Over the last month, the European Parliament has agreed its positions on another four of the legislative proposals for reform of the Common European Asylum System. Despite some dissent, the plenary approved the positions previously agreed by the LIBE Committee on the Regulation on Asylum and Migration Management (RAMM), the amendments to the Asylum Procedure Regulation (APR), the Screening Regulation, and the Crisis Regulation.
From a protection perspective, the Parliament’s positions constitute minor improvements on the original Commission draft proposals. In parallel, the Council is continuing its negotiations and the member states’ positions get worse and worse. Thus, the final versions of any legislation adopted are likely to constitute a marked deterioration in standards and a significant departure from international law. Almost as concerning, is that the proposed amendments from the two co-legislators render the legislation ever more complex, to the point that implementation will be a challenge. Combined with a reliance on derogations, this in turn suggests an era of de facto de-harmonisation (insofar as harmonisation was ever achieved), with member states failing to apply the new laws, should they pass.
The Parliament’s approach
Formally, what the Parliament has approved are its negotiating mandates to be taken into the negotiations with the co-legislator, the Council, which has so far only reached agreement on the Screening Regulation (of the Pact proposals. Certain of the proposals from 2016 are at trilogue stage). That the EP was not able to further improve the proposals is due to disagreements between the political groups and the need for compromise – unlike the previous Parliament (with the mandate ending in 2019), which reached agreement on amendments that largely improved the legislative proposals under consideration from a fundamental rights perspective. The increasingly extreme positioning of the centre-right group and its tendency to ally with the extreme right, rather than the centrist or progressive parties, as well as the lack of coherent strategy in the liberal Renew group are reasons for the difference. The overall model embodied in the Pact is based on containing more people at the EU’s external borders, usually in situations that amount to detention, akin to what is seen in the Greek islands. Nonetheless, the unfortunate line-up of rapporteurs, particularly on RAMM and APR, has also hampered efforts at improvement. Assessing the positions, proposal by proposal, shows a pattern of maintaining the original drafts, with a limited number of positive amendments in each case.
Regulation on Asylum and Migration Management
On RAMM, the EP’s position maintains many of the negative elements of the original. ECRE’s general observations from ECRE Comments on the Proposal (p. 4) and comment on the Rapporteur’s first draft report (here) remain largely valid, including on failure to align with EU and international law, extensive discretion and related unpredictable impact, and the expanded role of the Commission. The continuation of the Dublin rules is still intact, as is codification of the “externalisation” of refugee protection to countries outside the EU, with tools to pressure them into accepting more responsibility.
On the positive side, there are some improvements to the responsibility sharing rules, including extension of the family member definition as per the EC proposal, as well as its further widened scope to extend family reunification rights to Beneficuiares of International Protection and to adult dependent children (in addition to siblings) (Article 2). An important element is the inclusion of the new criterion of a “meaningful link” with another member state as a ground for allocation of responsibility (Articles 14 and 25). In addition, the applicant can ask the determining member state to apply the discretionary clauses.
On the other side of the responsibility/solidarity scale, the Parliament has removed the solidarity mechanism for disembarkation after SAR. Instead, one solidarity mechanism applies to all situations of migratory pressure, which also now covers migratory pressure due to sea arrivals following disembarkations. Reduction to a single solidarity mechanism (and other changes in the rules) simplifies the solidarity process, which was extremely complicated. However, the concept of migratory pressure is broad and, given the role of the Commission in the assessment, much would be left to its discretion, which may lead to inconsistency in approach to solidarity, given the Commission’s siding with some member states on solidarity. In addition, the mechanism still does not guarantee that it will meet all the relocation needs of the benefitting country. Parliament’s position seeks to counter this by prioritising relocation (with 80% of solidarity pledges to be relocation) and it removes return sponsorship as a form of solidarity.
Throughout, there are also minor positive changes such as additional references to compliance with international and EU law, including explicit mentions of fundamental rights obligations and additional guarantees introduced, mainly on information provision, right to legal assistance, access to an effective remedy, minors and guardianship.
Asylum Procedures Regulation
On the APR, similarly, Parliament largely supports the dangerous proposal which creates an unworkable labyrinth of procedures, including expanding the use of border procedure (Article 41), which will likely take place in detention due to the prior agreement on the Reception Conditions Directive (RCD) recast which provides that application of the border procedure constitutes a ground for detention.
The Parliament supports the establishment of a closer connection between the asylum decision and the return decision – although it rejects the proposal to issue the return decision “as part of” the asylum decision, it will still be issued at the same time (Article 35). Then, the “return border procedure” is established, with those rejected in the asylum border procedure or the screening process, to be channelled into it. A theme throughout out is to erode critical procedural guarantees, including the human rights to an effective remedy and the right to be heard, with the removal of automatic suspensive effect of rejection decisions in the border procedure maintained.
