ECRE views the EU’s approach to the Ukraine displacement crisis, including the decision to activate the TPD, as very positive, notwithstanding the serious implementation challenges and differing responses in the Member States. While it may seem too early to extract lessons to inform the wider management of asylum system systems in Europe, that has to be done, and not least because the TPD is part of the Common European Asylum System (CEAS). It is there to relieve pressure in order that the system can function effectively – not to generate a two-tier system. In addition, while the Ukraine crisis continues there appears to be movement on the reform proposals which all in any case remain on the table. Indeed, the table is groaning under the weight of the mountain of proposals launched in recent years.

Legislative proposals that fully or partially cover asylum law include the remaining proposals in the 2016 asylum package, the legislative reform proposals in the Pact, the 2021 Instrumentalisation package, and the Schengen Borders Code reform proposals. In the two years that remain of the European Parliament and European Commission mandates, it is impossible that all these proposals are agreed by the co-legislators and integrated into EU law, and not least because they are overlapping and contradictory in some cases. The two-year limit is also set by the run of EU Presidencies to follow France: Czech Republic, Sweden, Spain and Belgium, which will mostly try to make progress. They are followed by Hungary, Poland and Denmark.

The EU was already in the territory of “mini-deals” – that is, agreements on certain elements of the package(s) that have been put forward rather than on all the proposals. The deal on the EUAA signalled this as the way forward. Even for the Pact, which was presented as comprehensive framework, the whole set of proposals won’t go through, with RAMM, APR and Crisis Regulations looking least likely to move.

Two separate questions arise: what are the possible options for agreements that could be reached? And which elements from the reforms should and should not be pursued, inter alia given the response to the Ukraine crisis?

While ECRE’s preference would be a deeper re-thinking in the light of this year’s events, there are a number of approaches moving forward.

The Gradual Approach

First, “the gradual approach” which has been developed by the French Presidency and on which an agreement is sought this month – and according to rumours, likely to be agreed next week in the JHA Council. The gradual approach, simply put, involves agreement on the Screening Regulation and Eurodac on one side and, in exchange, a voluntary solidarity mechanism for countries at the borders. The hope of the French is to have agreed Council positions on Screening and Eurodac in the form of (Partial) General Approaches, which are binding on the Member States (usually – there are examples of where Member States rescind, including France in recent times). That would then be the Council’s position to be negotiated with the co-legislator, the European Parliament.

The details are all under discussion in confidential settings but some elements can be discerned from the outside. On the solidarity mechanism, it will include relocation as the main form of solidarity, as well as financial contributions. However, it is already clear from the Member State discussions that there will be no mandatory solidarity. The EUMS already offering relocation have suggested that they will continue to do so (France, Germany, Ireland, Luxembourg and Portugal) those strongly opposed have underlined that they won’t, and emphasise that the mechanism must be voluntary (Austria, Czechia, Denmark, Poland etc). The scope of the mechanism seems to cover the Mediterranean, Cyprus and Greece. Crucially, the mechanism will be restricted to those “in need of protection” which is a serious limiting factor, because it suggests that a filtering which pre-empts the asylum procedure might take place to make a rough determination of protection needs. There is then the risk of Member States “cherry-picking” applicants. Overall, it means less support to the countries of first entry than a wider scope.

An additional element that may or may not be integrated relates to the objective of implementing Dublin, suggesting that solidarity contributions will be reduced in the case of significant onward movements or refusals to accept take-back requests.

Even without this element, a challenge is that the deal is skewed. There is a clear imbalance in the status of the two offers – the Screening Regulation and Eurodac are pieces of legislation, giving rise to binding legal obligations, and a (Partial) General Approach locks in the Member States’ collective position. On the other side, is a limited, voluntary solidarity mechanism, that certain Member States will never contribute to and which falls short of providing a predictable, fair and clear relocation mechanism that ECRE has argued for. Indeed, the declaration is better described as a statement of intent than a mechanism to be applied.

