Producing more Morias across Europe? Questioning the Commission’s vision for border procedures

When the refugee camp in Moria went up in flames on 8 September 2020, just before the European Commission presented its New Pact on Migration and Asylum, this appeared to be a day of reckoning for EU asylum policy.

It was a foretold disaster: If the inhuman conditions for the asylum seekers held at the Greek hotspots were difficult to ignore previously, the horrific images of this day and its aftermath have made it impossible to overlook the fact that, with Moria, the EU asylum policy too was on fire.  

The response by the European Commission followed promptly as Vice-President Schinas stated that ‘Moria is here to remind Europe that we need to change’, and that with the new EU Pact on Migration and Asylum, ‘we want to put an end to this unacceptable situation’.

However, the Commission’s legislative reform proposals, presented only two weeks later, on 23 September 2020, point in the opposite direction.

Rather than putting an end to the hotspot concept, the Commission proposal comes down to rolling it out to all EU Member States – in the form of mandatory border procedures during which asylum seekers are to be ‘kept’ in ‘locations’, ‘at or in proximity to the external border or transit zones’.

It is clear that, as civil society organisations have argued, the European Commission’s vision for border procedures ‘risks to foster the model of large hosting centers, especially in countries tasked with controlling the external borders of the European Union’. Although the proposed Asylum Procedures Regulation, as amended in September 2020, does not prescribe closed asylum centres, it makes the use of area-based restrictions mandatory – without outlining concrete measures as to how this is to be achieved.

Not accepting large closed centres at the external borders, warn Southern European countries

The line between detention in closed asylum centres and area-based restrictions in semi-carceral spaces is blurred. The distinction between deprivation of liberty amounting to detention and restrictions on movement which do not is one of degree rather than substance.

The Commission proposal relies on the grey area that lies in the question of “degree”.

This has led Greece, Spain, Malta, and Italy to warn in a leaked joint comment on the proposal that:

‘although the Commission’s proposal does not explicitly include this possibility, we need to be sure that the final regulation of procedures at the border does not pave the way to undesirable effects. Setting-up large closed centers at the external borders is not acceptable. The management of asylum must fully respect Human Rights and the rights of asylum-seekers, which are to be reflected in the regulation of the relevant procedures.’

Indeed, it has previously been shown that under the current legislation, border procedures almost always involve detention. The proposal does not require detention, but does not preclude it either. It is set up in such a way as to enable Member States to detain asylum seekers during border procedures.

The relevant provisions that provide for the possibility of detention are constructed around preventing ‘unauthorised entry’, without requiring particular reasons specific to the individual, such as a likelihood of absconding or a risk of acts against national security.

The Commission washes its hands of Human Rights violations

As I have argued elsewhere, the automatic use of detention during border procedures is contrary to legal obligations from universal Human Rights law. In that sense, the Commission washes its hands in innocence and refers to counterfactual expectations of an implementation by EU Member States in accordance with fundamental and human rights.

Therefore, it is to be expected that Member States would regularly claim that the measures they impose are not detention. And it is at least conceivable that the measures that Member States adopt in that regard in fact do not amount to detention.

Member States and/or the EU seem to assume that restriction on the liberty of movement of migrants, and asylum-seekers specifically, are unproblematic once it is established that they do not amount to detention in the technical-legal sense. This could be an unintended effect of the discussions surrounding so-called alternatives to detention.

The crucial difference is that alternatives to detention are always a milder means in situations where a person could otherwise be detained.

Area-based restrictions, however, explicitly apply when there is no ground for detention. They represent an interference with Human Rights in their own right and must be justified as such.

In contrast, the Commission proposal makes a blanket use of area-based restrictions mandatory for border procedures without providing for an individual decision with a proportionality test for the imposition of such restrictions. As the REMAP study shows, this is also contrary to Human Rights law.

EC’s challenge: reconciling Member States’ diverging interests while preserving Human Rights

The situation is confounded further by the fact that area-based measures can de facto amount to detention even if they are not labelled as such – in which case they would regularly be unlawful for failing to be in line with material and procedural standards.

The difficulty that arises is this: the question of de facto detention would have to be determined in lengthy proceedings for each specific place and person.

This happened most recently, and with conflicting and partly controversial outcomes, regarding the Hungarian transit zones. Here, the European Court of Human Rights held that the fact that asylum seekers could – physically, if not legally – re-enter Serbia by walking back across the border meant that accommodation in transit zones did not amount to detention, a view not shared by the Court of Justice of the European Union.

It is therefore important to highlight that whether or not they would come down to ‘closed’ centres, the blanket use of measures to ‘keep’ asylum seekers on the fringes of EU territory during border procedures is in violation of their Human Rights.

In its reform efforts for a more well-managed and effective migration policy, the European Commission is faced with the difficult task of reconciling diverging interests of EU Member States with legal obligations under Human Rights law. The latter has recently been highlighted by the LIBE Committee.

As it currently stands, it appears that rather than representing change, and putting an end to unacceptable situations such as that on the Greek islands, the Commission’s proposal risks producing more Morias across Europe. As the proposal undergoes the legislative process, it is for the co-legislators to ensure that the EU legislation complies with all the EU’s obligations under Human Rights law.