Lilian Tsourdi, Assistant Professor, University of Maastricht

*Photo credit:  Délmagyarország/Schmidt Andrea

The EU’s New Pact on Migration and Asylum, along with its accompanying legislative proposals, represents the latest policy framework for asylum, migration, and border management. Its stated goal is to create streamlined migration procedures and stronger governance. Since September 2020, negotiations on the Pact’s legislative components have been underway.

Recently, both the European Parliament (April 2023) and the Council of the European Union (June 2023) have adopted negotiating positions on two significant instruments: the Asylum Procedures Regulation (APR), which updates regulations on determining asylum and related rights, and the Asylum and Migration Management Regulation (AMMR), which reforms the EU’s system for allocating responsibility for processing asylum requests and establishing a solidarity framework.

This analysis presents three key arguments: first, while the goal of achieving “seamless migration processes” as proposed by the Pact is not inherently negative, the practical implementation leans towards shifting protection responsibilities outside the EU, thus jeopardizing fundamental rights; second, the Pact instruments place a greater emphasis on the administrative aspects of the policies, potentially improving implementation; and third, the Pact instruments propose a concept of flexible solidarity that is still connected with pressure and falls short of achieving equitable responsibility sharing.

Externalization as the common thread

Creating streamlined migration processes isn’t inherently wrong. This strategy recognizes the interconnectedness of different policies on an operational level, particularly in border regions. As early as 2007, the UNHCR, through its Ten Point Plan, highlighted the need for swift identification at external borders, distinguishing between individuals within mixed migration flows, and directing them to the appropriate process.

However, the Pact’s pursuit of streamlined migration processes is, in reality, designed to shift protection obligations outside the EU, ultimately undermining fundamental rights. The Pact instruments introduce accelerated screening, asylum, and return processes at external borders with reduced procedural safeguards. When coupled with logistical limitations (like facilities and access to legal counsel), these processes risk negatively impacting the procedural rights of migrants. Furthermore, the instruments blur the boundaries between the deprivation of liberty and limitations on freedom of movement, potentially leading to the widespread use of de facto detention.

Adding to these concerns, the Council’s most recent negotiating position on asylum procedures expands the application and scope of the safe third country principle. In cases where third countries haven’t ratified the 1951 Refugee Convention or maintain a geographical limitation to its scope (as is the case with Turkey, for instance), the APR introduces the concept of access to “effective protection” as part of the third country safety assessment. The provisions lack robust guarantees to determine what constitutes effective protection, establishing standards that fall below those outlined in the 1951 Refugee Convention.

Simultaneously, migration management has been streamlined within the EU’s external relations, impacting areas like development and trade. One method the EU employs to establish these connections is by making access to funding for non-EU countries contingent on their cooperation with migration management goals. A recent example of this is the agreement with Tunisia, spearheaded by the EU, Italy, and the Netherlands.

Enhanced focus on the system’s governance

A major shortcoming of the EU’s asylum policy is its inadequate attention to administrative aspects. The current administrative framework assigns the majority of operational responsibilities—including financial ones—to Member States, despite their differing levels of economic development and varying interpretations of welfare.

More so than in the past, the Pact instruments acknowledge the importance of the policies’ implementation dimensions. The Council’s positions on the AMMR and the APR emphasize the opportunities presented by EU funding and agencies in policy implementation. Nevertheless, the instruments fail to adequately address the implications of agency involvement in implementation, while the current structure of the EU budget (Multi-Annual Framework 2021-2027) prevents the existence of truly structural forms of EU funding.

Furthermore, the AMMR and APR offer a structured method for defining the relative capacities of Member States and allocating responsibilities in certain areas (such as implementing border procedures) based on these capacities. The activation of solidarity measures is also connected to quantitative and qualitative indicators, which, as a whole, appear well-suited for providing a comprehensive overview and assessing relative pressure.

Lastly, the Council’s negotiating position on the AMMR proposes new, enduring governance mechanisms, such as annual High-Level EU Migration and Technical-Level EU Migration forums. These forums are intended to play a key role in fostering inter-state solidarity through pledges. Compared to ad hoc negotiations and reactive responses, these permanent structures, modeled after UN-level processes, seem better equipped to establish efficient and predictable cooperation between states.

An insufficient vision of solidarity

The AMMR largely preserves the fundamental principles of the existing “Dublin system,” which governs responsibility allocation within the EU. In essence, Dublin assigns responsibility to the state primarily accountable for an individual’s presence in the EU. In practice, this should mean that the state of first irregular entry into EU territory bears the responsibility. However, states have attempted to circumvent their Dublin obligations (for instance, by not registering asylum applications), while asylum seekers move through the EU covertly, evading Dublin procedures.

To counteract this, the AMMR Council negotiating position aims for more predictable implementation of inter-state solidarity through annual pledges from Member States. Nevertheless, solidarity measures, grouped under a “Solidarity Pool” framework, are still intended to be triggered in situations of pressure.

The Solidarity Pool will consist of: (i) relocations (i.e., organized transfers within the EU) of asylum seekers or individuals recently granted international protection or migrants subject to a return obligation; (ii) direct financial contributions from Member States intended to strengthen either Member State or third-country capabilities in asylum, migration, or border management; (iii) alternative contributions such as capacity building, staff support, or equipment. All these contributions are intended to be “considered of equal value.”

Breaking with the past, solidarity takes on a mandatory nature. Member States are expected to contribute their fair share annually, calculated through a formula considering their population size (50% weighting) and total GDP (50% weighting). However, to appease Member States opposed to relocation, the Pact instruments allow Member States complete discretion in selecting the types of solidarity measures they contribute.

Ultimately, the Pact’s approach is unlikely to achieve equitable responsibility sharing. Despite establishing permanent governance structures, the Pact still ties the activation of solidarity to pressure. Consequently, instead of establishing structural fair sharing, solidarity remains a temporary fix. Additionally, it’s unlikely that capacity-building activities in third countries or sharing personnel and equipment will be perceived by the benefiting Member States as having the same impact on the ground as sharing responsibility for people.

The long and challenging path forward

June 2023 witnessed one of the deadliest shipwrecks involving migrants trying to reach the EU. Over 500 people are missing and presumed dead off the coast of Pylos, Greece. Tragically, such avoidable losses of life are becoming commonplace, with the IOM reporting over 27,500 missing migrants in the Mediterranean alone since 2014. Taking action to reform the EU’s migration policies is essential.

EU officials celebrated the Council’s early June negotiating position as a breakthrough. The upcoming European Parliament elections in June 2024 create further pressure for EU co-legislators to reach compromises in the coming months. However, political divisions remain deep, as demonstrated by Poland and Hungary blocking a joint political statement on migration from Heads of State during the late June 2023 European Council meeting.

What potential benefits do the Pact instruments offer? They demonstrate increased attention to policy implementation, governance structures, and the practicalities of solidarity. Nonetheless, by prioritizing externalization and seeking to appease a small number of Member States seemingly resistant to inter-state solidarity in migration, the Pact risks undermining the fundamental rights of migrants while failing to achieve equitable responsibility-sharing. Reforms that fail to deliver tangible results risk exacerbating polarization on migration issues.

Legislative developments within the EU mirror the UK’s recently enacted Illegal Migration Act. Both signify an increasingly defensive policy approach toward migration in Europe. It is hoped that future policies will strive for mutually beneficial partnerships with third countries, migrants, and local populations that go beyond Eurocentric perspectives. Such partnerships should meaningfully address the various elements of migration processes and work towards shared development.