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The Odysseus Network organised with the European Policy Centre (EPC) and the EMN Finland its annual conference “From Tampere 20 to Tampere 2.0: Towards a new programme (2020-2024) for EU Migration and Asylum Policies 20 years after the Tampere conclusions” in Helsinki on 24 and 25 October in connection with Finlands EU Presidency. The outcome is presented this Monday 2 December to the Libe Committee of the European Parliament and will be available on our website as from the 11th of December after the publication’s launch. The present post is part of the contribution of Philippe De Bruycker to the conference. The author warmly thanks Jean-Louis De Brouwer for his contribution and precious advice, as well as Marie De Somer for her review of the text.

Philippe DE BRUYCKER

The crisis of 2015-16 challenged the entire migration and asylum policies of the EU and its member states. The rules patiently built over 15 years tumbled down like a house of cards. Despite the European Commission’s 2015 Agenda on Migration launched in reaction, the EU plunged into a multi-dimensional – political, moral, legal, institutional, financial – crisis:

  • Some member states openly refused to apply some of the solidarity measures, like the relocation of asylum seekers, despite it being adopted as a legally binding decision, thereby violating the rule of law upon which the EU is built.
  • Member states re-established within the Schengen area which is one of the foundations of the EU, internal border controls without consideration of the limitations imposed by the Schengen Borders Code.
  • The EU and member states’ support to third countries of transit for migrants led to violations of their basic human rights, involving inhuman or degrading treatments and arbitrary detention like in the case of Libya.

Nonetheless, the crisis is over, and the issue of the disembarkation of some hundreds of persons rescued at sea should not be instrumentalised to convince the public that it is still ongoing. Despite its negative effect on the political climate, the crisis acted as a catalyst and can be transformed into an opportunity as it has often been the case for the EU in the past. It is therefore more than welcome that the new President of the European Commission Ursula von der Leyen has announced her willingness to propose the conclusion of a “New Pact on Migration and Asylum”. Due to the existential character of this crisis, rather than another impetus, it is a new European consensus that is needed and should be concluded between the member states and the EU institutions. After a brief assessment of the implementation of the Tampere conclusions (1), we present the building blocks upon which this new consensus could be established in order to build migration and asylum policies sustainable for the future (2) before making a proposal regarding the methodology that could be used (3).

1.ASSESSING THE TAMPERE CONCLUSIONS

When they were agreed in 1999, the Tampere conclusions placed human rights, democratic institutions and the rule of law at the centre of the area of freedom, security and justice, while stressing that these common values and the freedom they entail should not be regarded as the exclusive preserve of European citizens. On the occasion of their 20th anniversary, the criticality of these fundamental principles must be strongly advocated, given that formal procedures are launched against member states in breach of the rule of law, free movement is put into question and a genuine rights-based migration and asylum policy seems to be problematic for the EU and its member states.

Concretely, the Tampere conclusions launched the policies on visas, borders, migration and asylum on the basis of the Amsterdam Treaty. We review below what has been achieved since their adoption in 1999 under their four pillars

A. Partnership with third countries

Relations with third countries of origin or of transit are crucial for the management of migration flows. Migration and asylum-related priorities are now fully integrated into the Union’s external relations priorities as evidenced by the EU Global Strategy, in line with the Tampere message. A Global Approach to Migration and Mobility (GAMM) has been progressively elaborated with the aim of developing an agenda that takes the interests of all stakeholders into consideration. Even if the GAMM is in itself an achievement, its implementation is still a work in progress. Instead of creating genuine partnerships, relations with third countries are more about managing tensions fueled by how the EU systematically puts return and readmission at the top of the agenda. The nexus between migration and development is also still in the making.

The 2016 EU-Turkey statement left its mark on the Union’s policy towards third countries. To some, this agreement appeared to be a potential new management scheme based on transit countries blocking migration flows in return for financial support from the EU. However, this policy is detrimental to the right to seek asylum, which the European Council has considered so important in 1999 that it had reaffirmed the attachment of the EU and its member states to its absolute respect in the Tampere conclusions.

Simultaneously, several new Trust Funds have been created to channel more money to better address the root causes of migration. New initiatives promoting job-creating investments are promising, and careful attention should be given to the programming of the external relations instruments included in the Multiannual Financial Framework (MFF) for 2021-2027 that offers the opportunity to set up more transparent funding vehicles. Promotion of good governance, the defence of human rights and preventive diplomacy in countries of origin should more than ever be part of the EU toolbox in an attempt to limit the impact of the so-called push factors. Finally, the EU and its member states must now engage in the implementation of the UN global compacts on asylum and migration, regardless of how controversial this may be.

