Integration in the New Pact: A difficult compromise between a limited EU competence and a successful policy

By Ulrike Brandl, Ass. Professor at the Department of Public, Public International and European Law, University of Salzburg.

Integration in European Union migration policy is a topic characterised by the divergence between the lack of legislative competence of the EU and the essential importance of comprehensive and targeted integration measures for a successful migration policy. That is why the efforts for a recast of the migration legislation are accompanied by a strategy to support and strengthen national integration policies. The New Pact on Migration and Asylum presented by the European Commission on 23rd September 2020 contains a separate chapter on “Supporting integration for more inclusive societies”. This chapter enumerates a number of recommendations for Member States to promote integration. As a next step, the new Action plan on Integration and Inclusion 2021-2027 – already announced in the Pact and preceded by an open consultation with stakeholders – was published by the Commission on 24th November 2020. The Action Plan is a comprehensive document which stresses key principles and values regarding integration and inclusion and also focusses on actions in main sectoral areas like education and vocational training, employment and skills, health and housing.

The previous documents (e. g. the Action Plan 2016 and many others) containing plans, ideas and concrete measures about the promotion of integration were characterized by a mixture of an enumeration of deficits in integration policy and ideas and recommendations about projects that are perceived as being supportive to successful integration. A further common characteristic is the fact that the documents did not distinguish between different categories of migrants. They referred to third country nationals in general, to persons who were granted asylum or subsidiary protection as well as to persons who intended to stay permanently or for a certain period for employment or for another reason. Furthermore, the documents complained about the difficult situation with regard to access to employment, education and social inclusion in general. They lamented about these deficits without a clear distinction between rights which have to be guaranteed to third country nationals and other mainly supportive measures which make integration easier.

This blogpost intends to give an overview of the content of the Pact and the Action Plan on Integration and to highlight several critical issues. These are the unstructured reference to the rights of migrants which have to be guaranteed and measures which should be implemented to support a successful integration. It would have been better to confirm that rights have to be guaranteed without discrimination and that measures are intended to provide assistance for full inclusion. Furthermore, the Pact and the Action Plan cover all migrants and even nationals with a migratory background. This approach could lead to the effect that the measures are not target-oriented enough.

1. Genesis of EU efforts to promote integration

The Action Plan 2021-2027 is the successor of the Action Plan 2016. The promotion of integration measures however started much earlier. Already in 2004, the Council had adoptedthe EU Common Basic Principles for Immigrant Integration Policy. These principles enumerated 11 short-worded basics for the development of future integration measures. They were reaffirmed by the Justice and Home Affairs Council in 2014. In 2011, the European Commission set out a European Agenda for the integration of third-country nationals.

The Union also established a European Network on Migration (EMN) in 2008 by Council Decision 2008/381/EC (amended by Regulation (EU) No 516/2014 in April 2014). Regulation (EU) No 516/2014 provided for financing the network through the Asylum, Migration and Integration Fund.  The alignment of integration measures with funding possibilities brought an important input into the development of integration projects in the Member States. EMN has the task to provide information on migration and asylum in order to support policymaking in the European Union. EMN also informs the general public on migration and asylum. In 2017 the Commission and European social and economic partners signed the European Partnership for Integration. This partnership was established with the aim to foster the integration of refugees into the labour market.

The Action Plan 2016 frequently referred to the situation in 2015/2016 with high numbers of persons seeking protection in the EU Member States. The Plan mirrored the difficult and demanding situation in 2016 and specified a number of aims. The text confirmed that the EU policy framework is designed to support States to develop and strengthen their national integration policies. The Commission announced to deliver operational and financial support. The Action Plan also provides for a review process carried out by the Commission.

The text discloses the discrepancy between EU citizens and third country nationals in the areas of employment, education and social inclusion. This discrepancy concerns the legal and also the factual situation. With regard to the conclusions drawn and the measures which should be adopted there was however no clear distinction between rights of third country nationals which have to be guaranteed on the one hand and measures which are designed to support integration measures on the other. The text did not differentiate between   legal obligations contained in International Law and national law such as the right to education, workers’ rights and several social rights and other areas where migrants should have access to.

The wording of the Action Plan reveals a strong focus on the economic burdens caused by consequences of non-integration. The Commission clearly highlighted that it would be a waste of resources if migrants would not be integrated in time and that there “is a clear risk that the cost of non-integration will turn out to be higher than the cost of investment in integration policies”. On the other hand, the Commission pointed to the fact that integration needs vary widely and have to be adapted accordingly. The Commission also stressed the necessity to take the situation of vulnerable groups into account and to design integration measures according to their needs. A further aim is to respect the interests of migrants and of receiving societies, to improve the welfare of all members of society and to create inclusive societies.

