European Realpolitik: Legislative Uncertainties and Operational Pitfalls of the ‘New’ Pact on Migration and Asylum
Five years after the peak of the 2015 policy crisis, the European Commission launched what it labelled as a ‘new’ Pact on Migration and Asylum. The academic Odysseus Network for legal studies on immigration and asylum in Europe is the natural setting to provide a timely and quality review of the diverse aspects of the Commission proposals. They will be published in a special collection of more than a dozen blogposts written by eminent experts from across Europe over the next weeks. We have designed a specific website to bring together the individual contributions in an overarching format – and invite you to consult it on a regular basis or to subscribe to our newsletter informing you about new blogposts.
Three overarching questions define an overall assessment of the reform package. Firstly, one is bound to notice that the law is not enough – as the situation on the Greek islands amply illustrates: living conditions for asylum seekers are insufficient, procedures take years to complete and returns after rejection often fail. Similar deficiencies exist elsewhere in Europe. Northern countries complain about the notorious failure of the takeback procedure under the Dublin system. NGOs rightly worry about possible pushbacks in Croatia. Our assessment of the Commission proposals will have to be guided by the understanding that legislative reform is a necessary, but insufficient condition for a functioning asylum system. We need to ensure that the law in the books is being applied in practice.
Secondly, we will have to answer the question: is the ‘fresh start’ a reality or an illusion? In the press material, the Commission was eager to highlight the novelty factor, since ‘the current system no longer works’. At closer inspection, it is less clear to what extent the discursive framing is supported by the nitty-gritty of the legislative proposals. Digging into the more than 300 pages, one is bound to discover rules that contradict the label of a ‘fresh start’. Other provisions are controversial. It is the ambition of the special collection of blogposts to combine an in-depth knowledge with a style of argument that can be read and understood by a broader audience, thereby advancing the debate about the merits of the ‘pact’.
Thirdly, the idea of ‘solidarity and responsibility sharing’, which the Commission emphasised in the political Communication, aptly captures the tensions inherent in any debate about migration and asylum in Europe. Member States have different views about their ‘fair’ share, especially when it comes to the reform of the infamous Dublin system. At the same time, solidarity and responsibility are not confined to interstate relations. Migrants and refugees have rights (and also some obligations), which must inform our analysis of the proposals.
It seems to me that – notwithstanding the rhetoric emphasis on ideas such as ‘solidarity’, ‘responsibility’ or ‘fresh start’ – the reform package is more about pragmatism than principles. It is certainly not ‘beautiful’ in the sense of an ideal vision of how migration and asylum policy could possibly look like (even though EU politics usually prefer such grand designs). It is in essence a piece of realpolitik, which – according to the lexical definition – is defined more by the needs and circumstances of the relevant actors than by morals or ideology. That may explain some of the idiosyncrasies of the proposals, which, nonetheless, will have to be judged in terms of adequately balancing countervailing claims to migration management and human rights, supranational cooperation and state action. This introduction will continue by shortly presenting seven themes, which reiterate the overarching difficulties described above.
(1) „Screening light“: hardly a novelty
The Commission put much emphasis on having proposed ‘for the first time’ a pre-entry screening covering identification of all people. It proposed a ‘Screening Regulation’ as one of the successor instruments to the seemingly abolished Dublin III Regulation. Closer inspection of the proposal, which is discussed in detail by Lyra Jakuleviciene, does not support the Commission’s claim. Mandatory elements under Article 6(6) correspond by and large to what border authorities are obliged to perform already under the Schengen Borders Code, the Eurodac Regulation or when registering an asylum application – with the exception of a health screening, which most Member States have introduced anyway in response to the COVID-19 pandemic. Even the timeframe of 5 to 10 days mirrors the obligations under Article 6(1), (7) of the current Asylum Procedures Directive. The screening exercise is a smart new label, but hardly a novelty in substance.