B. A Common European Asylum System

The establishment of a Common European Asylum System (CEAS) was no doubt one of the Tampere conclusions’ more ambitious milestones. Even if the CEAS has not yet been fully accomplished, the EU now boasts the world’s most advanced regional framework of asylum. Its establishment has been a long, difficult and technical process. The persisting blockade on the reform of the Dublin system should not obliterate the progress achieved in terms of legislative harmonisation, administrative cooperation with the creation of the European Asylum Support Office (EASO), financial solidarity throughout the EU, and the inclusion of asylum into the GAMM.

Moreover, some EU member states have begun to pool their resettlement efforts since 2008, to the point where the Union is now one of the major global players in this area when previously it was lagging behind traditional resettling countries. Despite being more modest than envisaged, the relocation process of asylum seekers from Greece and Italy to other member states launched in reaction to the crisis is not the failure it is too often pegged as, but rather an initial experience implemented under extremely difficult circumstances.

A solution must be found to the Dublin conundrum by exploring other forms of solidarity next to relocation. The time has come to conclude the negotiations on the last set of the Commission’s 2016 proposals and to move a gear up to achieve the objectives set in Article 78, §2, a) TFEU by giving the asylum status a validity throughout the Union based on the principle of mutual recognition. Moreover, as crises are always on the horizon, the reason why the temporary protection scheme requested by the Treaties has never been activated since its adoption should be seriously considered.

C. Fair treatment of third-country nationals

Clearly, legal migration is the least advanced policy, with the adoption of minimum and partial rules, particularly regarding labour migration. The parameters set by the Tampere conclusions (economic, demographic, historical, and cultural) remain valid. Existing instruments and the need to harmonise rules for new categories of labour migrants should continue to be carefully evaluated, given that the EU should offer a framework for legal migration, which is required for Europe’s future economic development.

This is particularly true for highly skilled migration, which consequently requires a rapid adoption of the reform of the Blue Card Directive 2009/50. New approaches that are more in line with the interconnected world of the 21st century and new patterns of work should be tested and encouraged. This is also necessary for less skilled migration in liaison with the illegal employment of migrants on the labour market. The free movement of all legally residing third-country nationals as requested by article 79, §2, b) TFEU should be implemented comprehensively, in relation to the internal market, and replace the adoption of variable provisions scattered among several directives.

In terms of methodology, the Commission’s initial approach (make link to COM(2001/387) of combining common legal standards for the conditions of entry and residence with a coordination mechanism applied to flows and profiles, all while respecting member states prerogatives, should be revisited. In particular, close coordination must be secured between immigration and employment policies. There is no need to invent a new platform to that end, as putting the migration-related items on the agenda of the existing Social Dialogue structures would suffice.

Regarding integration, the EU has developed a real philosophy of migration that respects the human being behind every migrant. Even if there is room for improvement, the long-term resident directive 2003/109 does not allow for migrants to be treated as adjustment variables without limits. Due to this directive, migrants should in principle not remain in a temporary status in the EU and acquire a permanent right of residence after five years of legal stay.

Some like to state that integration policies have failed – but such a statement is just another springboard for xenophobia-tainted populism. The success of some integration policies should be highlighted, and the Common Basic Principles promulgated in 2004 by the Council of Ministers still reflect a common understanding, even if no ‘one size fits all’ approach exists. The consolidation of significant funding included in the EU budget, coupled with improved coordination with other budgetary instruments, offer an opportunity to anchor this policy into a broader anti-discrimination and anti-racism agenda.

The issue of undocumented migrants should not be ignored. The ban of collective regularisations decreed in 2008 by the European Council’s pact on immigration and asylum should not prevent member states from using individual regularisations innovatively as a new tool which can contribute to the management of migration flows, in particular the difficult issue of return.

D. The management of migration flows

The fight against irregular migration, as emphasised by the Tampere conclusions, has become the EU’s top priority. Border policy is nowadays the most advanced of its policies, with the impressive development of the European Border and Coast Guard Agency (Frontex) paving the way towards a truly common European Border Guard.

