**Protecting Asylum Seekers and Migrants in the Context of the Rule of Law Crisis in EU Member States: The Recent Approach of the Court of Justice of the EU through the Lens of the Global Compacts on Refugees and Migration**

**Alessandra Favi**

School of Law, University of Florence, 50100 Florence, Italy; alessandra.favi@unifi.it

**Abstract:** In recent times, the CJEU has started to develop its judicial response to the "rule of law crisis" in some Member States. On the one hand, this new trend has emerged also as a reaction to some national reforms concerning asylum and migration law. On the other hand, the CJEU in protecting the EU founding values has deployed its "traditional" competences attributed to it by the EU Treaties, namely the mechanisms of the preliminary ruling procedure and the infringement procedure. Against this background, this contribution aims at investigating this new CJEU's jurisprudence through the lens of the Global Compacts on Refugees and Migration. This will lead us to reflect on how the CJEU's caselaw could be seen as an effective tool to enhance the rule of law and protect third-country nationals, at least within the EU, and indirectly contributes to increasing compliance with some of the commitments laid down in the Global Compacts, regardless of the position taken by some recalcitrant EU Member States with respect to these documents.

**Keywords:** Global Compacts; EU asylum and migration law; rule of law; Court of Justice of the EU; EU Member States

#### **1. Introduction**

The adoption of the Global Compact for Safe, Orderly and Regular Migration (GCM) and of the Global Compact on Refugees (GCR) in December 2018 within the framework laid down by the United Nations (UN) General Assembly in the New York Declaration for Refugees and Migrants of 19 September 2016 (New York Declaration), has been considered as the first attempt of the world's governments to give a comprehensive response to the question of large movements of refugees and migrants, "who move for different reasons but who may use similar routes" (New York Declaration 2016, para. 6).

The two Global Compacts (GCs or Compacts) set forth a series of political commitments, which touch upon different aspects of this growing global phenomenon of international migration. In particular, while the GCR focuses on providing "a basis for predictable and equitable burden and responsibility-sharing among the UN Member States" (GCR 2018, para. 3) together with other relevant stakeholders, the GCM "offers a 360-degree vision of international migration", fostering international cooperation among all relevant actors on migration, "acknowledging that no State can address migration alone" (GCM 2018, para. 11). The general purposes foreseen in the Compacts are then detailed in more specific objectives and actions. Against this background, the protection of the crosscutting and guiding principle of the rule of law by the parties should be considered as an objective but also as a *pre*-condition to the achievement of the goals laid down in the Compacts. Only a State with strong checks and balances, which ensures the separation of powers and the protection of civil liberties and rights, is able to respond to the commitments laid down in the Compacts (GCM 2018, para. 14; Carrera et al. 2018).

However, both the GCM and the GCR do not provide anything different from what has already emerged at the international level regarding the protection of the rule of law. In fact,

**Citation:** Favi, Alessandra. 2022. Protecting Asylum Seekers and Migrants in the Context of the Rule of Law Crisis in EU Member States: The Recent Approach of the Court of Justice of the EU through the Lens of the Global Compacts on Refugees and Migration. *Laws* 11: 37. https:// doi.org/10.3390/laws11030037

Academic Editor: James C. Simeon

Received: 22 February 2022 Accepted: 14 April 2022 Published: 21 April 2022

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**Copyright:** © 2022 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

the GCR expressly refers to upholding of the rule of law "at the national and international levels" as part of the commitment of States to "tackle the root causes of large refugees situations" (GCR 2018, para. 9) and the GCM recognises in a general manner that the respect of the rule of law, "due process and access to justice are fundamental to all aspects of migration governance" (GCM 2018, para. 15). In the 2012 UN High-level Meeting on the Rule of Law at the National and International Levels, which culminated in the adoption of the Declaration on the Rule of Law at the National and International Levels (Declaration on the Rule of Law), heads of state and government had already recognized "that the rule of law applies to all States equally, and to international organizations, including the United Nations and its principal organs, and that respect for and promotion of the rule of law and justice should guide all of their activities and accord predictability and legitimacy to their actions" (Declaration on the Rule of Law 2012, para. 2). They also recognized that "all persons, institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law" (Declaration on the Rule of Law 2012, para 2.) and reaffirmed "that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations" (Declaration on the Rule of Law 2012, para. 5).

While the two Compacts do not seem to add anything new under the sun, in recent times the European Union (EU or Union) has paid special attention to the protection and enforcement of the rule of law, as a value enshrined in Article 2 of the Treaty on European Union (TEU), *within* the territory of EU Member States. The innovative aspect of this new course concerns not only the role played by the Court of Justice of the EU (CJEU) in the context of the so-called "rule of law backsliding" in some EU Member States (Pech and Sheppele 2017), but also the progressive shaping of the notion of the rule of law under EU law.

These two aspects are closely linked. In fact, while the CJEU initially developed its judicial response to the "rule of law crisis" assessing the compatibility with EU law of Member States' legislation that undermined the independence of the judiciary, it then extended its action with respect to national reforms concerning other aspects of EU law, including that of migration and asylum law (Tsourdi 2021). The most recent CJEU's jurisprudence shows in particular how the need to uphold the rule of law value coexists with the exigence of protecting migrants' and asylum seekers' rights.

These new developments could thus be considered as particularly relevant as they can indirectly contribute to increasing compliance with some of the commitments laid down in the GCs, in particular in the GCM, regardless of the position taken by EU Member States in respect to these documents.

For that purpose, this contribution will first briefly describe the GCs, paying special attention to some of the objectives foreseen in the GCM (Section 2). Second, the focus will be on the pioneering role of the CJEU in protecting the EU founding values through the "traditional" competences attributed to it by the EU Treaties, namely the mechanisms of the preliminary ruling procedure and the infringement procedure (Section 3). Third, the recent developments of this line of jurisprudence will be dealt with, where the CJEU has acted in defence of the rule of law value, also protecting migrants' and asylum seekers' rights (Sections 4 and 5). Some conclusions can then be drawn, stressing how these recent developments could be seen as a tool to enhance the protection of migrants and asylum seekers in context of "rule of law crisis", regardless of the position taken by some recalcitrant EU Member States with respect to the Compacts (Section 6).

#### **2. Ambitious Objectives and Uncertain Nature of the Global Compacts**

As already mentioned, the GCM and GCR represent the political will and ambitions of the parties in addressing the question of large movements of refugees and migrants (Micinski 2021; Guild and Grant 2017). Both Compacts introduced some broad commitments

regarding the treatment of migrants and refugees with the general purpose of the global governance of people on the move.

The GCR aims in particular to facilitate the application of a comprehensive response in support of refugees and countries particularly affected by a large refugee movement, through more equitable and predictable burden and responsibility-sharing with host countries. It further promotes the support of States, the international community and of other relevant stakeholders to host country or country of origin, in sectors identified as in need of support, such as reception and readmission.

By contrast, the GCM represents a "milestone in the history of the global dialogue and international cooperation on migration" (GCM 2018, para. 6), as it is the first ever UN comprehensive agreement on migration in all its dimensions. In particular, the GCM comprises 23 objectives, which are intended to achieve safe, orderly and regular migration along the entire migration cycle. Among these objectives is the commitment of the parties to develop and strengthen effective mechanisms for an adequate screening and individual assessment of all migrants "for the purpose of identifying and facilitating access to the appropriate referral procedures" (GCM 2018, para. 18). In particular, the actions envisaged in this regard include, inter alia, to ensure that, in the context of mixed flows of refugees or migrants "relevant information on rights and obligations under national laws and procedures, including on entry and stay requirements, available forms of protection, as well as options for return and reintegration, is appropriately, timely and effectively communicated, and accessible" (GCM 2018, para. 28, lett. *e*). Furthermore, in order to address and reduce vulnerabilities in migration, the GCM provides that parties should ensure that migrants "have access to public or affordable independent legal assistance and representation in legal proceedings that affect them [ ... ] in order to safeguard that all migrants, everywhere, are recognized as persons before the law and that the delivery of justice is impartial and non-discriminatory" (GCM 2018, para. 23, lett. *g*). The GCM also affirms the commitment of parties to ensure that any detention, irrespective of the moment it occurs, "follows due process, is non-arbitrary, based on law, necessity, proportionality and individual assessments" (GCM 2018, para. 29). This means providing access to justice for all migrants that are or may be subject of detention, including by facilitating access to free or affordable legal advice and assistance and ensuring the exercise of rights of all migrants in detention, including to have access to legal orientation and assistance (GCM 2018, lett. *d*). Parties should also ensure that all migrants, regardless of their migration status, can have access to basic services without discriminations (GCM 2018, para. 31). Finally, parties have also undertaken the commitment to ensure that the return of migrants "who do not have the legal right to stay on another State's territory is safe and dignified, follows an individual assessment [ ... ] and allows all applicable legal remedies to be exhausted, in compliance with due process guarantees" (GCM 2018, para. 37, lett. e).

States parties are therefore called to enact measures intended to fulfil the objectives expressed in the GCs. In this respect, difficulties may thus arise with regard to two linked aspects.

In the first place, these instruments expressly specify that they are non-legally binding instruments (McAdam 2019). Non-binding status does not mean that the Compacts are legally irrelevant (Hilpold 2021; Ferris and Donato 2019; Gammeltoft-Hansen et al. 2017; Panizzon and Vitiello 2019; Peters 2018). However, while the Compacts appears to acknowledge the need for an international coordination to address the question of large movements of refugees and migrants, these documents do not create any new legal obligations for States, nor rights for individuals (Höflinger 2020).

In the second place, some States have decided to quit the adoption process of the Global Compacts. In this regard, the GCR was adopted by a vote of 181 in favour to 2 against (Hungary and United States of America) and 3 abstentions (Eritrea, Liberia, Libya), while the GCM was adopted with 152 votes in favour, 12 abstentions, and 5 votes against (namely by the Czech Republic, Hungary, Israel, Poland and the United States of America). An additional 24 UN Member States were not present to take part in the vote. It

is relevant to note that both Hungary and Poland decided to disengage from the GCM's adoption process, respectively in July 2018 and November 2018, affirming in essence that the objectives laid down in these documents were in contrast with their national interests (Molnár 2020; Gatti 2018; Meline 2018). In particular, the Polish Government found that the GCM failed to meet its demands regarding strong guarantees for Countries to have the right to independently decide who they choose to accept (Reuters 2018). The Hungarian Foreign Minister as well affirmed that the GCM expanded the opportunities to "lodge complaints with relation to procedures conducted by national authorities" and it "calls for countries to afford every single migrant all of the services that they otherwise afford their own citizens during the whole period of the migrating process, and at an equal level of quality" (Website of the Hungarian Government 2018a). Moreover, the Hungarian Government voted against the GCR since, as stated by its Foreign Minister, such a document "opens the back door to those that cannot come in through the main entrance" (Website of the Hungarian Government 2018b).

These two Member States are indeed the same ones having introduced laws and policies that the EU has deemed to have serious, negative implications for human rights and the rule of law as protected by EU law, in particular, in respect of the independence of the judiciary and the protection of migrants and asylum seekers' rights (Bánkuti et al. 2012; Kovács and Tóth 2011; Wi ˛acek 2021). In fact, despite the decision to leave the Global Compact's adoption process, these Member States are already under an obligation deriving from EU law to safeguard the rule of law as a founding value of the Union.

In this regard, the mechanisms provided for by Article 7 TEU are specifically meant to address the violation by the Member States of the EU values enshrined in Article 2 TEU. However, the political difficulties surrounding the activation of such mechanisms, led the CJEU to develop further "tools" in order to protect the common values of the Union (Editorial Comments 2015). The recent developments of this jurisprudence, where the "new" tools are deployed to cope with EU Member States' reforms concerning migration and asylum law, could thus indirectly contribute to ensuring compliance with the commitments laid down in the Compacts, regardless of the position taken by the two Member States in question on these documents.

#### **3. The Protection of the EU Founding Values within the Member States and the "New" Role of the CJEU**

Article 7 TEU is the provision meant to ensure, through mechanisms of political nature, the protection and enforcement of the EU founding values as enshrined in Article 2 TEU in the event of their (potential or actual) violation by a EU Member State (Sadurski 2010). The scope of application of Article 2 TEU covers all areas of action of EU Member States, as the procedures laid down in Article 7 TEU, which are horizontal and general in scope (Kochenov 2021). However, the wide scope of application of this latter provision corresponds to a limited competence of the CJEU. According to Article 269 of the Treaty on the Functioning of the European Union (TFEU), the CJEU shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 TEU "in respect solely of the procedural stipulations contained in that Article".

However, since the very beginning such mechanisms have not proved effective in addressing "crises" of the EU founding values in Member States (Besselik 2017). Indeed, the reasoned proposals adopted by the Commission in 2017 and the European Parliament in 2018, respectively against Poland and Hungary calling the Council to determine "a clear risk of a serious breach" of the rule of law value by the two EU Member States, did not lead to any outcome so far. The political nature of the choices underlying the activation of the procedures laid down in Article 7 TEU, as well as the high voting thresholds, have made these mechanisms hardly practicable. This situation has been labelled as the "rule of law crisis" by several authors in EU studies (Müller 2015; Von Bogdandy and Ioannidis 2014).

Against this background, the CJEU has then been progressively involved in the protection of the EU values, through the "traditional" competences attributed to it by the EU

Treaties, namely the preliminary ruling procedure and the infringement procedure (Scheppele 2016; Blokker 2013). In this sense, the *Associação Sindical dos Juízes Portugueses* (*ASJP*) judgment of 27 February 2018 represents a turning point, thanks to the link established by the CJEU between the right to an effective judicial protection and the rule of law value, to which Article 19 TEU gives concrete expression. Indeed, the *ASJP* judgment represents the starting point of a line of cases through which the CJEU has progressively shaped its role as regards the violation by EU Member States of the founding values enshrined in Article 2 TEU (Bonelli and Claes 2018; Pech and Platon 2018). In this judgment, the CJEU held for the very first time that Article 19 TEU, which entrusts the responsibility for ensuring judicial review in the EU legal order not only to the CJEU but also to national courts, should be considered as giving "concrete expression to the value of the rule of law stated in Article 2 TEU" (*ASJP* 2018, para. 32). In this regard, the CJEU held that "[t]he very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law" (*ASJP* 2018, para. 36). Therefore, EU Member State must ensure that their national courts or tribunals, within the meaning of EU law, meet the requirements of effective judicial protection, in particular the requirement of independence, in accordance with Article 19 TEU.

Such an interpretation paved the way for several questions for preliminary ruling raised in particular by Polish courts, leading the CJEU to assess the compatibility with EU law of national judicial reforms undertaken by the Polish legislator. At the same time, the Commission, taking into account this new legal framework, started several infringement procedures leading the CJEU to rule on the violation of the obligations stemming from Article 19 TEU by Poland on account of its national reforms concerning both its Supreme Court and ordinary courts.

These developments in the CJEU's role have then interested other areas of EU law, notably migration and asylum law. In particular, the reforms undertaken by Hungary in these fields had already been the subject, amongst others, of the reasoned proposal (European Parliament 2018) pursuant to Article 7(1) TEU, in which concerns were raised by the European Parliament with respect to the treatment of migrants and asylum seekers in Hungary and to the protection of their fundamental rights. In this regard, since 2015, the Hungarian Government has narrowed asylum seekers' procedural rights in "ordinary" procedures, notably eliminating the possibility of presenting new facts in certain circumstances during the judicial phase and taking away the power of the courts to change the decision of administrative authorities. At the same time, the Hungarian Government strengthened the use of accelerated and border procedures, which entailed detention of asylum seekers and third-country nationals in "transit zones" where access to advice and representation was not always guaranteed. A fully informal removal mechanism was introduced, depriving asylum seekers crossing the Hungarian borders of the possibility to claim for asylum. Furthermore, all integration measures for persons recognised as in need of international protection were abolished (Nagy 2018).

Due to the difficulties surrounding the application of the procedures laid down in Article 7 TEU, both mechanisms of the preliminary ruling procedure and the infringement procedure have then been deployed by the CJEU to respond to the progressive deterioration of the rule of law in this respect, determining different effects as regard the protection of migrants and asylum seekers in such a context.

As the next section will show, the *ASJP* judgment laid the basis for subsequent developments, where the role of the CJEU as the "guardian" of the rule of law within the EU was strengthened, while at the same time ensuring an effective protection of migrants' and asylum seekers' rights in such contexts.

#### **4. Strengthening Migrants' and Asylum Seekers' Rights through the Preliminary Ruling Procedure**

As recently recalled by the CJEU in its *Łowicz* judgment of 26 March 2020 (Platon 2020), the procedure provided for in Article 267 TFEU is an instrument of cooperation between

the CJEU and national courts, by means of which the CJEU provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. Therefore, the CJEU's function in proceedings for a preliminary ruling is to help the referring courts to resolve the specific dispute pending before them.

