There are changes aplenty in the EU political scene this year, some confirmed, some under negotiation. A new European Parliament and new governments in 10 Member States, meaning new players (and new games) in the Council. A common theme is the removal of the far right “populists” from institutions and government posts, a bit of welcome house cleaning. Soon there will also be a new Commission, with almost all the nominees now known. But will all of this add up to a new approach to EU asylum and migration policy? There is a window of opportunity to make that happen but it requires smart choices now from the Member State and Commission representatives who will drive EU policy.

There is a fork, a choice between two roads: the first, a continuation of the current strategy; the second, a new direction. The objective of EU strategy since 2016 has been the prevention of migration into Europe, including or in particular of refugees as they are more likely to have to move “irregularly”. To this end, we see an endless recycling of fantastical solutions to Europe’s “migration problem”: external processing, detention in neighbouring countries, return everybody, create an environment so hostile that no-one will want to come (because ‘pull factors’ are drawing them to Europe, even though there is no evidence they exist). This approach both requires and feeds the fear that in turn fuels the far-right populists, rather than making them go away as some claim.

The alternative, the second road, leads to support for a functioning asylum system in Europe, and deploying resources to make it work, and to putting in place an overall migration policy that is (at least somewhat) humane, rational, and serves Europe’s economic interests. To steer Europe onto this second road, there are eight steps to be taken as soon as possible.

1. Withdraw the 2016 asylum reform proposals

The reforms drafted and launched by the Commission in 2016 were based on the objective of preventing access to asylum in Europe, through codifying and universalising the EU-Turkey Deal model. They increased the already unfair responsibilities of the countries at the borders. Despite the European Parliament’s best efforts to improve the proposals, there is no sign that Member States are ready to agree to anything at all, never mind anything decent. The core proposals need to go – better no reform than a bad reform. The later proposal for revision of the Return Directive was also unnecessary and represents a disproportionate and unrealistic focus on return, as ECRE commented. It should also go.

2. Focus on compliance not reform (except for… )

With the Common European Asylum System (CEAS) the EU has a recently updated body of asylum law. The focus should be on compliance with the law on reception conditions, asylum procedures and qualification. Through the AIDA database, ECRE has identified all the areas where improvements are needed – there is years of work there for Member States and a clear agenda for the EU institutions and agencies (See AIDA). The resources of the Commission and EASO in particular should be directed at monitoring and supporting implementation of EU asylum law, not re-writing that law to keep people out and not running around North Africa trying to buy help for Europe.

3. …. Dublin. Where reform is essential

The Dublin rules are flawed, as is widely recognised. The EU’s system for allocation of responsibility for managing asylum claims needs to change but the Dublin IV proposal was not the answer: it did not address the fundamental problem that renders the system dysfunctional – the country of first arrival principle as the default. The political impact of Dublin, particularly in Italy, has the potential to bring down the EU (Prime Minister Salvini anyone?) and while it persists, with no prospect for change, countries in the south will block other much needed plans, such as an agreement on the EU Asylum Agency. They will also have little incentive to improve reception conditions and integration, or to discourage secondary movement. Thus, at very least a discussion on a proper reform of Dublin must begin, to show intent to change. ECRE proposes a period of reflection and discussion rather than jumping into new proposals.

There is a whole industry of people working on alternatives to Dublin; the Parliament has made its proposals; even the Commission prepared a more fundamental reform proposal in 2016, which it decided not to launch, favouring the less ambitious but therefore largely pointless Dublin IV. Thus, options are there to be revived and debated.

Some argue that the Member States are so divided, with some intransigently opposed to solidarity and others as equally insistent on it, that there is no point in trying to reform. But dysfunctional policy cannot be left to fester because it is difficult to change – the EU would have long since collapsed under the weight of the dysfunctional CAP if reform had not be gradually and painfully negotiated and implemented. The Dublin system similarly is the product of political decisions and not an act of God, immutable. It can and should be reformed by political decisions.

In the meantime, Dublin can be implemented in a way that minimises harm through focusing on family reunification (as should happen anyway), using available discretion not to transfer people to Member States with sub-standard asylum systems, and through use of the humanitarian clause to support relocation, see below.

4. Make European values, especially rule of law, priority from day Minus One

The politics of migration and all its accompanying toxicity is used as a distraction technique by tin pot demagogues in Europe as elsewhere. Sure, there is no doubt that most of them really do hate migrants (and minorities and feminists and liberals and progressives and the EU), however their approach also includes attacking democracy by undermining oversight and opposition and destroying the rule of law, through packing courts, re-writing constitutions, ruling by emergency decree and so on. Often, extensive corruption is also part of the picture. The outgoing Commission was starting to take measures which must continue under the next Commission. But even before its first day action is imperative.

