Looking for pact-makers: the debate on the deadlocked EU Migration and Asylum Pact


In this third article monitoring the debate on the EU Pact on Migration and Asylum, which the European Commission presented more than a year ago, we will analyse the standstill of the negotiations on political and legislative levels and highlight the fact that, in the meantime, the number of asylum seekers arriving in the Union is sharply increasing. The Afghan crisis, involving the issue of returning Afghan asylum seekers and, at the same time, of admission of displaced or evacuated Afghans, has made apparent the absence of uniform and coordinated responses by EU Member States. The German elections of 26 September 2021 and the subsequent uncertainty about the future federal government will play a vital role with regard to the debate on the EU Pact over the following months. We will, therefore, also illustrate the relevant parts of the programmes presented by the main German political parties.


1. Trend reversal – increasing numbers of asylum seekers and boat arrivals

As a result of measures taken to combat the Covid-19 pandemic, in the first semester of 2020 the number of asylum seekers had dropped dramatically. During the period April to June 2021, the trend reversed. With more than 100,000 asylum applications received in the Member States during these three months, the number doubled with regard to the same period of 2020 and showed an increase of almost 10 per cent over the first quarter of 2021. The most noticeable growth is represented by Afghans: two times more than in 2020 and 30 per cent more than during the first quarter of 2021. Two thirds of all asylum claims in the EU were registered in Germany, France and Spain.

The number of boat arrivals in Italy from January to September 2021 doubled in comparison to the same period of 2020 and amounts, with 46,000 people, to six times more than in 2019.

Notwithstanding, migrants and refugees have not been high on the political or media agenda in this period, with the exception of those originating from Afghanistan. In the German electoral campaign, migration was not even an issue, which is very different from four years ago.

2. Deadlock in negotiations of the EU Pact

Against this background, it is not surprising that no real progress in negotiating the legislative components of the EU Pact can be observed. Margaritis Schinas, European Commission Vice-President for Promoting our European Way of Life, has stated in an interview with EurActiv that he does not believe tangible results will be achieved prior to the French Presidential elections in spring 2022. “I understand that the coming months will be very difficult for a final agreement, but I believe, and I am optimistic, that immediately after the French elections we will enter into a very rapid process of convergence and final agreement,” he said, stressing, however, that “the time, the political momentum for this agreement is now.”

This statement does not reflect the persistence of profound divergences between EU Member States. Italy, in particular, is concerned about the lack of an agreement on relocation of migrants and asylum seekers rescued in the Canal of Sicily. Italian Minister of Interior Luciana Lamorgese said that Italy is waiting for “concrete signs of solidarity” on reallocations from EU Member States. While waiting for the European Pact on Migration and Asylum to be approved, “Italy, faced with growing flows by sea connected to situations of grave political and economic crisis affecting countries like Tunisia and Libya, is waiting over the coming months from member States for a concrete sign of solidarity regarding the reallocation of migrants”. In the second meeting this year of the Med-5 countries (Cyprus, Greece, Italy, Malta and Spain), at the end of September in Malaga, Lamorgese stated: Some of the proposals included in the European Union's New Pact on Migration and Asylum are unacceptable not only for Italy but also for other Mediterranean countries”.

The Greek Minister of Interior Notis Mitarakis went even further, by challenging the need for a New Pact: The new European Migration and Asylum Pact is not a precondition for action," he told journalists. We can deliver better results on border protection and returns under the existing legal framework,” he said.

Following the Taliban seize of power in Kabul on 15 August 2021, the different EU Member States have adopted different, and even contradictory, policies regarding the evacuation of Afghan personnel in service with Western military, diplomatic and civilian forces in the country, as well as the forced return of rejected Afghan asylum seekers. On 10 August 2021, six EU Member States (Austria, Belgium, Denmark, Germany, Greece and the Netherlands) declared their intention to continue the forced return policy to Afghanistan. Some of them, including Germany, have later changed their mind.

On 29 September 2021, the European Commission published a detailed Report on Migration and Asylum, stating that on the New Pact, one year since its presentation, “there has been good progress at technical level, but political agreement on some key elements is still distant”. The European Commission highlights, however, that on the proposal for an amended Blue Card Directive aimed at facilitating the immigration of high-skilled workers, a political agreement has been reached in May. The European Parliament and the EU Council have also agreed in principle to the proposal of “upgrading” the European Asylum Support Office (EASO) into a fully-fledged Asylum Agency of the Union (EUAA). It is expected that by end of 2021, the European Parliament and the EU Council will have provided a formal mandate for negotiating the proposals for the Regulations on Migration and Asylum Management (RAMM) and on screening of third country nationals at the external borders. The European Commission has also announced the presentation of a proposal to amend the Schengen Border Code, originally not contemplated in the New Pact but strongly requested by France.

On 4 October, the Slovenian Presidency of the EU Council presented a “compromise” proposal to RAMM, acknowledging that the document does not address many issues of concern to Member States, to be considered at a later stage. Indeed, the EU Council is suggesting a set of purely technical amendments to the European Commission’s proposal, albeit with two exceptions. Regarding the return sponsorship, persons subject to a return decision should “remain at the disposal” of the benefitting Member State throughout the sponsorship period. In other words, they would not enjoy freedom of movement but rather be detained for a maximum period of eight months. Regarding relocation of an asylum seeker to another Member State, the security check should not be carried out only by the benefitting State but also by the receiving State. The consequences of this double procedure were among the reasons for the fiasco of the relocation exercise from Greece and Italy from 2015 to 2017.

