Old wine in new bottles? Monitoring the debate on the New EU Pact on Migration and Asylum

Read the second analysis by Christopher Hein "And yet it moves: monitoring the debate on the New EU Pact on Migration and Asylum".

After a long period of announcements and postponements, on 23 September 2020, the European Commission presented the New Pact on Migration and Asylum. On that occasion, EU Commission President Ursula von der Leyen stated that “the old system no longer works”. The package would “offer a new start”, she said, and announced a “predictable and reliable migration management system” that “brings together all aspects of migration: border management and screening, asylum and integration, return and relations with external partners”.

The New Pact has generated extremely controversial comments by governments, policymakers, academics and civil society organizations, and the EU law-making machinery has started working on the nine legislative proposals that are part of the package.

1. The New Pact: a three-floor building

The Vice-President of the European Commission in charge for coordinating the work on the New Pact, Margaritis Schinas, has described the Pact as a three-floor building in which all levels must be equally stable and reliable.[1] The ground floor is the external dimension, namely the relations with countries of origin and the transit of migrants and asylum seekers, meant “to create better life there”. The task would be to create win-win partnerships with approximately 25 of those countries. According to Schinas, all Member States would agree on this aspect.

The second floor concerns the management of the EU´s external borders. According to Schinas, this must be considered as a common, shared responsibility, for it would be unfair to delegate such a critical task to five or six countries of first entry. Frontex, the European Border and Coast Guard Agency, would have a pivotal role to play. Frontex would count on a budget increase of five or six billion euros per year and would have some 10,000 border and coast guards at its disposal. The management of external borders also includes obligatory screening procedures for all arriving third country nationals lacking admission documents, as well as effective return mechanisms regarding people without a valid residence permit in a Member State.

The third floor consists of a new system of permanent and effective “solidarity and burden sharing”, where countries of first entry could trigger solidarity mechanisms, and the other Member States could choose between different options, “in order to reduce pressure on the system”.

The New Pact constitutes, finally, in the view of Schinas, a true and comprehensive system. Previously, he said, the Union had failed altogether in migration and asylum policies, with previous European Commissions, including the last one under the presidency of Juncker, only achieving a patchwork. The legislative proposals of 2016 on the reform of the Common European Asylum System represented a non-system, a puzzle of non-interlinked elements. “Moria, Calais, Canary Islands are a direct consequence of this non-system we have today”, said Schinas.

2. A more comprehensive package of policies

The New Pact builds partly on the European Commission’s seven legislative proposals of 2016, which were drafted as a response to the “European refugee crisis”, and which also reflected the first period of “success” of the agreement with Turkey of March 2016 in terms of a harsh reduction of asylum seeker arrivals in Greece. On five of these proposals, a political agreement had already been reached, namely regarding the regulations on:

• Qualification for International Protection;
• Upgrading of the European Support Agency for Asylum (EASO) to a fully-     fledged EU Agency for Asylum (EUAA);  
• The revision of the Eurodac system on the establishment of a data bank of asylum seekers;
• S framework for resettlement and humanitarian admission of refugees;
• And, not least, the reform of the Directive on the reception of asylum seekers.

However, the whole process of reforming the Common European Asylum System (CEAS) stalled because of entirely different views between the Member States, as well as between the European Parliament and the EU Council, on two substantial issues: the proposed Regulations on Asylum Procedures and on the “Dublin system”. The European Commission has now presented revised versions on both topics, expecting that this would facilitate the reaching of a compromise between the divergent positions. After 30 years of flaws and criticism regarding the initial Dublin Convention and the subsequent Dublin Regulations, the term “Dublin” no longer appears, being instead replaced by the more neutral expression “Asylum and Migration Management”.

The New Pact also includes new proposals for regulations:

• On the screening of third country nationals at external borders;
• On addressing situations of crisis and force majeure in the field of migration and asylum, in substitution of the never-implemented Regulation on Temporary Protection.   

Moreover, together with the introductory Communication to the European Parliament and to the EU Council, the European Commission has issued recommendations on:

• The cooperation between Member States regarding private entities concerned with rescue at sea activities;
• Legal pathways to protection in the EU.

