Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL addressing situations of instrumentalisation in the field of migration and asylum
Date: 2021-12-14
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Belarus, EU migration policy, external border of the EU, foreign national, migration control, migratory movement, return migration, right of asylum, stateless person, third country

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   EUROPEAN COMMISSION  Strasbourg, 14.12.2021  COM(2021) 890 final 2021/0427 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL addressing situations of instrumentalisation in the field of migration and asylum  
 
EXPLANATORY MEMORANDUM 

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• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Response to instrumentalisation of migrants at the EU’s external borders 

A highly worrying phenomenon observed is the increasing role of State actors in artificially 
creating  and  facilitating  irregular  migration,  using  migratory  flows  as  a  tool  for  political 
purposes, to destabilise the European Union and its Member States. 

As  a  response  to  the  instrumentalisation  of  people  by  the  Belarusian  regime,  the  European 
Council Conclusions of 21 and 22 October 2021 underlined that the EU would not accept of 
any  attempt  by  third  countries  to  instrumentalise  migrants  for  political  purposes.  Leaders 
committed  to  continue  countering  the  ongoing  hybrid  attack  launched  by  the  Belarusian 
regime  at  the  EU  border.  They  also  recalled  the  need  to  ensure  effective  returns  and  full 
implementation  of  readmission  agreements  and  arrangements,  using  the  necessary  leverage. 
They  stated  that  the  European  Union  remained  determined  to  ensure  effective  control  of  its 
external borders. The Commission was invited to propose any necessary changes to the EU’s 
legal framework and concrete measures underpinned by adequate financial support to ensure 
an  immediate  and  appropriate  response  in  line  with  EU  law  and  international  obligations, 
including respect for fundamental rights. 

On 23 November 2021, the Commission, jointly with the High Representative of the Union 
for  Foreign  Affairs  and  Security  Policy,  adopted  a  Communication1  summarising  the 
measures  taken  to  address  the  immediate  situation  as  well  as  additional  ones  underway  to 
create a more permanent toolbox to address future attempts to destabilise the EU through the 
instrumentalisation  of  migrants.  It  had  already  raised  the  phenomenon  in  the  renewed  EU 
action plan against migrant smuggling (2021-2025)2.  

On  1  December  2021,  as  part  of  these  measures,  the  Commission  adopted  a  proposal  for  a 
Council  Decision  based  on  Article  78(3)  of  the  Treaty  on  the  Functioning  of  the  European 
Union  (TFEU)  aimed  at  supporting  Latvia,  Lithuania  and  Poland  by  providing  for  the 
measures  and operational  support needed to  manage in  an orderly  and dignified manner the 
arrival of persons being instrumentalised by Belarus, in full respect of fundamental rights. The 
proposal complements financial, operational and diplomatic efforts adopted by the Union and 
its Member States to respond to this hybrid attack, including restrictive measures against the 
Belarusian  regime,  the  provision  of  material  support  through  the  Union  Civil  Protection 
Mechanism  to  the  Member  States  concerned,  the  deployment  of  EU  agencies  or  the 
mobilisation of additional funds to support Latvia, Lithuania and Poland. 

Looking ahead, it cannot be excluded that others may attempt to conduct hybrid attacks on the 
Union that include the instrumentalisation of migrants. It is therefore important that the Union 
and its Member States  are fully  equipped to  face any future instrumentalisation  of migrants 
and respond rapidly to them. The elements brought forward in this proposal, together with the 
measures included in the amendment of the Schengen Borders Code, follow the invitation of 

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Joint Communication to the European Parliament, the Council, the European Economic Committee and 
the Committee of the Regions Responding to state-sponsored instrumentalisation of migrants at the EU 
external border (JOIN(2021) 32 final). 
COM(2021) 591 final. 

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the  European  Council  to  the  Commission  and  seek  to  provide  a  framework  for  such  a 
response. 

When faced with  a  situation of instrumentalisation of migrants, Member States  should have 
the flexibility to act within a legal framework designed to address that particular situation and 
ensure that the  rights  of  those falling victim to  instrumentalisation are respected. Therefore, 
the  Commission  is  proposing  a  new  instrument  alongside  those  already  in  the  New  Pact  on 
Migration  and  Asylum  aimed  at  addressing 
the  exceptional  circumstance  of 
instrumentalisation of migrants. This proposal draws upon the solutions applied in the context 
of  the  support  measures  for  Latvia,  Lithuania  and  Poland,  in  order  to  fully  equip  Member 
States with the necessary legal tools to face future instrumentalisation situations were they to 
arise.  This  would  provide  for  a  stable  and  ready  to  use  framework  to  deal  with  any  such 
situation in the future and thus render unnecessary to resort to ad hoc measures under Article 
78(3) TFEU to address situations of instrumentalisation that fall under this proposal. 

The  proposal  for  the  amended  Schengen  Borders  Code3  defines  instrumentalisation  of 
migrants  as  a  situation  where  a  third  country  instigates  irregular  migratory  flows  into  the 
Union by actively encouraging or facilitating the movement of third-country nationals to the 
external borders, onto or from within its territory and then onwards to those external borders, 
where such actions are indicative of an intention of a third country to destabilise the Union or 
a  Member  State,  where  the  nature  of  such  actions  is  liable  to  put  at  risk  essential  State 
functions, including its territorial integrity, the maintenance of law and order or the safeguard 
of its national security. 

the 

instrumentalisation  situation  from 

Accompanying the proposal for an amendment of the Schengen Borders Code, this proposal 
addresses 
the  migration,  asylum  and  return 
perspective4. The objective of this proposal is to support the Member State facing a situation 
of instrumentalisation of migrants  by setting up a specific emergency migration and asylum 
management procedure, and, where necessary, providing for support and solidarity measures 
to  manage  in  an  orderly,  humane  and  dignified  manner  the  arrival  of  persons  having  been 
instrumentalised by a third country, with full respect for fundamental rights. It reproduces to a 
large  extent  the  range  of  possibilities  made  available  to  Latvia,  Lithuania  and  Poland  under 
the  proposal  for  a  Council  Decision  on  provisional  emergency  measures  for  the  benefit  of 
those Member States5. It could be expected that when the measures set out are justified, the 
EU  and  other  Member  States  will  also  be  supporting  the  Member  States  facing  the 
consequences  of  a  situation  of  instrumentalisation  of  migrants  through  instruments  such  as 
support  from  EU  Agencies,  EU  funding  opportunities  and  the  Union  Civil  Protection 
Mechanism.  

The  proposed  options  complement  and  reinforce  the  proposals  under  the  New  Pact  on 
Migration  and  Asylum.  Therefore,  the  specific  rules  introduced  in  this  proposal  for  a 
permanent framework are based on and should be consistent with the Commission proposals 
that form the basis of the future EU migration and asylum policy. Firstly, the 2016 proposal 

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COM proposal (xxxx/xxxx) to amend Regulation (EU) 2016/399 of the European Parliament and of the 
Council  of  9  March  2016  on  a  Union  Code  on  the  rules  governing  the  movement  of  persons  across 
borders (Schengen Borders Code). 
COM proposal (xxxx/xxxx) to amend Regulation (EU) 2016/399 of the European Parliament and of the 
Council  of  9  March  2016  on  a  Union  Code  on  the  rules  governing  the  movement  of  persons  across 
borders (Schengen Borders Code). 
COM(2021) 752. 

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for an Asylum Procedure Regulation6, which fully harmonises and sets the overall procedural 
rules and guarantees in the field of asylum and its amended proposal7 adopted in 2020, which 
establishes  the  new  asylum  border  procedure.  Secondly,  the  2016  proposal  for  a  recast 
Reception  Conditions  Directive8,  which  sets  the  basis  for  more  uniform  material  reception 
conditions  and  creates  additional  obligations  for  applicants  for  international  protection  to 
prevent  unauthorised  onwards  movements.  Thirdly,  the  2018  proposal  for  a  recast  Return 
Directive9, which will improve the effectiveness of the EU return policy. Finally, the proposal 
for a crisis and force majeure Regulation10 (hereafter the 2020 crisis proposal), which adapts 
the asylum and return rules as well as of the solidarity mechanism to assist Member States in 
addressing situations of crisis and force majeure.  

The measures included in the 2020 crisis proposal were not designed to deal with situations 
where the Union’s integrity and security is under attack as a result of the instrumentalisation 
of  migrants.  The  specific  rules  for  asylum  envisaged  under  the  2020  crisis  proposal  were 
conceived specifically for situations of a “mass influx”, where a Member State is not able to 
manage the high numbers of arrivals, and of force majeure. 

Although  this  proposal  aims  at  addressing  the  specific  situation  of  instrumentalisation  of 
migrants, it draws inspiration from the rules envisaged in the 2020 crisis  proposal to  design 
the specific measures tailored to respond effectively to the hostile actions of the third country 
in  line  with  the  Union’s  fundamental  values.  These  rules  aim  to  cater  for  such  specific 
situation without undermining the right to asylum or the principle of non-refoulement and is 
fully ensuring the protection of fundamental rights of people instrumentalised. The measures 
included in the proposal will complement border control measures taken under the Schengen 
Borders  Code  with  specific  rules  for  the  asylum  and  return  procedures  in  addition  to 
operational and solidarity measures in support of the Member State concerned. 

Where the EU is under attack, it is important that the EU, at the level of the European Council 
acknowledges that the actions by a third country can be considered as instrumentalisation of 
migrants. Those actions are not necessarily targeting one or more Member States but the EU 
as  a  whole  and  therefore  require  collective  EU  support.  In  such  a  situation,  this  proposal 
offers the possibility to the Member State concerned to apply a specific emergency migration 
and asylum management procedure with specific procedural provisions for longer registration 
deadlines  and the  possibility to  decide  at  the border on the  admissibility  or substance of all 
applications,  except  where  specific  vulnerabilities  cannot  be  catered  for.  It  also  foresees 
specific  provisions  for  return.  The  Member  State  facing  an  instrumentalisation  of  migrants 
could request the application of these specific rules individually or cumulatively, to assist in 
its management of the extraordinary circumstances. However, the conditions specified for the 

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in 

Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a  common 
procedure  for 
the  Union  and  repealing  Directive  2013/32/EU, 
international  protection 
COM/2016/467 final – 2016/0244 (COD). 
Amended  proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  a 
common  procedure  for  international  protection  in  the  Union  and  repealing  Directive  2013/32/EU, 
COM/2020/611 final. 
Proposal for a Directive of the European Parliament and of the Council laying down standards for the 
reception  of  applicants  for  international  protection  (recast)  –  COM/2016/0465  final  –  2016/0222 
(COD). 
Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  common  standards  and 
procedures  in  Member  States  for  returning  illegally  staying  third-country  nationals  (recast)  – 
COM/2018/634 final. 
Proposal for a regulation of the European Parliament and of the Council addressing situations of crisis 
and force majeure in the field of migration and asylum, COM/2020/613 final. 

