Inês Neves (Lecturer at the Faculty of Law, University of Porto | Researcher at CIJ | Member of the Jean Monnet Module team DigEUCit ) and Rita Ferreira Gomes (Associate at Morais Leitão)

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Setting the scene

From 2020 onwards, migration and asylum have been central to both national and European Union (‘EU’) political agendas. 2023, however, was key and ended with major challenges for 2024.

By the end of 2023, the European Parliament and the Council had reached a political agreement on several key proposals included in the (New) Pact on Migration and Asylum[1] (‘New Pact’), in particular, Proposals for Regulations: i) introducing a screening of third country nationals at the external borders[2] (‘Screening Regulation’); ii) on the establishment of ‘Eurodac’[3] (‘Eurodac Regulation’); iii) on a common procedure for international protection in the Union[4] (‘Asylum Procedures Regulation’); iv) on asylum and migration management[5] (‘Asylum Migration Management Regulation’), and v) addressing situations of crisis and force majeure in the field of migration and asylum[6] (‘Crisis and Force majeure Regulation’).

Some question whether “the legislative proposals [will] have the same fate as the reform package that had been presented by the Commission in 2016”[7]. Others see the New Pact as a final opportunity to get it right, or at least deserving of “a chance to succeed”[8]. In her 2023 State of the Union speech, President von der Leyen referred to a “historic opportunity to get it over the line”, and compassionately, urged us all to get it done and prove that “Europe can manage migration effectively and with compassion”[9].

Given these divisive positions, it is fair to assume that 2024 will be as important, if not more so, than 2023, especially from a political perspective.

Between 6 and 9 June 2024, EU citizens will be called to the ballot for the European elections. Migration is anticipated to be “a lightning rod issue for politicians, who are well aware of the power of rhetoric on the topic”[10]. The European Council on Foreign Relations (‘ECFR’) labels it as a new “crisis tribe”, replacing the divisions of left and right, and pro- and anti- European integration attitudes[11].

Considering the European Union’s unique and advantageous position as a rule-setter, it is crucial for EU citizens and politicians to comprehend the significance of the New Pact on Migration and Asylum. While it does not supersede the individual Member States or the cultural and socioeconomic contexts unique to each of them, which cannot be disregarded by claiming a hierarchy of values or freedoms, it is undoubtedly a significant development that should be supported.

Above all, it must be properly understood as an attempt to do something remarkable: to protect migrants and asylum seekers without ignoring EU’s citizens and Member States’ capacities.

The New Pact on Migration and Asylum, which was (mostly) politically agreed upon in December 2023, is examined here as a significant political issue that involves conflicting rights and values. The purpose is to present it as an influential political question, under a framework of complexity. For the sake of completeness, the text does not aim to provide a thorough and detailed analysis of each building block of the New Pact.

Migration and asylum as political questions

Managing migration and asylum is complex due to the intersection of rights and politics, where different values come into play in a context of pluralism rather than consensus. In conditions of fear and exclusion, people tend to resort to shortcuts of polarisation and fragmentation, instead of engaging in (a difficult) dialogue. However, despite their complexity, migration and asylum are realities that must be managed while upholding important rights and values, not only for those who come but also for those already here.

That is why migration and asylum are also political and policy issues, particularly in the present day.

First, the right to protection and openness towards other(s), which migration and asylum entail, require a reserve of the possible, as all politics are characterised as the “art of the possible” (in the words of Otto von Bismarck). From the outset, it is important to acknowledge the varying capacities of states to respond to migratory flows, which perhaps highlights the need for mandatory solidarity, even if approached flexibly in the New Pact.

Secondly, migration and asylum are political issues that involve conflicting values and fundamental rights (with positive and negative religious freedom at the centre), which can influence citizens’ voting behaviour and preferences. Again, the negative narrative of fear can only be addressed through a dialogue of values which should not be confused with simple ghettoisation (of those who enter and wish to preserve their own values) or silencing (of those who are here and are to be recognised their freedom, both positive and negative).

