Proposal for a Regulation on situations of instrumentalisation in the field of migration and asylum

In “Promoting our European Way of Life”

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A highly worrying phenomenon observed is the increasing role of State actors in artificially creating and facilitating irregular migration, using migratory flows as a tool for political purposes, to destabilise the European Union and its Member States.

As a response to the instrumentalisation of people by the Belarusian regime, the European Council Conclusions of 21 and 22 October 2021 underlined that the EU would not accept of any attempt by third countries to instrumentalise migrants for political purposes.

On 23 November 2021, the Commission, jointly with the High Representative of the Union for Foreign Affairs and Security Policy, adopted a Communication summarising the measures taken to address the immediate situation as well as additional ones underway to create a more permanent toolbox to address future attempts to destabilise the EU through the instrumentalisation of migrants. It had already raised the phenomenon in the renewed EU action plan against migrant smuggling (2021-2025).

On 1 December 2021, as part of these measures, the Commission adopted a proposal for a Council Decision based on Article 78(3) of the Treaty on the Functioning of the European Union (TFEU) aimed at supporting Latvia, Lithuania and Poland by providing for the measures and operational support needed to manage in an orderly and dignified manner the arrival of persons being instrumentalised by Belarus, in full respect of fundamental rights.

Accompanying the proposal for an amendment of the Schengen Borders Code, this proposal addresses the instrumentalisation situation from the migration, asylum and return perspective4 . The objective of this proposal is to support the Member State facing a situation of instrumentalisation of migrants by setting up a specific emergency migration and asylum management procedure, and, where necessary, providing for support and solidarity measures to manage in an orderly, humane and dignified manner the arrival of persons having been instrumentalised by a third country, with full respect for fundamental rights.

The proposed options complement and reinforce the proposals under the New Pact on Migration and Asylum. Therefore, the specific rules introduced in this proposal for a permanent framework are based on and should be consistent with the Commission proposals that form the basis of the future EU migration and asylum policy.

This proposal sets up an emergency migration and asylum management procedure in relation to third-country nationals and stateless persons apprehended or found in the proximity of the border with a third country instrumentalising migrants after an unauthorised crossing or after having presented themselves at border crossing points.

The main features of this procedure are as follows:

  • Possibility for the Member State concerned to register an asylum application and offer the possibility for its effective lodging only at specific registration points located in the proximity of the border including the border crossing points designated for that purpose
  • Possibility to extend the registration deadline to up to four weeks
  • Possibility to apply the asylum border procedure to all applications and possibility to extend its duration

In the Council, work is ongoing at the Working Party level. A progress report was presented to the Justice and Home Affairs Council on 8-9 December 2022.

In the European Parliament, the file is assigned to the Committee on Civil Liberties, Justice and Home Affairs, where Patryk Jaki (ECR/PL) has been appointed rapporteur. He presented his draft report on 11 September 2023, due to be voted in the committee on 4 December 2023.

References to instrumentalisation were proposed to be included also in the revision of the Schengen Borders Code.  The rapporteur of that file in the Parliament, Sylvie Guillaume (S&D, France) presented a draft report on 8 November 2022, where she proposed to remove from the text provisions related to instrumentalisation of migrants arguing that these have ‘limited relevance for the rules governing the good functioning of the Schengen area’ and that the issue is already dealt with in another proposal."

The Commission, in its Communication from 12 January 2023 invited Parliament and Council to examine the crisis and force majeure proposal alongside the proposed Regulation to address situations of instrumentalisation in the field of migration, as both 'would end the need to resort to ad hoc measures'.

On 16 June 2023, the Council examined the Crisis and Force Majeure regulation, which will also include provisions for responding to situations of instrumentalisation.

On 4 October 2023, during a meeting of the Council's permanent representatives committee, a negotiating mandate was reached on the Crisis and Force Majeure regulation, including in situations of instrumentalisation.

Work on this topic continues within the negotiation on the Crisis and Force Majeure regulation. Negotiators from the European Parliament and the Council met at a trilogue meetings in November and December 2023 and reached a political agreement on the crisis and force majeure regulation on 20 December 2023. On 8 February 2024, the Council approved the provisional agreement of 20 December 2023. On 14 February 2024, the LIBE committee of the Parliament approved the provisional agreement. The Parliament plenary adopted the text on 10 April 2024 with 301 votes in favour, 272 against and 46 abstentions. The Council adopted the act on 14 May 2024. The final act was published in the Official Journal on 22 May 2024. It will apply from 1 July 2026.


Author: Anita Orav, Members' Research Service,

Visit the European Parliament homepage on Migration.

As of 20/06/2024.