In the final phase towards a new EU migration system

by | Jan 31, 2024

After a lengthy and hard process, the end of 2023 brought a long-awaited deal: a package of new EU regulations under the name “New Pact on Migration and Asylum”, which had been proposed by the European Commission in September 2020 for a legislative procedure and has been agreed upon by the European Parliament and the Council. The relevance of this agreement is beyond questions, as this is a precondition of a consensus among the EU’s legislative bodies, meaning that without this deal, the laws will never be adopted (see more about the EU legislative process in our earlier analysis, here), and for a long time, differences in the positions of the two EU bodies seemed to be uneasy to overcome. At the same time, all political actors have seemingly tried to avoid this question being on the table at the time of the elections of the European Parliament, scheduled to June of 2024.

The complexity of the situation is illustrated by the fact, that the member states themselves had to work hard on reaching an agreement on their own positions in the legislative process – which then became the position of the Council for the so-called “interinstitutional trilogue” phase of the legislative procedure, which means the negotiations between the Council (member states) and the directly elected European Parliament, before any official voting takes place in any of those institutions. The last deal on the last piece of proposed regulations (the one aiming for situations of crisis) has been born in the Council in October of 2023, opening the way to start the negotiations between the Council and the European Parliament, which has promised to be an uneasy process as the difference of positions between the two legislative institutions were well visible and because of the highly politicized nature of the subject itself. The December deal has brough a somewhat surprisingly quick result of the negotiations: after this the only thing left to do is the formal adoption of these pieces of legislation by both the Council and the European Parliament, concluding the legislative procedure in the first reading.

Usually, it does happen as a formality. Will it happen now, too? Considering the criticism towards the text of the proposal, the fact that there is no publicly available version of the text adopted by the institutions, there is space for doubt. At the same time, every political actor is interested in closing the subject before the campaign period of the European Parliament – which leads towards a common interest in not breaking the deal, but it would not be a surprise to see it still going south, which could then mean the whole process being postponed for the time of the new European Parliament. But this is the worst scenario, currently there seems to be a chance of closing the process before the elections. Once the set of these regulation proposals are formally adopted by the Council and the European Parliament, the pillars of the New Pact on Migration and Asylum will be in place

The system created by the New Pact on Migration and Asylum

The New Pact on Migration and Asylum focuses on three main pillars.

The first one is “Cooperation with International Partners”, meaning that the provisions of the laws in the pact aim to improve cooperation with international partners in the area of migration management. The second pillar is “Asylum and Migration Management”, under which the goal is to seek to establish a common European framework for migration and asylum management, the most novel (and politically delicate) element of which is the inclusion of a new solidarity mechanism among member states, which aims to balance the current system and create clearer rules on responsibility for asylum applications. The third pillar is designed to regulate extraordinary situations: under the proposed new crisis and force majeure regulation, new rules are to be created to prepare the EU for situations of crisis, like sudden raise of numbers of asylum seekers or even situations of “hostile” instrumentalization of migrants, learning from recent events.

With the new rules, the goal is to create a fair, more efficient, and sustainable system for asylum and migration management for the European Union, with a stronger focus on solidarity, responsibility, and respect for human rights – a balance which seems to be nearly impossible to reach. The new rules are designed to manage and normalize migration for the long term, providing certainty, clarity, and decent conditions for people arriving in the EU. Of course, it is not only about the actual rules: the success of the new legal regime will depend heavily on member state execution and implementation (even if we are talking about regulations which are directly applicable), which will be overseen by the upcoming Council presidencies after the final adoption: these are Hungary, Poland, and Denmark – none of which have demonstrated very migration-friendly politics during the recent years. (About the possibility of re-arranging the rotating presidency, read our earlier analysis here.)

The key regulations included in the pact are:

  • Screening Regulation – this regulation aims to create uniform rules concerning the identification of non-EU nationals upon their arrival to increase security within the Schengen area;
  • Eurodac Regulation – based on this regulation a common database will be created gathering more accurate and complete data to be able to identify unauthorized asylum seekers;
  • Asylum Procedures Regulation – this regulation aims to re-design asylum procedures to be more efficient and to establish clear rules on responsibility of the member states and authorities for asylum applications;
  • Asylum Migration Management Regulation – this regulation establishes a new solidarity mechanism among member states to balance the current system and to clear rules on responsibility for asylum applications;
  • Crisis and Force Majeure Regulation – this new regulation aims to ensure that the EU is prepared to face situations of crisis, even unexpected ones, which situations may include cases of instrumentalization of migrants as part of hybrid warfare or political pressure.

