Cover in various shades of blue of FRA's position paper on countering instrumentalisation of migrants and refugees and respecting fundamental right
23
July
2025

Countering the instrumentalisation of migrants and refugees and respecting fundamental rights

This position paper examines how the EU can counter the instrumentalisation of migrants while also upholding fundamental rights. Instrumentalisation refers to countries outside the EU using migration to exert political pressure. This position paper defines the phenomenon, provides examples, and outlines legal obligations under EU law. It provides legal analysis and warns that some responses risk undermining fundamental rights at the EU’s external borders, including the right to asylum. To counter instrumentalisation and uphold fundamental rights, the position paper proposes practical measures for Member States to take, such as sanctions, border controls, and cooperation with private operators.


  1. This chapter looks at actions that national authorities can take to tighten border controls, enhance asylum processing, speed up returns for those not in need of international protection and address security and other serious concerns. It examines related fundamental rights issues. In 2020, FRA and the Council of Europe issued a joint note clarifying the fundamental rights of refugees, asylum applicants and migrants at the European borders.


  1. The treatment of third-country nationals at external borders and in asylum and return procedures is largely regulated by EU law.
  2. Such EU law must be applied in conformity with the Charter. Under Article 52(3) of the Charter, the meaning and scope of its rights correspond to equivalent rights guaranteed by the ECHR and its protocols. The ECtHR adjudicated many cases relating to asylum applicants and migrants in which it interpreted the rights set out in the ECHR. Such case-law significantly informs how to interpret EU primary law. Moreover, under Article 6(1) of the TEU, fundamental rights, as guaranteed by the ECHR, constitute general principles of EU law.
  3. Member States typically adopt emergency measures to respond to the instrumentalisation of migrants and refugees in ways which restrict fundamental rights (see Annex). Derogations from asylum rules under the Crisis and Force Majeure Regulation – which will apply from mid-2026 – require a decision at the EU level, establishing that a Member State faces a situation of crisis [65] Crisis and Force Majeure Regulation, Article 1(3); and for exceptions, Article 10(6).
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  4. Under Article 52(1) of the Charter, limitations to Charter rights must be provided for by law, be necessary and proportionate and respect the essence of the rights. Many Charter rights analysed in this chapter correspond to rights guaranteed by the ECHR. Therefore, restrictions and derogations to these rights must not go beyond what is envisaged in individual ECHR articles and under Article 18 of the ECHR (limitation on the use of restrictions on rights) and what Article 15 of the ECHR (derogations from rights in times of war or other public emergencies threatening the life of the nation [66]
     See, in this context, ECtHR, Guide on Article 15 of the European Convention on Human Rights – Derogation in time of emergency, 31 August 2024.
    allows. Under Article 15 of the ECHR, no derogations are allowed from the right to life (except in respect of deaths resulting from lawful acts of war) and the prohibition of torture, inhuman and degrading treatment or punishment, which – based on the case-law by the ECtHR – encompass also the prohibition of refoulement (see paragraph 100).
  5. Article 17 of the ECHR (abuse of rights) prohibits any activity aimed at the destruction of the rights and freedoms set forth in the ECHR. The ECtHR applied this provision when applicants misused the ECHR to justify, promote or perform acts that are contrary to the text and spirit of the convention, that are incompatible with democracy and/or other fundamental values of the ECHR or that infringe the rights and freedoms recognised therein [67]
     For the application of this provision, see ECtHR, Guide on Article 17 of the European Convention on Human Rights – Prohibition of abuse of rights, 28 February 2025.
    . These considerations do not appear applicable to third-country nationals who arrive at the EU’s borders in the context of instrumentalisation. Third-country nationals have limited legal pathways to seek international protection. They may view the offer to travel legally to Europe as their only opportunity to reach a safe place and may be unaware of the risk of ending up stranded in between borders.
  6. Without being exhaustive, at least seven fundamental rights enshrined in the Charter require particular attention when taking measures targeting instrumentalised migrants and refugees. These relate to Article 2 (right to life), Article 3 (right to the integrity of the person), Article 4 (prohibition of torture and inhuman or degrading treatment or punishment), Article 6 (right to liberty), Article 18 (right to asylum) and Article 19(2) (protection in the event of removal, expulsion or extradition), along with Articles 24 to 26 of the Charter, protecting children, the elderly and persons with disabilities.


  1. First, the use of force and coercive measures by authorities must always remain necessary and proportionate. Applicable principles are set out in Annex V to Regulation (EU) 2019/1896 (EBCG (European Border and Coast Guard) Regulation), which regulates the use of force by the European Border and Coast Guard Agency (Frontex): the use of force must be authorised by law, be necessary and proportionate and respect the duty of precaution. Unlawful use of force that reaches a certain intensity amounts to torture, inhuman or degrading treatment or punishment [68]
     See, for example, judgment of the Fifth Section of the ECtHR of 21 January 2021, Shmorgunov and Others v Ukraine, Nos 15367/14 and 13 others, paragraph 359; and judgment of the First Section of the ECtHR of 9 July 2015, Mafalani v Croatia, No 32325/13, paragraph 120.
    . Excessive force may also violate Article 2 (right to life) and Article 3 (right to the integrity of the person) of the Charter. EU fundamental rights law and international human rights law always prohibit torture, inhuman or degrading treatment or punishment, with no exception regardless of the context, circumstances or its justification [69]
     See UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 2(2); International Covenant on Civil and Political Rights, Articles 4 and 7; ECHR, Article 15; and judgment of the Former First Section of the ECtHR of 18 June 2002, Öneryildiz v Turkey, No 48939/99, paragraphs 62–63.
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  2. Member States must investigate allegations of excessive use of force at borders. As FRA pointed out in its 2024 guidance on investigating alleged ill-treatment at borders, the ECtHR has developed detailed case-law for prompt and effective investigations. Ineffective judicial protection against widespread rights violations at borders poses a risk to the respect of the rule of law as enshrined in Article 2 of the TEU, as FRA underlined in its 2023 submission to the Commission’s rule of law report.


