Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

Madalina Moraru, Head of Research Group at the Centre for Judicial Cooperation of the European University Institute, and Senior Research Fellow at the Judicial Studies Institute, Masaryk University and ITFLOWS Project, Brunel University.

Returns do not feature in the Pact’s title, nevertheless they are a redline running across all of the Pact’s five legislative acts, and two non-binding proposals scheduled for 2021. These proposals aim to increase returns of irregularly staying third-country nationals from the EU by way of: introducing a mandatory, expedited return border procedure that could become the new regular return procedure; creating an EU Return Coordinator position to increase coordination among domestic return practices; increasing the links between asylum and return policies into a single integrated migration procedure; and introducing return sponsorship as a form of solidarity cooperation among the Member States. Some of these proposals are likely to increase solidarity among the Member States, and achieve more effective returns that also observe fundamental rights – such as a more humane return border procedure compared to the procedure included in the 2018 Recast Return Directive proposal of the European Commission. Nevertheless, the increased links between asylum and return policies, the extension of the scope of application of the return border procedure coupled with the limitation of procedural guarantees risk to weaken the right to asylum, the principle of non-refoulement and diminish the role of courts in favour of an executive dominated migration management system.

Against this background, this post examines:

• why returns feature so centrally in the Pact;
• how the Pact proposes to reform the EU policy design on returns, compared to the 2018 Proposal to Recast the Return Directive and the currently in force Return Directive; and
• what could be the future challenges for the new EU system of returns.

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Galina Cornelisse, Associate Professor, EU Law and Public International Law, Vrije Universiteit Amsterdam

When presenting the new Pact on Migration and Asylum, the Commission wrote that its underlying rationale is the need for a new, durable European framework: ‘one that can provide certainty, clarity and decent conditions for the men, women and children arriving in the EU.’ Particularly when it comes to detention and accommodation at the borders of Europe, the last ten years have shown structural weaknesses in EU law and its implementation precisely with regard to ‘certainty, clarity and decent conditions.’ Thus, certainty and clarity are negated by the numerous instances of de facto detention that occur at the borders of Europe, or the vague legal framework governing the situation in the hotspots. And the conditions that prevail in some of Europe’s immigration detention centres, or in other places where people are either deprived of their liberty or where their freedom of movement is restricted, are a far cry from any possible interpretation of the term decency. Thus, proposals for new policies that aim to enhance certainty, clarity and decent conditions in this area are long overdue.

In this post I discuss those elements of the New Pact and its accompanying legislative and non-legislative initiatives that touch on detention and freedom of movement of third-country nationals. After setting out the content of the proposals in some detail, I investigate these through the lens of fundamental rights compliance. We will see that the Commission proposals do not sufficiently contemplate the implications of the link between border control and the liberty of individuals. The absence of a thorough and well-thought-out legal framework regulating detention and freedom of movement at the borders of Europe means that the promise of certainty, clarity and decent conditions can only be translated in practice if substantial changes to the proposed legislation are made.

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By Jens Vedsted-Hansen, Professor, Aarhus University

As one of the novelties in the New Pact on Migration and Asylum and its accompanying legislative package, the European Commission has proposed to establish a ‘seamless procedure’ at external borders that will be applicable to all non-EU citizens crossing the borders without authorisation. In its entirety, the border procedure will comprise three elements: pre-entry screening, an asylum procedure and a ‘swift return procedure’ where applicable. The overall aim is explained as being to ‘close the gaps between external border controls and asylum and return procedures’ (p. 4, section 2.1).

The pre-entry screening will be established under a separate Proposal for a Screening Regulation that was presented by the Commission on 23 September 2020 as part of the legislative package linked to the EU Pact. In addition, the asylum border procedure aimed at examining asylum applications and the return border procedure for carrying out return of asylum seekers whose application has been rejected in the asylum border procedure are dealt with in the Amended Proposal for an Asylum Procedure Regulation, simultaneously launched in order to change the 2016 Proposal for an Asylum Procedure Regulation.

While this blogpost shall focus on the latter two proposals that must be seen in conjunction, these procedural devices should be considered in the light of the proposed pre-entry screening. This screening will necessarily interact with the asylum and return procedures at external borders, as described by Lyra Jakuleviciene in her contribution to the series. It should be stressed from the outset that ‘closing the gap’ by way of clarifying the need to issue a return decision immediately after a decision rejecting an application for asylum, or even in the same decision, in order to secure quick return of asylum seekers upon rejection, is in and of itself clearly a useful step, as already proposed by the Commission in the 2018 Proposal for a Recast Return Directive.

