By Sofia Mashchenko
Asylum and migration are currently dominating the political debates within the European Union. Following the results of the last election of the European Parliament and the success of right-wing parties, the EU’s hard stance on these issues has been accentuated, specifically as the President of the Commission proposed to view migration “[…] through a security lens […]” (Horwood & Forin, 2024). The Regulation 2024/1359 was passed in May 2024, entered into force on 11 June 2024 and will apply from 1 July 2026. This Regulation sets out the parameters within which EU member states can deviate from obligations related to asylum established in other EU Regulations when facing a situation of crisis or force majeure.
Today, tougher views on migration and asylum are becoming more widespread within the European Union. The Regulation exemplifies this new trend through its derogations, which permit deviation from the standard asylum procedures. What is more, the derogations provided for in the Regulation 2024/1359 diverge from the principle of non-refoulement set out in Article 33 of the 1951 Refugee Convention. In concrete, this will put in a predicament the right to non-refoulement for those seeking international protection.
Asylum framework in the Regulation
Regulation 2024/1359(EU)– otherwise known as the Crisis and Force Majeure Regulation– is part of the Pact on Asylum and Migration, a wider set of new legislative measures addressing migration within the EU. The Regulation sets the tone of how third country nationals—those individuals without an EU citizenship and not subject to the European Union right to free movement (European Commission, 2025.)—or stateless persons seeking international protection should be treated in times of crisis and force majeure situations, which include unforeseeable circumstances freeing the parties from certain obligations (Baugh, 2025).
The Crisis and Force Majeure Regulation states that its purpose, apart from respecting the principle of solidarity and sharing responsibility, is to ensure the adoption of adequate guidelines on asylum by EU Member States. The legislation explicitly mentions that the right to asylum has to be respected, and makes a reference to the 1951 Convention and the right to protection in the event of removal, expulsion or extradition (European Parliament & Council of the European Union, 2024, recital 8). In practice, this Regulation sets out permitted deviations from the standard EU asylum procedure.
The standard asylum procedure in the EU is established in the Asylum Procedure Regulation. It establishes a common system of dealing with asylum applications and sets out the procedures to follow during standard circumstances (European Parliament & Council of the European Union, 2024). However, in scenarios where a State is facing an unpresented migratory situation, it may submit a request to the Commission, which assesses the situation and determines if the State is experiencing a crisis or a force majeure scenario (European Parliament & Council of the European Union, 2024, art. 3(1)). During this process, it is the Council and the Commission’s role to monitor the situation constantly (European Parliament & Council of the European Union, 2024, art. 6(1)). The Commission must assess if fundamental rights and humanitarian standards are being respected and consult with the Asylum Agency to monitor the situation within a particular Member State if there are concerns regarding its asylum procedures (European Parliament & Council of the European Union, 2024, recital 34).
One of the fundamental differences between the regular asylum procedure and the procedure established during a crisis or a force majeure situation is the registration of asylum applications. As highlighted by Ineli-Ciger (2024) in Article 27 of the Asylum Procedure Regulation the registration of the application should be done within five days. During a crisis or a force majeure scenario, the registration time of an application can be up to four weeks (Ineli-Ciger, 2024). This differentiation is particularly significant in this context as an increase in registration time of the application accentuates the legal uncertainty of the applicant. Thus, even a minor increase in the registration timeframe highlights the growing hard stance on migration through these deviations.
The EU’s hard stance on migration is demonstrated in the Crisis and Force Majeure Regulation, despite the Commission’s claims of promoting the rights of migrants (Gambazza, 2024, p. 290) as an integral part of the Regulation. These claims are inconsistent given the lack of prominent inclusion of non-refoulement principle in the Regulation, even though non-refoulement is an essential part of asylum. This puts into question if the legislation is truly benefitting those seeking international protection.
