One of ECRE’s predictions for the Pact was that no-one would be happy with it, and so it has come to pass. The next few weeks will witness a competition about who is most unhappy with it, but when the dust settles the detailed debates on the nearly 500 pages of proposed legislation will begin. ECRE is working collectively to prepare a joint civil society response to the Pact and detailed legal analysis of the proposals, but some preliminary comments on the politics of it all are possible.

For civil society, unhappiness with the Pact is about the lack of change in the underlying EU strategy on asylum and migration, based on preventing arrivals regardless of protection needs and regardless of the consequences. The Pact introduces new ways to do this but doesn’t fundamentally change the externalisation focus. Borders, detention and deportation remain the order of the day.

There is, though, a positive change in the rhetoric and framing of the issue by the Commission, where the message now is that migration is good, in Europe’s interests and attempts are made to normalise this policy area. Commissioner Johansson continues to underline the importance of access to asylum. There is an effort to deal with asylum and migration in a calm way instead of as a crisis. Unintentionally echoing ECRE’s new campaign the Commissioner stated that this is Not Rocket Science.

Europe needs leaders who speak about protection obligations and the positive impact of migration of all types. It is a welcome contrast with the poly-crisis hyperbole of the previous Commission. These are manageable issues, given Europe’s resources and demographics, and it just plays into the hands of the extremists to say otherwise.

Nonetheless, there is a disconnect between the positive framing and the proposed legislation: despite some improvements, it consolidates the strategy of preventing arrivals rather than aiming to make asylum work in Europe. Given this, the unhappiness of the anti-migration populists, including the V4, is harder to fathom. The Pact is kind of what they wanted, but still it is not enough.

The Commission has presented the Pact as offering something to all Member States and it is based on overcoming the conflicts that scuppered the 2016 asylum reform package. It is based on border containment and increasing returns in exchange for increased solidarity, with solidarity compulsory in some circumstances but à la carte.

Bordering the EU

The border containment/returns piece is to be achieved in two steps: first, a pre-screening process and second a linked asylum border procedure and return border procedure. The pre-screening is an expansion to up to five days of the short screening currently allowed by the Schengen Borders Code, including for health, security and identification purposes. Questions arise as to the rights of the people undergoing the screening – reception; legal assistance; implications of the decision they receive and whether and how it can be challenged; the grounds for refusal of entry; and the use of the data collected (especially when read in conjunction with the proposals on Eurodac and interoperability). More detailed analysis of the legal instrument will only partially answer these questions and amendments should seek to clarify and add safeguards (at the very least).

A monitoring mechanism at the border, managed by the Commission with FRA, is welcome (but not a substitute for independent border monitoring), as are the strong words from the Commissioner on the unacceptability of push-backs. The AIDA database managed by ECRE shows that pushbacks are a serious problem in at least 13 countries and cooperation on tackling the problem is willingly offered by civil society.

For the asylum border procedure, in the Regulation establishing a common procedure for international protection (CPIP) the scope is not as wide as feared (although ECRE’s concerns about quality remain, with reductions in rights especially concerning appeals). Rather than the current situation where the border procedure is an option for Member States, and one they rarely use, under the proposed CPIP, it will be compulsory for those from (nationals of/stateless and resident in) countries where the protection rate is under 20% and optional where the safe third country and safe country of arrival concepts might apply. There is a twelve-week time limit (extended from the current four weeks) meaning that detention can be used during this time. There are also exemptions to the use of the border procedure, including for unaccompanied minors, families with young children, medical cases, and where detention would be necessary but cannot be used. And, more intriguingly, it seems that Member States do not have to use the border procedure for those from countries not cooperating on readmission (so long as there has been prior notification, making the link with the visa code and the Commission’s role in readmission).

As one of the key objectives of the Pact is the chimeric attempt to increase returns, the recast for the Return Directive remains on the table, with some revised elements. The return border procedure follows directly with either a joint asylum and return decision or two decisions issued at the same time, there is then a twelve-week period to implement the return decision, usually with detention (although there are exceptions and qualifications). Given the difficulties of rapid decision-making and return, and despite the important CJEU decision against Hungary, the risk of longer-term detention and the shadow of the Moria camp hangs over the proposal.

A key element not to overlook is the Regulation for addressing situations of crisis and force majeure. This adjusts the legal regime that applies at the border in situations of crisis and force majeure. In a crisis, derogations from the procedural regulation are allowed, meaning that the scope of the border procedure expands to become compulsory for people from countries where the protection rate is below 75% and that the length of the procedure – and allowed time of detention – is extended to 20 weeks for both asylum border and return border procedures. It also includes changes to solidarity and on the positive side, provisions on granting subsidiary protection (similar to the Temporary Protection Directive, which is to be repealed).

