Fresh start or false start? The New Pact on Migration and Asylum

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Petra Bendel,  Professor, University of Erlangen-Nürnberg

9 January 2021

The New Pact on Migration and Asylum launched by the European Commission under President Ursula von der Leyen does not appear capable of meeting its ambitious aim to be a ‘fresh start’ in migration policy. The compromises with Member States that were required in advance were too substantial; the Pact’s level of innovation too low; its refugee protection and human rights aspects too vaguely defined; its references to the two Global Compacts rather insipid. Further, its approval by the Council and the Parliament are in doubt, as is its ability to effectively protect the rights of refugees.

1. Introduction

On 23 September 2020, the European Commission presented its New Pact on Migration and Asylum, accompanying it with an ambitious statement of intent. The commissioners in charge, Ylva Johansson and Margaritis Schinas, promised no less than a ‘fresh start’ covering all aspects of EU migration and asylum policy, to the end of easing tensions and conflicts among the Member States and with the ultimate aim of forming the basis of a reliable common migration and asylum system.

The Commission was and is in an unenviable position: It has to rebuild trust and strengthen consensus among Member States after a long period of serious disputes over refugee policy. It has to stop the ‘race to the bottom’ in refugee protection and provide a framework for orderly migration. In the past few months, the Commission´s preliminary negotiations with its Member States and the European Parliament have entailed a lot of hard work that has resulted in a number of compromises. In what follows I will analyse the Pact’s principal proposals as to their innovative potential, their reliability, their chances of being implemented in negotiations, their potential efficiency and the protection of rights they afford, taking the two Global Compacts into consideration.

2. A communicative false start

The Commission did not do itself any favours with the unnecessarily high expectations it raised in advance of announcing the Pact. The proposals in their current form, in line with their compromising character, have not been able to sustain their defined narrative of migration as a normal process rather than a crisis event. Instead, the discourse of ‘irregular migration as the typical case’ or indeed of the ‘refugee crisis’ is in evidence again and again. The Commission’s introductory communication fails to explain how the proposals improve on the status quo. Indeed, quite to the contrary, it has left experts and non-experts struggling with an extensive loose-leaf collection of proposals for regulations and recommendations, opaque in form and content.

3. Familiar initiatives with a ‘twist’

The nine legal initiatives set out in the Pact do not offer many proposals with which we are not already familiar. Its centrepieces are pre-entry screening, asylum procedures at the EU’s external borders, and a proposal for ‘flexible solidarity’ rather than shared responsibility among the Member States. There is, then, little innovation in evidence; yet each aspect of the Pact has been given a new ‘twist’ to increase their appeal to the negotiating partners both in the Council and in the European Parliament.

First, the Pact (again) presents a proposal to abolish the Dublin Regulation and replace it with the screening of asylum seekers prior to their entry to a country (the criterion of the first irregular entry of the Regulation, however, among others, are maintained), flanked, if required, by asylum procedures at the EU’s external borders. In contrast to proposals presented in the past – specifically prior to the commencement of Germany’s EU Council presidency (July-December 2020) – the pre-entry screening procedure outlined here does not include any preliminary decisions on asylum. Its purpose is to capture a more detailed registration of asylum seekers and an additional security and health check. The asylum procedure would commence after this screening. The proposal bears an evident resemblance to the ‘integrated refugee management’ introduced in Germany in 2016, whose central idea was to dive the applicants into different clusters for the asylum procedure right from the start. Very much like the clusters established there, the New Pact would implement a distinct procedure for asylum applicants from countries with ‘low recognition rates’ and for those whose applications include information that is false or abuses the process, or from those who may represent a danger to national security. Depending on the group to which they are assigned, the system would channel asylum seekers into one of four possible procedures: resettlement, the ‘conventional asylum procedure’ (yet with very tight deadlines), a fast-track asylum procedure, or relocation to another Member State for consideration of asylum.

