services, reproductive healthcare, and psychosocial support services, and Roma and LGBTQIA+ communities face additional discrimination and protection concerns.

ECRE has published the latest version of the non-exhaustive information sheet, which has been regularly updated since it was first published on 3 March 2022. This edition of the info sheet includes a summary of emerging country practice on the scope of the Temporary Protection Directive (TPD), including expanded personal scope of temporary protection under the TPD; extended temporal scope of temporary protection under the TPD; and countries applying a more limited scope than the scope of the Council Decision. Eurostat has released statistics on Ukrainians granted temporary protection in EU states in March 2022 revealing that: “among the EU Member States for which data are available, Poland granted the highest number of temporary protection statuses to Ukrainians fleeing Ukraine (675 085) as a consequence of Russia’s invasion. Poland was followed by Czechia (244 650) and Slovakia (58 750). Further, Eurostat states: “Compared with the population of each Member State, the highest ratio of Ukrainian citizens granted temporary protection in March 2022 was recorded in Czechia (22.9 granted temporary protection per thousand inhabitants), followed by Poland (17.8), Slovakia (10.8) and Estonia (10.5).

ECRE’s updated advocacy recommendations cover areas related to the implementation of the Temporary Protection Directive and point out how the challenges and gaps in TPD implementation should be addressed. In general, as temporary protection beneficiaries are in a very similar situation to other beneficiaries of international protection, no additional administrative requirements should be introduced to access their rights under the TPD. The document highlights the concerning practice of non-issuance of residence cards and lack of provision of information by Member States and provides suggestions for areas that should be covered in the next European Commission guidance to Member States, to address the following implementation challenges: Lack of administrative decisions; Problems with narrow family definitions; Different interpretations of freedom of movement by EUMS; and Ensuring passage to Ukraine for visits/re-entry. Beyond the TPD, the advocacy recommendations cover EU operational and funding assistance for the response, the necessary focus on inclusion, the need for solidarity contributions and other considerations.

For further information:

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Greece: Crack-down on NGOs and Criminalisation of Solidarity Continues, Government Announces “Blocking” Thousands of Arrivals in Evros Amid New Pushback Reports

The ongoing crack-down on NGOs and criminalisation of solidarity continues at full speed. While denying pushbacks amid new reports of incidents the Greek government announces “blocking” 40,000 people from arriving in the Evros region in the first four months of 2022.

The Special Secretariat for Stakeholder Coordination at the Ministry of Migration and Asylum has approved the registration of the NGO, Refugee Support Aegean (RSA) without amendment of the organisation’s statute. However, the approval comes after an initial rejection of RSA’s application in October 2021 – a decision based on the “development of activity” “in support of persons under deportation” that was allegedly contrary to Greek legislation. The rejection raised significant critique and was deemed “wrong and unlawful amongst others by the Greek Ombudsman intervening in line with his mandate, the UN Special Rapporteur on human rights defenders, as well as by civil society organizations active on refugee issues in Greece”. In an expert opinion on the “highly restrictive framework for registration” introduced in a second Joint Ministerial Decision (JMD) in April 2020, ECRE stated: “The legal framework does not comply with the requirements that rule of law dictates and the European and international obligations that Greece has undertaken in that regard”. Meanwhile, the ongoing criminalization of solidarity and crack-down on NGOs and journalists continues.

