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listening to those directly affected

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Dominique Andrien forewarned me: like many lawyers working on immigration and asylum rights, she hasn’t had time to dive into the New Pact on Migration and Asylum, proposed by the European Commission on September 23. With an office in Liège, Belgium, Andrien began practicing law thirty years ago, when “it was rare for a lawyer to invoke European law”. Nowadays this law is omnipresent, but all the good it has brought – specifically the defence of the fundamental rights of foreign nationals – is often ignored by governments and national authorities. Meanwhile member states, through the Council of the EU, try their best to pack regulations and directives with political priorities that are irreconcilable with the fundamental rights upon which the EU was founded. Every new proposal of the Commission, resulting from watered-down compromise, is thus received with suspicion by lawyers. 

Among these is Tristan Wibault, also from Belgium. “We’ll have to wait to see what becomes of the proposals contained in the pact”, he explains. “For now they seem in line with what’s already in place. Over the last few years we’ve witnessed a multiplication of procedures and cases where deadlines for appeals are shortened”. The pact proposes to further shorten these deadlines, particularly for asylum applications filed at the border.  

The Hotspot approach

The emphasis placed on borders is one of the most worrying things for Italian lawyer Anna Brambilla, member of the Association for Legal Immigration Studies (ASGI). Practicing in Italy as well as Greece, where she could test the Hotspot approach, Brambilla knows all too well the impact on human rights: “we used to be able to transmit legal advice directly, through meetings and interviews. Now it’s no longer possible. We’re obliged to find new ways to communicate, often informally. The problem is making it such that informally expressed desires can be considered valid: for example, formalising an application for protection”.

In the Commission’s latest proposal, Hotspots are a pillar of European migration and asylum policy, and of a massive operation sorting those who arrive at the EU’s external borders. “All this takes place behind closed doors, closed to lawyers. This even further undermines the right to a defence”, argues Brambilla.

Another new addition, “upsetting, not only from the legal point of view but also in the history of European asylum law, is the stress placed on the examination of admissibility – rather than merit – of an application for international protection. This gradual erosion of rights, already underway in Greece for example, had until now been stemmed in Italy by the constitution”. 

“After 2015 it was clear a new phase had begun. The member states dealt with immigration much more violently, and the judges went backwards.”

Tristan Wibault

Meanwhile, the Belgian constitution was invoked by Tristan…

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