The “just-over-the-bar”-approach in EU migration law: A rights-based look at the AMMR’s appeal provision

Mr Daan Bodson

Daan recently completed his LL.M. in European Law at Université Panthéon-Assas in Paris (France). He previously studied in Brussels, Leuven, and Melbourne, and has worked as an EU law professional at the Dutch Council of State and as a lawyer at a leading international law firm. His academic interests focus primarily on EU migration law and its interaction with fundamental rights, but cover a wide array of EU law topics. Daan is currently a researcher at the Programme for Studies on Human Rights at Ghent University (Belgium)

Introduction

The EU has long struggled with its migration policy. The significant influx of migrants in 2015/2016, coupled with the uncoordinated response of the Member States, exposed deep structural flaws in the Common European Asylum System. These events pushed the migration topic to the top of the political agenda. In response, shifting political pressures and growing public concern in many Member States spurred calls for a more coordinated and controlled approach to migration management.

Against this backdrop, in May 2024, the Council of the EU and the EU Parliament, after extensive negotiations, adopted the complete package of legislative proposals that form the New Pact on Migration and Asylum. The Commission promised a "fresh start" in its migration policy, and the Pact includes a revision of virtually all elements of the EU migration law. Its central goals are to increase procedural efficiency, reinforce solidarity among Member States, and reduce secondary movements of asylum seekers within the EU.

One aspect of the European migration system that underwent an overhaul in the new Pact was the "Dublin system". For decades, this system has been used to determine which EU Member State is responsible for asylum seekers' applications for international protection. Under this system, a transfer decision may be issued by the Member State where the asylum seeker is present, but which is not responsible for its application, allowing for their transfer to the responsible Member State, which will assess the claim. This may occur under either a "take charge" procedure—when another Member State is responsible for assessing the claim—or a "take back" procedure, when the asylum seeker has already filed an application in another Member State.

A controversial change in the new Pact is the limitation of asylum seekers' rights to appeal these transfer decisions. Article 43 of the Asylum and Migration Management Regulation, the successor to the Dublin III regulation adopted in the framework of the new Pact, reshapes how these appeals work, potentially restricting access to legal remedies in ways that could violate fundamental rights.

Transfer of asylum seekers and challenging transfer decisions

The principle that each asylum seeker should only file an application in one Member State is a cornerstone of the EU’s migration policy. This requires clear rules on determining which state is responsible for processing an application, which prevents asylum shopping and enhances the system's efficiency. These rules were first adopted in the Dublin Convention in the 1990s. The central rule of the system was, and still is today, that the country of first entry is responsible for the application.

Over time, however, the system evolved, adding more connecting factors and introducing increased human rights standards. The Dublin II regulation, and later Dublin III, brought more detailed rules, including provisions for family unity and the protection of minors. These “responsibility criteria” are hierarchically listed in the EU legislation and seek to determine which state should deal with asylum requests. Asylum seekers are consequently transferred to the responsible Member State if they reside in another state. This system is explicitly based on mutual trust between Member States, which ensures that they can rely on each other to respect minimum standards of protection and fair procedures when processing asylum claims. This trust, however, is not absolute: as established in M.S.S. (ECHR) and N.S. (ECJ), transfers must be halted if there is a real risk of fundamental rights violations in the responsible state.

In the Dublin III regulation, there was an express right for asylum seekers to challenge transfer decisions before a court or tribunal (Article 27). This Article was phrased broadly and did not refer to specific grounds based on which these appeals should be made. The Court accepted a wide range of legal arguments in its case law, including errors in applying the responsibility criteria (as in Ghezelbash) and procedural shortcomings (as in Shiri). The Dublin III regulation also expressly provided that no transfer could occur if this would breach Article 4 of the EU Charter of Fundamental Rights, which protects individuals from inhuman or degrading treatment. Appeals based on such breaches were permitted, but only when systemic flaws in the receiving Member State’s system were at issue. Only in exceptional cases could individual circumstances justify an appeal, as established in the CK case.

