The undersigned NGOs strongly oppose the introduction and use of the concept of instrumentalisation and its codification in EU law; we further reject reforms of EU law based on allowing widespread derogation from EU law for the following reasons:
- It is disproportionate: The restriction of the fundamental rights of the people affected by the proposal is so extensive as to raise doubts as to the necessity and proportionality of the measures. We challenge the argument that actions of third country governments which use people, including those seeking international protection, to destabilise the EU should result in a significant negative impact on the rights of those people, including by the lowering of asylum standards and making it more difficult for people to apply for international protection in Europe;
- It is counterproductive: Derogations available on a permanent basis will undermine the CEAS and in particular its common nature. As per the warning of the CJEU in relation to the misuse of Article 78(3), the reforms create the risk of arbitrariness with Member States applying different standards, and opting in and out of the CEAS at will. Non-compliance with EU standards is already rampant and Member States will use “instrumentalisation” to justify not applying the rules;
- It is unnecessary: The current legal framework already provides flexibility for Member States to deal with changing events at their border, including already allowing for derogations, albeit tightly circumscribed by the Treaties and jurisprudence. In certain circumstances, Member States may specify where asylum applications should be lodged, extend the registration deadline for asylum applications and set lower standards for material reception conditions;
- It is misguided: Countries frequently manipulate displaced people. It has happened throughout history and continues, affecting individual Member States, the EU collectively, and many other countries around the world. There is no logical reason why manipulation of people should necessitate a different asylum regime. Actions by third country governments to destabilise the EU should be met by policy measures directed at those third country governments rather than at people seeking protection, themselves victims of such actions;
- It is unfair (to applicants and some Member States): The significant divergence in respect for legal obligations in the field of asylum creates differential treatment of people searching protection based on their mode of arrival. It also results in increased responsibilities for the Member States that do respect the law. A system where some Member States frequently derogate – and thus apply lower standards – by claiming to face instrumentalisation, is likely to have an impact on Member States which continue to apply higher standards, as lack of respect for the standards of EU and international law create a push factor.