The EU’s Unbalanced New Pact on Migration and Asylum

In September, the European Commission unveiled the New Pact on Migration and Asylum, a series of long-awaited measures to reform the EU migration regime. This is the result of months of consultations with member states and other institutions in an attempt to reconcile the different perspectives in migration management. Yet, this does not mean that these actors have agreed to the pact. The proposed reforms aim to solve the shortcomings that, during the refugee crisis of 2015–2016, have led to the failure of the EU migration regime. With the new pact, the commission is engaged in a realpolitik move, trying to propose a reform that could led to a shared EU policy, yet in attempting to reconcile all the positions it risks pleasing no one.

In the existing context, many member states implement migration policies focused on security. There is a broad use of measures such as detention and expulsion, and they often try to avoid the responsibility of processing asylum requests, as the clashes following disembarkation after search-and-rescue operations in the Mediterranean show. With the new pact, instead of moving toward increased respect for EU law and the European and international conventions that preserve the rights of migrants and asylum seekers, the EU is moving toward stronger control of its external borders and envisaging a greater role for member states.

An example is the proposal to establish a prescreening process for asylum requests at the external borders envisaged in the Asylum and Migration Management Regulation. The European Commission states that “the external border is where the EU needs to close the gaps between external border controls and return procedures,” following a rationale according to which an asylum request does not unlock an automatic right to enter the EU. The commission wants to achieve a faster process of asylum requests, followed by an immediate return procedure in case of rejection.

For this reason, the European Commission proposes the establishment of an “accelerated decision mechanism” to assess an asylum seeker’s right, as envisaged in the proposal for a regulation on screening at the external borders. The assessment procedure’s duration is fixed at a maximum of five days, during which the applicants will have to stay in designated facilities near the transit zone. This will easily push states to resort to detention during the envisaged screening period, worsening the conditions migrants have to face. Finally, until the screening procedure is completed, the person will not be considered as having legally entered the state’s territory, leading to a stronger linkage between asylum and expulsion.

The New Pact on Migration and Asylum also proposes to consider an asylum claim inadmissible if the applicant comes from a country with a recognition rate equal to or lower than 20 percent (based on Eurostat data). This is a clear example of the proposal’s inadequacy as it exposes people entitled to submit an asylum request to further danger. This is intensified by the proposal to encourage member states to increase the use of the “safe third country” notion, leading to the expulsion of legitimate asylum seekers to countries outside the EU where their rights are not always guaranteed.

Another important part of the new pact seeks to overcome the Dublin Regulation. In her 2019 agenda for the EU, European Commission President Ursula von der Leyen stated her willingness to get rid of the regulation. During her first State of the Union address, she said: “We will abolish the Dublin System.”

Although this was one of the most awaited elements of the proposal, the expectations do not seem to have been realized. The Dublin system’s hierarchical criteria, including the much-criticized illegal-entry provision, remains in force. Moreover, the new pact incorporates in the concept of solidarity such measures as expulsion, showing a clear shift in the commission’s approach to accommodate the member states, which have shown their unwillingness to comply with the solidarity clause through relocation.

The new solidarity mechanism in the new pact seeks to ensure that “all contribute through solidarity” and to implement a new “mandatory flexible solidarity system.” This leaves to member states the choice to decide how to show solidarity in three possible ways: relocation of applicants, return sponsorship, or capacity building and operational support.

The new pact also envisages a crisis-response mechanism in case some member states face a mass arrival of irregular migrants or face a political crisis sparked by force majeure. In these cases, other member states would have to commit to the mandatory relocation of applicants under international protection or to return sponsorship. Return sponsorship includes support on policy dialogues with third countries to verify individuals’ identity and their readmission. In case a member state committed to return sponsorship fails to execute the return in eight months, it will have to relocate the individuals within its territory.

This represents a lost opportunity considering the recent judgment of the Court of Justice of the European Union in European Commission v Poland, Hungary, and the Czech Republic. The court found that these countries’ governments breached the provisions of the relocation mechanism put in place by the European Commission in 2015, and therefore breached their EU obligation to adhere to the principle of sincere cooperation. The court held that—in accordance with Article 80 of the Treaty on the Functioning of the European Union, which includes the principle of solidarity and the fair sharing of responsibilities that guide EU asylum policy—the responsibility of managing asylum requests should be divided among all the member states. This would have been a good starting point to build a more substantial solidarity mechanism.

The New Pact on Migration and Asylum also includes several tools to increase the externalization of the EU’s migration regime; that is, measures aimed at outsourcing the management of migration flows within third countries’ territories. While this grew in importance for the EU in recent years, the possibility to directly intervene within third countries to curb migration flows before migrants reach European soil was envisaged already in the 1990s, as stated in the Tampere Program.

Over the last 20 years, the EU has slowly but consistently moved forward in search of a comprehensive approach to immigration that could address the phenomenon in the regions of origin and transit. This reached a new level with the migration crisis of 2014–2015. From that moment on, the EU deliberately acted through externalization, as exemplified by the EU-Turkey agreement, the New Agenda on Migration, and the Migration Partnership Framework (MPF).

