The New Pact on Migration and Asylum offers a crucial first step towards shared responsibility and more solidarity between member states. At the same time, it also erodes the rights of asylum seekers through lowered safeguards and de facto blanket detention at the external borders. Solidifying democratic scrutiny and focusing on fundamental rights protections will be vital in the next legislative cycle and implementation phase.
For many years now, the EU asylum system has been in a state of complete disarray. Member states at the external borders expressed dissatisfaction over the unequal distribution of responsibility by increasingly flouting their obligations. Other member states did not want to take responsibility either, which led to poor compliance and enforcement. As a result, reception conditions fell below all standards of human decency, access to asylum was restricted, and violent pushbacks occurred with impunity. In the race to the bottom, mutual trust dropped down to zero at the expense of asylum seekers, who saw their rights infringed upon and their lives increasingly put at risk.
A first step towards solidarity
In 2020, the New Pact on Migration and Asylum (hereinafter ‘the Pact’) was presented as a promise to fix this broken system. The key to a meaningful solution lay in addressing the root cause of the dysfunctionality: the unequal distribution of asylum seekers across member states. Yet, political will for fair sharing of responsibility continued to falter.
The newly adopted Asylum and Migration Management Regulation (AMMR) moves in the right direction by recognising that all member states have a shared responsibility and that providing solidarity is non-negotiable. The new mandatory solidarity mechanism, combined with the so-called ‘Dublin offsets’, will lead to more relocations than are currently happening on a voluntary basis. This is a much-needed improvement, given that relocation is the only meaningful form of solidarity that will truly decrease the pressure on member states at the external borders. Once the regulation becomes applicable, this form of solidarity should be prioritised.
Other improvements in the Pact are also worth highlighting. For instance, the recast Reception Conditions Directive (RCD) strengthens the reception standards for asylum seekers in terms of housing, healthcare, and quicker access to the labour market, and prohibits the detention of children. Finally, the new Union Resettlement Framework Regulation (URF) is the first-ever permanent, EU-wide response to the need for more global solidarity. It incentivises member states to offer safe and legal pathways for vulnerable refugees, so they do not risk their lives on treacherous journeys in search of protection.
Erosion of rights and paying off responsibility
While offering improvements in some areas, the Pact erodes asylum seekers’ rights in others. To begin with, the Asylum Procedures Regulation (APR) lowers the current standards and makes it easier for member states to dismiss asylum applications without an examination of their merits based on ‘safe third-country’ clauses and to shift the responsibility to third countries instead. However, the criterion of having misled the authorities as a ground for the mandatory application of the border procedure might be interpreted so widely that many asylum seekers could be subjected to this.
Meanwhile, the expanded and now mandatory asylum and return border procedures may lead to a situation where many categories of asylum seekers are systematically locked up for up to six to nine months at the external borders. Problematically, even though provisions under the RCD should imply that asylum claims of children and their parents cannot be processed in a border procedure, there is a risk that such groups may nonetheless be subjected to it, irrespective of vulnerability checks and foregoing the applicable procedural safeguards. At the same time, no guarantees to prevent pushbacks are provided for, as the obligation to monitor fundamental rights, importantly, does not cover border surveillance.
Moreover, the new Crisis Regulation provides a menu of derogations for broadly defined situations of crisis, force majeure, and ‘instrumentalisation’, all at the expense of asylum seekers. This leads to the exact opposite of a harmonised system wherein member states can rely on each other.
The inclusion of ‘instrumentalisation’ is also highly problematic, as it stems from the initial proposal for a self-standing Instrumentalisation Regulation. If implemented, this would have been ineffective and fraught with violations of EU primary law and fundamental rights, according to a substitute impact assessment commissioned by the European Parliament. Its incorporation in the reform does not lessen any of the identified risks, given that the derogations include an extended duration of the border procedures and a channelling of all asylum seekers, even those from countries with high recognition rates like Syria and Afghanistan, into these border procedures, where fewer safeguards apply, and large-scale rejections are more likely. This further increases the risk that asylum seekers are sent back to countries where their lives may be at risk.