On the positive side, the new text specifies that return decisions can only be issued provided that no status in national law (beyond refugee status and subsidiary protection) is applicable, acknowledging – at least implicitly – the jurisprudence on human rights grounds for granting status or at least for staying a deportation. Nonetheless, the section on remedies does not include provisions for a review which would consider the applicability of protection statuses under national law. A further improvement is that the use of the border asylum procedure for people where the protection rate is 20% or below is no longer mandatory (Article 41). Where the 20% rate threshold is used as a ground for accelerating examination of an application the Parliament has introduced a minor amendment to note that it should be 20% after all remedies have been exhausted rather than 20% at first instance (Article 40). This is important in that it acknowledges the risks inherent in the continued use of first instance rates rather than those representing final decisions. Finally, the Parliament has added a monitoring mechanism for ensuring fundamental rights compliance, which may serve as a safeguard against recurrent violations.
The Crisis Regulation
On the Crisis Regulation proposal, very alarmingly the Parliament maintains the reliance on derogations, which allows member states to derogate from parts of EU law in times of crisis. As ECRE has extensively commented, this would set a dangerous precedent and undermine the rule of law. These include derogations in situations of crisis in relation to registration timelines (up to 4 weeks) (Article 6) and length of border procedure (additional 4 weeks, so 16 weeks in total) (Article 4 and 5).
On the positive side, there is far more to note on this proposal: the Parliament rightly refuses to repeal the TPD, which, after being activated in 2022, has established a temporary protection regime which is now hosting 5 million people (Article 14). The Parliament has also introduced a prima facie recognition mechanism (Article 10). All references to force majeure have been removed, including the (mis)use of situations of force majeure as a justification for derogations. The related derogations on registration (Article 7), time limits for transfers (Article 8) and solidarity provisions (Article 9) under RAMM have been removed in the EP’s position. As ECRE and others recommended, a clear definition of crisis has been added (new Articles 1a), along with quantitative indicators to assess whether a situation of crisis is applicable (new Articles 1b), and a process for designating, monitoring and ending a situation of crisis (new Articles 1c). The solidarity mechanism (new Articles 2a, 2b, 2c) in times of crisis focuses on mandatory relocation, postponement of transfer procedures (new Article 8a) and exemption from obligations on relocation (new Article 9a). Additional provisions – not part of the original EC proposal – on crisis preparedness have been added, including: EU relocation coordinator; operational coordination; support from EU agencies and financial support (new Articles 1e; 2d; 2g; 2h; 2i).
For the Screening Regulation, although the Parliament’s position lightly improves the proposal, it remains an unnecessary additional procedure creating detention at the borders (including detention of children) and will both serve as a delay before and obstacle to accessing the asylum procedure. Most importantly, no right of appeal for the outcome of the screening procedure has been added, and no legal assistance is available, although people will have the right to receive a copy of the debriefing form and to check the information in it.
Improvements include that the screening procedure cannot be applied to those “found” on the territory; the Reception Conditions Directive applies to anyone who applies for asylum (Article 6c) and with regards to detention and alternatives for anyone subject to the screening; the border monitoring mechanism has been strengthened with an expanded scope and stronger references to independence. The position slightly restricts the possibility for states to deny entry to people seeking protection. Although the fiction of non-entry is will not generally be obligatory, as a result of a last-minute compromise it can still be used whenever a member state is “implementing the border procedure” under the APR, which will be most of the time.
Council Developments – into the Wild West
Parliament’s positions may be disappointing but perhaps not much more could have been expected given the context and the allocation of roles. On the Council side, however, anything goes. With the Swedish Presidency by all accounts rather passive – either due to the volume of files or due to political considerations, given its reliance on the extreme right Sweden Democrats party which opposes the Pact – the Commission is preparing the details of the deals put forward in the various compromises on the Council side. All efforts are based on reaching an agreement among member states on (some parts of) APR and RAMM by June, regardless of quality.
The content of the potential inter-governmental deal has entered new, more sinister territory. Whereas previously, the member states were attempting to reach an agreement on responsibility in exchange for solidarity – specifically, increased use of the border procedure in exchange for solidarity mechanisms – the deal is now centred on use of the border procedure in exchange for derogations. In addition, the persistence of a range of cross-cutting conflicts between the member states means that deal-making is adding ever more complexity.
On one side, member states in the north, and primarily France, Belgium and the Netherlands, are insisting on the expanded use of the border procedure to deal with the only the priority that they see – “secondary movement”. In response to their pressure, the Commission has devised the concept of “adequate capacity” – a misnomer as previously described HERE. Adequate capacity is essentially the required number of people who have to be processed in the border procedure. The idea of setting a minimum is based on the demands of the member states without or with limited external borders who want as many people to be detained at the external border.
Setting a numerical target – with no reference to the characteristics of arrivals or the nature of the cases – is a completely different logic to the one in the Pact proposals where the mandatory use of the border procedure was intended for people from places where the average protection rate is 20% or below. Whole sections of the preamble explained why the border procedure was to be applied in these cases; all of this is now to be disregarded it seems. No matter who people are or where they are from, a certain number will be in the border procedure until the target is hit. The “adequate capacity” for a country is to be calculated based on the overall EU adequate capacity multiplied by the number of “irregular” entries for the country in question, divided by the overall number of irregular entries, giving countries a major incentive to deny entry.
