The construction of an area of free circulation in Europe in the 1980s led the European institutions to develop a common asylum and immigration policy.
The dislocation of the European migration policy ?
The logical consequence of the lifting of internal borders was the pooling of external borders. At a time when European migration policy is already under assault from several Member States and the EU has lost one of its members, the United Kingdom, largely for this reason, what will remain of the European project if the area of free movement itself gives way to the issues related to COVID-19?
At the end of March 2020, 15 countries of the Schengen area re-established controls at their borders. The modalities and procedures put in place have certainly varied. But, with few exceptions, this was done unilaterally, without consulting the European institutions or the neighbors concerned - and without even informing them in advance. Here lies the main difference with the situation in 2015. At the time, the re-establishment of border controls was carried out with a formal semblance of legality, in accordance with the derogatory procedures provided for in the Schengen Code. The re-establishment of border controls was quickly accompanied by the closure of borders in 20 European countries. Here again, the modalities and extent of the closures differed from one state to another, particularly with regard to exemptions for European and non-European nationals residing in the country, non-essential travel or essential occupations.
Even though it is the guarantor of compliance with European law, the European Commission has had no choice but to leave it to the Member States. It quickly had to resolve to follow the States and propose guidelines to them in order to try to maintain the functioning of the internal market and guarantee the principle of European solidarity. The Commission tried to regain the upper hand by proposing on March 16 a "temporary restriction on non-essential travel to the European Union", a proposal validated by the European Council on March 17. In spite of the cautious words used, it is nothing more and nothing less than a general ban on entry into the EU. This decision came just a few days after President Trump's European Travel Ban, which was strongly criticized by European officials. It must be said that the measure pursues an objective that is less sanitary than political. It aims to show public opinion that the EU is taking action.
What remains of the right of asylum?
In this context, it remains to be seen what form the global asylum system will take. COVID-19 could have a profound impact, the European context, once again, illustrates this very well. The closure of the EU's internal and external borders has immediate consequences for people in migration situations, first and foremost for those in need of international protection.
It should be recalled that international law, European legislation and many national constitutions oblige countries to allow people seeking asylum to enter their territory. However, only three Member States and Norway have explicitly exempted asylum seekers from their entry bans. Conversely, some countries have taken advantage of VIDOC-19 to implement migration measures not permitted by the European framework and without establishing a link between immigration and the pandemic. Unsurprisingly, this is the case of Hungary, which banned the entry of asylum seekers, contacts with non-governmental organizations (NGOs) and suspended the asylum procedure. But many other countries, including France, have also de facto suspended the right to apply for asylum citing the impossibility of guaranteeing sanitary conditions in the relevant administrations. Finally, Italy and Malta declared that their ports were no longer safe due to the pandemic, leaving little chance of survival for those still trying to cross the Mediterranean.
Here again, the European Commission's response is timid despite the efforts of Commissioner Ylva Johansson in charge of Home Affairs. The Commission is reduced to encouraging member states to keep asylum, refugee resettlement and return procedures to a minimum, while refraining from commenting on the decision of the Italian and Maltese governments. Clearly, maintaining international protection regimes is not the priority of Europeans, confirming a trend observed before the pandemic.