Upholding the rights of refugees: can the EU align security with its core values?
This is the second chapter for a forthcoming e-book by the Global Governance Research Group of the UNA Europa network, entitled ‘The European Union in a Illiberal World’. Nuria Hernández-García discusses how the EU’s increasing ‘securitisation’ of its borders with respect of refugees is undermining its identity as a rights-based polity.
The European Union (EU or Union) has long framed itself as a bastion of democracy, fundamental rights, and the rule of law. These principles, enshrined in the Treaty on European Union (TEU), have guided both internal policies and external relations. However, the intersection of migration and security has increasingly challenged this identity, particularly in the aftermath of the 2015 refugee crisis. The EU’s responses to asylum and irregular migration have highlighted tensions within its constitutional framework, raising concerns over the sustainability of the Common European Asylum System (CEAS) and the credibility of its human rights commitments. In fact, the New Pact on Migration and Asylum, introduced in 2020, seeks to reform the CEAS by strengthening border controls and introducing a new screening mechanism, entrenching a securitised approach, and limiting access to asylum, while not addressing systemic governance failures.
The persistence of the “implementation gap”– the discrepancy between formal legal commitments and actual enforcement (Tsourdi, 2021) – suggests that, without a binding solidarity mechanism, disparities between frontline and non-frontline states will continue to deepen.
This chapter explores how the EU can reconcile its migration and asylum policies with its fundamental values. It examines the constitutional crisis linked to migration governance, and the broader implications of restrictive asylum measures. Ultimately, it argues that asylum policy must be decoupled from migration control by establishing legal and safe pathways, enhancing integration efforts, and ensuring compliance with international human rights standards. Only by reaffirming its commitment to fundamental rights can the EU maintain its legitimacy and uphold the principles on which it was founded.
The right to asylum as a fundamental right
Asylum and refugee institutions, while practically equivalent, recognise the right to asylum only for a specific group – refugees – as determined by international law. In other words, there is an obligation to grant asylum to those recognised as refugees. According to the UNHCR (2019, par. 28) and authors like Gortázar (1997) and Trujillo Herrera (2003: 64), the recognition of refugee status by states is declarative, not constitutive. This means that a person is a refugee if they meet the conditions outlined in the Geneva Convention 1951 regardless of state recognition. Thus, rejecting a foreigner at the border without determining whether they are a refugee would violate international law, as it would deny protection to someone whom international law recognises as such.
In practice, European Union Member States recognise refugee status through a case-by-case study within a common legal framework: the Geneva Convention and CEAS, along with each Member State’s internal regulations based on the implementation of CEAS Regulations and Directives. The Geneva Convention and the CEAS establish a legal framework that limits state actions and imposes procedural safeguards to ensure asylum processes align with international law, particularly the principle of non-refoulement. This principle, recognised as a norm of general international law, links asylum protection to human rights law and is recognised in Article 78 of the Treaty on the Functioning of the European Union (TFEU). However, this principle is often circumvented when states deny refugee status to individuals deserving protection (Hernández-García, 2021).
Security and human rights
The right to asylum presents a dual reality: the protection of human rights, as mandated by international and EU law, and the legitimate right of states to maintain security and regulate entry conditions for foreign nationals. The theoretical study of the dichotomy between human rights and (national) security is not new, and since the end of the Cold War many authors have discussed the balance of these two issues (e.g. Ishay and Goldfischer, 1996), even if they are often considered to conflict with one another (Feinberg, 2015) especially in the aftermath of 9/11 (Watenpaugh, 2021), or when considering terrorism (Abou Taleb, 2016).
Security may not be incompatible with defending human rights, as the EU can use them as a means of promoting stability and security in third countries (Smith, 2001). However, if, as I suggest, the EU includes human rights as an identity element of its relationship among Member States and in its foreign relations, the overt application of double standards leads to the internal breakdown of an institution that cannot live up to the standards it has set for itself. It thus facilitates the emergence of detractors and critics who latch onto securitarian elements to defend the self against the external, articulating populist discourses against migration and the EU itself. This fuels the politics of fear and insecurity (Huysmans 2006, 8; Wodak, 2015) in the name of the securitisation of migration (Guild, 2009; Huysmans, 2006; Buzan et al 1998, Waever et al. 1993, among others).
