And yet it moves: monitoring the debate on the New EU Pact on Migration and Asylum

Read the first analysis of this series by Christopher Hein "Old wine in new bottles? Monitoring the debate on the New EU Pact on Migration and Asylum".

In the second article of our series of monitoring the current debate on the New EU Pact released in September 2020 by the European Commission, we will focus on the external dimension of migration and asylum policies, as well as on the legal avenues of arrival in the EU for refugees, asylum seekers and migrants. The other themes on which we will try to provide an update regarding the various positions expressed relate to the proposed Regulation on the Management of Asylum and Migration (RAMM), as well as the border and screening procedures.

The overall impression is that no real progress in negotiating the elements of the Pact has been achieved during the Portuguese presidency of the EU Council, and that there is basically a standstill, partly due to the German elections on 26 September 2021 and the uncertainty about the orientation of the future Federal Government.

Nonetheless, on a technical level, the legislative machinery is working, and within the EU Council, the issues on which there is clearly no consensus between Member States are coming to light. Moreover, regarding the cooperation with third States, to which the Pact attributes particular importance, we can observe a number of initiatives that anticipate future formal agreements.

The external dimension

The Conclusions of the European Council on the topic of migration, from its meeting of 24 June 2021, exclusively address the cooperation with third States, whether of origin or of transit. In close cooperation with UNHCR and IOM, all available EU and Member State instruments and incentives should be used for tackling root causes, supporting refugees and displaced persons in the regions, building capacity for migration management, eradicating smuggling and trafficking, reinforcing border control and cooperation on search and rescue, addressing legal migration, and ensuring return and readmission. 

Prior to the European Council meeting, various recent meetings of the High-Level Working Group on Migration and Asylum identified the priority regions: North Africa, the Sahel region, sub-Saharan Africa, Western Balkans, and the Silk route. Within these regions, partnerships should be established first and foremost with Tunisia, Morocco, Pakistan, Nigeria and Afghanistan. Full use should be made of the Neighbourhood and International Cooperation Financial Instrument, especially for the prevention of irregular migration, and at

least 10% of the funds should be used for this purpose. The EU-Turkey Statement of March 2016 should be entirely implemented and renewed, and additional funding for Turkey should be earmarked. In autumn, the European Commission and the EU High Representative will put forward action plans for partnership agreements with priority countries. The Ministerial Conference on the management of migration flows, held on 10-11 May, in which a number of African countries participated, presented an opportunity to try involving one of the priority regions in the EU strategy.  

The UN High Commissioner for Refugees, Filippo Grandi, warned against the externalisation of responsibilities, “which is neither legal nor practical. It puts the burden on countries lesser equipped and represents a colonial approach”.^[1]

However, from the EU Council report of 24 May 2021 on the progress made on the New Pact, it appears that a vast majority of Member States support the external dimension package. The Danish Parliament passed a law allowing for the processing of asylum claims in third countries. Diplomatic efforts with Libya, aiming, among other things, to stem the migration flows from and to Libya have intensified during the last two months. Furthermore, 44 million euro of the Trust Fund for Africa are being used for supporting integrated borders and migration management in Libya (first phase). Italy continues to finance vessels and equipment of the so-called Libyan Coast Guard. Thus, the external action part of the Pact is the field where “progress” is actually been made, irrespective of the numerous disagreements on the legislative proposals.

Legal pathways to protection in the EU: a satisfying alternative to irregular movements?

The creation or extension of existing legal pathways for refugees, asylum seekers, non-EU workers and students for reaching the Union’s territory is part of the European Commission’s proposal of the New Pact. The fundamental problem for implementing the various programmes is that the Lisbon Treaty does not foresee a legislative competence of the EU with regard to determining the numbers and qualifications of third country nationals authorized to enter. This competence lies exclusively with the individual Member States. Restrictive visa policies and the entire Schengen System have greatly limited the possibilities for legal arrival, in particular regarding citizens of developing countries: it should be noted that all African citizens, without exception, are subject to a visa requirement. However, on a number of occasions over the last 15 years, the European Commission has been promoting legal pathways, particularly via the launch of resettlement programmes. Resettlement, which concerns “the admission of non-EU nationals in need of international protection from a non-EU country to a Member State where they are granted protection”,^[2] allows migrants to reach EU territories safely and legally, without exposing themselves to perils or to smuggling networks. The European Commission had already presented a Proposal for a Framework Regulation on Resettlement and Humanitarian Admission in 2016 and is now urging the EP and the EU Council to adopt said instrument.