Hungary’s nominee for the Commission, László Trócsányi has to be rejected, being someone who has played a central role undermining the rule of law there. Even if the Hungarian government can find an acceptable candidate, there should be no way (in hell) that Hungary takes the Enlargement portfolio for which it is lobbying. This would likely destroy the one successful EU external policy. Enlargement is still – nominally and inter alia – about supporting democratic reform and consolidation of the rule of law, although its success is undermined by what happens after countries join the EU. To give this policy area to an Orbán crony would be farcical and the interplay with migration could be lethal – metaphorically and literally. Given the number of people in limbo in South East Europe, the countries of the Western Balkans need functioning asylum systems – Hungary is hardly the model to follow.

5. Bolster the Justice Commissioner and choose wisely

It is currently unclear what will happen to the rule of law work carried out by Timmermans as Vice President in the outgoing Commission. Given repression of civil society across the EU, as documented by its own agencies and institutions, this work must be stepped up, along with the use of financial, legal and political sanctions against miscreant Member States. That requires a strong Commissioner with the stomach for a fight. Rule of law could remain with a VP or be combined with the justice portfolio – or both.

Depressingly, not a single Member State has expressed an interest in these responsibilities. If this is a leftover dumped on an unenthusiastic candidate who was hoping for “digital policy” then civil society will be in trouble, including ECRE members in at least four EU countries where they face serious dangers, up to and including crippling fines, prison, and never-investigated death threats, just for doing their jobs. Criminalising and restricting civil society, including through the EU’s own Facilitation Directive, is suppressing the positive societal response to migration which we are then told to campaign for.

6. Implement the Mediterranean disembarkation agreement

In the short-term, and in the absence of the necessary reform of Dublin, temporary mechanisms are needed to mitigate some of its damaging effects. For example, countries are refusing to allow rescue ships to dock in part because Dublin renders them alone responsible for the persons rescued. In July, a preliminary agreement on the situation in the Mediterranean was brokered by France with fourteen countries willing to be involved. Although details are not yet available, it appears to be in line with the plan ECRE has been promoting for the last year, covering a division of responsibility for disembarkation and a relocation mechanism. The Commission should facilitate continued negotiations and then implementation of the agreement. A meeting is planned for Mid-September. That requires a switch away from its focus on trying to get North African countries to join an agreement and accept ships (even though they are not places of safety), and trying to convince European countries to accept “controlled centres” (i.e. “hotspots”: i.e. detention centres) for disembarked persons, both of which have hampered rather than supported an agreement.

7. Review and revise the EU-Turkey Deal

ECRE has spoken out against the Deal from the start, and highlighted its multiple negative consequences. Many policy-makers, however, remain convinced of its “success” and unable to see that there were and are alternatives (such as the EU legislation designed specifically for situations of large-scale arrival of refugees, the Temporary Protection Directive). There will thus be a reluctance to abandon the Deal. Nonetheless, after three years of an “exceptional” and “temporary” measure it should at least be reviewed and revised. Certain elements which are not essential can be removed. Just for starters get rid of containment of people on the islands in Greece, which is an ongoing scandal – as EU policy-makers know better than anyone as they have access to all areas, and remove the nasty one-for-one abomination supposed to give “bad” Syrians a disincentive for crossing which it doesn’t (see previous comments).

8. Funding for inclusion (integration)

While the Commission will take some time to get up and running, the EU budget negotiations wait for no-one. Proposals are out, negotiations are underway, and deals are being done. Funding matters because it is a way for the EU to exert power and to create change, particularly in areas where it lacks competence (i.e. law-making power) or where political divisions make progress difficult. This takes us to inclusion (“integration” in EU terms), a national competence but one where EU funding could be provided.

Two political objectives should be pursued: (1) earmarking significant funding for integration across the funding programmes; (2) channelling the money to those who actually work on and believe in and have practical expertise on integration. This means setting spending requirements in the AMIF, ESF and other funding instruments, rather than allowing or indeed encouraging Member States to plough all their money into return, and, for point (2), allocating a higher percentage of funds to local authorities, civil society, including migrant and refugee-led organisations, and not giving so much of it to central governments, especially ones that flagrantly violate EU and international law. These measures are needed to counter the strategic use of destitution by some anti-migration politicians.

