ECRE has published a comments paper on the Regulation on asylum and migration management.

The aim of the comments paper is to highlight both the major changes from the current (Dublin) system, potential areas of legal uncertainty and legal challenges. It also includes recommendations for the operationalisation of the new rules. It should be read together with ECRE’s comments on the original proposals for the EU Pact on Asylum and Migration, the various documents that ECRE published during the course of the negotiations and the comments papers on some of the other Pact legislation that ECRE will be publishing in the coming months.

ECRE has concluded that, overall, the rules on the allocation of responsibility are very close to the current system, albeit with a reinforcement of the first entry criteria. ECRE remains concerned about the stricter rules on responsibility as they exacerbate unfairness for both EU Member States (MS) on the EU’s external borders and asylum applicants. This will create incentives for irregularity and weak compliance: MS of first entry will have more incentives to neglect their identification and registration obligations and to avoid investing in reception systems, and asylum seekers may resort to irregularity in order to avoid being identified and confined to MS of first entry. Beyond the legal changes, ECRE considers that improvements in the functioning of the system will depend on the wider use of the family criteria and dependency and discretionary clauses, which currently account for an extremely limited number of the total outgoing requests issued by MS.

Considering the increase in responsibility for MS of first entry, ECRE welcomes the fact that solidarity has become mandatory under the new Regulation. The solidarity mechanism creates a “Solidarity Pool” in which MS are required to offer solidarity to those MS that are under migratory pressure. All MS will provide solidarity contributions with the possibility to choose between “primary” solidarity measures in the form of relocations, financial contributions and alternative solidarity measures (capacity support). An annual minimum threshold of 30,000 relocations will be set for the whole of the EU. If either the number of relocation pledges made at the beginning of a given year or the number of relocations implemented at the end of it falls below the 30,000 minimum, the MS that are contributing to the Solidarity Pool will be requested to contribute through “secondary” level solidarity in the form of “responsibility offsets”. MS under migratory pressure may be excluded from accessing the Solidarity Pool if they do not comply with take back procedures. ECRE considers that the high degree of flexibility included in the solidarity mechanism, although certainly necessary to ensure its functioning, will mean that the positive effects on national asylum systems and asylum seekers will be limited, which will ultimately result in a continuation of onward movement. In addition, the number of relocations from which MS under migratory pressure would benefit each year may not offer a proper balance, given that they would become responsible for an increased number of applicants. Similarly, the risk of being excluded from the Solidarity Pool may not provide enough of an incentive for them to improve their national asylum and reception systems.

ECRE maintains that a deeper overhaul of the criteria on the sharing of responsibility would have been necessary and considers that the solidarity mechanism is at risk of falling short of addressing existing needs in terms of solidarity, especially for those MS on the EU’s external borders.

The comments paper is available here.