The New Pact again recommends: promoting resettlement, enhancing humanitarian admission and other complementary pathways aiming “to support Member States’ sustained efforts in providing and enhancing legal and safe channels for those in need of international protection”. He also recommends to show solidarity towards non-EU countries burdened with a large number of people in need of international protection, thus contributing to a “better overall management of migration”. With this proposal, the Union acknowledges that it needs to move from ad hoc resettlement schemes to schemes that operate based on a stable, sustainable and predictable framework.^[3]

The EU’s planning is based on the UNHCR “Three Year Strategy (2019-2021) on Resettlement and Complementary Pathways”, and on the first Global Refugee Forum, held in December 2019. In this context, the European Commission also took into consideration the adverse effects caused by the COVID-19 pandemic. In fact, according to the data made available by EASO, since the introduction of the First Resettlement Scheme of 2015, migrant resettlement rates have substantially increased, going from 8,000 resettled individuals in 2015 to 30,700 individuals in 2019.^[4] In 2020, however, resettlement rates dropped by 58% due to the COVID-19 pandemic and the subsequent suspension of operations between March and July 2020. Therefore, the Recommendation urges Member States to react flexibly to emergency resettlement needs worldwide, and to continue their resettlement-related activities in 2021, focusing on countries such as Turkey, Syria, Lebanon, Jordan, Libya, Niger, Chad, Egypt, Ethiopia, Sudan and Rwanda.

To achieve these goals, the European Commission proposed considering new resettlement programmes from 2022 onward, benefiting from the financial resources allocated in the 2021-2027 Asylum and Migration Fund. In addition, Member States can also count on the “Resettlement Support Facility” in Istanbul, and the “Resettlement and Humanitarian Admission Network”, facilitated by EASO.

On 24 November 2020, the EU presented the Action Plan on Integration and Inclusion 2021-27,^[5] in which particular attention has been paid to the topic of resettlement as a fundamental tool to ensure the effective and cohesive integration of migrants. The UNHCR welcomed said proposal, and also viewed the New Pact dispositions concerning resettlement favourably, stating that “fewer people might undertake dangerous journeys if EU countries demonstrated greater commitment to solidarity through resettlement, complementary pathways and family reunification”.^[6]

Other forms of community sponsorship: complementary pathways

The Recommendation proposed by the European Commission also includes different complementary pathways, meant to run in parallel with resettlement schemes. Some Member States have already been implementing programmes such as humanitarian admission and humanitarian corridors, private sponsorship, family reunification programmes, or student scholarships for refugees. These programmes represent fundamental tools to complement the EU’s resettlement schemes, for they allow people in need of international protection to be admitted through channels other than resettlement; these channels are built on an appreciation of people’s motivations and talents, help families to reunite, and facilitate labour mobility and student admissions to universities in the EU.^[7]

Particular attention needs to be paid to humanitarian corridors, which have their roots in a Memorandum of Understanding between the Italian Government and the Community of Sant’Egidio, together with the Federation of Evangelical Churches, the Waldensian Table and Caritas Italy. These corridors started in Italy in 2016, and were later replicated in France, Belgium and Andorra.^[8] Since 2016, more than 2,700 individuals in need of international assistance arrived in Europe through these corridors.

The humanitarian corridors are not funded by States, but uniquely by the civil society organizations that promote them. The intention to replicate this example of “good practice” throughout Europe and to transpose it to the European level was already put forward by the Vice-President of the European Parliament in 2019. A proposal followed a declaration made by 15 representatives of Protestant churches from 15 EU countries, and a subsequent concept paper was presented by the coordinator of the refugee and migrant programme of the Federation of Protestant Churches in Italy (FCEI), which outlined goals and principles for “European Humanitarian Corridors”.^[9] The abovementioned Recommendation of 2020 restated this intention, and underlined the necessity of including humanitarian corridors in the EU’s project for discouraging irregular movements of migrants. On this matter, Italy still leads the way: a new protocol has been signed recently, allowing 500 asylum seekers to arrive legally in Italy, of which 300 are under the State programme, while Sant’Egidio and the Evangelical churches will manage the remaining 200 people.^[10]

Legal immigration for work-related reasons

Alongside the expansion of legal pathways to international protection in the EU being used to discourage the phenomenon of irregular movements towards Europe, the Union is also focusing on attracting skilled workers from non-EU countries, to maximise the benefits of legal migration.

