The Commission’s priorities have been re-ordered due the COVID emergency, and rightly so. Although it is apparently ready to be published, we will be waiting longer for the long-awaited European Pact on Asylum and Migration. There is still a slim chance that it is released next week, should agreement be reached on the recovery plan, but it is more likely to be September with legislative proposals to follow even later. The delay is no cause for regret, though, for four reasons.
First, there is already enough work to do – and the tools available for action.
Monitoring the impact of COVID on asylum, EASO notes that globally the risk of displacement has increased even though options for travel are limited. In this, it echoes UNHCR and IOM which jointly warned that the health emergency will lead to an increase in displacement. EASO also reported on a dramatic drop-off in asylum applications in Europe during the lockdown.
As most people arriving in Europe do have protection needs (when the correct figures are used– see ECRE’s briefing), all of this means that many people in need have been stuck en route or in the place where they endure persecution or violence. To European countries’ credit, decision-making has continued during the lockdown, with efforts made to address backlogs; they will now need to scale up asylum capacity – and ensure access to territory and to the asylum procedure, both of which did not endure so well during the lockdown.
As in other policy areas, starting again should not just be going back to the way things were. ECRE has now published all the 2020 country updates in the AIDA database, which provide a detailed comparative analysis of what is actually happening in asylum systems across Europe. The evidence contained demonstrates the persistence of implementation gaps, covering registration numbers, reception conditions, flaws in decision-making, and lack of respect for procedural guarantees. The actual nature of gaps varies from country to country, but there is a mountain of work to be done, indicating the crucial role EASO can play to support Member States to improve their asylum systems, and the Commission’s role in evaluating implementation of EU asylum law, offering support and acting as enforcer when needed.
Thus, the delay in the Pact is not an excuse for inactivity. People seeking protection in Europe do not arrive into a legal vacuum: there is a complex intersecting framework of EU and international law setting out their rights and the obligations incumbent on states. Pretending otherwise is to justify the violations that become standard in some European countries. Policies in place have led to humanitarian crises in Europe (and elsewhere) which need to be addressed; the unfairness of the system needs solidarity mechanisms including relocation, which is working on the basis of agreements and standard operating procedures, and which needs to be expanded and rendered predictable and longer term.
Second, the Pact cannot provide all the answers.
It could be argued that Commission President Ursula von den Leyen handed a poisoned chalice to her incoming Commissioners by asking them to prepare the Pact. It has become the latest attempt to provide a “solution” to Europe’s migration “problem”. Expectations have mounted but many will be disappointed simply because it’s not possible for the Pact to satisfy everyone (or perhaps anyone).
ECRE highlights that the legislative proposals that accompany the Pact will in any case be more significant, and the technical details within them have the greater potential to do good or harm. But proposing solutions is premised on the idea that migration is a problem for Europe that needs to be (and can be) “solved”. Avoiding this framing is important – alternatives, recommendations, innovative activities should all be developed but talk of problems and solutions precludes seeing migration as something positive and indeed necessary for Europe, as well as inevitable. Forced displacement IS a problem, but it is a global challenge and not one that specifically or particularly affects Europe.
The third reason not to lament the non-arrival of the Pact is fear about its content.
The Pact – or more specifically the accompanying legislative proposals –sounds increasingly worrying. As argued above, probably no-one will be pleased with the Pact. But the latest developments suggest that some will be less pleased than others, including those working on the right to asylum. ECRE argued that the Pact would be a chance for a change of direction and a way to bolster asylum in Europe. Rumours indicate it will be a continuation of the policy of prevention of arrivals and prioritisation of stopping “secondary movement”, regardless of the costs.
That policy can be summarised as BDD – Borders, Detention, Deportation. Policies based on preventing or deterring arrivals and then on containment and return, have unfortunately always been central parts of Europe’s approach asylum and migration but they gained momentum after the political crisis of 2015/2016. And proposals for reform of the EU’s legal order attempted to codify these methods. While the BDD objective remains the same, the methods and legal trickery proposed to render lawful this inhumane model could differ.
The latest information suggests that the proposals will introduce a “pre-screening process” to be followed by the use of an accelerated border procedure for those who make it through (and indeed for all people who wish to claim asylum). The pre-screening would filter out the people with “abusive” or “manifestly unfounded” claims to be channelled into return processes, with the others channelled into the second-rate asylum procedure at the border. Given the need for detention centres, the attempt to rapidly return (be it on inadmissibility or merits grounds), and the use of expedited procedures, it is another twist on the Greece islands model.
Without the details, it is impossible to know or even to speculate on how it is proposed to overcome the multiple legal obstacles that arise here. But this is still an approach that views EU and international law as an obstacle to overcome or a technicality to be adapted as required by the political and pseudo-security concerns of states. Even now, the lawyers will be working on solutions that allow for the presentation of detention as non-detention, of shoddy procedures as fully respecting procedural guarantees, and this BDD, borders, detention and deportation, model as operating “in full conformity with human rights”.