Furthermore, the Commission has been a driving force in making it clear that the Pact’s goal is to introduce security into the topic of migration (Gambazza, 2024, p. 289). By emphasising the security element of the Pact, the EU creates inconsistencies, particularly in relation to measures for securing external borders. By not developing in more detail the idea around derogations when it comes to border procedures during a situation of crisis and force majeure, the issue of asylum is not addressed through a human-rights lens. This legal lacuna could, in the future, place the principle of non-refoulement at risk in countries that express strong opposition towards hosting migrants. Such could be the case with states like Poland (Narkowicz, 2018, p. 357).
How do derogations provided for in the Regulation endanger the right to asylum in relation principle of non-refoulement?
Articles 10, 11, 12, and 13 of the Crisis and Force Majeure Regulation set out the derogations from other EU Regulations permitted in situations of crisis or force majeure. Admission and safety are the two elements that connect the right to asylum and non-refoulement. These two aspects are crucial when an individual is seeking international protection from an EU Member State.
Dimension of admission
In asylum law, in particular within EU member states, admission refers to a set of procedures an individual has to pass through to have their asylum claim examined (European Council on Refugees and Exiles & ACCEM, 2025) The aspect of admission is addressed within Article 10. Article 10 (1) states that, in a situation of crisis or force majeure, States may register asylum applications up to four weeks after they are made, a derogation from Article 27 of Regulation (EU) 2024/1348 (European Parliament & Council of the European Union, 2024, art. 10(1)) which sets the limit at five days in most normal circumstances. This demonstrates a significant temporal difference for an individual waiting for a decision.
At first glance, this provision still respects the right to asylum and the principle of non-refoulement. However, a delay of even four weeks regarding admission can leave the asylum seekers in a situation of legal uncertainty, as it is not indicated in the Regulation what will exactly happen to them during that time frame. This could lead to a wide range of problems, including health issues and leaving the asylum seekers in a legal limbo, where they face uncertainty (Phillimore & Cheung, 2021, p. 1).
In addition, Article 10 (3) states “When applying paragraph 1, Member States may prioritise the registration of applications which are likely to be well-founded” (European Parliament & Council of the European Union, 2024, art. 10(3)). The criteria for the establishment of a “well-founded” application is based on the risk assessment of the individual’s case (EUAA, 2022). Corresponding with UNHCR’s description, “manifestly well-founded” means that the applicant has met the standards of the refugee definition provided in the 1951 Convention or in broader eligibility established by the UNHCR (UNHCR, 2020, p. 21), such as where individuals fall under the Presumption of Inclusion (UNHCR, 2020, p. 22) or due to the particularities in the individual’s international protection application (UNHCR, 2020, p. 21) . However, as stated in the Regulation, during a crisis or a force majeure situation, Member States’ asylum systems may become overwhelmed, reaching their full capacity. It can be preliminarily deduced from the derogation in that, even at the initial stage, it is not guaranteed that the outcome of the application will be favorable, which could prevent the applicant’s admission. This could undermine the applicant’s right to asylum and result in non-compliance with the provisions of Article 33 of the Refugee Convention on refoulement. This is because in a situation when a country’s asylum system is already overwhelmed there could be a greater chance to overlook other “well-founded” applications and perhaps not reach adequately all the requests.
Article 11 covers “Measures applicable to the asylum border procedure in a situation of crisis or force majeure” (European Parliament & Council of the European Union, 2024, art. 11). Article 11(1) outlines that detention and asylum applications of third-country nationals can last up to 18 weeks (European Council on Refugees and Exiles, 2024, pp. 41–42). This provision creates more issues for asylum seekers. The aspect regarding the waiting time is clearly exacerbated.
When analysing section 3 of Article 11, it is necessary to understand the threshold for international protection. This refers to the facts individuals must demonstrate to have their claim eligible for international protection (European Parliament & Council of the European Union, 2024, art. 39(2)). However, this section lacks consistency in terms of the reduction of threshold percentile. In section 3 of Article 11 the border procedure will be applicable to those individuals whose country of origin has a 5% rate of recognition (European Council on Refugees and Exiles, 2024, pp. 41–42). This presents a decrease in threshold from 20% (European Council on Refugees and Exiles, 2024, pp. 41–42).
