In a Communication announced in December by Executive Vice-President Henna Virkkunen, the European Commission gave the greenlight for Member States to conduct pushbacks on the EU’s borders and to adopt ‘exceptional measures’ that suspend or delay the registration of asylum applications.
Left MEP Estrella Galán (Sumar, Spain) said: “The Commission’s decision to grant Member States carte-blanche to suspend the right to asylum at borders under the pretext of ‘security’ threats reflects the growing influence of the far-right, which seeks to criminalise migrants and refugees, turning the right to asylum into a mere tool for control and exclusion.”
In this context, The Left group sent the following letter to Henna Virkunnen Executive Vice-President for Tech Sovereignty, Security and Democracy and Magnus Brunner Commissioner for Internal Affairs and Migration expressing deep concerns regarding the Communication from the Commission of 11th December 2024 on “Countering hybrid threats from the weaponisation of migration and strengthening security at the EU’s external borders” (“the Communication”):
We believe that this Communication provides a misleading guidance to Member States thereby endangering the safety of the vulnerable people seeking international protection in the EU, but also seriously undermining the integrity of the EU’s legislative process, its legal system and its values enshrined in Article 2 Treaty on European Union (“the TEU”). The adopted approach, based on a security-focused narrative, echoes far-right rhetoric that promotes a dehumanizing view of migrants and refugees. The Communication could be wrongly interpreted by Member States as giving a green light to measures that would lead to violation of individual fundamental rights, particularly in the area of international protection.
Firstly, the Commission’s Communication is presented at a time when the European Parliament has not yet taken a position on the Proposal for a “Regulation addressing situations of instrumentalisation in the field of migration and asylum”. Moreover, the Regulation on Crisis and Force Majeure adopted in May 2024, which sets the legal framework for invoking the concept of “instrumentalisation”, has not yet come into force, and moreover it does not allow the suspension of fundamental rights.
Through this Communication, the Commission is distorting the applicable EU and international laws and bypassing the existing procedures on law making. This Communication disregards the right of European lawmakers to engage in the necessary deliberations and debates before any guidance are made. It undermines the democratic process and circumvents the European Parliament’s role in shaping policies that impact the rights of individuals.
Secondly, we are particularly alarmed by the Commission’s misinterpretation of existing EU rules and obligations and its distorted reasoning that seems to signal through this Communication that Member States are allowed for the “serious interferences with fundamental rights such as the right to asylum and related guarantees subject to the requirements under the Charter” by invoking article 72 of the Treaty on Functioning of the European Union (“TFEU”). The following fallacies in legal reasoning are particularly worrying:
- The Commission invokes the Geneva Convention exceptions for non-refoulement but fails to underline that this exception may only be applied on an individual basis and not on a collective basis. Additionally, already existing EU asylum acquis, as well as newly adopted Migration Pact, incorporates these exceptions into the EU secondary law so there is no need to make any derogations from the applicable laws.1 The EU asylum acquis provides an adequate legislative framework within which a Member State’s legitimate concerns as to national security, public order and the protection of the community can be met in relation to an individual applicant for international protection. Therefore, under no circumstances is it acceptable to argue that Article 72 of the TFEU grants Member States carte blanche to ignore or disregard the principle of non-refoulement.
- The Commission clearly states that “Member States are being subjected to a hybrid attack by hostile States”, thus recognise that that a threat comes from the third countries and not individuals. Despite this, the Commission seems to disregard that and without any legal basis seems to allow a practice of punishing vulnerable individuals for the violations made by States.