Conversely, the framework for orderly migration has degenerated into a control-oriented approach inspired too often by the assimilation of migration to a security challenge. Coming after many others, the 2015-16 crisis merely accelerated this policy shift. The existing databases (i.e. Schengen Information System, Visa Information System, Eurodac) allowing better control of migration flows will be completed by three new ones (i.e. Entry/Exit System, European Travel Information and Authorisation System, European Criminal Records System) which will become operational in the next years, including the interoperability between those databases. Finally, the increase of financial support for the EU’s action in third countries has been spectacular and exceeds the funds devoted to internal policies.

However, the return policy of irregular migrants has not progressed sufficiently, with a persistently low rate of effective implementation of decisions (below 40%) contradicting one of the main objectives of the EU and its member states. Important and symbolic failures are illustrated by the dysfunctional hotspots. The migrants who are forced to continue living on the Greek islands, despite the EU-Turkey statement, are obliged to survive in appalling conditions that might violate Article 4 of the EU Charter on Fundamental Rights. Red lines were crossed when certain member states prevented NGO boats from conducting maritime search and rescue operations on the basis of false reasons, while the EU pretends that its priority is to save lives at sea.

2. THE BUILDING BLOCKS FOR SUSTAINABLE MIGRATION AND ASYLUM POLICIES

Instead of specific recommendations, we provide a view of the foundations necessary to build European migration and asylum policies that would be sustainable in the long-term. There are two overarching building blocks upon which a new European consensus could be established.

Block 1: Solidarity

Visas, borders, migration and asylum are policies that generated asymmetric burdens between the member states in the AFSJ, particularly in the Schengen area. The problematic configuration of such a common area requires a very high level of solidarity to compensate these imbalances. This has not been the case, and largely explains the 2015-16 crisis. The Dublin mechanism allocates the responsibility for asylum claims between member states primarily on the basis of the criteria of the country of first entry, placing the burden mainly on member states located at the EU’s external borders.

The Tampere conclusions did not consider solidarity a major challenge. The AFSJ is therefore affected by a fundamental ‘birth defect’, rendering it dysfunctional. Tailormade to solve this problem, Article 80 TFEU has not been paid sufficient attention in the last decade, with scattered and insufficient measures that never addressed the issue of solidarity coherently. On the contrary, the unfair Dublin system has been considered as the ‘cornerstone’ of the asylum policy, even though it creates a divorce between the legal rules and the reality on the ground. The result is an EU so profoundly divided on the matter that its reform has, up to date, been impossible.

The wording of Article 80 TFEU requires a very high level of EU solidarity leading to a fair sharing of responsibilities between member states. All of the dimensions of solidarity – and not only the most controversial physical one regarding the relocation of refugees – must be taken into consideration.

  • normative solidarity, through the adoption of common rules to prevent a race to the bottom;
  • financial solidarity, through the allocation of sufficient resources to compensate overburdened member states;
  • operational solidarity, through the EU agencies’ support to member states in need.

To provide an objective basis for a sound political debate that never took place, an in-depth study is therefore necessary:

  • to measure the fair share of responsibility that each member state should bear in the area of visas, borders, migration and asylum, based on a calculation which reflects the capacity (and not only the burden) of each member state;
  • to make proposals for the different types of solidarity (particularly financial and operational) that should be implemented in view of fair sharing of responsibility between member states, including a complete reform of Dublin which would put in place a realistic and fair system.

Block 2: Common policies

The notion of ‘common policy’ regarding visas, borders, migration and asylum policies is not used by accident in Articles 77-79 TFEU. It has been elaborated and given precise content by the legal doctrine in particular our prominent colleague and French member of the Odysseus network Henri Labayle who was the first to conceptualise this notion in a seminal article (see The European Immigration and Asylum Policy: Critical assessment five years after Amsterdam, 2005, Brussels: Bruylant).

The traditional answer to what is a common policy is ‘common legislation’. This explains why the CEAS was considered as accomplished when the second generation of rules on asylum was adopted in 2013. Common legislation is indeed the first necessary but insufficient element of true common policies  – much more is required.

Secondly, common objectives. The legislative process tends to focus too quickly on the details of the proposed provisions, rather than on the overarching objectives of the proposal. Compromises inside and between the Council and Parliament are evidently a necessity, but they should not be concluded at the detriment of the primary objectives of policy instruments. More political rather than technical debates must take place in the Council and Parliament, in order to provide the technical groups or committees that will negotiate the details of the legislation with precise indications.