  1. Second, persons in distress must be rescued and assisted. Article 2 of the Charter and Article 2 of the ECHR guarantee the right to life. In accordance with the ECtHR, state authorities must take preventive measures within the scope of their powers in situations where they know or ought to have known of a real and immediate risk to life [70]
     Judgment of the Former First Section of the ECtHR of 18 June 2002, Öneryildiz v Turkey, No 48939/99, paragraphs 62–63.
    . This also includes operational measures at borders [71]
     See judgment of the First Section of the ECtHR of 2 February 2023, Alhowais v Hungary, No 59435/17, paragraphs 114 and 131–144 (for operational measures at land borders); and judgment of the First Section of the ECtHR of 7 July 2022, Safi and Others v Greece, No 5418/15, paragraphs 150 and 165–166 (for operational measures at sea).
    . Assisting people in distress at sea is a duty of all states and shipmasters under international law [72]
     For a short overview of the relevant legal sources, see FRA, Search and Rescue Operations and Fundamental Rights – June 2024 update, Publications Office of the European Union, Luxembourg, 2024.
    . Denial of medical or other assistance to cover essential needs may also raise issues under Article 3 of the Charter, which protects the right to respect for people’s physical and mental integrity and may amount to torture or inhuman or degrading treatment, which is prohibited by Article 4 of the Charter.


