By Catherine Woollard

The start of the year has seen decisions on the Pact, the reform of EU asylum law, but not much can change now in terms of the content of the reform. The focus needs to shift to implementation and alternatives.

Decisions, decisions

The recent and remaining decisions are a mere formality. It is done. And we lost. The reforms are the product of a series of decisions that can be traced back over eight years, all of which were contested but ultimately to no avail. A few examples in reverse chronological order:

In December 2023, the Parliament decided to concede on the content of the reforms, accepting the Council’s positions on almost everything. In July 2023, the Spanish Presidency decided it was essential to merge crisis and instrumentalisation proposals. In June 2023, the Member States agreed on hardline positions, despite some resistance. In 2021, the Commission decided to use the Belarus crisis to revive the derogations that didn’t make it into the Pact and to propose the new concept of instrumentalisation. In 2020, the Parliament made the – disastrous – decision to persist with the package approach (all or nothing), meaning more rather than less bad new legislation, and not taking up the partial reform that was available at the end of the French Presidency. In 2019, France and Germany decided to buy the Dutch pitch that the border procedure was the next great “solution” to Europe’s self-made crisis on refugee issues. In 2018, the Council decided to renege on the interinstitutional agreement which would have seen a less bad reform package accepted… In 2016, the Commission decided to shelve the more comprehensive reform of Dublin that was under discussion… and so on. There were also options not taken up – not adapting the reforms following the very different response to displacement from Ukraine, not using the TPD in 2015/16.

All these decisions collectively reflect an underlying strategy of limiting access to protection for refugees in Europe, which is embodied in the reforms in multiple ways. While defenders of the Pact argue that it is an alternative to externalisation, in fact it is riddled with externalising tools and techniques, and ones more likely to be successful than dodgy deals with foreign dictators.
Some of the content – what and why x 8

ECRE will soon publish its detailed analysis of each piece of legislation. Some key elements are presented here, with a look at what they are and why they are included. More information can be found in ECRE’s policy paper from August 2023 which compares Council and Parliament positions – simply focus on the former.

1. What? Second-rate asylum procedures.

Border procedures and accelerated procedures will be more widely allowed and mandatory in some circumstances. People are less likely to have their protection needs recognised in these procedures. It should be noted that these low quality procedures are cumulative, for example, acceleration in the border procedures. The border procedure will often take place in detention, as will the new “pre-entry” screening process. For both, the pretence of non-entry applies, even when they take place away from the border, elsewhere on the territory, which is allowed.

Why? To make it less likely that people are granted protection and to limit movement within the EU.

2. What? At least 30,000 people in border procedures at any given time.

The border procedure is the central element of the Pact, compared to the 2016 reforms which relied rather on inadmissibility. When the Pact enters into force, every year at least 30,000 people have to be in a border procedure.

The initial 30,000 is to be divided among the Member States based on a complex formula, leading to – for example – around 7000 people for Italy and around 3500 for Spain. This is not the total number per year, however, this is the number of people who must be in a border procedure at any point in time. Thus, when people leave, for example after receiving a positive decision, after transfer to the regular procedure or to another Member State or after deportation, then other people must be added so that the number remains at the minimum. So, if the number is 7000 at any given time, for that Member State, in a year that could a total of 20,000 or 30,000 or more or less up to a maximum of 120,000 – it depends on unknowable factors, such as how quickly cases are processed and how quickly people are transferred elsewhere. The number includes asylum and return border procedure cases.

Why? During the negotiations, when it appeared that there would be too many exceptions to the use of border procedures, certain Member States insisted on a minimum number which is reflected in the “adequate capacity” concept.

3. What? Tools to deny access to an asylum procedure.

Greater numbers of people will have no access to an asylum procedure at all, as the screening process allows states to refuse access to territory, through issuing a “briefing form” which is not a decision and cannot thus be challenged. States will be able to decide that cases are inadmissible in a wider set of circumstances, thus denying access to a hearing on the merits of the case.

Why? Again, to limit access to protection in Europe.

These two points should be seen in a context where most people applying for asylum in Europe are in need of protection, despite the constant repetition of the myth that they are not.

