Weaponisation of Migrants? Migrants as a (Political) Weapon and the EU Regulatory Response: What to Expect Now

State-sponsored mass migration can be a tremendously effective tool to destabilise a specific target country. The recent events at the Belarus-Polish border are only the most recent example of the so-called instrumentalisation of migration as an instrument of an aggressive foreign policy. The Belarus government pushed thousands of migrants from different countries, like Iraq, Afghanistan and Syria, towards the EU external borders (here for an analysis from an International Law perspective of such episodes). Ylva Johansson, the European Union Commissioner for Home Affairs, addressed Belarus’ actions as using human beings as instruments in an act of aggression. The European Commission described the sponsorship of migration flows as a form of hybrid warfare. President Von Der Leyen made the same accusations towards the Belarus government in her 2021 State of the Union Address. Following these statements, the regulatory response of the European Union was not long in coming.

The Instrumentalisation Regulation: what is it?

The European Commission recently released a regulation proposal (hereinafter the Instrumentalisation Regulation) to address situations of instrumentalization in the field of migration and asylum. This legislative effort aims to provide the Member States targeted by such state-sponsored mass migratory flows with adequate normative tools to act with the necessary grade of flexibility and tempestivity in an emergency context. The Instrumentalisation Regulation follows the amendments to the Schengen Border Code (SBC amendments) in a more complex reform plan of the legislative framework of border management  that is one of the pillars of the New Pact on Migration and Asylum legislative package. Recital 1 of the Instrumentalisation Regulation recalls SBC amendments to define state-sponsored mass migration phenomena. More specifically, the instrumentalisation of migration occurs when non-EU countries instigate migratory flows towards the external borders of the European Union to unsettle the Union or a Member State. The nature of such actions should be capable to endanger essential State functions, including territorial integrity and the rule of law system. The Instrumentalisation Regulations introduces the possibility for the EU Member States targeted of state-sponsored mass migration flows to exercise wide derogations from the existing legal framework in the field of asylum and migration management (more specifically, the proposed recast of the Return Directive, the Reception Conditions Directive and the proposal for a Regulation addressing Asylum Procedures). According to the Instrumentalisation Regulation, the Council can adopt an implementing decision to allow the Member States facing a situation of crisis due to third state-sponsored migratory flows to apply emergency measures. More precisely, targeted States can take advantage of the possibility to register asylum applications received only at specific border points. They can thus limit the flow of people arriving by reducing the number of such checkpoints. In addition to that, the Instrumentalisation Regulation allows the concerned Member States to extend up to four weeks the deadline for registering applications for international protection from individuals found in the proximity of their external borders. Such countries can also adopt the so-called border procedure (not authorizing entry to the territory) in assessing almost all the individual asylum applications.

The EU regulatory response to state-sponsored migratory flows and (un)compliance matters with the Rule of Law