Defending asylum: an identity challenge
Defending human rights configures the identity of the institution both at its core and in its international expression. Inconsistent implementation of the EU’s human rights questions the legitimacy of the Union’s human rights policy in its relations with third states. Some have argued that the gap between the EU’s identity or acquis and the Member States’ interests impedes the European Union to “actually cause change” in international politics. This deprives the EU of becoming what Manner’s labelled as “an actor with normative power” (Noureddine, 2016, p. 112). Others have countered that security or economic interests have always prevailed when sanctioning breaches of human rights clauses (Saltnes, 2018).
There is a growing literature on the constitutional crisis of the EU (Scheppele; Sanz 2020). The migration crisis, especially after 2015, has profoundly impacted the EU’s constitutional structure, particularly in relation to the rule of law and CEAS. Loxa and Stoyanova (2021) argue that systematic non-compliance with the CEAS by certain Member States has not only created a governance crisis but has also eroded fundamental legal principles, such as mutual trust and sincere cooperation.
A key aspect of this crisis is the failure of EU institutions to enforce compliance among Member States, leading to unilateral actions such as the suspension of the Dublin Regulation by Germany in 2015, and the subsequent reintroduction of internal border controls by other Member States. This was the case when Italy issued humanitarian residence permits for a six-month period, allowing Tunisians to move freely within the EU, and other Member States such as France, Belgium, Germany, and Austria closed their borders (France[1] and Belgium) or criticised Italy (Ineli-Cinger 2015, 238-239). This fragmentation in the legal order has, according to Loxa and Stoyanova, led to “self-help strategies that ultimately defeat the purpose of having a Union with a common migration policy” (2021, 144). This argument is in line with what Tsourdi (2021) has identified as one of the many faces of “rule of law backsliding”: the implementation gap – which refers to the “disjunction between the law on paper (…) and their realisation in practice” (Tsourdi, 2021, 473) – and systemic fundamental rights violations regarding EU’s asylum policy.
In response to the perceived failure of internal mechanisms, the EU has increasingly externalised migration control through agreements with third countries, such as the EU-Turkey (now Türkiye) Statement of 2016, which was highly criticised (Lehner 2019; Moreno-Lax, 2017; Helme, 2018; Hernández-García, 2021; Abrisketa, 2017). However, Hillion (2023) warns that this strategy raises significant concerns regarding the EU’s adherence to its own legal principles.
The New Pact on Migration and Asylum: more securitisation
Though it does not deal with migration [sic], the New Pact on Migration and Asylum, adopted in 2020, has reformed the current CEAS and should be in force in 2025/2026.
When studying the CEAS, we have to differentiate between the access or the external dimension of the asylum system and the reception system or its internal dimension. Within the internal dimension or the reception system, there have been numerous criticisms of fundamental rights violations in some Member States, some of which have been called systemic. Within the external dimension or the problems related to access, we find agreements with third countries and the externalisation of borders. This means that “the protection obligations have often been deflected” (Tsourdi, 2021, 473). It is, in fact, in its external dimension that we can find more examples of securitisation. The New Pact primarily introduces a safe pathway through resettlement from refugee camps outside the EU, while simultaneously reinforcing security measures, thereby widening the gap between human rights protections and securitisation in asylum governance. Indeed, the new regulatory framework concerning access to the EU further exemplifies the tension between security and human rights. The Resettlement Framework assumes that migration can be used as a hybrid threat by a third country that instrumentalises migration, therefore turning migration into a security issue. The revised EURODAC system, for instance, has lowered the age threshold for data collection, expanded biometric data requirements, and granted security institutions access to its database, reinforcing the perception of “crimmigration”[2] – the conflation of migration control with criminal enforcement – even for refugees (Rosenberg-Rubins, 2023).
