Tracking the Pact: Council for detention of families, against legal advice and sibling reunion


A discussion document circulated by the Spanish Presidency of the Council of the EU prior this week's crunch trilogues on new migration and asylum legislation sets out the Council's red lines: families with children should not automatically be excluded from border procedures, and thus may be detained; free legal advice should not be provided to asylum applicants; and siblings should not be considered as family members. The Council also wants to maintain "a menu of derogations as broad as possible."

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The document (pdf), circulated on Sunday, outlines "four political elements, that are of the utmost importance and key to reach a deal in principle at the trilogues of 18 and 19 December."

Those elements are (all emphasis added):

  • The mandatory border procedure: "any possible compromise would need to respect the following guiding principles to be acceptable for Member States: it would have to be a border procedure that respects the 20% recognition rate of asylum applications, and where no general automatic exclusion of families with minors is envisaged. However, delegations have expressed openness on a possible prioritisation for these cases."
  • Legal advice: "...the Presidency considers that any final compromise on this aspect would need to respect the general principles outlined in the latest compromise proposal, whereby only legal counselling (not assistance) without representation would need to be ensured at the administrative phase in all procedures. Moreover, Member States would retain the possibility to organise the legal counselling in accordance with their national systems, which would be only ensured at the request of the applicant and would be financed by EU funds."
  • Responsibility and solidarity in the Asylum and Migration Management Regulation: "After extensive consultations with delegations, it has become clear that there is not enough support in the Council to support a compromise on the inclusion of siblings as part of the definition of family members, as requested by the Parliament."
  • Instrumentalisation: "The large majority of delegations considers the inclusion of instrumentalisation in the scope of the Crisis Regulation as a condition sine qua non for an agreement. The European Parliament strongly opposes to this inclusion and makes it conditional to further flexibility from the Council´s side on derogations (mainly, the derogation on the extension of the scope of the border procedure), governance, prima facie and enhanced solidarity. Bearing in mind the importance for the Council to preserve a menu of derogations as broad as possible, the Presidency invites delegations to explore some further flexibility regarding derogations, in particular but not only on those applicable for situations of mass arrivals."

Yesterday, over 50 human rights organisations sent a letter to the Council calling for a rejection of the Pact:

"The EU Pact on Migration and Asylum will mirror the failed approaches of the past and worsen their consequences. There is currently a major risk that the Pact results in an ill-functioning, costly, and cruel system that falls apart on implementation and leaves critical issues unaddressed.

If adopted in its current format, it will normalise the arbitrary use of immigration detention, including for children and families, increase racial profiling, use “crisis” procedures to enable pushbacks, and return individuals to so called “safe third countries” where they are at risk of violence, torture, and arbitrary imprisonment."

This follows a previous call two weeks ago. Trilogue negotiations are ongoing.


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Further reading

06 December 2023

Tracking the Pact: Human rights disaster in the works as Parliament makes "significant concessions" to Council

Negotiations are close to an end on the new laws that make up the EU's Pact on Migration and Asylum, and the Council - which has consistently favoured rules that will downgrade human rights protections - appears to have largely got its way, according a document circulated by the Spanish Council Presidency yesterday. Amongst other things, the document openly admits that the Council is planning to sideline Parliament's concerns over "potential discrimination based on race."

20 November 2023

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16 November 2023

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