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application of each provision need to be met individually. Furthermore, the screening of third-
country  nationals or stateless persons according  to  the rules laid down in the proposal  for  a 
Screening  Regulation  should  apply  with  the  possibility  to  extend  the  five-day  deadline  by 
another five days as specified in that proposal11.  

The  proposal  preserves  the  right  to  access  the  EU’s  territory  for  the  purpose  of  seeking 
asylum and access to the international protection procedure itself. Furthermore, the safeguards 
applicable  under  EU  law  continue  to  apply  to  ensure  the  protection  of  vulnerable  persons, 
including  children.  These  measures  are  accompanied  by  a  series  of  further  safeguards.  The 
proposal also foresees the possibility for the Member State concerned to request support and 
solidarity  measures,  to  which  other  Member  States  can  contribute.  Under  this  proposal,  the 
Council  would  have  to  authorise  by  an  Implementing  Decision  the  application  of  the 
emergency  migration  and  asylum  management  procedure  by  the  Member  State  facing  a 
situation of instrumentalisation of migrants.  

(1) 

Emergency migration and asylum management procedure at the external  borders in 
situations of instrumentalisation 

This proposal sets up an emergency migration and asylum management procedure in relation 
to third-country nationals and stateless persons apprehended or found in the proximity of the 
border with a third country instrumentalising migrants after an unauthorised crossing or after 
having presented themselves at border crossing points. 

(a)  The emergency asylum management procedure 

The main features of this procedure are as follows: 

 

Possibility  for  the  Member  State  concerned  to  register  an  asylum  application 
and  offer  the  possibility  for  its  effective  lodging  only  at  specific  registration 
points  located  in  the  proximity  of  the  border  including  the  border  crossing 
points designated for that purpose 

Under the amendment of the Schengen Borders Code, the Member State facing a situation of 
instrumentalisation of migrants will be allowed to restrict flows at the border by limiting the 
number  of  border  crossing  points  open  with  a  view  to  preventing  unauthorised  entry  and 
protecting their national security.  

To  ensure  a  coherent  approach  with  these  measures  in  an  instrumentalisation  situation,  this 
proposal ensures a genuine and effective access to the asylum procedure in accordance with 
the  possibilities  offered  by  the  proposal  for  an  Asylum  Procedure  Regulation,  which  allow 
Member States to designate specific locations for the registration and lodging of applications 
for international protection. Those specific registration points can be located in the proximity 
of the border, which may also include border crossing points designated for that purpose.  

 

Possibility to extend the registration deadline to up to four weeks 

This proposal allows, but does not require, the Member State facing an instrumentalisation of 
migrants to extend the registration deadline for applications for international protection to up 
to four weeks in relation to asylum applications of third-country nationals or stateless persons 
apprehended  or  found  in  the  proximity  of  the  external  border  with  a  third  country 
instrumentalising migrants after an unauthorised entry or after they have presented themselves 
at  border crossing  points. This  flexibility may be needed to  help the Member State respond 

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The  Screening  Proposal  also  includes  rules  concerning  preliminary  health  checks,  including  for 
communicable diseases, that would apply to all third-country nationals and stateless persons submitted 
to the screening at the external border. 

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effectively to the hostile actions whilst enabling it to manage the unexpected caseload, given 
the nature and sudden character of the third country interference. 

Where  migrants  are  being 
instrumentalised,  through  the  sudden  and  unforeseeable 
interference/intervention  by  a  hostile  third  country,  the  Member  State  facing  this  situation 
may need to deviate resources to the task of managing the arrival of third-country nationals or 
stateless persons at its borders. As a result, the Member State may need time to reorganise its 
resources and increase its capacity, including with the support of the EU agencies. However, 
if  the  Member  State  facing  an  instrumentalisation  of  migrants  makes  use  of  the  longer 
registration deadline, the registration of the applications  for international  protection shall be 
prioritised  whenever  the  case  seems  likely  to  be  well-founded  or  has  been  lodged  by 
unaccompanied minors, or by minors and their family members. 

 

Possibility  to  apply  the  asylum  border  procedure  to  all  applications  and 
possibility to extend its duration 

The measures should support the Member State facing  an instrumentalisation of migrants in 
preventing the entry of those who do not fulfil entry conditions, while protecting fundamental 
rights. The possibility to examine an application at the border without authorising entry to the 
territory in  accordance with Article 41 of the proposal for an Asylum Procedure Regulation 
offers this kind  of protection. However, presently  as  well as  under the rules included in  the 
proposals under the New Pact, the admissibility and merits of applications may be examined 
in a border procedure only in a limited set of circumstances. 

This  proposal  therefore  allows  Member  States  to  apply  the  emergency  asylum  management 
procedure to decide on the admissibility and substance of all applications, except for medical 
cases.  This  measure  will  limit  the  possibility  that  the  hostile  third  country  targets  for 
instrumentalisation specific third-country nationals and stateless persons to whom the border 
procedure cannot be applied. Where a negative decision is taken under the emergency asylum 
management procedure, the applicant will have the right to an effective remedy but the appeal 
will  not  have  automatic  suspensive  effect,  as  foreseen  in  Article  54(3)  of  the  amended 
proposal for the Asylum Procedure Regulation.  

As provided for in the amended proposal for an Asylum Procedure Regulation and explicitly 
stated  in  this  proposal,  during  the  emergency  asylum  management  procedure,  the  rules  and 
guarantees of the Asylum Procedure Regulation would apply to ensure that the rights of those 
who seek international protection are protected, while maintaining the right to asylum and the 
respect of the non-refoulement principle.  

The proposal further stipulates the mandatory prioritisation of well-founded claims and those 
of  unaccompanied  minors,  families  and  children.  If,  following  the  completion  of  the 
screening,  or  during  the  examination  of  the  application,  it  becomes  apparent  that  the 
application is likely to be well-founded or if the application has been lodged by minors and 
their  families  or  unaccompanied  minors,  the  application  should  be  prioritised  in  accordance 
with  Article  33(5)  of  the  2016  proposal  for  an  Asylum  Procedure  Regulation.  Furthermore, 
the Member State facing an instrumentalisation of migrants should not apply the emergency 
asylum  management  procedure  to  medical  cases  as  provided  for  in  Article  41(9)(c)  of  the 
2020 amended proposal for an Asylum Procedure Regulation. 

This proposal also provides for the possibility to extend the duration of the border procedure, 
including the possible appeal, for sixteen weeks. 

Similarly  to  the  extension  of  the  registration  deadline  above,  a  longer  duration  for  the 
emergency  asylum  management  procedure  can  be  considered  to  help  the  Member  State  in 
relation  to  the  consequences  of  the  instrumentalisation  of  migrants,  given  the  nature  and 

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character  of  the  third-country’s  action.  The  Member  State  affected  may  need  time  to 
reorganise  its  resources  and  increase  its  capacity,  including  with  the  support  of  the  EU 
agencies.  In  addition,  the  number  of  cases  to  be  processed  in  the  emergency  asylum 
management procedure will be larger (as in principle all applicants can be subject to it) than 
under normal circumstances. Therefore, the extension will help the Member State to apply the 
fiction of non-entry for a longer period of time providing for more flexibility to deal with the 
increased workload.  

In  accordance  with  the  safeguards  provided  in  the  proposal  for  an  Asylum  Procedure 
Regulation  and  the  proposal  for  the  Reception  Conditions  Directive  recast,  the  detention  of 
applicants should be a measure of last resort, where other sufficient or less coercive measures 
cannot  be  applied  in  a  specific  case.  Therefore,  the  application  of  the  emergency  asylum 
management procedure will not imply a systematic detention of applicants. 

(b)  Material reception conditions 

Where migrants are instrumentalised, it might be difficult for the Member State to ensure the 
material  reception  conditions  standards  are  met  as  the  Member  State’s  administrative 
capacities might be overstretched as a result of the instrumentalisation situation. The Member 
State  has  to  manage  normal  flows  in  addition  to  the  increased  flows  resulting  from  the 
instrumentalisation and also reorganise resources to protect its territorial integrity. However, 
the  affected  Member  State  needs  to  ensure  that  any  actions  respect  basic  humanitarian 
guarantees,  such  as  providing  third‑country  nationals  on  their  territory  with  food,  water, 
clothing,  adequate  medical  care,  assistance  to  vulnerable  persons  and  temporary  shelter,  as 
also set out by the European Court of Human Rights in recent orders for interim. 

Article 17(9) of the proposal for the Reception Conditions Directive recast allows the Member 
State,  in  duly  justified  cases  and  under  certain  conditions,  to  set  modalities  for  material 
reception  conditions  different  from  those  provided  in  the  Reception  Conditions  Directive 
recast, provided that it will ensure access to health care in accordance with Article 18 and a 
dignified  standard  of  living  for  all  applicants.  This  proposal  extends  the  possibility  to  set 
different  material  reception  conditions  in  a  situation  of  instrumentalisation  of  migrants 
provided  that  basic  needs  are  covered,  including  temporary  shelter,  food,  water,  clothing, 
adequate medical care, assistance to vulnerable persons, in full respect of the right to human 
dignity.  The  Member  State  concerned  should  ensure  access  and  allow  for  the  provision  of 
humanitarian assistance by humanitarian organisations in line with the relevant needs. 

