The EU Pact on Migration and Asylum represents a complex set of rules on migration and asylum that, taken together, restrict access to asylum in Europe, lower fundamental rights guarantees for people applying for asylum in the EU and keep people in need of protection at the EU’s external border.
In ECRE’s view, this is largely due to three key factors:
- The final Pact texts represent choices that were politically expedient, did not correspond to operational practice and did not take into account lessons learned from the previous reforms of the Common European Asylum System. Worse still, insights and contributions from actors such as NGOs, legal professionals and local authorities who work with people seeking asylum in all EU member states have largely been ignored.
- Although the majority of the Pact instruments are in the form of regulations and thus directly applicable, they are also incredibly complex. The legislation is not always clear and allows for divergent interpretation by EU member states, thus impeding harmonious interpretation. This in turn could make the rules unclear for both the people who are directly affected by them but also for other actors working in the asylum system. As a result, many people may be lost in the transition.
- Many member states are choosing a partial approach to implementing the Pact. They have focused on punitive measures and gone beyond the Pact’s requirements (e.g. regarding detention) whilst simultaneously ignoring their fundamental rights obligations and failing to invest seriously in relevant safeguards such as guarantees for children or the use of vulnerability/special needs assessments.
Two days before the Pact enters into application, it is clearly too early to make any final assessments about its overall implementation. However, ECRE can confirm that Pact implementation is proving challenging and uneven across Europe.
ECRE has made the following initial observations:
- Screening: The screening process – the first step of the Pact – will be critical for the outcome of people’s applications and rights throughout the procedures. In most EU member states, the screening process will be carried out by the police or border guards. It is doubtful that these authorities have the right knowledge and expertise to identify vulnerabilities or that they will be sufficiently prepared for their roles.
- Staffing and personnel: Insufficient numbers of people have been recruited or trained to manage the new procedures, particularly to ensure that safeguards such as vulnerability assessments or health checks are properly enacted.
- Legal counselling: The lack of a clear definition of legal counselling – a new term under EU asylum law – has resulted in variations in both its understanding and organisation between member states. In addition to a lack of clarity about who will be providing legal counselling (state authorities versus NGOs and/or bar associations), questions remain about funding, the precise role of the organisations involved and possible conflicts of interest when state authorities need to manage procedures and advise on them at the same time.
- Reception: Significant critical issues regarding the quality and quantity of reception places remain across Europe. As a result, people in need of protection will continue to face undignified conditions.
- Right to appeal (effective remedies): The right to appeal is worryingly limited in a number of situations, including in the outcomes of screening processes. Acceleration and a lack of automatic suspensive effect in certain procedures will result in unnecessary pressure on member states’ legal and judicial systems, and significant removal risks for people in need of protection.
- Independent monitoring mechanisms: The establishment of independent monitoring mechanisms has been delayed in every member state. As a result, the process of identifying the competent bodies and equipping them with relevant resources and powers will not have been finalised by the time the screening and the asylum border procedure that they are supposed to monitor comes into effect. In addition, civil society organisations have not been included in any monitoring mechanisms.