Introduction

On April 10, 2024, the European Parliament approved the New Pact on Migration and Asylum (“the Pact”) which aims to overhaul the European Union’s (“EU”) rules on migration and asylum. Though the Pact has been hailed as a “historic, indispensable step”, it goes without saying that the Pact raises significant concerns regarding the future of human rights, signifying dark and gloomy times ahead for those seeking refuge in the EU. 

The Pact seeks to regulate, harmonize, and coordinate Member States’ management of irregular arrivals. It is framed by the EU to establish solidarity and responsibility-sharing among the Member States to ensure that the States do not have an undue burden due to the influx of refugees, particularly the bordering States. The asylum and migration management regulation replaces the current Dublin regulation with the aim to streamline the rules and shorten the time limits.

This blogpost shall proceed as follows: first, it will examine the legal obligations incumbent on the EU Member States to protect refugees fleeing to protect themselves. Second, it will provide context for the development of the Pact, accentuating its underlying intent. Finally, this post will unveil the inherent deficiencies of this ostensibly acceptable Pact, focusing on the screening procedures, and the persistence of the ‘safe third country’ provision in the Pact – both of which violate the human rights of refugees. While the first two sections shall be addressed hereinbelow, the final section will be addressed in Part II of this post.

Why EU should protect refugees and provide them with a haven?

International migration law works on a rights-based approach, and growing voices suggest that the EU Migration Pact waters down the human rights acquis. The question here arises as to why the EU has an obligation to shelter the refugees seeking a haven from the harsh realities of their persecuting nation.

Firstly, under the European Convention on Human Rights (“ECHR”), Article 3 prohibits torture and inhuman, or degrading treatment. The principle of non-refoulement prohibits States from transferring individuals from their respective jurisdiction when they are at substantial risk of irreparable harm, including torture, inhuman or degrading treatment or other human rights violation, upon their return. Although this has not been explicitly mentioned in the ECHR, it has been read into Article 3 of the ECHR through judicial interpretation. In Soering v The United Kingdom, the European Court of Human Rights (“ECtHR”) ruled that the contracting parties to the ECHR have to abide by Article 3 before expelling individuals who are at the risk of “torture, inhuman and degrading treatment.” This formed a crucial link between Article 3 and non-refoulement.

Under the 1951 Refugee Convention, Article 32 ensures fair legal treatment of refugees in cases of expulsion while Article 33 embodies the non-refoulement principle which is considered the touchstone of international refugee law. In Chahal v. United Kingdom, the ECtHR affirmed the absolute nature of Article 3 of the ECHR and held that this protection even surpasses the safeguards provided by Articles 32 and 33 of the Refugee Convention. Professor Cassese notes that the adoption of “effective interpretation” by the ECHR widened the scope of Article 3. This turned it into a refugee-safeguarding provision and embedded the principle of non-refoulement into the ECHR framework.

Secondly, though refugees do not possess a right to asylum under international law, the EU Charter of Fundamental Rights guarantees the right to asylum under Article 18. Article 6(2) of the Treaty on European Union, as amended by the Treaty of Lisbon, places a legal obligation on the Union to accede to the ECHR as well as the EU Charter of Fundamental Rights.

In conclusion, the obligation of the EU towards refugees is rooted in international as well as regional legal frameworks. Ergo, the EU cannot sidetrack the concerns owing to the above-stated fundamental obligations.

The Political Backdrop and Development of the Pact

Before venturing into the criticism of the Pact, it is essential to understand the historical account and the recent circumstances that led to the making of the Pact.

The development of a Common European Asylum System (“CEAS”) is closely linked to the establishment of a single market without borders. The need to control the external borders became pertinent and led to securitised policies towards the entry of non-citizens through external borders.

