New Pact on Migration and Asylum – first impressions and old deceptions

Ana Maria Rodrigues, PhD candidate and Lecturer at UMINHO

Last week, the European Commission has launched its long-awaited proposal for a New Pact on Migration and Asylum. Alongside the new Pact comes a hoard of political and legislative proposals. The said intention is to set a new European framework that can, on the one hand, acknowledge collective responsibilities, on the other hand, address the fundamental concerns with solidarity (or lack of), and finally, tackle the implementation gap.

Proposals comprise a new regulation on asylum and migration management, a new regulation establishing a common procedure for international protection (therefore repealing the corresponding Directive), a new regulation introducing a screening of third-country nationals at the external borders, a new regulation addressing situations of crisis and force majeure in the field of migration and asylum (therefore repealing the temporary protection directive), and a new regulation on Eurodac (aimed at replacing the current one), as well as several other soft law instruments and some of the 2016 reform proposals on which political agreement was reached.

Although the proposals might bring some welcome evolution to what has been a standstill situation for a long time, their content is – to say the least – somewhat disappointing. It is a fact that the new solutions could not be very ambitious and risk not passing in the Council or at least creating an open institutional conflict promoted by a few Member-States. But, on the other hand, some have hoped that the standstill situation would instead pave the way for a radically new approach, or even allow for an enhanced cooperation mechanism, assuming the impossibility to reconcile the position of the Visegrad group with the frontline states, as well as with the most progressive Governments in other Member-States.

The fact is that the approach used by the Commission still focuses much on concerns that are not at all as pressing as they were in 2015/2016, given that the arrivals decreased enormously and migration is now by far a topic not as hot as, for instance, the covid-19 pandemic. The emphasis of the proposals remains on preventing arrivals, externalising control and deterring prospective incomers, though with a slight shift in the rhetoric, expunging the unmanageable crisis’ language and attempting to normalise this policy area.

According to the proposals, returns are to be increased and expedited, with a view to lower the pressure at the external borders. To this aim, there will be a pre-entry screening in order to identify and register anyone getting in, possibly followed by mandatory border procedures. These are definitely one of the most prevailing issues dealt with by the new Pact. A pre-screening at the borders would yield a ‘mechanical’ assessment of the likelihood of obtaining recognition of an asylum claim, (un)likelihood being solely based on people coming from safe countries or from countries with lower average recognition rates. These people would then undergo a fast-track border procedure, to be completed within twelve weeks in times of normalcy (including appeals). Pre-screenings at the borders and the associated fast-tracking of asylum applications could bring along 2 major problems. First, it is needless to say that both pre-entry screenings and fast-track asylum procedures will come at a cost in terms of fundamental rights and the rule of law, since the former will diminish guarantees and curtail access to justice and to an effective remedy (especially given that the current rates of successful appeals are significantly high) and the later may not provide enough time for the administrative / judicial system to work, prolonging and widening a state of affairs such as the current landscape of the Greek islands. Second, none allow for a proper and timely identification of vulnerabilities, regardless of the provision of preliminary vulnerability checks. Besides, and in practice, it is not even certain that fast-tracking the procedures will have real impact in the expected increase of the numbers of returns, since returns depend mainly on the alignment of third countries with whom the EU has yet to negotiate and bargain (for instance on visa issuance).

Regarding responsibility sharing, the proposal is also rather innovative, though it does not do much for the sake of the frontline states facing a disproportionate ‘burden’ (the usual jargon for responsibility currently allocated via Dublin rules). It presents a sort of a menu of commitments, meaning that Member-States can commit and contribute on their own terms – some may relocate asylum seekers or recognised refugees in their territory, while others may provide operational support and capacity building in a country facing migratory pressure (either a EU frontline Member-State or a non-EU country), or even sponsor the returns of the failed applicants. The practical enforcement of the system, however, is yet to be ascertained, as is its workability.

Although the Dublin regulation is to be repealed, a few rules will apply nonetheless, while others are novelties shaped by the 2016 amendment proposal. Generally, the rules for allocation of responsibility to the Member-States maintain the hierarchy set according to the Dublin criteria, particularly one of the most controversial issues – the first country of entry as the default criterion. Also, and contrary to what was envisaged by the 2016 proposal to revise Dublin rules, a some features do remain unchanged, like the sovereignty clause, to which Member-States would still be able to resort to, according to the new proposal. This clause, that allows for a Member State to take responsibility for an application for which it is not responsible in the first place, was an important instrument in the response to the 2015/2016 peak of international protection applications. From the 2016 amendment proposal comes, for instance, a more punitive approach to secondary movements, in order to clearly disincentivise them.

Eurodac is also envisaged by the new proposals. As with Dublin Regulation, much of what is now proposed builds upon the 2016 recast proposals. It does not bring much to the huge step already taken by then in terms of data collection and applicability, namely maintaining the collection of data for children between 6 and 14 years-old, but it additionally foresees the interoperability of Eurodac with other EU databases.

Another matter of concern has been, for a long time, the need to establish monitoring mechanisms in order to oversee the procedure, from screening to return, and its compliance with fundamental rights. Such mechanisms could, among other things, avoid the constantly and consistently documented use of the so-called pushbacks (illegal summary returns determined and executed at the external borders) by several Member-States, assisted by Frontex, as well as other forms of abuse. The New Pact intends to put in place such mechanism but, paradoxically, it leaves the responsibility with the Member-States themselves, though working closely with the Fundamental Rights Agency. It is not very clear, at first sight, how will the independence of such monitoring mechanisms be ensured.

In spite of all the shortcomings, there are some positive features in the proposals. One of the most significant has to do with the European Commission finally taking a stand regarding the Facilitation directive and its implementation by the Member-states, guiding them to distinguish between activities aimed at facilitating irregular entry or transit and activities of humanitarian assistance and inviting them to therefore use the possibility conferred by the directive to decriminalise humanitarian aid. Another positive step has to do with a few promising proposals regarding labour migration and intra-EU mobility, and also the possibility now open for beneficiaries of international protection to obtain long-term resident status after three years, instead of the current five. For purposes of family reunification, the definition of family members will now include siblings and families formed in transit countries, which is also a significant improvement.

All things considered, and in a nutshell, it seems that the new Pact is hardly a fresh start, as promised by the Commission. Instead, it appears that the proposals have mixed a few new ingredients in the same old – and clearly failed – recipes. Some say that it is a pragmatic and realistic approach. However, the disappointment with the proposals does not lie on its lack of lyricism, but mostly on what can be expected in terms of effectiveness and ability to actually manage – more than simply contain – migration flows in to the EU.

Pictures credits: UK emergency medical… by DFID.

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