The model rests on the myths that, first, most of those arriving in Europe choose to do so (and can choose not to do so) and are not entitled to protection, and, second, that they can be easily deported. We will hear endless references to the recognition rates of 38% showing that most asylum applications are rejected (with the implicit or explicit assumption that the other 60% are abusive or underserving). As ECRE explains in a recent briefing, asylum figures are often misrepresented, for example this figure only shows decisions at first instance. Other problems including merging of inadmissibility and merits decisions; many cases are very complex. Following legal processes to their end and including decisions after appeal and review shows that most people arriving in Europe do need protection, so filtering them out and sending them back is not possible. In addition, for those who eventually receive a rejection decision after exhausting all remedies, repatriation is challenging. The key obstacle is the unwillingness of countries to accept back their nationals (or third country nationals), and there is no answer to this yet.
The countries at the borders should be concerned about hosting large-scale detention centres, be they called hotspots, controlled centres, prisons or anything else. The countries that continue to be obsessed with “secondary movement” are equally aware of the likely humanitarian consequences but consider they are willing to tolerate the situation so long as people do not move onwards.
Fourth and finally, the prospects for reaching an agreement do not look much better than in 2016, so the Pact and proposals will be but the start of a process.
There have been significant political developments on asylum and migration since 2016 but they pull in both directions. The 2016 package was derailed by conflicts between the Member States and lack of agreement between the co-legislators, the Council and Parliament. The first and perhaps deepest conflict could be over-simplified as East versus West: the refusal of the V4 (and initially Romania) to accept mandatory solidarity, in the sense of accepting relocation of people from Greece and Italy. The conflict went all the way up to the CJEU, where the Judges sent the applicant Member States packing, with considerable disdain. Despite the swelling of their ranks to include Austria, this conflict is probably resolved as “flexible solidarity” is now the order of the day. This means that solidarity will be mandatory but that Member States can choose from a toolbox, which includes something for everyone, even Viktor Orban, such as sending border guards and returning people as solidarity options.
The other conflict was loosely characterised as North vs South but could perhaps more accurately be described as centre versus border countries, and it is likely to play out again. The loosely aligned “Southern Seven” objected to elements in the 2016 proposals which would have had similar consequences to the screening and border procedure, such as permanent responsibly and the inadmissibility/pre-Dublin checks combined with safe third country concepts. A major difference is the change in government in Greece, with the new government closely allied with the President and Vice-President of the Commission, and more likely to buckle. Some might also be bought by offers of Schengen membership. But is it feasible that Italy and Spain, for example, actually accept the plans?
In the last round, the European Parliament came out with some credit, quickly reaching positions on the proposals, and largely being ready to defend the right to asylum. The dynamics at European Parliament now are very different. The end of the grand coalition arrangement, more fragmentation, and a noticeable hardening in position of the centre-right EPP mean it could take longer for Parliament to reach an agreement (although an eventual position might be closer to the Commission’s and Member States’, given the strong EPP/centre right element across the latter two). Other political groups will want to have a say in the agreement, though, and the Greens, Renew, and S and D must keep a distance from the current EPP line.
The politics goes beyond Europe though, because the BDD model in the Pact relies on other countries. The Pact will continue the fixation with using external policy, funds and tools to prevent migration to Europe, with external cooperation – or externalising Europe’s responsibilities – at its heart. But there will be more challenges to buying cooperation. Relying on Turkey as a host and buffer is already more difficult because the situation for refugees in Turkey has worsened, creating legal challenges and ethical concerns with preventing people leaving Turkey or deporting people back to it. The political environment in Turkey is more unpredictable, while at the same time President Erdogan is more willing to use tactics that disrupt and divide the rest of Europe, and Turkey demands more and more in exchange, as the Libya and Syria “safe” zones episodes showed.
While some countries also seek to benefit from exploiting Europe’s migration panic, in others public opposition makes it difficult for governments to cooperate with Europe’s agenda, for example, on deportation or containment, with popular opposition growing. Externalising tends to be based on sometimes naïve idea or neo-colonial notions that other countries are so poor and weak (and undemocratic) that they can be bought off with some development funds. Or the even more preposterous idea that DG Trade is somehow pliant and ready to let trade policy be instrumentalised as leverage to achieve any other purpose that might be proposed by internal security people. The increasing global needs that result from COVID, among other factors, imply that external affairs policy-makers, by the development, trade or security specialists, should – and will – continue to resist incorporation of migration control.
Thus, the Pact and new proposals will be with us soon enough but before and after its launch, the work on making asylum function in Europe, and all the relevant flanking measures, such as relocation, must continue. Its non-appearance and the prolonged debate and negotiation on its content justify neither inactivity nor violations.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)