Based on their knowledge of the location of people stranded in the Evros region and requests for assistance on their behalf, NGOs have been accused of cooperating with irregular smuggling networks with authorities reportedly initiating an ‘investigation’ into organisations active in the region. The local commentator Manos Moschopoulos stated: “Once again, Greek authorities are reportedly trying to make sure there are no witnesses to the illegal actions of law and border enforcement” also noting: “I’ve seen this narrative before – ‘how do the NGOs know where refugees are? They must be talking to smugglers!’ Bullshit. Refugees send coordinates to NGOs because they can’t trust the police to do their job. How could they when pushbacks take place at an industrial scale?”. Der Spiegel reporter, Giorgos Christides states: “A more likely explanation of the sudden scrutiny: NGOs have the bad habit of alerting the police, the press, even the European Court of Human Rights about the presence of vulnerable people on Greek soil. The ECHR has issued lately more than a dozen interim measure orders”. The known Dutch correspondent in Greece, Igeborg Beigel who was recently attacked in the street after a heated exchange with Minister of Migration and Asylum, Notis Mitarachi, faced trial on 1 June in the Piraeus Courts charged with “facilitating the illegal stay of a third-country national” for hosting in her home in Hydra an Afghan refugee who had not yet been granted asylum. The trial was reportedly postponed after the first hearing. MEP for the green group, Tineke Strik commented on the trial: “Criminalization of humanitarian assistance must stop now. Penalisation of pushbacks must start now”.

The Greek government – denying pushbacks despite indisputable and ever mounting evidence – proudly announced on 28 May that 40,000 people had been “blocked” from entering the country along the northern border with Turkey in the first four months of 2022. Defining people on the move as “illegal immigrants,” who: “have tried to enter the country illegally,” Greek Civil Protection Minister, Takis Theodorikakos, stated: “We effectively repel any threat to our country, to our borders”. Greece is planning a massive extension of the border wall along the country’s border with Turkey. According to Notis Mitarachi the steel wall will be extended from 40 to 120 kilometers. The minister stated to local media: “It is a government decision to extend the border wall further and we have requested European funding”. Turkey has not accepted any readmissions under the EU Turkey deal since March 2020 and will reportedly continue to reject returns from Greece unless the country stops pushbacks and revoke the safe third country list – Greece deems asylum applications by nationals from Syria, Afghanistan, Somalia, Pakistan and Bangladesh inadmissible based on Turkey being safe for them. Deputy Migration Minister Sophia Voultepsi recently criticised a reporter for asking her about pushbacks, reportedly calling him “A fascist” and the “disgrace of journalism”, noting “There are no pushbacks nor have they ever been proven” and adding: “We don’t care at all what Brussels is saying”. An Interview by Dutch outlet Volkskrant with European Commissioner Margaritis Schinas, does not suggest the Greek government have to fear criticism though. A compilation of translated questions and answers from the interview by Policy Advisor at European Parliament, Julia Verheul includes the following exchange: “Q: There are hundreds of documented examples of pushbacks, but the Commission has never launched disciplinary proceedings. Why not? A: I have a clear conscience about this. External borders must be protected! There will be no EU migration policy without effective border control. I have nothing with political parties and NGOs that shout: “Abolish border control! Please come in and then we’ll see”. Meanwhile, the Deputy Prosecutor of the Supreme Court has provided a “Timely reminder of Greece’s positive duty to investigate discrimination, ill-treatment or rights violation against migrants at a critical time for Rule Of Law”.

Regardless, reports of pushbacks and abuse by Greek authorities continue to emerge. Der Spiegel reporter, Giorgos Christides reports on the pushback of 94 people to Turkey after they were stranded in the Evros region for five days, stating: “authorities showed contempt for the European Court of Human Rights and local prosecutor orders, failing to provide immediate medical help, food & water even though they knew where the group was located”. Further, he describes how Turkish authorities have forced members of the group back across the border under threat of deportations to Syria – the people are now again left on an islet in the Evros river and the European Court of Human Rights has issued new interim measures to provide assistance and not remove the group from Greek territory. ECRE member Greek Council for Refugees (GCR) and HumanRights360 are urging Greek authorities to comply with the ECtHR’s Decisions and rescue 52 Syrian refugees, “amongst whom families with minors with multiple health problems are stranded on an islet in Evros river” for three days. The NGO hotline Alarm Phone also reports of people stuck on an islet in the Evros region, warning of the risk of pushbacks. Greek police forces are accused of having shot with rubber bullets at two Afghans trying to cross the border from Turkey with Turkish media reporting they are now under treatment in a hospital.

For further information:

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AIDA 2021 Update: Greece

The updated AIDA Country Report on Greece provides a detailed overview on legislative and practice-related developments in asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2021.