Finally, the European Commission has issued a Guidance to Member States on the implementation of EU rules concerning the definition and prevention of facilitation of unauthorized entry, transit and residence.

An Action Plan on Integration and Inclusion is in preparation and expected to be adopted during the second quarter of 2021.

A “New Strategy on Voluntary Return and Reintegration for Migrants and Asylum Seekers” has been published by the European Commission on 29 April 2021.

The European Commission has also announced, for 2021, the development of a Strategy on the future of the Schengen System, following a meeting of several Heads of Government and members of the European Commission in November 2020, promoted by Emmanuel Macron. In fact, in light of the terrorist attacks in France, the French President is demanding a review of the Schengen Border Code. Supposedly, a revised Schengen Regulation will be adopted under the French EU Presidency during the European Semester of 2022.

3. Is the Pact really “new”?

There is no doubt that the New Pact represents a very comprehensive package of legislative and structural features that encompass nearly all aspects of migration and asylum policies. A number of observers, however, are doubtful regarding the innovative character of the strategy. In fact, the external dimension of migration and asylum policies had already been highlighted in the 1999 Conclusions of the Extraordinary European Council in Tampere. The Hague Programme of 2004, the Stockholm Programme of 2009 and the EU Agenda of Migration of 2015, as well as subsequent programmatic and strategic documents of the European Commission, have all dedicated vast chapters to the relationship with third countries. The need to induce home countries to re-accept their citizens served with expulsion by promising some benefits for enhanced cooperation and for the conclusion of readmission agreements has been a constant feature of EU policies for more than 20 years. However, it is evident that the New Pact predominantly stresses the role and responsibilities of non-EU countries of origin and transit. In its Opinion on the New Pact adopted on 27 January, 2021, the European Economic and Social Committee (EESC) stated that it “regrets that most of the proposals are devoted to the management of external borders and return, while failing to pay due attention to regular channels for immigration, safe pathways for asylum or the inclusion and integration of non-EU nationals in the EU”.[2]  

The European Council for Refugees (ECRE) adds that it “finds it unwelcome that the most important legislative proposal on the future of asylum in Europe begins with a reference to the responsibilities of third countries rather than those of European countries. This demonstrates the continued efforts at “externalization” that are embodied in the Pact”.[3] Actually, “return” is a key term in the strategic part of the New Pact, as well as in a number of legislative proposals.

A more efficient management of external borders, the “second floor”, has been on the migration agenda of the Union for many years as well. Allocating a pivotal role to Frontex in integrated border control and surveillance is one of the few topics where broad agreement between the governments of Member States seems to be assured. Since the creation of Frontex in 2004, the regulation governing the activities of the agency has been amended four times, the latest in force as from 2020. In each exercise, new and extended competences have been assigned to the agency. Its budget has been increasing and is currently being further increased to a level of around 500 times the original financial allocation. What is really innovative is the proposal to examine jointly and on the spot, in the framework of the “border procedures”, the qualification of an asylum seeker to receive international protection, and the issuance of a return order in case of non-qualification. During this procedure, it is supposed, on the basis of fictio iuris, that the asylum seeker has not yet entered the EU territory. Among the many critical comments we may cite, that of the German MEP (Greens/EFA) Erik Marquardt sums the situation up particularly succinctly: “Migration management has become a euphemism for repelling refugees”.[4]  In responding to these criticisms, Schinas has, however, assured that the EU Fundamental Rights Agency (FRA) will be involved in monitoring border management.  

4. “Dublin” replaced?

The terms “solidarity and burden sharing” refer, on the one hand, to what is known as the “Dublin system” and, on the other, to the eventual relocation of asylum seekers – not migrants in general! – rescued at sea and disembarked in the port of a Member State. Not surprisingly, the implementation of the principle of intra-EU solidarity, as enshrined in the Lisbon Treaty, appears to be the most conflictive issue of the whole Pact, highlighting the different positions of Member States, as well as those between the European Parliament and the EU Council. A number of governments and many observers were astonished to discover that the core elements of the Dublin III Regulation remain unchanged in the Proposal for a “Regulation of Asylum and Migration Management”. In particular, the responsibility of the country of first entry into the EU is still in place.