(c)  The emergency return management procedure 

In  a  situation  of  instrumentalisation  of  migrants,  it  is  essential  to  equip  the  Member  State 
concerned with the necessary legal tools to ensure a swift return of those who do not qualify 
for  international  protection.  The  proposal  therefore  provides  for  the  possibility  to  derogate 
from  Article  41a  of  the  proposal  for  an  Asylum  Procedure  Regulation  and  from  the 
application of the  proposal for a Return Directive recast in relation to third country nationals 
or stateless persons whose application for international protection was rejected on the basis of 
the emergency asylum management procedure. In relation to third country nationals who did 
not apply for international protection, the provision of Article 2(2)(a) of the Return Directive 
recast  can  be  applied  by  Member  States.  The  derogation  set  out  in  this  proposal  aims  at 
establishing a mechanism that is similar to the derogation as set out in Article 2(2)(a) of the 
Return  Directive  recast,  comparable  to  the  provisions  proposed  for  the  benefit  of  Latvia, 
Lithuania and Poland. It also provides for specific safeguards, notably concerning the respect 
of  the  principle  of  non-refoulement,  taking  account  of  the  best  interests  of  the  child,  family 
life and state of health of third-country nationals and stateless persons, as well as concerning 
the limitations to the use of coercive measures, postponement of removal, emergency health 

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care,  needs  of  vulnerable  persons  and  detention  conditions,  while  fully  ensuring  the 
fundamental rights of such persons.  

(2) 

Support and solidarity measures 

In terms of support and solidarity measures, the proposal introduces measures focused on the 
needs of the Member State facing an instrumentalisation of migrants.  

Such  a  situation,  where  the  Union  is  under  attack,  requires  EU  solutions  and  EU  support. 
Therefore,  there  is  a  need  for  all  Member  States  to  quickly  react  and  rally  support  to  the 
Member State concerned.  

However,  this  type  of  situation  requires  a  different  approach  and  procedure  from  the  one 
currently included in the instruments of the New Pact. The proposal includes the possibility to 
resort  to  all  the  measures  that  could  address  the  instrumentalisation  of  migrants.  Possible 
support  and  solidarity  measures  could  include  capacity  measures  to  help  deal  with  the 
consequences of the instrumentalisation of migrants, support return operations or support with 
outreach  to  third  countries  from  where  the  people  instrumentalised  originate.  The  Member 
State facing an instrumentalisation of migrants should identify its support and solidarity needs 
and  communicate  these  to  the  Commission.  The  Commission  would  then  invite  the  other 
Member States to contribute for the benefit of the Member State affected and coordinate those 
measures.  

As the effects of the instrumentalisation actions might easily spill over (or even have as their 
objective) to impact more broadly neighbouring Member States and the European Union, it is 
necessary to foresee the means for providing support at EU-level. If the Member State facing 
instrumentalisation  of  migrants  requests  support  from  EU  agencies,  the  agencies  should 
prioritise  their  operational  support.  This  would  particularly  be  the  case  for  the  European 
Union  Asylum  Agency  (EUAA)  which  can  help  register  and  process  the  applications,  to 
ensure screening of vulnerable migrants, support the management, design and putting in place 
of  adequate  standards  of  reception  facilities;  or  from  Frontex  to  support  border  control 
activities,  including  screening,  and  return  operations;  and  from  Europol  to  provide 
intelligence.  Similarly  to  the  process  of  operational  assistance  provided  under  the  amended 
Schengen Borders Code proposal, in the field of asylum, the EUAA should also be able on its 
own  initiative  to  offer  assistance  under  Article  16(1)(d)  of  the  EUAA  Regulation,  while 
further  assistance  could  be  provided  by  Frontex  and  Europol  in  line  with  their  respective 
mandates. 

These support and solidarity measures would complement other assistance to be provided to 
the  Member  State  facing  instrumentalisation  of  migrants  that  might  be  taken  outside  the 
framework  that  this  proposal  intends  to  create,  such  as  Article  25a  measures  of  the  Visa 
Code12  or  foreign  policy  actions,  (e.g.  diplomatic  outreach,  restrictive  measures,  trade 
measures)  or  financial  support  including  under  the  European  Asylum,  Migration  and 
Integration Fund (AMIF) or the Border Management and Visa Instrument (BMVI). 

(3) 

A  specific  procedure  to  authorise  the  application  of  the  emergency  migration  and 
asylum procedure 

The  Member  State  facing  instrumentalisation  of  migrants  and  intending  to  apply  the 
emergency  migration  and  asylum  management  procedure  must  request  the  Commission  the 
application of the derogations they aim to use, as well as any support and solidarity measures. 
Based  on  the  information  provided  by  the  Member  State  concerned,  the  Commission  will, 

12 

Regulation  (EC)  No  810/2009  of  the  European  Parliament  and  of  the  Council  of  13  July  2009 
establishing  a  Community  Code  on  Visas,  as  amended  by  Regulation  (EU)  2019/1155,  OJ  L  243 
15.9.2009, p. 1. 

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where  appropriate,  and  without  delay,  prepare  a  proposal  for  a  Council  Implementing 
Decision setting out the derogations that can be applied, which should be for an initial period 
of  no  longer  than  six  months.  The  Council  Implementing  Decision  will  authorise  the 
derogations to be applied and set out their temporal application, including starting date as well 
as their duration. The Commission should keep the situation, including the proportionality of 
the measures, under constant monitoring and review, and propose either a prolongation of the 
measures or their repeal should the situation so require. 

• 

Consistency with existing policy provisions in the policy area 

This proposal is fully consistent with the New Pact on Migration and Asylum adopted by the 
Commission  in  September  2020.  It  sits  alongside  the  crisis  and  force  majeure  proposal  as 
another  piece  in  the  framework  that  will  provide  additional  specific  rules  for  managing  the 
particular situation of instrumentalisation of migrants. The starting point for the specific rules 
introduced  in  this  proposal  are  the  Commission  proposals  for  an  Asylum  Procedure 
Regulation adopted in 2016 and its amended proposal adopted in 2020, the recast Reception 
Conditions  Directive adopted  in  2016 and  the recast  Return Directive adopted in  2018. The 
proposal  is  also  consistent  with,  and  provides  the  legislative  follow-up  to  proposal  for  a 
Council Decision 752/2021 on provisional measures for the benefit of Latvia, Lithuania and 
Poland. 

Interactions with Article 78(3) of the Treaty on the Functioning of the European Union 

The establishment of specific rules in a situation of instrumentalisation is without prejudice to 
the  possibility  for  the  Council  to  adopt,  on  a  proposal  from  the  Commission,  provisional 
measures  for  the  benefit  of  a  Member  State  confronted  by  an  emergency  situation  as 
characterised by Article 78(3) TFEU. 

The present proposal aims to put the Union in a position to address a specific situation with 
which the Union has been already confronted and to be prepared for any similar situations in 
the  future,  enabling  the  Union  to  act  quickly  for  the  benefit  of  the  Member  State  facing  a 
situation of instrumentalisation of migrants. A permanent framework on which the Union can 
consistently  rely  tailored  to  this  situation  is  necessary,  which  would  also  allow  maintaining 
the  exceptional  nature  of  provisional  measures  under  Article  78(3)  TFEU  and  thus  render 
unnecessary to resort to Article 78(3) TFEU to address situations of instrumentalisation that 
fall under this proposal. 

The  present  proposal  aims  to  establish  specific  rules  to  support  a  Member  State  when  it  is 
victim  of  a  third  country  instigating  irregular  migratory  flows  into  the  Union  by  actively 
encouraging  or  facilitating  the  movement  of  third  country  nationals  to  the  external  borders, 
onto  or  from  within  its  territory  and  then  onwards  to  those  external  borders,  where  such 
actions are indicative of an intention of a third country to destabilise the Union or a Member 
State,  where  the  nature  of  such  actions  is  liable  to  put  at  risk  essential  State  functions, 
including  its  territorial  integrity,  the  maintenance  of  law  and  order  or  the  safeguard  of  its 
national security.  

• 

Consistency with other Union policies 

This proposal is consistent with the need to sustain a reduced pressure from irregular arrivals 
and  maintain  strong  external  borders  being  important  elements  of  the  comprehensive 
approach  set  out  in  the  New  Pact  on  Migration  and  Asylum.  As  set  out  in  the  Joint 

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Communication13,  this  proposal  is  part  of  the  efforts  made  at  strengthening  the  EU’s  legal 
framework,  including  the  Commission  proposal  for  a  Regulation  on  ‘measures  against 
transport operators that facilitate or engage in trafficking in persons or smuggling of migrants 
in relation to illegal  entry into the territory of the European Union’14, to give better tools to 
Member States to protect the external borders in situations of instrumentalisation of migrants, 
while  ensuring  full  respect  for  fundamental  rights.  In  this  context,  it  complements  the 
Schengen Borders Code and the Schengen reform,  in  which the Commission is  proposing a 
permanent  framework  for  addressing  possible  situations  of  instrumentalisation  of  migrants 
that may still confront the Union in the future.  

It  also  aims  to  reduce  onward  movements  of  irregular  migrants  and  stress  on  the  Schengen 
area. Swift and effective return and readmission  of instrumentalised migrants are effectively 
addressed, in line with the comprehensive approach to migration management set out in the 
New Pact on Migration and Asylum. It is also consistent with, and should be used in parallel 
to, the Union’s external action, such as EU restrictive measures. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  proposal  supports  the  Member  State  faced  with  instrumentalisation  of  migrants.  The 
proposal  contains  a  number  of  provisions  related  to  the  proposal  for  an  Asylum  Procedure 
Regulation  and  its  amended  proposal,  the  proposal  for  the  Reception  Conditions  Directive 
recast and the proposal for the Return Directive recast. It should therefore be adopted on the 
appropriate legal basis, namely Article 78, second paragraph, points (d) and (f) and Article 79, 
second paragraph, point (c) TFEU, in accordance with the ordinary legislative procedure. 

• 

Variable geometry 

Two recitals address variable geometry, with regard to the matter of participation of Ireland 
and Denmark in this Regulation.  