Second, the Commission has turned away from the principle of fair distribution of people seeking protection among the Member States – which has de facto never been in operation – and intends to replace it with a ‘new solidarity mechanism’ (at the same time mandatory and flexible). In accordance with the new mechanism, not every Member State will have to accept people seeking international protection and may opt for other instruments of ‘solidarity’ instead. The ‘twist’ as compared to the principle of ‘flexible solidarity’ proposed by the Slovak Council presidency in 2016 is the new instrument of ‘return sponsorship’. Instead of receiving refugees, a Member State can ‘sponsor’ people required to return to their countries of origin. This entails arranging the return; if the ‘sponsoring’ Member State fails to do this within a period of eight months, it must permit the person to enter its own territory – an idea that aimed both at facilitating cooperation with those Member States not willing to receive refugees (particularly the Visegrad-States) and at accelerating returns. However, Hungary, Poland and the Czech Republic were quick in rejecting even these new plans. The Commission intends to specify at a later date a separate catalogue of operational and technical support measures that may serve as instruments of solidarity in this context. It remains to be seen whether this catalogue contains more elements that support, for instance, the reception and asylum standards in Member States under pressure or the European Asylum Support Office (EASO) and how the different possible contributions will be rated in the announced ‘solidarity pool’. The proposal further states that, where the migration system in a Member State is overloaded, the other Member States should take on a certain ‘fair share’ of refugees. It even provides for the possible relocation of recognised refugees in countries other than those of their first arrival.

4. No commitment to ‘legal routes of entry’, sea rescue or cooperation with third countries

Depending on the issue at hand, the proposals submitted differ widely on the extent of legal obligation they confer. Whenever they cover ‘hard topics’, the proposals are legally binding draft regulations. This is the case for the pre-entry screening and asylum procedures at the border (including an expansion of the EURODAC fingerprint system), the new regulation on the responsibility of Member States in times of crisis intended to replace the ‘mass influx directive’ of 2001, and the instruments of ‘flexible solidarity’.

However, those aspects of the Pact relating to humanitarian issues of asylum and migration are recommendations only, and will lack any legally binding character. Obviously, the Commission anticipated Member States’ poor agreement on these topics, therefore according them low priority. They include legal routes of entry, cooperation with countries of origin or transit (in order to achieve EU borders, migration and asylum objectives – which perpetuates the EU’s well-known little attention to the interests of third countries and reinvents the wheel of the returns partnerships. The precise content of most of these recommendations remains vague, regrettably so in the context of the Commission’s recommendations for stabilisation of the resettlement system and its designation of funding (including private sponsorship) for this purpose. This is an issue that has also been encouraged by the Global Refugee Forum in order to reduce the pressure on host countries, but is here possibly combined with containment aspects. In some instances, the fuller formulation of these ‘softer’ aspects will not take place until some time in2021.

One of the areas thus affected relates to the opening of additional legal pathways to entry to the EU, which – also corresponding to the call for ‘Global solidarity in the Global Compact on Refugees – has the potential to represent an opportunity to create a ‘win-win’ situation in negotiations with migrants’ and refugees’ countries of origin or transit, but is overshadowed by the Commission’s conditionality on return, readmission and fighting against migrant smuggling as the centre piece of the external dimension of migration policies. The EU’s New Pact’s reference to ‘Talent Partnerships’, which might be inspired by the Global Compact on Migration’s ‘Global Skills Partnerships’ remains vague and certainly non-binding.

Refraining from the criminalisation of private search and rescue organisations and coordinating rescue-at-sea operations among the Member States are further recommendations of the Pact, and doubtless desirable courses of action. The issue of search and rescue otherwise remains undefined, and certainly not subject to proposals of binding regulation; a contact group yet to be established would be required to report to the Commission once a year. Nevertheless, the Commission did provide for technical and detailed provisions for disembarkation following search and rescue operations.

The proposals remain grossly deficient in the other, crucial issues, such as substantial future regulatory arrangements regarding secondary movements and substantial measures pertaining to the internal borders of the Schengen area. Without these aspects, questions must remain as to the new asylum system’s effectiveness in practice.

5. An over-ambitious timeline and unclear prospects of implementation

Taking into account the legal form chosen for the Pact – regulations instead of directives – , the prospects of implementing the laws and regulations directly effective in the Member States during the negotiations in the Council appear poor. Following the tendency noted in the context of previous efforts to reform the Common European Asylum System (CEAS), the Commission, in these new proposals, has completely refrained from drafting directives, which would still have to be transposed and implemented in the Member States. Instead of directives, it proposes the issuance of binding and directly applicable regulations. This means that much is at stake for the Member States in the negotiations, and the negotiations are accordingly likely to be intense. It may therefore prove at the least challenging to keep to the ambitious timetable, which provided for mutual political consent by the end of 2020 and adoption by June of 2021.

This is still more the case, due to the fact that the Commission continues to insist upon completing the reforms to CEAS stuck in different stages of negotiations. These have been negotiated in a ‘package’ and largely depended on the Dublin regulation’s revision from which the Pact, however, now withdraws: the Reception and Qualification Directives, the Resettlement Framework and the regulation of the European Union Agency for Asylum (formerly EASO), on the reform of which provisional political consent is in place.