ECRE, working with PICUM and UNHCR respectively, has prepared detailed analysis and recommendations on how this can be done in practice – it lies in the design of the rules, the legal instruments and mechanisms for managing funds – but the direction has to be set by the leadership and driven by the Commission.

Tangential issues where clear political direction would also help are rule of law conditionality on EU funding and simplification of funding rules (a perpetual, mountainous task, but see tackling dysfunctionality above). And money is of course but a fraction of the picture when it comes to inclusion. A precondition – THE precondition – is a stable and enduring legal status. Which takes back to point 1), and the key role for the EU.

On the Road to Nowhere

Unfortunately, there are those already promoting a continuation along the first road, which we might term the ‘road to nowhere’, and not least for refugees on the move, who end up contained, detained and separated from family members. ECRE has commented that the “Strategic Agenda” put forward by the outgoing Council President as hysterical and counter-productive. It is unclear the line the new Council President, Charles Michel, will take. On the one hand, he presided over a government in Belgium that allowed a populist minister to run amok on asylum and migration. On the other, he was greeted like a rock star in Marakech when he sunk his own government by insisting on signing the Global Compact on Migration.

More recently, incoming Commission President, Ursula von der Leyen asked all Commission Directorates General to provide their priorities to inform her planning; she received a mixed bag of suggestions from DG Home on asylum and migration. Withdrawal of some of the 2016 proposals, including Dublin IV (good); the suggestion that the answer to Dublin might be something more radical than “new Dublin” (possibly good as a way to extract the debate from path dependency); maintain two proposals: RCD and QR (bad – these proposals constitute a substantial lowering of protection standards and bring no added value); “shortly” relaunch amended versions of withdrawn proposals (very unlikely to be good – no more new proposals for now); a Communication on the “most political and controversial elements” of the withdrawn proposals for consultation (surely highly unappealing to everyone); the launch of one combined procedural regulation (intended to simplify but unlikely to do so and carrying the risk of a relaunch of the universal second-class border procedure as a “solution” – see ECRE Policy Note). There are also unclear but probably risky suggestions that appear to bring together Schengen and Dublin. If the Commission leadership decides to change course, it would do well to select just a few of these elements, most of which represent more of the same, and risk again leading to endless discussions on reforms that are not needed.

What should be firmly rejected outright is the suggestion in the DG Home mixed bag that migration should be one of three EU foreign policy priorities. First, why is DG HOME commenting on EU foreign policy? Second, to follow this suggestion would mean continued capture of external policies by short-term migration prevention objectives. This is counter-productive and destroying Europe’s relations and reputation in Africa. EU external policies have huge potential to prevent forcible displacement if they are left to do what they are supposed to do – supporting development, trade and security.

Who needs to compromise?

The argument will no doubt be made that this second road is all very well but compromise is needed in the era of populism, rather than NGOs and their idealistic proposals. This would be a fundamental misreading of the two options: politics has become so distorted that people no longer see that this second path, the status quo, already consists in compromises. Human rights NGOs and activists, ECRE included, promote far more radical and progressive options: Europe massively increasing the numbers of refugees it resettles; greater freedom of movement for displaced people; a very different balance between rights and borders; a deeper revision of EU asylum law and practice to fully respect the Refugee Convention; a revision of international and European law to expand protection, creating protection for more forcibly displaced people (those fleeing violence, climate change etc); significant increase in search and rescue, and so on.

Focusing on compliance to make asylum policy function in Europe is a compromise because the legal framework is far from perfect; simply respecting international law by allowing ships to dock and allowing people access to asylum is the minimum that should be done. Arguing for coalitions of the willing is hardly ideal – all 28 should respect EU and international law and show solidarity with people on the move and each other. The proposals suggested on disembarkation are themselves further compromises in the face of ongoing humanitarian disasters. Embarking on this second road is not therefore the way to radical “open border” land. It is in the middle ground.

Which road will they choose?

During the next five years, there will be lots of decisions, lots of fights and no doubt many crises – real, imagined and manufactured – on migration. But it won’t destroy the EU – unless the mainstream politicians play into the hands of the extremists and continue to follow a road of unrealistic and inhumane non-solutions. Instead, facing the fork in the road, these are just some of the decisions that could be taken in the short term to orientate the EU firmly on the right road.

Editorial: Catherine Woollard, Secretary General for the European Council on Refugees and Exiles (ECRE)


Photo: (CC) Prayitno, February 2010

This article appeared in the ECRE Weekly Bulletin . You can subscribe to the Weekly Bulletin here.