With the New Pact on Migration and Asylum the European Commission intends to square the circle – but does not succeed. An analysis from a legal perspective.
This commentary is part of our dossier on the New EU Pact on Migration and Asylum.
In 2016, the European Commission had already proposed to overhaul the existing instruments of the Common European Asylum System, to turn Frontex into a European Coast and Border Guard and EASO into a fully-fledged EU Agency for Asylum, and to introduce a Resettlement and Humanitarian Admission Framework. Many of these proposals are still pending for lack of consent over fundamental issues of solidarity and minimum standards. The package presented as part of the New Pact on Migration and Asylum now adds almost 500 pages, amending some of the pending proposals and adding new ones. This paper focuses on some of the key elements of this new Pact.
The most keenly awaited proposal is that for a new Dublin system. Here, the Commission was faced with two basically incompatible expectations: distribute the responsibility for receiving and processing applicants more fairly among the Member States without forcing unwilling Member States to receive applicants. The Commission seeks to square the circle by focusing on accelerated procedures at the external borders and cracking down on secondary movements, while making solidarity flexible and relieving some of the pressure on Search and Rescue in the Mediterranean. It thereby builds on the very Hotspot approach that presented us with the disastrous situation in Moria we have today.
In the face of that situation, of reports on shootings and other use of force for illegal pushbacks, dangerous deterrence operations at sea, mass detention in squalid conditions, massive disparities in reception conditions and the quality of the asylum procedure among the Member States, and on the conditions in partner countries such as Turkey or Libya, the documents deploy a technical language of streamlining, seamlessness, and efficiency – as if those practices were simply a problem of insufficient harmonisation and timelines.
Flexibility and Incentives: A New Responsibility Sharing Mechanism
No New Dublin System
The keystone of the Pact is the new Asylum and Migration Management Regulation (AMMR), which aims to break the deadlock over the Dublin reform. The Dublin system had mostly collapsed in 2015/16, due to a systemic flaw: given that most protection seekers arrive by land or boat and that the Member State of first arrival will usually be responsible for their claims, the Dublin criteria lead to a structural overburdening of the Member States at the EU’s external borders. Although this analysis is undisputed, an even responsibility sharing system has remained elusive, in particular but not only because of the principled opposition of the Višegrad states to any sort of relocation. For this reason, the Commission’s suggestions – first a mandatory crisis relocation mechanism to be added to ‘Dublin III’ and then a corrective allocation mechanism as part of ‘Dublin IV’ – have failed.
It is therefore no great surprise that the AMMR, too, retains the existing responsibility criteria, and thus the structural problem of the Dublin system. It does, however, submit a new approach to responsibility sharing and shifts gears, offering more flexibility and relying on incentives more than on sanctions.
But Solidarity with Member States under ‘Migratory Pressure’
The proposed new solidarity mechanism applies if the Commission determines, in a detailed assessment of the developments over the past six months, that a Member State is under ‘migratory pressure’. In its report, it first sets out that Member State’s capacities and the solidarity measures needed from other Member States. Based on the Member States’ Solidarity Response Plans, it then lays down their contributions in an implementing act.
What sets the solidarity mechanism apart from prior suggestions is above all that it combines obligation and flexibility: All Member States must contribute based on a key calculated from their GDP and population, but they can choose the form of their contribution: relocation, return sponsorships or other measures. Relocation is regularly foreseen only for applicants not subject to the border procedure or recent beneficiaries of international protection. Return sponsorships mean that the supporting Member State undertakes to implement return decisions; if it does not succeed within eight months, it has to relocate the person to its own territory and continue its return efforts from there. Both measures can therefore imply taking in migrants. Instead, Member States can also offer other measures, notably capacity building, operational support or cooperation with third countries – provided that this does not lead to a shortfall of more than 30 % in necessary relocation places.
The proposal avoids language that sounds coercive. Instead of the financial sanction foreseen by the 2015 crisis relocation mechanism for Member States rejecting relocations (25,000 € per applicant), the Regulation now offers an incentive: 10,000 € per applicant relocated, 12,000 € in the case of unaccompanied minors. The transfers will be supported with 500 € each. If the Member States’ offers fall short significantly, the Commission will convene the Solidarity Forum; if a Member State does not submit a Response Plan, the Commission determines its contributions.