4. What? Significant erosion of the right to an appeal.

The proposals reduce the right to an effective remedy by shortening deadlines for an appeal, combining asylum and return decisions, and by removing the automatic suspensive effect of appeal for many categories of people/decisions. The latter means that people will be deported before their appeal is heard. They can apply to suspend the deportation pending the appeal decision but with a short deadline and requiring a separate legal challenge.

Why? To limit access to protection in Europe. The context here is that over one-third of appeal processes result in the award of a protection status.

5. What? Punish “secondary” movement. There are multiple measures aimed at limiting onward movement within the EU, including removing reception conditions from applicants, increasing the period of responsibility of countries of first entry, and removing solidarity entitlements from countries which don’t accept transferees back.

Why? For certain Member States, this was and remains their priority.

6. What? Transfer refugees to third countries.

There are legal changes that will legalise states sending people elsewhere, including a widening scope of the internal protection alternative, a concept integrated in EU law but not part of international refugee law, which allows states to send people to supposedly safe parts of non-safe countries, or at least to deny protection on that basis. There is a weakening of the safe third country concept – another concept already in EU law but which is not derived from international refugee law – whereby the threshold for a country to be classed as safe is lowered, both by significantly reducing the level of protection that should be available in the other country for it to be classed as safe and by limiting – and allowing national definition of – the connection required between the person and that country (although the connection criterion remains).

Why? Since the EU-Turkey deal, there have been attempts to both do similar deals with other countries (which hasn’t worked) and to codify the approach into EU law, which has worked partially but not fully – the original 2016 proposal for mandatory inadmissibility decisions to be issued when the safe third country concept will be optional (but widely used by some states).

7. What? Derogatory regimes for situations of crisis, “force majeure” and “instrumentalisation”.

The points above are relevant to the standard asylum rules, where the Asylum Procedures Regulation (APR) and Regulation on Asylum and Migration Management (RAMM) largely set out the details. In addition, there are three special regimes which can be invoked in situations of crisis “force majeure” and “instrumentalisation”. In each, Member States are allowed to choose from a range of derogations (i.e. they can choose which provisions of the law they no longer wish to respect). The definitions of the three situations are so wide that most Member States will be able to invoke at least one of the three at any point in time.

Why? Not entirely clear. States want – of course – to be able to avoid the obligations of EU asylum in times of crisis (or at any time), however they haven’t all reflected on the full implications of allowing others to derogate (such as onward movement). Due to political interference (from the top?), the Commission has gone ahead with these ideas even they significantly undermine EU law as a whole and vastly complicate the Commission’s own job of monitoring compliance and defending the Treaties.

8. What? Solidarity provisions.

The RAMM will make it mandatory for states to provide solidarity and set out the methods of calculating solidarity obligations and entitlements. Solidarity can be offered in different forms, including relocation, capacity support and money, although there is a minimum number of relocations set at 30,000 a year. While all relocation is important, this falls short of the needs of countries at the borders.

Why? The necessary deeper reform of the Dublin rules was rejected in 2016 and again in 2020. The RAMM which has emerged repeals the Dublin Regulation but replicates the basic rules on allocation of responsibility, including reinforcing the default country of first arrival principle. In order to compensate for the unfairness of the rules, a compensatory solidarity mechanism is in place.

New battles on new terrain?

With the reforms agreed, different priorities emerge.

First, the debate has switched to implementation. From the date of the final adoption of the legislation, expected in April, the Member States will have two years to take the necessary measures to fully apply the new laws. The Commission has prepared an implementation plan. Certain Member States have also proposed implementation plans for the EU as a whole; some are developing national measures. Money from the EU budget has been reallocated to the implementation of the Pact.

Very significant challenges emerge in implementation. The reforms take the form of regulations directly applicable in the Member States, meaning that a long period of transposition into national law which allows for a certain amount of political and legal scrutiny will not take place. The implementation will be via national level secondary legislation, policies, operational changes, resource allocation, reorganisation of asylum systems and so on. The reforms are extensive, complex, maintain discretion despite being regulations, and include many areas of uncertainty.

