The dying days of the French Presidency have seen some hyperactive diplomacy in an effort to get the 10 June provisional agreements on asylum and migration reform over the line. Following further decisions of the Member States meeting at ambassadorial level in COREPER this week, two of the approaches outlined by ECRE in its assessment of the prospects for the next two years – the “gradual approach” and the “Schengen approach” – are moving forward in parallel – at least on the Council side and at least for now.
That the Czech Presidency looks unlikely to do very much on the Pact gave an added incentive to finalise agreements such that operational and practical initiatives could run without requiring too much Presidency support. The proposal to re-open the Reception Conditions and Resettlement agreements look rather like a delaying or distraction technique.
The gradual approach agreement
The “gradual approach” agreement has seen the Member States agree on their negotiating position on two of the legislative files, the Screening Regulation and the Eurodac Regulation, and, in exchange, 18 Member States and 3 associated countries are ready to sign up to the declaration on a solidarity mechanism. Already somewhere between 8000 and 9000 relocation pledges have been made, with France and Germany each contributing 3500, and smaller pledges coming from Luxembourg, Ireland, Portugal and a reluctant Belgium. It had previously been rumoured that the Med 5 countries, which are the intended beneficiaries of the mechanism, wanted to see 10,000 pledges before they would agree on the legislation, however, in the end the current numbers have proven sufficient, and the Council has its “General Approach” on Screening and Eurodac.
Not all were convinced: on the Screening Regulation, Slovakia abstained and Hungary and Poland voted against, whereas on Eurodac Slovakia and Slovenia abstained and Hungary voted against. It has been clear for a long time that unanimity would not be possible, as certain Member States are opposed to the EU even having an asylum policy due to their general anti-refugee policies. Nothing would be acceptable to them.
Similarly, since the French broached the idea of a solidarity mechanism it was clear that it would have to be voluntary. Nonetheless, 18+3 supporting is probably better than expected and while some of them are lukewarm and may not offer relocation pledges in practice, there were only six Member States rejecting it outright – Hungary, Poland, Slovakia, Austria, Latvia and (de facto) Denmark, while for certain countries, including the incoming Presidency and the Netherlands, relocation is politically untouchable so they may choose the financial contribution that is also part of the mechanism.
In the aftermath of the deep conflicts over the relocation programmes, solidarity agreements, arrangements and mechanisms function – rightly or wrongly – as coalitions of the willing, and this one is no different. The effort has focused on establishing something “predictable” and – if not permanent – then at least designed to function for a specific period of time, rather than ad hoc arrangements being used in response to crisis. The political point of it was to convince the Med 5 to agree on certain reforms and by doing so abandon the package approach, by providing a concrete win for them that can be sold to their publics, showing that they have convinced other Member States to provide them with “solidarity”.
While the mechanism is easy to grasp, the positions on the legislative files require closer examination to understand how the Member States propose to amend the original Commission drafts. In fact, unsurprisingly given the political context, the Member States’ proposed amendments almost all worsen the legislation from a fundamental rights and protection perspective.
Screening out rights
The Screening Regulation establishes a five-day screening process to take place at the EU’s borders, supposedly before a person is allowed to enter the territory (legally, they are already under the jurisdiction of the state concerned). There are four possible outcomes – entry into a regular asylum procedure, a border asylum procedure, a return procedure or denial of entry. ECRE’s detailed analysis of the proposal is available here; it has been widely debated since Pact was launched in 2020.
The Member States largely preserve the negative elements and weaken safeguards. For example, the already narrow scope of the proposed monitoring mechanism is reduced, with the deletion of provisions on ensuring compliance with rules on detention, on independence, on FRA support to MS in developing monitoring mechanisms, and on invitation to relevant national, international and non-governmental organisations to participate. Measures on health checks and information provision have been weakened. More provisions on detention were added, in particular, that Member States should lay down provisions in national law to ensure that people remain in the designated location. Obligations to comply with measures including supplying biometric data for Eurodac and not absconding, and related penalties for non-compliance, are introduced. The amendments cross-reference the Schengen Border Code amendments and Eurodac. On a small positive note, the vulnerability check is strengthened and it seems that the Reception Conditions Directive would apply from the making of the application. Some Member States’ useful opposition to the “fiction of non-entry” appears to have crumbled, as the dodgy concept is untouched in their position.
The Schengen route
In parallel to this agreement, the Schengen approach is also moving, meaning changing migration and even asylum policy through amending the Schengen rules instead of or as well as reforming the CEAS. The Member States’ position again makes an already dubious proposal worse.
ECRE’s analysis of the Schengen Border Code amendments is available here. The Council amendments expand the definition of “instrumentalisation” (Article 2(27)) such that it can be caused not only by third country governments but also by non-state actors, a major expansion of the already toxic concept which undermines EU and international law. There are limited exemptions for humanitarian actors and for smugglers only there is no “aim to destabilise the Union or a Member State” but the vagueness means that even more situations could be classed as instrumentalisation triggering the “right” to derogate from EU law. The amendments also further limit the number and opening hours of border crossings (Article 5) and a link is made between instrumentalisation and increased border surveillance (Article 13). The Member States also remove the original EC proposal to classify people in need of international protection of on the move for other humanitarian reasons as engaged in “essential travel” and thus not subject to restrictions in case of health emergency. Measures on the transfers across borders remain (Article 23) and other proposed amendments concern border controls and checks. On a small positive note, it is made clear that the Return Directive Article 6(1) applies, meaning that the Member State to which a person is transferred shall issue a return decision without prejudice to related exceptions listed in Article 6.
