While there are as yet few official developments, rumours abound about possible progress on the Pact, the package of proposals for reform of EU asylum law, and all the related proposals from 2016 and 2020. The basis for the work of the two co-legislators remains the Roadmap signed by the Parliament and the five Presidencies up to April 2024, which seeks to have nine proposals adopted before the end of the political cycle. Although not part of the Roadmap, there are two related proposals, the reform of the Schengen Border Code (SBC) and the Instrumentalisation Regulation.
Which proposals are advancing?
Despite the rumour mill, reviewing the state of affairs and given the ticking clock, the most likely outcome is still a partial reform. And from a protection perspective, the reforms offer scant improvement, meaning that the priorities remain damage limitation and an exit from the process. A new priority is the need to monitor efforts to take forward elements of the proposals even without legislative change, such as the pilots on the use of the border procedure.
Of the 11 proposals, those that will make it through are the Screening Regulation (SR), the Qualification Regulation (QR), the recast Reception Conditions Directive (rRCD), the Return Directive (RD), Eurodac Regulation, and the Union Resettlement Framework (URF) from the Roadmap (six of the nine), and, separately, the SBC reform. Major questions remain on the Regulation on Asylum and Migration Management (RAMM), the Asylum Procedures Regulation (APR) and the Crisis Regulation (CR), and it is seems likely that the Instrumentalisation Regulation, a dangerous and unnecessary proposal that should never have seen the light of day, will not move forward. As in 2018, when agreements were reached and then abandoned, the key question is whether the Member States are genuinely committed to reform and whether agreement is possible among the states on the perennial question of solidarity.
European Parliament progressing
By all accounts, negotiations are taking place at breakneck pace in the European Parliament, in order to resolve outstanding issues and have position adapted this month. Agreements across the political groups are imminent on the Screening and Crisis Regulations, along with the SBC reform, and more or less ready on RAMM, then likely to be reached on the APR by the end of April. The Parliament will adopt its negotiating positions, including all the amendments it wishes to propose, in the LIBE Committee, with the plenary simply endorsing what passes.
Content of Parliament’s positions
ECRE will publish a detailed analysis of the content of Parliament’s positions when they are formally adopted, but based on the current drafts it is a mixed bag. On RAMM and APR, the appointment of the Rapporteurs for each file largely stymied the prospects of Parliament significantly improving the reforms from the beginning. On the RAMM, the centre-right Rapporteur first produced a report that actually worsened the original Commission proposal (ECRE’s analysis here). So the last two years have seen other political groups trying to introduce amendments, with some success. For instance, the final position is likely to see a softening of the country of first entry principle and an expansion of the scope of provisions on family unity. It will also prioritise relocation from the solidarity options, with return sponsorship having been removed, and capacity building as a solidarity option reduced. That said, despite these valiant efforts at improvement, the position will be far from either the deeper reform of Dublin that is required or even the Wijkstrom Report – Parliament’s position on the Dublin IV reform proposal of 2016 replaced by the RAMM – which foresaw a greater overhaul of the system.
On the APR, the die was set when the decision was taken to “make the border procedure” work, rather than reject it as unfair and inefficient. Despite lengthy tortuous debates, the Parliament does little to improve on the complex and unworkable procedural labyrinth put forward in the 2016 APR and 2020 amendments. On the Crisis Regulation, now that the decision has been taken to reject the proposed repeal of the TPD (see ECRE’s analysis here), and to add a prima facie recognition mechanism, the Parliament’s position looks more promising. In addition, Parliament also rightly rejects the force majeure concept. That said, given that the use of derogations remains, the final position will need to be analysed to assess the balance between positive and negative elements.
Parliament has attempted to sink the Instrumentalisation Regulation by requesting an impact assessment. When it reports, a motion to withdraw the proposal may be necessary, given that there remains some interest in it on the Council side. Parliament is also holding strong on its resistance to the codification of instrumentalisation in the SBC reform proposal.
The Council lagging behind?
While Parliament is progressing, the Council is lagging behind. The French Presidency made something of breakthrough with the gradual approach agreement, largely through working at inter-governmental level to secure the buy-in of key states. The Czech Presidency continued efforts (see ECRE’s assessment here), but progress is stalling under the Swedish Presidency: as so often, tentative agreement unravels when the Member States get down to the details of the more contentious proposals, the RAMM and the APR. Unlike in the Parliament, barely any substantive discussion on the Crisis Regulation has take place. Although the actual tools and terms, and formulations and gimmicks, may change the heart of the matter is always the same – what is the balance between “solidarity” and “responsibility”? What are the rules on sharing of responsibility for asylum applications among the Member States? And is there an alternative to Dublin that a majority of the states could agree on?
In 2020, as in 2016, the legislative proposals put forward by the Commission, following discussions with Member States, did not fundamentally reform the Dublin rules but instead add compensatory solidarity mechanisms. It could be politically possible to reach an agreement on such a system, except that, for both rounds of proposals, there is a separate proposal which also increases responsibilities at the borders, in the form of the APR, original and amended.