Article 63(2) of the 1997 Treaty of Amsterdam posed an obligation on the Member States to adopt ‘measures on refugees’ who cannot return to their “country of origin” and need international protection. The Dublin Regulation, the predecessor of the Pact, introduced a mechanism that distributed responsibility for processing asylum claims among the Member States. The system allocated responsibility in such a manner that only one Member State would be responsible for examining asylum claims lodged anywhere in the EU.

In 2015-16, Europe witnessed the largest inflow of refugees, amounting to over 1.6 million arrivals, also referred to as the ‘European refugee crisis’. The crisis highlighted the dysfunctionalities of CEAS and pushed the EU to restructure its existing mechanism. Thus, after a decade of deliberation, the EU formulated the Pact regarding migration and asylum.

The article will focus on two facets of the Pact: firstly, it will analyse the ‘screening procedures’ of refugees at external borders and then, it will examine the ‘safe third country’ provision, which, though already in use, finds continuation in the Pact. While the Pact raises several issues, the focus will be placed on these two facets in this blog post. This will aim to highlight the paradox: despite the EU’s claims of the human rights-based approach taken in the Pact’s making, the Pact builds new barriers for refugees from entering the borders.

Screening Procedures at External Borders

The Pact introduces new asylum procedures to fasten the assessment of asylum claims. The Asylum Procedure Regulation introduces the three-stage border processes. It begins with a mandatory ‘screening procedure’ for applicants to assess the admissibility of applications. The screening procedure involves preliminary health and vulnerability checks, and at this stage, the biometric data of individuals are registered.

After the completion of the screening procedures, two scenarios await the refuge-seekers. Those with a high chance of receiving asylum are shifted to standard asylum procedures while those from countries with ‘low asylum recognition’ will undergo ‘border procedure’. The border procedure is an exceptional asylum procedure that is estimated to last about 12 weeks. It involves derogations from standard rights and safeguards such as limited entry to the territory, restrictions on freedom of movement, and reduced right to an effective remedy. If the application is rejected, the individual goes through the ‘return border procedure’.

The EU proposed the screening procedure to enhance border security and streamline the entry processes. Additionally, the screening, as stated by the EU, ensures a targeted approach which will in turn allow a better allocation of resources. The three-stage procedure aims to reduce ambiguity in managing arrivals and address security and vulnerability concerns.

The given section will focus on the screening procedures at external borders as provided under the Pact and argues that firstly, they undermine individualised assessments of refugee application due to overt reliance on technology. Secondly, the mechanism is structured in a fashion that violates the privacy of migrants.

Overt Reliance on Technology and its Ramifications

The Pact aims to make the assessment of applications much easier by introducing systems to collect and share migrant biometric data. The asylum seekers may be returned merely by checking the based on the database checks, without individual inspection. The decision will be taken by relying on databases to ensure a speedy identification of applicants.

The screening procedure includes a requirement for personal and biometric data of individuals entering the EU, which will be cross-checked against immigration databases as well as those operated by Europol and Interpol. The EURODAC is a fingerprint database of the EU that is used to monitor irregular immigrants and refugees and is used to track their movement in the Schengen area. Additionally, the database will be upgraded to include facial images.

The biometric databases will be used for swift decision-making; however, this undermines the core principle of individualised assessment in refugee status determination (“RSD”). As pointed out by Prof. BS Chimni, reliance on technology strips away the requisite human judgment which is needed for a contextual understanding of the refugee claims. The complexity of the “well-founded fear” standard cannot be adequately assessed by technology alone.

The screening procedure is time-bound, requiring completion within 7 days at the external border and 3 days within the territory. This expedited screening procedure is problematic as reliance is placed on group characteristics rather than individual assessment. For instance, asylum seekers from countries with low recognition rates may be subjected to broader procedures where their individual circumstances are not given due recognition. In such a case, their group characteristics, such as nationality, determine the validity of their asylum claim. RSD is not based on a certain objective test; rather, it combines both objective and subjective tests. This increases the risk of exclusion errors, thereby, increasing the vulnerability of asylum seekers.