Criticism from all Sides
As might be expected, this proposal will again face criticism from all sides. Leaving in place the first entry criterion, it does not do away with the structural overburdening of the Member States located at the external borders by introducing a regular, fair distribution mechanism. Instead, it is unclear whether ‘migratory pressure’ would be a continuous phenomenon for those Member States or not, and it is more than unclear whether the solidarity system will really work in practice; the Višegrad states have been quick to reject it because, despite the flexibility it suggests, it does imply an obligation to accept migrants onto their territory.
The AMMR also hardly takes into account the views and interests of migrants on where they might best be able to integrate; the main adjustments in that respect are including siblings as relevant family members and accepting education in a Member State as a significant tie with that state. The proposal does shorten the time for accessing long term residence status; such status would now be obtained after three, not five years, providing beneficiaries of international protection with the right to move freely within the EU.
Most strikingly, neither the Pact nor the proposal for the AMMR mention the realities of being an applicant in the different Member States. The Commission therefore does not connect secondary movements to the appalling reception conditions and procedural standards in some Member States, but treats them only as evidence that the Dublin system is not effective enough. What is more, it compounds this situation by foreseeing that reception conditions will only be provided in the responsible Member State. This appears to give Member States permission to leave applicants destitute where they seek to escape an unbearable situation in one Member State by moving to another. Interestingly, however, ‘this shall be without prejudice to the need to ensure a standard of living in accordance with Union law, including the Charter of Fundamental Rights of the European Union, and international obligations.’ Looking at the current practices, it is hard to imagine that this safeguard will have much effect.
Addressing Disembarkations Following Search and Rescue
Solidarity with Member States Following Disembarkations
Crucially, the new solidarity mechanism also applies to disembarkations following Search and Rescue (SAR). Here, the measures needed to respond to SAR disembarkations are projected by the Commission in its Migration Management Report, and the Member States are supposed to submit SAR Response Plans, thus creating a ‘solidarity pool’. Here, too, the Member States are free to offer contribute relocation, returns or other measures, as long as there is no significant shortfall in relocation offers.
Introducing such a mechanism would be a significant step forward, given the impracticability of the current ad-hoc system of ship-by-ship negotiations, which often leaves survivors rescued at sea in limbo for weeks. Again, the greater question is whether it will really work.
No More Criminalisation of Humanitarian Activities …
The Commission, however, also addresses another aspect of SAR operations: the increasing criminalisation of humanitarian support. In its Guidance on the Facilitation Directive, it points to the possibility for Member States to exempt the facilitation of irregular entry and transit from being criminalised when it is carried out for humanitarian assistance purposes. So far, only eight Member States provide for partial or full exemptions under this clause. The Commission points out that, ‘in view of the general spirit and objective of the Facilitation Directive, it is clear that it cannot be construed as a way to allow humanitarian activity that is mandated by law to be criminalised, such as search and rescue operations at sea’. Since Search and Rescue is an obligation under international law, the Commission considers that criminalising such operations ‘amounts to a breach of international law, and therefore is not permitted by EU law.’
It is certainly a novelty that the Commission takes such a clear stance on the criminalisation of Search and Rescue; however, given that it considers the lack of exemptions a breach of EU law, it is also surprising that the Commission restricts itself to a mere recommendation.
… While Tightening the Regulations for Private SAR
Alongside this Guidance comes a Recommendation on cooperation among Member States regarding private SAR operations. This instrument also mentions the obligation of Search and Rescue, but it stresses maritime safety and the need for more information on the organisations operating the vessels. Against the background of Member States using purported safety concerns to detain private SAR vessels for weeks and months in their ports, while flag states – including Germany – are tightening their rules to make it harder to use vessels for SAR operations, this is cause for concern.
At the Border: A New Screening Procedure
The counterpart of these solidarity mechanisms is an increased focus on immobilizing asylum applicants at the external borders of the EU.
For all irregular arrivals by sea, land or air, the proposal for a Screening Regulation introduces a preliminary stage at the border, where third country nationals arriving without a right to enter the Schengen area are screened for health, vulnerability and security concerns, and where their biometric data are registered. Whether the identity check will succeed in the short time frame provided (just five days) is of course questionable.
In addition, they have to complete a ‘de-briefing form’ to indicate the type of unauthorised arrival, countries of transit and possible assistance from smugglers. On the basis of this screening, they are either returned (if they are considered to not have applied for international protection) or referred to the applicable asylum procedure under the APR – the border, accelerated or regular procedure – or they are relocated under the new solidarity mechanism. No legal advice is provided for, and there is no legal remedy against the decision over which procedure is applied.
