Pact with the devil, or a big fresh start? Controversial views on the EU’s New Pact on Migration and Asylum

The pact, consisting of 9 legislative proposals, was presented by the Commission in September 2020 and referred to by the President of the Commission Ursula von der Leyen as a "fresh start" for the Common European Asylum System (CEAS). After a period of more than three years of extremely contentious debate, first within the Parliament and the Council and subsequently between the two legislative bodies of the EU, the possibility of coming to an agreement seemed questionable for a long time.

The unfortunate framework conditions

The agreement was reached in the midst of a sharp increase in the number of asylum seekers in Europe, exceeding one million in 2023, not counting the 5.3 million refugees from Ukraine. Such figures had not been observed since 2015/16, and memories of the massive asylum crisis of those years were conjured up. In spite of deterrence measures, walls and fences built at the external borders, violent and illegal pushbacks, obstruction of sea rescue, and agreements in place with third countries such as Turkey, Libya and Tunisia, hundreds of thousands of refugees had found their way to the EU states via the Mediterranean and the "Balkan route". In 2022/23, quite a few Member States had tightened their national asylum laws, aggravated reception conditions for asylum seekers, reduced social benefits, extended the duration of detention pending deportation, decreased preferential treatment for unaccompanied minors, reintroduced internal border controls and considered outsourcing asylum procedures to third countries. Clouds had gathered over European asylum law long before the New Pact was agreed.

The political landscape in Europe had undergone increasing change due to the growth of right-wing and extreme right-wing parties and movements in almost all countries. Hostility towards foreigners, blatant racism, islamophobia and national-identitarian ideologies ceased to be marginal phenomena. Opinion polls in 2023 show that the majority of the population in EU countries believe that there are too many foreigners and that politicians are not doing enough to curb a further rise in numbers[i]. [MB1]

The European Parliament (EP) elections to take place in June 2024 and the subsequent reappointment of the EU Commission have put decision-makers under pressure to achieve a consensus "whatever it takes" in order to avoid being left empty-handed in terms of migration policy during the election campaign. We will see that, in reality, this is not a compromise between the more liberal and "refugee-friendly" proposals of the Parliament and the restrictive positions of the Council, i.e. the governments, across the board, but rather a gradual retreat on the part of MEPs. Ultimately, it appears that their membership of parties that are represented in Member State governments led to party discipline superseding their own asylum policy convictions.

What’s changing - is anything changing?

Asylum procedures are to take place at external borders for applicants from countries for which the EU rate of recognition of international legal protection at first instance is below 20%. During the process, usually lasting three months, there is the fiction that the individuals have not even entered the country. After the German government and the Greens in the European Parliament gave up their opposition by a majority, the - now obligatory - detention-like placement during this process also applies to families with children. Decisions rejecting asylum applications also include a deportation order. Border procedures are already part of the current Asylum Procedures Directive, which was reformed in 2013, and are practiced in many countries. But now it is to be made mandatory in the sense of "uniform regulations" throughout the EU, and the Member States are to provide 30,000 places for a total of 120,000 people per year in more or less closed facilities. This, in practice, almost only affects Member States with "sensitive" external borders, such as the Mediterranean countries.

All individuals entering the EU "irregularly" are to be identified at the external borders and subjected to screening, as mandated under the Dublin system. Yet the new "screening regulation" will hardly change the fact that many asylum seekers manage to evade such registration in order to avoid becoming victims of the Dublin regulations on refoulement to the countries of first entry.

The classification of non-EU countries as "safe third countries", to which asylum seekers can be returned, is to be made easier. However, repatriation requires the consent of the country in question, which is generally not granted.

Particularly controversial were the "solidarity mechanisms", a core element of the Pact, involving the relocation of asylum seekers and recognized refugees from countries of first entry under particular migratory pressure and their dispersal across all Member States, as a correction to the Dublin system, which remains essentially unchanged.  In the end, the European Parliament's demand to make relocation mandatory, with special consideration for those rescued from distress at sea, did not prevail. Member States can "buy their way out" by paying a sum of 20,000 euros for each asylum seeker allocated according to the distribution quota but not accepted, or by providing benefits in kind in the form of capacity building measures. The countries of the Visegrad Group have already declared that they will not accept even this mild form of solidarity.