In recent times, references for preliminary rulings have been submitted by Hungarian courts concerning, in essence, the compatibility with EU law of the reforms undertaken by the Hungarian Government, which touched many aspects of national asylum and migration law. Particularly relevant in this regard are the *FMS* and *Torubarov* judgments issued by the CJEU following several preliminary references initiated by Hungarian courts, called upon to rule on appeals brought by third-country nationals claiming before them the protection of their rights deriving from EU law.

The *FMS* judgment of 10 May 2020 (Dumas 2020) allowed the CJEU to scrutinise various aspects of the Hungarian legislation relating, inter alia, to conditions of thirdcountry nationals placed by national authorities in transit zones. In fact, the questions referred to the CJEU concerned, firstly, the absence in national law of any effective remedy to challenge a return decision issued by national administrative authorities against thirdcountry nationals placed in a transit zone between Hungary and Serbia. Indeed, the Hungarian authority designated as having jurisdiction to rule on such appeals under national law, did not meet the requirements of independence stemming from EU law, namely from Article 47 which enshrines the right to an effective remedy and to a fair trial. The CJEU not only held that the Hungarian legislation was incompatible with Article 13 of Directive 2008/115 (the Return Directive) providing the right to an effective remedy against return decisions, but it also linked this situation to the broader context of the rule of law. Indeed, the CJEU expressly reminded that "in accordance with the principle of the separation of powers which characterizes the operation of the rule of law, the independence of the judiciary must be ensured in relation to the legislature and the executive" (*FMS* 2020, para. 136). Therefore, the national legislation at issue also failed "to comply with the essential content of the right provided for in Article 47 of the Charter" (*FMS* 2020, para. 137). Moreover, the Hungarian legislation did not guarantee any judicial review of national decisions ordering the placement of asylum seekers and other third-country nationals in a transit zone, which according to the CJEU in the case at stake amounted to illegal detention. Nor did the national legislation provide for a remedy to ensure the protection of the right to material reception conditions of asylum seekers, after being unlawfully detained. The CJEU observed that Article 15 of Return Directive and Article 9 Directive 2013/33 (the Reception Directive) have direct effects and give concrete form to the right to an effective remedy enshrined in Article 47 of the Charter, both in the context of return procedures and against decisions concerning accommodation. Therefore, national legislation, which does not guarantee any judicial review of an administrative decision ordering the detention of an asylum seeker or an "illegally staying third-country national", not only constitutes an infringement of Articles 15 of the Return Directive and Article 9 of the Reception Directive, "but also undermines the essential content of the right to effective judicial protection, guaranteed in Article 47 of the Charter" (*FMS* 2020, para. 255).

Against this background, the principle of primacy of EU law and the right to an effective judicial protection, guaranteed by Article 47 of the Charter, require the referring court to disapply any national provision in contrast with EU law and to substitute its own decision for that of the national administrative authority.

In the specific context of the rule of law crisis concerning migration and asylum law, the CJEU, through the preliminary reference procedure, has thus paid special attention to strengthening the protection of the rights conferred by EU secondary legislation to migrants and asylum seekers, in particular the right to an effective remedy against return decisions and decisions ordering detention and the right to material accommodation. For this purpose, the CJEU has recognised to national courts broad powers and competences, which they directly derive from EU law.

The same approach had already been applied by the CJEU in the *Torubarov* judgment of 20 July 2019, concerning Hungarian legislation not providing national courts of any means to enforce their decisions relating to the recognition of a form of international protection against reluctant national administrative authorities (Caiola 2019). A national case could then be repeatedly shuttled back and forth between courts and administrative authorities. As already mentioned above, in 2015, the Hungarian legislator had changed the competence that courts had when reviewing administrative asylum decisions from having the possibility to directly alter a decision, to the power to merely annul and remit (Hungarian Law on Asylum 2007). As a result, national courts could not replace such decisions when they found them to be unlawful. They could merely annul them and refer the case back to the administrative authority for a new decision. The referring court then decided to stay the proceedings and refer a question for preliminary ruling to the CJEU, doubting the compatibility of such national legislation with Article 46 of Directive 2013/32 (the Procedures Directive), providing the right to an effective remedy in the context of asylum procedures, read in the light of Article 47 of the Charter.

The CJEU found in particular that "the right to an effective remedy would be illusory if a Member State's legal system were to allow a final, binding judicial decision to remain inoperative to the detriment of one party" (*Torubarov* 2019, para. 57). Therefore, a national legislation that results in such a situation deprives in practice the applicant for international protection of an effective remedy, within the meaning of Article 46 of Directive 2013/32, and "fails to comply with the essential content of the right to an effective remedy enshrined in Article 47 of the Charter" (*Torubarov* 2019, para. 72). Both provisions having direct effect, a national court seized of an appeal in such a context is required to set aside a decision of the administrative body that does not comply with its previous judgment and to substitute its own decision on the asylum seeker's application by disapplying the national law that prohibits it from proceeding in that way.

In both judgments, national courts hold competences and powers directly deriving from EU law, namely from the right to an effective judicial protection and from the principle of primacy of EU law. In particular, such powers lead national courts to disapply the political choices made by the national legislator not complying with EU law, ensuring in this way the effectiveness of migrants and asylum seekers' rights, which they derive from EU secondary legislation also in contexts where the national legislative will is to dismantle the procedural and substantial guarantees recognized to third-country nationals by EU law.

#### **5. Addressing Multiple Violation of EU Migration and Asylum Law through the Infringement Procedure Mechanism**

As previously mentioned, the CJEU has deployed another instrument to face rule of law crisis in Member States, namely its judgments issued following an infringement procedure under Article 258 TFEU. Indeed, where a situation of deterioration of the rule of law also implies a violation of EU law obligations by the Member States, the CJEU has considered the infringement procedure as an effective instrument to address such a situation (Bàrd and Sledzi ´ ´ nska-Simon 2019; Kochenov 2015). In the area of migration and asylum law, this is evident in two recent rulings where the CJEU found that Hungary failed to comply with its obligations under EU law.

Firstly, in the *Commission v. Hungary* judgment of 17 December 2020 (*Commission v. Hungary* 2020), the CJEU found that, as a consequence of recent national reforms concerning asylum and migration law, Hungary failed to ensure effective access to the procedure for granting international protection under the Procedures Directive, as far as third-country nationals wishing to gain access to the EU from the Serbian-Hungarian border, were de facto barred from accessing asylum procedure. Moreover, the CJEU confirmed, as already held in the *FMS* judgment, that the obligation on applicants for international protection to remain in one of the transit zones for the duration of the procedure for examination of their application constitutes detention, within the meaning of the Reception Directive. The CJEU also held that Hungary failed to fulfil its obligations under the Return

Directive, as far as the Hungarian legislation allowed for the removal of third-country nationals who are staying illegally in the territory without prior compliance with the procedures and safeguards provided for in that directive, inter alia, to have their personal situation examined before their removal. Finally, the CJEU considered that Hungary did not respect the right, conferred by the Procedures Directive on any applicant for international protection, to remain in the territory of the EU Member States after the rejection of his application, until the time limit within which to bring an appeal against that rejection or, if an appeal has been brought, until a decision has been taken on it.

Secondly, in the *Commission v. Hungary* judgment of 16 November 2021 (*Commission v. Hungary* 2021), the CJEU similarly found that Hungary was in breach of its obligations under the Procedures and Reception Directives. In particular, the CJEU held that the legislative reforms undertaken by Hungary in 2018 had not only added a further ground of inadmissibility of an application for international protection but also criminalised organising activities facilitating the lodging of asylum applications by persons who were not entitled to refugee status under Hungarian law. In particular, the CJEU held that the national provisions criminalising persons who, in connection with an organising activity, provide assistance in order to make or lodge an application for asylum when it can be proved that that person was aware that that application could not succeed under Hungarian law, amounts to a restriction on the rights enshrined in the above-mentioned Directives. More specifically, the additions made to the Hungarian legislation restricted the right of access to applicants for international protection and the right to communicate with those persons, and the effectiveness of the right afforded to asylum seekers to be able to consult, at their own expense, a legal adviser or other counsellor.

It is apparent from these two judgments that the infringement procedure has been used by the CJEU to address multiple violations of EU obligations, which taken as a whole constitute a manifestation of the CJEU attempting to resolve a "rule of law crisis" in a EU Member State (Bogdanowicz and Schmidt 2018). In fact, the caselaw analysed shows how the infringement procedure can address violations of EU obligations, which derive from the political choices made at the national level aimed at depriving in a general and systemic manner third-country nationals of the procedural and substantial guarantees recognized to them by EU law.

The two mechanisms of the preliminary ruling procedure and the infringement procedure have thus proven to be effective instruments to address rule of law violations in EU Member States, which can also affect migration and asylum legislation.

However, the different nature of such mechanisms entails different effects as regards the protection of migrant and asylum seekers. While the mechanism of the preliminary ruling procedure can result in strengthening the protection of individuals' rights also in context of deterioration of EU common values, the infringement procedure addresses such crisis in a more general and comprehensive manner. In fact, whereas in a preliminary ruling procedure the function of the CJEU is to help the referring courts to resolve the specific dispute pending before them, in an action for failure to fulfil obligations, the Court is called to ascertain whether the national measures challenged by the Commission or another EU Member State, contravenes EU law in general. Moreover, under Article 279 TFEU the CJEU has the power to prescribe an interim measure, which it considers necessary in a case brought before it. While this provision does not provide any limitation concerning the nature and type of case where interim measure could be prescribed by the CJEU, it appears to be particularly useful when it comes with an infringement action under Article 258 TFEU (Prete 2021). This is evident in the recent order of 27 October 2021, issued by the Vice-President of the CJEU (Order of the Vice-President of the CJEU 2021) in the context of an infringement action brought by the Commission against Poland and which ordered to the Member State in question to pay to the Commission a periodic penalty payment of 1,000,000 euros per day.

Against this background, the infringement procedure seems to be a more effective tool to address not only specific, but also multiple violations of EU law obligations as a manifestation of the rule of law crisis in a Member State, which can also affect the area of migration and asylum law.

#### **6. Conclusions**

As emerged from the previous Sections, the recent developments in caselaw show the increasingly essential function of the CJEU in protecting the rule of law within the Union, which now also extends to national migration and asylum law. In particular, through the two mechanisms of the preliminary ruling procedure and of the infringement procedure, the CJEU assessed the compatibility of the Hungarian legislative reforms with EU law, notably with the procedural and substantial guarantees which Member States are called to provide to third-country nationals in case of detention in transit zones and in case of return decisions.

In respect to these obligations, it is possible to find a convergence with the commitments expressed, in a broader manner, in the GCs, in particular in the GCM. In fact, the GCM requires States parties to ensure that any detention, irrespective of the moment it occurs, follows due process, is non-arbitrary, based on law, necessity, proportionality and individual assessments. This includes notably having access to basic rights, such as access to food, basic healthcare, legal orientation and assistance, information and communication, as well as adequate accommodation. Moreover, States parties are committed to enact measures aimed at ensuring that the return of migrants who do not have the legal right to stay on another State's territory is safe and dignified, follows an individual assessment, is carried out by competent authorities and allows all applicable legal remedies to be exhausted.

Taking into account the existent link between these different sources of protection, if one looks at the two mechanisms employed by the CJEU in its caselaw through the lens of the GCs, the infringement procedure appears to be the most appropriate to indirectly contribute to increasing compliance with the commitments provided for by the GCM. In fact, the infringement procedure allows the CJEU to scrutinize in a more comprehensive manner national measures violating EU asylum and migration legislation, notably thanks to the Commission's monitoring role as "guardian of the Treaties".

In this way, the CJEU has thus required the fulfilment of the obligations, which are also reflected in a broader manner in the GCM, by EU Member States regardless of the existence of a specific dispute pending before a national court. This also appears to be in line with the general purpose of the GCs, which are not intended to ensure the protection of migrants and refugees, in their "individual" dimension, but rather to provide a "global" protection of people on the move. Furthermore, in these cases, the infringement procedure seems to be used as an instrument of political pressure on EU Member States to fulfil their obligations under EU law, as the Commission "may" bring the matter before the CJEU and therefore exercise its discretion in this respect where, as the cases analysed show, the political institutions fail to initiate the procedures under Article 7 TEU.

The risk of jeopardizing the principle of institutional balance provided for by the EU Treaties does not seem to affect the need for protecting the rule of law value and migrants' rights which are inseparably combined, allowing (and requiring) that all the available legal and judicial tools and procedures are deployed.

**Funding:** This research received no external funding.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** Not applicable.

**Conflicts of Interest:** The author declares no conflict of interest.

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## *Article* **Border Procedures in the European Union: How the Pact Ignored the Compacts**

**Galina Cornelisse <sup>1</sup> and Marcelle Reneman 2,\***


**Abstract:** This article analyses the (potential) role of the Global Compact for Migration and the Global Compact for Refugees in the development of EU law concerning asylum seekers who arrive at the external borders of the European Union (EU). Under the current rules, many asylum seekers are refused entry to the territory of the EU and detained while their asylum claim is examined in a border procedure. Some EU Member States even push back asylum seekers without a proper assessment of their needs for international protection. Despite widespread violations of the fundamental rights of asylum seekers at the external borders of the EU, the New Pact on Migration and Asylum presents the new integrated border procedure as an important instrument to 'deal with mixed flows' and make the Common European Asylum System (CEAS) work. However, the EU legislator has not substantiated the claim that border procedures will contribute to achieving the aims of the CEAS, such as the creation of a uniform, fair and efficient asylum procedure and prevention of abuse. Neither does the Pact provide a solution for pushbacks and systematic use of detention, nor does it guarantee the quality of the asylum procedure, including the identification of persons with special needs. The Pact therefore not only fails to comply with the EU's own Better Regulation guidelines and protect the fundamental rights of asylum seekers, but it also ignores the standards of the Global Compacts. What role can the Global Compacts still play in the ongoing negotiations over the Pact?

**Keywords:** border procedures; Global Compacts; New Pact on Migration and Asylum

#### **1. Introduction**

The situation of asylum seekers and other migrants arriving at the external borders of the European Union has been of great concern to European institutions, Member States and human rights organisations for many years. According to Frontex, in the first nine months of 2021, 133,900 migrants crossed the EU's external borders in an illegal manner.<sup>1</sup> Many of these migrants, including children, have been subjected to (sometimes violent) pushbacks, detention measures and accelerated asylum procedures at the border, implying systematic violations of their fundamental rights.2

In September 2020, the European Commission (henceforth: the Commission) proposed a New Pact on Migration and Asylum (henceforth: the Pact), which aims to provide a 'durable European framework' offering 'a proper response' to the challenges faced by the Member States in the area of external border control and immigration.<sup>3</sup> An important pillar

**Citation:** Cornelisse, Galina, and Marcelle Reneman. 2022. Border Procedures in the European Union: How the Pact Ignored the Compacts. *Laws* 11: 38. https://doi.org/ 10.3390/laws11030038

Academic Editor: James C. Simeon

Received: 22 February 2022 Accepted: 12 April 2022 Published: 22 April 2022

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**Copyright:** © 2022 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

<sup>1</sup> Frontex, News Release, 'Migratory situation at EU's borders in September: Increase on the Central Mediterranean and Western Balkan routes' (15 October 2021).

<sup>2</sup> See, for example, Fundamental Rights Agency, Migration: Key Fundamental Rights Concerns, Bulletin 2-2021 (24 September 2021), UN Special Rapporteur on the human rights of migrants, Report on means to address the human rights impact of pushbacks of migrants on land and at sea (12 May 2021), (EPRS 2020).

<sup>3</sup> Communication from the Commission on a New Pact on Migration and Asylum, COM(2020) 609 final, p. 1.

of the Pact is the introduction of an integrated border procedure: 'a seamless procedure at the border applicable to all non-EU citizens crossing without authorisation, comprising pre-entry screening, an asylum procedure and where applicable a swift return procedure'.4

The proposals for the New Pact were issued only a few years after the adoption of the United Nations Global Compact for Safe, Orderly and Regular Migration5 (henceforth: GCM) and Global Compact on Refugees (henceforth: GCR)6. These Compacts are not legally binding. However, they express the political commitment of the participating UN Member States to comply with specific principles and objectives (Carrera and Cortinovis 2019, p. 1; Costello 2018) that are rooted in international human rights law.<sup>7</sup> As we will argue in this article, the New Pact as a whole not only fails to engage explicitly with the Global Compacts,8 but the proposed integrated border procedure even violates some of the principles and objectives they promote.

After briefly setting out the proposed measures establishing the integrated border procedure (Section 2), this article identifies four areas in which the proposals for the integrated border procedure in the Pact ignore the Global Compacts. First, it shows that the proposals are not evidence-based, as is required by both Compacts.9 Negating its own Better Regulation Guidelines, the Commission failed to properly evaluate existing legislation on border procedures, monitor Member State practices and carry out an impact assessment of the proposed legislation (Section 3).