This type of screening is already part of the ‘hotspot approach’ in Italy and Greece; it serves as a pre-screening on the merits only insofar as a country of origin is supposed to be determined. The difficulties of such determination – especially where there are no identity papers – are well known; this is probably why the standard form reads: ‘Nationality/ies (initial indication)’.
More Accelerated Procedures at the Border
Mandatory, Expanded Border Procedures
The 2016 proposal for a new Asylum Procedure Regulation (APR) is amended in relation to the border procedures, which can already be applied to the admissibility stage (in relation to applicants coming from so-called safe third countries) and to the merits stage of applications subject to an accelerated examination procedure (because they are considered fraudulent or manifestly unfounded, for example, because of a so-called safe country of origin). These border procedures usually involve detention, as the APR proposal states, although detention is supposed to be applied case-by-case.
The amendment now significantly expands the border procedure: It extends the accelerated examination procedure to protection claims from countries with an average recognition rate of 20 % or lower and makes a border procedure mandatory for such claims, as well as for applicants considered to pose a security risk or to have presented false information or identification. The fact that the recognition rate is taken from the Union-wide average is significant because recognition rates vary grossly between Member States; for example, in 2019, they were was between 21 % and 73 % for Afghans in the three countries issuing the most decisions, and even more disparate across the entire EU.
Greece already applies the optional border procedure, in which EASO assists, and has now also extended it to vulnerable applicants. In this respect, the Commission’s ‘fresh start’ is largely tracing the existing practice at the external borders.
Longer Border Procedures
Instead of the originally proposed maximum of four weeks for the border procedure, the amendment now provides for twelve weeks, including the appeal stage. Looking at Greece, where the four-week border procedure already in place provides for prohibitively short time limits for the applicants, this must be considered a relief, but it cannot be considered realistic: in 2019, the actual duration of the border procedure exceeded 7 months.
No Right to Enter
During these projected twelve weeks, applicants ‘shall not be authorised to enter the territory of the Member State’ – as if the European Court of Human Rights hadn’t recently confirmed that border territory is also territory. In an apparent reaction to the situation on the Greek islands, it also provides that Member States have to ‘ensure that the capacity of those locations is sufficient to process the applications’ for which the border procedure is mandatory – again, paper doesn’t blush.
A New Crisis Regulation
The APR proposal is complemented not only by the proposed Screening Regulation, but also by a proposal for a Regulation addressing situations of crisis and force majeure.
Crisis: Longer Time Limits, Expanded Border Procedures and Immediate Protection
A situation of crisis – to be determined by the Commission – is defined as the existence or imminent risk of ‘an exceptional situation of mass influx of third-country nationals or stateless persons arriving irregularly in a Member State or disembarked on its territory following search and rescue operations, being of such a scale, in proportion to the population and GDP of the Member State concerned, and nature, that it renders the Member State’s asylum, reception or return system non-functional and can have serious consequences for the functioning’ of the CEAS or the Common Framework set out in the AMMR.
Member States experiencing a crisis situation may not only derogate from the APR’s time limits, adding up to eight weeks to the border and return procedure. They can also apply the border procedure to applicants from countries with a recognition rate of 75 % or lower (in 2019, only Syrians had a higher average recognition rate). At the same time, the solidarity relocation provided by the AMMR also applies to applicants subject to the border procedure or ‘illegally staying’ third-country nationals.
In addition, Member Stats in crisis can grant immediate protection to applicants facing indiscriminate violence or armed conflict in their country of origin, a status equivalent to subsidiary protection. This means they can apply group-based protection rather than having to examine each case individually.
Force majeure addresses other exceptional reasons for states being unable to cope with their regular obligations – the most immediate example being the Covid-19 pandemic.
In cases of force majeure, the proposal doubles the Dublin time limits and suspends Dublin transfers and solidarity measures (the latter only for a maximum of six months).
A Step Forward and Cause for Concern
The group-based prima-facie recognition, which would replace the Temporary Protection Directive, is a step forward; it draws on best practices from 2015/16. At the same time, it must be remembered that the situation of beneficiaries of international protection is often extremely precarious. In Greece, they have to leave accommodation facilities and are cut off from public benefits after 30 days, but are legally or de-facto excluded from most welfare benefits, a policy that is at odds with EU law and with the ECHR.
The expansion of the border procedure, on the other hand, is a major cause for concern both on its face and in light of current practice. The Crisis Regulation would mean that in situations of sudden influx, the receiving Member State will be able to process large numbers of applicants at the border, keeping them there for up to five months. Rejected applicants subject to the border return procedure have to remain there for up to five months. This means that applicants may possibly be kept in detention at the border for a total of up to ten months.