Nonetheless, as mentioned by ECRE (2024) the threshold reduction is also mentioned in Recital 46 of the Regulation 2024/1359 which should not “[…] go below 5%.” Furthermore, ECRE (2024) points out the formulation of Recital 46 establishes a margin between 20% and 5%, however, section 3 of Article 11 does not necessarily allow for that interpretation. What could result problematic in the application of the threshold is the lack of clarity and the contradiction between the provisions in the Regulation itself. Therefore, how can a Regulation truly protect the right to asylum in relation to Article 33 if the legal text is not precise?
Finally, Section 4 of Article 11 states that Member States may expand the scope of applying border procedures to any asylum seeker from a third country for which the percentage of decisions granting asylum is 50 or lower (Tan & Ineli-Ciger, 2024, p. 437). Broadly speaking, the border procedure for a person seeking international protection entails the process through which an applicant has to go through before being given the permission to enter the territory of a state (Cornelisse, 2016). This accentuates the uncertainty, as the time for potential detention of asylum seekers can be up to four months (Tan & Ineli-Ciger, 2024, p. 437). Paradoxically, section 10 of the Article mentions the idea that the principles of the right to asylum and non-refoulement should be respected (European Parliament & Council of the European Union, 2024, art. 11(10)). Nonetheless, the latter lacks coherency, as someone’s country of origin could determine the future of their international protection claim.
Dimension of safety for the individual
Article 12 addresses the increase in time to manage international protection requests procedures and transfers during a crisis or a force majeure situation (European Parliament & Council of the European Union, 2024, art. 12). In this Article the timeframe to process a petition for an asylum seeker increases from two months to four months (Scissa & Gatta, 2024, p. 259). The maximum time for responses to “take charge” requests —accepting responsibility for an asylum seeker— is increased to two months. Moreover, when carrying out Dublin transfers, Member States will have up to a year, instead of the established six months (Scissa & Gatta, 2024, p. 259). The incoherences within the dimension of safety for the individual seeking asylum are seen in this increase of processing times: within Article 12, there is no concrete mention regarding conditions under which the third-country national will be held, nor is there an explicit guarantee that a correct status be granted.
Finally, Article 13 establishes the provisions regarding “derogations from the obligation to take back an applicant in a situation of extraordinary mass arrivals” (European Parliament & Council of the European Union, 2024, art. 13). As stated in the Article, the legal status of migrants within the EU is very much dependent on a system that can rapidly reach its operational capacity. The title of the Article itself already distances itself from the non-refoulement principle, and hence the right to asylum is endangered because applicant is relying on the capacity of one Member State’s ability to manage the crisis situation, as is further evidenced in Article 13(1). There is no explicit guarantee within this section that an applicant will have a due and swift international protection application process where their full spectrum of rights will be guaranteed . When a state faces a situation of crisis triggered by mass arrivals, there is a possibility to suspend the Dublin transfers to that state (Scissa & Gatta, 2024, p. 259). Therefore, mass arrivals seem to be a loophole and pave the way to apply derogations. Repeatedly, the element of safety for the asylum seeker is being undermined in this Article, as the third-country national is dependent on the state’s already overwhelmed system.