Second, the proposed legislation does not provide solutions for current problems at external borders experienced by migrants and even risks exacerbating those problems. This includes difficulties and delays in accessing the asylum procedure and practices of pushbacks (Section 4) and inadequate examination of international protection needs (Section 5) 10. This is incompatible with the GCR, which provides that States should have mechanisms in place for the registration, documentation and status determination of migrants, enabling all those in need of international protection to find and enjoy it.<sup>11</sup> Finally, the proposals, if adopted and implemented, will result in the continuation of practices whereby Member States systematically detain migrants at external borders (Section 6), while the Compacts require that immigration detention be a measure of last resort and promote the development of alternatives for such detention.<sup>12</sup> In our conclusions (Section 7), we highlight the role that the Global Compacts could still play in the current negotiations over the proposed legislation.

#### **2. The Integrated Border Procedure in the Pact**

In short, the proposed integrated border procedure comprises the following measures. First, all migrants arriving at external borders, including those who apply for international protection and those who do not satisfy the conditions for entry in the EU, will be screened to establish their identity and to carry out health and security checks.13 During

<sup>4</sup> COM(2020)609 final, p. 4.

<sup>5</sup> United Nations General Assembly, Global Compact for Safe, Orderly and Regular Migration, Resolution 73/195, Adopted by the General Assembly on 19 December 2018 (henceforth referred to as GCM).

<sup>6</sup> Report of the United Nationals High Commissioner for Refugees. Part II. Global Compact on Refugees, UN Doc. A/73/12 (Part II), New York: United Nations (henceforth referred to as GCR).

<sup>7</sup> See GCM, paras. 1 and 2 and GCR, para. 5.

<sup>8</sup> The Communication of the Commission about the New Pact (COM(2020) 609 final), the Proposal for a Screening Regulation (COM(2020) 612 final) and the Proposal for an amended Asylum Procedures Regulation (COM(2020) 611 final) do not refer to the Global Compacts.

<sup>9</sup> GCM para. 17, GCR paras. 45–48.

<sup>10</sup> See also 'Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum' (Carrera 2020, p. 5) and 'Admissibility, Border Procedures and Safe Country Notions'(Vedsted-Hansen 2020, p. 174), both in: (Carrera and Geddes 2021).

<sup>11</sup> GCR, paras. 58 and 61.

<sup>12</sup> GCM, para. 29 and GCR, para. 60.

<sup>13</sup> Proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817, COM(2020) 612 final, Art 1 under a and b.

the screening, migrants are not authorised to enter the territory of the Member State.14 The screening may take up to five days, which may be extended in exceptional circumstances by another five days.15 After the screening, migrants will be refused entry and/or referred to the suitable procedure, which, amongst others, can be an asylum procedure or a return procedure.16

Second, if asylum seekers are channelled into the asylum procedure, their applications will be examined either in a normal asylum procedure or in an asylum border procedure. Just as during the screening, those subject to the asylum border procedure are not allowed to enter the territory of the Member States.<sup>17</sup> The Pact *obliges* Member States to use a border procedure in three cases: (1) if the asylum seeker poses a risk to national security or public order; (2) if the asylum seeker has misled the authorities by presenting false information or documents or by withholding relevant information or documents; or (3) if the asylum seeker is from a third country for which the share of positive asylum decisions in the total number of asylum decisions is below 20 per cent.<sup>18</sup> The asylum border procedure should be as short as possible but may take up to 12 weeks. After that period, asylum seekers have a right to enter the territory of the Member States.

Third, if an asylum border procedure is used and the application is rejected, a return border procedure will follow.<sup>19</sup> Just as in the asylum border procedure, persons in a return border procedure are not authorised to enter the Member State's territory.20 They should be kept at the external borders, or in their proximity, or in transit zones.21 The return border procedure has a maximum duration of 12 weeks.22

Lastly, the Pact introduces a Crisis Instrument which allows Member States to derogate from the normal border procedures in 'exceptional situations of mass influx of third-country nationals or stateless persons arriving irregularly in a Member State.'<sup>23</sup> In such situations, Member States may extend the use and duration of border procedures. Hence, in situations of crisis, they may apply the asylum border procedure to applicants coming from a country with an EU-wide recognition rate of 75% or lower.24 This means that this border procedure could affect people who have a large likelihood of being refugees. Moreover, in situations of crisis, it is possible to extend the duration of the asylum border procedure and the return border procedure each with another eight weeks.25 As a consequence, the proposed seamless asylum and return border procedure could last for a total period of 40 weeks plus ten days of screening.

<sup>14</sup> Ibid., Art 4.

<sup>15</sup> Ibid., Art 6(3).

<sup>16</sup> Ibid., Art 13.

<sup>17</sup> Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2020) 611 final, Art 41(6). In this particular respect, the proposed border procedure is similar to the current border procedure in Art 43 Asylum Procedures Directive (2013/32/EU).

<sup>18</sup> COM(2020) 611 final, Art 41(3) linking it to the Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2016) 467 final, Art 40(1), which provides for cases in which *accelerated* procedures may be used to decide on the merits of an asylum applications.

<sup>19</sup> COM(2020) 611 final, Art 41a (1) and (2).

<sup>20</sup> Ibid., Art 41a(2).

<sup>21</sup> However, if capacity becomes stretched, Member States may resort to the use of other locations within their territory. See COM(2020) 611 final, Art 41a(2).

<sup>22</sup> COM(2020) 611 final, Art 41a (2).

<sup>23</sup> Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum, COM(2020) 613 final, Art 1. The crisis shall be of such a scale and nature that it would render a Member State's asylum, reception or return system non-functional and would risk having serious consequences for the functioning of, or result in the impossibility of applying, the Common European Asylum System and the migration management system of the Union.

<sup>24</sup> COM(2020) 619 final, Art 4(1) (a).

<sup>25</sup> Ibid., Artt 4 and 5.

#### **3. European Legislation on Border Procedure: Led by Facts or Myths?**

Reading the Pact, one gets the impression that the Commission considers the integrated border procedure as a panacea for some of the migratory problems that Member States and the EU face. It aims to quickly filter out 'abusive asylum requests or asylum requests made at the external border by applicants coming from third countries with a low recognition rate in order to swiftly return those without a right to stay in the Union'. The Commission claims that 'the use of the border procedure would be beneficial to the system of asylum generally, as a better management of abusive and inadmissible asylum requests at the border, would benefit the efficient treatment of genuine cases inland'.26 As we will set out in this section, these statements are not supported by adequate data.

The idea of evidence-based policy making entails that policy decisions are 'better informed by available evidence and should include rational analysis' (Baldwin-Edwards et al. 2019). It is assumed that rational policy making should produce better outcomes.27 Both Global Compacts endorse the idea of evidence-based policy making. Louise Arbour, Special Representative of the Secretary-General for International Migration, stated that with the GCM, 'Governments committed to a global migration framework based on facts not myths' (Statement by Louise Arbour 2018). In this context, it is worth highlighting that the very process of preparation of both compacts was characterised by an extensive process of consultation of States and stakeholders and information gathering (Kraly and Hovy 2020; United Nations 2018, p. III).28

The GCM states in its first objective that States 'commit to strengthen the global evidence base on international migration by improving and investing in the collection, analysis and dissemination of accurate, reliable and comparable data'. These data should foster 'evidence-based policymaking' and allow 'for effective monitoring and evaluation of the implementation of commitments over time'.29 The GCR posits that 'reliable, comparable, and timely data is critical for evidence-based measures to [ ... ] assess and address the impact of large refugee populations on host countries in emergency and protracted situations; and identify and plan appropriate solutions'.<sup>30</sup>

In this light, it is striking that the proposals concerning the integrated border procedure in the Pact are far from evidence based. This shortcoming comes most prominently to the fore with regard to the *mandatory character* of the border procedure and the rationale underlying policies of *non-entry*. For both of these characteristics, the Commission fails to provide any justification in the Pact (EPRS 2021). Moreover, the Commission failed to evaluate the existing border procedure,<sup>31</sup> which lies at the basis of the new integrated border procedure, and to monitor its application in the EU Member States. See also (Di Salvo and Barslund 2020). As a result, information regarding, amongst others, the effectiveness and efficiency of the current border procedure was lacking when the Commission proposed the new instruments. Moreover, there was no clear picture as to the extent of the fundamental rights violations taking place at borders and in transit zones.32 The Commission also omitted carrying out a proper impact assessment of the proposed legislation, which would have identified the problems to be solved, the reasons for and aims of the integrated border procedure and its potential impact on migrants' fundamental rights (See Cornelisse and Reneman 2021). The lack of evaluation, monitoring and impact assessment is incompatible with the Commission's own Better Regulation Guidelines (European Commission 2017).

<sup>28</sup> (Kraly and Hovy 2020). (United Nations 2018) United Nations. 2018. Globle Compact on Refugees. New York. Available online: https://www.unhcr.org/5c658aed4 (accessed on 11 April 2022).

<sup>31</sup> Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, Art 43.

<sup>32</sup> See *EU: Independent Monitoring Mechanism on EU borders must ensure fundamental rights and accountability* (Amnesty International 2020)

<sup>26</sup> COM(2020) 611 final.

<sup>27</sup> Ibid.

<sup>29</sup> GCM, para. 17.

<sup>30</sup> GCR, para. 45.

These guidelines aim to ensure rational policy making and are supposed to form a coherent system of checks and balances underpinning the legitimacy of EU action. (See Cornelisse and Reneman 2021, p. 183).

It was the European Parliament which in 2020 took up the task of drafting an implementation report, focusing specifically on border procedures.<sup>33</sup> This report noted that the assessment of the transposition and application of border procedures was hindered by a lack of comprehensive data, for example with regard to (the grounds, length and location of) detention and the use of alternatives to detention (EPRS 2020). In 2021, the European Parliament requested a Horizontal Substitute Impact Assessment of the New Pact. This impact assessment concluded that under the Pact, lack of data concerning the implementation and application of the CEAS is likely to persist, seeing that the Pact does not propose adequate mechanisms to force Member States to comply with their reporting obligations (EPRS 2021, p. 171).

We have argued elsewhere that the Commission's failure to back up its legislative proposal with evidence is a symptom of the 'broken balance' between politicisation and rationality in the policy field of asylum, resulting in a more political role of the Commission. See (Cornelisse and Reneman 2021). Two factors have facilitated the increased politicisation of the Commission. First, the Commission has been engaged in a continuous struggle over competence with the Member States in this policy field. Member States have tried to avoid the adoption of EU law which would require substantial changes to restrictive national asylum systems. Consequently, EU asylum legislation is often complex and leaves wide discretion to Member States, resulting in widely diverging State practices. This renders monitoring and evaluation of EU law highly problematic and at the same time very important. Second, the shift towards a politicised Commission was caused by an increasing sense of crisis and emergency in the field of EU asylum policy, in particular after the situation of a high influx of migrants in 2015. The Commission wished to counter the image of uncontrolled migration and a failing European asylum system (Costello 2018) by proposing new legislation and ad hoc measures (European Parliament 2016, p. 6). In this process, the Commission did not take time to evaluate and monitor existing EU legislation and policy.34

In the next sections, we will demonstrate that the proposals for the integrated border procedure fail to address major shortcomings in the current EU border procedure. We focus on problems relating to access to the asylum procedure and pushbacks, the examination of asylum applications and detention.

#### **4. Access to the Procedure and Pushbacks at External Borders**

The GCR 'is grounded in the international refugee protection regime, centred on the cardinal principle of non-refoulement' with the Refugee Convention at its core.<sup>35</sup> Both the GCM and the GCR recognise the importance of border control, respectively recommending pre-screening of migrants and the registration and identification of refugees.36 The GCR recognises that 'registration and identification of refugees is key for people concerned, as well as for States to know who has arrived'.37 It specifies that it 'facilitates access to basic assistance and protection, including for those with specific needs'.38

<sup>33</sup> European Parliament, Report on the implementation of Article 43 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (2020/2047 (INI)), LIBE Committee, Erik Marquardt as rapporteur.

<sup>34</sup> Note that the Commission has proposed to enhance monitoring in the New Pact on Migration and Asylum. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, COM(2020) 609 final.

<sup>35</sup> GCR, para. 5.

<sup>36</sup> GCM, para. 27, GCR, para. 58.

<sup>37</sup> GCR, para. 58.

<sup>38</sup> See notes 27 above.

The principle of non-refoulement is protected by EU law,<sup>39</sup> which goes a step further than international refugee law by also protecting the right to asylum.40 However, the Proposal for a Screening Regulation does not explicitly accord persons who wish to apply for asylum a right to remain, nor does it provide for material reception conditions during the period of screening, leaving compliance with fundamental rights during this period to the Member States.<sup>41</sup> The Proposal thus seems to primarily serve security interests, leaving it to individual Member States to ensure 'access to basic assistance and protection, including for those with specific needs'<sup>42</sup> during this phase. This conclusion is supported by the fact that the provisions in the Proposal for a Screening Regulation on the outcome and the debriefing of the screening do not in any way refer to findings on special needs that may have emerged during the screening.43 The choice to tailor EU legislation in such a way that it responds to (legitimate) security concerns while leaving it up to the Member States to ensure conformity with the human rights of migrants sits uneasily with the GCR, which holds that 'security considerations and international protection are complementary'.44 This is especially true in view of widespread problems that have been reported with regard to adequate material reception conditions at external borders in Europe, for example illustrated by (but by no means limited to) past experiences with the Greek refugee camps.<sup>45</sup>

When it comes to timely access to the asylum procedure, some of the adaptations, which are foreseen by the Crisis Instrument, are equally in tension with the GCR's insistence on conformity with international protection and applicable international law standards, also in 'emergency and protracted situations'. The Crisis Instrument allows Member States to delay the registration of applications for international protection up to four weeks (instead of the usual three working days).<sup>46</sup> This derogation aims to ensure the 'enforcement of procedures in situations of crisis, when specific adjustments are needed to allow the competent authorities under strain to exercise their tasks diligently and cope with significant workload'.<sup>47</sup> Such delays in registration would result in an extended duration of a stay at the external border, thus exacerbating some of the problems discussed above. Indeed, the Court of Justice of the EU has held that 'effective, easy and rapid access to the procedure guarantees the protection of the fundamental rights of applicants'.48

In the context of registration of protection claims, the GCR also calls attention to the need to 'avoid protection gaps' and the importance of '[enabling] all those in need of international protection to find and enjoy it'.<sup>49</sup> The GCR's insistence on minimising protection gaps is relevant in the face of the numerous pushbacks which have been reported across a majority of EU Member States (EPRS 2021, pp. 28–29). However, when it comes to addressing these flagrant violations of international refugee law, the Pact provides remarkably little answers. Thus, the proposal for a Screening Regulation proposes that Member States set up a monitoring mechanism, which should cover 'the respect of fundamental rights in relation to the screening, as well as the respect of the applicable national rules in the case of detention and compliance with the principle of non-refoulement'.50

<sup>43</sup> COM(2020) 612 final, Art 13 and 14.

<sup>39</sup> Art 19 Charter of Fundamental Rights of the European Union (the Charter). See also Art 21 of Directive 2011/95/EU (Qualification Directive).

<sup>40</sup> Art 78 TFEU and 18 of the Charter.

<sup>41</sup> COM(2020) 612 final.

<sup>42</sup> See notes 37 above.

<sup>44</sup> GCR, para. 56.

<sup>45</sup> (EPRS 2020, pp 93–94, 206). See also 'Update of the 2016 Opinion of the European Union Agency for Fundamental Rights on fundamental rights in the 'hotspots' set up in Greece and Italy' (Fundamental Rights Agency 2019).

<sup>46</sup> COM(2020) 619 final, Article 6, by derogation from the four working days in Article 27 of the proposal for an amended Asylum Procedures Regulation (COM(2016) 467 final).

<sup>47</sup> COM(2020) 619 final, p. 3.

<sup>48</sup> CJEU Case C-808/18 *Commission v Hungary* [2020] paras. 102–6.

<sup>49</sup> GCR, para. 51.

<sup>50</sup> COM(2020) 612 final, p. 3.

It is unlikely that this monitoring mechanism would actually provide an adequate answer to pushbacks, seeing that it would not extend beyond the screening procedure, thus leaving out the effective monitoring of pushbacks that occur outside the context of any legal procedure. In addition, the mechanism which the Commission proposes is a *national* mechanism, while it has been argued that only an independent mechanism for ensuring compliance with non-refoulement would be effective (Dumbrava 2020; Stefan and Cortinovis 2020).

#### **5. Quality of the Asylum Procedure including Identification of Persons with Special Needs**

In order to implement the provisions of the Refugee Convention and guarantee the principle of non-refoulement, States should identify refugees in a status determination procedure (asylum procedure). International law leaves it to States to 'establish the procedure that it considers most appropriate, having regard to its particular constitutional and administrative structure'.51 Nevertheless, UNHCR (UN High Commissioner for Refugees (UNHCR) (2020)) and international human rights treaty bodies have developed standards for national asylum procedures (Cantor 2015, pp. 79–106). As will be further explained below, on the EU level, the Procedures Directive has established a detailed set of standards for asylum procedures.52

The GCR does not provide States with much guidance regarding asylum procedures. It just mentions that States have status determination mechanisms in place to avoid protection gaps and enable all those in need of international protection to find and enjoy it.53 It makes clear that asylum procedures should be fair, efficient, adaptable and integer.54

Border procedures have two distinctive characteristics which directly affect the asylum seeker's ability to effectively participate in this procedure and the quality of decisionmaking: time limits are short, and the applicant remains in detention throughout the procedure. Short time limits may prevent asylum seekers from properly preparing and substantiating their asylum application and making use of their procedural rights. The fact that asylum seekers are detained limits their access to legal assistance and information and their ability to gather evidence in support of their case. There is an important tension between the factors time and detention in border procedures. Longer time limits may enhance the applicant's ability to substantiate their case and make use of procedural rights, but they also prolong the applicant's detention, which may have negative effects on their well-being.

