The European Union has introduced a set of rules on migration and asylum aimed at the more effective management of these issues. The Migration and Asylum Pact seeks to strike a balance between the demands of member states and the protection of those in need. Based on pre-existing rules, the Pact aims to provide a comprehensive approach combining key EU policies on migration, asylum, border management and integration.

At a time of major geopolitical upheaval and increasing migratory pressures, the new institutional framework, and particularly the Regulation on Crisis and Force Majeure Situations, brings back to the forefront the enduring question of the limits of state power during emergencies and the safeguards that prevent exceptions from becoming the rule. In her interview with Politis, Dr Aphrodite Papachristodoulou critically examines the Pact's main innovations and analyses their implications for the rule of law and the protection of applicants for international protection. Dr Papachristodoulou is a lecturer in International Human Rights Law at the University of Cyprus Department of Law.

A Crucial Test

What is the real challenge facing the EU in relation to the Migration and Asylum Pact?

To understand today's challenge, it is worth going back about 15 years to a landmark judgment of the European Court of Human Rights against Italy. At the time, Judge Paulo Pinto de Albuquerque expressed a thought that still haunts us today: that Europe, "the cradle of human rights idealism and the birthplace of the rule of law", cannot close its doors to people fleeing violence, arbitrariness and persecution.

Today, the EU faces a crucial test. Shaping a common European migration policy cannot simply be a technical exercise in border management or, even worse, an attempt at exclusion. The real challenge is whether it can remain faithful to its founding values: the rule of law and respect for human rights.

Should There Be Different Treatment for "Special Cases"?

The debate surrounding the new Pact therefore goes beyond migration law. It touches on one of the most enduring questions facing any democracy: what does a state do when confronted with a genuine emergency?

Obviously, no legal system can function without tools to manage a crisis. The issue, however, is not whether such emergency measures exist but under what conditions they are activated and, above all, what safeguards are in place.

Back and Forth

How has the migration crisis evolved in Europe?

Over the past 20 years, Europe has radically changed the way it perceives migration itself. What was initially regarded as an exceptional situation gradually came to be treated as a permanent "crisis". As a result, measures that were once adopted only in extraordinary circumstances began to become part of everyday policy.

This has significant consequences. When an issue is constantly labelled a "crisis", public authorities acquire broader powers and it becomes easier to justify extraordinary measures or restrictions on fundamental rights in the name of effective management.

The essential question, therefore, is not whether crises exist but when a crisis ceases to be genuinely extraordinary and becomes a permanent model of governance. These oscillations between the logic of exception and the demands of the rule of law have long characterised the development of European migration law and are reflected particularly strongly in the new Pact.

The Mediterranean Tragedy

Does the European Pact conflict with the rule of law?

The history of the rule of law teaches us that emergency powers tend to outlast the circumstances for which they were originally established. For this reason, any derogation must be strictly limited, temporary and absolutely necessary.

The tragedy of the Mediterranean is a reminder of the human cost of this debate. According to the International Organization for Migration, more than 35,000 people have lost their lives in the Mediterranean since 2014. The deadly Pylos shipwreck of 14 June 2023, on one of the busiest migration routes in the Eastern Mediterranean, served as a tragic reminder that, despite reforms and the significant resources devoted to the issue, the most dangerous routes to international protection remain open.

This does not, of course, mean that we ignore the difficulties faced by frontline states such as the Republic of Cyprus. Effective migration management is, generally speaking, a legitimate objective. However, in a European Union founded on the rule of law, effectiveness cannot be achieved at the expense of legality and the protection of fundamental rights.

A Dual Objective

How do effectiveness and the rule of law coexist in relation to migration?

The new Migration and Asylum Pact reflects this dual objective. On the one hand, it seeks to strengthen migration management. On the other, through the Regulation on Crisis and Force Majeure Situations, it introduces a new institutional framework that permits, under certain conditions, departures from normal procedural safeguards.

For the first time, the EU is attempting to codify in advance when and under what conditions such exceptions may be applied. In other words, even the exception itself now has its own rules.

What Exactly Does the Regulation Include?

It provides for three separate situations that can trigger its application: mass arrivals, the instrumentalisation of migration and force majeure.

In all three cases, member states are given the possibility to derogate from key procedural safeguards contained in EU law.

No Pushbacks

Do these derogations potentially conceal violations of human rights?

Although the new Regulation allows greater flexibility during periods of crisis, the core of international protection remains unchanged. The principle of non-refoulement continues to bind both member states and EU institutions fully.

It should be clear that no person may be returned to a country where they face persecution, torture or other serious human rights violations. At the same time, the obligation to conduct an individual examination of every application for international protection is neither abolished nor suspended because a crisis situation exists.

The changes primarily affect procedures and deadlines, not the fundamental guarantees deriving from EU law, international law and European human rights law.

Risk of Abuse?

I very much doubt these derogations will not be exploited.

The concern is understandable. However, it would be wrong to conclude that the new Regulation lacks institutional safeguards.

The activation of derogations is not a unilateral decision by a member state. It requires a request by the state concerned, an assessment by the European Commission and approval by the Council.

Furthermore, derogations must be proportionate and temporary and cannot be extended indefinitely or exceed a total duration of 12 months.

These are important institutional safeguards. Nevertheless, concerns remain. The critical issue is not only when the mechanism is activated but also the legal consequences it has for those seeking international protection.

Population Movements

Why is it necessary to separate these exceptional situations?

Wars, ongoing instability in the Middle East and other regional crises demonstrate that population movements are unlikely to cease in the foreseeable future.

The existence of a mechanism for dealing with exceptional circumstances is therefore necessary. However, its existence does not mean that everything becomes automatically permissible. Every derogation must be applied only when genuinely necessary and always within the limits of the rule of law.

This debate is therefore not theoretical. It is directly linked to the geopolitical developments shaping Europe's security environment.

Why a New Regulation?

Why is the new Regulation necessary when the Temporary Protection Directive already existed and still exists?

The new Regulation does not replace the Temporary Protection Directive. They serve different purposes.

The Directive (2001/55/EC), which was activated for the first time in 2022 following Russia's invasion of Ukraine, was primarily designed around the needs of displaced persons, immediately granting rights of residence and access to employment, education and healthcare.

By contrast, the new Regulation focuses on managing crisis situations so that member states can respond when they face intense migratory pressures.

In that sense, the Temporary Protection Directive can be described as a fundamentally people-centred instrument, whereas the new Regulation is primarily oriented towards the management needs of states.

Effective Implementation

What is the most significant dysfunction within the Common European Asylum System?

The main dysfunction lies not in the rules themselves but in their implementation.

Experience shows that when necessary resources, personnel and reception infrastructure are lacking, procedures are delayed and access to asylum becomes more difficult.

Unfortunately, recent years have made it clear that, without sufficient administrative support, even the most flexible institutional framework cannot function effectively.

Does This Apply to Cyprus?

Does this observation apply to Cyprus?

Yes, because the Republic of Cyprus has consistently been among the member states facing disproportionately high migratory pressures relative to its size and administrative capacity.

The recent adoption of the 2026 Refugee Law forms part of the effort to adapt Cyprus' legal order to the requirements of the Pact. However, as is often the case with large-scale reforms adopted under strict deadlines, success is not determined by the passage of a law but by its practical implementation.

This presupposes that the competent authorities will be ready, that the necessary regulations will be issued on time and that the new procedures will function effectively.

It is almost certain that implementation of the new framework will inevitably reveal issues that are not yet visible today. That is where the success of the reform will ultimately be judged.

Yiangos Mikellides #