Is this enough to convince the external border countries and in particular the Med 5? France has made significant efforts to convince Spain and Italy to back the gradual approach deal, but with elections next year in the two countries, it’s not clear that they would accept something that increases their role and does little to change the overall rules on responsibility allocation. The fact that the solidarity mechanism is supposed to start work straightaway might help – that part of the agreement will be in place by the time of the elections, whereas the Screening Regulation will be a long way from being adopted and also requires Parliament’s support. There is also a risk that future governments renege on any agreement made now.

The Schengen Approach

The second deal that might work is the Schengen approach. Rather than, or as well as reforming the asylum acquis, changes could be effected through amending the Schengen Borders Code (SBC). The French Presidency also hopes to get agreement from the Member States next week on a (Partial) General Approach to the SBC. Here, the Member States have put forward proposals to worsen the already bad amendments proposed by the Commission.

This includes a broadened definition of instrumentalisation of migrants by suggesting it can be caused not only by third country governments but also non state actors. While there is an exemption of humanitarian actors and of actors involved in smuggling when there is no “aim to destabilise the Union or a Member State” included in a newly added recital, the vague formulation leaves a lot of room for interpretation and means that a much larger range of circumstances could be qualified as “instrumentalisation” where related derogations from EU asylum law could apply. The proposed compromise text also includes provisions to restrict access to asylum at borders in different circumstances, expands the grounds for identify checks which increases the danger of racial profiling and increases the potential use of the transfer procedure at internal borders, thereby encouraging a Member States practice which has been frequently deemed unlawful in national courts. Attempts to amend the legal framework so that internal border checks can continue to persist (rather than reinforcing their exceptional character) form part of the proposed agreement.

It seems that at least in some Member States, reluctance to hastily approve positions with far reaching implications on access to asylum and free movement in a supposedly border free Schengen area is rising. Let’s hope that these considerations are not brushed off in the rush to get a deal on Schengen.

The SBC amendments could run in parallel to the gradual approach – it is the intention of the French Presidency.

The Instrumentalisation Approach

A third possible deal, and the worst of the approaches, is the instrumentalisation approach, taking forward the Regulation on addressing situations of instrumentalisation (the Instrumentalisation Regulation), based on allowing derogation from the law in situation of instrumentalisation by third parties. There is some overlap with the Schengen approach because the definition of instrumentalisation is contained in the SBC amendments. If they are adopted, as seems likely, it codifies this toxic concept in the EU legal framework. There are major problems with the proposal, as ECRE has described, however it is receiving a lot of positive comment from the Member States (who doesn’t want to derogate from EU law?) The SBC amendments would open the door to the Instrumentalisation Regulation which creates the derogatory regime for these situations. Although it may seem unlikely that a later proposal moves forward instead of the (remaining) 2016 proposals and the Pact, the conflicts among Member States over responsibility sharing and solidarity versus border containment and “secondary” movement haven’t been resolved and they be able to reach unity on instrumentalisation instead. The (lack of) reaction to events at the border with Belarus, including legislative changes to legalise pushbacks, and the ongoing violations with impunity at many borders, suggest unfortunately that an approach that allows for restrictions and derogations, and seeks to legalise bad practice, will find favour among the Member States at least. But probably not at Parliament.

The Pact-Package Approach

That lead to the discussion of a fourth approach – that being pursued by the other co-legislator, the European Parliament. Nominally, Parliament’s approach is to continue with its examination of all the Pact files, and it remains committed to the package approach, meaning that nothing should be agreed until everything has been agreed.

Below the surface, however, all kinds of complex dynamics are at play. In contrast to the 2016 package, it is proving much harder for Parliament to arrive at joint positions – and the positions that it is developing are much less supportive of asylum and indeed less supportive of an EU approach than under the previous parliament. This is not due to an increased presence or assertiveness on the part of the Far Right political groups (which remains stable compared to the last Parliament). It is largely due to the increasingly extreme positions taken by the centre-right EPP group, and its willingness to work with the Far Right.

While disappointing, it perhaps predictable that the EPP takes this position. Surprising, to say the very least, is that the supposedly centrist Renew Europe (liberal) political group is also willing to enter alliances with the anti-EU, anti-asylum extreme right political groups – and even to adopt their positioning on some issues. Reaching compromises is thus a challenge; the state of affairs on the central RAMM file and related APR file is indicative of these developments.

