Interior ministers gather in Luxembourg today for their first regular meeting since an extraordinary session on Ceuta in August, and the question hanging over the table is whether the EU should let governments suspend asylum procedures at the border when a crisis is declared.
The Commission has not said so. "Europe needs the means to protect its borders at all times, especially in scenarios where mass movements are orchestrated and instrumentalised against the EU," Internal Affairs Commissioner Magnus Brunner said yesterday. Asked what the new framework would contain, he said he could not go into details because the discussion is still going on.
Ursula von der Leyen floated the European Emergency Response Framework in her State of the Union speech last month. It is meant to help countries respond to sudden mass arrivals like the one in Ceuta in July, when more than 70,000 people crossed into the Spanish enclave. Spanish authorities estimated last week that 3,000 to 3,500 migrants remain on Ceuta's streets. Spain's interior minister, Fernando Grande-Marlaska, will brief colleagues today.
Officials say no formal proposal exists. Suspending asylum rights at the border is, in the words of one European official, at a "preliminary stage". A Commission five-point plan on external borders is on the agenda, and a Frontex reinforcement proposal is expected on 28 October. Ministers are also due to adopt the Returns Regulation formally.
The European People's Party has already picked a side. At its political assembly in Toulouse, the group adopted a resolution demanding that states be able to temporarily suspend asylum applications in a crisis, including through "refusal of entry or returns without individual asylum procedures" for migrants used in a hybrid attack. Germany's CDU pushed the line harder, and backed moving Frontex's fundamental-rights observers out from under border-operations oversight to the Fundamental Rights Agency in Vienna.
Greece is pressing the same case in the Council. Athens wants the new tool to allow a temporary suspension of asylum procedures in situations like Ceuta and in response to hybrid threats. Poland, which extended its asylum ban on the Belarus border this month, is another government pushing for opt-outs.
Others are warning against it. Council of Europe human rights commissioner Michael O'Flaherty has warned that such moves risk unravelling decades of human rights law. Lena Riemer, a law lecturer at Central European University, notes that "instrumentalisation" has become a shorthand through which states present migration as a security threat and make exceptional measures look legally understandable. The concept, she and others point out, is neither new nor clearly defined.
Spain's former foreign minister Arancha González offers a political warning. Copying the hardliners does not work, she says, because "there will always be someone who is tougher than the toughest". Emmanuel Macron, standing next to Pedro Sánchez in Madrid, took a different tack. He said Spain had been the victim of "an attack" and complained that others had not shown it the solidarity it once showed them, in an apparent dig at Italy's government.
Ceuta has turned a long-running argument about migration into a legal one. The question is no longer only how many people arrive. It is whether the EU will write into law that, in certain emergencies, people at the border can be turned back without an individual hearing.
Nothing will be decided today. The Commission has still to say what it wants, and the definition of "instrumentalised" will decide how often any new power could be used. Watch the wording that comes out of the European Council on 15-16 October.