Thirdly, the crisis showed that common policies require a certain level of common implementation through EU agencies, contrary to the classical principle of indirect administration under EU law. Some progress has already been made in this direction and is best observed in the progressive transformation of Frontex from a European Agency for the Management of Operational Cooperation into a European Border and Coast Guard Agency, particularly the 2019 reform allowing the Agency to recruit its own border guards. The EASO’s conversion into an EU Agency for Asylum will hopefully take place once the pending asylum package is unblocked. As such, the implementation of borders and asylum policies at the EU level emerged and progresses bit by bit, but the speed of this evolution is questionable since the reform of the EASO could go further than what is currently envisaged in the text agreed by the Council and Parliament on the basis of the Commission proposal of 2016.

Fourthly, the unequal distribution of burdens between member states calls for common funding. One cannot expect some member states to produce regional public goods like border control or asylum alone, for the benefit of the others. Further progress must be made. The goals of EU funding are unclear for the time being, as made evident by the rise of emergency EU funds to cover some member states’ basic needs. Financial solidarity that is currently circumstantial must become structural. A fundamental evolution towards funding much more those policies at the EU level instead of the national must be engaged. The new MFF will remain substantially insufficient, despite the increase of the budget allocated to visas, borders, migration and asylum policies. Moreover, the logic behind the distribution of funding should evolve from a system based on burdens (e.g. number of asylum seekers, length of the external border) to one built upon the capacities of member states, measured on the basis of their wealth (e.g. GDP). It is hard to understand why the future Asylum and Migration Fund (AMF) will allocate more money than before to Germany during the 2021-27 period because of the very high number of asylum seekers it received during the crisis than to Greece and Italy despite their current insufficient means to implement the EU policy and their geographical position at the frontline of the EU.

Fifthly, a common policy requires a common positioning towards third countries. The EU has integrated this necessity and successfully implemented this element towards Turkey and Libya – if success is measured by only considering the decrease of the migrant arrivals to the EU. However, this policy has fundamental flaws that have already been described, including the effect of delaying internal reforms due to the respite offered by the external solution.

All these five constituent elements must all be taken into consideration simultaneously to build truly common migration and asylum policies.

3. A METHODOLOGY

We are now at a turning point in terms of EU institutional scenery:

  • Some cherish the hope that political energy will be applied to other priorities – a green deal, digitalisation, equitable transition – so that migration issues could be dealt with somewhat less emotionally and priorities not dictated by emergency. Absolute priority should, therefore, be given to the implementation, the thorough assessment of the impact and probably the amendment of a series of hastily decided measures meant to confront migration challenges. The mantra would be ‘no new initiatives’.
  • Others are of the view that the EU has absolutely no breathing space. That all of the ingredients of a crisis persist and that, whatever it takes, the Schengen area is still as fragile as the eurozone. Moreover, emotions have led to a breeding ground for anger and, within the Council, positions seem to be more entrenched than ever.

One thing is for sure: people in Europe expect the EU to show leadership and to deliver. Any failure to do so could dramatically expose the ‘acquis’ of an unprecedented historical endeavour. Expectations are also high abroad. The manner in which the EU and its member states have been handling migration issues has exposed Europe to a major reputational risk regarding our relations with third countries. What was supposed to be a partnership has become a way to manage (more or less effectively) mistrust. There is only one way to convince third countries that we are serious interlocutors in the migration business: to put our own house in order and to treat migrants – who happen to be citizens of these third countries – decently.

What is needed more than the pact on immigration and asylum proposed by the European Commission President Ursula von der Leyen is a consensus uniting the Commission, Parliament and Council and representing the member states under the auspices of the European Council.

Such an aggiornamento should, of course, be duly prepared, and this might take time. The vehicle for this purpose could be a ‘task team’ composed of the Finnish, Croatian and German presidencies, the President of the European Council, the Commission and delegates of the European Parliament. The team would visit all of the member state capitals to measure and balance expectations. In-depth conversations would indeed be needed to restore mutual understanding, build confidence and hopefully facilitate innovative thinking. Patience and determination will be key in securing the successful completion of such a process that cannot be indefinite. Nevertheless, this would be a small price to pay in order to agree on a consensus that would still appear as solid and relevant twenty years from now.