It may therefore be argued that border procedures should only be applied to less complex cases or cases in which the asylum seeker is not cooperating with the authorities or poses a risk to public order or national security (EPRS 2020, p. 128). The current Procedures Directive allows Member States 'in well-defined circumstances' to examine the admissibility and/or substance of asylum applications in a border procedure, prior to a decision on an applicant's entry to its territory.<sup>55</sup> Nevertheless, it provides 10 different grounds for application of the border procedure.<sup>56</sup> In practice, Member States do not limit the application of the border procedure to less complex cases. Some Member States automatically channel all asylum applications made at the border into the border procedure, irrespective of their merits or complexity (EPRS 2020, p. 71).

The Proposal for an amended Asylum Procedures Regulation extends rather than limits the application of border procedures. As was mentioned before, it even makes the

<sup>51</sup> UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, para. 189. See also (Cantor 2015).

<sup>52</sup> Directive 2013/32/EU.

<sup>53</sup> GCR, para. 61.

<sup>54</sup> GCR, paras. 61–62.

<sup>55</sup> Directive 2013/32/EU, Preamble Recital 38, affirmed by CJEU in Joined Cases C-924/19 PPU and C-925/19 PPU *FMS* [2020] para. 236.

<sup>56</sup> Directive 2013/32/EU, Art 31(8).

application of the border procedure mandatory in specific types of cases, such as cases of asylum applicants from countries of origin with a low recognition rate (less than 20%).57 Vedsted-Hansen notes that 'the totality of the procedural proposals seems to have the rather clear cognitive implication that many asylum seekers neither deserve nor need to undergo substantive examination in normal asylum procedures with the full scope of guarantees' (Carrera and Geddes 2021, p. 177)58.

Time limits for decision making in European border procedures (in the administrative and appeal phase) are often extremely short, sometimes no longer than a few days (EPRS 2020, p. 99). Due to these short time limits and the fact that they are detained, asylum seekers experience substantial problems accessing information and (free) legal assistance and contacting the outside world in order to collect evidence in support of their case (EPRS 2020, pp. 105 and 112). Sometimes, personal interviews are short or very long and/or take place remotely or in spaces where confidentiality is not guaranteed. It is likely that all these factors negatively affect the quality of the decisions taken in the border procedure.

The Commission has not substantiated how the Proposal for an amended Asylum Procedures Regulation contributes to the aim of establishing fair and efficient asylum procedures (Carrera and Geddes 2021, p. 172)59. The proposal introduces a right to free legal assistance during both the administrative and appeal phase of the border procedure.<sup>60</sup> However, the Commission does not mention in its proposal how the existing practical hurdles for making use of this and other procedural rights will be overcome. Moreover, the proposal retains the wide discretion afforded to the Member States with regard to the applicable timeframe in border procedures, as no minimum time limits are set for different steps in the procedure.61

Moreover, the proposal does not comply with the GCR's requirement to pay particular attention to persons with special needs.62 According to the GCR, states should have mechanisms 'for identification, screening and referral of those with specific needs to appropriate and accessible processes and procedures'.63 This entails that children are referred to best-interest determination procedures, that victims of human trafficking and other forms of exploitation receive victim care and stateless persons enter statelessness determination procedures. Moreover, this implies that asylum procedures should be adapted to the special needs of applicants.

In line with the GCR, the Procedures Directive obliges Member States to identify applicants with special needs and exclude them from the border procedure if no adequate support can be provided to them there. Nevertheless, many Member States do not have effective mechanisms in place for this purpose (EPRS 2020, p. 114). Moreover, several Member States apply border procedures to cases of (unaccompanied) minors (EPRS 2020, p. 116). The Proposal for an amended Asylum Procedures Regulation does not guarantee the identification of and support to asylum applicants with special needs. The border procedure can still be applied to minors of 12 years and older.64 The Commission also has not explained how the problem of the lack of identification procedures for asylum seekers with special needs in existing border procedures will be solved.

<sup>57</sup> COM(2020) 611 final, Art 41(3).

<sup>58</sup> 'Admissibility, Border Procedures and Safe Country Notions' (Vedsted-Hansen 2020), in: (Carrera and Geddes 2021).

<sup>59</sup> COM(2020) 611 final, p. 5.; 'Admissibility, Border Procedures and Safe Country Notions' (Vedsted-Hansen 2020), in: (Carrera and Geddes 2021).

<sup>60</sup> COM(2016) 467 final, p. 47.

<sup>61</sup> COM(2016) 467 final, p. 21 and p. 28.

<sup>62</sup> This includes (unaccompanied and separated) children; women at risk; survivors of torture, trauma, trafficking in persons, sexual and gender-based violence, sexual exploitation and abuse or harmful practices; persons with medical needs or disabilities; those who are illiterate; adolescents and youth; and older persons.

<sup>63</sup> GCR, paras. 59–60.

<sup>64</sup> COM(2020) 611 final, pp. 11, 14–15, 17, 27.

#### **6. Systematic and De Facto Detention**

Both Compacts require that immigration detention be a measure of last resort and promote the development of alternatives for such detention.65 This resonates with the protection of the right to liberty in international law, with the UN Human Rights Committee being of the opinion that 'irregular entry on its own cannot justify detention' (Tsourdi 2020, p. 172). In this section, we will argue that the normalisation of pre-entry procedures, which the Pact entails, makes compliance with the right to liberty as stipulated by the Compacts increasingly difficult, if not impossible.

In the first place, the Pact is not clear as to what extent the integrated border procedure entails the use of detention. The Proposal for a Screening Regulation leaves it up to individual Member States whether or not they use detention during the screening. The Proposal for an amended Asylum Procedures Regulation determines that the use of detention is regulated by EU law, but it leaves unanswered the question whether these procedures actually require detention. Instead, it seems to suggest that border procedures can be used without the use of detention.<sup>66</sup> This is striking, not in the least because the Commission has always been of the opinion that border procedures 'imply detention'.<sup>67</sup> As applicants for asylum have a right to remain on the territory of the Member States, at least until they have received a decision on their application for international protection, securing non-entry will in most cases *require* the use of detention (International Commission of Jurists 2021).

By not making clear when and under what circumstances the fiction of non-entry requires detention, the integrated border procedure will not put an end to the existing situation in the EU, in which the qualification of a stay at the border differs considerably per Member State. Thus, a stay at the border in comparable circumstances may amount to detention in one Member State, while it does not in another Member State (EPRS 2020, pp. 81–84). This inevitably results in instances of de facto detention—the use of detention without a legal basis. Indeed, research has shown that in many Member States, a legal basis for practices that in actual fact amount to detention is lacking (EPRS 2020, pp. 81–84, 121, 132, 204–5). De facto detention is not reconcilable with the right to liberty and it ipso facto hinders the legal assessment whether it has been used as a last resort.

Research has also shown that currently, EU Member States as a rule do not assess whether less coercive measures than detention can be imposed.<sup>68</sup> General rules regarding alternatives to detention in the particular context of a border procedure are not provided for in the national laws of the Member States.69 We have seen that the current proposals make the use of a border procedure mandatory in some cases, while they do not provide for mechanisms which assist in the identification of persons with special needs so as to exclude them from border procedures. The result is that the proposed integrated border procedure will likely exacerbate practices of systematic detention at the external borders of Europe (EPRS 2021, p. 96).

The requirement that detention be a measure of last resort also entails that detention cannot last longer than necessary. In this respect, the extension of the border procedure in times of crisis is especially worrisome, because persons can be held at external borders for a maximum of forty weeks plus ten days of screening. Seeing that in such situations, the asylum border procedure may be applied to persons coming from countries with an EU-wide recognition rate of 75% or lower, detention will affect a great many people who are fleeing persecution or war. The way in which the extension of the border procedure in the Crisis Instrument relates to the protection of the right to liberty is not explained by the Commission, but prima facie, it seems difficult to reconcile with the requirement that

<sup>65</sup> See notes 12 above.

<sup>66</sup> COM(2020) 611 final, Art 41(6) and (13).

<sup>67</sup> COM(2016) 467 final, p. 15 and COM(2013) 411 final, p. 4.

<sup>68</sup> Ibid, pp. 89–90.

<sup>69</sup> See notes 27 above.

detention is to be a measure of last resort for which alternatives need to be considered (EPRS 2021, p. 97).

#### **7. What Is the Potential Role of the Global Compacts in Improving the Situation?**

This article has demonstrated that the integrated border procedure as proposed by the Commission in the Pact is *disproportionally* shaped to accommodate security concerns of the Member States. As is noted by UNHCR, 'approaches to access to territory and asylum have increasingly been defined by deterrence policies [ ... ] a surge in unilateralism by States, a gradual shrinking of the protection space for persons in need of international protection and an erosion of the institution of asylum' (UNHCR 2021, p. 1). This is most pertinently illustrated by two characteristics of the integrated border procedure: the fact that its application becomes *mandatory* in a number of cases and the fact that it is built on the *fiction of non-entry*. However, the Commission's implied claim that these characteristics contribute to achieving the aims of the integrated border procedure is not supported by evidence. The Commission failed to evaluate the existing EU legislation concerning border procedures and it omitted to carry out an impact assessment of the Pact.

It has been pointed out that the unbalanced insistence of the Pact on external border control, while leaving questions of solidarity largely to the discretion of the Member States, will entice continuing violations of international refugee law by States at the external borders of the EU (Radjenovic 2020). According to civil society, the fiction of non-entry in the EU proposals would allegedly obscure the relationship between the individual and the state, possibly even undermining the protection of non-refoulement.<sup>70</sup> This is confirmed by the large-scale human rights violations occurring at external borders, including pushbacks, summary asylum procedures and systematic detention.

The question is whether the Compacts can play a role in restoring the balance between on the one hand legitimate security concerns and on the other hand 'the civilian and humanitarian character of international protection and applicable international law'.71 It is clear that the identified gaps in the fundamental rights protection of migrants can also be denounced with reference to the Charter of Fundamental Rights of the European Union and binding human rights treaties, such as the European Convention on Human Rights. However, apart from the intense regulatory complexity which is the result of the interface of EU law and international (soft) law, the very interplay between EU law and the Compacts may help to bring legal significance to a perspective, which has so far been lacking in EU immigration law and is lacking in the Pact. It is the perspective of *global* solidarity, the meaning and implications of which cannot be brought entirely under the scope of European protection of fundamental rights. Both Compacts call for a 'a spirit of international solidarity and burden- and responsibility-sharing'.72 The GCR mentions that it 'represents the political will and ambition of the international community as a whole for strengthened cooperation and solidarity *with refugees* and *affected host countries*'.73

If, in the spirit of the Compacts, the Council, the Commission and the Member States would take the interest of global solidarity and responsibility sharing seriously, the binding force of resulting EU law would bring the implementation of the Global Compacts a significant step further (Guild et al. 2019, 2022) 74. The recent proposals of the European Parliament rapporteurs and UNHCR can assist them to do exactly that. Both the rappor-

<sup>70</sup> See, for example, ECRE, Comments on the Commission Proposal for a Screening Regulation COM(2020) 612 (2020).

<sup>71</sup> See notes 44 above.

<sup>72</sup> GCR, para. 53. See also GCR, paras. 4, 9 and 21 and GCM, paras. 14, 39 and 42.

<sup>73</sup> GCR, para. 4, emphasis added.

<sup>74</sup> Guild et al. (2019) argue that due to the friction between the application of human rights to everyone and the political sensitivities of certain states, the implementation of the Global Compacts depends upon partnerships with non-state actors. See also 'The UN Global Compacts and the Common European Asylum System: Coherence or Friction?' (Guild et al. 2022).

teur on the Proposal for a Screening Regulation75 and UNHCR (UNHCR 2021, p. 1) have renounced the fiction of non-entry. Moreover, both the European Parliament rapporteur on the amended Proposal for an Asylum Regulation76 and UNHCR<sup>77</sup> recommend limiting the application of the border procedure to less complex cases. This aligns with the Commission's earlier stance that border procedures should only be used in exceptional circumstances.78 The Global Compacts may thus serve as advocacy tools in the continuing political negotiations and the legislative process to support the argument that the practices of containment which the Pact proposes through the integrated border procedure not only risk violating international and EU law, but ultimately do not establish a sustainable approach to the global governance of migration (Evan Easton-Calabria 2021, pp. 125–33).

**Author Contributions:** Conceptualization, G.C. and M.R.; Writing original draft, G.C. and M.R. All authors have read and agreed to the published version of the manuscript.

**Funding:** This research received no external funding.

**Conflicts of Interest:** The authors declare no conflict of interest.

#### **References**

	- *Experiences on Containment and Mobility and their Impacts on Trust and Rights*. Edited by Sergio Carrera and Andrew Geddes. Fiesole: European University Institute.
	- <sup>75</sup> Draft Report on the proposal for a regulation of the European Parliament and of the Council introducing a screening of third-country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 (COM(2020)0612—C9-0307/2020—2020/0278(COD)), p. 85.
	- <sup>76</sup> Draft Report on the implementation of Article 43 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (2020/2047(INI)), pp. 6 and 10.
	- <sup>77</sup> UNHCR, EU Pact on Migration and Asylum, cit., pp. 3–4.
	- <sup>78</sup> See notes 67 above.

## *Article* **Comprehensive Approaches in the Global Compact for Migration and the EU Border Policies: A Critical Appraisal**

**Daniela Vitiello**

Department of Law and Humanities, University of Tuscia, 01100 Viterbo, Italy; daniela.vitiello@unitus.it

**Abstract:** The quest for safe, orderly and regular migration underpins the UN Global Compact for Migration (GCM) and translates into "comprehensive and integrated" responses to large movements of refugees and migrants. The effort to de-compartmentalise the governance of cross-border human mobility through "comprehensiveness" shapes the overall search for greater policy coherence via regime interaction and shared responsibility within the GCM. A similar effort has been made at the EU level to overcome the "silos approach" characterising the distinct policies on migration, asylum, and border management. This parallelism is particularly meaningful as the reason is twofold: at the operational level, because of the role played by the EU in fashioning the cooperation models underpinning the GCM, which enhances the relevance of EU law and practice for the implementation of the GCM; at the normative level, because the GCM draws on four guiding principles—i.e., sovereignty, good governance, human-centricity, and the rule of law—which are also key features of the EU legal system. Departing from these premises, this article reveals the meaning of "comprehensive and integrated" responses to large movements of refugees and migrants in the GCM and EU border policies. It does so in order to provide a critical appraisal of the legal and policy implications of comprehensive approaches in the global and European governance of cross-border human mobility.

**Keywords:** large movements of refugees and migrants; governance of cross-border human mobility; the Global Compact for Migration; the Global Compact on Refugees; guiding principles; the European Union; comprehensiveness versus fragmentation; de-compartmentalisation

#### **1. Introduction**

The quest for safe, orderly and regular migration is the quintessence of the UN Global Compact for Migration (GCM), as made immediately evident by its *nomen*. The Compact's denomination underscores the substantive aspiration that underpins its normative structure and institutional architecture, in line with indicator 10.7.2 of the Sustainable Development Goals, i.e., turning dangerous routes and unsafe journeys into regular pathways. According to Objective 23, this goal shall be attained by strengthening international cooperation and global partnerships for "a comprehensive and integrated approach to facilitate safe, orderly and regular migration". This commitment follows up the New York Declaration, which calls for greater international cooperation to deal effectively with large movements of refugees and migrants, and frames this endeavour as the centrepiece of the search for "comprehensiveness" in the new global response to migration and human mobility (Annex I, para. 7 and Annex II, para. 1).

In addition, the New York Declaration acknowledges that the pursuit of "durable solutions" for refugees is a global responsibility, to be addressed through a whole-of-society and whole-of-government approach (para. 16). In the UN Global Compact on Refugees (GCR), this approach to "comprehensiveness" translates into international cooperation and the mobilisation of civil society under the auspices of the Global Refugee Forum and the Global Refugee Sponsorship Initiative. Thus, both Compacts seem to provide a more comprehensive "architecture" to the substance of international migration law (IML)—to

**Citation:** Vitiello, Daniela. 2022. Comprehensive Approaches in the Global Compact for Migration and the EU Border Policies: A Critical Appraisal. *Laws* 11: 78. https:// doi.org/10.3390/laws11050078

Academic Editor: James C. Simeon

Received: 2 July 2022 Accepted: 3 October 2022 Published: 19 October 2022

**Publisher's Note:** MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

**Copyright:** © 2022 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

use the very effective metaphor by Aleinikoff (2007) describing international legal norms on migration as "substance without architecture".