- The Commission wrongly conclude that all fundamental rights can be suspended in an emergency time. To substantiate this conclusion, the Commission gives an example of the General Court’s judgment approving the limitation of the fundamental right to freedom of expression and information and putting it on an equal footing with the fundamental rights related to protection of life (Article 2 of the Charter of Fundamental Rights of the European Union (“EU Charter”) and Article 2 of the European Convention on Human Rights (“ECHR”)) or protection from inhumane and degrading treatment (Article 4 of the EU Charter and Article 3 of the ECHR). This logic is not substantiated by the applicable law and is simply wrong and misleading. The right to life and the prohibition of inhumane and degrading treatment belong to the so-called non-derogable fundamental rights.2 The right to asylum enshrined in Article 18 of the EU Charter and interdiction of collective expulsions at EU’s external borders are encored in the non-derogable rights stipulated in Articles 2 and 3 of the ECHR, as we well as in the principle of non-refoulement, which is enshrined in the 1951 Geneva Convention and Article 19 of the EU Charter and Article 4 Protocol 4 of the ECHR. Consequently, any attempt to suspend fundamental rights of individuals looking for international protection that may lead to their inhumane or degrading treatment (as a consequence of push back for example) or even death, under the pretext of general security threats, is unlawful. Such actions also risks exacerbating xenophobia and undermining social cohesion across Europe.
Taking above into account and the existing case law of the Court of Justice of the EU (“CJEU”), any suggestion that Member States could invoke Article 72 TFEU to justify suspending the right to international protection in the context of a “hybrid threat” must be approached with the utmost caution. The CJEU has repeatedly rejected the interpretation of this article as a toll to bypass EU asylum laws. The Commission’s current stance, based on law interpretation, appears to challenge established legal precedents thereby undermining the EU legal order. Despite this, the Communication clearly gives a political signal to Member States that the Commission will not act, should Member States temporarily stop fulfilling its legal obligations on the right to asylum and violate the principle of non-refoulement under the justification of “hybrid threats” related to the “instrumentalisation of migration”. This represents a dangerous shift towards prioritizing security over human rights.
We are equally concerned that the Communication was accompanied by the announcement by the Commission of an additional Border Management and Visa Instrument (BMVI) funding of €170 million to Estonia, Finland, Latvia, Lithuania and Poland to enhance border surveillance at the borders with Russia and Belarus while their national legislations are currently violating European and international law, and the principle of non-refoulement, putting at risk the non-derogable fundamental rights of individuals. We would like to remind the Commission that the Commission has the authority and an obligation to ensure that EU funds granted to a Member State are spent in compliance with fundamental rights and EU law, and to insist on safeguards to this end.
In light of these serious concerns, we request that the Commission:
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Withdraws its Communication issued on 11th December 2024 and play instead its role as Guardian of the Treaty to ensure that Member States abide by European and international law, by initiating infringement procedures to all Member States currently violating the EU asylum acquis.
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Obeys the Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission on Better Law-Making and respect ongoing legislative process by ensuring that the European Parliament can take a formal position on the proposed regulation concerning the instrumentalisation of migration, before making any decisions that could infringe further fundamental rights.
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Provides its legal analysis of the compatibility of existing legislation in Estonia, Finland, Latvia, Lithuania and Poland with EU and international law and make conditional BMVI’s funding to their compliance with fundamental rights and EU law.
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Ensures that EU migration and asylum law application are founded on the EU values like human dignity, the rule of law and respect for human rights, including the right to asylum,without yielding to political pressures that seek to punish migrants and refugees for security concerns caused by the States. “
Estrella Galán, MEP, The Left
Ilaria Salis, MEP, The Left
Pernando Barrena, MEP, The Left
Damien Carême, MEP, The Left
Isa Serra, MEP, The Left
Özlem Demirel, MEP, The Left
Kostas Arvanitis, MEP, The Left
João Oliveira, MEP, The Left
Gaetano Pedulla, MEP, The Left
Li Andersson, MEP, The Left
Per Clausen, MEP, The Left
Manon Aubry, MEP, The Left
Anthony Smith, MEP, The Left
Carola Rackete, MEP, The Left
Domenico Lucano, MEP, The Left
Sebastian Everding, MEP, The Left
Leïla Chaibi, MEP, The Left
Carolina Morace, MEP, The Left
Pasquale Tridico, MEP, The Left
Hanna Gedin, MEP, The Left
Giorgos Georgiou, MEP, The Left
Martin Schirdewan, MEP, The Left
Rima Hassan, MEP, The Left
Irene Montero, MEP, The Left
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