In  accordance  with  Protocol  No  21  on  the  position  of  Ireland  in  respect  of  the  Area  of 
Freedom,  Security  and Justice, annexed to  the Treaty on European Union (TEU)  and to  the 
TFEU,  Ireland  may  decide  to  take  part  in  the  adoption  and  application  of  measures 
establishing a Common European Asylum System. In this respect, Ireland has given notice of 
its  wish  to  take  part  in  the  adoption  and  application  of  Directive  2005/85/EC  and  of  its 
decision  not  to  participate  in  the  adoption  of  Directive  2013/32/EU.  Consequently,  the 
provisions  of  Directive  2005/85/EC  apply  to  Ireland,  while  the  provisions  of  the  current 
Directive do not apply to Ireland. Ireland has not given notice of its wish to take part in the 
adoption  of  the  new  Asylum  Procedure  Regulation,  which  would  be  necessary  for  this 
Regulation  to  produce  legal  effect  in  respect  of  Ireland,  should  Ireland  decide  to  opt  in,  in 
accordance Protocol No 21.  

In accordance with Protocol No 22 on the position of Denmark, annexed to the TEU and to 
the TFEU, Directive 2005/85/EC and Directive 2013/32/EU are not binding on Denmark nor 
is Denmark subject to their application. Denmark is also not taking part in the adoption of this 
Regulation and is not bound by it or subject to its application. 

13 

14 

Joint Communication to the European Parliament, the Council, the European Economic Committee and 
the  Committee  of  the  Regions  Responding  to  state-sponsored  instrumentalisation  of  migrants  at 
the EU external border (JOIN(2021) 32 final). 
COM(2021) 753 final. 

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• 

Subsidiarity (for non-exclusive competence)  

Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on 
these  matters  to  the  European  Union.  These  powers  must  be  exercised  in  accordance  with 
Article 5 of the Treaty on the European Union, i.e., if and in  so far as  the objectives  of the 
proposed action cannot be sufficiently achieved by the Member States and can, therefore, by 
reason  of  the  scale  or  effects  of  the  proposed  action,  be  better  achieved  by  the  European 
Union. 

A  situation  where  a  third  country  instigates  irregular  migratory  flows  into  the  Union  by 
actively  encouraging  or  facilitating  the  movement  of  third-country  nationals  to  the  external 
borders, onto  or from  within its territory and then onwards  to  those external  borders,  where 
such  actions  are  indicative  of  an  intention  of  a  third  country  to  destabilise  the  Union  or  a 
Member  State,  where  the  nature  of  such  actions  is  liable  to  put  at  risk  essential  State 
functions, including its territorial integrity, the maintenance of law and order or the safeguard 
of its national security, should be considered as an attack on the EU as a whole and therefore 
requiring EU solutions and EU support. There is a need to equip the Member State facing an 
instrumentalisation  of  migrants  with  the  adequate  legal  tools  to  address  the  situation 
effectively and for all Member States to quickly react and rally support to the Member State 
concerned.  

Achievement of these objectives requires action at the EU level since they are cross-border by 
nature. It is clear that actions taken by individual Member States cannot satisfactorily reply to 
the need for a common EU approach to a common problem. 

Such a common approach cannot be sufficiently achieved by the Member States individually 
and  can,  by  reason  of  the  scale  and  effects  of  this  proposed  Decision,  be  better  achieved  at 
Union level. The Union must therefore act and may adopt measures, in accordance with the 
principle of subsidiarity as set out in Article 5(3) of the Treaty on European Union. 

• 

Proportionality 

In accordance with the principle of proportionality, as set out in Article 5(4) of the Treaty on 
the European Union, this proposal for a Regulation sets out the exact conditions when specific 
asylum  procedural  rules  can  be  applied  as  well  as  provide  for  the  scope  and  time  limit  of 
applying such rules, and necessary safeguards. 

All  the  elements  of  the  measures  proposed  to  deal  with  the  specific  situation  of 
instrumentalisation of migrants are limited to what is necessary to ensure Member States can 
manage the situation in an orderly and effective way while ensuring the equality of treatment 
in terms of rights and guarantees for applicants. In this sense, the derogations from the rules 
set out in the 2016 proposal for an Asylum Procedure Regulation, the 2020 amended proposal 
for an Asylum Procedure Regulation and the recast Reception Conditions Directive and recast 
Return  Directive  are  proportionate,  with  a  number  of  safeguards  put  in  place  that  strike  a 
balance  between  on  the  one  hand,  the  immediate  needs  of  the  Member  State  facing 
instrumentalisation of migrants to manage that situation, and on the other, the need for legal 
certainty and uniformity in the application of derogations and specific rules and the necessary 
protection of the third-country nationals being instrumentalised.  

The proposal establishes safeguards for applying the derogations and specific rules. In view of 
the extraordinary situation of instrumentalisation of migrants, it is considered proportionate to 
apply  the  emergency  asylum  management  procedure  to  all  applicants,  as  it  would  help  to 
avoid that third countries target specific nationalities or categories of migrants, which would 

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be  excluded  from  the  border  procedure.  To  allow  Member  State  to  deal  with  the  increased 
number  of  persons  placed  in  the  emergency  asylum  management  procedure,  the  maximum 
duration of the border procedure is prolonged to sixteen weeks. This is considered sufficient 
to allow the Member State the necessary flexibility to process applications at the proximity of 
the  border  or  at  designated  border  crossing  points  without  allowing  third-country  nationals 
and  stateless  persons  entry  in  the  territory.  The  derogations  from  the  Reception  Conditions 
Directive recast are proportionate in the situation of instrumentalisation of migrants due to the 
hostile actions of a third country as it might not be possible for the Member State in practice 
to  ensure  the  material  reception  conditions  normally  required  as  the  Member  State’s 
capacities might be overstretched. They should be considered in the context of the safeguards 
and flexibility offered under the 2020 amended proposal for an Asylum Procedure Regulation 
to organise resources and capacity to apply the border procedure. If the derogation is applied, 
the Member State must provide for the applicant’s basic needs and the full respect of human 
dignity.  

The  specific  derogations  from  the  recast  Return  Directive  are  proportionate  to  ensure  an 
expedite return of those who do not qualify for international protection, which is essential in a 
situation  of  instrumentalisation  of  migrants  to  prevent  further  arrivals.  A  number  of 
safeguards  are  put  in  place  to  protect  the  fundamental  rights  of  those  subject  to  return  in 
accordance with the EU Charter of Fundamental Rights and international obligations.  

to  enable 

the  Member  States  concerned 

It  is  also  proposed  that  the  duration  of  these  measures  be  limited  in  time  to  what  is  strictly 
necessary 
the  situation  of 
instrumentalisation  and  in  any  case  they  should  be  applied  for  an  initial  period  of  no  more 
than  six  months.  To  this  end,  following  the  authorisation  by  the  Council,  the  Commission 
should  keep  the  situation  under  constant  monitoring  and  review,  including  to  determine 
whether the measures the Member State has been authorised to apply remain proportionate.  

to  address 

• 

Choice of the instrument 

It is only a Regulation establishing specific rules and derogations from the asylum and return 
procedures in the Union, and whose provisions shall be directly applicable, that can provide 
the  necessary  degree  of  uniformity  and  effectiveness  needed  in  the  application  of  EU 
procedural rules on asylum in a situation of instrumentalisation of migrants.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

The  proposal  relies  on  the  information  provided  by  stakeholders  during  the  consultation 
process since the beginning of summer 2021. 

• 

Fundamental rights 

This  proposal  respects  fundamental  rights  and  observes  the  principles  recognised,  in 
particular,  by  the  Charter  of  Fundamental  Rights  of  the  European  Union,  as  well  as  the 
obligations stemming from international law, including a genuine and effective access to the 
asylum  procedure  and  the  access  to  the  territory  of  the  EU  for  the  purpose  of  making  an 
application  for  international  protection.  To  this  end,  the  Member  State  facing  a  situation  of 
instrumentalisation  should  ensure  there  are  sufficient  registration  points,  including  border 
crossing points, open and easily accessible. As explained below, the emergency migration and 
asylum procedure provided for in this proposal respects the fundamental rights as enshrined in 
the  Charter,  including  the  right  to  human  dignity  (Article  1),  prohibition  of  torture  and 
inhuman  or  degrading  treatment  or  punishment  (Article  4),  the  right  to  liberty  and  security 

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(Article  6),  the  right  to  respect  for  private  and  family  life  (Article  7),  the  right  to  the 
protection  of  personal  data  (Article  8),  the  right  to  asylum  (Article  18),  the  prohibition  of 
collective expulsion and protection from refoulement (Article 19(1) and (2)), the right to non-
discrimination  (Article  21),  the  principle  of  equality  between  men  and  women  (Article  23), 
the  rights  of  the  child  (Article  24)  and  the  right  to  an  effective  remedy  (Article  47). 
Furthermore, the Commission also considers it necessary that Member States respect freedom 
of expression, media freedom and freedom of association of civil society organisations. 

As  regards  the  application  of  the  emergency  migration  and  asylum  management  procedure, 
the principles and guarantees provided for by the proposals in the New Pact remain applicable 
to  applicants  subject  to  that  procedure.  Furthermore,  the  proposal  includes  the  mandatory 
prioritisation of well-founded claims, following the completion of the screening or whenever 
the  protection  needs  become  apparent,  consistently  with  2016  proposal  for  an  Asylum 
Procedure Regulation, and those of unaccompanied minors, families and children. It is to the 
benefit  of  these  applicants  to  have  their  asylum  applications  decided  upon  as  quickly  as 
possible. The guarantees for persons with special procedural needs under Article 41(9)(b) of 
the 2020 amended proposal for an Asylum Procedure Regulation also continue to apply. The 
proposal also guarantees the right to an effective remedy ensuring that Courts have power to 
rule whether or not the applicant may remain on the territory of the Member State pending a 
decision on an appeal and with the right guarantees applicable to enable an applicant to make 
such requests to the Courts. 