The other side of the deal is even more problematic. Why would the countries at the external borders agree to all of this? Because they will be allowed to derogate from the law. The idea seems to be that once a country reaches its adequate capacity, i.e. once it has processed the set number of people in the border procedure, then it will be allowed to derogate from the law. The exact nature of the derogations is under discussion, drawing on the derogations proposed in the Crisis Regulation and in the Instrumentalisation Regulation.
The reasoning behind this is hard to discern: why should it be the case that a country should be allowed to evade the law after it has reached a target of processing people in the sub-standard border asylum procedure? There is no possible operational or legal justification – it is purely political.
Further complications arise. The first version of the adequate capacity concept envisaged a total figure for the year. It was pointed out that states would rush to meet that target, so that they could then cease to use the border procedure, having reached their target. In this model, there could be an impact on the operations of smuggler, it was considered. Thus, the latest version of the concept states that the adequate capacity has to be met at all times.
For the member states at the external borders, the deal is appealing, with Italy and Greece supposedly already in agreement. The negotiations centre on whether the member states themselves will have the right to trigger the derogations once they have attained their border procedure objective or whether the Commission will decide.
The related debate on the Council side, is the continued effort to revive the instrumentalisation concept through integrating it into the Crisis Regulation, along with the full package of derogations that are linked to it. Given the Parliament’s interest in the Crisis Regulation, this is a wily strategy and one that may end up with an agreement.
Worse case likely scenario?
It now looks as though one of the worst possible scenarios could be agreed. Despite the complex negotiations on Parliament’s side to arrive at its positions, it may concede too much to the Council in negotiations simply in order to reach an agreement as time runs out. Thus, it could come into line with Council’s emerging position: vastly expanded border procedure in detention, applied based on numerical targets rather than any other factor (and thus introducing a strong element of arbitrariness); derogations at will for member states which want to avoid EU law; maintenance of the Dublin rules but with some limited compensatory solidarity mechanisms.
While an argument can be made that there needs to be some reform, if only to end the process of time-consuming reforming, it is not clear why this particular direction of reform should be supported. Rather, ECRE continues to argue that – if there is to be a reform – the least damaging, partial reform should be concluded as soon as possible.
It is also not clear why more and more elements are being added, with each institution equally at fault: the Commission launched yet more proposals in 2021 despite the multiple proposals already under discussion; the Parliament is insisting on the package approach even though the APR and RAMM do not add value compared to a minimal agreement on the Screening Regulation and solidarity. The Council is now trying to keep the instrumentalisaton proposal alive despite the serious risks in terms of harmonisation and international law.
How this will all work (or not)
The following are likely impacts if the current state of affairs is translated into legislation.
First, pushbacks, violence and other violations at the borders. From the beginning, ECRE has highlighted the strong risk that expanding the use of procedures at the borders will lead to pushbacks. This is the lesson from Greece – containing people in the countries at the borders is controversial for local populations and the countries affected prefer to prevent people arriving.
Second, the end of a common system. Allowing countries to derogate at will from EU law, selecting from a menu of options, is the end of attempt to realise a common system – different regimes will apply in different countries, thus undermining the objectives of EU asylum law as set out in the Treaties.
Third, increased onward movement (via a smuggling boom). Avoidance of the law in countries at the borders leads to “secondary movement”, as can already be seen in events at the eastern border. If certain countries are allowed to opt out of asylum law, people will still arrive but they will seek to move on and pay smugglers to do so, or chose other routes and destinations within the EU.
Fourth, extensive litigation while people remain in limbo. In this context, time-consuming and costly litigation primarily focused on the RAMM will continue – replacing Dublin, which is traditionally the main source of asylum-related litigation. If people make it into the EU, they will do all they can to avoid the countries at the border, because if their asylum applications are managed in those countries, they will be held in detention and subject to border procedures. States will try to send them back to the country of entry but – as is the case now –the situation may be so poor that courts block transfers, all while the conditions in which they find themselves are worse due to the punitive approach of the recast RCD.
Fifth, continued lack of implementation. Finally, implementation is likely to be a challenge due to complexity and because the reforms largely transform directives into regulations. Across all areas of EU law, ensuring compliance with regulations is a challenge; here, it will be exacerbated by the amount of discretion, legal uncertainty, exemptions, offsets and so on that are being integrated into the rules. How the Commission will monitor whether member states are applying these regulations remains to be seen.
Despite the pressure to conclude something, at this stage, as limited a reform as possible, if it means an end to the process, remains the least bad scenario, and one that might possibly be implementable. Parliament has agreed its positions – for better or for worse – which required intricate and at times tense negotiation and compromise. It must now stick to them in the negotiations with Council, and not be pulled into either the border procedure in exchange for derogations deal or the revival of instrumentalisation concept. Exiting with any sort of workable, common asylum system depends on it.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)