One example illustrates the point. The screening would support fast asylum procedures if it helped clarifying the identity of each individual effectively. However, Article 10 concentrates on checking biometric and other information with existing databases. The reference to ‘data or information provided by or obtained from the third-country national concerned’ (Article 10(1)(b)) could possibly be read to require Member States to exploit information in smart phones or use software identifying the dialect spoken (both tools are used, amongst others, by the German Federal Migration and Asylum Office). Yet, the reference is so vague that it can hardly be interpreted to mandate such as intense – and controversial – methods. It is quite telling that the rather short form in the annex to the Screening Regulation asks domestic authorities to give an ‘initial indication’ of the nationality. Apparently, the screening is not much more than a first registration and identification attempt.
A comparison with the non-paper of the incoming German Presidency, published last autumn, shows how a beefed up pre-screening procedure might have looked like. The German government had suggested a prima facie inspection of the merits of asylum claims, which the Commission does not propose. The de-briefing form is only expected to ‘point to’ any elements that might possibly influence the choice of procedure (Article 14(2)). Similarly, the decision whether to relocate someone is taken elsewhere (Article 14(3)). In essence, the new proposal is not much more than a slightly reinforced border check and asylum registration.
In light of the overarching enquiries presented above, an additional lacuna stands out. The incoming German Presidency had pondered an autonomous decision-making function for the future Asylum Agency and Frontex, which could possibly have conducted the pre-screening independently in a few years, after initially supporting the ‘frontline’ Member States. This innovative idea did not find its way into the Screening Regulation, which, rather, entrusts the task on national authorities with the support of the agencies ‘within the[ir] mandate.’ The latter does not, at present, authorise such independent decision-making and the Commission does not propose to give the agencies additional powers in the ‘pact’. Lilian Tsourdi discusses executive functions and involvement in decision-making in more detail in her blogpost on the agencies.
(2) Border Procedures: administrative bottleneck
In contrast to the screening, the new rules on the border procedure are a substantial novelty in the reform package. They demonstrate, however, why our starting point that the law is not enough can be crucial. On paper, a border procedure is a strict set of rules, which, nonetheless, embraces essential procedural guarantees. It comprises a personal interview and obliges asylum authorities to assess each case individually – as Articles 11-13 of the Proposal for an Asylum Procedures Regulation of 2016 reiterate, which the package leaves intact. The Amended Proposal of 2020 reaffirms the need for a legal remedy that ‘shall provide for a full and ex nunc examination of both facts and points of law’ (Article 53(3)). Legal assistance and advice are available in line with Articles 14-17 of the 2016 Proposal. Jens Vedsted-Hansen discusses these aspects at length in his contribution.
For our purposes, a different aspect should be highlighted. Unfortunately, the guarantees in the Asylum Procedures Regulation are not always complied with by the Member States. The same applies to the Reception Conditions Directive, in relation to which the Commission endorses the state of play of the negotiation on the 2016 Proposal, which Lieneke Slingenberg reminds us of in more detail. When it comes to non-compliance, the ECtHR judgment on the deficiencies of the Hungarian transit zones is a case in point; the expediated procedures of the Greek asylum system, which (notwithstanding its designation under domestic law) mostly do not qualify as border procedures for the purposes of EU law, similarly fall foul of essential guarantees in Directive 2013/32/EU. The future monitoring mechanism (here, p. 5-6) may be a step in the right direction, but it is far from certain at this juncture whether it will suffice. Our collection of blogposts will come back to these structural difficulties repeatedly.
The flagrant compliance and implementation deficits concern not only the rights of migrants. The Commission insists that the border procedure – including court judgments – should be completed within twelve weeks in regular circumstances and 20 weeks in times of crisis (Article 41 of the Amended Proposal for the Asylum Procedures Regulation; and Article 4(b) of the new Crisis and Force Majeure Regulation). Another 12 or 20 weeks are foreseen for return (Article 41a(2)). Legislative amendments are meant to support compliance with these objectives (Article 35a, 41a, 53-54), an issue which Jens Vedsted-Hansen discusses in detail.
