On Wednesday the anticipated announcement came that the Member States had reached an agreement on final piece of the EU Pact on Migration and Asylum, specifically the merged Crisis and Instrumentalisation Regulations. A few key points to be noted:

  • This is the beginning of the end – not yet The End

If the agreement brokered by the French Presidency in 2022 marked the end of the beginning of the Pact phase of the EU’s asylum reforms, this agreement brokered by an energetic Spanish Presidency marks the beginning of the end. It is however but one agreement among the many that are necessary to conclude the process. Contrary to some media reporting, it is not that the Council’s General Approach merely has to be “approved” by the European Parliament. The ordinary legislative process casts the two as co-legislators; the negotiations based on their respective positions, should lead to compromises.

Certain small improvements were made to get Germany’s support, although the game was already over when Chancellor Scholz decided to railroad his coalition into accepting the instrumentalisation provisions. Minor concessions were made to Italy, however, as with Italy’s last-minute antics that delayed the June agreements, it was largely posturing to a domestic audience – perhaps to mask the fact that it has just agreed to a set of proposals that are not in its national interest, for reasons that remain obscure.

There is certainly a fear, shared by ECRE, that Parliament will be too willing to concede. ECRE’s Policy Paper compares the positions of the two co-legislators on the other proposals and finds numerous differences (a similar comparative analysis of positions on Crisis and Instrumentalisation Regulations will follow). Although it should be noted that Parliament doesn’t even have a position on the instrumentalisation regulation, with the impact assessment it commissioned due to be presented next week.

There is immense pressure to agree to the Council’s positions, with the argument being made that it was so difficult for the Member States to reach an agreement that there is no further room for compromise or change – and therefore the Council’s positions must be accepted by the Parliament. Like many tactics in asylum and migration policy, it is an effort to avoid democratic scrutiny through making exaggerated claims.

Parliament has asserted itself by insisting on the package approach, in this final stage arguing that the Council must have a position on the Crisis Regulation, hence this week’s agreement The problem with this tactic is that all the proposals reduce protection standards, so the more of them pass, the worse the situation in Europe for refugees.

The Crisis Regulation has useful elements, but, first, it is not essential and, second, it comes with very high risks, mainly because…

  • It is not just the Crisis Regulation that has been agreed

The Council’s General Approach does not just cover the Crisis Regulation. It has agreed on a merged proposal, which combines the Crisis and Force Majeure Regulation, part of the Pact, with the pernicious Instrumentalisation Regulation launched in 2021.

By insisting on the Crisis Regulation, the Parliament has allowed the return of the instrumentalisation concept that had been blocked at Council level in December last year. In addition, the original proposal is not just about crisis situations – it includes legally nonsensical provisions on situations termed “force majeure”, which the Parliament removed from its position on the regulation and which the Council expands. Even the sections on crisis are, while strengthening solidarity, are also based on derogations.

In effect, the Council’s General Approach creates not one but three derogatory regimes – for situations of crisis, “force majeure” and “instrumentalisation” respectively. The latter two represent the codification of Member States’ efforts to evade their responsibilities. They both cover extremely wide and frequent sets of circumstances in which Member States’ may select from a range of derogations. This, namely the possibility to not apply asylum law, is the core objective of the merged Regulation, not strengthened solidarity as is misleadingly claimed by some Member States.

While states will be glad that they can now legally dispense with certain asylum obligations, ultimately at fault here is the Commission for putting these awful concepts into the proposals and insisting on re-integrating the wide range of derogations, some of which had been removed during the drafting of the Pact. The whole approaches undermine EU law and not least because…

  • It is unclear whether any of this can be implemented

With this week’s agreement, the end is in sight, which is positive in one sense – in theory, the focus should now return to implementation. The application of the new rules is likely to prove challenging, however.

First, the Council’s agreement on the merged Regulation, similar to those on other proposals is characterised by extensive discretion and complexity. For example, in the situation of crisis, at least four options are mentioned as possible rules on the use of the mandatory border procedure. These factors mean that monitoring implementation will be difficult.

Second, after years when compliance was low priority due to the supposed need to reform, whether Member States will now feel inclined to respect the law is also an open question.

Third, certain Member States are trying to game the system by ensuring implementation is focused on the elements of the new legal framework that interest them, specifically the border procedure. ECRE argues for comprehensive rather than selective implementation, with all implementation gaps to be addressed.

Finally, while the merged regulation agreed by the Council this week enables the final phase of the reforms, it may also mark the end of a common system. There will still be an immense amount of EU asylum law: the basic asylum regime as set out in the APR and the RAMM, themselves highly complex, and then the three derogatory regimes available to Member States, each of which allows for a choice among a range of adapted rules and derogations. This means that different rules will be in force across the EU at the same time, creating further challenges for monitoring and supporting implementation.

But there is yet a more obvious problem…

  • Key challenges will persist

One of the many tragic ironies of the process has been that, despite the deferential approach to the Member States throughout, it is unlikely that much will change in terms of achieving their respective priorities.

For some states, their overriding priority is ending “secondary” movement. When the Pact is in place, despite the expanded use of detention (or perhaps because of it), onward movement will continue. That will be of both asylum applicants and people with protection status – unless conditions significantly improve in the countries at the external border. But why would they? The increased responsibilities on these countries means that the opposite is likely. In addition, this week’s agreement, allowing lower standards to apply in so many circumstances, will also encourage onward movement.

For countries at the external border, on the other hand, their main priority has been solidarity, i.e. support from other countries primarily in the form of taking on responsibility for applicants. There is a solidarity mechanism, which is one of the positive outcomes of the reform, but it may not give adequate weight to relocation, and other states will use every excuse not to relocate people, be it in situations of migratory pressure or crisis – as they already do, with a few admirable exceptions. Indeed, they could already choose to relocate people but generally don’t. Similarly, states could also already respect the hierarchy of responsibility rules in the Dublin Regulation – which will be largely imported into the RAMM – but they do not.

Overall, people will still arrive in Europe seeking protection but they will face a harsher regime, making it harder to seek and be granted protection, and resulting in more people in detention, destitution and irregularity.

Thus, even after this week, much is still at stake and multiple further agreements will be needed. The Parliament still needs to agree a position – or not – on instrumentalisation, unless it plans to accept as fait accompli the Council’s effort to merge the proposals. The two then need to agree on the content of each file, to be determined partly on whether the Council agrees to respect the co-legislative process or seeks to impose its versions. Agreements on implementation plans – such as the deployment of Commission, EUAA and financial resources – may focus on certain priorities or aim at a more comprehensive approach. Finally, at national level, agreeing on a reality check would be useful. Despite all the time and effort, challenges will persist. There is a risk that they will very quickly become the next excuse for ignoring the new laws even after all the time and effort spent on reform.

Editorial:  Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)