Finally, despite the potential positive impact described above, the solidarity mechanism features a weakness in that member states can pay off their responsibility. We already see the first signs of reluctance against pledging relocations, even among countries not historically against taking in asylum seekers in this way: the Dutch Parliament recently adopted a motion calling upon the government to prioritise financial contributions over relocations. The risk that this will become the prevailing tendency is huge. Moreover, it could incentivise member states at the external borders to forgo their obligation to register, screen, and channel claims in a border procedure, leading to a continuation of pushbacks and secondary movements.
Priorities after the EU elections
In the coming months, the European Parliament and national parliaments will need to keep an eye on the EU and national implementation plans for the Pact. Many practical implementation issues are bound to arise, especially considering the complexity and bureaucracy surrounding the new rules. For instance, the shift from take-back requests to take-back notifications and the expanded use of safe third-country concepts without guarantees of readmission will likely push asylum seekers into legal limbo.
Therefore, it is essential to establish a dedicated monitoring group within the LIBE Committee for regular updates from NGOs, member states, and the European Commission on the Pact implementation. This would ensure fundamental rights compliant implementation, for identifying legal gaps or discrepancies, and to pressure the Commission to enforce compliance. The Commission has always referred to the Pact’s robustness when confronted with criticism on the lack of enforcement. This will be its moment of truth. Without enforcement, there will be no compliance and without compliance, there will be no mutual trust, which is essential for a common system to work. Therefore, the rules need to be enforced by the Commission mainly to prevent systematic pushbacks at the external borders.
Meanwhile, the heightened focus on deterrence by the Commission and member states has resulted in more deals with autocratic leaders, despite violating the democratic control process, all while fundamental rights safeguards are grossly neglected. Despite the European Parliament’s objection to the pay-out of the €150 million to Tunisia under the controversial EU-Tunisia deal and the EU Ombudsman’s formal inquiry into whether the agreement is human rights-compliant, similar deals were struck with Egypt and Lebanon shortly after.
Relatedly, the foreseen evaluation of the safe third-country concept under the APR in 2025 is problematic, as it could be used to loosen the requirements even further and open up space for more Rwanda-like deals. The European People’s Party (EPP) – likely to hold the next Commission Presidency – has given a taste of what is in store by floating this idea in their electoral Manifesto. Further support was expressed in a recent letter by 15 member states, which called on the Commission to explore such arrangements as a way to reduce irregular migration. Framing these deals as viable precedents for the future is highly problematic, first and foremost from a legal perspective, but also considering the risk of weakening the EU’s position globally, and practical and financial objections identified so far.
New proposals outside of the Pact are also on the horizon, all requiring careful scrutiny. The Facilitator’s Package, for instance, which was revised in an effort to counter migrant smuggling, does not offer a clear enough mandatory exemption for humanitarian assistance and thus risks increasing the criminalisation of solidarity with refugees. The area of returns will also see new developments as the Council is discussing new initiatives in both the internal and external dimensions of return. To ensure the proper functioning of national asylum systems, it will be necessary for internal bottlenecks in member states to be resolved, as also highlighted by the EU Return Coordinator. On the external dimension, a compelling and mutually beneficial offer to countries of origin would make return agreements more effective. At the same time, we must ensure that fundamental rights, in particular the principle of non-refoulement, remain safeguarded and that the return system remains dignified. Unfortunately, the European Parliament ultimately could not find a common position on the recast Return Directive, with negotiations blocked by one of the political groups.
All of these priorities only underline that as Members of the European Parliament and EU citizens, our work certainly does not end with the adoption of the Pact. After the EU elections, it will become ever more important to continue the fight for a just, humane, and realistic asylum and migration system that safeguards fundamental rights.
Tineke Strik is a Member of the European Parliament for the Greens/EFA and a Professor of Citizenship and Migration Law at Radboud University.
This Commentary is part of an EPC series on the New Pact on Migration and Asylum. To promote diverse and balanced discussions and inspire informed policy debates on the reforms, members of the European Parliament from different political groups were asked to share their views on how the reforms will help address some of the main political priorities ahead of the June 2024 European elections, as well as outline key challenges for the future. The first Commentary in the series, by Vice-President of the European Parliament Jan-Christoph Oetjen, can be accessed here, and the second Commentary, by MEP Lena Düpont, can be read here. The third commentary, by MEP Sylvie Guillaume, can be read here.