Part 4 of the Action Plan 2016 structured the measures useful for the integration process in the various phases of migration. It started with measures for the first phase, the so-called pre-departure or pre-arrival phase and then continued with the phase where migrants are already present in the receiving states and where access to education, to the labour market, to vocational training and to basic services are fundamental for successful integration. In this phase migrants should be empowered to active participation and social inclusion in the receiving society. For each phase, the Commission announced the next steps to be realised by the Commission itself and encouraged Member States to conduct integration measures.

The Action Plan referred to the two main tools suitable to reach the aims. These are policy coordination and funding. Coordination and funding led to a number of successful integration projects in the following years. An overview over concluded and on-going integration projects is available here.

The 2016 Action Plan is characterised by a variety of aims, by reference to a variety of areas where support is needed and also by highlighting some deficits existing and disparities between migrants’ rights and the rights of nationals. It is also clearly visible that the Plan was published in a time of highly increased numbers of persons arriving and the challenges to host states and the societies in these states. Though we still see many deficits in Member States integration policies, the 2016 Action Plan was definitely an important step in framing integration policy.

2. Chapter 8 of the New Pact on Migration and Asylum: Integration of Migrants should lead to more Inclusive Societies

Chapter 8 of the Pact 2020 shapes the aims of integration. Everyone who is legally present in the EU should have the possibility to “participate in and contribute to the well-being, prosperity and cohesion of European societies”. Chapter 8 repeats the unstructured reference to immigrants and also to persons who have been granted asylum or subsidiary protection  . To give an overview of numbers, the Commission referred to statistics which show that around 21 million non-EU nationals [1] were legally resident in the EU in 2019.

The text then again stresses the necessity to make a compromise and to adopt integration measures which are designed to give benefits to the “individuals concerned, and the local communities into which they integrate”. This approach was already included in the 2016 Plan but receives more attention now.

The new Pact uses a different wording than previous documents on integration. It often mentions the importance of the European way of life but does not define it. This leads to the question what exactly is the “European way of life”? One could assume that its basis can be found in Article 2 TEU. According to this article the “Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. The Pact itself does not shed light on the notion “European way of life”, the Action Plan 2021-2027 however goes into a few more details with regard to giving some contours to this notion.

The Pact  repeats the enumeration of obvious deficits in various areas. These include unemployment, lack of educational or training opportunities and limited social interaction. The Commission then stresses that the integration of migrants should be a key element in the general EU agenda to promote social inclusion. In chapter 8 the Commission announced the intention to adopt an Action Plan on integration and inclusion for 2021-2024. It was adopted two months later with a timeframe from 2021 to 2027.

The Commission stresses the intention to provide strategic guidance   and also set up concrete measures to foster inclusion. The areas covered are broader than previous ones, they comprise social inclusion, employment, education, health, equality, culture and sport. The text however mainly enumerates the field where integration is needed, the strategic guidance is still missing.

The text then continues with a slightly more structured approach than the Action Plan 2016. The Commission aims to make a distinction between rights and actions designed to guarantee full access to these rights and the support of integration in other areas. Migrants shall be enabled to “fully benefit from the European Pillar of Social Rights”.

The Commission announced to establish an informal expert group on the views of migrants. This group should also support the framing of the Action Plan 2021-2027. The first meeting of the expert group was already held on 13thNovember 2020 and the group contributed to the preparation of the Action Plan 2021-2027.

3. Action plan on Integration and Inclusion 2021-2027

The Action Plan 2021-2027 as well as previous documents enumerate a number of actions, programs and measures to support integration. They however do not define the notions integration and inclusion. The Action Plan talks about the European way of life and also about inclusive societies in general, but does not mention any possible negative consequences of integration for the immigrants such as the potential loss of identity of certain groups. The two-fold approach to make a compromise between migrants’ rights and expectations and between the perceptions of receiving societies is a key element on the UN Global Compact on Migration as well. The Compact intends to create a mutual respect for customs, traditions and cultures of both societies. As already elaborated in a commentary to the GCM,integration measures should not require assimilation but only respect of local traditions, customs and rules .

In social sciences and other disciplines positive and negative effects of inclusion, integration and assimilation attract much more attention. The results of research in these disciplines should be integrated in the framing of integration policy. Several suggestions which are an excellent starting point for the discussion are the promotion of a feeling of togethernesshaving in mind that this feeling cannot be prescribed by legislation but has to develop within societies with the support of state policies and a holistic approach towards integrationinstead of highlighting specific elements.[2]

The Action Plan starts with a promotion of inclusion and inclusive societies. It again refers to the European way of life and sheds some light on the content of the notion . The text emphasizes that the need to empower those facing disadvantages, to provide for equal opportunities for all to enjoy their rights and participation in community and social life are elements of the European way of life. Reference is also made to the respect for common European values as enshrined in EU Treaties and in the Charter of Fundamental Rights.