Revealing and reflecting on gaps, pitfalls, and the potential of "comprehensiveness" to hinder or, on the contrary, enhance good governance and individual agency within the GCM is the prime aim of this research (see, *mutatis mutandis*, Biermann et al. 2009; Young 2018). Comprehensiveness, in the sense of the GCM (para. 41), is intended as the search for greater policy coherence via regime interaction, having as a touchstone the overarching respect for the rule of law and the human rights of people on the move (Betts and Kainz 2017). In the GCM, this endeavour is accompanied concurrently by States' commitment to integrate the management of their borders (Objective 11 GCM), while securitising international travel is a cross-cutting and comprehensive concern, occupying at least one-third of its objectives (Koslowski 2019). These goals are connected to the basic premises of IML as rooted in the sovereign right of States to decide on the admission of aliens to the territory. The principle of sovereignty is indeed a core guiding principle of the GCM (para. 15(c)), which shapes cooperation on integrated border management (IBM) within the remit of Objective 11, together with "the rule of law, obligations under international law, and the human rights of all migrants, regardless of their migration status" (para. 27) (Carrera et al. 2018).

While border management is intrinsically linked to the well-established sovereign power to exclude aliens from access to the territory1, the call for cooperation on IBM is quite novel in the international setting. The operational notion of IBM has been developed at national and regional levels and plays a crucial role within the EU legal system (see, among many, Hobbing 2005; Carrera 2007), where it is devoted to "eliminate loopholes between border protection, security, return, migration, while always ensuring the protection of fundamental rights" (COM(2022)303, para. 1). As such, this notion goes necessarily beyond the scope of international cooperation within the framework of the protocols attached to the Palermo Convention (see Molnár and Brière 2022). Its distinctiveness relates to the effort to overcome the "silos approach" characterising national policies on migration, asylum, and border management through a comprehensive and intersectoral governance of cross-border human mobility (Moreno-Lax 2017a; Wagner 2021).

Although the EU has not yet adopted the GCM2, its input towards framing IBM as a global goal within the remit of the GCM has been lucidly demonstrated (Molnár 2020, p. 331). In this sense, the EU integrated management system for external borders may be considered a model for the development of "international, regional and crossregional border management cooperation", with a view to "facilitating safe and regular cross-border movements of people while preventing irregular migration" (Objective 11 GCM, para. 27(a)). Furthermore, the EU integrated border management system does not operate in a vacuum, as it is embedded into a legal system premised upon the prominent role given to the rule of law and protecting the human rights of all, regardless—at least in principle—of their migration status. These axiological components of the EU legal system are shared by the GCM, which also has the centrality of national sovereignty in common. This explains why insights from the EU trend towards de-compartmentalisation of EU migration, asylum, and border management policies might be also significant for the implementation of the GCM.

Departing from a reflection on the principle of sovereignty as the major source of fragmentation of the IML (Section 2), this article explores the search for comprehensiveness in the GCM and EU border policies, by focusing on the interplay between the quest for safe pathways and the commitment to integrated border management. First, it does so at a theoretical level, through a systemic and contextual interpretation of the GCM (Section 3). Subsequently, analysis draws on the lessons learned from the EU governance of cross-

<sup>1</sup> See, eloquently, ECtHR [GC], decision of 5 May 2020, No. 3599/18, *M.N. and Others v. Belgium*, para. 89.

<sup>2</sup> The *Proposal for a Council Decision authorising the Commission to approve, on behalf of the Union, the Global Compact for Safe, Orderly and Regular Migration in the field of immigration*, COM(2018)168, was withdrawn by the European Commission in 2019.

border human mobility for advancing the understanding of "comprehensiveness" at the operational level (Section 4).

This analysis adds to existing literature on the fragmentation of international law (see, among many, Sur 1997; Fischer-Lescano and Teubner 2004; Dupuy 2007; Koskenniemi 2007; Broude and Shany 2011; Young 2012; Peters 2016) and the "asymmetry" of IML (see, e.g., Lillich 1984, p. 122; Cole 2006; Opeskin 2009, p. 27; Molnár 2015) by showing that the call for a comprehensive and integrated response to migration and human mobility cannot be considered an element of intrinsic advancement in terms of consistency between the aims and means of the IML. On the one hand, such a call may be framed as a trigger to strengthen migrant and refugee rights; on the other, it may turn into a particularly insidious conceptual framework for innovative techniques of "cooperative deterrence" (Gammeltoft-Hansen and Hathaway 2015), expanding the legal hiatus between the individual right to leave any country and the state prerogative to exclude aliens from access to their territory. The conditions under which this ambivalent interaction between the quest for safe and regular pathways and cooperation on border management may lead to the enhancement—or (vice versa) to a further dilution—of the legal entitlements of migrants and refugees are identified in the concluding section (Section 5), with a view to contributing to the debate stimulated by the International Migration Review Forum (IMRF).

#### **2. The Sovereign and the Migrant: Retrospectives on the Fragmentation of IML**

Free movement is among the earliest rules on the treatment of aliens by political entities (Purcell 2007). Plato, in his fifth book of *The Laws*, already warned that "the absolute prohibition of foreign travel, or the exclusion of strangers, is impossible, and would appear barbarous to the rest of mankind" (Jowett 2010, p. 156). As a result, the right to leave and the right to enter any country have developed in parallel for centuries. These rights were naturally tempered by the interests of the governing entity, as they have never been conceived of as absolute rights (Chetail 2017, p. 19). However, early developments of the corpus iuris governing human mobility clearly confirm that the ethos of hospitality has underpinned the first elaborations of the right to asylum (Crépeau 1995). At the same time, the Westphalian endorsement of Hobbesian sovereignty as the overarching principle steering international relations3 triggered a decisive fracture between emigration and immigration. The asymmetry between the human right to leave any country and the octroyed concession to enter a foreign country, to be granted by the sovereign State, is the major heritage of this fracture in contemporary international law (Chetail 2014).

The impact of sovereignty on the development of the IML as a fragmented and complex regime has been widely explored (see, among many, Opeskin et al. 2012; Chetail 2019). National sovereignty is the primary source and a key determinant of the asymmetry between the two poles of the movement of people across international borders, which has contributed to the fragmentation of IML in a number of different ways.

At first, freedom of movement and residence rights were only recognised within state borders, while the right to leave any country was framed as universal (see Art. 13 of the Universal Declaration of Human Rights—UDHR; Art. 12 of the International Covenant on Civil and Political Rights—ICCPR).<sup>4</sup> Meanwhile, attempts at reconciling emigration as a human right with immigration as a matter for national regulators have triggered the liberalisation of human mobility within the Global North (Minderhoud et al. 2019). Alongside the proliferation of sectoral and regional designs on the free movement of persons—such as the multilateral cooperation framework on service providers in the General Agreement on Trade in Services and the Schengen cooperation within the European Union—the "bifurcation of human mobility" along the North/South axis has expanded the room for externalisation and double standards (Spijkerboer 2018). Similarly, differential

<sup>3</sup> On national sovereignty as the overarching principle framing the State—i.e., sovereignty as a frame—and steering international relations—i.e., sovereignty as a claim—see further, Walker (2013).

<sup>4</sup> See also OHCHR-IOM, *Migration, Human Rights and Governance: Handbook for Parliamentarians*, No. 24/2015, pp. 19–20.

legal treatment of aliens rooted in nationality remains commonplace, because—as recently reaffirmed by the International Court of Justice (ICJ) in *Qatar v. United Arab Emirates* it falls beyond the scope of the prohibition of discrimination on "national origin" set forth in Art. (2) and (3) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD)5.

Second, the protection offered by international refugee law (IRL) to certain groups of aliens mirrors the fracture between the regulatory levels at which the international movement of people has been traditionally addressed by configuring refugee status as a self-contained exception to the rule (Goodwin-Gill and McAdam 2021). Complementary protection afforded by international human rights law (IHRL)—although universal (Art. 14 UDHR)—does not go beyond the right to seek protection, while it frames the enjoyment of asylum as a state-dependent right (Grahl-Madsen 1980). Thus, the most prominent limitation to the sovereign power to control access to the territory consists of a ban on States wishing to remove aliens who may risk severe and irreparable harm in the country of origin. In this sense, the prohibition of refoulement has been neatly qualified as "a piece in the international struggle for the enforcement of fundamental rights" (Schabas 2007, p. 47). This prohibition has offered individuals a *locus standi* before international and municipal *fora* to complain against removals leading to a real risk of persecution or serious harm, while interdicting penalisation for spontaneous arrivals and unauthorised entry of would-be refugees (Goodwin-Gill 2001).

Third, the tide of human rights, together with globalisation, have prompted a revival of the Hobbesian will to punish (Fassin and Kutz 2018). On the one hand, IHRL challenges state sovereignty from the inside, while on the other, by making state borders more porous and less manageable, globalisation challenges it from the outside, disproportionally affecting migration and refuge at the borders. Coupled with the functional outsourcing of public powers to disembodied and delocalised entities by receiving States, this revival of the cogency of borders has triggered the development of a rich toolbox of *non-entré* policies, which has been thoroughly explored and illustrated by the scholarship (see, among many, Gammeltoft-Hansen and Hathaway 2015; Gammeltoft-Hansen and Tan 2017; Carrera et al. 2019b).

This explains why—with over 281 million people on the move6—the adoption of Global Compacts has been seen as an unprecedented opportunity. Even if they are nonbinding frameworks of result-oriented commitments (Gammeltoft-Hansen et al. 2017; Guild and Grant 2017), it has been claimed that they could "become a pivotal regulative tool", leveraging on a global governance approach to develop "a new understanding of normativity in international law" (Hilpold 2021, p. 18).

The legal aspiration for a new legal paradigm governing human mobility across international borders has—in turn—called into question how to make the global governance of large movements of migrants and refugees "work for all" (UN Doc. A/72/643). The responses provided by the Global Compacts, especially by the GCM, seem to reverse the fragmentation of the IML by developing a comprehensive normative framework for the governance of cross-border human mobility. These developments are illustrated in the next section, in order to offer an overview of their potential impact on the asymmetry between the sovereign right to exclude and the human right to move across the borders.

#### **3. Clustering the GCM's Guiding Principles: Bridging the Gap or Widening the Hiatus?**

This section examines the scope and content of "comprehensiveness" within the normative architecture of the GCM, by taking into account the interplay between the quest for safe, orderly and regular migration and cooperation on border management. This interplay is featured in the guiding principles outlined in para. 15 of the GCM, which

<sup>5</sup> ICJ, judgment of 4 February 2021 (preliminary objections), *Application of the International Convention on the Elimination of All Forms of Racial Discrimination* (*Qatar v. United Arab Emirates*), para. 83.

<sup>6</sup> *World Migration Report 2022*, International Organisation for Migration (IOM), Geneva, p. 2.

pivot around four determinants building and explaining interconnections among all soft commitments; i.e., national sovereignty, good governance, human-centricity, and the rule of law7.

These determinants intersect all migration-specific objectives—as listed in para. 16 and can be further articulated as cutting across two main clusters of commitments, the first intergovernmental and second human centred. Yet, the potential effect this cross-cutting and interconnected approach might have on the implementation of the GCM remains undetermined, primarily because of the lack of any political option on the normative or logical pre-eminence of one determinant over the others (Panizzon 2022) 8. Indeed, as the scholarship has demonstrated (see, among others, Pécoud 2021; Martín Díaz and Aris Escarcena 2019), the negotiation and implementation of the GCM has been affected by a marked tendency to de-politicise the major dilemmas fragmenting the global governance of international migration—a tendency that has sharply diluted the original commitment (and aspiration) to make migration "work for all" (UN Doc. A/72/643).

Thus, the following subsections attempt to capture the inherent tension between the old logic of fragmentation and the new search for policy coherence through comprehensive approaches. On the one hand, they show how the lack of political consensus over the normative or logical differentiation (Elias and Lim 1997) of the GCM's commitments, together with a defective proceduralisation of the mechanisms and indicators to make migration management more unbiased (Kleinlein 2019), reproduce the fragmentation of IML within the GCM. On the other, analysis shows how the very same idea "that we are all countries of origin, transit, and destination" (Objective 23, para. 39, GCM) might advance at least on paper—a more equitable and comprehensive model of responsibility-sharing. The areas of major friction are examined from the perspective of the two main clusters identified above—that of international cooperation and that of the human rights' holders.

#### *3.1. Cluster 1: International Cooperation*

This subsection investigates the interrelation between Objectives 23 and 11 of the GCM, as steered by the GCM's principles pertaining to the intergovernmental realm; i.e., national sovereignty and migration governance. It does so in order to assess how this interrelation may shape international cooperation in the field of migration and asylum; that is, either by consolidating existing trends of global migration governance "without migrants" (Rother 2013b; on the notion of "migration governance", see also Betts 2011; Koslowski 2011) or envisaging innovative models of cooperation in line with the claim for *good* governance9.

#### 3.1.1. Shared Responsibility within the "Migration Cycle": A Possible Reading of Objectives 23, 2, and 5, in Combination with Objectives 11 and 21

The rationale upon which the call for international cooperation in managing large movements of migrants and refugees is rooted is twofold: first, it is linked to the idea that promoting closer cooperation among all countries throughout the "migration cycle" (para. 16 GCM) may contribute to better governance at the bilateral, regional, and global level (para. 39(e) GCM); second, it puts forward the assumption that the achievement of better governance of migration may reinforce the principles of solidarity and shared responsibility (para. 39 GCM).

The causal nexus between a less fragmented migration governance—aligning cooperation with the migration cycle—and the principle of equitable burden and responsibility sharing is mediated, within the GCM, by the idea that cross-border human mobility may

<sup>7</sup> The *IMRF Progress Declaration* (UN Doc. A/AC.293/2022/L.1), endorsed by the UN General Assembly on 7 June 2022 (under item 15 A/76/L.58), reiterates their central role.

<sup>8</sup> This is confirmed by the *Second Report on the Implementation of the GCM*, UN Doc. A/76/642, which has been rightly criticised for its vagueness, making it difficult to secure good faith implementation (Grundler and Guild 2022).

<sup>9</sup> On establishing "good governance of migration" as an explicit goal of the UN, see UN Doc. A/71/728, para. 41.

represent, if well-managed, a global common good, in connection with the values and principles embodied in the UN Charter (see Arbour's Closing remarks at GCM). That is why para. 11 of the GCM frames the "overarching obligation to respect, protect and fulfil the human rights of all migrants, regardless of their migration status" as a shared responsibility—a notion with a well-established relevance for international cooperation in the human rights field (Salomon 2007) and vis-à-vis the collective responsibility towards refugees (Hurwitz 2009).

Objective 23, therefore, is closely connected to two other goals: the one enshrined in Objective 2, which concerns the root causes of forced migration, and that put forward in Objective 5, which refers to the availability and enhancement of regular pathways. The interplay between Objectives 23 and 2 provides upstream solutions to forced migration. It pinpoints cooperative patterns based on "the rule of law and good governance, access to justice, and protection of human rights" (para. 18(b) GCM) with a view to minimising adverse drivers and structural factors that compel people to leave their country of origin. The interrelation between Objectives 23 and 5 offers, in turn, downstream responses to mass and protracted displacement, "in which refugees find themselves in a long-lasting and intractable state of limbo" (UNHCR ExCom EC/54/SC/CRP.14).

In addition to this goal, which is significant for the GCR too, the GCM extends the notion of regular pathways beyond the remit of IRL, by putting forward the idea that a better management of large movements of migrants and refugees cannot help but facilitate labour mobility (paras 21 and 22(g)) and family reunification (para. 21(i)). That facilitating human mobility is intended as the key premise to successful cooperation on migration is evident from the recurrent reference to this goal—mentioned 62 times in the text of the GCM (Crépeau 2018). The emphasis on facilitating human mobility translates into three major commitments: first, the de-casualisation of the migration status, by the recognition of legal identity (para. 20) and easing the transition from one status to another (paras 22(g) and 23(h)); second, the adoption of a rights-based approach to the principle of non-discrimination, which allows differential treatment only in accordance with IHRL (para. 31); and third, the promotion of an evidence-based public discourse and datadriven policies, in order to re-shape perceptions concerning migration and fight persistent stereotypes (para. 33).

By advancing the idea that large movements of migrants and refugees can be governed by granting safe passage and regular statuses, the GCM proposes an alternative to the dominant containment approach steering international cooperation on migration under the headship of the Global North (Gammeltoft-Hansen and Tan 2017). This alternative model, relinking "the rule of law and good governance" with "access to justice and protection of human rights" (para. 18(b) GCM), is, however, merely sketched out and presented as the re-statement of existing governance models. Moreover, its central feature—i.e., the facilitation of safe and regular cross-border movements of people—is construed in a dyadic relationship with the prevention of irregular migration (para. 27).

In this way, the containment rationale, embedded in the dominant approach to cooperation on migration, resurfaces from the legal texture of the GCM and downplays the call for regularisation of human mobility. The word choice confirms this reading: indeed, while the notion of "labour mobility" crosscuts all GCM Objectives dealing with regularisation of migration pathways, the expression "labour migration" is confined to very specific aspects, mostly concerning the implementation of existing commitments. As "labour mobility" invariably alludes to frequent to-and-from movements between countries of origin and destination, but does not refer to settlement, behind this notion lies the idea that "mobile" labour migrants are not in principle eligible for stable settlement in destination countries.

