THE STATE OF THE EUROPEAN UNION Towards a new legislative term

THE STATE OF THE EUROPEAN UNION 90 pervision mechanisms and states that it is no longer obligatory to apply the legal non-entry pretence, which considers that people subject to screening are not yet on European soil, seriously endangering the non- refoulement principle and respect for the European Human Rights Convention and the jurisprudence of the European Court of Human Rights which the States work from in terms of jurisdiction matters. It also elimi- nates the application of the control procedure for peo- ple who are living illegally in the territory, the concept of force majeure and clarifies the concept of crisis with clear indicators to determine when a Member State can break away from their obligations regarding procedure deadlines. Another positive aspect of the Parliament’s negotiation position is maintaining the Temporary Pro- tection Directive that has proved to be so useful to re- spond to a situation such as forced displacement from Ukraine. Regarding the balance between solidarity and responsibility, it eliminates return sponsorship as a way of contributing to the solidarity mechanisms and estab- lishes mandatory relocation as the sole solidarity con- tribution possible to alleviate pressure on a Member State that is in crisis. In the meantime, within the Council, the Member States have focused on attempting to find common ground on the Regulation of Asylum and Migration Management with a view to the Justice and Home Af- fairs Council in June 2023. However, new division vec- tors have appeared between the Member States. In ad- dition to the classic negotiation between responsibility and solidarity, which caused the reform to run aground in 2019, there is now wide application of border pro- cedures in exchange for the chance to repeal the asy- lum acquis in certain circumstances. The concept of adequate capacity has therefore been introduced, to determine how many cases will be processed by border procedure and, once this threshold has been reached, there will be a chance to break away from the asylum rules. This represents a total change of perspective re- garding the Commission’s stance, where the criteria to apply the procedure on the border were linked to na- tionalities with low recognition rates in the European Union as a whole. Regarding the possibility of repealing the asylum acquis, the Member States intend to recover this idea of the currently failed Proposal for a Regulation on Instrumentalisation, although linking it to this new concept of adequate capacity. According to the Swedish Presidency (Council of the European Union, 2023), there is broad support among the Member States to apply this concept of adequate capacity and the formula for calculating it, considering illegal entries and rejections at borders over the last three years. There is also an agreement to broaden the application of the border procedure and, therefore, de- tention in the border dependencies, for minors under 12 years old accompanied by adults and even unaccompa- nied minors who are considered a risk for the State’s security or public order. In this respect, the Spanish Presidency, which be- gan on 1 st July 2023, is crucial to move forward in the negotiations along five main lines: i. The principle of solidarity and shared responsibility among the Member States; ii. Full procedural guarantees and an individu- alised treatment of requests for asylum, regarding the non-refoulement principle; iii. A structural response to the crisis situations, based on access to the protection and on the guarantee of rights, among others, maintain- ing the Temporary Protection Directive; iv. A protection framework for the rights of persons on the borders; v. Legal and safe ways to access international protection. All that comes at a stage in the negotiations which, at the close of writing this report, was as follows: – Proposal to amend the Eurodac Regulation . On 22 nd June 2022, the Council approved its negoti- ation mandate. By adopting the text proposed by the speaker Jorge Buxadé (ECR) in the Commission of Civil Liberties, Justice and Home Affairs (LIBE) of the European Parliament, the trialogues began on 13 th December 2022. It is worrying that the co-legislators have extended the scope of the Eurodac database to control migratory flows in the EU, including use of new biometric data such as facial recognition and its application on children from the age of six upwards, without sufficient safeguards and putting the minor’s greater interests at risk by processing this data. – Proposal for a Regulation on Screening third country nationals at the external borders . On 22 nd June 2022, the Council approved its negotiation mandate, while the European Parliament adopted its position on 20 th April 2023, by starting the trialogues