  1. Third, the principle of non-refoulement must always be respected. It is the core principle of refugee law, as it protects refugees against a return to persecution or other serious harm. It also protects all foreigners against a return to torture, inhuman or degrading treatment or punishment [73]
     For more details, see FRA, Scope of the principle of non-refoulement in contemporary border management: Evolving areas of law, Publications Office of the European Union, Luxembourg, 2016; and Schabas, W. A.,The Customary International Law of Human Rights, Oxford University Press, United Kingdom, 2021, pp. 137–138. For EU asylum law, see TFEU, Article 78(1); and the Qualification Regulation, Articles 9, 10 and 15.
    . EU primary law reflects the prohibition of refoulement in Article 78(1) of the TFEU and in Articles 18 and 19 of the Charter.
  2. Under Article 2(2) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which all Member States are parties, no exceptional circumstances whatsoever may be invoked as a justification for torture. The UN Committee against Torture clarified that the prohibition of ill-treatment and of refoulement is also absolute [74]
     UN Committee Against Torture, General Comment No 4 (2017) on the implementation of Article 3 of the Convention in the context of Article 22, CAT/C/GC/4, 4 September 2018, paragraphs 8–9.
    . In Europe, when applying the prohibition of torture in Article 3 of the ECHR, the ECtHR clarified that such prohibition is absolute and that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion [75]
     Judgment of the Grand Chamber of the ECtHR of 28 February 2008, Saadi v Italy, No 37201/06, paragraphs 125 and 138. For an overview of the relevant case-law, see ECtHR, Guide on the case-law of the European Convention on Human Rights – Immigration, 28 February 2025.
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  3. The principle of non-refoulement applies at borders [76]
     Judgment of the Fourth Section of the ECtHR of 11 December 2018, M.A. and Others v Lithuania, No 59793/17; judgment of the First Section of the ECtHR of 23 July 2020, M.K. and Others v Poland, Nos 40503/17, 42902/17 and 43643/17 (for land border checkpoints); judgment of the First Section of the ECtHR of 12 October 2023, S.S. and Others v Hungary, Nos 56417/19 and 44245/20(for airports); judgment of the First Section of the ECtHR of 18 November 2021, M.H. and Others v Croatia, Nos 15670/18 and 43115/18(for interceptions following irregular entry); judgment of the Third Section of the ECtHR of 8 October 2024, M.A. and Z.R. v Cyprus, No 39090/20 (for interceptions in territorial waters); and judgment of the Grand Chamber of the ECtHR of 23 February 2012, Hirsi Jamaa and Others v Italy, No 27765/09 (for persons intercepted at high seas).
    . It prohibits not only the removal, expulsion or extradition to a country where a person may be at risk of persecution or other serious harm (direct refoulement) but also to countries where individuals would be exposed to a serious risk of onward removal to such a country (indirect or chain refoulement) [77]
     See judgment of the Grand Chamber of the ECtHR of 21 November 2019, Ilias and Ahmed v Hungary, No 47287/15.
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  4. Respecting the prohibition of refoulement requires rigorous scrutiny of any arguable claim [78]
     See, for example, judgment of the Grand Chamber of the ECtHR of 21 January 2011, M.S.S. v Belgium and Greece, No 30696/09, paragraph 293.
    . In accordance with the general principles of EU law, a decision affecting a person’s rights must be taken on an individual basis [79]
     See Schengen Borders Code, Article 4; and Directive 2008/115/EC (Return Directive), Recital 6.
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  1. Fourth, collective expulsions are prohibited by Article 19(1) of the Charter. Such prohibition – which is also reflected in Article 4 of Protocol No 4 to the ECHR – applies to non-admission at borders and on high seas [80]
     Judgment of the Third Section of the ECtHR of 24 March 2020, Asady and Others v Slovakia, No 24917/15, paragraph 60; judgment of the Grand Chamber of the ECtHR of 13 February 2020, N.D. and N.T. v Spain, Nos 8675/15 and 8697/15, paragraphs 185 and 187; judgment of the First Section of the ECtHR of 23 July 2020, M.K. and Others v Poland, Nos 40503/17, 42902/17 and 43643/17, paragraphs 200 and 204; and judgment of the Grand Chamber of the ECtHR of 23 February 2012, Hirsi Jamaa and Others v Italy, No 27765/09, paragraph 180.
    . To qualify as collective expulsion, an action must concern at least two individuals [81]
     Judgment of the Grand Chamber of the ECtHR of 13 February 2020, N.D. and N.T. v Spain, Nos 8675/15 and 8697/15, paragraphs 193–194 and 202–203.
    . Removing a person to a narrow strip of land between a border fence and the actual border line may also amount to a collective expulsion [82]
     Judgment of the First Section of the ECtHR of 8 July 2021, Shahzad v Hungary, No 12625/17, paragraphs 42–52.
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  2. Under Article 4 of the Schengen Borders Code, any decision affecting a person’s rights must be taken on an individual basis. To prevent collective expulsions, there must be a reasonable and objective individual examination in each case [83]
     Judgment of the Fifth Section of the ECtHR of 25 June 2020, Moustahi v France, No 9347/14, paragraph 136; and judgment of the Third Section of the ECtHR of 24 March 2020, Asady and Others v Slovakia, No 24917/15, paragraphs 62–71.
    . The degree of such examination depends on several factors. An individual interview is not needed where each person has a genuine and effective possibility of submitting arguments against their expulsion, and where those arguments are examined in an appropriate manner [84]
     Judgment of the Grand Chamber of the ECtHR of 15 December 2016, Khlaifia and Others v Italy, No 16483/12, paragraphs 237 and 248.
    . An individual’s own culpable conduct may exceptionally forfeit the need for an individual expulsion decision [85]
     Judgment of the Grand Chamber of the ECtHR of 13 February 2020, N.D. and N.T. v Spain, Nos 8675/15 and 8697/15, paragraphs 201 and 209–211.
    . There must be an effective possibility of challenging the expulsion decision, but contrary to the prohibition of refoulement, an appeal against a collective expulsion does not need to automatically suspend the removal until a court or tribunal reviews the case [86]
     Judgment of the Grand Chamber of the ECtHR of 15 December 2016, Khlaifia and Others v Italy, No 16483/12, paragraph 281.
    . The ECHR, and in consequence, Article 19 read together with Article 52(3) of the Charter, allow some flexibility as regards the individual examination for claims of collective expulsions compared to non-refoulement claims. Non-refoulement claims entail a risk of irreparable harm and require that any arguable claim undergoes thorough individual scrutiny.


  1. Fifth, denying access to asylum procedures is unlawful. Article 18 of the Charter guarantees the right to asylum. A recurrent measure that Member States have taken to counter instrumentalisation is to restrict access to international protection procedures. Any measure to handle asylum claims made by asylum applicants who have been the subject of instrumentalisation must not undermine the essence of the right to asylum or result in direct or indirect refoulement.
  2. In M.A. v Valstybės sienos apsaugos tarnyba, the CJEU found that Lithuanian legislation, specifically Article 14012(1) of the Law on Aliens, violated EU law by depriving irregularly staying third-country nationals of the right to apply for international protection, a provision which Lithuania enacted following the 2021 events at the Belarus border. The CJEU stressed that national security measures remain subject to EU law, and blanket exclusions based on public order or security cannot override asylum rights unless specifically justified and proportionate. Relying solely on the mass influx of migrants to deny access to asylum procedures lacked sufficient legal basis under Article 72 TFEU [87]
     Judgment of the Court of Justice of 30 June 2022, M.A. v Valstybės sienos apsaugos tarnyba, C72/22 PPU, ECLI:EU:C:2022:505, paragraphs 63–75.
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  1. Sixth, deprivation of liberty requires an individual necessity and proportionality assessment. Any limitation to Article 6 of the Charter (right to liberty) must meet the requirements set out in Article 52(1). No blanket detention policies are possible under the Charter. The right to an effective remedy in Article 47 of the Charter and the right to good administration, which is a general principle of EU law, require that such decisions be subject to judicial review and that their necessity be regularly assessed. Article 4 of the Charter prohibits detention under inhuman or degrading conditions.


