The EU Pact on Migration and Asylum: A Case for Incompatibility with Fundamental Rights
Section I: Introduction
In 2024, Europe processed migrants with excessive speed, prioritizing exclusion from its countries over fundamental rights. These migrants fleeing to Europe were intercepted by national authorities and EU-supported forces, pushed into legal limbo, or detained at external borders. While this was happening, Europe continued to face sharp demographic decline and a sustained reliance on the economic contributions of migrants. This presents strong contradictions at the heart of the debate over Europe and its migrant crisis, where political pressure for control over borders collides with a legal framework designed for protection of these asylum seekers. European migration law is grounded in the EU Charter of Fundamental Rights and the European Convention on Human Rights (ECHR). These frameworks guarantee protections to migrants, including for the right to seek asylum and freedom from arbitrary detention. Contrary to this, the EU Pact on Migration and Asylum , a newly agreed-on reform package, has created sharp division. Focused on accelerating the process for asylum seekers and reinforcing border control, many have called into question the humanity of this pact, arguing that these fundamental protections provided by the Charter of Fundamental Rights and of the ECHR have been eroded in favor of a quicker solution, such as faster border screenings and expanded detention, to the large influx of migrants. On one hand, scholars argue that the pact is necessary to combat administrative overload and irregular entry, while on the other hand, critics call into question if legal safeguards still exist under this pact. This raises the central question of whether the framework of the pact leads to fundamental rights violations through deprivation of liberty and a reduced access to asylum, risking the futures of millions of migrants. In my paper, I argue that the EU Pact on Migration and Asylum is inconsistent with fundamental rights under both the EU Charter and the ECHR, as its border protections and detention framework result in deprivations of liberty, reinforce practices of non-entry, dilute legal protections, and contribute to broader human rights denials.
Section II: Historical and Legal Background
While migration has always posed as a central feature of European history, its scale and political relevance has increased in recent years. Historically, migration in Europe has been occurring at relatively stable levels, driven by economic purposes with migrants seeking stability and work. Throughout the nineteenth century, however, the continent had more large-scale emigration, as opposed to immigration. Between 1850 and 1913, scholars estimate that over 40 million Europeans emigrated out of their country, which became one of the largest population movements in modern history. [1] During this “age of mass migration,” Ireland, Germany, and Italy were major hubs of emigration, with many escaping poverty, population growth, and the period of industrialization. [2] Accordingly, roughly 12 million people became interested in the economic activities of the United States and emigrated there between 1870 and 1900. [3] The steamship innovation and global labor markets expanding both made migration more accessible and additionally faster and cheaper. At the same time, during the late nineteenth century, migration within Europe additionally intensified. Rural communities flocked to urban settings as industrialization changed outlook, and populations moved away from agriculture and into these hubs of rapidly growing cities. Regardless of these shifts, Europe primarily remained known for emigration. [4] After World Wars I and II, due to border changes and high-scale displacement of millions, the patterns of migration changed, with Western European countries becoming primary destinations for migrants. However, the legacy of previous emigration continues to help shape the current state today as well as give context to debates over migration in Europe.
More recently, in 2015, a refugee crisis exploded in Europe, displaying deep structural divisions. Within 9 months of the crisis, over one million refugees had fled to Europe, with the majority coming through Greece, putting pressure on many states at the frontline. [5] Greece in itself was pushed into a dire situation with overcrowded facilities and a lack of humanitarian support. This showed, more saliently, the lack of support that the EU was providing to these frontline states. Political repercussions followed, triggering many public debates about the idea of new policies, especially in the more Central and Eastern parts of Europe, to help alleviate the crisis and share the costs. The public became polarized, laying the groundwork for the eventual Pact on Migration and Asylum to follow.
The European Commission, led by President Ursula von der Leyen, felt these divisions and shortcomings within the EU’s response to the 2015 crisis and thereby introduced the EU Pact on Migration and Asylum in September of 2020. While the pact was created to provide a more unified system, it instead created controversy. While countries like Greece which could now be more supported under the provisions of this pact were in support, countries like Hungary and Poland argued that their national sovereignty was undermined. [6] In addition to this criticism, both Amnesty International and the International Rescue Committee have both criticized the humanity of this proposal, bringing into light the serious concerns about compatibility with the EU Charter of Fundamental rights and the ECHR.
