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EU ministers set to approve controversial border control powers on asylum cases

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EU ministers are set to introduce new rules allowing border control officials to prevent third-country nationals from crossing EU borders and applying for asylum in cases of so-called ‘instrumentalisation’, a diplomatic source told Euractiv.

The practice of governments opening their borders or encouraging migrants to cross into EU territory, known as ‘instrumentalisation’, has been used by the likes of Russia, Belarus and Morocco in recent years as a way to increase pressure on national border authorities.

“It seems now that instrumentalisation will not be a separate text but should be covered by the Crisis Management Regulation,” a diplomatic source told Euractiv.

The Crisis Management Regulation, which aims to deal with situations in which a large number of third-country nationals cross European borders in a short period of time, is currently under discussion by EU home affairs ministers and forms part of the proposed Migration and Asylum Pact.

The Pact, proposed by the European Commission in September 2020, is composed of ten legislative proposals which seek to revise and update the bloc’s migration policy.

According to the European Parliament’s position on the Crisis Management Regulation, adopted in April, the Commission would be responsible for deciding what constitutes a ‘crisis’ situation in a country. That would then trigger a solidarity clause for other EU countries who can decide how to help, for example, by providing money, equipment or offering their territory for migrant relocations.

In the context of crisis measures, EU ministers are now pushing to introduce an ‘exemption’ to normal processing of asylum claims for cases of ‘instrumentalisation’, Euractiv understands. This would apply when, for instance, countries like Belarus, Russia or Morocco encourage and/or facilitate third-country nationals from Africa or the Middle East to arrive in the EU through their countries.

The planned revision to the law would allow member states to give border guards the power to decide who can apply for asylum and who cannot.

It is not yet known how or according to whose authority cases would be classed as ‘instrumentalisations’.

In early 2022, Belarusian President Aleksandr Lukashenko opened Belarusian borders to a large number of third-country nationals from the Middle East and facilitated their transport to the country’s EU borders, a move which garnered significant international attention.

In June 2022, the Moroccan authorities opened the border with Spain, allowing a significant number of people to cross the border, in order to exert political pressure on Spain’s Prime Minister Pedro Sanchez over a separate foreign policy matter.

The instrumentalisation proposal has been criticised by civil society groups as according to international law, any third-country national can apply for international protection when trying to enter the EU territory. Any expulsion without an assessment of the individual application is considered an illegal push-back.

Different organisations and media in Europe have documented how push-backs of third-country nationals have become increasingly regular across the EU in recent years.

Tensions over the negotiations increased last week when the European Parliament’s migration working group decided to suspend trilogue talks on two key files of the pact (Eurodac and Screening) until EU ministers adopt a common position on the crisis management regulation.

The Parliament’s rapporteur on the crisis management file, Juan Fernando Lopez Aguilar, declared on Monday (25 September) that the parliament could block the whole pact if EU ministers continued to “cut it into pieces”.

According to the roadmap the EU institutions adopted in Autumn 2022, the files in the migration pact need to be approved before mid-February 2024.

If the EU did not manage to approve the pact before the end of the mandate, it would be the second time the institutions fail to approve and EU framework on migration.

[Edited by Benjamin Fox and Nathalie Weatherald]

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