The intrinsic source of inconsistency laying at the very basis of the quest for safe pathways becomes apparent when considering the other principle shaping intergovernmental cooperation within the GCM: i.e., national sovereignty. The new global governance of large movements of migrants does not only uphold this principle (recital 7 of the preamble), but elevates it to a guiding principle, compacting the unity of purpose of participating States

(para. 15), and to the fundamental organisational principle governing integrated border management (para. 27).

Due to the prerogative of States to distinguish between regular and irregular migration10, the shared responsibility "to respect, protect and fulfil the human rights of all migrants, regardless of their migration status"—set forth in para. 11 of the GCM—has to be squared with "different national realities, policies, priorities, and requirements for entry, residence, and work", set forth at the domestic level (para. 15, *lit.* c).

As domestic authorities are primarily in charge of the balancing exercise inherent in these different realities, policies, priorities, and requirements, national responses are the prime implementing instrument of the GCM. The interconnectedness between the border regime and human mobility (Betts 2010) thus rests on those state authorities that determine the ultimate significance of the borders; either as a means to prevent unauthorised journeys or as a tool to organise safe passages (Arbel 2016). As a result, within the sense of Objective 23, the management of cross-border human mobility in a coherent and effective fashion is disconnected from the commitment to "responsible" migration—to be intended as a responsibility *for* and *towards* migrants and refugees, within the meaning of indicator 10.7 of the 2030 Agenda for Sustainable Development (Guild 2018). Cooperation on cross-border human mobility is made dependent, instead, upon the blending of operational cooperation on integrated border management (Objective 11) and deformalized partnerships on readmission and reintegration (Objective 21).

The interplay between Objectives 11 and 21 GCM reveals that the efficiency of return and reintegration mechanisms shall be chiefly achieved via anticipatory border governance. This necessitates an emphasis on pre-departure cooperation, aimed at pre-filtering people on the move and curbing the migration journey, in order to reduce the resulting number of returnees (para. 27(c)) and the related risk of displacement upon return (para. 37(b)). Correspondingly, managing national borders "in a coordinated manner, promoting bilateral and regional cooperation, ensuring security for States, communities, and migrants" (para. 27) requires enhanced "cooperation on the identification of nationals and issuance of travel documents to facilitate returns and readmission" (para. 37(c))—a goal that, within the GCM, is connected to the duty on States to readmit their own nationals (Objective 21), while within the GCR, it is associated with refugees' dignified return (para. 11).

3.1.2. On Possible Inferences: Does the GCM Advance a Duty of Intergovernmental Cooperation on Return/Readmission?

Remarkably, both Compacts negatively construe the right to leave any country and to return to the country of origin/habitual residence, emphasising the importance of the return dimension, in connection with the duty to "[m]inimize the adverse drivers and structural factors that compel people to leave" (Objective 2). This limited and partial understanding of the right to leave will be considered in the next section from the perspective of individual entitlements. However, the exegesis of the right to leave in the GCM is also relevant regarding international cooperation on migration because it "fragments" the migration cycle (para. 16 GCM) by neatly separating cooperation on readmission from the activation of new channels for regular migration. As a consequence, the good governance of large movements of migrants and refugees throughout the migration cycle appears restricted to labour migration based on skills-matching with national economies of receiving countries (Objective 5).

In addition, although the customary nature of the right to return to one's own country as reproduced in Art. 12(4) ICCPR—is undisputed, it has been rightly pointed out that the existence (and nature) of a corresponding duty of intergovernmental cooperation on return/readmission of nationals is more controversial (Guild and Weatherhead 2018), especially when it comes to the removal and deportation of rejected asylum seekers (Noll 1999). In this sense, the GCM's emphasis on the responsibility towards the international

<sup>10</sup> On the need to keep and reinforce existing legal categories, refer to the GCM co-facilitators' position of 5 March 2018, available here.

community of migrant-sending countries for large movements of migrants and refugees appears problematic.

From a legal viewpoint, it allows migrant-receiving countries to advance a normative claim in negotiations on minimising drivers and factors of involuntary migration (Objective 2). This shift cannot be regarded as having a mere "para-law" function—in the sense indicated by Peters (2018) 11. It seems, instead, to mark an attempt to streamline international cooperation on readmission by advancing an *opinio necessitatis*—if not yet *iuris*—to making countries of origin accountable for unauthorised departures and difficult returns.

Content-wise, "helping migrants at home", before they are compelled to leave, and escorting them back home when they have no legal title to stay is the motto synthetising this shift. The legal aspiration to trace and control human mobility across borders is, therefore, theoretically and practically connected to the reproduction of unbalanced international relations between the Global North and the Global South, rhetorically mediated by protection needs. Thus, notwithstanding the GCM's call for interconnectedness between migration-specific policies (e.g., labour migration) and non-migration-specific policies (trade, education, energy, and investment), this unbalanced relationship cutting across the GCM may replicate and even fortify cooperation on externalisation and responsibility shifting, along the lines of the "consensual containment" paradigm (Giuffré and Moreno-Lax 2019; see also Lavenex 2016; Vitiello 2019; Panizzon and Vitiello 2019).

3.1.3. On Ambivalent Models and Tricky Assumptions: What Does "Data-Driven Governance" Mean for "Good Governance"?

Operational cooperation affecting migrants in transit and assistance with border management are represented as a means to reduce unauthorised human mobility for lifesaving purposes, as clearly enshrined in Objective 8 on coordinated efforts for search and rescue at sea, or for humanitarian purposes, as indicated in Objective 9 on transnational responses to migrant smuggling.

From this perspective, the GCM crystallises data-driven and evidence-based state practice and regulation, which legitimises the recourse to the protection argument to put forward containment cooperation (Moreno-Lax 2018). This is the case of cooperation protocols aimed at facilitating "cross-border law enforcement and intelligence cooperation in order to prevent and counter smuggling of migrants so as to end impunity for smugglers and prevent irregular migration" (para. 25(c)) and for the other types of deformalized cooperation (e.g., technical arrangements and migration partnerships) listed in Objective 23.

Similarly, the anticipatory approach to integrated border management emerges from the prominent role assigned to information and communications technology, alongside intelligence cooperation, in steering human mobility across the borders. Objective 3 expressly prioritises the information of migrants to raise awareness of the risks of irregular migration, while Objective 1 endorses an evidence-based model of decision-making on migration, based on "accurate and disaggregated data". Objective 12, aimed at strengthening the predictability of migration procedures, alongside the identification of migrants required under Objective 4, are other fundamental elements connected to this model of evidence-based governance.

While procedural standardisation (para. 28, *lit.* c) and universal recognition of travel documents (para. 20, *lit.* b) may enhance the protection of people on the move, their clashing with the return rationale may turn them into the means to downplay migrants' right to an effective remedy at the borders and privacy rights. Similarly, evidence-based governance of migration may help reverse anti-immigrant narratives spreading in the

<sup>11</sup> As Peters (2018) points out, the GCM may have different functions: first, bolstering the progressive development of IML, by supporting the formation of an *opinio iuris* on the recognition of safe pathways ("pre-law" function); second, codifying customary international norms and being a hermeneutic parameter for integrating lacunae ("para-law"-function); and third, enhancing the effective implementation of hard law by providing operational and interpretative guidance ("law-plus"-function).

Global North. However, if comprehensive data collection is not guided by any overarching principle other than national interest, the result cannot but reflect this premise.

#### *3.2. Cluster 2: Migrant and Refugee Rights*

This subsection matches the results obtained from the analysis of the normative interplay between Objectives 23 and 11 of the GCM at the intergovernmental level with the other core determinants steering and orienting the implementation of the GCM; i.e., human-centricity and the rule of law. It does so in order to assess the potential impact on migrant and refugee (substantive and procedural) rights of international cooperation in the two fields of action identified by Objectives 23 and 11. Therefore, the rights covered by the analysis belong to two macro areas: those connected to the right of entry and those related to the right to stay.

The analysis departs from the major issue at stake during the negotiation process of the GCM—which lucidly emerges from most of the plenary statements rendered at the Marrakech Conference; i.e., the exigency to reassure States that the quest for safe pathways would not further erode sovereign control over external borders12. The emphasis on leaving untouched the dichotomy between migrants and refugees responds to this exigency of mitigating States' concerns and affects the implications of "comprehensiveness". Yet, it does not merely translate into the adoption of two different Compacts. It also implies the need for a complex balancing act—within the scope of the GCM—between the quest for human centricity and the preservation of state prerogatives of border control.

Entry and exit rights are impacted by this inherent tension in a twofold manner: first, in relation to the function of the principle of non-refoulement as a "method of promoting global observance of human rights" of people on the move (Schabas 2007, p. 47), and second, with reference to the function of the right to leave as a trigger of the right to seek asylum (Guild 2013; Moreno-Lax 2017a, p. 378; Goldner Lang and Nagy 2021, p. 447). Similarly, the rights to stay and to legal identity of migrants are affected by this tension, which also makes the prohibition of discrimination conditional on the "distinctions, exclusions, restrictions, or preferences [...] between citizens and non-citizens"—in the sense of Art. 1(2) CERD.

This understanding of the prohibition of discrimination has been recently upheld by the ICJ, in the abovementioned case *Qatar v. United Arab Emirates*, where it aligned with the ordinary meaning of Art. 1(2) CERD, as well as with the consolidated jurisprudence of specialised human rights courts such as the European Court of Human Rights (ECtHR)13. Nonetheless, the ICJ's decision to negate its jurisdiction *ratione materiae* appears striking in light of the CERD Committee's view—as expressed early on in a parallel case—that discrimination based on nationality may fall within the scope of the Convention14. In addition, although the case was decided by a solid majority, it is remarkable that most of the minority judges came from developing countries (see further on this Ulfstein 2022). Among the extra-legal factors that may have influenced the ICJ's decision, there is the alleged risk of impacting the rigid compartmentalisation of migrant categories underpinning IML and IRL.

Although the GCM upholds this rigid compartmentalisation, the following analysis challenges it by showing its intrinsic contradiction with the goal of creating a comprehensive "cooperative framework addressing migration in all its dimensions" (para. 4 GCM), and more specifically—with human-centricity and the rule of law.

<sup>12</sup> All of the statements are available on the website of the Intergovernmental Conference on the GCM. See, among others, the Statement by the UN Secretary-General, António Guterres, dispelling the myth that "The Compact will allow the United Nations to impose migration policies on Member States, infringing on their sovereignty".

<sup>13</sup> See, e.g., ECtHR [GC], judgment of 23 June 2008, No. 1638/03, *Maslov v. Austria*.

<sup>14</sup> CERD Committee, decision of 27 August 2019 on the Admissibility of the Inter-State Communication Submitted by Qatar Against the UAE, para. 63, UN Doc. CERD/C/99/4.

3.2.1. Entry Rights and Non-Refoulement: Or Why the GCM Does Not Call a Spade a Spade

Objective 21, committing States to "facilitate and cooperate for safe and dignified return", codifies the principle of non-refoulement in its extensive form, covering developments under IHRL and EU law15. The definition of the non-refoulement principle is accompanied by the prohibition of collective expulsion and the call for recognising due process rights to returnees.

Nonetheless, the GCM does not contain any textual reference to the expression "nonrefoulement". The lack of any terminological reference to this internationally recognised expression is not without significance. Although the content of the principle is upheld and endorsed by the GCM, the choice to omit any reference to the evocative terminology of "non-refoulement", alongside the positioning of this duty within the remit of Objective 21, downplays the principle's function as both a source of positive obligations triggering access to rights for people on the move and an expression of "the collective responsibility of the community of States, stated already by Grotius and Vattel, that persons seeking asylum shall be able to find an abode somewhere" (Grahl-Madsen 1980, p. 54). This choice appears to be restraining any progressive development of a universal "human right to flee"16, opposable vis-à-vis destination countries.

Such a right—situated at the interplay between the individual's right to leave and the state's obligation not to remove aliens-in-peril—would be seemingly consistent with the acknowledgment that "migrants and refugees may face many common challenges and similar vulnerabilities" (para. 3 GCM) and that all migrants may be *compelled* to leave (paras 12, 18, 18(b), 21(g), and 21(h) GCM). The progressive development of this right would mirror the principle of "leaving no one behind", which commits States to delivering the Sustainable Development Goals under the 2030 Agenda. Furthermore, such a development would document the existence of a grey area of migrants who fall beyond or between consolidated legal statuses (Guild and Weatherhead 2018) and whose unmet protection request is at the origin of many contemporary migratory crises.

However, as lacking international binding norms recognising a human right to flee, its enjoyment would remain bound to regional/national legislation granting asylum seekers a temporary right to enter and remain pending the determination of their status. In addition, an extensive exegesis of the right to leave any country, in conjunction with positive obligations extending from non-refoulement, would bridge the gap between the limited right to remain and the full entitlement to enter and reside on the territory of the host State—an outcome that cannot be inferred from state practice (Higgins 1973; Hailbronner 1996; Guild 2017; Hannum 2021). Finally, the affirmation of a human right to flee would presuppose the rebuttal of the presumption that the attainment of any stable and fair distribution of the responsibility for large movements of migrants and refugees requires the limitation of human mobility of aliens-at-risk (Noll 2007). Although the Compacts do not expressly envisage the development of responsibility-sharing frameworks based on physical relocation—such as, at the regional EU level, the Dublin system (Maiani 2017)—a systemic interpretation of the call for "innovative solutions" (para. 14 GCM and paras 20–27 GCR) does not allow to exclude the endurance of the paradigm based on limited human mobility.

<sup>15</sup> Objective 21 contains a clear reference to the obligation not to expel an alien to a State where his or her life would be threatened, set forth in Art. 23 of the Draft Articles on the Expulsion of Aliens. In addition, by adopting a broad notion of "irreparable harm", the GCM goes beyond the scope of Art. 33 of the Geneva Convention and upholds the development of the concept in IHRL and EU law. This is confirmed by a note of the OHCHR, stressing the importance of the principle within the framework of readmission (Objective 21), IBM (Objective 11), and search and rescue (SAR) activities (Objective 8).

<sup>16</sup> Such a potential development was envisaged (inter alia) by Moreno Lax at the Thematic Discussion IV of the GCR.

3.2.2. Exit Rights and Push Factors: On the Ambivalent Purpose of the Right "Not to Migrate"

Human-centricity necessitates putting human dignity at the core of any decision affecting people on the move. GCM Objective 2, on cooperation aimed at minimising the adverse drivers and structural factors that compel people to leave their country of origin, is clearly inspired by this rationale. The goal of minimising the adverse drivers of forced migration is grounded on a number of interrelated actions, including investment in human capital (para. 18, a–g) and the development of crisis-management tools to curb the effects of environmental degradation (para. 18, h–l). Its fulfilment would need the eradication of poverty; a genuine engagement to reverse the trend of climate change; and empowerment paths through education, food security, protection of vulnerabilities, and enhancement of the rule of law in migration countries. That is why Objective 2 is by far the most ambitious objective of the GCM.

The attainment of this goal may have a twofold impact on human mobility across international borders. By backing a faster, safer, and cheaper transfer of remittances, it could help reduce emigration and forced displacement, especially if the money that migrants send back home is channelled into virtuous circles of sustainable development. However, reducing the adverse drivers of migration may also expand voluntary departures and elevate the circularity of human capital across transnational frontiers. That is why Objective 2 of the GCM should be read in combination with Objective 5, stressing the key role of labour mobility partnerships, along with the need to expand and diversify the "availability of pathways for safe, orderly and regular migration" for vulnerable aliens (para. 21 GCM).

While the liberalisation of labour mobility is grounded on existing options and draws from relevant ILO standards and guidelines (para. 21, a–f), the expansion of safe passages for vulnerable aliens builds upon national and regional practices for humanitarian admission through visa options, private sponsorship, family reunification, and planned relocation and refugee resettlement (para. 21, *lit.* g, h, i), lacking any proceduralisation of related cooperation at the global level17. Nonetheless, the acknowledgement of the disaster– migration nexus in the GCM adds to national and regional practices by formalising a direct link between forced displacement and environmental degradation at the international level (Kälin 2018). This move should not be underestimated, especially by comparison with the GCR, where it is merely stated that the adverse effects of climate change "increasingly interact with the drivers of refugee movements" (para. 8).

From this analysis, it might be inferred that the right "not to migrate"—as put forward in GCM para. 13—is to be understood as an expression of the individual freedom of choice about migration, which imposes on States the correspondent duty to "work together to create conditions that allow communities and individuals to live in safety and dignity in their own countries". However, respecting the individual decision to migrate may clash with Objectives 9–11, prioritising cooperation on migration "management" and the fight against unauthorised migration, including "pre-reporting by carriers of passengers" (Objective 11, para. 27, *lit.* b). Indeed, while cooperation on ensuring the right "not to migrate" is theoretically linked to individual choice about migration, in practice, this freedom of choice may be pre-empted by cooperation on migration containment and border security, which often goes beyond the mere fight against irregular migration.