Section III: The Pact’s Incompatibility With Fundamental Rights
The EU Pact on Migration and Asylum is incompatible with the protections under the EU Charter of Fundamental Rights and the European Convention on Human Rights, which are core legal frameworks guaranteeing the right to liberty, dignity, and the right to seek asylum across Europe. More specifically, it is incompatible within its expansion of the border and detention procedures– these violate the right to liberty. Article 6 of the Charter and Article 5 of the ECHR require that if there is a deprivation of liberty, it must be necessary, proportionate, lawful, and subject to individualized assessment. [7] Through the pact’s design, it broadens the so-called use of detention by mandating screening and border procedures. Under the rules of the Screening Regulation, when an individual arrives at EU external borders irregularly, they are subject to security, identity, and health checks within seven days. During this period, they are typically held in controlled facilities and do not have formal entry into the territory of the EU. [8] Here, the framework replicates the measures that were used during the 2015 crisis where detention became widespread at the border. Evidence from Greece shows why this approach should not be used: between 2015 and 2016, the country’s infrastructure was strongly overwhelmed by a large influx of migrants and resulted in a confinement of these migrants into facilities in Greece’s islands. [9] These spots became massively restrictive and overcrowded where prolonged detention occurred. The persistence of detention as a central tool for migration control can be proved by more recent data as well, where in 2024 alone, it was recorded in Greece that 29,000 migration detainee entries occurred, where “an affront to human dignity” occurred. [10] The pact takes this model and risks generalizing it to the entire EU. In itself, the pact also does not require detention as solely a “last resort”, where this could become more of a systematic problem of confinement. Stated by themselves, the European Parliament has admitted that the pact may have this effect, which is a sharp departure from the notion of established human rights standards, undermining the notion that liberty restrictions should be justified and unlimited individually by allowing automatic and broad detention and more fast-tracked procedures based on the group status or location as opposed to a case-by-case method.
Another way in which the EU Pact on Migration and Asylum conflicts with fundamental rights is through reinforcing“non-entry” practices. In turn, it shifts asylum outwards, where there is a greater pressure on border states and third countries to make processing arrangements. In Article 18 of the Charter guarantees the right to asylum, and Article 19 specifically prohibits the removal of migrants to countries where they could face harm or persecution. [11] The border-centered emphasis of the pact restricts this full access to asylum procedures by means of accelerated entry, in addition to a move towards making arrangements for migrants in developing countries. Here, individuals could be taken and filtered out before they can seek protection under their fundamental rights. Rather than taking capacity issues and their systemic nature into account, the pact relies on deterrence mechanisms which are rooted in more emergency responses to the crisis. This “hotspot” system shows how there can be restricted access to asylum, as individuals are rapidly placed into channels, oftentimes without legal safeguards. [12] There is additionally an extension of this logic within the pact through a “fiction of non-entry,” where individuals are treated as if they are physically present and within the jurisdiction of the EU but are treated legally as if they are not there and have not entered, which in turn limits their protections and access to rights. [13] The “fiction of non-entry” in itself is a legal concept where migrants are physically present at an EU border but are treated as if they have not, formally, entered the country. This can lead to indirect refoulement when it is combined with accelerated procedures and cooperation with other countries whose asylum systems could be inadequate. Legal scholars warn that these mechanisms strictly undermine the right to asylum where it is no longer a guaranteed protection and is more conditional. For example, scholar Cathryn Costello argues that, “The ‘fiction of non-entry’ risks placing people in a legal limbo where their rights are weakened precisely at the moment they are most needed.” [14] Here, the externalization of the pact’s measures are a fundamental reorientation of EU asylum policy where compliance with the EU’s regulations are nonexistent.
Finally, the EU Pact on Migration and Asylum undermines access to justice and procedural safeguards, which further shows its incompatibility with fundamental rights frameworks. Both Article 47 of the Charter and Article 13 of the ECHR guarantee that there is the right to remedy and a fair hearing, but contrary to this, the Pact, with its more accelerated border procedures, curtails this ability in practice. Individuals here are aimed to be processed within compressed timelines, and the mandatory screening phase occurs often without access to appeal mechanisms or legal counsel. [15] This creates a harsh procedural gap where there can be life-altering determinations happening without safeguards. Greece provides additional evidence of this erosion of fairness. There, deficiencies in its asylum system, like limited assistance and understaffing, have led to bottlenecks that delay the assessment of claims. [16] The pact risks scaling this across the EU by mandating these fast-track border procedures and increasing the pressure that is already held on these strained systems. There is also an additional mention of nationality-based triaging, where applicants from lower recognition-rate countries are placed into these accelerated procedures. Here, individual assessment is eroded and there is the potential for a type of discriminatory treatment. Scholars have argued that there will be a “[deterioration of] the quality” of border procedures which could lead to further human rights violations or rejections based on nationality. [17] When these effects are taken into account, formal rights might exist, but will be strictly constrained in practice– the Charter and the ECHR negate these notions as well. Taken together, the pact, which prioritizes a form of efficiency and control, risks undermining safeguards within the European Union.