What the Commission does not answer is how it wants to guarantee that domestic authorities and courts in the European periphery will be able to deliver. Remember that Article 31(3) of the Asylum Procedures Regulation already obliges Member States to complete the procedure within six months. State practice often fails to comply, not only on the Greek islands. Thus, the Commission’s insistence on efficiency may have the same fate as the rights of refugees and migrants: the law on books does not always translate into administrative practice.
What can the EU do about this? Money to support domestic administrations is one option, which the European Council rendered more difficult when it cut the amount earmarked for migration and asylum by 28 % in its compromise on the multiannual financial framework. Iris Goldner Lang discusses in her blogpost whether the European Parliament, which appears to be unhappy with the cuts, will be able to reverse the trend when the budgetary details are finalised. Moreover, the compliance deficit is another reminder that the agencies are crucial for the success of any reform package. They cannot guarantee full compliance single-handedly, but they are the best instrument we have to ensure fair and fast procedures.
(3) Accommodation: ‘closed’ or ‘controlled’ centres?
The Odysseus blog is a legal undertaking and there are many important subject matters in the reform package where legal expertise is essential to understand what the Commission did (not) propose. A fine example is the question of detention, which the initial public debate on the reform package focused on, within Germany at least. The Commission was accused of promoting a border procedure within ‘closed centres’. At first sight, the proposals indeed seem to endorse widespread detention.
The Commission insists that the screening and the border procedure do not entail permission to enter the territory (Article 41(6) of the Amended Asylum Procedures Regulation; Article 4 of the Screening Regulation). That corresponds to the legal ‘fiction of non-entry’, which the incoming German Presidency had proposed and which is taken up repeatedly in the domestic German debate, thereby creating much confusion, since it is often misunderstood as formal rightlessness, even though statutory and human rights guarantees can be invoked by those in transit zones.
Closer inspection of the proposals, which Galina Cornelisse reflects on in-depth, indicates that the Commission opted against generalised detention. Articles 41(9)(d) and 41a(5), (6) of the Amended Proposal for an Asylum Procedures Regulation indicate clearly that detention should not be automatic; it rather requires an individualised decision subject to appeal. This corresponds to the ECJ judgment on the Hungarian transit zones, even though the ruling concerned the current legal framework. The Commission does not propose to fundamentally reverse these rules, even though it plans to facilitate detention in some respects, as Galina Cornelisse discusses. Article 8 of the 2016 Proposal for a Reception Conditions Directive reiterates that asylum seekers should not be detained automatically.
The remaining tension between non-admission during the border procedures and the prohibition of automatic detention cannot be disentangled straightforwardly. Arguably, the legal notion of detention can provide some guidance. , not any ‘restriction’ of liberty, for instance in transit zones, amounts to a ‘deprivation’ or ‘detention’ Subject to stricter rules. In line with ECtHR and ECJ case law (here, paras 211-249; and here, paras 204-248), it has to be assessed in light of various factors when the ‘non-admission’ with the ensuing restriction of liberty turns into ‘detention’ requiring an individualised assessment in line with the Reception Conditions Directive. It can be expected that Member States will try to exploit the inherent legal uncertainty. The end result may mirror the ambiguous language in the earlier call of the European Council in June 2018 for ‘controlled’ centres, which are not hermetically ‘closed.’
(4) Hotspots Reloaded: another Moria?
The fire in Moria on the Greek island of Lesvos reminded the general public of the serious administrative and humanitarian shortcomings at the external borders. It also showed that any European asylum system will have to be judged on whether it succeeds in preventing another Moria. One core challenge concerns potential ‘overload’ with protracted limbo situations, when beneficiaries of international protection do not receive a timely recognition of their status, while those without protection needs are not deported. The Commission was aware of this danger.