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By Philippe De Bruycker, Professor ULB – Université Libre de Bruxelles & Founder and Coordinator of the Odysseus Network

After the failure of the Agenda for Migration of 2015 and in particular the impossibility to introduce solidarity in the Dublin system allocating responsibility to Member States for the examination of  asylum applications, so much hope has been put into the New Pact on Migration and Asylum that it can be paradoxically better understood by analysing what it is not. Regarding the format, it is not a programmatic document paving the way for the development of migration and asylum policies in the future (1); Regarding the content, it is not a document trying to establish a consensus about the orientations of those controversial policies (2). The question is then what it could have been (3).

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By Paula García Andrade, Associate Professor,  Universidad Pontificia Comillas

The New Pact on Migration and Asylum presented by the European Commission on 23^rd September 2020 assigns a prominent place to cooperation with third countries of origin and transit of migrations flows. As an essential element of any coherent and efficient immigration policy, this external dimension receives, in the New Pact, considerable attention, occupying a whole section of the Pact – section 6, devoted to “working with our international partners” – while numerous references to international cooperation can also be found throughout its other parts.

From the very start of this political orientation document, the Commission recalls how the internal and external dimensions of migration are inextricably linked (here, p. 2), reaffirming the conceptualization of this external dimension as it has traditionally been understood in the EU, as a means to facilitate the achievement of the objectives of the immigration and asylum policies inside the Union. The priorities that EU partnerships with third countries should pursue range, according to the New Pact, from addressing the root causes of migration and developing legal pathways both for protection and legal migration purposes to fostering readmission and strengthening migration management capacities in third countries; all these aims to be achieved under comprehensive, balanced and mutually beneficial alliances. The Commission is offering what it qualifies as a “fresh start” to assume this endeavour and even a “change of paradigm” in migration cooperation with third countries.

Still those familiar with the international agenda of the EU on migration will have the impression that they have ‘heard this song before’. This post aims at assessing whether the way in which cooperation with partner countries on migration has been addressed in the New Pact preserves the existing approach or comes with any innovations, especially on the tools to be used. Therefore, after evaluating the allegedly new Commission’s orientations, the focus will be put on the instruments foreseen for the design and implementation of this international cooperation, by analysing what is new, what is missing and what is in excess within the ‘toolbox’ of this external dimension.

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By Luc Leboeuf, Head of Research Group in the Department of Law & Anthropology at the Max Planck Institute for Social Anthropology

The New Pact on Migration and Asylum  includes a full section calling for further international cooperation with third countries to address migrant and refugee movements to Europe. This section lays the emphasis on the development of “legal pathways to protection” in Europe, amongst other international cooperation priorities presented elsewhere in this blog series (Guild here as well as Moreno-Lax and Moraru forthcoming). The New Pact is accompanied by a Commission recommendation (hereafter “the accompanying recommendation”) that specifies EU actions to be taken in the years to come, from the development of resettlement programmes at EU level and the adoption of a Union-wide resettlement framework, to the promotion of community sponsorship programmes at the domestic level.

In both the New Pact and the accompanying recommendation, “legal pathways to protection” is used as an umbrella term. It refers to the resettlement of refugees under a global initiative run by the UNHCR (here, para. 9). It also refers to other humanitarian admission schemes developed at the domestic level, including protected entry procedures – e.g., humanitarian visas – and private/community sponsorship programmes – e.g., the “humanitarian corridors” set up by faith-based organisations in Italy (described by Bianchini here). Unlike legal pathways resulting from labour mobility schemes, which are aimed primarily at meeting EU labour market needs (to be discussed by Sarolea and Farçy as part of this blog series), the “legal pathways to protection” are being developed to guarantee access to safety for those fleeing persecution and other forms of serious human rights violations.

This blogpost highlights how the New Pact and the accompanying recommendation contribute to the development of a common and comprehensive approach to legal pathways to protection, beyond resettlement. It argues that there is “soft” harmonisation at play, and seeks to identify the main driving policy logics and tensions behind the harmonisation process, including how they are likely to impact forthcoming developments in the field.

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