Section IV: Counterarguments and Rebuttal
Some argue that the asylum system in the EU Pact on Migration and Asylum is justified under the notion of faster procedures and border screenings. However, I argue that administrative efficiency cannot in itself justify potential infringements on rights. Article 18 of the EU Charter maintains that the right to asylum must be guaranteed, where Article 19 enforces the point of non-refoulement, a principle where a person cannot be returned to a country where they could face harm, torture, or persecution. These are not policy preferences, but binding obligations, and the pact’s framework strictly undermines this with an emphasis on pre-entry screening and faster border procedures, which the International Rescue Committee explains. [18] The issue, in response to counterarguments, is not just implementation and the expedition of procedures, but the design of the pact in itself. Proponents claim that delays can violate rights in themselves, but a rushed system that is limiting access equally undermines Article 47 of the Charter, guaranteeing effective remedy. Efficiency cannot replace fairness. [19] The same flaw applies to defenses of screening and border protections as administrative tools that are plainly “neutral”. As previously mentioned, the pact relies on this fiction of “non-entry,” thereby allowing the admittance of migrants into controlled facilities where procedural protections are limited. While proponents of the pact claim that this seven-day screening process is a both necessary and technical step, in reality it reduces the critical safeguards, such as proper access to legal counsel, a compression of the time available to submit claims, and a reliance on more superficial assessments. This makes it harder to identify vulnerabilities (such as trauma or trafficking), Under the previously mentioned Article 47 of the Charter, legal assistance and sufficient time to present claims is required.
Moreover, proponents of the pact have also argued that detention and confinement are permissible under Article 5(1)(f) of the ECHR. One can acknowledge that some forms of migration detention are lawful, but on the other hand, this primary argument is extremely broad and ignores the requirement that there must be necessary, proportionate, and individualized detention. The concern here is not regarding detention’s legality in itself, but rather a systematic form of detention rather than a purely exceptional form. When a large number of migrants are placed into these detentions, it normalizes such large-scale confinement, causing there to be a lack of individualized decisions and rather blanketed, fast-tracked policies. Monitoring and other simple mechanisms cannot resolve this issue. Granting states the opportunity to substitute financial contributions to relocate their migrants, for example, may be expedient politically, but it can lead to migrants being in places with fewer protections, especially concentrated in border states. As we have learned from Hungary, Poland, and other states in opposition to the pact, political compromise has taken precedence over protection that is uniform and guarantees rights for these migrants. [20] Consistent application is necessary.
In connection with this, the argument that the pact is ushered by political necessity due to the public’s attitudes towards migration is not valid in terms of proper legal justification. The Charter and the ECHR are not dependent on public opinion, and in fact, attitudes towards migration have been shown in themselves to vary, with a battle between favorable and restrictive views. [21] This variation shows the importance of legal protections across states as well, as, if legal protections were weakened by political pressure, they could lose their safeguard nature and foundations.
Section V: Conclusion
The EU Pact on Migration and Asylum looks to address challenges that exist and are real within the European Union, which include both fragmentation and inefficiency. However, the pact raises legitimate concerns regarding both compatibility under the EU Charter of Fundamental Rights and the ECHR. There remain structural changes that reshape the access of protection for individuals. The pact in itself risks taking fundamental rights and transforming them into conditioned and limited guarantees instead of protections that are enforceable and compatible with EU law. Additionally, we know that when the government prioritizes containment and expediting of procedures over protection, rights can deteriorate, especially noted within Greece’s 2015 migrant crisis.
The stakes of this pact and its outcomes are significant, as the right to liberty, right to seek asylum, and right to an effective remedy are all undermined. For migrants, the pact can undermine safety and enforce a future of exclusion. Moreover, migrants can be sent back into dangerous conditions or be trapped in a place of displacement. For those who are not returned to their home countries, limited access to fair processes can deny their stability and leave them without a job or education for them or their children. This topic additionally calls into question what can happen in the larger picture as Europe can be taken as an example for what other countries should prioritize, and if human rights protections are deprioritized, other countries could follow suit in these violations.
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