When taking the reception system or the internal dimension into account, we also find more difficulties in guaranteeing protection to refugees. The new asylum procedure allows for the withdrawal of applications without the asylum seeker's consent in certain cases, such as failure to appear at an interview. Additionally, it legitimises the "hotspot" approach, where asylum claims are processed at the border, effectively containing asylum seekers before they enter the country and broadening the “safe third country” concept, raising significant concerns regarding the principle of non-refoulement,[3] and the extent to which asylum seekers’ rights are safeguarded under the new framework (Guild, 2024).
Concluding thoughts
The constitutional crisis of the EU is directly linked to its migration governance failures. The erosion of asylum rights, coupled with the selective application of legal norms, weakens the Union’s identity as a rights-based polity. The implementation gap remains unresolved, as Member States continue to exercise discretion in ways that circumvent common asylum obligations. The lack of a binding solidarity mechanism further entrenches disparities between frontline states and other Member States, perpetuating fragmentation rather than fostering collective responsibility.
Additionally, the prioritisation of security considerations over human rights has long-term implications for the EU’s internal and external legitimacy. The use of externalisation strategies, such as agreements with third countries, reflects a policy of containment rather than protection. These measures, while politically expedient, pose ethical and legal challenges that call into question the EU’s commitment to its foundational principles.
The findings of this research highlight the persistent and systemic challenges embedded within the European Union's asylum and migration policies, as also mentioned by Tsourdi and Costello (2023). The New Pact on Asylum, despite being presented as a comprehensive reform, essentially reinforces pre-existing deficiencies rather than addressing them effectively. Ultimately, rather than offering meaningful solutions, the New Pact solidifies a framework that maintains previous inadequacies while exacerbating obstacles to asylum.
Asylum policy must be decoupled from migration policy by establishing legal and safe pathways to apply for asylum from countries of origin or transit, without jeopardising the lives of refugees. While it is true that migration can be instrumentalised by third countries to create instability within the European Union, the response should be firm towards those third countries rather than towards the individuals who have been instrumentalised. Although these individuals may need to return to their countries of origin, this must be carried out with full humanitarian guarantees and in the shortest possible time. At the same time, borders should remain permeable, and agreements should be established with countries of origin and transit to promote regular migration for those seeking to improve their living conditions. This could be achieved by incentivising temporary work visas in sectors facing labour shortages.
Dr.Nuria Hernández-García is an Assistant Professor in Political Science / International Relations at CEU Cardenal Herrera. Her research interests concern EU asylum policy, human rights, and hybrid threats, with stays conducted at Oxford University and the European University Institute. Her latest publications include: “Hernández García, N; Juaristi, E; Valderrama, JC. (eds). (2024). Retos y amenazas a la Unión Europea. ¿fin de la herencia Cristiana en Europa? Tirant Lo Blanch”; and Pérez-Gabaldón, M., Hernández-García, N., & González-Tormo, C. (2025). “The backsliding of democracy in the EU: an analysis on the perception of corruption in the Member States pre- and post-pandemic”. Political Research Exchange, 7(1). https://doi.org/10.1080/2474736X.2025.2497764
This contribution is within the research projects PID 2021-126765NB-I00 of MICINN and AICO/2021/099 of GVA. Part of this research was carried out during a short research visit to the STG (EUI) in July 2023. AI has been used to check spelling, grammar and language.
Photo de Ahmed akacha
Footnotes
- According to Carrera et al (2011, 19), the French closed their internal borders when only 400 asylum seekers from Tunisia and Libya had arrived at the French border. This could have been because at the time the Schengen Border Code allowed reintroducing internal border security controls when there was a serious threat to internal security or public policy. Were these 400 people a threat? This question was raised by Meltem Ineli - Ciger (2015, 240).
- The term Crimmigration was first introduced in the United States by Professor Stumpf in 2006 to highlight the growing intersection between immigration and criminal law. Over time, its meaning has expanded beyond legal frameworks and regulations. Beyond serving as a warning about this convergence, Crimmigration has also fostered collaboration among scholars from various disciplines.
- “The principle of non-refoulement obliges States not to expel or return (refouler), in any manner whatsoever, a person to territories where their life or freedom would be threatened…” (UNHCR, Emergency Handbook online).
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