Is it really moving?
These agreements are both a breakthrough and yet just a first step. The EU co-legislation process gives equal weight to the European Parliament and Council. After each has its agreed position, they enter a trilogue process, with the Commission as mediator, in order to reach a common agreement and adopt the legislation amended to reflect the compromises that the two co-legislators reach. The European Parliament’s position on the Screening Regulation is good, from a fundamental rights perspective, thanks to a well-informed rapporteur who seeks to reach a position in line with EU law and values; on Eurodac the situation is much more complicated, with strong divergences across the political groups. Parliament faces a more fundamental dilemma, however. Until the end of the year at least, Parliament is still wedded to the “package approach”, all or nothing, the longstanding rationale for which is to secure a fundamental reform of the Dublin Regulation. The repeal of Dublin III and the reform of responsibility rules are contained in the Regulation on Asylum and Migration Management (RAMM). So, the package approach insists that Screening, Eurodac etc should not move without an agreement on RAMM.
The dilemma arises because the package approach does not mean what it used to mean. Yes, the logic is sound – why reform at all if the fundamental dysfunction that is Dublin is not changed? However, the RAMM proposal does not change the rules, following the Dublin IV reform proposal model of maintaining the basic rules on responsibility sharing but adding a “compensatory” solidarity mechanism, which, in the case of RAMM does not even prioritise relocation. Even worse, currently, Parliament’s positioning on the RAMM is worse than the original Commission proposal (although discussions are ongoing across the political groups). The package also includes the highly problematic APR and Crisis Regulation and while Parliament’s position on the Crisis Regulation is good (so far), on the APR it is anything but. There is no sign of any movement on either file on the Council side.
The other side of the dilemma is that with RAMM the solidarity mechanism(s) would at least have a firm legislative basis and mandatory elements, which is not the case for the mechanism agreed by Council. But, then again, it would have to compensate for more, because the package as whole, and particularly the APR and Crisis (and Screening Regulation) all increase the responsibilities of the countries at the external borders.
New dynamic, new tactics?
Despite the multiple concerns about the agreement, it could present the best way to exit from hugely unsatisfactory current situation which combines time-consuming debate and negotiations on reform with flagrant violations and other implementation challenges. From a protection perspective the options could be loosely ranked in order of preference as: a good reform; no reform; a partial reform; the full reform.
Certainly, the best option would be a “good” reform which improves the Common European Asylum System, for instance removing elements that conflict with international refugee law and incorporating jurisprudence of the courts, and with, of course, the rules on responsibility fundamentally changed. But that isn’t going to emerge from the current process.
In the absence of the necessary reform, ECRE position has been compliance not reform – arguing for implementation of the law that exists, combined with compensatory solidarity mechanisms, rather than enacting reforms that reduce standards while not tackling the Dublin issue. Better no reform than a bad reform. ECRE also underlines the importance of implementation and compliance regardless of what reforms may or may not be agreed – the launching and negotiation of reforms is too often used a justification for disregarding current legal obligations.
The worst of the options is for all of the reform proposals to be agreed as that would significantly reduce protection standards, increase problems of access at borders and create a complex and unworkable whole. Even “just” the proposals from the Pact would increase the containment of people at the borders, through the use of border detention and border procedures, with a main impact likely to be more pushbacks. The worst of the proposals are those that enshrine in EU law the concept of instrumentalisation and that allow derogations.
The dynamic has changed with this week’s agreement meaning that a partial reform is both a likely option and one that, while not good, is not the worst option but sits somewhere in the middle in terms of protection standards. The Council is prepared to work by QMV – that unblocks the system. Although Parliament insists on the package approach, in practice, it is likely that when a deal emerges from the Member State side on something, Parliament will back it – in the interest of having some EU response – as seen with the EUAA regulation.
Conditions for a partial reform
The partial reform consisting of certain legislation and a solidarity mechanism, should only be supported so long as certain conditions are respected.
First, significant improvements need to be made to the legislative proposals that are running, particularly given the weakening of standards represented by Council positioning. Adding a few safeguards that will be ignored by the Member States is not enough. Red lines should include removing the concept of instrumentalisation, to codify it in EU law would be a dangerous error, not just for the right to asylum but for the rule of law itself. It still seems scarcely believable the Commission has launched proposals allow Member States to derogate from EU law at will.
Second, the solidarity mechanism needs to be strengthened and a stronger legal basis has to be agreed. Of course, RAMM could provide that but the dilemma described above immediately comes back – RAMM alone would cancel out the benefits of the solidarity mechanism, let alone the full package. The point of a partial reform would be to avoid all of that.
Finally, a partial reform is only of value if it means a definitive end to bad reforms. All the other reforms should be withdrawn and the tendency to try to solve political and practical challenges with poor quality legislation needs to abate. The focus should then switch to implementation, including on the part of all institutions. If all the proposals remain under consideration, then the debate on reform as justification for non-compliance remains, and the positions of both co-legislators will only deteriorate, the longer this goes on.
Whether one believes that a partial reform is the best or the worst of the scenarios or somewhere in the middle, the reality is that the gradual approach, which could be renamed the “partial” approach is now moving. That requires engagement to improve the content, through proposing changes to the many concerning elements.