This proposal fully respects the rights of the child and the special needs of vulnerable persons. 
The safeguards provided for children and vulnerable persons in the proposal for the Reception 
Conditions Directive recast shall be of primary consideration, including where detention has 
to  be  applied,  for  competent  authorities.  When  setting  the  different  modalities  for  reception 
conditions, the framework provided for in this proposal respect the safeguards of preserving 
human dignity at all times in all circumstances.  

The right to liberty and freedom of movement is protected given that, if detention is used in 
the  context  of  the  emergency  migration  and  asylum  management  procedure,  it  can  only  be 
applied in a strictly regulated framework and for a limited time. In accordance with Article 7 
of  proposal  for  the  Reception  Conditions  Directive  recast  Member  State  may  restrict  an 
applicant’s  freedom  of  movement  in  order  to  process  applications  in  the  border  procedure. 
According to the proposal for the Reception Conditions Directive recast, Member States shall 
not hold a person in detention for the sole reason that he or she is an applicant. Article 8 of 
that  proposal  provides  for  the  grounds  and  conditions  of  detention,  following  and 
individualised  assessment  and  when  other  less  restrictive  measures  cannot  be  applied,  that 
allow Member States to detain applicants for international protection in order to decide, in the 
context of a procedure, on the applicant’s right to enter the territory. Article 8 also provides 
that Member States may detain an applicant only if other, less coercive alternative measures – 
like restrictions to freedom of movement under its Article 7 – cannot be applied effectively.  

The principle of non-refoulement enshrined in Article 33 of the 1951 Refugee Convention and 
Article  19  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  is  also  respected 
when  derogations  from  the  Return  Directive  recast  are  applied.  The  proposal  therefore 
explicitly recalls the duty of Member States to always observe this principle in the fulfilment 
of their obligation to control borders. Respecting the principle of non-refoulement includes an 
assessment of whether there is neither a risk of persecution, torture or inhumane or degrading 
treatment, nor a risk of chain refoulement. 

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4. 

BUDGETARY IMPLICATIONS 

Due to the nature of this proposal linked to a situation of instrumentalisation of migrants, it is 
not  possible  to  estimate  a  priori  the  possible  budgetary  impact.  Any  costs  arising  from  the 
implementation of this proposal will be accommodated within the budget of the existing EU 
funding instruments under the period 2021-2027 in the field of Migration and Asylum. Where 
exceptionally  necessary,  the  flexibility  mechanisms  provided  under  the  current  multiannual 
financial framework under Council Regulation (EU, Euratom) 2020/209315 could be used. 

In  terms  of  the  asylum  procedural  aspects,  this  proposal  does  not  impose  any  financial  or 
administrative burden on the Union. On those parts, therefore, it has no impact on the Union 
budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The Commission will use the reporting under the “Migration Blueprint Network” as a tool for 
monitoring on the situation and if needed make recommendations regarding the prolongation 
or discontinuation of the measures. 

• 

Detailed explanation of the specific provisions of the proposal 

Subject matter of the proposal to address situations of instrumentalisation of migrants  

Article  1  sets  out  the  subject  matter  of  the  Regulation  addressing  situations  of 
instrumentalisation of migrants in the field of migration and asylum within the EU.  

Emergency asylum management procedure in a situation of instrumentalisation 

Article  2  introduces  the  specific  rules  that  Member  States  may  use  in  a  situation  of 
instrumentalisation  of  migrants  in  the  framework  of  an  emergency  asylum  management 
procedure.  

Article 2(1)(a) lays down that the Member State facing a situation of instrumentalisation  of 
migrants may extend the registration deadline for applications for international protection in 
relation to applications of third-country nationals or stateless persons apprehended or found in 
the  proximity  of  the  external  border  with  the  third  country  instrumentalising  migrants  in 
connection  with  an  unauthorised  crossing  or  after  they  have  presented  themselves  at  border 
crossing points, to up to four weeks. Prioritisation should be given to register the cases which 
are  likely  to  be  well-founded  and  applications  made  by  unaccompanied  minors,  and  minors 
and their families. 

Article  2(1)(b)  lays  down  the  possibility  for  the  Member  State  facing  a  situation  of 
instrumentalisation of migrants to extend the scope of the asylum border procedure to cover 
all  applicants,  by  not  excluding  any  category  of  applicants  (except  medical  cases  as  per 
Article 41(9)(c) of the amended Asylum Procedure Regulation). Article 2(1)(b) also clarifies 
that  when  it  becomes  apparent  after  the  screening  or  during  the  examination  in  the  border 
procedure  that  the  application  is  likely  to  be  well-founded  or  the  application  is  lodged  by 
minors  and  their  families,  including  unaccompanied  minors,  the  examination  of  their 
application should be prioritised. 

Article  2(1)(c)  allows  Member  States  to  apply  the  border  procedure  as  provided  for  by  the 
amended Asylum Procedure Regulation for a period of sixteen weeks, including any appeals, 

15 

Council  Regulation  (EU,  Euratom)  2020/2093  of  17  December  2020  laying  down  the  multiannual 
financial framework for the years 2021 to 2027, OJ 4331, 22.12.2020, p. 11-22.  

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after  which  the  person  should  be  allowed  entry  into  the  territory  except  when  the  person  is 
subject to return.  

In applying these derogations, the safeguards of the Asylum Procedure Regulation continue to 
apply. 

Material Reception Conditions 

Article 3 allows the Member State to set modalities for material reception conditions different 
from those provided in the Reception Conditions Directive recast, provided the Member State 
ensures the applicant’s basic needs and the full respect of human dignity. 

Emergency return management procedure in a situation of instrumentalisation 

Article  4  lays  down  a  possibility  for  Member  States  to  derogate  from  Article  41a  of  the 
Asylum  Procedure  Regulation  and  from  the  application  of  the  Return  Directive  recast  in 
relation  to  third-country  nationals  or  stateless  persons  whose  application  for  international 
protection was rejected on the basis of the emergency asylum management procedure  at the 
border in accordance with Article 2(1) points (b) and (c). The derogation aims at establishing 
a mechanism similar to derogation under Article 2(2)(a) of the Return Directive recast.  The 
proposal includes the necessary safeguards concerning the obligation to respect the principle 
of  non-refoulement,  take  account  of  the  best  interests  of  the  child,  family  life  and  state  of 
health  of  third-country  nationals  or  stateless  persons,  as  well  as  on  the limitations  to  use  of 
coercive  measures,  postponement  of  removal,  emergency  health  care,  needs  of  vulnerable 
persons  and  detention  conditions,  while  fully  respecting  the  fundamental  rights  of  such 
persons. 

Provision of support and solidarity measures in a situation of instrumentalisation  

Article  5  provides  the  possibility  for  a  Member  State  to  request  support  and  solidarity 
measures  from  other  Member  States.  Those  measures  should  include  all  the  measures  that 
could  address  the  situation  of  instrumentalisation  of  migrants  including  capacity  building 
measures, measures to support return through cooperation with third countries or outreach to 
third countries whose nationals are being instrumentalised. The Member State affected should 
send  a  request  to  the  Commission  requesting  support  and  solidarity  measures  from  other 
Member States. 

The  Commission  shall  invite  the  other  Member  States  to  contribute  for  the  benefit  of  a 
Member  State  facing  a  situation  of  instrumentalisation  that  correspond  to  the  needs  of  that 
Member State and coordinate those measures as soon as possible after receiving the request. 
In  addition,  as  regards  operational  support,  a  Member  State  facing  a  situation  of 
instrumentalisation may request support from the EU Asylum Agency16, the European Border 
and Coast Guard Agency or Europol in accordance with their mandates. 

Specific safeguards 

Article 6 lays down specific guarantees. In order to guarantee access to the asylum procedure, 
the Member State facing an instrumentalisation of migrants should duly inform third-country 
nationals  or  stateless  persons  in  a  language  which  the  third-country  national  or  stateless 
person understands or is reasonably supposed to  understand about the measures applied, the 

16 

The  EUAA  shall  provide  assistance  at  the  request  of  the  Member  State  or  upon  its  own  initiative 
(with the  agreement  of  the  Member  State  concerned)  or  the  Council  may  decide  in  measures  to  be 
taken, on the basis of a proposal from the Commission in such specific circumstances. 

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points  accessible  for  registering  and  lodging  an  application  for  international  protection,  in 
particular the location of the nearest point where they can register or lodge an application for 
international protection, the possibility to challenge the decision taken on the application, and 
the duration of the measures. In addition, the Member State facing an instrumentalisation of 
migrants should not apply Articles 2, 3 and 4 longer than what is strictly necessary to address 
the situation, and no longer than the period set out in the Council Implementing Decision. 

Authorisation procedure 

Article  7  lays  down  the  procedure  for  authorising  the  derogations.  The  Commission  is  to 
make  a  proposal  for  a  Council  Implementing  Decision,  which  should  be  adopted  by  the 
Council setting out the derogations to be applied. The Council Implementing Decision should 
set out the starting date of the application of the derogations as well as their duration and the 
temporary application of the Decision. They should be applied for a period not exceeding six 
months. The Commission is to keep the situation under constant monitoring and review, and 
on  that  basis,  propose  where  appropriate  to  repeal  the  Council  Implementing  Decision 
authorising  the  application  of  the  specific  derogations  or  the  adoption  of    a  new  Council 
Implementing Decision authorising the prolongation of the application of the derogations. 

Cooperation and review  

Article  8  lays  down  that  the  Commission,  the  European  Union  agencies  and  the  Member 
States should closely cooperate and regularly inform each other on the implementation of the 
measures, as referred to in Article 7, laid down in this proposal. Member States also need to 
report  relevant  data  including  statistics  via  the  EU  Migration  Preparedness  and  Crisis 
Management Network.  

UN  agencies  and  other  relevant  partner  organisations  should  have  effective  access  to  the 
border  under  the  conditions  set  out  in  the  Reception  Conditions  Directive  recast  and  the 
Asylum Procedure Regulation. The United Nations High Commissioner for Refugees should 
be  allowed  access  to  applicants,  including  those  at  the  border.  The  Member  State  facing  an 
instrumentalisation  of  migrants  should  work  in  close  cooperation  with  UN  agencies  and 
relevant partner organisations. 