  1. Seventh, authorities must pay due attention to persons with specific needs. They can be classified as especially vulnerable and requiring specific attention. Article 24 of the Charter requires that in all actions relating to children, the child’s best interests must be a primary consideration. The best interests of the child is a central element of the rights of the child protected by the Charter and the TEU (Article 3(3)). States have more extensive duties to protect children, including unaccompanied children, in the context of migration, the ECtHR pointed out [88]
     Judgment of the Fifth Section of the ECtHR of 25 June 2020, Moustahi v France, No 9347/14.
    . In addition, Articles 25 and 26 of the Charter protect the elderly and persons with disabilities. In relation to the 1990 Convention implementing the Schengen Agreement, the CJEU recalled the binding nature of the right to respect for family life and the rights of the child in Articles 7 and 24 of the Charter [89]
     Judgment of the Court of Justice of 4 March 2021, A. v Migrationsverket, C193/19, ECLI:EU:C:2021:168, paragraph 35.
    .


  1. Under EU law, Member States are obliged to protect the external border of the EU. The Schengen Borders Code (last amended in 2024) lays down rules on the border controls of people crossing the EU’s external borders. In accordance with Articles 2(10) to 2(12), border controls include checks at border crossing points and surveillance activities to prevent unauthorised crossings of the border sections between border crossing points.
  2. Under Article 4 of the Schengen Borders Code, which applies to all border controls, any action to prevent unlawful crossing of the border must comply with fundamental rights, including obligations related to access to international protection, and must respect the principle of non-refoulement.
  3. This entails that anyone who seeks international protection may not be redirected or turned back immediately at the border but must be referred to the authorities to register the asylum application, and – as of mid 2026 – to the authorities in charge of screening under Regulation (EU) 2024/1356. The need to respect the principle of non-refoulement when taking border control measures emerged as a horizontal gap in the Schengen evaluation of Lithuania (2023), Latvia (2023) and Poland (2024) [90]
     See Commission, ‘Schengen evaluation and monitoring mechanism’ European Commission – Migration and Home Affairs website, 21 November 2024, in particular: ‘Schengen evaluation of Lithuania: executive summary and recommendations’, May–June 2023, priority No 2 and recommendations 3, 4, 15 and 16; ‘Schengen evaluation of Latvia: executive summary and recommendations’, October–November 2023, priority No 1 and recommendations 6, 10 and 63; ‘Schengen evaluation of Poland: executive summary and recommendations’, March–April 2024, priority areas and recommendations 10 and 13–15. These reports can be accessed through the interactive map under “Schengen Country reports”.
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  4. This section describes different measures to counter the instrumentalisation of migrants and refugees Member States can take at external borders under EU law and clarifies which fundamental rights safeguards must accompany these.


  1. Persons crossing the external border may be subject to reinforced scrutiny. Article 8(3) of the Schengen Borders Code requires third-country nationals to undergo a thorough check on entry and exit. As a form of hybrid threat, instances of instrumentalisation may aggravate the security and public order risk. They may justify reinforced attention when verifying that the third-country national concerned will not jeopardise the public policy or internal security of any of the Member States. Such verification should be carried out in a coherent fashion across the whole Schengen border, as the Commission noted on 30 September 2022 when providing guidance on controls of Russian citizens at the external borders.
  2. In accordance with Article 1 of the Charter, any person must be treated with dignity [91]
     See, in this context, judgment of the Court of Justice of 17 January 2013, Mohamad Zakaria, Case C23/12,ECLI:EU:C:2013:24, paragraph 40.
    and border guards must respect the procedural safeguards laid down in the Schengen Borders Code. Human dignity is an inviolable, absolute right that may never be suspended or limited, even in emergencies [92]
     Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, p. 17, which states that ‘ … none of the rights laid down in this Charter may be used to harm the dignity of another person … It must therefore be respected, even where a right is restricted.’
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  1. Restricting border traffic is a second possible measure. In instances of the instrumentalisation of migrants, Article 5(4) of the revised Schengen Borders Code explicitly allows Member States to temporarily close border crossing points or to restrict their opening hours. Such restrictions must be proportionate and take due account of persons enjoying free movement rights in the EU, persons holding residence permits or long-stay visas and persons seeking international protection [93]
     Regulation (EU) 2024/1717 of the European Parliament and of the Council of 13 June 2024 amending Regulation (EU) 2016/399 on a Union Code on the rules governing the movement of persons across borders, OJ L, 2024/1717, 20.6.2024, ELI: http://data.europa.eu/eli/reg/2024/1717/oj, Article 5(4)(a) to (c) and Recital 14.
    , as the CJEU noted in 2006 [94]
     Judgment of the Court of Justice of 14 June 2012, ANAFE, C606/10, ECLI:EU:C:2012:348, paragraph 40.
    . In accordance with Article 39 of the code, the respective Member State needs to notify the Commission, which will make this information public in the Official Journal of the European Union.
  2. Where bilateral local border traffic agreements under Regulation (EC) No 1931/2006 have been concluded with neighbouring third countries, these may be terminated or suspended in accordance with corresponding treaty provisions. For example, Poland suspended its bilateral local border traffic agreement with Russia in July 2016. Latvia suspended its local border traffic agreement with Russia and Belarus in 2022 following Russia’s war of aggression against Ukraine. According to information FRA received from the European Commission, Finland, Estonia and Lithuania do not have such bilateral agreements in force with their eastern neighbours.