Already in 2009, the EU adopted the “Blue Card Directive” that allowed highly qualified non-EU nationals to work in an EU country (other than Denmark and Ireland). This system also set out the entry and residence conditions for eligible workers. The aim of a revised EU Blue Card scheme would be to “make it easier and more attractive for highly skilled third-country nationals to come and work in the EU, thus supporting European businesses in attracting qualified and talented people from around the world”.^[11] Improvements include, among other things, less stringent admissions criteria (i.e. lower salary threshold and shorter required length of work contracts), better family reunification conditions, facilitated mobility and the abolishment of parallel national schemes.

The New Pact once again underlines the necessity of completing the unfinished work on this matter and of revising the Directive. On 17 May 2021, the European Parliament and the Portuguese Presidency of the EU Council reached an interim agreement on the revision of the Blue Card. The Vice-President of the European Commission, Margaritis Schinas, stated that “today’s agreement gives the EU a modern, targeted legal migration scheme that will allow us to respond to skills shortages and make it easier for highly skilled professionals to join our workforce” and that this result shows that “by working together, the EU can equip itself with a future-proof migration system”.^[12] Both the EU Council and the European Parliament Committee on Civil Liberties, Justice and Home Affairs endorsed the agreement, on 21 May 2021 and on 3 June 2021, respectively.

According to this agreement, individuals will also be able to apply for the Blue Card from within the EU’s territory. They will need to present a work contract or a binding job offer of a minimum of six months. The new scheme will introduce more flexibility, reducing the salary threshold and allowing beneficiaries to change position or employer, even during the first 12 months. Family members of EU Blue Card holders will be able to enter EU territory and access its labour market. EU Blue Card holders and their family members will also be able to move to another Member State based on simplified mobility rules, after 12 months of employment in the first Member State.^[13]

The Pact says nothing about legal pathways for low-skilled workers. With the implementation of the post-COVID-19 economic recovery programmes currently underway, a number of labour market sectors are already showing signs of shortfalls in the workforce. The extremely limited pathways for the legal entry of migrant workers are unavoidably leading to an increase of irregular and unsafe arrivals and of the instrumental presentation of protection claims, for lack of alternatives.

Asylum and Migration Management

The German government has welcomed, in general terms, the proposed Pact and, in particular, the proposal for a Regulation on Asylum and Migration Management, as it reflects the objectives formulated in its non-paper of 4 February 2021. Stefan Mayer, State Secretary of the German Ministry of Interior^[14] described the three objectives as: quickly deporting those who have no chance of getting protection, preventing irregular movements, and only providing reception benefits for asylum seekers in the country determined to be competent for the examination of the protection request. Applicants should know the consequences of irregular secondary movements in the EU. Relocation of asylum seekers may be mandatory in exceptional circumstances of particular pressure. Germany is in favour of return sponsorships as an act of solidarity, as well as of mandatory screening at borders.

Not surprisingly, the position of Greece and other Mediterranean frontline States is completely different. The Greek Minister of Migration and Asylum, Notis Mitarachi,^[15] holds that solidarity should not only be a remedy for pressure situations but should be applied to all aspects, saying that “Migrants are coming to Europe, not to a specific country”. For Greece, relocation remains a priority and the effectiveness of return sponsorships has to be questioned; in the meantime, the burden would be solely on the first country of arrival. Greece is also in favour of the mutual recognition of positive asylum decisions, thus allowing beneficiaries of international protection to move legally to another Member State.

