European Union Agency for Fundamental Rights: Respect fundamental rights when tackling the instrumentalisation of migrants
The European Union Agency for Fundamental Rights has released a new position paper addressing how EU member states respond to pressure from non-EU countries using migrants and refugees. Instead of building fences and restricting asylum procedures, the paper suggests legal and legitimate ways to handle this issue. It emphasizes how member states can counter the instrumentalization of migrants using four types of measures that fully comply with fundamental rights, rather than punishing refugees and migrants.
The EU law defines “instrumentalisation of migrants” in Article 1(4)(b) of Regulation (EU) 2024/1359 which consists of four elements: actor (a third country or a hostile non-state actor); action (encouraging or facilitating the movement of third-country nationals to the EU’s external border or to a Member State); intention (the action is carried out with the aim of destabilising the EU or a Member State); intensity (the action may objectively put at risk essential Member State functions, including the maintenance of law and order or protection of its national security). Under these circumstances, states are permitted to temporarily restrict fundamental rights to address the situation.
The four measures outlined in the position paper are:
- Counter actors that instrumentalize migrants and stop state-sponsored migrant smuggling, imposing sanctions on those states, rather than punishing migrants and asylum seekers.
- Allow asylum seekers and migrants access to asylum procedures and ensure humane treatment.
- Address businesses that bring migrants to borders, including training airline employees and revoking permits for travel agencies involved in illegal activities like migrant smuggling.
- Refrain from border militarization, which blurs the line between military actions and border management. This can jeopardize basic rights, and the EU Charter of Fundamental Rights must guide all border-related operations involving migrants and refugees.