  1. Member States may deploy more border guards (on their own or through Frontex) and adapt their surveillance methods and tools to existing or envisaged risks and threats, to fulfil their duty under Article 13 of the Schengen Borders Code to prevent unauthorised border crossings. Patrols along the borderline may use proportionate means [95]
     In this context, the ECtHR case Đorović and Others v Serbia (No 8904/25) on which the ECtHR issued an interim measure on 29 April 2025, will analyse the use of a sonic weapon for crowd control.
    to alert people approaching that it is unlawful to cross it outside border control points and discourage them from doing so. However, those who reach the border and seek asylum must be referred to national procedures.
  2. Under Article 3(13) of the Asylum Procedure Regulation, read together with Article 26, a person who expresses a wish to receive international protection is an asylum applicant and, under Article 10, protected from immediate return. In case of doubts as to whether a certain declaration is to be construed as an application for international protection, pursuant to Article 26(2) of the regulation the person must be expressly asked whether they wish to receive international protection [96]
     The Asylum Procedure Regulation will apply as of mid-2026. In the interim, similar rules in Directive 2013/32/EU apply.
    . Their immediate return or redirection to the border would contradict Articles 18 and 19 of the Charter. EU law also requires that every person be treated with dignity, that no excessive force be used when applying constraint measures or when stopping and apprehending people who circumvent border controls and that persons in distress found in border areas or at sea be rescued and provided with life-saving assistance.
  3. Article 5(3) of the Schengen Borders Code, as amended by Regulation (EU) 2024/1717, contains a specific provision to deal with situations where migrants attempt to cross their external borders in an unauthorised manner, en masse and using force. This provision, which is not limited to the situation of instrumentalisation of migrants and refugees, entitles Member States to take ‘necessary measures to preserve security, law and order.’ It follows Article 4(2) of the TEU, which clarifies that Member States remain in charge of essential state functions: ensuring territorial integrity, maintaining law and order and safeguarding national security. Article 5(3) of the Schengen Borders Code does not allow the disapplying of its rules on controls at external borders, nor its protective safeguards, for example those prohibiting refoulement. Doing so would undermine the purpose of the code as described in Article 1, namely to set rules governing controls of persons crossing the external borders.


  1. Finally, deploying more resources to enhance early detection of those who enter by circumventing border controls allows the authorities to register them and take immediate action. Apprehended persons can be screened for any security concerns and speedily channelled into asylum, return or other procedures.


  1. Based on Article 78(1) of the TFEU, the EU developed a common European asylum system which must comply with the 1951 Convention relating to the Status of Refugees and its 1967 protocol, and with other relevant treaties. This section presents options to examine asylum applications.
  2. With the pact on migration and asylum, EU asylum law was revised [97]
     See Official Journal, ‘Official Journal L series daily view’, EUR-Lex website, 22 May 2024.
    . Such revision also included measures to respond to instances of instrumentalisation of migrants and refugees. The Crisis and Force Majeure Regulation – which will apply as of mid-2026 – provides a legal framework for managing crisis situations and allows exceptions to standard asylum and return procedures under regulated conditions.
  3. Envisaged derogations to deal with crisis situations must be temporary in nature and meet necessity and proportionality requirements, as Articles 1(2) and 1(3) of the Crisis and Force Majeure Regulation clarify. They must be consistent with the obligations of the Member States under the Charter, international law and the EU asylum acquis. Member States can only activate them following a Council implementing decision and only to the extent envisaged therein, although under Article 10(6) they may apply the extended deadline to register applications immediately, if they notify the Commission of the precise reasons why this is needed.


  1. Article 18 of the Charter does not allow the barring of third-country nationals subject to instrumentalisation from accessing asylum procedures. Their asylum applications must be registered and examined in line with procedural safeguards embedded in the EU asylum acquis and respecting the right to an effective remedy, set out in Article 47 of the Charter. The Schengen evaluations of Lithuania (2023), Latvia (2023) and Poland (2024) recommend various actions to ensure that access to international protection at external borders is effective [98]
     See Commission, ‘Schengen Evaluation and Monitoring Mechanism’, European Commission – Migration and Home Affairs website, 21 November 2024, in particular: ‘Schengen evaluation of Lithuania: executive summary and recommendations’, May–June 2023, recommendation 15; ‘Schengen evaluation of Latvia: executive summary and recommendations’, October–November 2023, recommendation 10; ‘Schengen evaluation of Poland: executive summary and recommendations’, March–April 2024, recommendation 13. These reports can be accessed through the interactive map under “Schengen Country reports”.
    .
  2. Any request for international protection must be registered within the deadlines established in Article 27 of the Asylum Procedure RegulationAsylum Procedure Regulation. When migrants are instrumentalised, Article 10(1) of the Crisis and Force Majeure Regulation allows the extension of the deadline to register their asylum applications from five days to up to four weeks, provided registration in Eurodac occurs within the 72-hour deadline set out in Article 15(1)(b) of Regulation (EU) 2024/1358.


