The new migration and asylum pact: Smoke and mirrors?

In April this year, the European Parliament agreed to a reform of the Union’s rulebook on migration and asylum, approving the different legislative files that make up the so-called New Migration and Asylum Pact. The Pact was finally approved by member-states around a month later, in mid-May. It is the result of almost a decade of failed efforts to reform the Union’s migration system after the 2015-16 migration crisis.

Member-states along the EU’s external borders were unable to deal with the influx on their own and allowed migrants to go north to countries such as Germany and Sweden. The EU was eventually able to end the crisis by closing off the Balkan route and by striking controversial agreements with countries like Turkey and Libya to stop migrants from reaching Europe. However, the crisis had a lasting impact on European politics, fuelling anti-immigration populist forces in many member-states and pitting EU countries against each other.

The Pact will be difficult to fully implement and is unlikely to make the EU’s migration system more humane and effective. It also won’t make migration less of a controversial issue between the member-states or in broader political debates. To do all these things, the EU would need to rethink the way it approaches cooperation with third countries, shifting from a focus on migration control to forging genuine partnerships with migrants’ countries of origin and transit.

Main elements of the Pact

One of the defining features of the EU’s migration rules has been that the member-state of first entry, normally meaning one along the EU’s external borders, is responsible for processing most asylum applications. The Pact does not deviate from that principle. However, it makes some significant changes to the old rules.

First, the Pact introduces new asylum procedures that are designed to speed up the processing of asylum claims. Under the new rules, people arriving at the EU’s external borders or rescued at sea will have to undergo a mandatory ‘screening’ procedure. Those with a high chance of being granted asylum, for example, because they come from a war-torn country, will be channelled into a standard asylum procedure. Others, especially people considered to pose a security risk, will undergo a so-called ‘border procedure’, meant to last less than 12 weeks in total. While their applications are being processed, they will not be considered as having entered EU territory, and member-states will have to process their applications close to the EU border – potentially in detention.

Second, the Pact sets out a range of harmonised criteria to evaluate asylum applications, with the idea of ensuring minimum standards and more uniformity in how member-states assess applications. This can make it easier for member states to reject asylum applications.

Third, the Pact introduces a raft of measures to address the issue of so-called secondary movements. This refers to migrants moving around within the EU before their

applications have been assessed by the member state responsible for doing so. The Pact introduces new systems to collect and share migrants’ biometric data and simplifies the procedures that member states can use to transfer migrants back to the member state responsible for their application. These measures will make it harder for member-states along the Union’s external borders to close a blind eye to migrants leaving their own territory for other member-states before filing an application, or while their application is under review. Therefore, the Pact aims to remove what was de facto an important safety valve for some member-states to deal with large numbers of arrivals.

Fourth, the Pact introduces a set of solidarity measures, a priority for countries along the EU’s external borders that can be overwhelmed by a large number of applications. Every year the Commission will propose a pool of solidarity contributions for the relocations of asylum seekers from member states under ‘migratory pressure’ and financial contributions to them.

Shortcomings of the Pact

Following the adoption of the Pact, there will be a two-year transition period until its rules are supposed to come fully into force. Implementing the Pact will not be easy. Member states along the external borders will need to make substantial investments in building up their reception facilities and administrative capacity to process asylum applications more quickly. Many provisions of the Pact will be controversial. Border countries will need to process asylum applications more quickly, and it will be harder for them to turn a blind eye to secondary movements. Compared to the additional burdens the Pact places on border member-states, the solidarity measures seem thin. Moreover, Poland and Hungary have made clear that they reject relocations as a matter of principle and the coalition programme of what will likely be the next Dutch government says the Netherlands would seek an opt-out from the Pact.

The fact that the solidarity measures in the Pact are limited means that countries along the border will have little incentive to fully implement many of its provisions. Migration politics will continue to be a source of friction between member states.

A second shortcoming of the Pact is its external dimension. Even if the EU managed to set up a system to process asylum applications more quickly, it will continue to struggle with returns. Returns are not only a matter for EU authorities, as it is not possible to return an individual to a given country without cooperation from that country’s authorities. Processing applications more quickly will only lead to a build-up of individuals stuck in limbo unless returns can be made to work better.

The Pact’s third shortcoming is that it will fail to make the EU’s migration system more humane. The additional burdens that the Pact places on border countries, combined with the lack of solidarity and the difficulty in implementing returns means that border member-states will continue to have an incentive to keep their borders near shut, preventing people from lodging asylum applications.

Member states seem aware of the Pact’s shortcomings, at least when it comes to considerations of reducing the number of arrivals. Now that the Pact has been adopted, many member-states are trying to advance the idea of further externalising migration controls, for example by sending asylum-seekers to non-EU countries to have their

claims assessed. The core idea – inspired by the UK’s Rwanda scheme – would be to deter migrants from making journeys to the EU in the first place. Proposals relating to external processing have been around for years and are fraught with legal difficulties. They are also difficult to implement.

Is there an alternative?

To address its migration conundrum, the EU needs to rethink its approach to partnerships with migrants’ countries of origin. More intra-EU solidarity would be very helpful but, on its own, is unlikely to be sufficient as returns would remain very challenging. The problem with the EU’s current approach is that migration is seen as a problem rather than a complex phenomenon that the EU and partner countries should handle together

The challenge is tying this together into a coherent package, of which migration is just one part. The EU could present its partners with an offer that included more legal migration opportunities, enhanced access to the EU market, investment and technical assistance, in exchange for good co-operation on returns. In essence that is precisely what the EU does with countries in the Western Balkans, which have fairly high return rates.

In theory, the EU has tried to follow such an approach since 2016, when the Council endorsed a Commission proposal for a new partnership framework with third countries. Packages along these lines would give partners a greater stake in migration cooperation with the EU and foster the sense that migration is a shared interest, and only one part of a bigger relationship. However, the Union has struggled to implement such policies.

In theory, the EU has also tried to use ‘sticks’ to push partners to cooperate more, for example by threatening to make visas or funding conditional on cooperation. In practice, however, this has proven difficult to do.

Convincing the member-states that they need to be less protectionist and that they should be more open to legal migration won’t be easy. However, a revamped partnership package would be the best guarantee of a better functioning and more humane migration system. At a time when Europeans fret about losing influence to the likes of China in much of the so-called ‘Global South’, revamped partnerships would serve to increase their influence there. And, by injecting more control and predictability into migration flows, such partnerships would make migration less controversial, and therefore help secure Europe’s future prosperity.

Luigi Scazzieri is a senior research fellow at the Centre for European Reform. The article was posted on the website of the Centre for European Reform and on the Blog of the Cyprus Economic Society.