The force majeure section was presumably included to ensure support from Greece for the rest of the proposals, as the Greek government has been promoting a wider use of force majeure concepts during the COVID emergency. There are some worrying elements to be examined in legal analysis, however, crucially, derogation from the obligation to allow access to territory and asylum is not included. Such a measure would have been legally questionable in any case (ECRE’s recent legal note explains the limited scope of allowed derogations from EU and international law).

Dublin is dead; long live Dublin?

The provisions on responsibility sharing and solidarity are contained in the dense Asylum and Migration Management Regulation. Of all the new pieces, this is the most trying. A few preliminary reflections: first, the announcement of the death of Dublin is rather premature. In a normal situation, the basic rules for allocation of responsibility among the Member States preserves the hierarchy of criteria in Dublin III. The first country of arrival principle is still the default option, i.e. if the other criteria do not apply (or are not APPLIED) then the country of entry into the EU is responsible for the case. Commissioner Schinas suggested that this constituted a change because it used to be the first criterion. In law it was not – the criteria at the top are those on unaccompanied children and family reunification – but as ECRE’s study on implementation of Dublin III shows, in policy at least certain Member State make the first entry criterion the go-to option rather than the default. The question is then will the hierarchy be respected if the new legal instrument is adopted?

There are also some positive changes: an expanded definition of family to include siblings; a recalibration of evidential standards; and a new criterion related to academic qualifications; long-term residence rights should be granted after three years, an incentive to stay. But also elements that echo Dublin IV: permanent responsibility is back, as is the punitive approach to onward movement; the take-back request becomes a “notification”; and the right to appeal is reduced.

The solidarity measures are voluntary in general and become compulsory in two situations: migratory pressure and in the context of disembarkation. As has been widely trailed, Member States can select from options – primarily relocation or sponsored returns, with in some cases the additional possibility to provide solidarity through capacity building for asylum, reception or return or for the “external dimension”.

A complicated system explains that Member States make contributions to a solidarity pool, with contributions determined by equally weighted population size and GDP (with possible reductions if Member States are hosting relatively high numbers of beneficiaries of international protection), and rules on adjustments if the contributions don’t match needs. The “migratory pressure” is assessed by the Commission, with support from the EU Asylum Agency and Frontex, based on a list of factors and the solidarity needs are also part of the assessment. Solidarity for disembarkation is based on projections in an annual report.

Complexity is nothing to be scared of

It is fiendishly complicated, especially as the new and amended proposals have to be read in conjunction with the 2016 proposals (or the preliminary agreements reached on certain of them) and the question does arise as to whether the complexity renders the proposals unworkable, particularly the solidarity rules. Efforts to create fast-track processes for certain groups of people often don’t deliver on their promises of efficiency or economy. The countries that introduced such tools including additional accelerated procedures are not processing cases any more quickly, as the AIDA database shows. Nonetheless, the cry to simply invest in the regular procedure, with full safeguards, and start tackling backlogs and delays that way is not heeded. Neither is the need to improve the wider asylum system and tackle implementation gaps – registration, reception, decision-making, inadequate procedures, so the exploration of whether there is a workable model here is essential.

With a little help from our friends

The external dimension has been much highlighted but discussing it risks becoming repetitive. There is a continuation of efforts dating back twenty years to control external policies by internal affairs policy-makers in order to promote a narrow agenda of migration prevention and readmission. The language echoes the defunct partnership framework, Valletta and anything else you care to mention. It may be counter-productive, risking diverting funds from useful activities (such as tackling the reasons for displacement) and unwelcome in countries of origin – although efforts will continue to buy support with the neo-colonial belief that these impoverished others will bow down, and to exert leverage through offering and withdrawing visas and possibly some mobility (but never the regularisation that is sought).

To step up efforts to deport people, the Pact does introduce an EU “Return Coordinator” (now there’s a miserable job for someone) and return representatives from Member States. These are attempts to strengthen the hand of interior ministries in the face of foreign policy doubters. The pressure on Tunisia is held up as an example, as is the recent gathering of interior ministers from five European and five African countries (quite the rogues’ gallery – and not just on “their” side). As usual, there is a risk of exploitation by unreliable and repressive leaders in other countries. In fact, scratch the comment that everyone is unhappy with the Pact – good news for tinpot dictators in other regions.

The unreconcilable politics of being EU

For our own tinpot dictators, despite professing outrage in their usual hysterical style, the Pact presents a chance to score some points against the EU and whip up nativist fury among their supporters, even though it was designed to get them on board. This package might have garnered the support of the V4 in 2015 or 2016 but it probably won’t now.

