Thursday 14 September 2023

The EU’s New Pact on Migration and Asylum: three key arguments



Lilian Tsourdi, Assistant Professor, University of Maastricht

 *Photo credit Délmagyarország/Schmidt Andrea


The New Pact on Migration and Asylum is the EU’s latest policy framework on asylum, migration, and border management policies, and the series of legislative proposals that accompany it. Its stated aim is to establish ‘seamless migration processes and stronger governance’. Negotiations on the Pact legislative instruments have been ongoing since September 2020.


The European Parliament (April 2023) and the Council of the European Union (June 2023) recently adopted negotiating positions on two key instruments: the Asylum Procedures Regulation (APR) that reforms rules on asylum determination and related rights, and the Asylum and Migration Management Regulation (AMMR) reforming the EU’s system on allocating responsibility for processing asylum claims and establishing a solidarity mechanism.


This commentary develops three key arguments: i) while not inherently negative, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights; ii) the Pact instruments pay greater attention to the policies’ administrative design and carry potential to enhance implementation; iii) the Pact instruments contain a vision of flexible solidarity that remains linked with pressure and misses the mark of fair sharing. 



Externalization as the red thread


Creating seamless migration processes is not inherently negative. This approach acknowledges the intricate links between different policies at the operational level, especially at border areas. The UNHCR had voiced the need for swift identification at the external borders, differentiation between categories of persons making up mixed flows, and referral to an appropriate procedure, as early as 2007 through its so-called Ten Point Plan.


Nonetheless, the Pact’s seamless migration processes are in fact geared to externalising protection obligations thus undermining fundamental rights. First, the Pact instruments establish accelerated screening, asylum, and return procedures at the external borders with curtailed procedural guarantees. Combined with logistic constraints (e.g. facilities, access to counsel) they risk undermining migrants’ (procedural) rights. The instruments also blur the lines between deprivation of liberty and restrictions to the freedom of movement and could lead to the propagation of widespread de facto detention.


Next, the latest negotiating position of the Council on asylum procedures expands the use and scope of the safe third country concept. Where third counties have either not ratified the 1951 Refugee Convention or retain a geographical limitation to its scope (the latter is the case for Turkey for example) the APR introduces the notion of having access to effective protection instead as part of the third country safety assessment. The provisions contain minimal guarantees to ascertain what effective protection entails, which establish standards below those foreseen by the 1951 Refugee Convention.  


In parallel, migration management has been streamlined in the EU’s external relations affecting areas such as development and trade. One way the EU is establishing these linkages is through making access to funding for non-EU countries conditional to cooperation on migration management objectives. The ‘deal’ with Tunisia spearheaded by the EU, Italy, and the Netherlands is the most recent illustration.


A greater attention to the system’s governance


One of the main ills of the EU’s asylum policy is its lack of attention to the administrative dimension. The current administrative design allocates the vast majority of operationalisation obligations – including financial ones – to Member States with different levels of economic development and different conceptualisations of welfare.


The Pact instruments recognise, more adequately than previously, the policies’ implementation dimensions. The Council positions on the AMMR and the APR highlight the opportunities generated through EU funding and EU agencies to implement policy. Nonetheless, the Pact instruments fail to adequately regulate the implications of agency involvement in implementation, while the current design of the EU budget (Multi-Annual Framework 2021-2027) precludes the existence of truly structural forms of EU funding.


Next, the AMMR and APR provide a structured approach to define Member States’ relative capacities and to apportion responsibilities in some areas (e.g. implementing border procedures) on this basis. The triggering of solidarity measures is also linked with quantitative and qualitative indicators that, overall, seem to be well suited to provide a holistic picture and assess relative pressure.


Finally, the Council negotiating position on the AMMR foresees new permanent governance mechanisms, such as annual High Level EU Migration and Technical Level EU Migration fora that are meant to play pivotal roles in animating inter-state solidarity through pledges. Such permanent structures, mirroring UN level processes, seem more apt to establish effective and predictable inter-state cooperation compared to ad hoc bargaining and emergency-driven responses.   


An inadequate vision on solidarity


The AMMR largely keeps intact the basic premises of the current ‘Dublin system’, EU’s responsibility allocation system. In brief, Dublin allocates responsibility to the state primarily ‘responsible’ for the person’s presence in the EU. In practice, this should mean the state of first irregular entry to the EU territory is responsible. However, states have sought to evade their Dublin responsibility (by not registering asylum applications for example) and asylum seekers move clandestinely through the EU and evade Dublin procedures.


To counter this, the AMMR Council negotiating position aims for a more predictable operationalisation of inter-state solidarity through annual Member State pledges. Nonetheless, solidarity measures, gathered under the framework of a so-called Solidarity Pool, are still meant to be triggered in situations of pressure.


The Solidarity Pool will consist of i) relocations (i.e. organised intra-EU transfers) of asylum seekers or recently recognised beneficiaries of international protection or of migrants under a return obligation; ii) direct financial contributions provided by Member States aimed either at boosting Member State or third country capacities in the areas of asylum, migration, or border management; iii) alternative contributions such as capacity building, staff support, equipment etc. All these contributions are meant to be ‘considered of equal value’.


In breaking with the past, solidarity has a mandatory character in the sense that Member States are to annually contribute their fair share that will be calculated through a formula that takes to account their population size (50% weighting) and their total GDP (50% weighting). Nonetheless, to appease Member States that opposed relocation, the Pact instruments foresee that Member States retain full discretion in choosing between the types of solidarity measures they will contribute.


Overall, the Pact’s approach is likely to miss the mark on fair sharing. While creating permanent governance structures, the Pact continues to link the activation of solidarity with pressure. Thus, instead of establishing structural fair sharing, solidarity remains a palliative solution. Next, it is unlikely that capacity building activities in third states, or sharing of personnel and equipment, will be considered by the benefitting Member States as having equivalent impact on the ground as people sharing.


The Long and Winding Road Ahead


June 2023 saw one of the deadliest shipwrecks involving migrants seeking to reach the EU’s shores with more than 500 persons missing and presumed dead off the coast of Pylos in Greece. Unfortunately, such unnecessary loss of life is being normalized with IOM reporting over 27,500 missing migrants in the Mediterranean alone since 2014. Action to reform the EU’s migration policies is imperative.    


EU official cycles hailed the Council’s early June negotiating position as a breakthrough. The timing of the forthcoming European Parliament elections, scheduled for June 2024, generates additional impetus for the EU’s co-legislators to reach compromise positions in the next months. Nevertheless, political rifts remain intense with Poland and Hungary blocking a joint political statement of Heads of State on migration during the late June 2023 European Council meeting.


What promise do the Pact instruments carry? They pay greater attention to policy implementation, governance structures, and the operationalisation of solidarity. Nevertheless, by prioritizing externalization, and by seeking to appease a limited number of Member States that seem to oppose (inter-state solidarity in) migration, they are likely to undermine migrants’ fundamental rights, while missing the mark on fair-sharing. A reform that will fail to deliver results, risks enhancing polarization in migration matters.


Legislative developments in the EU echo the UK’s recently adopted Illegal Migration Act. They testify to Europe’s increasingly defensive policy stance in migration. It is to be hoped that future policy will eventually aim at mutually beneficial partnerships with third countries, migrant, and local populations that move beyond Eurocentric frames to meaningfully address the different components of migration processes and aim at co-development. 



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