By Catherine Woollard
As the new Commission takes office, and the politics suggests darker days for asylum in Europe, ECRE suggests some Do’s and Don’ts on asylum and migration.
Do… implement the law
Should go without saying but in this area of law it doesn’t. The reform of EU asylum law in the form of the Pact has just been concluded, after eight very trying years, yet member states (MS) are clamouring for new reforms. ECRE wasn’t enthusiastic about the Pact, but the irony of its defenders trying to weasel out of implementation is galling (see “Irony Overload”).
Don’t… reopen the legal framework
To do so, would be just another excuse for states to avoid their obligations. Unfortunately, reform of legislation on return looks inevitable, but it should at least be approached in a cautious manner, perhaps even for once respecting the obligation to carry out an implementation assessment. The real prize for some states would be legal changes that allow them to suspend the right to asylum; the instrument will be the concocted notion of “instrumentalisation”. But none of this stacks up: just because people are instrumentalised, doesn’t mean they lose their right to asylum. In any case, after manoeuvring and capitulation in the negotiations, instrumentalisation is already in the law.
How refreshing it would be to have a focus on enforcement of EU law rather than on misguided efforts to reform it.
Do… question proposals to “frontload” the Pact
Most of the proposals to frontload parts of the Pact look like MS picking and choosing their preferred elements, generating the risk that the delicate political agreement unravels. In a letter and a recent meeting of MS asylum experts, the Commission helpfully set out some rules for frontloading, including that it should be voluntary and that the balance between responsibility and solidarity should be maintained. In practice, though, if – for example – Belgium brings forward APR provisions on treatment of subsequent applications which will increase Greece’s responsibilities, what solidarity measures will it also be advancing to preserve the balance? Implementation needs to be comprehensive, as well as respecting EU primary law, international law and the jurisprudence of the courts.
Do… do some scenario planning
Generally, EU predictive tools are applied to population movements to support the limiting of arrivals in Europe. That might be Frontex risk analysis through its Africa offices and operations, or the crisis planning led by the Commission and the EUAA. The Pact requires MS to be prepared to manage arrivals and to have contingency plans in place, and preparedness is required before the Crisis Regulation can be invoked. These are all positive measures and should be applied. But given current debates, proposals and actions already taken by some MS, more serious scenario planning is necessary, namely assessing the possible scenarios if the common system collapses. Such an exercise might focus minds on implementation. It could also encompass the likely scenarios if certain MS are allowed to suspend the right to asylum or to persist with flagrant non-compliance.
Don’t… panic
Operating in perpetual crisis mode feeds the far right and leads to bad decisions. This is really not the biggest challenge facing Europe. Despite the need to be prepared for the more dramatic scenarios, a complex political issue, characterised by MS conflict and impacting 100,000s of vulnerable people, requires cool heads. European centre-right or -left political parties losing votes due to a failure to mount any serious strategy against the far right is not recognised in the Treaties as an emergency justifying disregard for the rule of law.
Do… dig into the stats
Look at the details, the nuance and the statistics not the myths (see for example, ECRE’s briefings, or the recent bestseller on the myths). Most people seeking protection in Europe do have protection needs. Perhaps it would be easier if they didn’t, but they do. The protection rate at first instance is over 50% with another third of cases receiving protection on appeal. Most of the public wants to offer support to refugees and sees immigration as a positive. Multiple factors explain far-right gains from the decline of mainstream parties and politics to the fragmentation of political party systems in Europe. Evidence-based policy-making is long overdue.
Don’t… endlessly recycle myths about migration
Commissioner Johanssen put forward a positive narrative about migration and rightly sought to “normalise” the issue, while constantly having to listen to prejudice, misrepresentation and sometimes outright racist commentary from interior ministries. A new blast of hysterical rhetoric has prevailed during the gap between Commissions. If ever there was a topic that could benefit from less emotion and more reason and facts, it is this. More normalising would be pleasant.
Do… ensure protection for those who need it
One of the many negative consequences of the Pact is that it will be harder to be recognised as in need of protection. The belief is that it will deter people from coming (it won’t, see myths above). But it will increase the number of people with a return decision when states already struggle to deport even a fraction of those supposed to leave.
Don’t… assume that deportation is the answer to everything
Because it is often just not possible. Yes, deportation is part of migration policy. Yes, the return rate is very low at around 20%. But all of this has been the case for decades. It is not possible to devote more attention to this issue – it is always a priority. The main challenge is not annoying lawyers blocking deportation, it is countries of origin and most of them feel disinclined to assist Europe.
Do… build asylum systems in Europe
Functioning, properly resourced asylum systems in Europe keep the issue manageable and demonstrate to other countries how it can be done.
Don’t… meddle in external affairs
EU external action is not a tool for migration control. In the face of internal conflict, there is pressure on the EU to use its external policies and funding to buy other countries’ support for preventing the movement of people. But these policies have their own objectives and it quickly becomes counter-productive to divert funding. Using development funding has little impact, so the real target is trade policy where the EU’s power lies. Resistance from DG Trade as well as the countries on the other end of trade agreements is to be expected.
