Lilian Tsourdi, Assistant Professor, University of Maastricht
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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