For the governing parties in Hungary and Poland, and to a lesser extent the Czech Republic, they just want to blow things up, and use this issue to spout nasty hate about people seeking protection and the evils of “Brussels” and Germany (while pocketing the EU’s money –solidarity of course welcome when it comes to funding). There is often deep racism and Islamophobia in their positions. While that’s going on (including in the probably quite painful JHA Council meetings), the real issues of flouting of rule of law, attacks on civil society (including our colleagues working in extremely challenging circumstances), and deep corruption should not be ignored.

For the other conflict, loosely that between north and south, at first sight, the proposal increases the responsibilities of the countries at the borders without offering adequate solidarity in exchange. But there are significant changes compared to the 2016-2019 attempt. First, France and Germany have been the main sponsors of the plan, and have more ways to exert pressure. Second, the change in government in Greece breaks up the unity of the Southern Seven, with the government certainly more pliant, and indications that it is already on board (including concessions in the documents). Spain and Italy are another story, particularly when the Italian far-right opposition parties have had their lawyers go through the text. Other countries with long external borders, such as Finland, will also be negatively affected.

Fundamental issues of trust may not have been surmounted: the countries in the north simply don’t trust their southern counterparts to manage asylum – or more specifically to prevent the dreaded “secondary” movement – and this lack of trust seeps through the proposals, in the provisions on responsibility sharing and capacity building, and the increased role of the agencies, and of the Commission in assessing the situation in the countries of arrival. The latter is certainly not wrong per se, it is part of the Commission’s role but needs to cover all elements of non-compliance and all countries for the Commission to be an honest broker.

For the EP, there is the continued presence of far-right politicians of all stripes, usually seeking attention like their national counterparts, but also the harsher position of the centre-right EPP, meaning that any agreement will be difficult and one that represents a progressive position will be even more difficult.

The EU needs to do something

The Commission and the mainstream and progressive parties in the Parliament want to show that the EU can offer something to Europeans on this tricky issue, which is valid and admirable, but has the leadership of the Commission made a tactical error by launching into an unresolvable issue? Have they handed the Member States a stick with which to beat the EU? There is another reading: the Commission has done its job. It was desperate to get the Pact out. Now it has been launched and if it doesn’t work, that is due to the lack of agreement among the Member States, in the Parliament and between the two. The limits of harmonisation will be confirmed but that is neither the fault of the EU nor will it be the end of it.

Ultimately, on asylum and migration there is polarisation and conflicts that are probably irreconcilable. NGOs working on the issue are parties to the conflict, rather than neutrals. Most would agree that asylum and migration need to be better managed and shouldn’t be dealt with as a perpetual crisis. But they don’t agree that preventing border crossing and increasing return constitutes good management (even before rights considerations come into play). There is a different problem analysis and alternative views on how to improve the system compared to many policy-makers. Return policy is one point of disagreement, with policy-makers often seeing it as the key, while for civil society the misrepresentation of protection rates and definitions (see ECRE’s comments), problems in asylum decision-making suggest it is not a “solution” – and already benefits from disproportionate attention. The continued reference to first instance decisions, despite the high percentage of negative decisions that are overturned on appeal, combined with attempts to further reduce appeal rights, remains a frustrating injustice particularly characteristic of asylum law, where basic elements of legal processes are considered special luxuries.

Similarly, the focus on border closures to target “undeserving” economic migrants remains a point of longstanding disagreement. Inter alia these measures often hit refugees the hardest as they are the people who are forced (and allowed) to cross borders to flee – exactly the impact of the EU-Turkey Deal where the people prevented from entering the EU are mainly refugees. (Any theories as to why the protection rate has fallen?)

The legislative proposals follow from the assertion in the Pact that the system “cannot be fixed” but demonstrate a continuation of attempts to fix political problems and conflicts through the use of legislative measures. Whatever ones view of these efforts, the Pact and the proposals are out, so the work of analysing and proposing changes to improve fairness, reflect jurisprudence, and also to simplify and improve efficiency begins. In the parallel, though, the fiction that there is “no system” must also be challenged: while the negotiations take place the irreconcilable Member States are not operating in a vacuum – they all have clear obligations under EU law (and of course international law) as reiterated in recent court judgments. As the Commission has got the proposals out, with the agencies, it too should focus on tackling violations, supporting compliance, dealing with humanitarian emergencies, and generally making asylum work.

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

Photo: ECRE

This article appeared in the ECRE Weekly Bulletin . You can subscribe to the Weekly Bulletin here.