The proposed Instrumentalisation Regulation raises several legal concerns in terms of compliance with the Rule of Law system (here for a detailed legal analysis of the normative proposal. This contribution takes up only some of the insights from that analysis). The normalisation of derogations from the current EU migration and asylum legislative framework could undermine the fundamental rights safeguards for migrants, refugees and asylum seekers. Moreover, this exemption regime is hardly compliant with the principles of necessity, proportionality and efficiency. The state of emergency becomes a daily reality that justifies the breakdown of the Rule of Law and its safeguards. The normative definition of instrumentalisation of migration is broad and includes terms unclear from a legal perspective. More specifically, the normative text addresses actions describing the intentions of third States to unsettle the European Union. However, there aren’t any indications about how EU institutions and the Member States should evaluate such determinations. Moreover, the Regulation specifies that state-sponsored mass migrations put at risk nation functions and prerogatives, like territorial integrity. Despite this clarification, the text does not specify the criteria for indicating how these functionalities could be endangered. In particular, Member States can exercise a wide margin of discretion in requesting their exemption from EU asylum and migration rules.  Very different situations may therefore fall under the notion of state-sponsored migratory phenomena. The standardisation of derogatory regimes would lead to a jeopardized application of EU law and, therefore, a lack of protection of the fundamental rights of migrants, refugees and asylum seekers. The draft Regulation also specifies that these derogations apply to migrants moving in the context of sponsored migration and found in the vicinity of the external borders of the Member States. The possibility for the Member States to extend the border procedure to individuals who have arrived in the context of instrumentalised migration also raises many concerns. During such procedures, persons concerned cannot move freely and are “hold” at the border: there is an ongoing debate about their legal status in such situations. According to recent rulings of the Court of Justice of the European Union (here and here), migration containment at transit zones cannot be qualified as detention. However, the European Court of Human Rights takes a different view. Qualifying the containment of migrants at borders during procedures for assessing their applications for protection as detention means guaranteeing them relevant fundamental rights, primarily those relating to habeas corpus. Thus, the increasingly wide application of the so-called border procedure could seriously undermine the fundamental rights of migrants, refugees and asylum seekers allegedly involved in state-sponsored migration flows. The draft Regulation features a wide margin of discretion in its application and a substantial lack of clarity in its main definitions, such as instrumentalisation of migration. This approach may cause different standards of protection and an uneven application of fundamental rights safeguards according to the legal status of persons involved. More specifically, refugees and asylum seekers can benefit from the protection granted by the Refugee Convention and the relevant standards of International Human Rights Law. Those who do not fall into these legal categories would therefore not have almost any other protection but the applicable rules of EU law. The Instrumentalisation Regulation would therefore exploit these different legal statuses that may cause divergent, and not based on factual circumstances, outcomes for the migration applications of third-country nationals.

Role and responsibilities of EU agencies in addressing instrumentalization of migration phenomena

The Instrumentalisation Regulation does not alter the administrative mandate of EU agencies operating in migration management, likewise the New Pact on Migration and Asylum. This regulatory silence does not describe the current reality, where agencies such as Frontex (European Border and Coast Guard Agency) and EASO (European Support Asylum Office) play a crucial role in the implementation and monitoring of EU migration policies. This lack of a clear accountability framework regarding the operation of EU agents could raise legal uncertainties regarding their duties in migration management. According to the Explanatory Memorandum attached to the Asylum Procedures Regulation proposal, EASO and Frontex can provide operational support in the implementation of border procedures. In addition, the same document explains that Frontex can provide operational support in organising returns. However, neither the Instrumentalisation Regulation nor the SBC amendments describe the role and responsibilities of EU agencies in managing state-sponsored mass migration phenomena. As an example, Frontex has the technological capabilities to collect the necessary information to help involved States address similar emergencies. EU agencies’ timely interventions could help the Member States to manage migrations without activating derogations provided by the Instrumentalisation Regulation and thus saving fundamental rights safeguards for migrants, refugees and asylum seekers.

Political implications of the Instrumentalisation Regulation and future outcomes

The proposed Instrumentalisation Regulation raises many questions about future EU migration policies and their compatibility with fundamental rights and the Rule of Law system. The description of migrants as weapons for destabilizing the established order and national security contributes to their substantial dehumanisation. According to this legislative proposal, EU migration policies find their basis on a securitarian perspective that address migrants, refugees and asylum seekers as potential threats for national security and public order. This approach may paradoxically fuel initiatives to instrumentalise migration flows by third states that see the particular sensitivity (and perhaps inability) of the EU to respond efficiently to mass migration phenomena. The broad derogatory regime granted by the proposed Instrumentality Regulation leaves a wide margin of discretion to the Member States in managing migration events. Politicians may decide to apply such emergency measures not because they are necessary but to pursue their political convictions, endangering the solidarity principle in the migration management. The migratory emergency that is likely to follow the Russian-Ukrainian crisis will be a good test in this respect to see whether the EU will actually see migrants as human beings and not as threats. A valid response should see the principle of solidarity prevail in order to provide a uniform response that guarantees respect for the fundamental rights of migrants throughout the European territory. As far as state-sponsored migrations are concerned, a taxative definition of this phenomenon is, therefore, suggested to minimise the margin of discretion. The derogatory regime should also be strictly justified, and the EU should constantly monitor its application and continued necessity.