Instrumentalisation of Migrants, Sanctions Tackling Hybrid Attacks and Schengen Reform in the Shadows of the Pact

As the “new” Pact on Migration and Asylum[1] remains deadlocked, the Commission’s last attempt to cope with the refugee and migration crisis at Europe’s borders is running on a twin track. On the one hand, this involves temporary measures pursuant to art. 78(3) TFEU to assist Poland, Lithuania and Latvia in managing the emergency at the Belarusian border.[2] On the other, it promotes a structural reform of the Schengen Border Code, which appears to be aimed at re-establishing mutual trust in intra-Schengen cooperation at the internal borders through a twofold approach: by ensuring the swift transfer of migrants apprehended at the internal borders while expanding Member States’ discretion to prolong internal border controls in response to persistent threats.[3] The cutting edge of the proposed reform is an emergency mechanism applicable in exceptional situations of “instrumentalisation of migrants” by third countries,[4] complemented by new measures to respond to epidemic situations.[5]

These proposals are coupled with the strengthening of sanctions against Belarus for its continued human rights abuses through the adoption of the fifth package of restrictive measures,[6] widening the number of targeted individuals and entities (including leading representatives of the Lukashenko regime). At the same time, the fifth package seems to pave the way for categorising the European response to the s.c. “instrumentalisation” under the Common Security and Defence Policy, thus completing the trend towards shifting to third countries the European responsibility for migration (mis)management by qualifying the border crisis as a “hybrid attack”.[7]

Overall, the Commission’s initiatives encompass a heterogeneous set of legal, operational and financial emergency measures, which are presented as an adaptation of EU migration policy to the changing migratory landscape of the European borders. However, their envisaged scope and interaction reveal a political attempt to redesign surreptitiously the entire governance of human mobility across and within European borders, promoting institutional changes based on a rising intergovernmentalism.[8]

In this rapidly evolving scenario, a series of pivotal and increasingly pressing questions comes to the fore, requiring more in-depth scholarly analysis.

Is the European response to the crisis at the Eastern European borders prompting a systemic paradigm shift? If so, what are the core features of the emerging regime from a legal, political and operational standpoint? How and to what extent will this emergency reaction impact the progress of the negotiations of the Pact?

Does the case law of the Luxembourg[9] and Strasbourg[10] Courts on the rule of law at the EU’s external borders represent the last bulwark before “border violence and deniability”[11] become the “new normal”?

Building on the contingent situation and on these key questions, the Special Focus aims to foster debate and to highlight the theoretical and practical implications of a crucial move towards the future of the Area of Freedom, Security and Justice. Therefore, it welcomes spontaneous contributions on a series of closely intertwined research trajectories, including the following:
i) the illustration and discussion of the proposed measures and the appraisal of their (potential) long-term impact on the basic premises of the Area of Freedom, Security and Justice, on the functioning of the internal and external dimensions of Schengen, as well as on the restoration of the Common European Asylum System;
ii) the assessment of the proposed measure in the broader context of the EU’s external action, having due regard (inter alia) to the use and rationale of EU sanctions for migration management purposes and to their impact on the overall consistency and effectiveness of EU foreign and neighbourhood policies;
iii) the analysis of the potential interaction between the proposed measures and the various texts composing the 2020 Pact on Migration and Asylum, notably the Regulation on Asylum and Migration Management (ex-Dublin Regulation),[12] the Regulation on Asylum and Return Procedures[13] and the Regulation addressing situations of Crisis and Force Majeure.[14] Contributions focusing on these aspects should address if and how the Commission’s recent initiatives may foster or further complicate the already troubled advancement of negotiations on the Pact;
iv) the interplay between the proposed measures and the enhanced role played by EU agencies at the external borders, especially in light of the recent investigations on Frontex’s involvement in illegal returns,[15] the transformation of EASO into the new European Union Asylum Agency[16] and the draft inter-institutional agreement reached by the co-legislators on Europol’s new mandate.[17]

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The deadline for the submission of an initial set of contributions – in the forms of Highlights or Insights – is 31 March 2022. However, in order to stimulate debate among academics and researchers, the Special Focus will be open to additional works even after the expiry of this deadline, provided that they focus on the challenges described above or on other topical issues connected to them.

Spontaneous contributions can be submitted to submission@europeanpapers.eu and must comply with the European Papers’ guidelines (available here). Please note that the European Forum is multilingual, receiving contributions in English, French, Italian and Spanish.

Daniela Vitiello, The Nansen Passport and the EU Temporary Protection Directive: Reflections on Solidarity, Mobility Rights and the Future of Asylum in Europe

Chiara Scissa, Misure emergenziali al confine tra UE e Bielorussia: uno scontro tra ‘titani’ con gravi ripercussioni per i migranti

Jean-Pierre Cassarino, An Unsettling Déjà-vu: The May 2021 Ceuta Events

Marcella Cometti, La “strumentalizzazione” delle persone migranti: la risposta dell’Unione europea e la reazione lituana a confronto. Un’occasione per riflettere (anche) sull’operato dell’agenzia dell’UE per l’asilo

Vasiliki Apatzidou, Schengen Reform: ‘Alternatives’ to Border Controls to Curb ‘Secondary Movements’

Marilù Porchia, Le deroghe alla direttiva rimpatri all’ombra del Patto: strumentalizzazione dei migranti e riforma del meccanismo di valutazione e monitoraggio di Schengen

Felix Peerboom, Protecting Borders or Individual Rights? A Comparative Due Process Rights Analysis of EU and Member State Responses to ‘Weaponised’ Migration