Introduction
Due to the high influx of migrants to the European Union (EU), migration is a European challenge that requires a European solution. The EU legislator’s aim is to realize a comprehensive approach that aims at strengthening and integrating key EU policies on migration, asylum, border management and integration. With firm but fair rules, these policies are designed to manage and normalize migration for the long term, providing EU countries with the flexibility to address the specific challenges they face, and with the necessary safeguards to protect people in need. The national courts and the Court of Justice have the task to review whether these new rules are in line with EU law and the fundamental rights of the migrant in order to protect the rule of law.
EU Asylum and Migration Pact
An important step in terms of legislation is the EU Asylum and Migration Pact that entered into force on 11 June 2024 and will enter into application on 12 June 2026. The EU Asylum and Migration pact is a legally-binding solidarity mechanism between EU Member States with the aim to create a more efficient and fair system for managing migration and asylum in the EU. This Pact includes 9 regulations and 1 directive that must ensure that the influx of asylum seekers to the European Member States is limited and that the burden between EU Member States is better distributed. There are three essential components to the Pact. First: safer European borders, second: faster and more efficient asylum and return procedures and third: more solidarity with the Member States at the external borders. The new rules provide for closer cooperation between Member States to stop secondary movements in the EU. The application of these new rules by the national authorities from 12 June 2026 will be monitored by national courts and the Court of Justice of the EU (CJEU).
New national measures in the Member States in the area of asylum and migration law
However, in the various EU Member States, despite the harmonizing tendencies of the EU legislator, there is a search for further restrictive measures of the asylum and migration policy by the national legislator. Three recent examples show that the national courts in the Member States, in dialogue with the CJEU and in order to protect the rule of law, review whether these new measures in the Member States are in accordance with the EU’s multi-level legal order, general principles, international treaties such as the European Convention on Human Rights (ECHR) and, ultimately, domestic law.
Example 1: new measure on general official country reports in the Netherlands
The first example is from the Netherlands. In the Netherlands, the current right-wing cabinet announced at the start of its mandate that it wants to introduce the strictest asylum policy in the EU. The cabinet has determined that official country reports regarding safety in the country of origin will no longer be made public. However, the district court in Roermond has ruled that, in the case of a Syrian asylum seeker who has filed against the Ministry of Asylum and Migration about his rejected asylum application based on an official country report, it is for the ministry to decide whether a country is safe enough to return to. The district court clarifies that the Official Report Syria 2025 must be added to the file “as soon as it is ready”. According to the district court, it is “evident” that the publication of a general official report will “not endanger” national security or the security of those sources in general. Unlike an individual official report, a general official country report is (usually) a collection of sources that are already public and so is their interpretation. Official country reports are very important for asylum seekers. They are official advice for the government about the safety in the countries of origin of asylum seekers. Based on this, it is decided whether or not they may stay in their host country temporarily or whether they must return. The House of Representatives often debates country reports when new ones are published and as such these documents play an important role in asylum procedures at the Immigration and Naturalization Service and therefore at courts.
Example 2: new policy on refusing asylum seekers at the border in Germany
The second example is from Germany. According to a judgment of the Berlin Administrative Court of 2 June 2025, the German policy of refusing asylum seekers at the border is declared unlawful. The German government started this practice since May 2025 as part of a stricter migration policy. Three Somalis filed a lawsuit against the German state because of the new policy. They are two men and a woman who fled from Poland to Germany by train. The three were checked by the police at the Frankfurt train station in early May. After submitting an asylum application, the Somalis were sent back to Poland on that same day.
German Minister of Interior Dobrindt announced in early May 2025 that asylum seekers may be refused at the border, because neighboring countries to Germany are safe countries. The Somalis could therefore have applied for asylum there, the government reasoned. Germany would only make an exception for “vulnerable people”, such as pregnant women and children. But the German court calls that policy “unlawful”. According to the court, the government must adhere to the EU Dublin Regulation. This means that Germany must first determine which country is responsible for the asylum application before asylum seekers may be deported. This is often the first country where an asylum seeker entered the Schengen zone. This is therefore not always the neighboring country from which someone crosses the border. According to the German Minister of Interior, this is an “isolated case” and it is therefore not necessary to change the entire policy.
Example 3: criminal measure of facilitation of unauthorized entry in Italy
The third example is from Italy. An Italian court asked the Court of Justice about the scope of the general offence of facilitation of unauthorized entry, provided for by EU law. The Court answered that the conduct of a person who, in breach of the rules governing the movement of persons across borders, brings into the territory of a Member State minors who are third-country nationals and are accompanying him or her, and over whom he or she exercises actual care, does not fall within the scope of that offence. Indeed, such conduct does not constitute facilitation of illegal immigration, which EU law seeks to combat, but the exercise of that person’s responsibility in respect of those minors, stemming from their family relationship. EU law therefore precludes national legislation criminalizing that conduct. A third-country national who enters the EU illegally cannot be punished for facilitating illegal entry on the sole ground that he is accompanied by his minor child. That parent is merely exercising the responsibility incumbent on him towards the child.
In the meantime, the EU legislator is in the process of amending Directive 2002/90/EC. The EU Council has also added the criminalization of close family members. Despite this attempt by the EU legislator, the Member States will have to assess the judgment of the Court of Justice in the Kinsa case when applying this criminalization.