The way in which these contrasting goals may trigger a sharp limitation of migrant and refugee mobility rights has been underlined by leading scholars (see, among many, Gammeltoft-Hansen et al. 2017; Costello 2018), who have pointed out that the very same concept of migration and refugee "management" (Geiger and Pécoud 2010) embeds individual protection claims within the remit of travel and border security policies (Betts 2010), preventing migrants from gaining agency and representation (Rother 2013a). Thus, the right "not to migrate", as carved out from the human right to leave, appears to suit

<sup>17</sup> The importance of opening these pathways to allow States to "regain control over their borders" has been stressed by the Special Rapporteur on Human Rights of Migrants, Felipe González Morales, in the *Report on a 2035 Agenda for Facilitating Human Mobility*, UN Doc. A/HRC/35/25, para. 17.

an ambivalent interpretation in the follow-up processes of the GCM. A systemic interpretation of the right "not to migrate" in light of the interplay between Objectives 23 and 11 may in fact represent a leeway to strengthening consensual containment policies even further, especially if the commitment to tackle the root causes of forced migration and mass displacement is not taken seriously.

All in all, both the lack of nominal reference to the principle of non-refoulement and the affirmation that migration shall not be "an act of desperation"18 are not problematic per se. Yet, their contextual and systemic reading within a system of governance prioritising cooperation on integrated border management over human-centricity risks divesting their content from the expected function as bridges to the fragmentary relation between the human right to leave and the sovereign right to exclude.

3.2.3. Aliens' Treatment upon Entry: On the Rights to Legal Identity and Non-Discrimination

The comprehensive solutions for inter-state cooperation on Objectives 23 and 11 GCM have the potential to adversely affect key individual rights set forth in the GCM, such as the right "not to migrate" and the principle of non-refoulement. Similarly, they seem to affect the right to legal identity, which is of incommensurable importance to preserving the safety and regularity of international mobility, as well as to reducing statelessness.

This right is recalled in Objective 4, committing receiving States to provide migrants with adequate documentation and to "facilitate interoperable and universal recognition of travel documents, as well as to combat identity fraud and document forgery, including by investing in [...] biometric data-sharing, while upholding the right to privacy and protecting personal data" (para. 20, *lit.* b). This goal aligns with the commitment of States of origin to cooperate "on identification of nationals and issuance of travel documents for safe and dignified return and readmission", including through biometric identifiers (para. 37, *lit.* c).

The close correlation of the State's duty to recognise migrants' right to legal identity with the digitalisation of border controls, as well as with cooperation on return and readmission, dilutes the potential of this right in terms of advancing the human centricity of the global governance of large movements of migrants and refugees. Again, the digitalisation of the borders triggers the risk of transformation—at the operational level—of the right to legal identity into the right to be identified for return purposes.

Setbacks dependent on the prioritisation of the cluster of rules on global governance over human centricity and the rule of law may also materialise in the realm of aliens' treatment during their stay. The GCM does not commit States to limit recourse to criminal liability against *sans papiers*, nor does it expressly refer to regularisation of undocumented migrants—as it was the case in the Zero Draft (Brouillette 2019, p. 5). Thus, even if Objective 7 commits States to address and reduce vulnerabilities in migration, inter alia by facilitating access to rights for irregular migrants and members of their families (para. 23, *lit.* i), this leaves States' discretion towards undocumented migrants totally untouched.

More generally, the limitation of States' discretion, on the basis of the "overarching obligation to respect, protect and fulfil the human rights of all migrants, regardless of their migration status" (para. 11), rests on a delicate balancing exercise to be conducted at the national level. States' power to differentiate the treatment of aliens is, from this viewpoint, a key trigger of the fragmentation among migratory statuses, aimed at limiting the enjoyment of universal human rights by irregular aliens.

This is confirmed by Objective 17 GCM, dealing with the elimination of all forms of discrimination, which focuses on the application of the general non-discrimination clause for personal characteristics, but does not commit States to curb differential treatment based on nationality or migration status in domestic law. Rather, the regular/irregular

<sup>18</sup> Statement of Archbishop Bernardito Auza, Permanent Observer of the Holy See to the UN, *The Holy See in the Preparatory Processes of the Global Compact For Safe, Orderly And Regular Migration*, 19 October 2018.

divide adds to the dichotomy migrant/refugee, outlining intersecting areas of exclusion and denialism.

Although it can be doubted that effective cooperation on regular migration presupposes this compartmentalisation19, the GCM perpetuates a limited understanding of the principle of non-discrimination when it comes to the recognition of the universality of human rights of people on the move. Examples of this limitation in binding international rules can be drawn from Arts 14, 21, and 22 ICCPR and Art. 15 of the European Convention on Human Rights (ECHR), which legitimise a differentiated treatment between aliens and citizens justified by democratic society's interests. Even more strikingly, Art. 4 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) allows distinctions among citizens and denizens on the basis of States' interest in "promoting general welfare".

These distinctions are often justified by reference to migration policy and state sovereign right to protect the borders20. However, the trend to reframe any migratory issue at the domestic level as an issue of migration control, to be covered by the exception of Art. 1(2) CERD, has been aptly questioned by prominent scholars (Spijkerboer 2018) and human rights bodies (e.g., the CERD Committee in *Qatar v. United Arab Emirates*) 21. And, yet, this trend resurfaces from the GCM and its emphasis on well-managed transnational movement of people.

#### **4. On Implementing the GCM through Comprehensive Approaches: Lessons Learned from the EU Border Policies**

The systemic interpretation of the GCM, which was highlighted in Section 3, reveals that the legal implications of "comprehensiveness" may differ markedly when applied to the cluster of rules on international cooperation and to that on human centricity. This observation raises further questions concerning how to streamline the impact of comprehensive approaches at the implementing stage, with a view to enhancing, simultaneously, good governance and individual agency. This section draws on the lessons learned from the EU governance of cross-border human mobility pertaining to the functioning of "comprehensiveness" at the operational level, with the aim of contributing to the IMRF follow up. Comprehensiveness is in fact one of the distinctive features of cross-regional border management cooperation at the EU level. In the 2020 Strategic Risk Analysis for European Integrated Border Management (EIBM), the EU Border and Coast Guard Agency—Frontex identified key challenges in the area of border management and return that need to be addressed "in a coherent, integrated and systematic manner".

Among them, two are particularly relevant, as they shape the overall search for greater policy coherence within the EIBM and related external cooperation. The first is the facilitation of "legal crossing, including for the benefit of tourism and trade", which is pursued through the "use of non-intrusive identification technologies (e.g., fingerprints, facial recognition), while fully respecting fundamental rights" (COM(2022)303, para. 3(g)). The second is the need to tackle "increased international migration, secondary (intra-EU) migratory movements and cross-border smuggling activities" (para. 3(d)(ii)) via prevention of unauthorised border crossings and enhanced return, in order to "strengthen the internal security of the EU and its citizens" (para. 5).

The preventive rationale of the EU border policies is, therefore, mitigated by the facilitation of legitimate travel, alongside the recognition that "[i]ndividuals who seek protection must be granted access to the procedures, while those who do not must also be protected against non-refoulement" (para. 5). In addition to the full acknowledgement of asylum-related rights, the protection of fundamental rights is recognised as an overarching component, which crosscuts all dimensions of the EIBM, ensuring "that effective border

<sup>19</sup> For instance, as pointed out by Guild and Weatherhead (2018), the acknowledgement of the regular/irregular divide in Arts 5 and 68 ICRMW did not enhance international cooperation on labour migration.

<sup>20</sup> ECHR, judgment of 28 May 1985, No. 9214/80 and two others, *Abdulaziz, Cabales and Balkandali v. the United Kingdom*, para. 67.

<sup>21</sup> See *supra* at 13.

control and return policy are in line with EU and Member States' international obligations and values" (para. 5). This goal is to be attained in the spirit of solidarity and shared responsibility by EU Member States22, holding primary responsibility for law enforcement activities, and EU Institutions and Agencies, orchestrating and coordinating cooperation both at the policy level and at the implementation stage. Thus, the principle of shared responsibility works as "an operational translation of the shared competence of the EU and Member States for the implementation of integrated management of the EU's external borders" and is complemented by the duty to cooperate in good faith and the obligation to exchange information (para. 4).

Within this layered migration governance (Kunz et al. 2011; Scholten and Penninx 2016), the nexus established between the sovereign right to control borders and large movements of migrants and refugees is, therefore, steered by internal security concerns, also related to the protection of EU citizens (Carrera et al. 2019a). At the same time, this goal is mediated by the promotion and protection of fundamental rights and the rule of law, which also applies extraterritorially, when EIBM-related activities, imputable to the EU and its Member States, take place inside the territory of third countries (Moreno-Lax and Costello 2014).

This approach feeds the Union's self-representation as a promoter of good governance in its relations with the wider world (Art. 3(5) of the Treaty on EU—TEU) and sketches out an axiological hierarchy between the border security regime and the human rights and refugee regimes, in both EU internal and external action. However, this axiological hierarchy, which operates at the normative level, does not shield the EIBM from its securitydriven rationale at the operational level, nor does it create an effective and comprehensive remedial toolbox to ensure normative or logical pre-eminence of human and refugee rights through justiciability (Fink 2020). Rather, the recent expansion of the EIBM's operational dimension, with the most recent reform of Frontex and the establishment of its standing corps, has the potential to further expand the gap between the security-driven rationale of cooperation at the EU's external borders and the prominent role of fundamental rights and the rule of law within the EU legal framework (Section 4.1). Moreover, the security-driven rationale not only guides operational cooperation within the EIBM, it is also embedded in border procedures under the New Pact on Migration and Asylum (Section 4.2) and affects TCNs' treatment within the EU territory (Section 4.3). However, while in the first two areas i.e., EIBM and border procedures—the security-driven rationale is advanced through comprehensive approaches, in the latter—i.e., the treatment of aliens in Europe—the application of "comprehensiveness" to migrants' fundamental rights appears retrogressive. EU policies on legal migration and TCN integration are, therefore, still dominated by a "silos approach", which appears only in part justified by the inherent limits of EU competences.

#### *4.1. Comprehensiveness under the EIBM*

The link between the management of human mobility, asylum, border surveillance, and the internal security of the Schengen area has been established and reinforced in EU policy and practice through recent decades (Brouwer 2008; De Bruycker et al. 2019; Mitsilegas et al. 2020). This development has been paralleled by a tendency to blur the legal boundaries between the respective legal regimes for purposes of operational cooperation within the EIBM, advancing a security-driven understanding of "comprehensiveness" (Hanke and Vitiello 2019).

The construction of the EU's smart borders clearly points in this direction. On the normative side, this goal has required the creation of a layered infostructure, integrating the functioning of the so-called Entry Exit System (EES) with the Visa Information System (VIS) and the European Travel Information and Authorisation System (ETIAS). On the operational side, the adoption of the EES led to the amendment of the Schengen Border Code (SBC) in order to operationalise automated border controls via the introduction of

<sup>22</sup> On the legally enforceable trust-based loyalty among EU Member States, deriving from the principle of solidarity, see the Court of Justice of the EU (CJEU) [GC], judgment of 6 September 2017, C-643/15 and C-647/15, *Slovakia and Hungary v. Council*, for which Labayle (2017).

"e-gates" and "self-service systems" (see Regulation (EU) 2017/2225). The digitalisation of visa processing, envisaged by the Commission in order to create "better synergies between EU visa policy and EU external relations", completes the construction of the EU's smart borders (see Regulation (EU) 2021/1134 and COM(2018)251).

Additionally, the strengthening of the EIBM counter-terrorism component has been pursued through amendments of the SBC allowing for systematic checks against law enforcement databases on all persons (Regulation (EU) 2017/458). Furthermore, three other layers of amendment to existing legislation have contributed to shaping the EU's "smart borders": the recasting of the Schengen Information System (SIS II), to improve the use of biometric identifiers and include automated fingerprint search functionality for law enforcement and return purposes (Tassinari 2022); the extension of the European Criminal Records Information System to third country nationals (ECRIS-TNC); and the empowerment of the EU Agency for the operational management of large scale IT systems in the area of freedom, security, and justice (eu-LISA).

The comprehensive control over human mobility has also been boosted by means of enhanced interoperability of information systems for borders and visas, on the one hand, and for police and judicial cooperation, asylum, and migration, on the other (Curtin 2017; Brouwer 2020; Vavoula 2020). Concurrently, Frontex has been mandated to boost the "operational interoperability" between the Eurosur system and a complex web of non-EU risk analysis networks dispersed along key migratory routes (Regulation (EU) 2019/1896, Art. 8(1)(s)). Moreover, de-compartmentalisation has been pursued through the integration of the Eurosur Fusion Services within the European Maritime Information Sharing System by means of a massive deployment of sensor and satellite technology and enhanced inter-agency cooperation (Val Garijo 2020).

In this way, the EU's smart borders become part of an anticipatory border governance, based upon pre-emption of unauthorised human mobility and automated data gathering/processing. Within the European Agenda on Security, they allow "a more joined-up inter-agency and cross-sectoral approach" to hybrid threats, by blending migration management, counterterrorism, and external defence policy settings (Carrera and Mitsilegas 2017, p. 8). This approach prompts the blurring of regulatory boundaries between different EU policies and overcomes the division of rules and competences characterising the "different silos" of European policies having a security component within the realms of the Common Security and Defence Policy (CSDP) and the Area of Freedom, Security and Justice (AFSJ)23.

Comprehensiveness under the EIBM is, therefore, purposed to enhance the interconnectedness between the border regime and human mobility in order to improve the protection of borders. Even if this approach is intended to promote a less-fragmented EIBM, operating in full compliance with fundamental rights, including data protection, its security-driven rationale dilutes the quest for human centricity and respect for the rule of law. As a result, human mobility across external borders has been managed by neatly distinguishing the treatment and access rights of people from the Global North from those belonging to the Global South, with the former widely liberalised and the latter stringently regulated (Mau et al. 2015).

However, this is not necessarily a consequence-by-design of high-tech and digitalised borders. Digitalisation is, in fact, theoretically neutral for fundamental rights and may even be used to enhance protection, for instance, by using Eurosur Fusion Services to enhance the search and rescue capability of saving lives at sea or to help identify vulnerable persons and channel asylum seekers by the appropriate procedure (COM(2022)303, paras 5(12) and (17)). Similarly, high-tech innovation may be devoted to enhance monitoring for accountability purposes, by allowing the recording of any possible incident happening at the external sea borders and involving potential human rights violations via forensic technologies (Pezzani 2019). Nonetheless, as the system is risk-driven and unauthorised

<sup>23</sup> On the legal challenges linked to this cross-sectoral approach, see, e.g., EDPS, *Reflection paper of 17 November 2017 on the interoperability of information systems in the area of Freedom, Security and Justice*, p. 9.

mobility is *ipso facto* considered to be a hybrid threat24, such an outcome is hindered, in practice. Thus, the quest for comprehensiveness contributes to widening the gap between the normative and operational cornerstones of the management of large movements of people across the European borders.

#### *4.2. De-Compartmentalisation under Schengen Cooperation and EU Migration and Asylum Law*

Schengen cooperation is premised on the preservation of internal security, triggering (inter alia) the prevention of irregular migration headed to the EU, the intensification of migration-related policy checks inside the territory of the EU to curb the so-called secondary movements (De Somer 2020), and the establishment of an integrated return management system to facilitate the removal of third country nationals who do not enjoy the right to remain in the EU. The same security rationale guides the allocation of asylum responsibilities under Dublin cooperation, which is inspired by the "idea that each Member State is answerable to all the other Member States for its actions concerning the entry and residence of third-country nationals and must bear the consequences thereof"25.

Furthermore, the multifaceted strategy for surveillance and control—carried out by EU Member States in response to mass displacement beyond its external borders—has led to the development of two parallel trends. First, the externalisation of these responsibilities to neighbouring countries through increasingly advanced forms of de-territorialised surveillance and contactless control (Moreno-Lax 2020), which are premised on bilateral relations with third countries (e.g., Italy and Libya, Spain and Morocco, Greece and Turkey), but also among the Member States (e.g., the cooperation on "informal readmission" between Italy, Slovenia, and Croatia)26. Second, the reproduction of the main features of the extraterritorial governance of migration at the Member States' internal borders, intended to exclude unauthorised mobility from the reach of core universal human rights.

The latter trend has been shaped by two interrelated legal premises revolving around the rivalry of territorial access to rights (Schlegel 2020): *(i)* the legal fiction of non-entry within the Member States' territorial jurisdiction27 and *(ii)* the functional approximation of internal border checks to external border surveillance, prompted by an extensive reading of the public policy exceptions to the prohibition of internal border controls28.

The combined effect of these trends has sharply restricted the access to and enjoyment of asylum in Europe, while raising further human rights concerns due to the militarisation of migration management (Mitsilegas 2019), the proliferation of border violence (Kuskonmaz and Guild 2022), and the de-humanisation of people on the move (Moreno-Lax 2018).