At the same time, undermining development or humanitarian assistance by incorporating migration prevention looks highly unwise, given the shock that the system will experience when Trump II comes in: the whole of the multilateral system, including the security architecture and humanitarian response, is massively dependent on US funding which may no longer be forthcoming. UNHCR alone receives almost 60% of its funds from the US. Of course, all countries should develop protection systems for refugees and should provide security for their own people, but none of that is encouraged by dodgy migration deals for short-term gains.
Do… be guided by the long-term interests of the EU
The EU has witnessed increasing re-nationalisation, manifested in the asylum and migration field inter alia with the dominance of the Council in the reform negotiations, the Commission’s deference to states and the leading role of Commissioners who were or wish again to be national politicians. The interests of the EU as a whole and the defence of the Treaties are sometimes eclipsed.
Don’t… act as a puppet for the EPP
Commission President von der Leyen was insistent that the internal affairs and migration portfolio return to her centre-right political group, presumably due to perceived resistance to its hard-line agenda from the centre-left Commissioner Johanssen. Given the composition of the institutions, a proliferation of tough measures in the guise of “innovative solutions” (read stale failed proposals) is likely, and may be well-received given the political sympathies of officials in senior positions – a number of whom have already been inappropriately and pre-emptively promoting legislative reforms. Despite pockets of resistance, the major shift driving EU policy-making in the last mandate was the more extreme positioning of the EPP and not the rise – such as it is – of the extreme right. But the EU’s role is not to do the bidding of the states, nor is it to pursue particular political parties’ efforts to outflank the far right.
Do… make the link between asylum and labour shortages
A new pro-migration discourse is discernible – resulting less from a new-found humanity and more from the burning need to respond to labour shortages. Across Europe, demographic changes and emigration have created acute labour shortages, but it is the geographic scope that may change the game. As a recent World Bank report demonstrates, all parts of Europe and Central Asia are affected. Previously, EU MS could rely on importing labour from other parts of the region, but that’s no longer the case, leading to more missions to court governments and deal with agencies and gangmasters. The paradox is apparent: states are desperately courting certain groups of migrants while adopting an ever more restrictive and indeed brutal approach to others. Providing international protection is an obligation and refugees are not there to resolve Europe’s labour market challenges but, still, a more rational and mutually beneficial way of reconciling these contradictions could be possible through supporting labour market inclusion and other socio-economic rights of asylum applicants and beneficiaries of protection.
Do… support a strong collective approach to Ukraine
As ECRE has previously noted, the EU’s competent response to displacement from Ukraine is one of the most important positive legacies of the outgoing Commission. It has perhaps worked so well that a certain complacency has crept in. The initial assertive and collective EU approach has given way to a more passive attitude, and states are increasingly going it alone.
To ensure continued smooth management, leadership from the EU on the post-TPD options is essential (see ECRE’s suggestions), especially as a disadvantageous partial settlement is likely to be imposed on Ukraine, possibly within the year, given the pending arrival of Trump II.
As well as maintaining a calmly managed response, extracting lessons for the asylum system as a whole is important, despite active resistance to doing so. This is a great success in global terms – when else is large-scale displacement managed so well that it doesn’t become a political and humanitarian crisis? The great value of rapid access to protection status and to socio-economic rights; the benefits to states of allowing freedom of movement within the EU and “pendular movements” to and from Ukraine; the minimising of political and security risks through ambitious collective action – all these points should be applied elsewhere.
Don’t… abandon inclusion policy
In the same spirit, the EU’s role in inclusion – or integration – policy should be defended. Integration is not an EU competence but in practice the EU has done useful work, supporting inclusion with funding, advice, dissemination of good practice, and use of its convening powers to allow MS sharing of experience. There are numerous examples of effective inclusion projects supported by EU funds. It is also a way to involve civil society in asylum and migration policy, allowing the necessary wider society response. Although like many other of the don’ts, there are efforts to undermine integration policy, indeed, at least three MS have official anti-integration policies.
A likely battle site is the negotiations over the next seven-year budget, the MFF, which is the big-ticket item for this mandate. The usual effort to remove integration measures from the AMIF is likely, and possibly also from the ESF+.
All of this is very short-sighted: undermining inclusion serves only to generate social tension and again feed extremism. Achieving inclusion should also be a factor to consider in choices for implementation of the Pact. For example, choosing detention or isolated reception centres will harm inclusion. On the other hand, among the limited positive elements in the Pact, are earlier access to the labour market for most asylum applicants and mandatory provision of language and vocational training, which should not be overlooked.
Overall, then, do follow the law, do plan for all scenarios, even the end of the system, but don’t panic. Do act with a little decency, and don’t sacrifice the rule of law and long-term European interests for short-term narrowly conceived political gains. Sounds sensible, but looks rather unlikely given the political context – the smart money would be on the don’ts: legislative change, self-defeating restrictions, external meddling, social exclusion and regular pressing of the panic button.