Derogations in Exchange of Increased Responsibility: How Can This Fix the Broken Promise for More Solidarity in the EU?

Abstract

The 2020 EU Pact on Migration and Asylum introduced a series of legal texts aimed at reforming the existing EU asylum policy. Following years of challenging negotiations, an agreement on the Pact was reached in December 2023 with all the texts published in the Official Journal of the EU in May 2024. This article critically discusses some provisions of three key texts within the Pact: the Asylum Procedures Regulation (APR), the Crisis Regulation, and the Asylum and Migration Management Regulation (AMMR). The aim is to uncover the strategic employment of derogations and exceptions to compensate external border states for their heightened responsibilities, particularly in situations of migratory pressure. The article also explores the impact of newly introduced concepts and measures, such as the ‘non-entry’ fiction and the concept of ‘adequate capacity’ in border procedures, as well as derogatory provisions in ‘crisis’ and ‘instrumentalisation’ situations. It highlights how the agreed instruments, under the guise of presenting derogations as a form of ‘solidarity’, compromise the rights of asylum seekers and fail to effectively address the increased responsibility of states at the external borders. It further argues that these measures deviate from the goal of harmonisation within the Common European Asylum System (CEAS). The paper concludes by emphasising that the promise of achieving a fair and balanced asylum system in the EU remains unfulfilled, with an overreliance on derogations overshadowing genuine progress.