3. Critics on the whole approach of the New Pact

An academic study on the legislative proposals of the New Pact, commissioned by the European Parliament at the request of the Committee on Civil Liberties, Justice and Home Affairs, and published in July 2021, questions the whole approach of the New Pact. The blurring of the boundaries between asylum, external border management and return policies challenges the EU constitutional division between these areas, concludes the study. Moreover, it does not take into account the fact that different national authorities, in most Member States, are dealing with these subjects and that distinctive administrating bodies are entrusted with asylum decisions and those on return. “The Pact reinforces the ongoing trend towards increasing criminalization and policing of asylum seekers, refugees and migrants´ mobility to and within the EU”. Regarding the principle of intra-EU solidarity, the study holds that the Pact represents a clear step backward, even with regard to the 2016 proposal of the European Commission to amend the Dublin Regulation. “The responsibility of front-line States is not only maintained but reinforced”.

According to the same study, the proposed Regulation on crisis situations and force majeure shows “the absence of legal certainty” and should be withdrawn. Pre-entry procedures “constrain the asylum seekers’ access to justice, to make use of their procedural rights and to seek an effective remedy”. The use of accelerated border procedures regarding asylum seekers belonging to a nationality for which the average EU recognition rate is lower than 20 per cent “runs contrary to the principles of proportionality and non-discrimination based on nationality” and should be deleted. Pre-entry procedures carry the risk of leading to de facto detention, “the worst scenario” as even the procedural guarantees for detainees would not be applicable. “The Pact does indeed envisage and indirectly encourages detention”.

If EU legislators would follow the recommendations made at the end of the study, most parts of the legislative proposals of the New Pact would have to be withdrawn or fundamentally revised.

4. What to expect from the future German Government?

Germany has been among the few Member States wholeheartedly welcoming the New Pact, albeit with a number of minor reservations. After the federal elections on 26 September 2021, and under a new government, this may eventually change. We will shortly examine the electoral programmes of the Social Democrats (SPD), the Greens (Bündnis 90/Die Grünen) and the Liberals (FDP) with regard to two issues addressed in the respective migration and asylum chapters of the programmes: the solidarity principle and the legal pathways for third country nationals.

All three parties advocate for a reform of the Dublin System and a fair distribution of asylum seekers among the Member States. While the SPD programme does not provide details, the Greens want to entrust the future EU Asylum Agency with the task of determining the Member States responsible for the examination of an asylum request, on the basis of a distribution key. In first instance, relocation should be proposed voluntarily by governments, regions and municipalities, supported financially by EU funding. Member States not participating in the distribution exercise should be obliged to contribute to the overall cost. Border procedures, except initial screening as already prescribed in existing legislation, would not be compatible with this approach. The FDP goes further by proposing an obligatory distribution of asylum seekers, unless they have no prospect of obtaining a residence permit in one of the Member States. In the case that no EU agreement is reached in the near future, Germany and other “willing” States should be the forerunners. The other countries would face a cut in EU financial contributions, and the savings of funds would be utilised to support the relocation system.

There is, too, a common view between the three parties on the need to do more for creating legal pathways to reach the EU territories in an orderly and planned manner. Among other mechanisms, they advocate for a significant increase of places for resettlement of refugees and the issuance of humanitarian visas. The SPD proposes, in this context, to “build bridges” to local actors and European municipalities. The Greens want Germany to promote a global coalition on resettlement, initially by building partnerships with the USA and Canada, based on the UNHCR criteria for resettlement needs. The Greens would furthermore enlarge family reunification, including with siblings, and provide equal rights for refugees and beneficiaries of subsidiary protection. The FDP programme proposes to open the possibility of presenting a protection request to diplomatic representations of Member States in third countries, as one of the means for persons in need of protection, along with resettlement and humanitarian visas, so as to be transferred orderly to a Member State, and to eliminate the business of smugglers.

At the time of writing this article, it appears likely that the future German Government will take the form of a coalition between SPD, Greens and FDP. In this case, it may be expected that the German position in the EU Council regarding the New Pact will favour renegotiating essential elements of the legislative proposals and come closer to the concerns expressed by the Med-5 countries. It should be recalled that over previous decades Germany has constantly received the biggest number of asylum seekers in the Union, apart from being the European country with the highest number of migrants. During this forthcoming period, the advocacy work of German civil society organizations, and of the municipalities, will assume particular relevance.

5. The way forward

The process of negotiating the legislative proposals of the New Pact appears to be very lengthy, even on those proposals forwarded by the European Commission for which a political agreement has already been reached. In the view of the European Commission itself, the proposed holistic approach on both migration and asylum would require the more or less simultaneous adoption of the whole “package” of legislations, especially considering the frequent references from one text to another. However, not only is the EU Council apparently behind schedule but also the European Parliament. The rapporteur of the LIBE Committee on the RAMM proposal, Tomas Tobé (Sweden), presented his draft report on 20 October. The debate on the amendments proposed by Tobé will be subject of a forthcoming article of this series.

In the meantime, most critical scenarios are occurring in the migration field, in particular at the Union’s external borders. This can be seen with regard to: the recent crisis in Belarus at its borders with Poland and Lithuania; the harsh increase of people trying to reach the UK through the Channel; the enduring gross violations of human rights of refugees and migrants in Libya and the push-back exercised by the so-called Libyan coast guard; the erection of physical fences at various parts of external borders; and the widespread “fear of mass arrivals” of Afghan refugees. In all of these cases, the pressing need for a common European response based on international and EU treaty obligations, as well as on humanitarian principles, is evident.

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