Several legislative propositions are meant to prevent overcrowding. Besides the time limits and legislative changes for border procedures and returns mentioned above, relocation will be crucial. Francesco Maiani discusses the merits and limitations of the rather lacklustre solidarity mechanism in detail. Ironically, the novel ‘return sponsorship’ may eventually result in relocation as well. Article 52(2) of the new Asylum and Migration Management Regulation obliges the sponsoring country to transfer to their territory those who cannot be returned within eight months; the period is reduced to four months in times of crises (Article 2(7) of the Crisis and Force Majeure Regulation). Countries such as Hungary will scrutinise these rules carefully. After all, it could undermine the motivation of countries at the external border, which retain the administrative responsibility for ‘sponsored’ returns, to cooperate if they know that the person will be transferred elsewhere anyway.
Surprisingly, the Commission re-erected a concept that was among the very first legislative instruments on asylum to be adopted in the early 2000s, only to be ignored in practice thereafter. It proposed to officially repeal the Temporary Protection Directive 2001/51/EC and to replace it by a novel form of ‘immediate protection’ under Article 11 of the Crisis and Force Majeure Regulation. The new immediate protection status is designed in particular for those fleeing civil war and is meant to suspend asylum procedures for one year, thereby safeguarding precious administrative resources. Meltem İneli Ciğer introduces us to this genuine novelty factor.
It did not come as a great surprise that return featured prominently in the ‘pact’. The underlying rationale is straightforward. There is an undeniable implementation deficit, whose reduction could, moreover, alleviate pressure on the solidarity mechanism if less people are to be relocated. It is in the nature of return policy that the European Union cannot dictate a better outcome, since it depends on the cooperation of third states. Madalina Bianca Moraru helps us understand better whether the Commission proposals can be expected to change much in practice.
(5) ‘Dublin is Dead, Long Live Dublin!’
I recognise that the Commission had to make an effort to rhetorically move beyond ‘Dublin’, which has become a symbol of the structural deficiencies of the Common European Asylum System. To replace the existing Regulation (EU) No 604/2013 with different instruments bearing distinct names is a smart move. I was surprised, nonetheless, that the contents of the Asylum and Migration Management Regulation mirrors the status quo to a large extent. The infamous first entry criterion remains intact (Article 21) and is not substantially reversed by extended special rules on previous studies or on family unity for siblings (Articles 16-18, 20). The latter change had been proposed by the Commission in 2016 already (here, Article 2(g)), only to be rejected by the Member States. The official explanations to the seemingly new instruments are surprisingly frank: ‘The current criteria for determining responsibility are essentially preserved‘ (here, p. 17).
There is a flipside of the first entry criterion, the public debate does not usually concentrate on. In cases of secondary movements, asylum seekers can submit a second application in another Member State, which is obliged to officially assume jurisdiction whenever the asylum seeker is not returned to the country responsible within six months after the confirmation of the take back request. Germany and other northern Member States had insisted for a long time that the transfer of jurisdiction should be abolished; the debate within the Council had moved in this direction (here, Article 9a). Notwithstanding the claim to the contrary in the ‘questions and answers’, the Commission seems to have abandoned that idea by proposing to maintain the transfer of jurisdiction with only minor changes (Articles 27(1), 35(1), (2) of the Management Regulation). Similarly, the incentives and sanctions in case as secondary movements are comparatively superficial. I explain corresponding changes in more detail in a blogpost on secondary movements.
On the whole, the Commission evades the issue of intra-European mobility. The ‘new strategy for Schengen’, which the Commission President promised in her state of the union address, will only be published during 2021 in what might be an attempt to prevent Member States from connecting the asylum reform to the future of the Schengen area. Jorrit Rijpma will discuss corresponding changes in due course. Another important element, which one could have expected to play a greater role, is search and rescue. To be sure, the Commission proposes a specific – and stronger – solidarity mechanism after disembarkation, recommends coordination of rescue operations and urges Member States not to criminalise private actors. Violeta Moreno-Lax assesses the substance of these initiatives in her blogpost.