More importantly, the technological systems often reflect the biases and assumptions of their developers. This occurs because they cannot effectively eliminate irrelevant considerations introduced by the developers. This allows inaccuracies to creep into the assessment of applications due to the present unconscious bias embedded in the algorithms. Therefore, the inherent limitation of machines paves the way for discriminatory practices referred to as “algorithmic racism”.

Thus, the replacement of human decision-making with technology in pursuit of efficiency becomes counterproductive due to the significant costs it imposes on humanity. It eliminates the critical human judgment necessary for subjective evaluation and is further undermined by algorithmic bias.

Violation of Privacy

The screening procedure permits the collection of biometric data of asylum seekers, regardless of whether they are convicted of a crime under Article 14 of Screening Regulations. This raises critical questions about necessity and non-discrimination.

In S & Marper v United Kingdom, the ECtHR noted the limitations in the collection of biometrical data. The court ruled that the plaintiffs were subjected to discriminatory treatment and ‘disproportionate restriction on their right to privacy’, since mere suspects cannot be subjected to the collection of biometric data that can affect their private lives. In this case, the biometric data of two applicants were collected as criminal charges were pressed against them but were later acquitted. This highlights the disparity in how immigrants are treated compared to nationals.  While in the above-mentioned case, the applicants were the citizens of an EU State, the asylum seekers, who are not, were subjected to a lower standard of right to privacy, and viewed as individuals posing a risk to society.

Immigration databases, including the EURODAC, were initially introduced to facilitate the EU asylum policy, however, with time, their scope of operations has been expanded. Their core purpose was administrative but are now used to fight irregular migration and identify illegal stays. Besters and Brown describe this as “function creep” where a system designed for one purpose is repurposed to serve unrelated functions. This undermines the “purpose limitation principle” which states that digitally stored data should be used for “specified, explicit and legitimate purposes”. The principle forms the cornerstone of data protection law. It is included in Article 5(b) of the General Data Protection Regulation, 2016 which sets out that personal data should be acquired for “specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes”. This shift in objectives and increasing accessibility of databases, as Benedita argues, is a violation of the purpose limitation principle.

Further, the screening procedures allow the collection of more data from third-country nationals, including passports, other such travel documents, and alphanumerical data to assess the truthfulness of their claims. Beyond this, certain countries including Belgium, have adopted laws allowing access to personal devices of applicants. Such devices of immigrants have been routinely accessed by the authorities in several EU Member States, including Denmark, Sweden, Germany, and the Netherlands. It is pertinent to note that in 2023 German Federal Administrative Court ruled that the practice of analysing mobile phones and other such data carriers by officials while registering asylum applicants is illegal. The practice was held violative of Article 8 of ECHR which protects the right to privacy from unlawful intervention by public authorities. Despite the rulings, the invasive practice continues unabated in EU countries during the screening procedures.

In addition to the violation of privacy, the use of the personal data of migrants jeopardizes the principle of fairness – which necessitates that personal data is used by the authorities only to the extent that one would ‘reasonably expect’, and not to have ‘unjustified adverse effects’. The regulation allows for a significant number of state officials to access unhindered personal data without consideration of its nexus with illegal activities.

As discussed, the screening procedures are a blatant attack on the right of privacy of refugee seekers, especially since it is conducted on a mere assumption of irregular entry. The said invasion takes place for a conduct which is administrative in nature and not a criminal one. The procedures do not consider migrants as legal subjects with rights but rather as dangerous and untrustworthy individuals, disregarding their dignity and rights. With that being said, it must be noted that the screening procedures are not the only worrisome provisions of the Pact. Part II of this blogpost will delve into the Safe Third Country (STC) provision of the Pact and elucidate how it acts as a substantial entry deterrent to refugees.

Click here to read Part II.

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Srishti Gaur is a second-year law student at National Law University, Delhi.

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Picture Credit: Hoping To Survive, by Razieh Gholami, from Afghanistan, painted in 2019.