In broadly interpreting the right to appeal under Dublin III, the ECJ often referred to the regulation’s preamble and the right to an effective remedy. However, its reasoning relied more heavily on legislative intent. Earlier landmark cases like M.S.S. and N.S. addressed situations of potential inhumane treatment in the responsible Member State, which justified rebutting the presumption of mutual trust and led to the insertion of safeguards like Article 3(2) in Dublin III. However, when expanding appeal rights more generally, the Court highlighted that the legislator had deliberately shifted the system to treat asylum seekers as active participants with enforceable rights rather than as passive subjects. This means that while human rights case law introduced more safeguards, the expansive interpretation of these provisions was mainly rooted in legislative intent, and thus remains open to change if that intent shifts.

Adoption of the Asylum and Migration Management Regulation and changes to the appeals provision

This shift in legislative intent is precisely what we now see reflected in the new Asylum and Migration Management Regulation (AMMR). The AMMR, which enters into force on July 1^st, 2026, overhauls many elements of the Dublin III framework while retaining its core functioning and logic. Quite notably, it narrows the grounds for appealing transfer decisions. Under Article 43, appeals are now permitted only on three narrowly defined bases:

(a) whether the transfer would, for the person concerned, result in a real risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter;

(b) whether there are circumstances subsequent to the transfer decision that are decisive for the correct application of this Regulation;

(c) whether Articles 25 to 28 and 34 have been infringed, in the case of persons taken charge of pursuant to Article 36(1), point (a).

The provisions mentioned in point (c) concern minors and family reunification criteria. The appeals under this ground are limited to situations involving the misapplication of these specific responsibility allocation rules. These grounds, however, only apply when a Member State accepts responsibility for an applicant under a ‘take charge’ request (for example, based on family ties), but not when a person is returned under a ‘take back’ procedure.

Because Article 43 provides an exhaustive list of appeal grounds, many previously available grounds for challenging transfer decisions are now excluded. For instance, a transfer decision taken without adequately informing the asylum seeker or without conducting an interview (a requirement with some exceptions) can no longer be challenged based on breaches of those procedural requirements. Furthermore, misapplication of responsibility criteria can no longer be the grounds for an appeal unless in specific cases of point (c). A wide range of legal, procedural, and factual errors previously reviewable under Dublin III has now been removed from judicial oversight.

On a more positive note, point (a) allows transfer decisions to be appealed if their execution would result in a breach of Article 4 of the Charter without requiring that the breach stems from systemic deficiencies in the responsible Member State. This marks a positive development compared to the Dublin III system, which permits more individualised risk assessments.

Nonetheless, the changes introduced by the AMMR significantly narrow the scope of judicial review. As a result, asylum seekers may face incorrect or unjust transfer decisions with limited or no legal recourse.

The Human Rights Issue: a breach of the right to an effective remedy?

One of the most pressing concerns raised by Article 43 of the AMMR is whether it complies with Article 47 of the EU Charter of Fundamental Rights, which guarantees the right to an effective remedy. This right lies at the heart of EU fundamental rights protection, ensuring individuals can challenge decisions that adversely affect them before an independent court or tribunal. Recital 62 of the AMMR explicitly refers to Article 47 of the Charter and confirms that appeal rights should protect against inhuman or degrading treatment and safeguard private and family life and the rights of the child, in line with relevant ECJ case law. The question arises whether the text of Article 43 of the AMMR allows for compliance with this standard.

The ECJ has interpreted Article 47 broadly. It applies to all proceedings that may result in measures adversely affecting an individual, and it ensures both the right to be heard and the ability to challenge violations of rights protected by EU law. The right to an effective remedy, like all other Charter rights, also extends to asylum seekers.

Whether Article 43 of the Asylum and Migration Management Regulation meets the standards of Article 47 depends, in part, on how the nature of asylum seekers’ rights within the Dublin system is understood. Under the Dublin III regulation, the ECJ treated many provisions as conferring subjective rights on individuals, especially in cases involving family unity, procedural fairness, or correct application of responsibility rules. That understanding justified broad appeal rights, as seen in Ghezelbash and Shiri, where the Court accepted legal challenges against transfer decisions based on both procedural and substantive errors.

However, with the AMMR, the EU legislator signals a shift in how the Dublin system operates vis-à-vis asylum seekers. Whereas the original Dublin framework primarily regulated responsibility allocation between Member States, treating asylum seekers primarily as passive subjects (intergovernmental system), the AMMR imposes clearer obligations directly on applicants themselves. However, at the same time, the AMMR limits the rules that function as individual rights guarantees, with a lot of its provisions being seen as administrative tools for responsibility allocation rather than rights-granting provisions. This reorientation has significant implications for appeal rights, since Article 47 ensures judicial review only where subjective rights are at stake.