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2021/0427 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

addressing situations of instrumentalisation in the field of migration and asylum 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 78(2), (d) and (f) and Article 79(2)(c) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee17, 
Having regard to the opinion of the Committee of the Regions18, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

A  situation  of  instrumentalisation  of  migrants  may  arise  where  a  third  country 
instigates  irregular  migratory  flows  into  the  Union  by  actively  encouraging  or 
facilitating  the  movement  of  third  country  nationals  to  the  external  borders,  onto  or 
from  within  its  territory  and  then  onwards  to  those  external  borders,  where  such 
actions are indicative of an  intention  of  a  third country  to destabilise the Union  or  a 
Member State, where the nature of such actions is liable to put at risk essential State 
functions,  including  its  territorial  integrity,  the  maintenance  of  law  and  order  or  the 
safeguard of its national security. 

This Regulation follows the invitation of the European Council to the Commission in 
its conclusions of 22 October 2021 to propose any necessary changes to the Union’s 
legal  framework  and  concrete  measures  to  ensure  an  immediate  and  appropriate 
response  to  the  hybrid  threat  in  line  with  Union  law  and  international  obligations. 
Furthermore, it contributes to establishing a comprehensive and permanent framework 
to equip the Member States concerned with the necessary tools to respond effectively 
and swiftly to an instrumentalisation situation in full respect of fundamental rights and 
international obligations.  

One  of  those  tools  in  this  Regulation  is  the  introduction  of  an  emergency  migration 
and  asylum  management  procedure  providing  the  possibility  for  Member  States  to 
have recourse to legal tools to face future situations of instrumentalisation of migrants. 

This Regulation respects the fundamental rights and observes the principles recognised 
by the Charter of Fundamental Rights of the European Union, in particular Articles 1, 
4, 7, 24, 18 and 19(2) and (2) thereof as well as the Geneva Convention of 28 July of 
1951. In order to reflect, in particular, the primary consideration that must be given to 
the  best  interests  of  the  child,  the  need  to  respect  family  life,  and  to  ensure  the 

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(5) 

(6) 

protection of the health of the persons concerned, this Regulation provides for specific 
rules  and  safeguards  applying  in  respect  of  unaccompanied  minors  and  minors  and 
their family members, and of applicants whose state of health requires a specific and 
adequate  support.  The  rules  and  guarantees  set  out  in  Regulation  (EU)  XXX/XXX19 
[Asylum Procedure Regulation] should continue to apply in respect of persons subject 
to  the  asylum  emergency  management  procedure,  except  where  this  Regulation 
provides  otherwise.  The  rules  set  out  in  Directive  XXX/XXX  [Reception  Conditions 
Directive  recast]20,  including  those  concerning  the  detention  of  applicants  for 
international protection, should continue to apply, from the moment an application for 
international protection is made, except where this Regulation provides otherwise.  

To  assist  the  Member  State  facing  an  instrumentalisation  situation  with  the  orderly 
management  of  the  flows,  under  the  emergency  asylum  management  procedure,  it 
should  be  possible  for  the  Member  State  concerned  to  decide  in  relation  to  third-
country  nationals  or  stateless  persons  that  have  been  apprehended  or  found  in  the 
proximity of the external border with the third country instrumentalising migrants after 
an unauthorised crossing or who have presented themselves at border crossing points, 
to register applications for international protection only at specific registration points 
designated  for  this  purpose  situated  in  the  proximity  of  the  border,  and  provide  an 
effective possibility for lodging an application for international protection only at the 
specific points that have been designated for such purposes and which should be easily 
accessible.  An  effective  and  genuine  access  to  the  international  protection  procedure 
must be ensured in accordance with Article 18 of the Charter of Fundamental Rights 
of the European Union and the Geneva Convention of 28 July of 1951. To this end, the 
Member State concerned should ensure that sufficient registration points, which may 
include border crossing points, are designated and open for such purpose. Applicants 
should be duly informed about the locations where their application will be registered 
and can be lodged. 

In a situation of instrumentalisation of migrants, it is essential to prevent the entry of 
those who do not fulfil entry conditions, while ensuring the protection of fundamental 
rights.  In  order  to  ensure  that  the  Member  State  facing  such  a  situation  has  the 
necessary flexibility and avoid that a hostile third country targets specific nationalities 
or  specific  categories  of  third-country  nationals  or  stateless  persons,  it  should  be 
possible under the emergency migration and asylum management procedure set out in 
this Regulation for the Member State concerned to take a decision in the framework of 
the border procedure, as set out in Article 41 of Regulation (EU) XXX/XXX [Asylum 
Procedure  Regulation]  on  admissibility  and  the  merits  of  all  applications  for 
international protection by third-country nationals or stateless persons apprehended or 
found  in  the  proximity  of  the  border  with  the  third  country  after  an  unauthorised 
crossing  or  who  presented  themselves  at  border  crossing  points.  The  principles  and 
guarantees  set  out  in  Regulation  (EU)  XXX/XXX  [Asylum  Procedure  Regulation] 
have to be respected. 

(7)  Where the emergency asylum management procedure is applied, the best interests of 
the  child  and  the  safeguards  for  applicants  with  medical  conditions  should  be  a 
primary consideration for the competent authorities. For this reason, the Member State 
facing  a  situation  of  instrumentalisation  should  exclude  from  the  emergency  asylum 
management  procedure  cases  where  there  are  medical  reasons  for  not  applying  the 
border procedure in line with Article 41(9)(c) of Regulation (EU) XXX/XXX [Asylum 

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(8) 

(9) 

Procedure  Regulation].  This  should  also  be  the  case  if  the  health  problems  become 
apparent  during  the  examination  of  the  application.  The  Member  State  concerned 
should also prioritise the examination of applications from persons  whose claims are 
likely to  be well-founded  or from  minors and their family members, as well as from 
unaccompanied  minors.  If  during  the  screening  under  Regulation  (EU)  XXX/XXX 
[Screening  Regulation]21  or  the  examination  of  the  application  it  becomes  apparent 
that  an  applicant  is  in  need  of  special  procedural  guarantees  and  adequate  support 
cannot  be provided in  the context  of the procedure at  the border, in  accordance with 
Article  41(9)(b)  of  Regulation  (EU)  XXX/XXX  [Asylum  Procedure  Regulation],  the 
Member State concerned should not  apply, or cease to  apply, the emergency  asylum 
management procedure at the border.  

In  accordance  with  Article  8(3)(d)  of  Directive  XXX/XXX  [Reception  Conditions 
Directive recast], an applicant may be detained in order to decide, in the context of a 
procedure, on the applicant’s right to enter the territory. Article 8(2) of that Directive 
also provides that Member States may detain an applicant only, if other less coercive 
alternative measures – like restrictions to freedom of movement under its Article 7  – 
cannot be applied effectively. The rules and safeguards regarding detention set out in 
Directive  XXX/XXX  [Reception  Conditions  Directive  recast],  in  particular  those 
concerning  unaccompanied  minors,  minors  and  their  families  should  be  respected. 
Alternatives  to  detention,  such  as  restrictions  in  the  freedom  of  movement  in 
accordance  with  Article  7  of  Directive  XXX/XXX  [Reception  Conditions  Directive 
recast],  may  be  as  effective  as  detention  in  a  situation  of  instrumentalisation  of 
migrants and should therefore be considered by the authorities, particularly for minors. 
In any case, if detention is applied and the guarantees and conditions for detention are 
not met or cannot be met at the border, the emergency asylum management procedure 
should  not  apply  or  should  cease  to  apply,  as  foreseen  in  Article  41(9)(d)  of 
Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. 

In a situation of instrumentalisation of migrants, it should be possible for the Member 
State concerned to register applications for international protection within an extended 
period  of  four  weeks.  In  addition,  it  should  be  possible  to  examine  applications  for 
international protection at the border for a maximum duration of sixteen weeks. If the 
decision  on  the  application,  including  a  decision  on  a  possible  appeal  against  a 
negative  decision,  which  should  not  have  automatic  suspensive  effect,  is  not  taken 
within the sixteen weeks, entry to the territory should be granted, unless the person is 
subject to the return procedure. These procedural timelines are conceived to help the 
Member State concerned to deal with the situation of instrumentalisation of migrants. 
When  confronted  with  such  a  situation,  the  Member  State  concerned  need  to  divert 
resources  to  manage  the  third  country  nationals  arriving  at  its  borders  or  that  are 
already  present  in  its  territory.  As  a  result,  in  such  situations,  the  Member  State 
concerned  may  need  time  to  reorganise  their  resources  and  increase  their  capacity, 
including with the support of the EU agencies. Furthermore, the number of applicants 
under  the  border  procedure  will  be  higher  than  under  normal  circumstances,  and 
therefore  the  Member  State  facing  a  situation  of  instrumentalisation  may  need  more 
time  to  be  able  to  take  decisions  without  allowing  entry  into  the  territory.  However, 
the Member State concerned should prioritise the registration of applications of well-
founded cases and unaccompanied minors and minors and their family members. 

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(10)  Any  violent  acts  at  the  border  must  be  avoided  at  all  costs,  not  only  to  protect  the 
territorial  integrity  and  security  of  the  Member  State  facing  a  situation  of 
instrumentalisation  but  also  to  ensure  the  security  and  safety  of  the  third-country 
nationals  or  stateless  persons,  including  families  and  children  that  are  awaiting  their 
opportunity  to  apply  for  asylum  in  the  Union  peacefully.  Where  the  Member  State 
concerned  is  confronted  at  its  external  border  with  violent  actions,  including  in  the 
context  of  attempts  by  third  country  nationals  to  force  entry  en  masse  and  using 
disproportionate violent means, the Member State concerned should be able to take the 
necessary measures in accordance with their national law to preserve security, law and 
order, and ensure the effective application of this Regulation. 