Political consultant Gerald Knaus[ii] made an attempt to simulate what would have changed had the pact gone into effect in 2023. Would fewer asylum seekers have come to Europe? No, because also in the past, the deterrent instruments have not had the effect of preventing people from making the life-threatening and costly journey to the EU. Would fewer people have drowned in the Mediterranean? No, because the pact offers no alternative in the form of a concrete possibility of safe and lawful entry and makes no provision for an EU sea rescue operation. Would more people without a residence permit have been repatriated to their home countries or to transit countries? No, because there are no new approaches in the pact to encourage third countries to cooperate. Would asylum procedures have been accelerated? No, border procedures can take up to 3 months instead of one month as before. In countries with extraordinary migration pressure, the extremely complicated procedures of possible relocation to other countries would lead to a considerable extension of the asylum application processing time. Would fewer migrants and refugees have travelled irregularly from the country of first reception to other EU countries? No, on the contrary, the number would probably be higher because the reception conditions in the countries with sensitive external borders would have worsened even more for the purpose of deterrence and because of the additional burden on them.

In my simulation for Italy, one of the most affected countries of first reception, based on the figures for 2023, relocation in the best-case scenario would have involved 4% of the slightly over 100,000 asylum seekers. However, Italy would have had to create tens of thousands of new detention-like accommodation places for the border procedures. Nevertheless, the Meloni government has agreed to the political settlement. On the one hand, they do not want to be seen as "anti-European"; on the other, they have declared that they will not rely on European solidarity anyway, but on cooperation with third countries such as Tunisia and Albania as a means of preventing, or at least curbing, the inflow of refugees.

The white sheets in the New Pact   

It takes less effort to determine what the New Pact does not contain than to find the great innovation that was announced.

What is missing is a concrete and formal program for the expansion of lawful access routes for refugees and migrants.

A mechanism of "automatic" dispersal of asylum seekers rescued from distress at sea across the Member States, as proposed by the EP, is not envisaged, and neither is the establishment of an EU sea rescue operation.

The Dublin Regulation, with its assignment of primary responsibility to the countries of first reception, has not only not been superseded, but has become even stricter. The shortening of procedural deadlines and the extension of the period during which responsibility for the asylum seeker remains in the country of first reception to 20 months will increase the burden on countries with "sensitive" external borders. Regardless of all the studies on the 30-year dysfunction of the Dublin system, this system, now taking the form of a regulation on asylum and migration management, will remain in place for an indefinite period of time.

The extension of the definition of family to include siblings for the determination of the responsible country of asylum, as envisaged by the EU Commission and welcomed by the EP, has failed due to fierce opposition from the Council.

The crucial point of a reform of the Dublin system adopted by the EP in spring 2023, namely the recognition of the special relationship that an asylum seeker has with a particular country as a primary criterion for the asylum responsibility of that country, has not been included in the regulation. It has been proven in many studies that asylum seekers want to go where relatives, friends, communities are, or where they speak the language and where cultural links exist. This is also the main reason for irregular onward migration within Europe. In the political agreement on the Asylum Management Regulation, only the possession of a diploma issued in a Member State is mentioned as a specific link to that country.   

Subsidiary legal protection has not been extended to persons displaced by climate change. Their protection still depends on national regulations and case law in individual Member States.

The formal ban demanded by the European Parliament on distributing EU funds to military units and coastguard facilities in third countries that systematically violate human rights failed to gain acceptance the Council.

The obligation to redistribute quotas of asylum seekers and refugees from Member States under particular migratory pressure to other countries, which was originally also considered by the Parliament, has been watered down into a package of "solidarity mechanisms", of which "relocation" is only one possible option. However, the option of a "return sponsorship", which the Commission and the Council initially envisaged as a solidarity action, has been withdrawn.

Contradictory opinions

The European Commission, the EP Bureau and the governments of the Member States have, with a few exceptions, welcomed and even applauded the political agreement on the pact. Ursula von der Leyen speaks of a "historic agreement" that represents a European response to a challenge to Europe. "The Europeans will decide who comes into the EU and can stay here, not the smugglers". For Roberta Metsola, EP President, December 20, 2023 will become a historic date. Fast and direct deportation at the external borders will be guaranteed. Olaf Scholz: "In this way, we are curbing irregular migration and relieving the burden on countries that are particularly affected, including Germany". German Foreign Minister Annalena Baerbock is convinced that a European agreement was urgently needed and overdue, underlines the importance of the new solidarity mechanism, which is "simple, predictable and practicable", but regrets that Germany was unable to push through its demand for the general exemption of children and families from border procedures. Interior Minister Nancy Faeser is convinced that humanitarian standards for refugees would be protected[iii].