In 2021, a total of 9,157 refugees and migrants arrived in Greece. This marks a decrease of 31.7% compared to 2020 (15,696).  Out of them, 4,331 persons arrived by sea (compared to 9,714 in 2020); most of new arrivals came from Afghanistan (20.2%), Somalia (19.9%) and Palestine (15.3%). Approximately half were women (18.8%) and children (28.5%), while 52.7% were adult men. Moreover, 4,826 persons arrived in Greece through the Greek-Turkish land border of Evros in 2021. The registered number entries in 2021 may however under-represent the number of people actually attempting to access Greek territory, given that cases of alleged pushbacks at the Greek-Turkish land borders and at the Aegean Sea have been systematically reported in 2021. Several reports indicate that they have become a “standard practice”, including violent border practices, arbitrary detention and even deaths at borders. The Greek Government remains opposed to the development of an independent border monitoring mechanism and no effective investigation has been conducted up until today on repeated push backs allegations.

Overall, the recognition rate for international protection at first instance was of 60%, when factoring in only decisions on the merits. However, a significant number of applicants had not the possibility to see their application examined on the merits, as they were examined under the safe third country concept, following the issuance of the Joint Ministerial Decision issued on 7 June 2021, that designated Turkey as a safe third country for applicants from Syria, Afghanistan, Somalia, Pakistan, Bangladesh. Important to note is that three of the five nationalities mentioned in the JMD are those who were most often recognised as beneficiaries of international protection in Greece previous to the issuance of the decision. The application of the JMD resulted in a sharp increase in inadmissibility decisions based on the “safe third country” concept, rising from 2,839 in 2020 to 6,424 in 2021. Additionally, access to asylum on the mainland continued to be a serious matter of concern throughout 2021, mostly due to the ineffectiveness of the access to the procedure through Skype.

In 2021, the number of asylum applications and of first instance decisions issued decreased when compared to previous years. Despite that, significant delays continued to be reported at first instance. At the end of 2021, more than half of the applications (58.08%) pending at first instance had been pending for a period exceeding 12 months (18,463 out of the total 31,787 applications pending at the end of 2021). In 45.27% of the pending applications, the personal interview has not yet been conducted.

For what concerned reception, temporary camps on the mainland, initially created as emergency accommodation facilities, continued to operate throughout 2021. In December 2021, 15,793 persons – most of whom were children (39%) and women (24%) – were accommodated in such camps.  Additionally, 12,447 people, of whom nearly half were children, were accommodated under the ESTIA II accommodation scheme in December 2021. Despite the decrease in the number of applications, reception conditions remained substandard in different locations across the country.

The total number of third-country nationals detained in Pre-removal Detention Facilities (PRDFs) during 2021 was 12,020, out of whom 6,447 were asylum seekers. At the end of 2021, there were 2,715 persons in administrative detention, of whom 1,344 asylum seekers. Greek authorities continue to impose detention even in cases where removal is not feasible. This is particularly noticeable for applicants that rejected based on the safe third country concept in Turkey, as all removals to the country have been suspended since March 2020. In many cases, the detention conditions in pre-removal centres fail to meet adequate standards, and vulnerable groups are detained in practice, without a proper identification of vulnerability and individualised assessment prior to the issuance of a detention order.

Significant issues were also noted for what concerns treatment of beneficiaries of international protection. Many administrative obstacles still stand for what concerns family reunification procedures, in particular for the issuance of visas even in cases where the application for family reunification has been accepted, continue to hinder the effective exercise of the right to family reunification for refugees. In terms of housing, beneficiaries of international protection residing in accommodation facilities must leave the centres within 30 days after being granted international protection. Given the limited integration of recognised beneficiaries of international protection in Greece, this results in a high risk of homelessness and destitution.

For further information:

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AIDA 2021 Update: Poland

The updated AIDA Country Report on Poland provides a detailed overview on legislative and practice-related developments in asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2021.

