While migration and asylum policies need a fundamental overhaul, non-compliance with the newly reformed rules jeopardises the Common European Asylum System’s survival. A coalition of willing member states piloting the New Pact reforms can demonstrate the benefits of a common approach, but the EU must also make clear that non-participation comes at a high financial and political price.
As the European Council meeting on October 17-18 approaches, member states are ramping up their rhetoric on migration. Just days before the gathering of EU leaders, Poland’s Tusk government announced its intention to suspend access to asylum and abandon the principle of non-refoulement, due to fears that Russia or Belarus could exploit migration as a “Trojan horse” to destabilise the country.
While details of the Polish plan remain unclear, so is its potential to pre-empt threats of hybrid warfare, far-right and populist movements across Europe will celebrate the return of migration to the top of the EU agenda, and the decisive turn to national priorities, away from jointly agreed solutions. Their influence will only grow, if EU leaders fail to collectively and effectively tackle existing challenges in migration and asylum and are unable to craft a narrative that avoids fuelling discontent or the false notion that migration flows are out of control.
The reality is that they are not. The EU has seen a decrease in irregular arrivals this year (estimated at 140,000 so far, against a total of 270,000 in 2023), concentrated on just a few routes. Meanwhile, first-time asylum applications have also dropped by around 20%, stabilising after last year’s spike.
However, the relative decline in irregular arrivals or stabilisation in asylum requests cannot hide a profound malaise and simmering divisions. Illustrating this, in a letter to EU leaders from 14 October, Commission President Ursula von der Leyen committed to a series of further actions on top of the recent New Pact reforms, from strengthening partnerships with third countries to reduce irregular arrivals to speeding up the development of a new return framework. Yet, while the letter mentions the need for a common approach, and recalls the importance of implementing the adopted reforms, it fails to condemn member states’ unilateral decisions that diverge from the rules underpinning the Common European Asylum System (CEAS).
Similarly, the October European Council’s draft conclusions highlight that “migration is a European challenge that requires a European response”, but do not acknowledge that compliance with the new rules and unity are key to the CEAS future and, more broadly, EU migration and asylum policies. As the new policy cycle begins, the EU cannot proceed with business as usual, and a decisive shift is imperative to address the challenges ahead.
Teetering on the Edge of the Precipice: A Déjà vu for EU Asylum Policy
After a brief period of calm and reason over the summer – when most member states avoided divisive statements and unilateral decisions and focused their attention on implementing the New Pact reforms adopted in May – the honeymoon has abruptly ended.
In September, Germany extended border controls at all its land borders, triggering a chain reaction that threatens the future of the Schengen area. While countries like the Netherlands and France voiced support, Austria and Poland pushed back, calling the move “unacceptable.” Greece also expressed frustration, suggesting the decision would place more pressure on its asylum system.
As if these divisions were not enough to evoke memories of the chaos and political hysteria of 2015-16, several European governments have recently demanded stricter rules on returns while declaring their refusal to relocate asylum-seekers under the newly introduced responsibility-sharing mechanism. Meanwhile, the Netherlands partnered up with Hungary in asking for an opt-out clause from the reforms, in case of treaty amendments, criticising the EU’s overreach on migration despite being among the countries advocating for a hardline stance throughout the Pact’s negotiations.
Even before Poland’s Prime Minister Donald Tusk proposed a similar plan, Finland had already passed legislation to temporarily suspend asylum access. It was a predictable move, as many member states had already signalled they were prepared to use all means to derogate from EU asylum law, including by looking outside the framework just adopted.
Too Big to Fail: How Can the EU Avert Another Migration Governance Crisis?
In this context the October letter sent by von der Leyen to European leaders lays out a preview of the work programme of the European Commission for the 2024-2029 cycle. The letter highlights the need to strengthen cooperation with key third countries. Von der Leyen pledges to develop counter-measures to hybrid warfare and the instrumentalisation of migrants. She also commits to a targeted revision of the legislation adopted with the New Pact, and to explore “innovative ways” to manage irregular flows, including by pursuing the idea of “return hubs”. However, the letter falls short of condemning member states for their unilateral decisions and their stated intention to diverge from the commonly agreed, binding rules.