(11)  Where  a  Member  State  is  faced  with  a  flow  of  third-country  nationals  or  stateless 
persons  at  the  border  due  to  instrumentalisation,  it  might  not  be  possible  for  the 
Member State in practice to ensure the material reception conditions normally required 
as the Member State’s capacities might be overstretched. For this reason, in a situation 
of  instrumentalisation,  the  Member  State  concerned  should  be  able  to  set  modalities 
for  material  reception  conditions  that  differ  from  those  provided  for  in  Directive 
XXX/XXX [Reception Conditions Directive recast] in cases other than those referred 
to  in  Article  17(9)  of  that  Directive,  while  providing  third-country  nationals  and 
stateless persons with temporary shelter which should be adapted to seasonal weather 
conditions  and  covering  their  basic  needs,  in  particular  by  providing  food,  water, 
clothing, adequate medical care, and assistance to vulnerable persons, in full respect of 
the right to human dignity. Without prejudice to the obligations set in that regard upon 
Member States by this Regulation, Member States should also ensure access and allow 
for the provision of humanitarian assistance by the humanitarian organisations in line 
with the existing needs of the persons concerned. 

(12) 

In  order  to  complement  and  ensure  full  coherence  with  the  emergency  asylum 
management  procedure  at  the  external  border,  the  competent  authorities  of  the 
Member State facing a situation of instrumentalisation of migrants should be provided 
with the necessary flexibility to carry out return procedures, following the application 
of  an  emergency  asylum  management  procedure.  For  this  reason,  in  a  situation  of 
instrumentalisation,  the Member State concerned should be allowed to derogate from 
the application of Directive XXX/XXX [Return Directive recast]22 in relation to third-
country nationals and stateless persons whose application for international protection 
was rejected in the context of an emergency asylum management procedure as set out 
in this Regulation. Where a subsequent application is made merely to delay or frustrate 
the return, it is possible for Member States to apply the rules set out in Articles 42 and 
43 of Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. The rules set out 
in  this  Regulation  are  without  prejudice  to  the  possibility  for  Member  States  to 
derogate  from  the  application  of  Directive  XXX/XXX  [Return  Directive  recast]  by 
virtue of Article 2(2)(a) of that Directive, in relation to illegally staying third-country 
nationals or stateless persons apprehended in connection with the irregular crossing by 
land,  sea  or  air  of  the  external  border  of  a  Member  State  and  who  have  not 
subsequently obtained an authorisation or right to stay in that Member State. 

(13)  When  applying  the  derogation  to  the  application  of  Directive  XXX/XXX  [Return 
Directive  recast],  the  Member  State  concerned  should  ensure  full  respect  of  the 
Charter  of  Fundamental  Rights  of  the  European  Union  and  their  international 
obligations.  This  includes  full  respect  of the  principle of  non-refoulement  and taking 

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due account of the best interests of the child, family life and the state of health of the 
third-country  national  concerned  as  otherwise  set  out  for  derogations  in  the  Return 
Directive.  The  Member  State  also  needs  to  ensure  that  the  treatment  and  level  of 
protection in relation to limitations on the use of coercive measures, postponement of 
removal,  emergency  health  care  and  needs  of  vulnerable  persons  and  detention 
conditions, are no less favourable than those set out in Directive XXX/XXX [Return 
Directive recast]. 

(14)  Where  a  Member  State  applies  one  or  more  of  the  measures  in  this  Regulation,  the 
Member State should inform third-country nationals and stateless persons  thereof. In 
particular,  the  Member  State  facing  a  situation  of  instrumentalisation  should  inform 
third-country  nationals  or  stateless  persons  in  a  language  which  the  third-country 
national or stateless person understands or is reasonably supposed to understand about 
the  derogations  applied,  the  points  accessible  for  registering  and  lodging  an 
application for international protection, in particular the location of the nearest points 
where  their  application  can  be  registered  and  lodged,  the  possibility  to  appeal  the 
decision on the application, and the duration of the measures. 

(15) 

In  case  of  instrumentalisation  of  migrants,  the  Member  State  facing  a  situation  of 
instrumentalisation  should  have  the  possibility  to  request  from  other  Member  States 
support  and  solidarity  measures  that  are  most  suited  to  its  needs  to  manage  the 
instrumentalisation situation. The support and solidarity measures could take all forms 
to  address  the  situation  of  instrumentalisation,  including  capacity-building  measures, 
support  for  return  and  support  on  the  external  dimension  of  the  crisis  and  measures 
aimed  at  responding  to  instrumentalisation  situation  through  cooperation  with  third 
countries or outreach to third countries whose nationals are being instrumentalised. 

(16)  The  other  Member  States  which  are  not 

themselves  facing  a  situation  of 
instrumentalisation should be invited to contribute for the benefit of a Member State 
facing a situation of instrumentalisation by means of support and solidarity measures 
corresponding  to  the  needs  identified.  The  Commission  should  coordinate  those 
support  and  solidarity  measures  as  soon  as  possible  after  receiving  the  request  from 
the Member State facing a situation of instrumentalisation.  

(17)  A  Member  State  facing  a  situation  of  instrumentalisation  of  migrants  may  request 
support from the EU Asylum Agency, the European Border and Coast Guard Agency 
or  Europol  in  accordance  with  their  mandates.  As  appropriate,  the  Asylum  Agency 
may  propose  assistance  on  its  own  initiative  in  accordance  with  Article  16(1)(d)  of 
Regulation  XXX/XXX [EUAA Regulation], whereas  the European Border and Coast 
Guard  Agency  may  propose  assistance  in  the  field  of  return  in  accordance  with 
Articles  48,  50,  52  and  53  of  Regulation  (EU)  2019/1896  in  agreement  with  the 
Member  State  concerned  and  Europol  may  propose  assistance  in  accordance  with 
Article 6(1) of Regulation (EU) 2016/794. 

(18) 

instrumentalisation  of  migrants, 

If the application of the relevant derogations set out in this Regulation is requested by 
the Member State concerned, and  taking into account  whether the European Council 
has  acknowledged  that  the  Union  or  one  or  more  of  its  Member  States  are  facing  a 
the  Commission  should,  where 
situation  of 
appropriate,  bring  forward  a  proposal  authorising  a  Member  State  to  apply  the 
derogatory  rules  provided  for  in  this  Regulation.  To  ensure  a  high  level  of  political 
scrutiny and support and to reinforce the expression of the Union’s solidarity towards 
the  Member  State  facing  an  instrumentalisation  of  migrants,  implementing  powers 
should  be  conferred  upon  the  Council.  Therefore,  the  Implementing  Decision 

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authorising  the  Member  States  to  apply  derogatory  rules  should  be  adopted  by  the 
Council. 

(19)  The  Council  Implementing  Decision  should  include  an  authorisation  of  the  specific 
derogations that the Member State facing a situation of instrumentalisation of migrants 
could apply, and set the date from which they should apply, as well as their duration. 

(20) 

In order to support the Member State concerned in providing the necessary assistance 
to  third  country  nationals  falling  under  the  scope  of  this  Regulation,  including  by 
promoting voluntary return activities or by carrying out their humanitarian duties, UN 
agencies  and  other  relevant  partner  organisations,  in  particular  the  International 
Organization  for  Migration  and  the  International  Federation  of  Red  Cross  and  Red 
Crescent Societies, should have effective access to the border under the conditions set 
out  in  the  Directive  (EU)  XXX/XXX  [Reception  Conditions  Directive  recast]  and 
Regulation  (EU)  XXX/XXX  [Asylum  Procedure  Regulation].  In  accordance  with 
Regulation (EU) XXX/XXX [Asylum Procedure Regulation], the United Nations High 
Commissioner for Refugees should be allowed access to applicants, including those at 
the border. To this end, the Member State concerned should work in close cooperation 
with UN agencies and relevant partner organisations. 

(21) 

[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the  United 
Kingdom  and  Ireland in respect of the area of freedom, security and justice, annexed 
to the Treaty on European Union and to the Treaty on the Functioning of the European 
Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in 
the adoption of this Regulation and is not bound by it or subject to its application.] 

OR  

[In  accordance  with  Article  3  of  Protocol  No  21  on  the  position  of  the  United 
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed 
to  the  Treaty  on  European  Union  and  to  the  Treaty  on  the  Functioning  of  the 
European  Union,  Ireland  has  notified  (by  letter  of  …)  its  wish  to  take  part  in  the 
adoption and application of this Regulation.] 

(22) 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of 
this Regulation and is not bound by it or subject to its application. 

HAVE ADOPTED THIS REGULATION: 

CHAPTER I 

General Provisions  

Article 1 

Subject matter 

This Regulation provides for specific rules derogating from those set out in Regulation (EU) 
XXX/XXX  [Asylum  Procedure  Regulation],  Directive  (EU)  XXX/XXX  [Reception 
Conditions  Directive  recast]  and  Directive  (EU)  XXX/XXX  [Return  Directive  recast]  that 
may be applied by a Member State in a situation of instrumentalisation of migrants as defined 
in  [Article  2(27)]  of  the  Schengen  Borders  Code  where  necessary  for  responding  to  such  a 
situation.  It  also  provides  for  specific  rules  on  support  and  solidarity  measures  that  may  be 
taken in such situation.  

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1. 

CHAPTER II  

Emergency migration and asylum procedure in a situation of 
instrumentalisation of migrants  

Emergency migration and asylum procedure in a situation of instrumentalisation of 
migrants 

Article 2 

In  a  situation  of  instrumentalisation  of  migrants  as  referred  to  in  Article  1,  the 
Member State faced with the arrival of third-country nationals or stateless persons at 
its external border as a consequence of such situation may apply, in relation to third-
country nationals or stateless persons who are apprehended or found in the proximity 
of the external border with the third country instrumentalising migrants in connection 
with an unauthorised crossing or who have presented themselves at border crossing 
points, one or more of the following derogations, in accordance with the procedure 
laid down in Article 6: 

(a) 

by way of derogation from Article 27 of Regulation (EU) XXX/XXX [Asylum 
Procedure Regulation], register applications for international protection  made 
within  the  period  during  which  this  point  is  applied  no  later  than  four  weeks 
after the application is made. 

Where  applying  this  derogation,  the  Member  State  concerned  shall  prioritise 
the  registration  of  applications  likely  to  be  well-founded  and  those  of 
unaccompanied minors and minors and their family members. 

