Migration and asylum policy à la carte: a free hand for the obstructionists


In mid-September 2020, Commission President Ursula von der Leyen spoke out strongly in favour of a human and humane approach to the common EU asylum policy. Her lofty promises did not, however, survive very long.

EU flag broken

This commentary is part of our dossier on the New EU Pact on Migration and Asylum.


On 23 September 2020, the European Commission tabled its long-awaited proposed reform of the Common European Asylum System. European Commission Vice-President Margaritis Schinas had already announced earlier this year that “Dublin is dead!” In mid-September 2020, European Commission President Ursula von der Leyen stressed in her first State of the Union address that migration has enriched our cultures and that saving human lives at sea is not optional. She described Moria as a painful reminder of the need for Europe to come together and announced intentions of improving conditions for refugees. The EU, she went on, needs a more human and humane approach to its Common Asylum Policy. Anybody who drew inspiration from her words was in for a bitter disappointment one week later when the Pact was revealed. 

The framing: migration as a management task

During the press conference, Margaritis Schinas described the “New Pact on Migration and Asylum“ as a fresh start and a compromise. Comparing the future EU migration and asylum policy to a building, he created a clear vision of the European Commission’s priorities: the first floor would constitute the external dimension, in other words relations with the countries of origin and transit, the second floor represents the management of the external borders and the third and final floor fair internal rules and solidarity. He expressed his hopes that the Pact would form a strong foundation for future migration management in Europe, characterised by efficient procedures and effective solidarity. But a closer reading quickly revealed that the Pact contrasts starkly with the promises and carefully-chosen words of von der Leyen: in practice, the proposal on the table does not mean an end to the dysfunctional Dublin regulation, but a continuation and even an intensification of it. The only difference that there is a new term for Dublin in the European Commission’s lexicon of jargon: “Migration management“.

Screening, reception centres, border procedures

In future, screening will be carried out before entry to the EU. As well as recording information in the Eurodac database and carrying out health and safety controls, a decision will be also made as to which of those seeking protection will be subject to a regular asylum procedure and which will have to undergo a so-called “border procedure”. This will be decided on the basis of the level of the recognition rates for people of the corresponding nationality (protection quota in border procedures under 20%) and whether the person comes from a “safe country of origin” or has travelled from a “safe third country”. The screening procedure will take a maximum of five days. Border procedures, including an appeal, will be limited to 12 weeks. Both screening before entering the EU and the border procedures will be carried out in so-called “reception centres” (closed border camps).

Unaccompanied minor refugees and children under the age of 12 with their families are excluded from the border procedures. One positive aspect of the European Commission’s proposal is that the right to family reunification has been extended to include siblings.

Solidarity à la carte

Since 2015, the vexed question of how to share out asylum seekers within the EU has caused serious battles. The European Commission proposal calls for “flexible solidarity”, distinguishing between three separate phases. Whether this will solve the problem of the non-existent share-out of people seeking protection within the EU and take the burden off the shoulders of the southern Member States is highly doubtful. The Member State of arrival of the individual continues to be responsible for carrying out the screening, border procedure and asylum procedure. For “normal times”, the EU executive branch has opted for a voluntary inter-European distribution. If host states are under “increased pressure”, it proposes that Member States make different contributions on the basis of a key (population numbers and GDP).

The proposed concept of “flexible solidarity” provides that during this phase, Member States can decide in what form this solidarity will be provided. There are three options: taking persons seeking protection (relocation procedure), taking responsibility for so-called “return sponsorships” and other services in the field of migration management, such as capacity building. As regards the so-called return sponsorships, Member States may choose the nationality of the people for whom it undertakes these. The deportation measures must have been completed within eight months, otherwise the Member State has to take these persons in.

If the European Commission triggers the “crisis mechanism”, the scope of application can be expanded to “compulsory relocation” and “return mechanisms”. In such a situation, EU Member States would have to host asylum seekers, recognised refugees and people with no rights to remain or be obliged to enter into return sponsorships (the period for concluding deportations would be reduced to 4 months in crisis situations). No other services are possible during this phase. Order procedures can then be increased (protection quota below 75%) and periods of detention in the border camps extended.