Thus, the increased solidarity has to compensate not just for the (perceived) unfairness of the existing rules but also for the increased responsibilities generated by the proposed procedural changes, the effects of which are hard to predict due their complexity. Whether this is a better system compared to the status quo is very hard to assess for each Member State, even before amendments to adapt the balance and introduce “get-out” clauses are proposed.
Developments in the Council positions
The Council appears far from agreeing on its positions on the RAMM and APR which would unlock trilogues with the Parliament, according to the Roadmap. Having made some progress on solidarity, Member States are stuck on the other side of the deal – the increased responsibilities at the borders which is supposed to go along with the increased solidarity. On the APR, the recent compromise documents show that most of the key issues have yet to be decided. In addition, complex amendments and even new concepts have been introduced, with the process seemingly being driven as much by the Commission as by the Member States. It is hard to analyse the content because it is so fluid, however many of the proposed changes are exemptions and offsets, as Member States try to escape their obligations.
One new element to break the deadlock is the concept of “adequate capacity”, which seems to have been introduced in order to quantify Member State responsibilities, by ensuring that a certain number of applicants are processed in border procedures. The overall EU “adequate capacity” is the resources needed to process a specified number of people in border procedures, whereas each Member State’s adequate capacity is the resources it needs (or people it should process) in border procedures. When a Member State reaches its adequate capacity, i.e. when it has reached the number set for people to be processed in border procedures, then it can reduce the use of border procedures (i.e. the border procedure is no longer mandatory for some categories of people). Adequate capacity serves as a target that MS are encouraged to hit so that they can then stop /reduce the use of the border procedure.
While the overall EU “adequate capacity” is based on various factors, each Member State’s “adequate capacity” (the number of people it should process in border procedures) is based on the EU’s overall adequate capacity divided by its (that Member State’s) share of irregular entries and disembarkations after SAR. There is therefore a risk that it is a recipe for pushbacks – a Member State will want to have a lower “adequate capacity” – fewer people that it has to process in a border procedure and because the “adequate capacity” is calculated based on number of arrivals and SAR disembarkations, the Member State will want to reduce both. Whether this concept or the changing rules on responsibility or the APR itself go anywhere on the Council side, remains to be seen. Similarly for the RAMM. It may be that elements of each are extracted and put together; it may be that neither can be agreed. And both Crisis and Instrumentalisation look unlikely to advance.
An inter-institutional clash?
This all seems to be heading towards an inter-institutional clash, with the Council to push for trilogues and then adoption of the seven proposals where that is possible (SR, QR, rRCD, RD, Eurodac, URF, and SBC). Parliament will then have to decide whether to agree. If it does, this would mean that the political cycle closes in April 2024 with the adoption of these seven proposals, but without the RAMM, APR, Crisis Regulation or Instrumentalisation Regulation.
What is a better reform?
The question arises as to whether this partial reform would be enough, and whether it would improve the Common European Asylum System? The Commission, as the initiator of the reforms, is urging that they be completed, arguing that what is agreed does not have to be perfect, it just needs to be “better”. Which begs the question – better for whom?
For the Member States, their concern is that the system be better for them, in each case that tends to mean reducing their responsibility – either by limiting the total number of people arriving or by adapting the rules so that they are responsible for fewer people. For the Parliament, while there have at times been efforts to make the system better in the sense of fairer or more efficient, very often the driving force has been the need for an EU response to the challenge of displacement, whatever the content. In recent debates over maintaining the “package” approach, the argument has been that a better conclusion to the reforms is one that includes proposals on “solidarity” and not just on security matters, hence the need for RAMM, APR and Crisis to pass, not just Screening, Eurodac etc
Reform without a cornerstone?
If the reform is concluded with the seven proposals adopted, it would mean that the supposed cornerstone of the Pact, the RAMM, does not pass, and that the major flaw in the system, the Dublin Regulation, is not reformed. This would tend to suggest a failed reform, rather than one that creates a “better” CEAS – that is, until the content of the proposals, and the co-legislators’ positions, is examined. Without repeating the volumes of analysis on the topic, the original RAMM proposal does not improve greatly on Dublin; the Parliament’s (likely) position does not change much; and who knows what the Council’s position on RAMM actually is. Nonetheless, if RAMM alone passes it could be valuable, even though it doesn’t change the Dublin rules: it would add (compensatory) solidarity mechanisms with a legislative basis. However, the benefit would be cancelled out by the APR if that also moves forward. Both the Parliament’s and the Council’s positions on the APR actually worsen an already awful proposal, which creates an unworkable and unfair system focused on containing more people at the borders, and which is likely to result in more pushbacks as a consequence. While that may be considered better by some, it is certainly not better from a protection perspective, nor from the perspective of ensuring respect for EU law.
Thus, the current state of affairs – from the highest political level to the lowest technical detail – suggest that rather than trying to get all proposals accepted at all costs, the effort needs – still – to be on wrapping up the process with as little damage as possible, withdrawing the proposals that have not passed, and focusing on managing displacement in practice.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)