Redressing the irregular secondary movements of asylum seekers and refugees from the first country of arrival to another Member State is among the declared objectives of the RAMM, to be achieved through repressive, and even punitive, measures. The ECRE’s Secretary General, Catherine Woolard,^[16] suggests instead looking into the motivations for such movements: to join family members or communities, to move to a country with which the person has a link, and to move to a country where more favourable integration prospects can be expected. The European Commission’s proposal to include siblings in the definition of “family”, for the purpose of determining the Member State responsible for the examination of an asylum request, would therefore be a step in the right direction. However, from the EU Council’s progress report, it appears that not all Member States agree to this broadening of the definition. Moreover, even the rather timid improvements contained in the RAMM proposal risk encountering opposition within the EU Council.

The Rapporteur of the European Parliament Committee on Civil Liberties, Justice and Home Affairs, the Swedish MEP Tomas Tobé, will supposedly deliver his report on the RAMM proposal on 30 September 2020; the ECRE has presented, on 2 May 2021, a detailed comment on it.^[17]

Asylum procedures and screening at borders

Border procedures and the fiction of “international zones” at border areas have been practiced by some Member States for a long time. At French airports, the decision on admission to the regular asylum procedure and to the territory is decided within 48 hours; decisions on an appeal are taken in 20 days, during which time the asylum seeker is held in detention. France is in favour of obligatory and extended border procedures as proposed by the RAMM. This would also facilitate an immediate “filtering out” of criminal elements and smugglers.^[18] France also supports the proposal to combine the asylum and return procedures at the external borders.

Minos Mouzourakis, representative of the NGO Refugee Support Aegean, pointed out that little more than 1% of all asylum seekers in France, and only 0.5% in Germany, are subject to border procedures, whereas in Greece it would amount to over 50%. He also warned against the massive administrative detention of asylum seekers in cases of compulsory introduction of border procedures.[^19] Malta has stressed that external sea borders are totally different from airports or land borders. Hence, the particular difficulties of individual Member States are to be taken into account, and border procedures should not be mandatory. In Malta, all asylum seekers are undocumented upon arrival, and it takes several months to arrange for the issuance of a return travel document. The proposed simultaneous return procedures would therefore not be feasible.^[20]

Birgit Sippel, Rapporteur of the EP on the proposal for a Regulation on screening at borders, noted that during the screening, no legal remedy is available, and that asylum seekers can be detained for the sole reason of having filed a protection claim. She has demanded independent border monitoring on the respect for human rights.   

Conclusions          

Filippo Grandi has said that it is important to “[a]void the narrative of invasion, there is no invasion. Look at the numbers of refugees and displaced persons in countries like Colombia or Uganda or so many others in the developing regions, and be aware that the EU has a global relevance, that good or bad examples have a direct impact on the rest of the world”.^[21] In fact, in 2020, the number of asylum seekers in the EU dropped by 32%, not only as a consequence of the COVID-19 pandemic. The trend continued in the first semester of 2021, with a drop of approximately 40% compared to the same period of 2019. 

The debate around the Pact reveals, again, that there are immense factual differences between Member States, according to their geographical location, their economic situation, their overall migration situation, and their attractiveness for migrants, asylum seekers and refugees. These factors appear to influence the positions of the Member States more than the political orientation of the individual governments. In the Mediterranean area, asylum seekers and undocumented migrants mainly arrive at sea borders, whereas the Central and Western European countries are concerned about arrivals through land borders. In the case of France, Germany, the Netherlands, Belgium and the Nordic countries, for example, most asylum seekers arrive through internal borders via “secondary movements” and would be, in principle, subject to removal to the first countries of arrival under the Dublin system.

If the common interest of all Member States is to keep the numbers low, or – as in Denmark – close to zero, the diverse strategies for achieving this objective unavoidably run into conflict. The declared aim of Germany, France and others is to drastically reduce secondary movements and to keep the principle of the responsibility of the first country of arrival in place, by contemplating some concessions in terms of emergency relocation. At the other end, the frontline States, generally not affected by secondary movements but, instead, by sudden and unforeseeable sea arrivals, invoke the solidarity rule, insisting on extended and mandatory relocation and opposing border procedures. The only real common denominator between the various groups of countries is the focus on external action aimed at stemming the migratory movements prior to their arrival in Europe.

The overall plan of the European Commission to reach common binding rules for all Member States – with the exception of relocation, resettlement and other legal pathways – appears, at least today, to not be realistic in view of the conflicting interests.

This article was first published in French by the Heinrich-Böll-Stiftung Paris office. The author wrote it with the support of Eleonora Chiti.