As to what happens if not enough EU Member States are prepared to welcome people seeking protection, the proposal does unfortunately not offers any answers. The Pact makes no provision for sanction mechanisms. Deportations are clearly the European Commission’s priority. This is why it has proposed to appoint an “EU Return Coordinator” with a network of national representatives at his or her disposal. FRONTEX, the European border and coastguard agency, will be the “operational arm” of the EU returns policy.

No resumption of European sea rescues

The same procedure will apply to refugees plucked from the sea as to asylum seekers on the country borders. The European Commission is not planning to resume EU sea rescue operations in the Mediterranean. No national or European sea rescue vessels have been operational in the Mediterranean since April 2019. Civil society organisations attempting to fill this gap come up against enormous obstacles to their work and are under threat of criminal prosecution. Citing the Covid-19 pandemic, Italy and Malta closed their ports in April and May to vessels carrying passengers who had been rescued from drowning. The Libyan coast guard has furthermore repeatedly been instructed to take over responsibility for rescuing persons in distress at sea – even though Libya is clearly not a safe place to take refugees in accordance with the international law of the sea.

The European Commission issued a non-binding recommendation to EU Member States to cease the practice of criminalising non-government organisations (NGOs) for carrying out sea rescue operations. It is also seeking closer cooperation with coastal states and flag states such as Germany under whose flag NGO vessels save refugees in the Mediterranean. This aims to increase safety at sea and comply with “relevant rules of migration management”. The Greens/EFA Group in the European Parliament fear that with this recommendation, the Commission is heading in the same direction as the German federal government: just several months ago, it tightened up the security requirements on NGO vessels, thereby taking smaller ships out of operation.

A free hand for obstructionists

The European Commission’s vision of “flexible solidarity” is an absolute boon for governments that have been trying to block all solidarity-based approaches for years and refuse to take any refugees. Yet these very governments responded very quickly with strong criticism: although Budapest welcomed the “new tone” taken by the Pact, the position of the Hungarian government remains unchanged. Prime Minister Orbán criticised that the quota, which is unambiguously rejected by the Hungarian government, is still part of the EU proposal.

In Prague, Prime Minister Andrej Babiš stressed that migration must be stopped. But it was not just in the Visegrád states but also in Berlin that there was talk of a “weighty task book for the negotiations”. The deputy chairman of Germany’s CDU/CSU parliamentary group, Thorsten Frei, gave an interview in which he criticised the definition of family as extended by the European Commission, as it will “increase the burden on us in particular” and lamented the fact that the Pact does not take sufficient account of “Germany’s interests”. The German Presidency of the Council of the EU listed three key points on which it hopes to have political agreement by the end of 2020: procedure before entering the EU, preventing the abuse of asylum system, and solidarity.   

The important and constructive role cities and communities can play in the share-out of people seeking protection is not mentioned in the Pact. Yet in Germany alone, more than 170 cities and municipalities have declared themselves safe havens and are willing to take in refugees. Their hands are, however, still tied, as the 27 capitals cannot agree on a humane and solidarity-based European asylum and migration policy. As long as the obstructionists in the European Union have a free hand, this sad state of affairs is likely to continue.

Solidarity means standing together unconditionally and with mutual respect on the basis of common values. Synonyms for solidarity include togetherness, community spirit and connectedness. Declaring a "flexible" version of solidarity, will not mean that solidarity will emerge. This combination of words is a painful reminder of the woefully inadequate cohesion within the European Union and the risk that the values of the European project will be undermined from within, abandoning not only people seeking protection, but also the neighbourhood of the EU.

Anybody wishing to build a house in which people can live in solidarity should focus planning efforts on community spaces for housemates who are prepared to enter into dialogue. Trying to make life easy for warring residents by putting in separate entrances and exits is quite simply the wrong approach.