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In December 2021, the European Commission presented a proposal for a regulation addressing situations of instrumentalisation in the field of migration and asylum. The proposal introduces a mechanism which allows member states to derogate from their responsibilities under EU asylum law in situations of “instrumentalisation” of migration. The mechanism is permanently available to members who can invoke it in multiple situations, essentially enabling them to derogate at will from their obligations.
The IRC along with several other NGOs strongly oppose the introduction and use of the concept of instrumentalisation and its codification in EU law. The IRC believes the proposal would lead to heightened humanitarian needs at Europe’s borders and cause significant harm to the wellbeing, mental health, and ability to access lifesaving assistance for people on the move.
There is also the risk that these reforms will undermine respect for EU law as a whole. Introducing a model based on allowing derogations at will in a wide range of circumstances (most of the situations at the EU’s borders), may set a precedent, especially when rule of law is facing challenges across Europe. There is no evidence that regulating for derogations will encourage better implementation or compliance with EU asylum law in general.
Finally, a legal framework that allows countries to reduce standards for the treatment of people seeking asylum and refugees when instrumentalisation is involved (a very common occurrence) is likely to be replicated elsewhere in the world, thus undermining the global protection system.
Member states with an interest in the improvement of the Common European Asylum System (CEAS) should focus on agreeing on reforms that support asylum systems to function effectively, and that protect rights, increase compliance and contribute to trust among members in this conflictual policy area. An agreement on the proposed Instrumentalisation Regulation has the opposite effect and dismantles asylum in Europe, by allowing countries to opt in and out of the CEAS.
