by Stefanie Buzmaniuk, Head of Publications, and Ramona Bloj, Head of Studies, Robert Schuman Foundation, Paris
In terms of migration policy, the EU has a shared competence. Its intervention depends on the application of the principle of subsidiarity and is closely linked to the creation of the Schengen area.
The events since 2015 and the subsequent lack of solidarity between Member States have revealed the unsustainability of the European asylum policy. Despite two reforms of the Dublin III Regulation (2003 and 2013), the most divisive aspect has not been addressed: the country of entry of an asylum seeker is responsible for examining the asylum application, representing a tremendous burden on border states such as Greece, Italy and Spain. It was to tackle these difficulties and shortcomings that a New Pact on Migration and Asylum was presented on 23th September 2020.
Obligatory but flexible solidarity
Solidarity, a principle enshrined in the European treaties, is at the heart of the new approach. However, the new system will be less binding and more flexible as it does not provide for fixed relocation quotas but integrates several forms of cooperation and responsibility sharing.
If relocation remains an option, states refusing to receive migrants on their territory would have other possibilities to show solidarity: they could choose to “sponsor” the return of migrants to their countries of origin. This mechanism could prove to be extremely long and difficult and limited by international law, as there is, for example, at present no common European list of “safe countries of origin”.1 Another option open to Member States refusing asylum seekers would be to assist countries on the front line with expertise or practical help. States refusing either option could be sanctioned.
The Commission hopes to avoid the deadlock between compulsory relocation and no solidarity by proposing a flexible approach, so that all States can participate and take on clear responsibility. This mechanism would be adapted to three types of situations: rescue at sea, migratory pressure and migratory crisis. Depending on the nature of the situation, the European response could be calibrated and adapted, placing the Commission in an important position of assessment and management.
Criteria of first country of entry and returns
According to the proposal, the first country of entry would remain one of the criteria for deciding which country is responsible for handling asylum applications. Nevertheless, these criteria would be prioritised differently: the country responsible for the asylum application could be the one in which an asylum seeker has a sibling or his “nuclear family” (contrary to the current situation, where the presence of the nuclear family is the only valid criterion), or in which he has worked or studied. The project maintains the possibility – seldomly used so far – of filing an asylum application in a Member State which has already granted the migrant a residence permit or visa. Otherwise, first-arrival countries will still be responsible for managing applications, but in the new hierarchy proposed by the Commission, this is now the fifth criterion. The emphasis on better management of external borders and returns further strengthens the security dimension, which has been the main approach to migration management2 over the years (i.e. introduction of the Schengen Information System – SIS, Eurodac, the Integrated System of External Vigilance).
According to the Commission, migrants should learn more quickly whether they have the right to stay. This should be achieved through compulsory “screenings” (identification, health checks, fingerprinting, recording of data in Eurodac database). Returns should be executed more quickly and efficiently. But the fact that the question of returns is linked to the issue of solidarity is a bitter marriage for some observers. Collaboration with third countries in terms of returns is complex. Often, they are neither ready, willing nor able to facilitate the return of their nationals making the process slow and frequently impossible, with extremely harmful effects for migrants who often live in illegal conditions, without social protection for a long time.
To solve these difficulties, the Commission proposes to create a new role of European coordinator for returns under the aegis of Frontex, as well as a network of national experts who would ensure consistency across the EU. Furthermore, the Commission presented an EU strategy on voluntary return and reintegration3 in April 2021, complementing the new pact and putting the emphasis on smoother return processes and better cooperation between origin countries and migrants themselves.
New partnerships with third countries
The Commission underlines the importance of considering migration in a more comprehensive way. This is most evident in the section concerning cooperation with third and/or partner countries. Migration and asylum should be taken into account in all areas of the Union’s external policy (development aid4, economic cooperation, areas of science and education, digitisation, energy transition, etc).
Furthermore, the Commission wants to cooperate more closely with third countries in the judicial and policing fields, notably with the help of Europol, to combat human trafficking, but it remains to be seen how this could be effectively implemented.
The EU Blue Card5 on which the Council and Parliament reached a provisional deal in May 2021, should facilitate the entry of highly skilled migrants into the EU and create more legal pathways for migration.
Improvements of migrants’ rights
Some NGOs regret the focus on returns. Regarding the new sponsorship system, Judith Sunderland, Acting Deputy Director of the Europe and Central Asia Division at Human Rights Watch, said: “It’s like asking the school bully to walk a kid home”6. Jon Cerezo of Oxfam France would have preferred7 solidarity to crystallise through the protection of asylum seekers. Caritas Europa regrets the focus on returns, but it recognises several positive developments concerning children’s rights and preservation of family unity upon arrival, as well as the attempt to pay more attention to the protection of fundamental rights at borders and in cooperation with third countries. Changing the period of time after which refugees are eligible for long-term legal status from 5 to 3 years is also a point that could facilitate integration.
The New Pact on Migration and Asylum will strengthen existing tools and instruments, but also the security aspect of European migration policy. While it seems more realistic in terms of sharing responsibilities and solidarity, it needs a considerable amount of political will. Migration is a human, structural fact; asylum is a fundamental right for persecuted people and a legal obligation under international law for the signatory states to the Geneva Convention. Migration policy will therefore remain crucial for Europe in the future and a new European approach is needed. This Pact could then be a good basis to move forward, but it remains to be seen how it can be adapted to different political and migratory realities.
This text is based on the study “Understanding the new pact on migration and asylum” by the two authors published by the Robert Schuman Foundation in November 2020.