The content of the Pact appears to promise tough negotiation processes ahead. It would be surprising indeed if the States located on the EU’s external borders gave their consent to the new system, which transfers responsibility for preliminary examinations and border procedures onto them. Those States which opt to take on ‘return sponsorships’ are unlikely to agree without a murmur to take in all asylum applicants that they are unable to return after the scheduled period of eight months. Finally, still to take place are political negotiations regarding which additional instruments might be applied by Member States that refuse to receive asylum seekers within the ‘solidarity à la carte’. Defining these will be no simple endeavour.

6. Potential efficiency: More questions than answers

Even if the Dublin system will not be applied – at least not under that name – in the future, the new procedure at the heart of the suggested Pact raises numerous questions:

• How can we make certain that it will genuinely ease the pressure on Member States with external EU borders?
• How can we guarantee faster and more reliable screening, within the timeframe envisaged by the Commission of five to ten days, and quicker asylum procedures at the border, for which the Commission has set a timescale figure of 12 to 20 weeks at most?
• How can we ensure that Member States will comply?

We are yet to hear details of the resources, skills and powers that will be available – and necessary – for the achievement of these objectives. We might have been able to look forward to more efficient and harmonised procedures had a more radical proposal been presented, one proceeding far beyond the reform of the European Asylum Support Office (EASO) – on which consensus has already been reached – and following the (albeit still perfectible) model of the German Federal Office on Migration and Refugees (BAMF), responsible for the registration, examination and decision of asylum claims and whose branch offices with specially trained personnell file the asylum cases. But here, too, the Commission did not venture far enough.

Similar considerations apply to the question of how to avoid a backlog, and the potential concomitant development of new, perhaps even long-term flashpoints, in the Member States with external EU borders, which are currently already struggling to cope with the strain. The implications for accommodating refugees also merit consideration, with the much criticized pilot project on camp accommodation under EU supervision.

7. Appropriate regard to fundamental rights and ‘vulnerable persons’?

Questions also arise on how these procedures will ensure respect for the fundamental rights of the migrants and refugees undergoing them, as required by international and regional refugee proptection and human rights standards, as enshrined in the UN Global Compacts on Refugees and Migrants, as well as in the EU Treaties. The Commission has responded to concerns by installing a new independent monitoring mechanism, which might have had innovative potential if its operation had been placed under the auspices of the European Commission, the European Union Agency for Fundamental Rights (FRA) or another, independent institution. As it is, Member States will be tasked with conducting their own monitoring of respect for fundamental rights, which will entail forming a committee and possibly consulting the FRA. The worst-case scenario here is that this distribution of powers in an ‘independent monitoring mechanism’ will result in a situation in which the same State which has violated a law will judge these violations – a contradiction in terms.

The Pact proposes the identification of ‘vulnerable persons’ (as referred to in the diction of the Commission) during screening. These individuals will not have to go through the accelerated asylum procedure mandatory for all others – a principle familiar to us from the Reception Directive. But what appears to be a humanitarian measure may suffer from important limitations on its practicability in view of the existing time pressure. Validation of the legal correctness of such a procedure and allocation of responsibility for its conduction will also be required. An additional question as yet unanswered is that of access to legal instruments: To whom can an asylum seeker (who has been rejected or deported) appeal, and who are the ‘appropriate authorities’ mentioned in the proposals?

8. Conclusions: A Herculean task rather than ‘a fresh start’

Rather than representing ‘a fresh start’ and instead of providing a new vision on real common principles and policies, the Pact re-issues well-known policy choices out of the drawer, although sometimes ‘with a twist’. Instead of presenting a new idea of solidarity, so strongly recommended in the Wikström-Report of the European Parliament, it relies more on the logics of ‘flexible solutions’ based on nationalistic interests. The reliability of the suggested policies differs largely according to their ‘hard’ (securitized) or ‘soft’ (humanitarian) policies, thus showing where priorities are being set. Their chances of being implemented in negotiations are at least restricted, given that they are presented as regulations, not as directives. For the protection of rights the suggestions may afford the monitoring mechanism may be crucial, but should be re-designed.

To conclude, we are in no doubt that reconciling the increasingly diverging interests of individual States and managing the humanitarian disaster of European refugee policy represent a Herculean endeavour. Of course, our hope is that the Commission will successfully negotiate between the Member States and between Council and Parliament, ideally with the result of shaking up the existing impasse and softening intransigent stances. It may then be possible to return to the original targets: the protection of refugees and the regulation of migration which until now has remained largely unregulated. These proposals run to over 500 pages, yet with good reason we find their content wanting. We await the legislators’ views and decisions with interest.