Thirdly, migration and asylum remain political issues for concerning reasons. They can quickly become political weapons, not necessarily as weaponised migration, in the sense that it has come to the EU following the “sponsorship” of mass irregular migration by the Belarusian government, but as a sharp division in political discourse. Between those who exploit populist narratives of fear and mistrust and those who remain silent due to the fear of biased interpretations in a context of cancellation of freedom(s), exacerbated by simplistic rhetoric. Finally, there is a feeling of powerlessness when faced with the dilemmas of a reality which often outweigh the answers.

The recent election results in Sweden[12], Switzerland[13], and the Netherlands[14] show that some issues cannot be relegated to taboo subjects. They also highlight the importance of addressing them (properly and thoroughly) and the consequences of ignoring them.

In the EU, migration and asylum are likely to be just as central, especially in the run-up to the European Parliament elections in June 2024. In particular, the New Pact on Migration and Asylum is seen as a final opportunity after failed attempts at reform. Although the situation may not be a crisis, it is right to speak of a state of emergency.

Understanding the New Pact on Migration and Asylum: a timeline

Since the refugee crisis in 2015-2016, the EU has been attempting to address the increase in irregular migration and mixed flows of refugees and migrants.

In 2016, the European Commission proposed reforms to the Common European Asylum System (‘CEAS’) to establish a more effective and sustainable framework for distributing asylum applications among Member States. The aim was to simplify and shorten the asylum procedure and decision-making processes, while also improving the harmonization and coherence of the EU’s approach. This was particularly important given the growing tension between Member States, some of which had started closing or introducing checks at their borders. Dimitris Avramopoulos, Commissioner for Migration, Home Affairs, and Citizenship, referred to it as “the closing piece of a comprehensive reform of the EU’s common asylum system”[15].

However, this was not even the beginning of the end of the story. The reform of the CEAS reached an impasse in the interinstitutional negotiations. As a result, on 23 September 2020, the Commission was forced to present its ‘New’ Pact on Migration and Asylum. This legislative package aims to amend and complement the 2016 efforts and includes several legislative proposals on internal migration, asylum management, return policies, legal pathways, and integration. A package approach is followed, adhering to the principle of “nothing is agreed until everything is agreed”[16].

It was not until the end of 2023 that a major political agreement was reached. Nonetheless, there were important developments in both 2021 and 2022.

Specifically, the Blue Card Directive[17] was adopted in 2021 and is now in effect. It further harmonizes the conditions of entry and residence for highly qualified workers and increases the attractiveness of the EU Blue Card, which “gives highly-qualified workers from outside the EU the right to live and work in an EU country, provided they have higher professional qualifications, such as a university degree, and an employment contract or a binding job offer for at least one year with a high salary compared to the average in the EU country where the job is”[18]. In particular, it provides for more inclusive admission criteria, while also facilitating intra-EU mobility and family reunification, in addition to the simplification of procedures for recognized employers.

In 2022, the EU Agency for Asylum (‘EUAA’)[19] replaced the European Asylum Support Office (‘EASO’) as a fully-fledged EU agency. Its competences include offering operational and technical support to Member States and ensuring consistency in international protection application assessments.

Additionally, in 2022, the Parliament and the Council reached a final agreement on three important files: i) the Proposal for a Regulation on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted[20] (‘Qualification Regulation’); ii) the Proposal for a Directive laying down standards for the reception of applicants for international protection[21] (‘Reception Conditions Directive’), and iii) the Proposal for a Regulation establishing a Union Resettlement Framework[22] (‘Resettlement Framework Regulation’).

Although targeted at different realities, these acts share common objectives. These include i) greater convergence and harmonisation in terms of the type of protection (social security and assistance for instance), as well as reception; ii) further inclusion and integration by making access to certain types of social assistance conditional on the participation in integration measures; and iii) stricter rules to sanction secondary movements. As for resettlement, iv) existing ad-hoc schemes are replaced with a permanent framework that provides for legal and safe pathways to the EU, reducing the risk of massive irregular arrivals in the long term. Additionally, there is an objective to v) support third countries that host many people in need of international protection.

However, as previously said, it was not until 2023 that most of the political agreements were reached.