Access to the Polish territory for asylum seekers was the most significant challenge related to asylum in 2021. While asylum seekers being denied entry has been a persistent problem for many years, the number of foreign nationals wanting to cross the Polish-Belarusian border increased significantly in mid-2021. In response, Poland militarized the border, prevented access to international protection procedure and blocked access to the border zone by introducing the emergency state. As a result, foreign nationals were left stranded at the border for months and those who managed to get through were pushed back to the Belarusian side. The situation quickly became a humanitarian crisis, with people found in the woods suffering from exhaustion and hypothermia. Approximately 21 persons were found dead by mid-December 2021. The situation at the Polish-Belarusian border gave rise to controversial legislative changes, which allow for an expulsion in a simplified procedure and restrict the possibility to apply for international protection for persons intercepted in the border area.

In 2021, a total of 7,698 applications for international protection were lodged, thus marking a significant increase compared to 2020, when only 2,803 applications were lodged, mostly due to the pandemic. The recognition rate at first instance increased significantly, with more than a half of applicants whose cases were examined in 2021 receiving refugee status or subsidiary protection. This was, however, significantly influenced by the evacuation of nearly 1,100 Afghans following the Taliban takeover of the country, who were later granted refugee status. The vast majority of applicants granted subsidiary protection were Belarusians. At second instance instead, the chances of success of appeals remained very low.

The number of reception centres decreased from 10 to 8 in 2021, and the number of asylum seekers living in private accommodations exceeded that of persons hosted in reception centres. The financial allowance provided to meet basic needs remained insufficient. The amount and quality of food served in the reception centres was heatedly debated due to the mushroom poisoning in the Dębak centre that led to death of two children. More complaints about the medical contractor providing health care to asylum seekers were submitted in 2021. Asylum seekers were included in COVID-19 vaccination program, but in practice they faced some obstacles in accessing it, to the point that only 511 asylum seekers were vaccinated in 2021.

Due to situation at the Polish-Belarusian border, two new detention centres were opened, and the number of available detention places increased significantly going from 959 in 2020 to 2,308 by the end of 2021. Detention of children without proper best interest assessment was a cause of particular concern throughout the year, when the total number of detained children reached 567. Another particular issue registered for what concerned detention was the lack of information provided to detained migrants regarding their right to legal assistance and to file an appeal.

Access to housing was one of the major issues reported both by asylum seekers and beneficiaries of international protection, some of whom were left homeless. In less extreme cases, inadequate quality of accommodation results in slowing down the integration process and negatively affected their physical and mental health. Beneficiaries of protection also faced significant problems regarding access to the labour market, often connected to their limited opportunities of learning the local language.

For further information:

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AIDA 2021 Update: Portugal

The updated AIDA Country Report on Portugal provides a detailed overview on legislative and practice-related developments in asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2021.

A total of 1,537 applications for international protection were registered in Portugal in 2021. While this reflected a return to pre-pandemic figures (in 2019, 1,849 applications were registered), a significant part of the total refers to persons evacuated from Afghanistan and admitted to Portugal (768) and persons relocated to the country (279). As such, the number of spontaneous applications remained comparatively low, which is likely still connected to the restrictions upon international travel linked to the coronavirus pandemic. The overall protection rate was of 42%, and the main countries of origin of applicants in 2021 were Afghanistan, Morocco and India. While all Afghan applicants were recognised refugee status, for the applicants of the other two most represented nationalities only rejection decisions were issued. The overall success rate of appeals at national level remained quite low, standing at 15.5% in 2021.

According to the information provided by UNHCR, 299 refugees were resettled to Portugal in the course of 2021. Out of these, 116 were resettled from Egypt, and 183 from Turkey. The majority of those resettled were Syrians, but nationals from Sudan, Somalia, Ethiopia and Iraq were also resettled to Portugal.

International protection applicants that presented their application at the border were in general granted access to the national territory, referred to the provision of reception conditions if needed, and their cases were not subject to the rules applicable to the border procedure, that was not applied throughout the year.