(b)  by  way  of  derogation  from  Article  41(2)(a)  and  (b)  and  Article  41(5)  of 
Regulation (EU) XXX/XXX [amended Asylum Procedure Regulation], decide 
at  their  borders  or  transit  zones  on  the  admissibility  and  on  the  merits  of  all 
applications registered within the period during which this point is applied. 

Where  applying  this  derogation,  the  Member  State  concerned  shall  prioritise 
the  examination  of  applications  for  international  protection  likely  to  be  well-
founded  and  those  lodged  by  unaccompanied  minors  and  minors  and  their 
family members. 

(c) 

by  way  of  derogation  from  Article  41(11)  of  Regulation  (EU)  XXX/XXX 
[Asylum  Procedure  Regulation],  the  maximum  duration  of  the  emergency 
asylum  management  procedure  for  the  examination  of  applications  registered 
within  the  period  during  which  this  point  is  applied  shall  be  sixteen  weeks. 
Following  that  period,  provided  that  the  applicant  is  not  subject  to  the  return 
procedure  in  accordance  with  Article  4,  the  applicant  shall  be  authorised  to 
enter  the  Member  State’s  territory  for  the  completion  of  the  procedure  for 
international protection. 

2. 

Where  applying  this  Article,  the  principles  and  guarantees  of  Regulation  (EU) 
XXX/XXX [Asylum Procedure Regulation] shall apply. 

Article 3 

Material Reception Conditions 

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By  way  of  derogation  from  Directive  XXX/XXX  [Reception  Conditions  Directive  recast], 
and in accordance with the procedure laid down in Article 6, the Member State faced with the 
arrival of third-country nationals or stateless persons at their external border as a consequence 
of a situation of instrumentalisation of migrants  may temporarily set  modalities for material 
reception conditions different from those provided for in Articles 16 and 17 of that Directive 
in  relation  to  applicants  apprehended  or  found  in  the  proximity  of  the  border  with  the  third 
country instrumentalising migrants in connection with an unauthorised crossing or who have 
presented themselves at the border crossing points, and are subject to the measures in Article 
2  of  this  Regulation,  provided  these  Member  States  cover  the  applicants’  basic  needs,  in 
particular food, water, clothing, adequate medical care, and temporary shelter adapted to the 
seasonal weather conditions, and in full respect of human dignity. 

Article 4 

Emergency return management procedure in a situation of instrumentalisation of 
migrants 

In  a  situation  of  instrumentalisation  of  migrants,  and  in  accordance  with  the  procedure  laid 
down  in  Article  6,  the  Member  State  faced  with  the  arrival  of  third-country  nationals  or 
stateless persons at its external border as a consequence of a situation of instrumentalisation 
of migrants may, in  respect  of third-country  nationals  or stateless  persons who do not  fulfil 
the conditions of entry and whose applications were rejected in the context of the emergency 
asylum  management  procedure  at  the  border  in  accordance  with  Article  2(1)  points  (b)  and 
(c), and who have no right to remain and are not allowed to remain, decide not to apply 41a of 
Regulation  (EU)  XXX/XXX  [Asylum  Procedure  Regulation]  and  Directive  XXX/XXX 
[Return  Directive  recast].  Where  resorting  to  this  derogation,  the  Member  State  concerned 
shall: 

(a) 

(b) 

1. 

respect the principle of non-refoulement and take due account of the best interests of 
the child, family life and state of health of the third country national concerned as set 
out in Article 5 of Directive XXX/XXX [the Return Directive recast]; 

ensure that their treatment and level of protection are no less favourable than as set 
out  in  Article  10(4)  and  (5)  (Limitations  on  use  of  coercive  measures)]  Article 
11(2)(a)  –  (postponement  of  removal),  Article  17(1)(b)  and  (d)  [emergency  health 
care  and  taking  into  account  needs  of  vulnerable  persons],  and  Articles  19  and  20 
[conditions  for  detention  and  detention  of  minors  and  families]  of  Directive 
XXX/XXX [Return Directive recast]. 

Article 5 

Support and solidarity measures 

Where a Member State is facing a situation of instrumentalisation of migrants, it may 
request  support  and  solidarity  measures  from  other  Member  States  in  order  to 
manage  that  situation.  Support  and  solidarity  contributions  for  the  benefit  of  a 
Member State facing a situation of instrumentalisation of migrants may include the 
following types of contributions: 

(a) 

capacity-building measures in the field of asylum, reception and return;  

(b)  operational support in the field of asylum, reception and return; 

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(c)  measures  aimed  at  responding  to  instrumentalisation  situation,  including 
specific measures to support return, through cooperation with third countries or 
outreach to third countries whose nationals are being instrumentalised; or 

(d) 

any  other  measure  considered  adequate  to  address  the  instrumentalisation 
situation and support the Member State concerned. 

The Member State facing a situation of instrumentalisation shall send a request to the 
Commission  for  support  and  solidarity  contributions  from  other  Member  States 
specifying the solidarity measures requested. 

Without prejudice to the solidarity provisions of Regulation (EU) XXX/XXX [Crisis 
and force majeure Regulation], the Commission, as soon as possible after receiving 
the  request  for  support  and  solidarity  measures  as  referred  to  in  paragraph  2,  shall 
invite  other  Member  States  to  contribute  by  means  of  the  support  and  solidarity 
measures  referred  to  in  paragraph  1  that  correspond  to  the  needs  of  Member  State 
facing  a  situation  of  instrumentalisation.  The  Commission  shall  coordinate  the 
support and solidarity measures referred to in this Article.  

A  Member  State  facing  a  situation  of  instrumentalisation  of  migrants  may  request 
support from  the EU  Asylum  Agency,  from  the  European Border and Coast  Guard 
Agency, or from Europol in accordance with their mandates. As appropriate, the EU 
Asylum  Agency  may  propose  assistance  on  its  own  initiative  in  accordance  with 
Article 16(1)(d) of Regulation XXX/XXX [EUAA Regulation]. The European Border 
and Coast Guard Agency may propose assistance in the area of return in accordance 
with Articles 48, 50, 52 and 53 of Regulation (EU) 2019/1896 to the Member State 
concerned.  Europol  may  propose  assistance  in  the  area  of  law  enforcement 
cooperation in accordance with Article 6(1) of Regulation (EU) 2016/794. 

Article 6 

Specific guarantees 

Where applying the derogations referred to in Articles 2, 3 and 4, the Member State 
concerned shall duly inform third-country nationals or stateless persons in a language 
which  the  third-country  national  or  stateless  person  understands  or  is  reasonably 
supposed  to  understand  about  the  measures  applied,  the  location  of  the  registration 
points, including the border crossing points, accessible for registering and lodging an 
application for international protection, and the duration of the measures. 

The  Member  State  facing  a  situation  of  instrumentalisation  of  migrants  shall  not 
apply  Articles  2,  3  and  4  longer  than  what  is  strictly  necessary  to  address  the 
situation  of  instrumentalisation  of  migrants,  and  in  any  case,  no  longer  than  the 
period  set  out  in  the  Council  Implementing  Decision  referred  to  in  paragraph  4  of 
Article 7. 

2. 

3. 

4. 

1. 

2. 

CHAPTER III 

Procedural rules 

Article 7 

Authorisation procedure 

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1. 

2. 

3. 

4. 

5. 

1. 

2. 

A Member State faced with the arrival of third-country nationals or stateless persons 
at  its  external  border  as  a  consequence  of  a  situation  of  instrumentalisation  of 
migrants,  may  request  the  authorisation  to  apply  the  derogations  provided  for  in 
Articles 2, 3 and 4. 

Where  the  Commission  considers  it  appropriate,  on  the  basis  of  the  information 
provided by the requesting Member State facing a situation of instrumentalisation of 
migrants,  the  Commission  shall,  without  delay,  make  a  proposal  for  a  Council 
Implementing Decision referred to in paragraph 3. 

The  Council  shall  assess  this  proposal  as  a  matter  of  urgency  and  adopt  an 
Implementing Decision authorising the Member State concerned to apply the specific 
derogations provided for in Articles 2, 3 and 4. 

The Council Implementing Decision referred to in paragraph 3 shall set the date from 
which the rules laid down in Articles 2, 3 and 4 may be applied, as well as the time 
period for their application, which shall not exceed an initial period of six months. 

The  Commission  shall  keep  the  situation  of  instrumentalisation  of  migrants  under 
constant monitoring and review. Where the Commission considers it appropriate, it 
may  propose  the  repeal  of  the  Council  Implementing  Decision  referred  to  in 
paragraph 3 or the adoption of a new Council Implementing Decision authorising the 
prolongation of the application of the specific derogations referred to in Articles 2, 3 
and 4 for a period, which shall not exceed six months. The Member State concerned 
shall  provide  the  Commission  specific  information  needed  for  it  to  carry  out  this 
review  and  to  make  the  proposal  for  repeal  or  prolongation  as  well  as  any  other 
information the Commission may request. 

Article 8 

Cooperation and assessment 

The  Commission,  relevant  European  Union  institutions  and  agencies  and  the 
Member  State  facing  a  situation  of  instrumentalisation  of  migrants  shall  closely 
cooperate and regularly inform each other on the implementation of the derogations 
and  measures  referred  to  in  Article  7.  The  Member  State  concerned  shall  continue 
reporting all relevant data including statistics that are relevant for the implementation 
of  this  Regulation,  via  the  EU  Migration  Preparedness  and  Crisis  Management 
Network. 

The Member State facing a situation of instrumentalisation of migrants shall ensure 
close  cooperation  with  the  United  Nations  High  Commissioner  for  Refugees  and 
relevant partner organisations to determine the modalities for support to applicants in 
the instrumentalisation situation in line with the rules set out in this Chapter and in 
Regulation  (EU)  XXX/XXX  [Asylum  Procedure  Regulation]  and  Directive 
XXX/XXX [Reception Conditions Directive recast]. 

CHAPTER IV 

Final provisions 

Article 9 

Entry into force 

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This  Regulation  shall  enter  into  force  on  the    day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

This Regulation shall be binding in its entirety and directly applicable in the Member States in 
accordance with the Treaties. 

Done at Strasbourg, 

For the European Parliament 
The President 

For the Council 
The President 

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