First, on the revised Single-Permit Directive[23], which establishes a single application procedure for third-country nationals to obtain a combined EU work and residence permit (a ‘single permit’), while giving Member States the final say on which and how many third-country workers they want to admit to their labour markets[24].

Then, a political agreement was reached on five key asylum and migration proposals[25].

The Screening Regulation focuses on identifying non-EU nationals upon their arrival. This is done through health and security checks, fingerprinting, and Eurodac registration. The Regulation i) streamlines the procedure and sets strict deadlines for the identification of non-EU nationals upon arrival; ii) introduces a pre-entry screening procedure (at external borders) enabling national authorities to guide irregular third-country nationals to the appropriate procedures, either asylum or return; and iii) obliges Member States to set up an independent mechanism to monitor fundamental rights during the screening process.

The Eurodac Regulation establishes a common database to detect unauthorised movements and allows Member States to record and search data of third-country nationals or stateless persons who are irregularly staying in the EU. The proposal extends the scope of the database by adding new information such as biometric data and facial images. These changes are aimed at facilitating the identification of irregular migrants or asylum seekers for the purposes of return and readmission, and will have to comply with the future Artificial Intelligence Act.

The Asylum Procedures Regulation aims to improve speed and effectiveness of asylum, return, and border procedure by introducing a common asylum procedure across the EU. The proposal streamlines procedural arrangements, including admissibility and accelerated examination procedures, while also ensuring a balanced approach to the obligations and rights of asylum seekers. Although there are strict time limits for lodging applications and appeals, and a range of obligations that applicants must comply with, they are entitled to interpreter services, legal assistance, and representation throughout the asylum procedure. Unaccompanied children are also entitled to mandatory guardianship.

The Asylum Migration Management Regulation replaces the current Dublin III Regulation[26], and clarifies the responsibility criteria and rules for the transfer of an applicant. It also introduces a mandatory solidary mechanism among Member States to support those that cannot cope with the number of irregular arrivals into their territory. The support or contributions may include relocations, financial contributions, or alternative solidarity measures, such as sponsoring the return of illegally staying third-country nationals or supporting capacity-building in pressured Member States or non-EU countries. In other words, flexibility or some degree of freedom is allowed in determining the specific support or contributions.

Finally, the Crisis and Force majeure Regulation, which seeks to solve, among others, the problem of the instrumentalisation or weaponisation of migrants, allows deviations from certain procedures, solidarity duties and deadlines during crisis (defined as “an extraordinary mass influx of third-country nationals threatening a Member State’s asylum, reception, or return systems”[27]) or force majeure.

A political agreement put to the test: fears and challenges

Although some have hailed the New Pact as a “major progress”[28] and a “historic agreement”[29], it has faced criticism and scepticism, in particular from refugee and exile protection Non-Governmental Organisations[30]. The main concerns relate to the ‘realpolitik’ behind the streamlined and simplified procedures, strict deadlines, and vague concepts[31].

It is also important to note that although this issue has a European dimension due to its complexity and the principles it seeks to promote, its effects are primarily felt at the Member State level.

In particular, the primary responsibility for ensuring that the protection of some does not neglect the protection of others (in a vision of tolerance as respect) lies with the Member States. In addition, financial burdens may require funds that are not equally available to all EU Member States, even with the support of the EU. Moreover, the position and sentiments of Member States, particularly the ‘Frontier Countries’ and the ‘Visegrád countries’, towards migration should not be conflated. Finally, there is the question of whether to refugee protection “here or there?”[32], particularly in a context of strong dependency on third countries’ cooperation and foreign policy dilemmas.

As a result, it is fair to say that the success of the new Pact will not be measured solely by a political agreement. Instead, its strength will mostly depend on how it is applied in practice. To ensure successful enforcement, it is important to avoid being swayed by simplistic rhetoric, which is not exclusive to either the right or left but rather something they both share, even if with antagonist perspectives.

Ultimately, the task at hand is to manage and differentiate between various realities, such as asylum and migration; legal and illegal migration; and a safe and efficient political-legal framework that considers rationality, capacity, and social inclusion, on the one hand, and a flawed framework that pretends to respond to everything, on all fronts, on the other.