In terms of measures dedicated to vulnerable applicants, in addition to the existing general national referral mechanism for victims of trafficking in human beings, the national “Protocol for the definition of procedures aimed at the Prevention, Detection and Protection of (presumed) children victims of Trafficking in Human Beings – National Referral Mechanism” was launched in 2021. The new referral mechanism aims to establish specific procedures, to reinforce cooperation and communication among professionals and to ensure respect for the best interests of the child. One of the practical tools focus on identification at the border, explaining the referral and identification procedures together with relevant indicators. On the other hand, the lack of a national strategy dedicated to addressing the needs of asylum-seeking unaccompanied children and children reaching the majority of age while in the asylum procedure was a cause of concern.

Regarding legislative changes, the main piece of legislation of the structural reform of the Immigration and Borders Service (SEF) that provides for the reallocation of SEF’s competencies to existing or new entities, announced by the Government in 2020, was approved in November 2021.

In July 2021, the Portuguese Government adopted the National Plan to Combat Racism and Discrimination 2021-2025. The UN Working Group of Experts on People of African Descent held a press conference following its visit to Portugal in December 2021, where it showed concern with racial discrimination and with the respect for the human rights of people of African descent in the country.

For what concerned integration measures, it was noted that Portugal has not developed a structured plan for reception and integration of refugees, identified a number of coordination issues, and challenges faced by frontline service providers.

For further information:

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AIDA 2021 Update: Romania

The updated AIDA Country Report on Romania provides a detailed overview on legislative and practice-related developments in asylum procedures, reception conditions, detention of asylum seekers and content of international protection in 2021.

UNHCR Romania reported that 69,589 persons were prevented from entering the country from January to the end of November 2021, based on statistics received from IGI-DAI, correlated with statistics received from the Border Police. Asylum seekers frequently complained about ill treatment by Border Police/Gendarmerie officers at the border. Additionally, Romania continued to return persons to Serbia based on the readmission agreement. 475 migrants (mainly Afghan, Pakistani and Indian nationals) were returned to Serbia from the Arad detention centre and around 200 from the Otopeni detention centre.

Despite the significant constraints to the possibility of accessing the territory, the number of asylum seekers increased by 64.2% in 2021, with 9,591 asylum applications registered, compared to 6,158 in 2020. 1,551 unaccompanied children were registered in the country in 2021, compared to 980 in 2020. The number of asylum application assessed in accelerated procedures also increased throughout the year, reaching a total of 1,968. Asylum applications of Afghan nationals were also assessed in an accelerated procedure until the Taliban takeover in August 2021.

In 2021, 4,316 decisions were issued by IGI-DAI at first instance, almost doubling the number of decisions issued in 2020 (2,480). The overall recognition rate remained low at first instance, with only 26% of applicants being granted one form of international protection. Most notably, the rejection rate for Afghan applicants stood at 87.6%.

The hygienic conditions in reception centres continued to deteriorate in all facility except for Giurgiu, in part due to the high number of asylum seekers accommodated. Several stakeholders spoke of unclean centres, with worn equipment, furniture and bedding. However, renovation works started in Bucharest, in the Vasile Stolnicu regional centre and in Timisoara. Due to the renovations in Timisoara and the Vasile Stolnicu centre (Bucharest), the total capacity of the centres was reduced from 1,100 to 751 places. In order to increase the number of accommodation places in the regional centres, IGI aims to extend the accommodation capacity by 500 places in 3 centres, using AMIF funds, as follows: Timişoara and Rădăuţi would have an additional 100 places and Galaţi another 300 places. In addition, IGI-DAI took hold of a public building, administered by the Ministry of Foreign Affairs, to convert it to an accommodation centre for asylum seekers that will have a capacity of 500 places.

The capacity of the Arad detention centre is also to be increased: in May 2021, the authorities started the construction of another facility, with a capacity of 240 places of accommodation, a sports field and leisure spaces. The director stated that the construction works will be finalised in June-August 2022.

For further information:

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  • No Name Kitchen - SUPPORT PEOPLE ON THE MOVE IN PETRAS, crowd funding
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  • - Protect children on the move petition
  • Odysseus Network - Scholarships for Refugees 2022 campaign
  • Caritas – Syria Must Not Be Forgotten statement




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