EU-Belarus border: Will EU temporary measures be implemented?

EU-Belarus border: Will EU temporary measures be implemented?
EU-Belarus border, Credit: UNDP

The European Commission announced yesterday that it is putting forward a set of temporary asylum and return measures to assist Latvia, Lithuania and Poland in addressing the emergency situation at the EU’s external border with Belarus.

The measures are expected to allow these member states to set up swift and orderly processes to manage the situation, in full respect of fundamental rights and international obligations, including the principle of non-refoulement.

According to the proposal, the three member states will have the possibility to extend the registration period for asylum applications to 4 weeks, instead of the current 3 to 10 days. The member states may also apply the asylum procedure at the border to process all asylum claims, including the appeal, within a maximum of 16 weeks.

Basic material reception conditions will also be improved in asylum centres and temporary shelters adapted to the winter weather conditions.

The measures are based on based on Article 78(3) of the Treaty on the Functioning of the European Union. They will enter into force after their adoption by the Council and remain in force for a period of 6 months. The European Parliament, where critical voices have already been heard, will be consulted.

Article 78(3) reads that, “In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.”

A main feature in the Commission proposal is that it gives the three member states the possibility to register an asylum application and offer the possibility for effective lodging at specific registration points located at the vicinity of the border including the border crossing points designated for that purpose.

“This would allow a more orderly management of the flows and is also in accordance with the possibilities already offered by the Asylum Procedures Directive,” according to the proposal.

At a press briefing on Wednesday (1 December), Vice-President for Promoting our European Way of Life, Margaritis Schinas, and the Commissioner for Home Affairs, Ylva Johansson, underlined that the Commission had been asked by both the European Council and the countries concerned to propose a temporary solution to address the emergency situation at the EU’s external border with Belarus.

For the time being, however, the Commission does not know if Poland, the country which until now has denied EU access to its border region and rejected support from Frontex, will comply with the proposal. Commissioner Johansson repeated at the press briefing that she expects that the Council and the three member states will accept the proposal.

Why did the Commission not clarify in advance with Poland – the country most in need of this proposal – if it will accept it and implement it?

A Commission spokesperson told The Brussels Times that it would not be appropriate to comment on the contacts with Poland but assured that the Commission is consulting with all three countries about its proposal. Poland which has enacted its own emergency measures, effectively banning migrants to apply for asylum, has apparently not yet informed the Commission if it will accept the Commission proposal.

In the past months, the Commission assured journalists that it was assessing whether the Polish legislation was compliant with EU and international law. The outcome of that analysis is not yet known and the new proposal can perhaps be seen as an indirect response. Commissioner Johansson said that the proposal will also reply retroactively for migrants staying in limbo in EU member states.

Asked about the Polish closure of the border region for EU officials, humanitarian organisations and journalists, she indirectly criticised Poland for its policy. “Transparency and access to the border is of utmost importance.”

Figures about the number of irregular migrants at the border have been uncertain and only estimates were given by the Commission. The proposal specifies for the first-time exact figures.  In 2021 as of 21 November, 7 831 third country nationals have entered the territories of Latvia, Lithuania and Poland from Belarus in an unauthorised manner, compared to 257 in the entire 2020.

In addition, there have been 2 676 asylum applications in Lithuania, 579 applications in Latvia and 6 730 applications in Poland. The latter figure is surprising considering reported pushback and the difficulties for migrants to enter Poland and file applications.

In addition, 42 741 attempts to cross have been prevented by the three Member States. “While an exact estimate would be difficult to give, up to 10 000 more migrants may be currently stranded in Belarus with further arrivals on a daily basis.”

Why did it take the Commission more than a month to propose the activating of the emergency clause in the treaty?

To address the situation at EU’s border with Belarus, the European Council invited the Commission at its summit on 21 and 22 October to “propose any necessary changes to the EU’s legal framework and concrete measures underpinned by adequate financial support to ensure an immediate and appropriate response in line with EU law and international obligations, including the respect for fundamental rights”.

The Commission chief spokesperson explained that even if the proposal was a matter of secondary legislation, it still required time to finalise and ensure that it was anchored in EU law.

In fact, the measures appear to be very much based on the Commission’s Pact on Asylum and Migration which has not yet been adopted by the Council.

Proof of EU solidarity

“In the past weeks, we have managed to bring the EU’s collective weight to bear in face of the hybrid attack directed at our Union, Vice-President Schinas said when he presented the Commission proposal (1 December).  Collectively, the EU made clear that attempts to undermine our Union will only solidify our solidarity with one another.”

Commissioner Johansson added: “Although the EU’s intense efforts have brought rapid results, the situation remains delicate. Today, to protect our borders, and to protect people, we are giving flexibility and support to Member States to manage this emergency situation, without compromising on human rights.”

“This should allow the Member States in question to fully uphold the right to asylum and align legislation with EU acquis. It’s also time limited and targeted.”

“To make our response to hybrid threats future-proof, we activate the EU’s formidable diplomatic and legal capacity, to apply sanctions and persuade third countries to stop flights. We will soon propose a reform of the Schengen rules. Making progress now on the Pact on Migration and Asylum is essential.”

Johansson said that the migrants had been lured and trapped by Belarus. “Free access to the EU can never be accepted.”

The inflow of migrants to Minsk has more or less stopped and the situation at the EU-Belarus border had de-escalated, she said. “But EU still has to stay vigilant. I don’t trust the Lukashenko regime.”

Schinas said that the proposal was a living proof of EU’s solidarity with the three countries and explained that the management of EU’s external borders was a common and shared responsibility. “We are family. If one is attacked, the rest of us will be there to help.”

He asserted that the EU itself had quickly de-escalated the border crisis. To stop flights of irregular migrants to Minsk, he visited a number of their countries of origin to convince them that it was in their own interest to suspend the flights and repatriate their citizens.

His schedule did, as far as is known, not include Iraqi Kurdistan, the autonomous region governed by the Kurdistan Regional Government (KRG), where the economic situation has deteriorated. About half of the migrants, that were counted in tens of thousands, were reportedly from that region.

M. Apelblat
The Brussels Times

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