The proposals set forth in the New Pact on Migration and Asylum add to this complexity by advancing the idea of de-compartmentalising EU policies on international protection, migration, and border management for purposes of efficiency and sustainability. The combined reading of the proposals for a Regulation on the pre-entry screening (COM(2020)612) and a Regulation on migration and asylum management (COM(2020)611) seems to uphold the development of this idea, by strengthening the "extraterritoriality triggers" in the governance of territorial asylum in Europe, while presupposing a further expansion of the EU external action to divert migration to third countries (Cassarino and Marin 2022).

This picture is completed by the proposed reform of the SBC (COM(2021)891) to respond to the unscrupulous recourse to the clauses for the temporary reintroduction of border controls by the Member States (Guild 2021a; Morvillo and Cebulak 2022) 29. While attempting to preserve the area of free movement from inter-state mistrust and external

<sup>24</sup> See, e.g., European Council Conclusions of 21–22 October 2021, EUCO 17/21, para. 19.

<sup>25</sup> CJEU, judgment of 26 July 2017, C-646/16, *Jafari*, para. 88.

<sup>26</sup> This cooperation led to chain refoulement on the Balkan route, also condemned by the ECtHR, judgment of 18 November 2021, Nos 15670/18 and 43115/18, *M.H. and Others v. Croatia*.

<sup>27</sup> See, e.g., European Parliament Resolution of 10 February 2021, *Implementation of Article 43 of the Asylum Procedures Directive*, P9\_TA(2021)0042.

<sup>28</sup> For which see CJEU [GC], judgment of 19 March 2019, C-444/17, *Arib*.

<sup>29</sup> For which, see CJEU [GC], judgment of 26 April 2022, C-368/20 and C-369/20, *Landespolizeidirektion Steiermark*.

shocks, the reform may legitimate a further expansion of interstate cooperation on informal readmissions. That could be a foreseeable consequence of abandoning the stand-still clause set forth in Art. 6(3) of the so-called Return Directive, which limits this cooperation to existing bilateral arrangements on the removal of irregular aliens detected "outside of the vicinity of internal borders" (recital 27 of the proposed reform of the SBC). Additionally, the reform promotes comprehensiveness through enhanced police cooperation under Art. 23 SBC30, pointing out how police cooperation and the digitalisation of internal borders may help bridge the gap between the freedom of movement in Art. 22 SBC—which does not allow differential application on national basis31—and the safeguarding of internal security under Art. 72 of the Treaty on the Functioning of the EU (TFEU). In doing so, it is grounded on the proposals to add a Eurodac category to fingerprint people given temporary protection<sup>32</sup> and to adopt an EU bill on screening covering people rescued during SAR operations at external borders33. These proposals are accompanied by a (new) solidarity mechanism for the (voluntary) relocation of people rescued at sea, which should help reach a fairer balance between solidarity and responsibility within the framework of EU immigration and asylum policies.

Although these proposals use de-compartmentalisation to overcome the impasse of Schengen cooperation and the Dublin system, they are construed such that they expand the recourse to the abovementioned legal fiction of non-entry for "undesirable" migrants and asylum seekers. For them, the de-compartmentalisation of EU Schengen and asylum cooperation seems fated to dilute or postpone territorial access to rights and to asylum within the jurisdiction of the Member States34. From this perspective, administrative requirements at the external borders and migration-related policy checks at the internal borders become "the most dangerous law of the land" (Crépeau 2017, p. 13).

#### *4.3. Compartmentalisation of Regular Migration and EU Citizen-TCN Denizen Divide*

Security-driven comprehensiveness impacts the human-centricity of EU migration and asylum policies at both the external borders and extraterritorially. Compartmentalisation and a "silos approach" in tandem affect the treatment of aliens within the territory of Member States, triggering multiple intertwining fractures between different lanes of regular or quasi-regular residence.

For migrants holding a regular residence permit, this approach translates into a plurality of legal statuses—mostly linked to the skills divide—which create a patchy picture of many shades of "fairness" (Vitiello 2022a, p. 175). For asylum seekers and undocumented migrants at risk of refoulement, the sectoral approach triggers the fracture between the right to remain—framed as a diminished condition, which cannot be equated to the entitlement to a residence permit35—and the right to enter the labour market. As confirmed by the Report "Making Integration Work" of the Organisation for Economic Co-operation and Development (OECD), the split between asylum and labour paths for TCNs holding a right to remain represents one of the main hindrances to comprehensive strategies of integration and inclusion. The overall result is an increasing casualisation of access to socio-economic rights for TCNs (UN Doc. A/HRC/47/30, para. 55 ff.), thwarting the European rule of law (Tsourdi 2021).

<sup>30</sup> Justice and Home Affairs Council, 9–10 June 2022, Press Release 534/22.

<sup>31</sup> Refer, e.g., to CJEU, judgment of 13 December 2018, C-412/17 and C-474/17, *Touring Tours*, underlining that national legislation on carrier sanctions, requiring transport operators to check passengers' passports and residence permits in intra-EU services, has an equivalent effect on external border checks and is, therefore, contrary to the SBC. See also CJEU [GC], judgment of 22 June 2010, C-188/10 and C-189/10, *Melki and Abdeli*.

<sup>32</sup> On the recourse to this form of protection for Ukrainian refugees, see Council Implementing Decision (EU) 2022/382.

<sup>33</sup> Council of the EU, *Asylum and migration: the Council approves negotiating mandates on the Eurodac and screening regulations and 21 states adopt a* declaration *on solidarity*, Press Release 580/22.

<sup>34</sup> The CJEU has reacted to this trend in a number of recent judgments, among which refer to the judgment of 30 June 2022, C-72/22 PPU, *Valstybes sienos apsaugos tarnyba ˙* . On the self-restraint of the ECtHR, see, e.g., the judgment of 5 April 2022, Nos 55798/16 and four others, *A.A. et al. v. North Macedonia*, paras. 114–15.

<sup>35</sup> See Art. 9 of Directive 2013/32/EU.

The compartmentalisation of TCN legal statuses is accompanied by a limited understanding of the principle of non-discrimination on national basis (Art. 18 TEU; Art. 21(2) EU Charter of Fundamental Rights—EUCFR)36, compared with the general non-discrimination clause based on personal characteristics (Art. 19 TFEU, Art. 21(1) EUCFR). This fragmented approach to non-discrimination does not allow the principle of equality laid out in Art. 20 EUCFR to play a role in firming up the enjoyment of national treatment or proximate rights for TCNs within the EU legal system (Robin-Olivier 2022).

This fragmentation is justified by the EU citizen-TCN denizen divide under EU law37. On the one hand, European citizens' right to free movement has been connoted as a full right to immigrate to a Member State that is different from the State of origin. In this way, the enjoyment of the so-called fourth freedom (Trachtman 2009) has realigned the universal human right to emigrate with European citizens' right to immigrate, sharply limiting—if not setting aside—EU Member States' sovereign power to determine the conditions for admission of foreigners who are European citizens and their families38. On the other hand, for TCNs holding a regular residence permit, whose family members are EU citizens, compartmentalisation ensures the preservation of the privileged status of EU citizens; however, if this family link is lost, the other connection criteria (e.g., duration of legal residence and exercise of free movement rights as a former family member of an EU citizen) remain weak and unable to ensure stable residence and the preservation of a regular status39.

More generally, compartmentalisation, alongside the degree of discretion left by EU law to national authorities in the fields of TCN integration and legal migration, allows Member States to disconnect issues of territorial admission and legal sojourn of aliens from those of TCN treatment and access to rights, including socio-economic rights (Carrera et al. 2019c). This "lane switching" (Vankova 2022) contributes to putting the feasibility of a holistic human rights exegesis of migrant and refugee rights into jeopardy and, simultaneously, fosters a binary nexus between the preservation of States' sovereign control on borders and cooperation with third countries in the field of readmission (Cassarino 2022) and development aid (Panizzon 2017; Seeberg and Zardo 2020).

#### **5. Conclusions**

The role of the EU in advancing a less fragmented global governance of migration has been highly significant, both as a source of innovative cooperative models and as a laboratory for their implementation. As reaffirmed by the 2020 European Regional Review of the GCM, EU law and practice seem equally pertinent to the debate on future applications of the GCM in the aftermath of the IMRF.

One key aspect on which further attention should be devoted regards the relation between policy coherence and comprehensive responses to large movements of migrants and refugees. At the EU level, this dyad has been high on the political and institutional agenda since the launch of the Global Approach to Migration and Mobility (GAMM), back in 2011, gathering particular momentum with the 2015 refugee crisis40. Most recent developments, linked to the increasing risks of dismantling Schengen and Dublin cooperation, and aggravated by the war in Ukraine, have further strengthened the functional nexus between the quest for policy coherence and a holistic approach to migration, asylum, and border management.

<sup>36</sup> For which, see CJEU, judgment of 4 June 2009, C-22/08 and C-23/08, *Vatsouras and Koupatantze*, para. 52.

<sup>37</sup> CJEU [GC], judgment of 2 September 2021, C-930/19, *Belgian State*.

<sup>38</sup> On the nature of this limitation and its strict application to citizens of EU Member States, which excludes a possible extension to TCNs by analogy, see CJEU, judgment of 9 June 2022, C-673/20, *Préfet du Gers et Institut national de la statistique et des études économiques*.

<sup>39</sup> CJEU [GC], judgment of 2 September 2021, *Belgian State (Right of residence in the event of domestic violence)*, case C-930/19.

<sup>40</sup> European Parliament Resolution of 12 April 2016, *The Situation in the Mediterranean and the Need for a Holistic EU Approach to Migration*, P8\_TA(2016)0102.

As a result, the direction in which the reform of EU migration governance seems to be heading shows the prospective expansion of de-compartmentalisation strategies, based on the notion of "comprehensiveness", in the search for an efficient and sustainable balance between solidarity and responsibility. In this sense, de-compartmentalisation of EU policies appears to be part of a stable trend targeting comprehensive and holistic approaches as the appropriate means to an end of reducing "the distributive asymmetries on the ground"41. At the same time, the aim embedded in the New Pact of de-compartmentalising EU policies on international protection, migration, and border management seems to be deeply affected by national interests, which are mostly conveyed by claims over the pre-eminence of the principle of sovereignty in the management of external borders.

At the EU level, this principle is well recognised and ensures equality of the Member States before the Treaties and respect for their "national identity" (Art. 4(2) TEU). However, its degradation to national interest has impacted the exercise of EU competences, especially in the AFSJ, while negatively affecting solidarity and responsibility sharing (Karageorgiou and Noll 2022; Moreno-Lax 2017b; Thym and Tsourdi 2017), also within the New Pact (De Bruycker 2020).

In connection with this trend, compartmentalisation remains the rule within the governance of regular migration, affecting the treatment of aliens holding a legal entitlement to stay in Europe and their prospects of integration. Though a silver lining may be found in the pursuit of synergies between the EU immigrant integration policy and the European Pillar of Social Rights (COM(2020)758, para. 3), legal migration and the treatment of aliens in the EU remain anchored to a retrogressive understanding of comprehensiveness. Partly justified by the EU citizen–TCN denizen divide, this understanding seems much more dependent upon the lack of political will to overcome the "silos approach" than on the limits of EU competence in the field (Vitiello 2022a, p. 184).

The case of the EU migration governance clearly confirms that comprehensiveness is an ambivalent concept that may serve the purpose of a more balanced and sustainable understanding of human mobility, but may also strengthen existing patterns of securitisation and containment. As such, its relationship with the notion of policy coherence should be better substantiated. If we accept "the systemic promotion of mutually reinforcing policy actions [. . . ] creating synergies towards achieving the agreed objectives" as a viable definition of "policy coherence"42, then overcoming fragmentation or siloed approaches is just one facet. Without making sure that policy actions are owned by people and integrate their claims, this facet alone may be unsuited to promote any transformative agenda. This is clearly demonstrated by the systemic and contextual interpretation of the GCM highlighted in Section 3. Indeed, within the GCM, the outcome of comprehensive and interconnected approaches seems to depend on a blurred differentiation between the two main clusters of rules around which the GCM's Objectives pivot. This differentiation may be construed along two axes: the first matching national sovereignty and good global governance and the second running along the *continuum* between human-centricity and the rule of law.

This article contends that the GCM establishes a stronger nexus between the determinants of the axis pertaining to the intergovernmental realm, by plainly functionalising good governance to national sovereignty claims. As a result, the main achievements of the GCM are likely to be obtained in the portion of the "quadrant" matching international cooperation on migration management with sovereignty-based concerns, while the degree of consideration for individual agency remains variable and undetermined (see Figure A1, Appendix A). At the same time, a functional nexus between the determinants of the other axis can hardly be detected, so that the new global governance of migration appears largely reproductive of existing trends of migration management "without migrants" (Rother 2013b).

Content-wise, the tangible result is a blurred connection between the GCM's guiding principles, which has been attained either through legal and operational layering

<sup>41</sup> On the failure of the EU to "accurately gauging the distributive asymmetries on the ground", see Maiani (2020).

<sup>42</sup> *Policy Coherence for Sustainable Development 2018: Towards Sustainable and Resilient Societies*, Organisation for Economic Co-operation and Development (OECD), Paris.

(Panizzon 2022) or "lane switching" (Vankova 2022). Layering has allowed the targeting of integrated border management as the prime venue for cooperation on safe, orderly and regular migration, while lane switching has granted the endurance of a conservative approach to the immigrant/refugee dichotomy43. Although this blurring exercise may be seen as an attempt to curb the fragmentation of IML, it risks expanding the room for cherry-picking and deviation at the national level, by offering States *à la carte* solutions for security-driven migration policies (Farahat and Bast 2022). This risk, which has materialised in relation to the EU policy on integrated border management and its defective accountability system (Guild 2021b; Kilpatrick 2022), has been acknowledged by the UN Special Rapporteur on the Human Rights of Migrants in his 2021 Report on pushback practices (UN Doc. A/HRC/47/30, paras. 53–56).

At the same time, this article argues that the volatile and unbalanced relation between the determinants of the two axes along which the GCM's commitments are construed may trigger the progressive development of nascent rules of international law, especially in the field of international cooperation on the readmission of aliens. Even if this progressive development may enhance the overall comprehensiveness of the global governance of migration, by unifying existing trends that have developed at the local/regional level, it may, simultaneously, produce retrogressive results in terms of policy coherence. Similarly, if not channelled through a shared understanding of policy coherence, those comprehensive responses to the quest for safe, orderly and regular migration risk thwart the accomplishment of the GCR's goals, which seem to be equally trapped in an obsolete "contained mobility" approach (Carrera and Cortinovis 2019).

Reversing these trends would necessitate a further development of the axis on humancentricity and the rule of law within the global governance of migration. This would require a strong political consensus on the substance of procedural rights associated with human mobility—a consensus of the type on which effectiveness and legitimacy of international law generally rest (Peters 2017). By exerting leverage on a broad understanding of the rule of law, such a shift may provide a more balanced exegesis of the different normative inferences that may be determined by departing from the same GCM's objectives. Enhancing accountability for human rights violations at the borders, together with a rule-of-law-based understanding "good governance", would thus become a more achievable result.

Additionally, reorienting the quest for safe, orderly and regular migration onto a ruleof-law/human-centricity track may help counter the wide discretion enjoyed by national authorities in migration matters, by putting the emphasis on collective responsibility for migrants and refugees. This would in turn reconnect the search for comprehensiveness to the quest for policy coherence, while diluting durable hurdles impacting intergovernmental cooperation on human mobility—as has been proven by the EU's response to the war in Ukraine (Vitiello 2022b).

This may seem an impossible path. Nonetheless, this perception may change if the search for "comprehensiveness" is fully aligned with a rule-of-law-based understanding of policy coherence, which fully acknowledges that "the rule of law is not a passive standard but a shape-shifter of long pedigree" (Dauvergne 2004, p. 607).

**Funding:** This research received no external funding.

**Acknowledgments:** The author is sincerely grateful to the three anonymous reviewers and to Jean-Pierre Cassarino for their valuable comments and constructive remarks. In addition, a special mention goes to my colleagues Martina Galli and Filippo Nobili for their advice regarding the graphical representation of the functioning of "comprehensiveness" in the GCM. Finally, my gratitude goes to

<sup>43</sup> The immigrant/refugee dichotomy is a distinctive feature of the new global governance of large movements of migrants and refugees. As eloquently affirmed by the Ambassador Mr. João Vale de Almeida, Head of the EU Delegation to the UN, at the opening session for the GCM's Zero Draft: "since the aim of the Global Compact is to enhance international cooperation on safe, orderly and regular migration and reduce irregular migration—and the negative implications it has for countries of origin, transit, and destination as well as for migrants themselves—the text should better distinguish between regular and irregular migrants. It should avoid any language that might be interpreted as justification or even an incentive for irregular migration".

the co-editors of this MDPI Special Issue, for their precious reflexions and support in the final phase of the review process. All errors are my own.

**Conflicts of Interest:** The author declares no conflict of interest.

#### **Appendix A**

**Figure A1.** Determinants of the comprehensive approach interconnecting the GCM objectives.

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