The list could continue, highlighting the contrast between humanitarian search and rescue operations and organised criminal groups of smugglers and traffickers. Not to mention the difference between establishing partnerships with third countries (of origin, transit and destination) in order to strengthen capacities and promote information campaigns, and the rush to conclude agreements of dubious effectiveness and questionable legitimacy.

In conclusion, with regard to migration and asylum and the New Pact in particular, it is crucial to remember the statement made by Ylva Johansson, the Commissioner for Home Affairs, “My guess is that I will have zero member states saying it’s a perfect proposal, […] But I do hope that I’ll also have 27 member states saying it’s a balanced approach and let’s work on this… It’s about realising we have a common problem and we have to manage it together”[33].

Migration and asylum are complex issues that require careful consideration and management, and cannot be simplified through mere speeches.

Some of the complexity can of course be reduced with the support of policy and law from Member States and the Union. However, it is important to adhere to the premises of rights and values. It is important to have a realistic perception of what is possible and to anticipate the possible consequences of forgetting the national community of persons and the European community of values.

Maintaining silence will only exacerbate the current status quo, where a few signal failures and problems using simplistic and often inhumane frameworks as a political weapon.

Let us not turn what is (also) a political question into (just) a political war.

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[1] See European Commission, “New Pact on Migration and Asylum: Questions and Answers”, Questions and Answers, 23 September 2020. Available at: https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1707.

[2] Proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817, COM/2020/612 final. Available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A52020PC0612.

[3] Proposal for a Regulation of the European Parliament and of the Council on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person], for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (recast), COM/2016/0272 final – 2016/0132 (COD). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0272.

[4] Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM/2020/611 final. Available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A52020PC0611.

[5] Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund], COM/2020/610 final. Available at: https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A52020PC0610.

[6] Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum, COM/2020/613 final. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020PC0613.

[7] Daniel Thym, “Never-Ending Story? Political Dynamics, Legislative Uncertainties, and Practical Drawbacks of the ‘New’ Pact on Migration and Asylum” in (Hrsg. Daniel Thym, Odysseus Academic Network) – Reforming the Common European Asylum System: Opportunities, Pitfalls, and Downsides of the Commission Proposals for a New Pact on Migration and Asylum, pp. 11-32, Nomos, Baden-Baden, 1. Auflage 2022, doi.org/10.5771/9783748931164, p. 12.

[8] Editorial Board, “Europe’s Migration Plan Deserves a Chance to Succeed”, Bloomerg, 22 January 2024. Available at https://www.bloomberg.com/opinion/articles/2024-01-22/migration-eu-s-new-asylum-pact-a-step-in-the-right-direction.

[9] European Commission, “2023 State of the Union Address by President von der Leyen”, Press Release, 13 September 2023. Available at: https://ec.europa.eu/commission/presscorner/detail/en/speech_23_4426.

[10] Eleonora Vasques, “Electoral rhetoric and reality of migration set to clash again in 2024”, EURACTIV, 11 January 2024. Available at: https://www.euractiv.com/section/politics/news/electoral-rhetoric-and-reality-of-migration-set-to-clash-again-in-2024/.

[11] Ivan Krastev, Mark Leonard “A Crisis of One’s Own: The Politics of Trauma in Europe’s Election Year”, European Council on Foreign Relations Policy Brief, January 2024. Available at: https://ecfr.eu/wp-content/uploads/2024/01/A-crisis-of-ones-own_The-politics-of-trauma-in-Europes-election-year-v2.pdf.

[12] Nimo Omer “Thursday briefing: What’s behind Sweden’s lurch to the right”, The Guardian, 15 September 2022. Available at: https://www.theguardian.com/world/2022/sep/15/first-edition-sweden-far-right-election.

[13] Bartosz Brzeziński, Nicolas Camut “Swiss election results: Far right dominates after anti-immigration campaign”, Politico, 22 October 2023. Available at: https://www.politico.eu/article/switzerland-anti-immigrant-party-projected-make-record-showing-election/.

[14] Gareth Vipers and Laurence Norman “Far-Right Populist Geert Wilders Scores Major Victory in Dutch Election”, The Wall Street Journal, 23 November 2023. Available at: https://www.wsj.com/world/europe/anti-immigration-politician-geert-wilders-scores-major-victory-in-dutch-election-8b13bca4.