According to the Italian Interior Minister Matteo Piantedosi, a solution has been found that, in the face of migration pressure, strikes a balance between responsibility and solidarity and does not leave the countries with external borders holding the bag. "A big success for Italy and for Europe". Similar assessments came from the governments in France and Spain, which had exerted particular pressure for a quick agreement, partly due to the highly controversial debate in France regarding the tightening of the asylum law and to Spain's interest in successfully concluding its presidency of the EU Council. Only Poland and Hungary have declared that they will not accept a single asylum seeker from other countries.

The Greens in the EP and in Germany have had difficulty welcoming the agreement. The co-leader of the German Greens, Omid Nouripour, sees "painful points" in many areas of the pact, e.g. in relation to border procedures[iv]. The co-head of the German Green Youth, Katharina Stolla, even believes that the pact is "a Christmas present to Europe's right-wing extremists, a slap in the face of human rights, a massive disenfranchisement of refugees" and calls for the withdrawal of Germany's consent to the agreement[v]. For Erik Marquardt, Green member of the EP's lead LIBE committee, border crossing procedures do not constitute a simplification, and secondary migration would actually be encouraged due to poorer treatment of asylum seekers in the countries of first reception. "As Greens, we have not really made any headway"[vi]. 

The agreement has been harshly criticized by European and international NGOs. On the eve of the agreement, 50 organizations, including Amnesty International, Oxfam and Save the Children, submitted an urgent appeal to the EP and the Council to reconsider the text[vii]. The German section of Amnesty International was "horrified" after the adoption and spoke of a "breach of a human rights dam". ProAsyl, the umbrella organization of German asylum associations, fears "the establishment of a system of detention camps for people who are fleeing and have done nothing wrong"[viii]. Sophia Eckert, spokesperson for Terre des Hommes, fears the disenfranchisement of children who are threatened by "a life behind barbed wire" and the "end of the European value system"[ix]. All sea rescue organizations operating in Italy have issued a joint statement condemning the "legalization of rights violations at the external borders" and expressing fears of a further increase in the number of victims in the Mediterranean.

The legend of the “false refugees”

One of the main objectives of the pact is to prevent the abuse of the right to asylum by migrants who are not entitled to protection. In terms of public opinion, the impression created and fuelled is that a large majority of asylum seekers fall into this category. Official figures prove the opposite.

In recent years, the rate of recognition of international legal protection in the EU+[x], i.e. the granting of refugee status within the meaning of the Geneva Refugee Convention and of subsidiary protection, has consistently exceeded 40% at first instance[xi]. In October 2023, the last published figure, the rate was almost 50%[xii]. In addition, there are asylum seekers who receive legal protection and the right to stay on the basis of national rules ("humanitarian protection"), estimated at 20% for 2023[xiii]. And then there are the asylum seekers who are granted protection in the second, mostly judicial instance, reaching 21% in 2022 according to the EU Asylum Agency[xiv]. As a result, around 80% of asylum seekers are granted legal protection in the EU and thus the right to stay. This reduces the number of "false refugees" to around 20% of applicants.

For years, the most represented nationalities among asylum seekers in the EU have been Syrians, who are granted legal protection in over 90% of cases (October 2023: 94%), Afghans (recognition at first instance by 90% since 2021, falling to 64% in October 2023), and Venezuelans (90% humanitarian reception). In Italy, however, the largest groups among asylum seekers in 2023 were Ivorians, Tunisians, Gambians and Egyptians - all nationalities with a first-instance recognition rate below 20%, to which the border procedure will therefore be applied in the future.

Conclusion

Viewed as a whole, the new pact is more of a set of rules on protection against refugees than one on the reception and protection of refugees. One may ask whether this was what the mothers and fathers of the EU Charter of Fundamental Rights had in mind when they solemnly enshrined the right to asylum in Article 18, in accordance with the Geneva Convention on Refugees.

Key parts of the pact will not come into force until spring 2026, two years after it is formally adopted, and only then will it become clear which parts can actually be implemented in practice. Doubts have been raised as to whether the "solidarity mechanisms", regulated in an incredibly complicated manner in 18 long articles in Section IV of the Regulation on Asylum and Migration Management, will be applied. In the confusion between "solidarity contributions", "solidarity pool", "solidarity forum", "migration management report", "migration management plan", "distribution key", and a "migration pressure" to be determined on the basis of 20 different criteria in individual countries, the "bureaucratic pressure" may be too great even for trained experts.

This article was first published in German here on 30 January 2024.