In Article 43 of the AMMR, the legislator allows appeals only where it acknowledges that a clear, individual right is at stake, such as the right not to be subjected to inhuman or degrading treatment (Article 4 of the Charter) or rights linked to family unity and the protection of minors. These are provisions where the subjective nature of the right is unambiguous and, thus, where the application of Article 47 is unavoidable. The second appeal ground listed in Article 43 (allowing challenges based on decisive circumstances arising after the transfer decision) might, at first glance, appear somewhat distinct from the other two. Unlike those, it is not clearly anchored in a specific, pre-existing subjective right. Nevertheless, its inclusion seems to reflect, at least in part, developments in ECJ case law under the Dublin III regulation, where the Court drew a more explicit connection between such challenges and Article 47 of the Charter. While this contrasts with the general trend of the Court’s approach, which was typically more textual or intent-based, it may have influenced the legislator’s decision to include this ground.

The European legislator thus appears to have designed Article 43 of the AMMR to meet only the strict minimum required by the right to an effective remedy under Article 47 of the Charter without extending appeal rights any further. This “just-over-the-bar”-approach has been facilitated by the fact that the ECJ, while expanding appeal rights under Dublin III, has not consistently grounded its case law in fundamental rights considerations, often relying instead on legislative intent or textual interpretation. As a result, the legislator retained significant discretion to redefine the scope of appeals and has now exercised that discretion to restrict judicial oversight only to cases where clearly identifiable individual rights are at stake. Whether this minimalist compliance approach is sufficient under the Charter remains a question for the Court, but the legislator’s intent seems clear: to limit access to remedies while avoiding outright violation of EU fundamental rights law.

ECHR to the rescue?

Of course, the right to an effective remedy is not only protected in the EU legal order. Article 13 of the European Convention of Human Rights (ECHR) contains an equivalent provision to Article 47 of the Charter. While the European Union is not (yet) a Contracting Party to the ECHR, the Convention remains highly relevant. Not only is EU law expected to respect the Convention’s core principles (Article 52(3) Charter), but EU Member States acting under EU law can (in principle) be held accountable before the European Court of Human Rights.

That said, the scope of Article 13 ECHR is narrower than Article 47 of the Charter. It only applies when there is an arguable claim of violating another substantive right protected under the Convention. In this sense, Article 13 is less expansive than its Charter counterpart.

From this perspective, the new appeals provision seems to comply with ECHR standards at first glance. Article 43(1)(a) of the AMMR permits appeals where a transfer would expose the applicant to inhuman or degrading treatment, which mirrors Article 3 ECHR. Introducing that appeal ground thus seems to satisfy the requirement of Article 13 somewhat. Similarly, the grounds for appeal in Article 43(1)(c), involving minors and family unity, align with the right to respect family life under Article 8 ECHR.

While at first glance, it may seem that the appeals provision in the AMMR considers Convention rights and thus satisfies Article 13 requirements, things can get more complex in specific circumstances. For instance, breaches of Article 8 ECHR could still occur even where the specific family-related provisions in the AMMR are not technically violated. If no appeal is possible in such cases, this could give rise to conflicts with Article 13 ECHR, especially if an applicant has no effective way to challenge a transfer that interferes with family life. Further concerns arise from procedural rights in the AMMR that are excluded from appeal. For instance, the regulation includes a right to legal aid, but violations of this right cannot be challenged under Article 43. This could clash with the right to a fair trial under Article 6 ECHR.

Conclusion

The New Pact on Migration and Asylum, particularly Article 43 of the AMMR, reflects a deliberate balancing act. After years of negotiations, the EU legislator has produced rules that narrow the rights of asylum seekers to the furthest extent possible while aiming to remain just inside the boundaries of what EU and international fundamental rights law permit.

This blog post argues that the legislator may have crossed that line by limiting access to appeal almost exclusively to cases involving a limited set of fundamental rights. The AMMR sacrifices broader procedural fairness in favour of administrative efficiency. Whether this minimalist approach to the right to an effective remedy complies with the EU Charter will ultimately be for the European Court of Justice to decide.

This process also highlights the power of legal reasoning. It is precisely because the ECJ, in its Dublin III case law, often framed appeal rights in terms of legislative intent rather than fundamental rights that legislators found room to restrict them.

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