The announcements made beforehand by political leaders such as the German Chancellor Angela Merkel, and even the EC President von der Leyen, that “Dublin” would be overcome and replaced by a wholly different approach regarding the attribution of responsibility for an asylum seeker, led to expectations not met by the New Pact. In October 2017, the vast majority of the previous European Parliament had provided a mandate to negotiate the “Dublin IV” Proposal on the basis of a report from the LIBE Committee, by which the allocation of responsibility to the first country of entry should be abolished and replaced by a solidarity scheme, including the mandatory relocation of asylum seekers to all Member States. Furthermore, genuine individual links of an asylum seeker to a specific country should be taken into account.

Schinas has stated that the “countries of first entry will never be left alone”, but this assurance does not have a foundation in the text of the proposal and does not convince a number of “frontline states”. The Ministers of Interior of Cyprus, Greece, Malta, Italy and Spain, concluding a meeting in Athens on 20 March, 2021, stated: “We repeat our strong plea in favour of a needed balance between solidarity and responsibility as the current format of the Pact does not provide reassurances to the frontline Member States”. Even more explicit is the statement made on the same occasion by the Home Affairs Minister of Malta Byron Camilleri: ”We can no longer be punished for our geographical position”.[5] The Italian Minister of Interior Luciana Lamorgese has pointed out the common stand of the Mediterranean countries and has urged the Union to implement the agreement reached in Malta in September 2019 on the relocation of people rescued at sea.[6] Italian Prime Minister Mario Draghi, commenting on the New Pact during the presentation of his government to the Italian Parliament on 16 February 2021, stated: “Actually, the contrast persists between the external frontier States like Italy. Spain, Greece, Malta and partly Bulgaria, primarily exposed to migratory flows, and the States of Northern and Eastern Europe, mainly worried to prevent the so-called secondary movements from the States of first entry to their territories. Italy, supported by some other Mediterranean countries like Spain, Greece, Cyprus and Malta and partly Bulgaria, propose a mechanism of redistribution of migrants pro quota, as a concrete measure of solidarity, underlining the specificity of the management of external maritime borders”.[7]  

5. Border procedures and detention

The European Economic and Social Council “considers that the projected pre-entry screening and border procedures are inadequate” and do not provide enough procedural guarantees for the respect of fundamental rights.

The main European and national NGOs concerned with the protection of the right to asylum have published, in February 2021, a joint statement highlighting that the New Pact could be an opportunity to change direction and to overcome the “crisis mode” with which asylum and migration have been treated for many years. However, they express deep concern about several of the proposals by the European Commission, principally about those regarding a mandatory accelerated border procedure to be applied to all persons who arrive irregularly in the EU seeking protection. The NGOs fear that this procedure would “undermine access to protection in Europe”, remove many necessary safeguards and lead to the massive extension of detention centres at the borders.

6. Next steps 

The European Commission has presented, as an annex to the New Pact, a roadmap to implement the various proposals. According to this timetable, the Regulations on the European Asylum Agency, on Eurodac and on the framework for resettlement and humanitarian admission should have been adopted by the end of 2020. The Regulations on the Management of Asylum and Migration and on addressing crisis situations, as well as the Directives on reception of asylum seekers on return of undocumented migrants, should be adopted by the European Parliament and the EU Council by the end of June 2021, and the remaining legal provisions by the end of 2021.

At the time of writing, early May 2021, not a single proposal has yet been adopted.

The European Parliament Committee on Civil Liberties, Justice and Home Affairs started in January 2021 a discussion on the Management, in other words the “Dublin IV”, Regulation. The appointed rapporteur, Tomas Tobé (EPP Group, Sweden) is expected to present his report in September 2021, possibly preceded by a working document, which is expected in June 2021. The other EP groups have nominated their shadow-rapporteurs. It is assumed that the S&D, the Greens/EFA and The Left will work on a common position.

Most national parliaments of EU Member States have issued statements on the Pact as a whole, as well as on individual proposals. A number of these texts, including that adopted by the Italian Senate, accuse a violation of the subsidiarity principle, as well as insufficient provisions regarding responsibility and burden sharing.   

In the forthcoming articles, we will monitor the ongoing debate in more detail.  

This article was first published in French by the Heinrich-Böll-Stiftung Paris office.