Part 2 contains a summary of previous integration efforts, presents results and shows statistics. Part 3 enumerates a number of key principles of integration policy. The Commission then highlights the need to respect rights but does not refer to details . It is interesting that the document again points to the European “Pillar of Social Rights” without going into details. The Social Pillar as an initiative launched by the European Commission in 2017 refers to social rights for people across Europe but it is not specifically designed to improve access of migrants to social rights.

Inclusion for all is one of the slogans of the Action Plan and this inclusion should not only focus on migrants but also on nationals with a migrant background. As already mentioned, the needs of person with regard to integration and also the expectations of receiving societies vary widely and it would have been better to refer to the needs of different categories of persons in a structured way and not in a holistic approach.

Member States are obliged to guarantee social, economic cultural rights to migrants.Restrictions are only allowed when they are justified and legitimate according to international and national law. Additional support and integration measures including incentives for a participation in these measures is helpful and should be promoted, there is however no legal obligation to grant the support.

A more nuanced approach is included in a special part of the Action Plan under the heading “targeted support where needed”. This is a useful additional enumeration of specific needs of certain groups. It would however have been better to structure all the planned actions in this coordinated way. Under the mentioned heading, the Commission enumerates specific challenges for newly arrived migrants, challenges for Member States under migratory pressure and the protective needs of children, especially unaccompanied children.

Part 4 points to actions in main sectoral areas. This part contains a structured approach to future integration measures in the sectors education and training, employment and skills and health and housing. In each section the Commission announces measures to be enacted by the Commission itself and measures which are recommended to Member States. This part of the Action Plan contains a comprehensive list of targets and actions.

The next part enumerates actions supporting effective integration.Again, funding is a central point in this enumeration. The Commission announced increased opportunities for EU funding under the 2021-2027 Multiannual Financial Framework. The budget for integration is included in the renewed Asylum, Migration and Integration Fund, the amount is € 9.882 billion.

The Commission also announced a comprehensive monitoring and a mid-term review at the end of 2024. Furthermore, regular implementation reports analysing progress and highlighting areas of common challenges are foreseen. Furthermore a new Eurobarometeron integration will be launched.

4. EU Competence to legislate

The most important question in the area of integration is the lack of EU competence to legislate in the field of integration. In general, the European Union has a shared competence for developing a common immigration policy. Art. 79(4) TFEU refers to the establishment of measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories. Thus, only supportive measures may be adopted, harmonisation of laws and regulations is explicitly excluded. The Union may not use Article 352 TFEU as a legal basis either, as Art. 352(3) again excludes harmonisation of Member States’ laws or regulations.

The possibility to act is limited to support and to coordinate. Consequently, the aims mentioned and the initiatives planned can only be a recommendation to Member States. The Commission also has the possibility to fund integration projects and to establish institutions with the task to support integration. Soft law instruments are created based on a special form of intergovernmental policy-making – the open method of coordination (OMC).

5. EU efforts to foster integration and the Global Compact on Migration

Integration and social inclusion are also key topics in the Global Compact for Safe, Orderly and Regular Migration (GCM). Objective 16 of the GCM aims to increase the empowerment of migrants and societies to realize full inclusion and social cohesion. It is astonishing that neither the new Pact nor the Action Plan refer to the GCM and its objective 16. In general, the response to the GCM and the follow up seem to be quite unimportant for the EU. The EU submitted a written contribution to the first review round held according to the monitoring process established by the Pact. The EU report is quite general and only points to progress made with regard to integration. The report refers to numerous activities, there is however no direct reference to the New Pact on Asylum and Migration in the (at that time still planned) Action Plan on Integration and Inclusion for 2021-2027 published by the Commission on 24th November 2020.

6. Conclusions

In theory the added value of the new Action Plan is high as it refers to the most important sectors where integration support is essential. There are however several weaknesses. A shortcoming is the unstructured approach with planned integration measures for all migrants and also EU citizens with migrant background. Furthermore, the Action Plan does not distinguish between rights which have to be granted to migrants and voluntary additional supportive integration measures. The Action Plan 2021-2027 stresses the notions European way of life and inclusive societies in general, but does not mention any possible negative consequences of integration measures.

The New Pact and the Action Plan 2021-2027 again reveal the challenges with regard to integration. The Action Plan is an ambitious enumeration of actions and measures to be implemented by the Commission and comprehensive encouragements to Member States. If and how Member States follow these plans will depend also depend on financial support by EU funding and on their own vision of integration as a cornerstone of a successful migration policy.

[1] Source of statistics in this paragraph: Eurostat. UK figures not included.

[2] See Adam, I./Thym, D., Integration, in: From Tampere 20 to Tampere 2.0: Towards a new European consensus on migration, De Bruycker P./De Somer M./De Brouwer, J.-L. (eds.).