  1. As of mid-2026, EU law will also permit wider use of border procedures. Article 11(6) of the Crisis and Force Majeure Regulation allows for examining the substance of the claim of asylum applicants subject to instrumentalisation in the asylum border procedure, except for certain categories of applicants. Articles 11(7) and 11(9) exclude asylum border procedures for children under 12 years of age, their parents and persons with special needs whose applications are likely to be well-founded. It also imposes limitations for applicants with special needs whose merits of the claim are unclear. The asylum border procedure, which must normally not exceed 12 weeks (Article 51 of the Asylum Procedure Regulation), may be extended for an additional six weeks in accordance with Article 11(1) of the Crisis and Force Majeure Regulation. These derogations enable Member States to keep applicants in locations designated for border procedures and, in case the asylum application is rejected, to carry out border return procedures (see paragraph 136).


  1. Member States may use their flexibility in prioritising the processing of asylum claims by applicants subject to instrumentalisation. Additional registration and case officers, interpreters, reception and legal support staff and appeal judges could be transferred, deployed or allocated temporarily to decide swiftly on the asylum applications – particularly those that are manifestly unfounded or well-founded – and to identify and refer applicants with specific needs. Member States may request the support of the European Union Agency for Asylum in line with its mandate.


  1. EU law requires Member States to have contingency plans to ensure adequate reception capacity (Directive (EU) 2024/1346, Article 32).
  2. When situations of instrumentalisation of migrants and refugees involve a considerable number of people overstretching the national capacity to respond, the UNHCR also suggests responsibility-sharing arrangements with third countries as envisaged in the framework of the Global Compact on Refugees, such as activating a support platform or resorting to regional or sub-regional cooperation. Such cooperation must allow for the widest possible exercise of fundamental rights and freedoms of refugees [99]
     UNHCR, ‘Legal considerations on asylum and non-refoulement in the context of “instrumentalization”’, Refworld website, 26 September 2024.
    .


  1. The effective and speedy implementation of return procedures in full respect of applicable safeguards may discourage the instrumentalisation of migrants and refugees. If most of those individuals who are not in need of international protection return within weeks of their arrival, there may be fewer incentives by hostile actors to use ordinary people to put political pressure on the EU or its Member States. The return of persons who are not in need of international protection is also essential to uphold the credibility of the EU’s asylum system. This section describes possible return-related measures.


  1. Pursuant to Article 13 of the Schengen Borders Code, an individual apprehended after an unauthorised border crossing and who has no right to stay on the territory of the Member State concerned is subject to return procedures respecting the Return Directive. The Return Directive is under revision [100]
     Proposal for a regulation of the European Parliament and of the Council establishing a common system for the return of third-country nationals staying illegally in the Union, and repealing Directive 2008/115/EC of the European Parliament and the Council, Council Directive 2001/40/EC and Council Decision 2004/191/EC, COM(2025) 101 final of 11 March 2025.
    .
  2. In light of Member States’ procedural autonomy, which is a general principle of EU law [101]
     Judgment of the Court of Justice of 19 October 2017, Raimund, C-425/16, ECLI:EU:C:2017:776, paragraph 40. See also judgment of the Court of Justice of 15 March 2017, Aquino, C-3/16, ECLI:EU:C:2017:209; and judgment of the Court of Justice of 16 December 1976, Rewe v Landwirtschaftskammer für das Saarland, C-33/76, ECLI:EU:C:1976:188.
    , as long as they do not contradict the Return Directive, Member States are free to prioritise return procedures for migrants who have been the object of instrumentalisation. They may also request Frontex’s support under the EBCG Regulation.
  3. Article 6 of the Return Directive requires the issuance of a return decision, although Article 2(2)(a) entitles Member States to apply different rules for persons apprehended in connection with their irregular border crossing. Most Member States along the external EU border make use of this possibility and apply national laws to them. Under Article 4(4) of the directive, such national laws must respect the core safeguards of the Return Directive, including the principle of non-refoulement. Article 4(6) of Regulation (EU) 2024/1349 (Return Border Procedure Regulation) – which will apply as of mid-2026 – envisages that people rejected in the border asylum procedure may receive a refusal of entry, similar to persons non-admitted at the border crossing points.
  4. Under EU law, any removal of a person must be based on an individual assessment of the circumstances, which must be documented in a related decision, and subject to effective judicial remedies.


  1. In recent years, the EU and its Member States have been increasing efforts to make return policies more effective, as FRA described in its 2025 position paper on return hubs.
  2. The adoption of the Return Border Procedure Regulation is one such step. As of mid-2026, EU law will enable Member States to carry out returns of asylum applicants rejected at the border through a return border procedure. Pursuant to it, national authorities will have 12 weeks to implement returns. Under Article 5(4) of the regulation, the Return Directive’s safeguards to prevent refoulement, avoid arbitrary detention, protect the right to family and private life and cater for the rights of children and persons with specific needs remain applicable.
  3. The Return Border Procedure Regulation allows Member States to continue to detain individuals who were deprived of liberty during their asylum procedure (Article 5). This rule complements other restrictive measures to prevent absconding and the possibility of detaining those individuals who pose a risk to public policy, public security or national security. Restrictive measures must respect the right to liberty in Article 6 of the Charter, including the substantial and procedural safeguards that protect people from arbitrary detention (see also paragraphs 147 and 148), along with the right to an effective remedy guaranteed by Article 47 of the Charter.