One cannot deny that migration and asylum policies need a fundamental rethink to effectively address today’s challenges. Recent events underscore the political turmoil that would ensue if instability – especially in the Middle East and Eastern Europe – led to large-scale displacement. Russia and Belarus could indeed exploit migration to destabilise their neighbours. Many, arguably too many, desperate people are also using the asylum process to seek better economic opportunities in Europe due to a lack of alternatives.
Some long-held taboos will inevitably be challenged, and may fall, in these circumstances. Member states and the Commission will continue to float ideas on how to shift migration control outside their borders, and appear determined to pursue ‘innovative solutions’ on repatriation. However, the solution does not lie in shutting off access to asylum seekers altogether. Cooperation with third countries may reduce arrivals on some routes, but it creates dependencies and unsustainable pressure on a few points of arrival and reception systems, as shown by recent developments in the Canary islands. Blanket measures, including the suspension of access to asylum in case of instrumentalisation, punish those genuinely entitled to asylum while eroding the rule of law and fundamental rights.
And the Achilles' heel that Russia and other hostile actors exploit is not the migrants themselves, but the EU’s failure to speak with one voice and stand united in the face of adversity.
Instead of revising the recently adopted reforms before they are fully implemented, and their impact carefully assessed, the von der Leyen Commission should remain firm and continue to remind member states that they, in fact, voted for these changes. It should use all its tools to resist permanent states of exceptions, where countries unilaterally suspend asylum rules, turning dysfunctionality into a core feature of asylum in the EU.
No member state can afford to allow compliance with the rules to become subject to political convenience. While the reforms are far from perfect, succumbing to electoral pressures and political demands and turning migrants and asylum seekers into the scapegoat of all Europe’s problems – from the housing crisis to an increasingly uncertain geopolitical future – instead of addressing them as such, could become a self-fulfilling prophecy, propelling populists and anti-European forces into a victorious path and consolidating their influence on EU policies writ-large.
A Coalition of the Willing to Lead on the New Pact?
Recent unilateral actions by member states, prioritising national interests, foreshadow the age of “non-Europe” in migration policy. With the European Parliament hearings around the corner, pro-European MEPs should now place these issues front and centre in their exchange with Magnus Brunner, the designated Commissioner for Internal Affairs and Migration. Policymakers must not lose sight of what is at stake. This is not ‘just’ about preserving access to asylum; it is about ensuring the survival of the CEAS itself.
But the future of the CEAS should not rest on the threat of systemic failure. On the contrary, the European Commission, Parliament and willing member states must seize this make-or-break moment to push forward a new rhetoric that emphasises the need for a common approach to asylum and migration. They must demonstrate – both symbolically and practically – the strategic value of unity, also in the face of the threats posed by internal and external destabilising forces.
While the Netherlands and Hungary are demanding opt-outs, France and Spain have asked to implement the rules ahead of schedule. Many national administrations are already working behind the scenes to ensure the New Pact’s implementation despite the many challenges. In her letter circulated ahead of the October European Council, von der Leyen stressed the importance of accelerating the implementation of the New Pact reforms.
Piloting the new rules among willing states – and focusing on more than just the restrictive elements – would test the system’s resilience and address shortcomings before the reforms’ full implementation in mid-2026. This could be done based on the rules agreed, with any further initiative to deepen cooperation being subject to clear principles promoting the supranational nature of the Union.
Targeted budgetary support, enhanced coordination, and a shared approach to managing risks and pressures – reinforced by a language of unity and solidarity – would project an image of a Europe in control of migration as well as of the discourse around it. This would send a powerful message to European voters and to those states demanding opt-outs, turning their empty threats on their head. At a time when some governments may wish to cherry-pick their policy priorities, non-participation in EU migration and asylum policies should become an increasingly costly proposition – financially, operationally, and not least politically.
Alberto Horst Neidhardt is a Senior Policy Analyst and Head of the European Migration and Diversity programme.
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