The New Pact for Migration and Asylum seeks to square the circle: keeping as many asylum-seekers at the external borders of the EU, while at the same time preventing the Member States located at the external border from being overburdened. The proposed solution: relieving these Member States of their ‘migratory pressure’ by relocating applicants from countries with a recognition rate of over 20 %, while quickly processing the others at the border and efficiently deporting those who are turned down.
With the screening and border procedures, the proposal heavily draws on the ‘hotspot approach’ introduced exactly five years ago – indeed, it bears a striking resemblance to the flowchart provided by the Commission at the time – and it sounds just as efficient. It is all the more perplexing how little it deals with the realities in the Greek hotspots, the most infamous of them being the Moria camp. Overcrowded, unsanitary, unsafe and degrading, it has been a disgrace for years; the recent fire finally brought it into the headlines.
With Moria in mind, the proposal is almost chilling to read, because nothing suggests that conditions will be better under the new solidarity mechanism – especially since relocations only apply to applicants not subject to the border procedure. Moreover, accelerated procedures in remote locations mean that it will be extremely hard for applicants to have access to legal counsel. Given that trauma and mistrust of authorities can seriously undermine the quality of the procedure, this will likely lead to refoulement of unrecognised refugees – unless they end up being successful in the national courts (despite very short time limits), in Strasbourg or before one of the UN treaty bodies overseeing human rights conventions with non-refoulement clauses. Notably, the Commission has not proposed to put the proposed European Asylum Agency in charge of determining claims; leaving it up to the Member States means that the current ‘refugee roulette’ will continue. The ‘independent monitoring mechanism’ for fundamental rights proposed in the Screening Regulation, which is run by the Member States themselves, will hardly be effective.
 Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management, COM(2020) 610 final, 23 September 2020.
 Proposal for a Regulation of the European Parliament and of the Council establishing a crisis relocation mechanism, COM(2015) 450 final, 9 September 2015.
 Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM(2016) 270 final, 4 May 2016, Articles 34–43.
 Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence, C(2020) 6470 final, 23 September 2020.
 Commission Recommendation on cooperation among Member States concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities, C(2020) 6368 final, 23 September 2020.
 Vera Magali Keller & Nassim Madjidian, Wenn der Vorhang fällt: NGO-Schiffe im Mittelmeer und ein fragwürdiges Rechtsstaatsverständnis des Verkehrsministeriums, Verfassungsblog, 7 September 2020, https://verfassungsblog.de/wenn-der-vorhang-faellt/.
 Proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders, COM(2020) 612 final, 23 September 2020.
 Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union, COM(2016) 467 final, 13 July 2016.
 Amended Proposal, COM(2020) 611 final, 23 September 2020.
 Asylum Information Database (AIDA), Country Report: Greece, 2019 Update (June 2020), p. 94.
 AIDA, Country Report: Greece, 2019 Update (June 2020), p. 93. These are the time limits introduced in January 2020; for the prior, even shorter procedure, see ibid., p. 90–91. In March 2019, FRA found it ‘difficult to imagine’ how the procedure ‘can be further accelerated, without undermining the quality of decisions. Putting further pressure on the Greek Asylum Service may undermine the quality of first instance asylum decisions, which in turn would prolong the overall length of procedure, as more work would be shifted to the appeals stage.’ FRA, Update of the 2016 FRA Opinion on fundamental rights in the hotspots set up in Greece and Italy, 4 March 2019, p. 26. FRA (ibid.) refers to the situation in Kos, where the procedure excluding the appeal stage averaged about twelve weeks.
 N.D. and N.T. v. Spain, Grand Chamber judgment, 13 February 2020, application no. 8675/15 and 8697/15, paras. 102–111, http://hudoc.echr.coe.int/eng?i=001-201353.
 Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum, COM(2020) 613 final, 23 September 2020.
 This would replace the Temporary Protection Directive, which has never been used.
 AIDA, Country Report: Greece, 2019 Update (June 2020), p. 217–19, 221–22.
 Managing the refugee crisis: immediate operational, budgetary and legal measures under the European Agenda on Migration, COM(2015) 490 final, 23 September 2015.
 Explanatory note on the hotspot approach, 15 July 2015, available at: https://www.statewatch.org/media/documents/news/2015/jul/eu-com-hotsposts.pdf.
 This term was coined by Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, ‘Refugee Roulette: Disparities in Asylum Adjudication’, 60 Stan. L. Rev. 295 (2007).