Commission proposal: EU Return Regulation
The return of illegal third-country nationals is also a key element of asylum and migration policy. On 11 March 2025, the European Commission proposed a Common European System for Returns, a new legal framework with the aim to have swifter, simpler and more effective return procedures across the EU. Currently, successful returns of illegal third country nationals are around 20 percent, while the current return rules differ across Member States, which creates loopholes enabling system abuse. The new rules bring clarity and give Member States tools and the necessary legal basis to make returns more efficient while fully respecting fundamental rights. Hence, a truly European system is created in the form of a regulation with common procedures for issuing return decisions and a European return order. This will lead to less fragmentation at the level of the Union, which currently has 27 national systems. It is now for the European Parliament and the Council to agree on the proposal. The Commission will support the co-legislators to advance on negotiations for this draft Regulation.
Summary of the Commission proposal on EU Return Regulation
The proposal includes mutual recognition of return decisions across Member States and stipulates clear rules on forced return, while incentivizing voluntary return, stronger obligations for returnees, balanced against clear safeguards and stricter rules to limit abuse and manage absconding. Specific rules are put in place for people posing a security risk so they can be identified and returned faster. The proposed legislation also introduces the possibility to create return hubs in third countries, where individuals with a return order staying illegally in the EU can be returned, based on an agreement or arrangement concluded bilaterally or at EU level. Such an agreement or arrangement can be concluded with a third country that respects international human rights standards and principles in accordance with international law, including the principle of non-refoulement. Families with minors and unaccompanied minors are excluded and the implementation of such agreements or arrangements must be subject to monitoring.
The instrument of return hub
One of the new instruments, which are introduced in the proposal of the Commission is the return hub. The return hub creates the legal possibility to return persons illegally staying in the EU who have received a final return decision to a third country on the basis of a bilateral or EU-level agreement or arrangement. In addition, arrangements can be concluded with third countries that comply with international human rights standards and principles under international law, including the principle of non-refoulement. Families with minors and unaccompanied minors are excluded from similar arrangements or agreements and their implementation should be monitored.
Fundamental Rights Agency (FRA) opinion on return hubs
In a position paper entitled Planned return hubs in third countries: EU fundamental rights law issues, the European Union Agency for Fundamental Rights (FRA) has made a legal analysis of the phenomenon of return hubs in the proposal for a new Return Regulation.
In the position paper, the FRA provides a legal analysis of the establishment of return hubs against the background of fundamental rights. The FRA’s position has already been criticized here and here. The FRA defines return hubs as an open or closed facility outside the EU where third-country nationals, ordered to leave the EU territory or refused entry, are temporarily accommodated pending their return to their country of origin. The return hubs can be managed by authorities of the EU Member States concerned, but also by the authorities of the third country concerned. The FRA concludes that agreements between EU Member States and third countries for the establishment of return hubs are legally permissible, provided that a number of strict conditions are met.
FRA: legal conditions for return hubs
First, according to the FRA, every return must always be based on a valid and enforceable return decision. Such a decision must always be based on an individual assessment, taking into account the right to an effective judicial review (Article 47 of the EU Charter of Fundamental Rights). Transferring an individual to a return hub in a third country may only take place if there is no exposure to inhuman or degrading treatment and the principle of non-refoulement must be upheld. Secondly, the agreement in question must at least regulate the core aspects related to the implementation of a return hub scheme and must respect rights and principles as set out in the EU Charter. Thirdly, EU Member States remain responsible for the fundamental rights of persons present in the return hubs, even if the latter is outside the EU territory. The return hubs may result in Frontex returning persons from one third country (third country return hub) to another third country (country of origin). This is a new situation and entails risks in light of the principle of non-refoulement. Therefore, according to the FRA, safeguards must be implemented to ensure the non-encroachment of this principle. Finally and overarchingly, any agreement establishing return hubs must be subject to an effective and independent monitoring mechanism.
Final remarks
In my view, more restrictive measures of the EU rules in the area of asylum and migration law are necessary to be able to realize a manageable migration system that remains sustainable in the long term. The EU and national legislator have to search continuously for a balance between more efficient measures in which the fundamental rights of the individual are sufficiently guaranteed in the Member States. The new measures introduced by the national and EU legislator in the area of asylum and migration are limited by the multiple legal orders of EU law, general legal principles (such as the proportionality test), international treaties (such as the ECHR) and domestic law. Although these limitations could have a straight-jacketing effect, the impact of the judgments of the courts show that when new measures are introduced in the field of asylum and migration, the courts were able to protect the fundamental rights of migrants within the multi-level EU legal order and therefore safeguarded the rule of law.
Furthermore in 2023, an increase was seen in the number of referrals from the national courts to the Court of Justice in the field of asylum and migration law. Indeed, the preliminary ruling procedure takes a lot of time until the European judge has spoken. However, the recent case law of the Court of Justice in asylum cases, as Peers clearly pointed out, “is maintaining its liberal approach despite the adoption of more restrictive asylum legislation by the EU’s political institutions”.
Therefore, the conclusion is that the national courts and the Court of Justice show in their case law that they act independently and impartially in the field of asylum and migration law. This area of law is highly subject to political influence. New measures introduced by the Member States to limit migration flows are reviewed by the courts in the EU on the basis of the multi-level legal order, whereby it is always weighed up whether the choices of the national legislator comply with relevant sources of law in order to ultimately protect the rule of law.
The current contribution reflects the personal view of the author.