Assessing and improving the “approaches”

The package approach is potentially the worst approach unless a deep and appropriate reform of the Dublin Regulation is part of the package. On the 2016 asylum package, from a protection perspective, as well as in terms of political feasibility, the Parliament’s (and some Member States’) commitment to the package approach was based on ensuring that certain proposals did not progress without the necessary reform of responsibility sharing – based, respectively, on the Wijkstrom Report or proposals of the Southern Seven Member States (as was). Now, more ambitious reforms are not being presented. The rapporteur’s positioning on the RAMM is worse than the Commission proposal. If the package approach is maintained, then a credible alternative which reforms the rules on responsibility sharing in Part III RAMM with a fairer system that removes the first entry principle and is based on matching and facilitating family reunion AND (or – but ideally and) introduces a serious solidarity mechanism (Part IV RAMM) based on relocation, i.e. sharing responsibility for the protection of people, is essential.

In any case, experience shows that Parliament will abandon the package approach when the Council manages to reach an agreement on something (anything) – unsurprising, given that the EU’s co-legislator has an interest in adopting EU legislation in response to a contemporary political challenge. Thus, the focus would have to switch on improving the other “approaches” should they move.

For the gradual approach, this means insisting on the full range of amendments to the Screening Regulation, on which the Parliament’s positioning is solid and needs to be maintained. It largely aligns with ECRE’s detailed analysis of the Regulation here, including elements like removing the fiction of non-entry (if it makes it into the Council agreement – some Member States are opposed). For Eurodac, the situation is more complicated due to the particular combination of parliamentarians involved.

Improving the gradual approach also means ensuring that the solidarity mechanism is adequate and focused on relocation, and a dilemma arises. If it is a voluntary mechanism created by a political agreement among the Member States, Parliament’s role is limited. However, is it worth pursuing the RAMM or the Crisis Regulation in order to have a solidarity mechanism provided for in legislation? Given the multiple damaging elements of these draft instruments, and the compromises that Parliament is likely to reach, the answer is surely no: introducing all the negative elements, from the rules on responsibility sharing in RAMM to whatever final provisions on derogations eventually make it into a Crisis Regulation, will probably outweigh the benefits of a codified solidarity mechanism (particular one that includes return sponsorship). Separating off the solidarity mechanism to become a standalone with a strong legal basis is one option that ECRE supports – but an unrealistic one. Otherwise, strengthening the mechanism has to be done in other ways, including political, practical and operational support. ECRE refers back to its proposals for a relocation solidarity mechanism, here.

If the Schengen approach moves forward instead of or as well as other proposals, there are key amendments that must be introduced, see ECRE’s detailed analysis here. Above all, the reference to instrumentalisation must be removed, especially as Member States are trying to widen the concept to also include the actions of non-state actors. Other points to amend include removing the legalisation of bilateral return agreements and ensuring safeguards across the board.

The worst of all approaches is the instrumentalisation package. See comments here. The proposed Council Decision covering Latvia, Lithuania and Poland has not moved forward, thankfully. There should be no movement, no negotiation or consideration of the Instrumentalisation Regulation. More to the point, a stronger line also needs to be taken in practice against the Member States who have put in place legislation that follows this approach and is not in conformity with the CEAS. Estonia is the latest country to try to “legalise” pushbacks but the legislative changes in the three Member States above and in Greece deserve particular attention.

Overall, the better approach would be to use the Ukraine crisis to rethink the model of asylum in Europe and develop alternatives – to apply the new approach to responsibility sharing and solidarity that is emerging; to incorporate the benefits of rapid access to territory and to protection and ensuring that people in need have a protection status as soon as possible; and reversing the trend towards precarity of status and lower content of protection. Beyond this, adequate resourcing of asylum systems and better compliance with the asylum regime that exists, and making the link with and investment in inclusion from day one, are all essential.

These alternatives need to be pursued even though – or perhaps because – the large pile of legislative proposals on the metaphorical table goes in completely the opposite direction. Nonetheless, mini-deals on some of the elements in the proposals, as described in the three approaches above, are emerging, and could well be concluded within the two-year limit. They reflect old thinking and approaches to some extent so an effort to amend and improve them must be pursued.

Editorial:Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)