Conclusion
There are incoherencies between the provisions within the Crisis and Force Majeure Regulation. Article 11 (European Parliament & Council of the European Union, 2024, art. 11) states explicitly that the right to asylum and the principle of non-refoulement are being respected. It is quite the opposite. The derogations permitted by the Regulation create an environment of grave uncertainty, by extending decision times and thus exposing the asylum seekers to additional hurdles in their journey. Moreno-Lax, analysing the new Pact on Asylum and Migration, has studied its overall derogations and provisions. She states that “[…] the special treatment applicable to –irregularly arriving– refugees under the 1951 Convention is not given particular attention.” (Moreno-Lax, 2024, p. 9). This resonates with the derogations present in the Crisis and Force Majeure Regulation. In viewing asylum seekers through a security lens, rather than a humanitarian one where asylum requirements are based on the country of origin, the Regulation creates a fertile ground to disregard the principle of non-refoulement and hence will foster an air of uncertainty for those seeking international protection once it enters into effect.
References
Council of the EU & European Council. (2025, February 19). A common asylum procedure. Council of the EU and European Council. Retrieved May 19, 2025, from https://www.consilium.europa.eu/en/policies/asylum-procedure/
European Council on Refugees and Exiles. (2024). European Council on Refugees and Exiles, ‘ECRE comments on the regulation of the European Parliament and of the Council Addressing Situations of Crisis and Force Majeure in the Field of Migration and Asylum and Amending Regulation (EU) 2021/1147’ (2024). In ECRE. Retrieved June 12, 2025, from https://ecre.org/wp-content/uploads/2024/05/ECRE_Comments_Crisis-and-Force-Majeure-Regulation.pdf
European Parliament & Council of the European Union. (2024). Regulation EU 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147. Official Journal of the European Union, L 202, 57-95.https://eur-lex.europa.eu/eli/reg/2024/1359/oj/eng
Gambazza, G. (2024). The EU New Pact on Migration and Asylum: policies and discourses for a ‘fresh start.’ Space and Polity, 289–296. https://doi.org/10.1080/13562576.2024.2412578
Horwood, C., & Forin, R. (2024, July 25). Hard winds coming: Impacts of the EU elections for mixed migration. Mixed Migration Centre. https://mixedmigration.org/hard-winds-coming-eu-elections/
Ineli-Ciger, M. (2024, June 10). Navigating the labyrinth of derogations: A critical look at the crisis Regulation – EU immigration and asylum Law and Policy. Retrieved January 14, 2026, from https://eumigrationlawblog.eu/navigating-the-labyrinth-of-derogations-a-critical-look-at-the-crisis-regulation/#:~:text=Under%20Article%2027%20of%20the,Article%2010(1)).
Moreno-Lax, V. (2024). Crisis as (Asylum) Governance: The evolving normalisation of Non-Access to Protection in the EU. SSRN Electronic Journal, Queen Mary Research Paper No. 423/ 2024, 9. https://doi.org/10.2139/ssrn.4719772
Scissa, C., & Gatta, F. L. (2024). Access to Asylum in Times of Crises, Force Majeure and Instrumentalization in the EU: Restrictive Trends in Asylum Law and in the Case-Law. Rivista Giuridica Di Classe A, 3, 259. https://www.fsjeurostudies.eu/files/FSJ.3.2024.11.SCISSA.GATTA.pdf
Tan, N. F., & Ineli-Ciger, M. (2024). Beyond derogations in the EU crisis regulation. European Journal of Migration and Law, 26(4), 421–445. https://doi.org/10.1163/15718166-12340186
UNHCR. (2020). Aide-Memoire & Glossary of case processing Modalities, terms and Concepts applicable to RSD under UNHCR’s mandate (The Glossary). In Refworld. Retrieved May 16, 2025, from https://www.refworld.org/policy/legalguidance/unhcr/2020/en/119486
Sofia Mashchenko is an MA Human Rights graduate from the Central European University, she also holds a degree in Political Science from CEU Cardenal Herrera University. Throughout her academic and professional careers, she has investigated sustainability legislation within the European Union, the rights of child soldiers and migration policies in the European Union. In 2025, Sofia was an intern at the Ludwig Boltzmann Institute of Fundamental and Human Rights, where she participated in various research initiatives within the “Human Dignity and Public Security” and “Rule of Law and Public Sector Reform” programme lines.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.