By Nuno Ferreira, Mohammad Dalla and Ralph Guth
The latest raft of European Union asylum and migration legislation – known as the New Pact for Migration and Asylum – was approved in 2024 and came into force this summer. EU Member States are currently making arrangements to implement this legislation and exactly how they will do it will determine whether (and to what extent) the New Pact will damage refugee rights. It is already clear, however, that this New Pact seriously undermines the Refugee Convention and reduces the protection of rights and needs of asylum applicants, as Campesi and Ineli-Ciger have pointed out, for example.
As we have pointed out elsewhere, the New Pact’s focus is squarely on increasing border control, ensuring ‘solidarity’ between Member States (i.e. enforcing ‘burden-sharing’), and facilitating the return of migrants and refugees to countries of origin. This process of border securitisation comes at the cost of reducing asylum claimants’ and migrants’ freedoms and rights and their access to asylum procedures compliant with human rights and international standards. These negative effects are compounded by the neo-colonial violence also facilitated by the New Pact instruments, which perpetuates the colonial dimensions of the EU borders (see chapter 4 and 8 in Colonialism and the EU Legal Order, for example).
The New Pact has not only been a wasted opportunity to improve the standards for refugee reception and asylum adjudication, but it was also used as an opportunity to introduce new elements that render the EU asylum system even more hostile. Chief amongst these are, on the one hand, the new pre-entry screening procedure under the new Screening Regulation (SR) – combined with the border procedure under the Asylum Procedures Regulation – and on the other hand, the introduction of speedy returns and detention under the new Return Border Procedure Regulation (RBPR). A third key development – which we will discuss in a separate piece – relates to the use of a mandatory accelerated procedure at the border when claims relate to countries of origin for which the EU statistical success rate is 20% or lower, under Article 42(1)(j) of the Asylum Procedures Regulation.
The pre-entry screening procedure, speedy returns and detention
The pre-entry screening procedure is connected to what is arguably one of the most contentious aspects of the New Pact, that is, the legal fiction that a migrant has not yet entered the territory of a Member State, although they are objectively in that territory. This non-entry legal fiction determines that potential asylum claimants are not (yet) legally present in a Member State’s territory until they are granted entry. This fiction limits the protection obligations owed by States to migrants and increases the risk of refoulement – i.e. returning individuals to countries where they risk torture or inhuman or degrading treatment, in contravention of the 1951 Refugee Convention and the 1950 European Convention on Human Rights (ECHR) – as well as reduces applicants’ freedom of movement and access to rights and procedure, as Orav and Barlaoura and Soderstrom have highlighted.
If authorities suspect that asylum applications made at the external border or ports of entry are unfounded or inadmissible, or – in some cases – that an accelerated procedure applies, then they adopt the border procedure. This means that asylum claimants can be effectively detained at border regions for up to 12 weeks, and – in case of negative decisions – have shorter deadlines to appeal and be returned to their countries of origin while the appeal is processed. The combined effect of this new system is that refugees will have limited access to information and support, thus having reduced chances of obtaining protection. The ethical and logistical challenges of this sort of arrangements have clearly been ignored, which is not sufficiently cushioned by the New Pact’s flimsy references to monitoring of the compliance of the pre-entry screening procedure with EU and international law and principles.
Speeding up the return of applicants whose international claims have been unsuccessful is another key aim of the New Pact, and this is supported by greater use of detention. Detention can already be deployed at the screening stage (for those who have not lodged a claim) and throughout the asylum procedure, as well as to prepare for returns. Although detention is subject to minimum reception conditions and procedural guarantees, Member States’ authorities can derogate from these guarantees and protections on the basis of ‘exceptional circumstances’ or ‘emergency situations’, which is hardly reassuring for those affected.
Considering that one can be detained for the whole duration of the border procedure (up to 12 weeks) and the return border procedure (another 12 weeks), and that the Returns Directive allows for up to 18 months of detention (including the 12 weeks within the return border procedure), one can be detained for 21 months without having committed any criminal offence or any fault of their own. The violent nature of detention and return procedures is bound to tremendously affect international protection applicants. The New Pact’s references to individual assessments, the principle of non-refoulement, and fundamental rights do not constitute sufficient protections. Even worse, the recent European Commission’s proposal for a new Return Regulation increases the maximum allowed period of detention to 24 months, which has been understandably criticised for risking (further) violating fundamental rights and procedural guarantees. We argue that return policies should rather concentrate on programmes to regularise migrants (like the recent Spanish example), social integration, collaboration with third countries, and investment in development policies.
SOGIESC refugees as a case study
Refugees who leave their countries for reasons related to their sexual orientation, gender identity and expression, or sex characteristics (SOGIESC) risk suffering the negative consequences of the New Pact instruments in particularly intense ways. Throughout the years, large projects like Fleeing Homophobia and SOGICA, as well as a growing body of literature and case law, have dissected the specific challenges that SOGIESC refugees face in their journeys and legal claims. We thus adopt SOGIESC refugees as a case study to illustrate the negative impact of the New Pact on specific groups of refugees.
It has been known that the Common European Asylum System (CEAS) – along with the jurisprudence of the Court of Justice of the EU (CJEU) that has interpreted CEAS instruments – fail SOGIESC refugees in a range of ways and should be reformed to address those failures. Unfortunately, the New Pact has not done much to address those issues; in fact, it has introduced several new ones. On the one hand, it uses plenty of ‘fundamental rights’ language and, in some contexts, protects LGBTIQ+ applicants, such as when the Crisis Regulation prioritises the relocation of LGBTIQ+ people and their claims in situations of crisis; on the other hand, the New Pact is plagued with serious issues for LGBTIQ+ people.
