The migration attack orchestrated by Belarus against the borders of the EU will mark a turning point in the European management of the right to asylum. The European Commission has proposed on Wednesday that an exceptionally harsh treatment be authorized with potential refugees in Poland, Latvia and Lithuania, the three EU partners used as targets by Aleksandr Lukashenko’s regime. For the first time, the community body wields the emergency mechanism of the EU Treaty on migration policy to toughen asylum rules. Brussels wants to make it clear that European partners will have the flexibility to contain migration flows caused by hostile governments, such as Minsk, even though the EU risks being accused of breaking international conventions on the right to asylum.
The Commission’s proposal includes keeping asylum seekers at the border, extending the processing of applications for up to four months, and expeditiously returning those who see their request rejected. The draft decision needs approval by a qualified majority in the EU Council, where the 27 governments of the club sit. And, in principle, Brussels only wants it to be in force for six months, as a preventive measure against new hybrid attacks by Lukashenko, such as the orchestrated transfer of migrants to Belarus’ borders with the EU. The measure is temporary, but renewable if necessary. And it has the prospect of becoming the pattern of behavior of the EU in the face of future migratory crises that are classified as intentional.
“We already said last week that our response to the unscrupulous actions of the Belarusian regime would be implacable,” said the conservative Margaritis Schinas, vice president of the European Commission, when presenting the project at a press conference. The European Commissioner for the Interior, the socialist Ylva Johansson, has assured that “the three countries [Polonia, Letonia y Lituania] they want to comply with community regulations ”, but have“ asked for a certain flexibility ”.
To introduce temporary changes in the management of asylum applications, the European Commission has used Article 78.3 of the EU Treaty, which allows the Council to adopt provisional measures “if one or more Member States face an emergency situation characterized due to the sudden influx of third-country nationals ”.
That article was first invoked in the migration crisis of 2015, when the Syrian exodus reached the EU, mainly from Turkey. However, it was then used as a legal basis to promote the resettlement of 160,000 migrants who arrived in Greece and Turkey through mandatory distribution quotas that never materialized. A sign of the times, on this occasion it is not invoked to facilitate the reception of people arriving in community territory, but to shield the border and prevent their entry, or facilitate their expulsion.
Criticisms of this approach have already started, including within the Council. Some diplomatic sources suggest that “Brussels is taking for granted the Polish thesis that the crisis with Belarus deserves an exceptional response and outside the rules on migration policy.” Considering the arrival of migrants through Belarus as a hybrid attack would allow, as defended by Warsaw, to apply exceptionally harsh measures to the people exploited by Lukashenko, who is accused of promoting the arrival of foreigners to take them to the Polish border or Lithuanian in order to create instability.
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“Suspending European asylum guarantees would not only be morally wrong, but also represents a total capitulation to the blackmail tactics used by Belarus and its allies,” lamented Ludovic Voet, secretary of the European Trade Union Confederation.
Vice President Schinas, however, has openly defended the use of Article 78.3 to facilitate a forceful response to the border assault triggered by Minsk. “After 30 years dedicated to the European project, I feel very comfortable and proud to activate instruments firmly anchored in European law,” he said. “I do not understand why it is wrong to use the legal force of the Treaty, which is our Constitution, our primary source of law. We are not inventing something arbitrary or strange. It is European law ”, added Schinas. For his part, Johansson has ensured that the proposed changes “do not touch the fundamental values at all.”
The three countries under pressure from Lukashenko will have the right to impose the presentation of asylum applications at the border point where the migrants are intercepted and to prevent them from moving inland. They may also extend the registration period for asylum applications by up to four weeks, a period normally set between 3 and 10 days.
The processing of the procedure may take up to 16 weeks, which, de facto, according to the project approved by the Commission, “it will help the Member State to apply the fiction of no entry for a longer time, which will provide greater flexibility to deal with the increased workload”.
Poland, Latvia and Lithuania will be obliged to provide food and accommodation to people stranded at their borders while the procedures are resolved. But they will be exempt from applying the return directive when they must return people whose application has been rejected, which will facilitate more expeditious departures.
Brussels recognizes that these are “measures of an extraordinary and exceptional nature”. But he considers them essential to curb the growing use of migratory flows as a measure of pressure on the EU. Turkey already threatened last year with unleashing a crisis by encouraging the departure of Syrian refugees to European territory. And Morocco at the beginning of this year caused a massive and irregular entry of thousands of people, many minors, into the Spanish territory of Ceuta.
In the case of Lukashenko, the attack began last summer against the borders of Lithuania. And later it spread to Latvia and Poland. From the beginning of the year until last November 21, 7,831 people entered the three countries irregularly compared to the 257 who did so in 2020, according to data provided by the European Commission. Asylum claims in Lithuania now number 2,676 compared to 315 last year; in Latvia, at 579 (compared to 180 in 2020) and in Poland, at 6,730 (compared to 2,785 last year).
Brussels figures at 42,741 attempts to cross the border frustrated by the authorities of the three countries under pressure from Lukashenko. And it estimates that some 10,000 migrants from third countries are in Belarus, at risk of being used by the Belarusian regime. And arrivals on Belarusian territory, according to Brussels, continue to occur on a daily basis despite the Commission’s diplomatic efforts having succeeded in stopping most flights from Turkey, Iraq and countries in the Middle East.
Schinas acknowledges that with the drastic change in asylum rules “in a way” he is “putting out a fire.” And he admits that to defend the EU “against hybrid threats” it is necessary “also intelligence, diplomacy, advance information, antennas, presence on the ground”. But the community body considers the adoption of its proposal essential to make it clear to hostile countries that migratory pressure will not divide the EU. “When it happens like yesterday [por el martes], that the military leader of Sudan threatens Europe with putting people on the way to us, someone has to react immediately and warn these authoritarian leaders who try to exploit the suffering of human beings “, defends the vice president of the Commission.