Considering the right to asylum, there are certain principles that should be applied. First, compliance with all the obligations of EU asylum law is necessary, including tackling longstanding implementation gaps that have been neglected during the reform process. Implementation needs to be comprehensive not selective. For some states, and perhaps the Commission, the priority will be implementing the border procedure in detention. Instead, compliance problems such as appalling reception conditions, illegal denial of access to asylum procedures/territory, the asylum lottery, the lack of respect for procedural guarantees, etc. all need urgent attention. Second, implementation of the reforms has to take place in full respect of EU primary law, including the Charter of Fundamental Rights and relevant international law. Existing jurisprudence of European and highest national courts needs to be respected, and new legal challenges and requests for legal opinions will be necessary for the interpretation of and to set limits on the provisions of the laws, for example, the limits on the use of detention or on the erosion of the right to a remedy, or on the punitive withdrawal of reception or the use of new and adapted legal concepts such as instrumentalisation or safe third countries (which is already under consideration at the Court of Justice of the European Union).

Overlapping with the implementation challenges, will be managing the consequences of the reforms, which will include increased detention, destitution, and deportation. Another consequence will be more people in limbo, where they should be transferred under RAMM (the equivalent of Dublin transfers), deported or sent to a supposedly safe country, but where it is not possible. It should be noted that despite deportation being priority number one for years, the return rate – the percentage of people with a return decision who are actually returned – is currently 20%, demonstrating that Europe does not control return policy – it depends on co-operation with countries of origin and transit. Similarly, RAMM transfers will be blocked as the vast majority of Dublin transfers are unless there is an improvement in respect for the law in the countries of entry.

Overall, externalisation can be a very counter-productive policy, and there may be negative effects elsewhere. For example, expansion of safe third country concepts is likely to have a gelling effect in other countries leading them to limit protection so that they are not considered safe.

Within Europe, the reforms will create a significant administrative burden, particularly on the countries at the external borders whose responsibilities increase with scant compensation. Faced with this situation, as well as invoking the special regimes, it seems likely that these states will increase pushbacks. Thus, action at the borders will remain essential. There are two monitoring mechanisms foreseen in the reforms – for the screening and border procedures. They are limited in scope but could still be useful if properly designed.

With new generals?

How this all plays out will depend on pending political changes at EU and national level. A new European Parliament will be elected in June. It is essential that those who are concerned about this issue go out and vote. (For more information, see ECRE’s EUisU campaign). The European Parliament like national parliaments has more interest in making legislation than in supporting proper implementation, nonetheless, but it could and should play a role for instance in monitoring, especially as EU funds will be used for implementation. There will be changes at the top of the Commission, with a new Commissioner for internal affairs and new leadership at the Directorate-General for Migration and Home Affairs. That will shape how the Commission works on compliance. Agencies and accountability bodies, including the EU Agency for Asylum, the European Border and Coast Guard Agency (Frontex), the Fundamental Rights Agency, the Ombudsperson, and the Court of Auditors will all have a role to play. The courts will, though, be central.

At the same time, a string of inauspicious Council presidencies will overlap with the roll-out of the Pact, with Hungary, Poland and Denmark the next in order. From all, a high level of nasty rhetoric and crackpot plans is to be expected – but hopefully no new reforms. Management of asylum systems will need to continue in the background.

Despite all the spin, the Pact is not “the solution”. The reforms will not meet one of the implicit objectives, that of limiting arrivals of refugees in Europe. There is too much forced displacement, globally and in and around Europe. Other states, including many far poorer than Europe, are already doing more than their fair share. Thus, the people will still arrive.

With the implementation of the reforms they will be treated in a harsher way, less likely to be recognised as in need of protection, more likely to be in detention and destitution. There may also be political fallout when perceived problems persist, for example, when secondary movement continues as it surely will. As well as implementation in the least harmful way and managing the consequences, alternative measures are as relevant as ever – a focus on compliance with the law, support to inclusion, expanding safe pathways, and foreign policies to limit (or at least not cause) displacement.

Catherine Woollard is the Director of the European Council on Refugees and Exiles (ECRE)