  1. Pursuant to the 2025 European internal security strategy, strengthening the resilience and security of external borders is crucial to countering hybrid threats. This may entail actions to address the security and public order risks emanating from specific individuals being present in Member States’ territory. EU law on asylum and migration allows restrictive measures against third-country nationals who pose a security or public order risk. The legal instruments adopted with the pact on migration and asylum put further emphasis on security checks. This section describes possible actions that Member States may take and their related fundamental rights considerations.


  1. As of mid-2026, compulsory pre-entry screening will better enable national authorities to identify new arrivals who may pose a security threat. Pursuant to Regulation (EU) 2024/1356, third-country nationals apprehended in connection with an unauthorised crossing of the external border must undergo identification, a health and vulnerability check and a security check. During such checks – which under Article 8(3) of the regulation must be completed within seven days – Member States must take steps to ensure that newly arrived persons remain available to the authorities.
  2. Member States may take appropriate measures against persons posing security risks, including the initiation of criminal procedures in cases of persons suspected of having committed a criminal offence, provided they respect applicable safeguards. Any restriction based on security risks identified through preliminary information must be regularly reviewed and maintained only insofar as still necessary and proportionate.


  1. Recently, Member States have reported about the presence of violent or armed persons among third-country nationals who crossed into the EU to seek asylum [102]
     See FRA, Fundamental Rights Report 2024, Publications Office of the European Union, Luxembourg, 2024, p. 96; and, for a recent example, Isokolkda.eu, ‘Granica polsko-białoruska. Migranci zaatakowali funkcjonariuszy SG, uszkodzili służbowy samochód’ ‘[Polish-Belarusian border. Migrants attacked Border Guard officers, damaged a service car]’, Isolokla.eu website, 5 May 2025.
    . Possibly, they may have been linked to criminal networks engaged in migrant smuggling or other unlawful activities.
  2. Member States can take restrictive measures against armed or violent persons and, where appropriate, initiate criminal procedures. Law enforcement authorities can apply restrictive measures under national law, provided they are in line with European and international human rights law.


  1. EU asylum law excludes from international protection individuals who are deemed undeserving of such protection on the grounds of their responsibility for certain heinous acts or serious common crimes. Under Articles 12 and 17 of the Qualification Regulation, persons who have committed a crime against peace, a war crime or a crime against humanity, those who – prior to their arrival – have committed a serious non-political crime outside the country of refuge and those who have committed acts contrary to the purposes and principles of the UN, are not entitled to international protection. These exclusion grounds correspond, in large part, to the grounds for exclusion from refugee status under Article 1F of the 1951 Convention relating to the Status of Refugees.
  2. Any decision to exclude an asylum applicant from international protection must be based on a thorough individual assessment, which must follow specific steps. The European Union Agency for Asylum and the UNHCR have detailed guidance on how to apply such exclusion clauses in line with international and EU fundamental rights law [103]
     See European Union Agency for Asylum, Country Guidance: Explained – General guidance and methodological remarks, Publications Office of the European Union, Luxembourg, 2025, p. 38; UNHCR, ‘Guidelines on international protection: Application of the exclusion clauses: Article 1F of the 1951 Convention relating to the Status of Refugees’, HCR/GIP/03/05, Refworld website, 4 September 2003; and UNHCR, ‘Background note on the application of the exclusion clauses: Article 1F of the 1951 Convention relating to the Status of Refugees’, Refworld website, 4 September 2003.
    .


  1. In situations of large refugee movements triggered by armed conflict, it is not unusual that combatants cross the border together with refugees. The presence of combatants among refugees undermines the civilian and humanitarian nature of asylum [104]
     See UNHCR, Executive Committee, ‘Conclusion on the civilian and humanitarian character of asylum’, No 94 (LIII), UNHCR website, 8 October 2002.
    . Combatants are not entitled to asylum as long as they do not give up armed activities. The UNHCR has developed guidance on how to maintain the civilian and humanitarian character of asylum. It gives practical advice on how to separate combatants from the refugee population, how to disarm them, how to verify that they have genuinely and permanently given up their armed activities and guides the adjudication of their refugee claim [105]
     UNHCR, ‘Guidance note on maintaining the civilian and humanitarian character of asylum’, UNHCR website, December 2018. See also UNHCR, ‘Global consultations on international protection/third track: The civilian character of asylum: Separating armed elements from refugees’, EC/GC/01/5, Refworld website, 19 February 2001.
    .
  2. The EU asylum acquis does not contain express provisions on the separation of combatants from refugees. Article 20(1) of the Qualification Regulation clarifies that EU law is without prejudice to the rights and obligations laid down in the 1951 Geneva Convention relating to the Status of Refugees. Article 2 of the Convention requires that refugees respect the laws and regulations of the host country. Therefore, Member States are entitled to take measures under national law to separate and disarm combatants and, more generally, to enforce their laws concerning the carrying of weapons and firearms.