For example, the new Qualification Regulation (QR) still does not include sex characteristics as a characteristic on the basis of which one seeks international protection under the ‘particular social group’ persecution ground. Furthermore, most positive aspects drawn from the Court’s jurisprudence have been included via non-legally binding recitals rather than operative norms of the Regulation. A notable exception to this is Article 10(3) of the Qualification Directive, which reflects the preclusion of ‘discretion reasoning’ that the Court asserted in X, Y and Z v Minister voor Immigratie, Integratie en Asiel, and now benefits any asylum applicant, not only SOGIESC applicants.
Similarly, the Asylum Procedures Regulation fell short of expectations. The Regulation does not require authorities to collect statistical data on SOGIESC asylum claims as recommended by the EU Agency for Asylum to enhance planning and policy efforts, or impose an obligation to provide claimants information about the possible grounds to request international – such as one’s SOGIESC – which is crucial to allow sexual and gender minorities to seek protection effectively.
The Reception Conditions Directive also constitutes a disappointment, as it uses the problematic notions of ‘vulnerability’ and ‘special needs’, rather than moving on to more appropriate notions such as ‘specific needs’. We welcome the fact that the Reception Conditions Directive recognises LGBTIQ+ people as likely to be ‘applicants with special reception needs’, thus strengthening their reception and procedural rights, including by securing SOGIESC-specific accommodation if necessary. Nonetheless, it is not clear whether trans claimants have access to gender-affirming treatments under EU law, so one can only hope that national authorities will provide gender-affirming treatments under ‘essential treatment’, ‘sexual and reproductive health care’, or otherwise treatment they consider adequate.
The pre-screening procedure – discussed above – also poses serious issues to SOGIESC applicants. SOGIESC applicants should, in fact, be exempted from screening and border procedures to adequately protect their rights and needs, because it is highly unlikely that these applicants can obtain adequate support in the context of an accelerated examination procedure or of a border procedure. The widespread use of detention under the New Pact also risks leading to the inappropriate detention of SOGIESC claimants, as the authorities may not have gathered enough information or made a special reception needs assessment in time. This is likely to put the physical and mental health of SOGIESC claimants at ‘serious risk’ – to use the terms of the Reception Conditions Directive – so SOGIESC refugees should never be placed in detention, as the UN Working Group on Arbitrary Detention has made clear.
Controlling the damage
As it is unlikely that EU asylum law will be reformed again any time soon to address the shortcomings of the New Pact, it is crucial to develop recommendations to at least control the damage that the New Pact risks producing. Drawing on the discussions held at a workshop at Humboldt University in 2025, we consider here the suggestions put forward by researchers, activists, professionals, and community organizations, to whom we are indebted for their generous input.
As far as the pre-screening procedure is concerned, the first recommendation relates to the need to maintain enhanced communication and mutual support between, on the one hand, NGOs, activist groups, and refugee supporters, and, on the other hand, asylum reception facilities, to maximise the support offered to applicants, as endorsed by UNHCR. The second recommendation, instead, focuses on further scrutinising the ‘non-entry’ legal fiction from an international and human rights perspective. A third recommendation points to the provision of comprehensive information to applicants on the range of support services available, including in terms of legal advice, health care, psychological counselling, etc.
As far as speedy returns and detention are concerned, the first recommendation points to the need for academics to intervene in public debates and raise awareness amongst the public about the violent nature of borders. The second recommendation highlights the importance of exploring other protection paths, such as church asylum, which has strong traditions in some European countries. The third recommendation, instead, relates to the need to slow down returns by strengthening refugee and migrant support networks. The fourth recommendation takes a broader view on the role of civil society and underlines the importance of increasing the knowledge base and capacity of NGOs, so that they can more effectively scrutinise the activities of EU and Member State authorities and encourage adherence to human rights. The fifth recommendation looks at how prospective asylum claimants can be supported in preparing their applications before arriving in Europe, so that they can have more chances of success. This support can be underpinned by storytelling as a methodological tool, for example. The sixth recommendation echoes the long-standing demand for better and more regular training of all asylum system actors, including on the neo-colonial dynamics sustaining the asylum system.
Last, but not least, it is recommended that an EU-wide humanitarian visa instrument be introduced – as already explored by the European Parliament – which can draw on the positive aspects of the Nansen passports’ experience. While waiting for the EU to introduce an EU-wide humanitarian visa instrument, we need to rely on Member States to introduce or retain a humanitarian protection status and national humanitarian visa programmes, which they are free to do to complement the refugee and subsidiary protection statuses enshrined in the Qualification Regulation, as the case of Italy exemplifies. This would help Member States better respect human rights and international refugee law.
Nuno Ferreira is a professor of law at the University of Sussex (UK), focusing on human rights, discrimination law, European law, children’s rights, asylum and refugee law. More information here.
Mohammad Dalla is a researcher, moderator, and trainer of civic education, currently carrying out a PhD in Cultural Studies at the University of Potsdam (Germany) and the University of Melbourne (Australia). More information here.
Ralph Guth is a political scientist, social justice activist, and LGBTIQ+ rights advocate. He currently works at Rainbow Railroad (Canada) providing support to at-risk LGBTIQ+ individuals worldwide.
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