The proposed new regulations reflect a new approach to migration from the European Union, which is based on shared responsibility and solidarity, and focused on improved migration management while introducing and applying better asylum processes in the practice, facing new challenges, or even older ones, which have not been handled properly so far.

One of those pressing issues is the management of asylum applications. Under the re-designed rules, the country of first entry is still responsible for the process, based on the Dublin II Regulation, adopted in 2003. At the same time, the proposed new rules will introduce the principle of solidarity among EU member states by allocating asylum seekers more equally and, if needed, providing short-term relief to frontline countries that usually have to bear the main burden of managing migration. At the same time, as many argue, these rules do not address the main causes of migration and do not have any effect on or any strategic idea about how to handle the ever-increasing migration towards the EU. The negotiations on the pact have brought forward many ideas and opinions and contributed to the formulation of far distinct opinions and positions among the legislators, just as well as harsh criticism from outside actors. One example of this is that over fifty NGOs have sent an open letter to the Union legislative bodies, pointing out the human rights risks deriving from specific provisions of elements of the pact in its original form, as proposed by the European Commission, prolonged immigration detention being one of the possible reasons of those.

One definite novelty of the “New Pact on Migration and Asylum in the European Union” is the cementing of the principle of solidarity into law by introducing the issue of shared responsibility by establishing a new solidarity mechanism among member states to balance the current system, in the structure of which only a few countries (frontline member states) have been responsible for the vast majority of asylum applications. The new rules aim to create a legal framework that balances solidarity and responsibility between member states to manage migration effectively and fairly. This new solidarity mechanism includes tailored solidarity responses for specific scenarios, such as relocation of those likely in need of protection and early identification of needs through a yearly foresight report. The pact also facilitates relocation and better monitoring of returnees and tracks support for voluntary departure and reintegration. Additionally, the pact emphasizes better management of external borders, which further strengthens the security dimension of migration management. The rules of the pact also include the concept of so-called “return sponsorship”, which allows member states to support other states by sponsoring the return of migrants without a right to stay in the EU, instead of relocating asylum seekers within the European Union.

Prior to the current political agreement and the actual adoption of the pact, the legislative process had already delivered various results, which have gradually contributed to the creation of a new EU migration system:

The “Recommendation on an EU mechanism for preparedness and management of crises related to migration” has already developed an early warning and forecasting system which allows timely identification of migration situations, enabling swift and effective response. An other recommendation (on cooperation on search and rescue and guidance on non-criminalisation of search and rescue) improves cooperation among member states in managing private vessels involved in operations on the seas. New institutional development has also taken place, as the European Asylum Support Office (EASO) was replaced by the European Union Agency for Asylum (EUAA) with more tools to support member states. In March 2022 the EU Return Coordinator was appointed with the goal to establish an effective, common European return system. The so-called Voluntary Solidarity Mechanism was created, meaning 23 EU member states and some third states have agreed to support member states under pressure on a voluntary basis, with relocations or financial contributions. Since early 2023, more than a thousand asylum seekers’ proceedings have been relocated from Cyprus, Greece, Italy, Malta and Spain.

Most of these introduced novelties will have their legal base created by one or more of the new regulations forming part of the “New Pact on Migration and Asylum”.

Criticism of the pact

As indicated earlier, various criticism have been raised in relation to the new pact.

First, NGOs have expressed serious scepticism, some predicting that its provisions will lead to more deaths and suffering at sea. For example, Amnesty International has stated that the pact will diminish the rights of people on the move, potentially leading to more individuals being put into de facto detention at EU borders, while it also reduces safeguards for asylum seekers, and creates substandard border asylum procedures. Many critics have raised concerns about the potential weakening of the rights of asylum-seekers and have seen some new rules as encouragement of more detention, including of children and families in prison-like centres. Much criticism is being based on the balance between protection standards and the speedy processing of asylum claims. Additionally, the pact has been criticized for potentially allowing member states to opt out of a broad range of asylum rules, which could give possibility for breaches of international obligations under international refugee and human rights law.

The solutions of the pact have also been criticized for not addressing the root causes of migration and for lacking a strategic vision to cope with the increasing flows of migrants into the European Union. Additionally, there are concerns that the pact may not address pressing problems facing asylum systems in the EU, such as underinvestment in asylum and reception systems, unlawful pushbacks, and policies that deny people the right to asylum.

Some resistance towards the pact can be found emanating from fears of weakening sovereignty of member states, by raising somewhat federal-like solutions and forcing them upon member states.

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