  1. When necessary and proportionate in the individual case, EU law allows the restriction of the right to liberty set out in Article 6 of the Charter. For asylum applicants, Directive (EU) 2024/1346 regulates deprivation of liberty in Articles 10 to 13. The protection of national security or public order are grounds for detention allowed by Article 10(3) of the directive. Although the ECHR does not reflect such grounds for detention, in the case of a person who had already received a return decision and an entry ban and subsequently applied for asylum, the CJEU concluded that it can be subsumed under Article 5(1)(f) of the ECHR (detention in view of expulsion) [106]
     Judgment of the Court of Justice of 15 February 2016, J.N. v Staatssecretaris voor Veiligheid en Justitie, C-601/15 PPU, ECLI:EU:C:2016:84.
    . In other cases, detention to protect national security or public order would need to meet the strict safeguards of Article 5(1)(c) of the ECHR, allowing deprivation of liberty to prevent the commitment of an offence.
  2. Deprivation of liberty and other restrictive measures based on EU or national law must be justified by an individual necessity and proportionality assessment. The right to an effective remedy in Article 47 of the Charter and the right to good administration, which is a general principle of EU law, require that such decisions be subject to judicial review and their necessity be regularly reassessed. Article 4 of the Charter prohibits deprivation of liberty under inhuman or degrading conditions. The Council of Europe’s European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) defined standards for the treatment of persons deprived of liberty (CPT standards).


  1. Measures to manage third-country nationals who arrive in the EU in the context of instrumentalisation of migrants and refugees are largely regulated by EU law. This means that the Charter applies to most actions that Member States take in the field of border management, asylum and return.
  2. EU law adopted under Title V of the TFEU already allows for certain flexibility to counter the instrumentalisation of migrants and refugees. As of mid-2026, EU rules will be clearer and more comprehensive. Certain fundamental rights may be limited, respecting the requirements set out in Article 52(1) of the Charter. Other rights are absolute and cannot be restricted or derogated from.
  3. Without being exhaustive, at least seven fundamental rights safeguards require particular attention when taking measures targeting instrumentalised migrants or asylum applicants. First, the use of force must always remain necessary and proportionate. Second, persons in distress must be rescued and assisted. Third, the principle of non-refoulement must always be respected. Fourth, collective expulsions are prohibited. Fifth, denying access to asylum procedures is unlawful. Sixth, deprivation of liberty requires an individual necessity and proportionality assessment. Seventh, authorities must pay due attention to persons with specific needs. These core safeguards relate to Article 2 (right to life), Article 3 (right to the integrity of the person), Article 4 (prohibition of torture and inhuman or degrading treatment or punishment), Article 6 (right to liberty), Article 18 (right to asylum) and Article 19(2) (protection in the event of removal, expulsion or extradition), along with Articles 24 to 26 of the Charter, protecting children, the elderly and persons with disabilities.


  1. To counter the risks and threats connected with the instrumentalisation of migrants and refugees, border crossing points may be closed or their opening hours limited. Border guards may undertake more thorough checks to verify any security risks. Additional staff and equipment may be deployed for border surveillance and to speedily detect those who cross in an unauthorised manner.
  2. When taking such measures, EU fundamental rights law requires that every person be treated with dignity, that no excessive force be used when applying constraint measures or when stopping and apprehending people who circumvent border controls and that persons in distress found in border areas or at sea be rescued and assisted. Any individual seeking asylum must be referred to national procedures. Their immediate return or redirection to the border contradicts Articles 18 and 19 of the Charter.


  1. Article 18 of the Charter does not allow the barring of third-country nationals subject to instrumentalisation from accessing asylum procedures. Their asylum applications must be registered and examined in line with procedural safeguards embedded in the EU asylum acquis and respect the right to an effective judicial remedy, set out in Article 47 of the Charter.
  2. At the same time, EU migration and asylum law applicable as of mid-2026 contains flexibility to respond to crisis situations, including those triggered by the instrumentalisation of migrants and refugees. Member States may ask for more time to register applications and may process them in the asylum border procedures, except in some cases concerning children and applicants with specific needs. Meanwhile, they may make use of their administrative autonomy to prioritise asylum claims submitted in situations of instrumentalisation. They may also seek support from the European Union Agency for Asylum and the UNHCR.


  1. Member States are free to prioritise and accelerate the return of migrants who have been the object of instrumentalisation and may request Frontex’s support. As of mid-2026, EU law will allow processing the return of asylum applicants rejected in the border asylum procedure through a 12-week return border procedure. During this time, they can take restrictive measures to prevent absconding and safeguard public policy, public security or national security. Such restrictions must respect the right to liberty in Article 6 of the Charter, respect substantial and procedural safeguards that protect people from arbitrary detention and respect the right to an effective remedy guaranteed by Article 47 of the Charter.


  1. EU law on asylum and migration allows restrictive measures against third-country nationals who pose a security or public order risk. The legal instruments adopted with the pact on migration and asylum put further emphasis on security checks. Under Regulation (EU) 2024/1356, which will apply as of mid-2026, every new irregular arrival must undergo a security check. Law enforcement authorities may take crime-prevention measures or request to initiate criminal proceedings against certain individuals, when appropriate. EU asylum law excludes certain non-deserving individuals from international protection. In justified individual cases, individuals posing a security or public order threat may lawfully be deprived of liberty, provided the authorities respect the substantial and procedural safeguards flowing from Article 6 of the Charter that protect people from arbitrary detention and respect the right to an effective judicial remedy guaranteed by Article 47 of the Charter.