[15] European Commission “Completing the reform of the Common European Asylum System: towards an efficient, fair and humane asylum policy”, Press Release, 13 July 2016. Available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_16_2433.

[16] Daniel Thym, cit., p. 18.

[17] Directive (EU) 2021/1883 of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment, and repealing Council Directive 2009/50/EC, PE/40/2021/REV/1, OJ L 382, 28.10.2021. Available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32021L1883.

[18] European Commission, “EU Immigration Portal: Essential information”. Available at: https://immigration-portal.ec.europa.eu/eu-blue-card/essential-information_en.

[19] Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, PE/61/2021/REV/1, OJ L 468, 30.12.2021. Available at: https://eur-lex.europa.eu/eli/reg/2021/2303/oj.

[20] Proposal for a Regulation of the European Parliament and of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, COM/2016/0466 final – 2016/0223 (COD). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0466.

[21] Proposal for a Directive of the European Parliament and of the Council laying down standards for the reception of applicants for international protection (recast), COM/2016/0465 final – 2016/0222 (COD). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0465.

[22] Proposal for a Regulation of the European Parliament and of the Council establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and the Council, COM/2016/0468 final – 2016/0225 (COD). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52016PC0468.

[23] Proposal for a Directive of the European Parliament and of the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (recast), COM/2022/655 final. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2022%3A655%3AFIN&qid=1651221925581.

[24] European Commission, “Commission welcomes political agreement on revised rules for a combined work and residence permit in the European Union”, Press Release, 20 December 2023. Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6710.

[25] Directorate-General for Migration and Home Affairs, “Historic agreement reached today by the European Parliament and Council on the Pact on Migration and Asylum”, News Article, 20 December 2023. Available at: https://home-affairs.ec.europa.eu/news/historic-agreement-reached-today-european-parliament-and-council-pact-migration-and-asylum-2023-12-20_en.

[26] Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 180, 29.6.2013. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02013R0604-20130629.

[27] Article 1(2), Crisis and Force majeure Regulation. Available at: https://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2020/0613/COM_COM(2020)0613_EN.pdf.

[28] European Commission “Commission welcomes the major progress achieved by Parliament and Council on the New Pact on Migration and Asylum”, Statement, 20 December 2023. Available at: https://ec.europa.eu/commission/presscorner/detail/en/statement_23_6708.

[29] European Commission: Directorate-General for Migration and Home Affairs, “Historic agreement reached today by the European Parliament and Council on the Pact on Migration and Asylum”, News Article, 20 December 2023. Available at: https://home-affairs.ec.europa.eu/news/historic-agreement-reached-today-european-parliament-and-council-pact-migration-and-asylum-2023-12-20_en.

[30] The UN Refugee Agency “On the European Commission Proposal for an Asylum Procedures Regulation – COM(2016) 467” UNHCR Comment, April 2019. Available at: https://www.refworld.org/pdfid/5cb597a27.pdf. See also European Council on Refugees and Exiles “Relying on a Fiction: New Amendments to the Asylum Procedures Regulation: a summary of ECRE’s comments on the new amendments to the APR in COM(2020) 611 and recommendations for the Co-legislators”, Policy Note, 2020. Available at: https://ecre.org/wp-content/uploads/2020/12/Policy-Note-29.pdf.

[31] European Commission: Migration and Home Affairs “The Reception Conditions Directive”. Available: Reception conditions – European Commission (europa.eu). The term ‘crisis’ is an example of such concept, which can be misused by Member States as an escape valve.

[32] Alexander Aleinkoff and David Owen “Refugee protection: “here” or “there”?” (2021) European University Institute. Available at: https://cadmus.eui.eu/handle/1814/72200.

[33] Apud Euroactiv Network “Member states to clash over the EU’s new migration pact”, 24 September 2020 (updated 12 oct. 2020). Available at: https://www.euractiv.com/section/politics/news/member-states-to-clash-over-the-eus-new-migration-pact/.

Picture credits: Photo by Vincent Albos on Pexels.com.