(6) Solidarity: no illusions
It is a historic irony that the New Pact on Migration and Asylum was officially put forward on 23 September 2020, exactly 5 years and one day after the formal adoption of the decision on the relocation of 120 thousand asylum seekers from Greece and Italy. It is well known that some countries voted against that decision and refused to comply. It was widely reported in the media that the Commission follows a different path this time. Under regular circumstances, solidarity remains voluntary – and even if it becomes mandatory in times of crises in line with the levels of ‘escalation’ described in the Asylum and Migration Management Regulation, the Commission insists that Member States should always be able to choose whether to contribute by means of relocation or return.
The corresponding rules and procedures are complex (Articles 45-61 of the Management Regulation, Articles 2-3 of the Crisis and Force Majeure Regulation) and the contribution by Francesco Maiani deciphers the intricate proposals for us. Many observers will be disappointed that the Commission moved away from mandatory relocation, at least for those who are likely to receive a positive asylum decision. A continent as big and wealthy as Europe should be able to contribute more to the effective protection of refugees. One way of doing so, besides relocation, is to provide more legal pathways, in relation to which the Commission complements the existing proposal for a resettlement with a new recommendation on legal pathways, including private sponsorship schemes. Luc Leboeuf introduces us to the contents of and the politics behind these instruments.
From a purely legal perspective, all instruments of the reform package can be adopted by means of a qualified majority vote in the Council (subject to the consent of the European Parliament). Nevertheless, it seems to me that it is a question of political wisdom not to force a constitutional conflict with some Member States openly rejecting the new legislation and corresponding court judgments. I wish we lived in a different world, but the political authority of the EU institutions might quite simply not suffice to win such a constitutional conflict. Acceptance of these limitations of the contemporary political environment is the essence of why the Pact on Migration and Asylum is a classic example of realpolitik. Philippe de Bruycker presents us with a different perspective in his contribution on the political dynamics and the role of the EU institutions.
(7) Third States: a bill prepared without the waiter?
On the occasion of the German presidency, it may be suitable to introduce the international readership to a German proverb: do not prepare the bill without asking the waiter (die Rechnung nicht ohne den Wirt machen) – or, generically: do not try to find a solution without involving those who will have to sanction or implement it. Reading the Commission Communication, one is left wondering whether that might be happening in Brussels. The success of the package depends on what Vice President Schinas aptly described as the first floor of European asylum policy: strengthened partnerships with countries of origin and transit.
It is in the nature of such partnerships that the EU cannot force cooperation by means of internal legislation. It requires negotiations among equals, which, of course, will always be influenced by the sheer political, financial and economic clout of the European side. When it comes to third states, the Pact on Migration and Asylum essentially reiterates existing policies, which have been built up over the past years. Indeed, the political stalemate on internal legislative reform had always contrasted with the pronounced emphasis on externalisation, which – controversially, in the eyes of many – have yielded quite some success in terms of reducing the number of people crossing the external borders. Paula García Andrade revisits these initiatives in light of the new ‘pact’.
The Commission was eager to propose at least some new instruments for the external relations toolbox. It reminded the audience of the recent decision to employ visa policy to apply pressure (Article 25a of the recently amended Visa Code) and proposed a new mechanism to support cooperation on return, which, indirectly, provides a platform to activate development or trade policy as a bargaining chip (Article 7 of the Management Regulation). Elspeth Guild explains in greater detail that such ‘sticks’ alone are usually insufficient to achieve meaningful cooperation. Win-win scenarios are more promising, as the Commission states itself.
One important incentive are legal pathways for economic migration. They have been promised by the EU institutions and the Member States repeatedly, even though the track record remains poor. Jean-Baptiste Farcy and Sylvie Sarolea discuss to what extent the ‘Talent Partnerships’ with key partner countries, which the Commission aims at initiating later this year, will be an innovative and meaningful new tool. If not, we can expect the EU institutions to resort to financial incentives to ensure effective cooperation. The Commission is quite open (here, p. 18) indicating that several billion euro have been earmarked for the coming years.