The externalization process changed significantly after 2015. While the tools developed, such as the Global Approach to Migration and Management, paid more attention to migrants’ needs, the adoption of the New Agenda on Migration saw the approach go from being “migrant-centered” to being “migration-centered.” It focused almost entirely on the necessity to curb migration, relegating to the background other essential aspects such as development strategies.

The New Pact on Migration and Asylum seems to continue on this path. Readmissions are perceived as a crucial aspect of the EU’s relationship with third countries, as stated in the Asylum and Migration Management Regulation:

Where the Commission […] considers that a third country is not cooperating sufficiently on the readmission of illegally staying third-country nationals, it shall submit a report to the Council including, where appropriate, the identification of any measures which could be taken to improve the cooperation of that third country as regards readmission, taking into account the Union’s overall relations with the third country.

Moreover, to encourage cooperation by third countries, the new pact foresees a link between cooperation on readmission and visa issuance in the Visa Code. Based on the information provided by member states, the European Commission will regularly assess the level of cooperation of third countries on readmission and report to the council. The new pact also envisages a mechanism through which member states can notify the commission if they experience problems in cooperating with a third country on readmissions. As a result, the commission will be able to propose restrictive visa measures.

The importance given to readmissions is paramount, as the European Commission clearly states that migration rules can be credible only if those who do not have the right to stay in the EU are effectively returned. To this end, it envisages that visa facilitation, development cooperation, trade policies, and investments should be put at the core of relations with third countries in the field of migration. This is a continuation of what the EU is already doing with the MPF, which includes a robust conditionality clause linking development policies to the cooperation of a third country government with EU migration goals.

The rationale for the New Pact on Migration and Asylum seems to follow that for the MPF:  external migratory pressure is becoming the new normality and a more coordinated and restrictive policy focused on mobility is necessary. The approach to reach this objective also seems to be inspired by the MPF experience, with the EU and member states acting in a coordinated manner to put together all the tools and leverage available to reach comprehensive partnerships with third countries to improve migration management.

This indicates that, contrary to what the Ursula von der Leyen has stated several times, the EU has not learned a lesson from the past. The MPF failed in its objective to increase the number of returns. This is due to the inconsistency of member states’ policies toward third countries and has occurred despite the strong usage of conditionality

Looking at some of the priority countries covered by the MPF, such as Senegal and Mali, the number of repatriations has not increased. According to Eurostat, in 2015 (one year before the entry into force of the MPF) ordered returns to Senegal were 4,685 but returns carried out were 585. In 2018 the figures were 7,280, and 615. The same situation is true for Mali: in 2015, the returns ordered were 3,505 and those carried out 165. In 2017, the figures were 4,700 and 135.

Moreover, the conditionality pushes third-country governments to adopt repressive policies to discourage mobility and enhance border controls. This is often done without considering the countries’ specificities and the consequences of these policies, leading to dangerous results, particularly in countries where cross-border economies and workforce mobility represent a significant economic opportunity.

Finally, another crucial point of the New Pact on Migration and Asylum is the reference to the 2016 EU–Turkey statement as a model to engage further with the Western Balkan countries. This implies that the EU, after having presented the 2016 agreement as a temporary emergency measure is now considering it as a replicable model. Yet, NGOs such as Human Rights Watch and Amnesty International have claimed many times that the statement was unsustainable, pointing to difficulties that this approach posed for migrants. Even the EU Ombudsman has criticized the agreement, arguing that “the Commission should carry out a human rights impact assessment of the Agreement”.

Pragmatism has prevailed over principle in the new pact, marking a shift in perception of migration which signals the adoption of a “‘new normality.” The EU risks paying too much attention to a security-driven policy, relegating to the background the underlying causes of migration, such as underdevelopment, unemployment, poverty, and instability.

While the pact also envisages the adoption of measures to encourage legal migration, these look underdeveloped. Measures like talent partnerships and study/work schemes are crucial for talent pooling and should be encouraged. Yet, they are highly restrictive and selective by definition, and do not represent a viable solution for a broader population.

The New Pact on Migration and Asylum aims to take cooperation between member states and the EU to a new level, through reform of the internal regime and further engagement with third countries in order to avoid other crises in the future. Yet, it seems to favor security-driven measures with its primary focus being on border enhancement, quicker repatriations, and putting more pressure on third countries to cooperate in curbing migration.

The new pact represents a new phase in the EU migration regime. The introduction of solidarity à la carte is a clear example of the European Commission’s realpolitik choice, which is more focused on differentiation than on harmonization. This is rooted in the resistance that many member states have to the principles of redistribution and solidarity, as the past failed reforms in this area show. Yet, this proposal should be perceived as a threat to what the EU has achieved in this field and, instead of providing a fresh start, it seems to offer a harder-to-reach European Union for those in need.