Even before yet ever since the 2015 migration crisis, migration has emerged as one of the European Union’s fault lines. The Dublin Convention , the current regulatory mechanism, first entered into force in 1997 and developed into the Dublin III Regulation, has proven to be inefficient in fostering solidarity from recalcitrant Member States. According to the plans of the European Commission, the New Pact on Migration and Asylum should come into force in 2023. It still needs to be approved by the European Parliament, but the most significant issue is that an agreement has to be reached between all 27 EU members.

What failed until now? Most importantly, the quota system. Several Member States were giving up obligations by showing unwillingness to except quotas (for example, in Poland and Hungary). Asylum competences are the purview of Member States exclusively. The EU has no jurisdiction or influence on that. Thus, the countries of first entry (especially through the marital border) had to take the processing obligations with a lack of fellow Member State support, especially from Central and Eastern European countries forsaking solidarity for domestic political gains. Another contradictory measure was the 2016 agreement with Turkey based on the admittance of Turkey a “safe third state”, which led to substantial financial expenses in return for holding back part of the flow. This decision has externalized the responsibilities that would traditionally fall to the Member States both individually and collectively to Turkey, as well as “doubts have been raised whether asylum protection in Turkey is in accordance with international standards”.

The concerns voiced suggested that the EU should aim towards more cooperation. Quota system failed because of “asymmetrical interdependence”, as most Member States were not willing to engage in responsibility-sharing. This led to responsibility-shifting towards external dimension with loss of the EU’s control over the situation. It appeared to be easier to sell the problem away to countries outside Europe then to agree between Member States. Buying its “safety” from Turkey led to the consequent threats from the latter of reopening the borders and requests for more financial aid.

The crisis revealed a painful problem of the EU – a desire for enhanced cooperation yet having no widely acknowledged system of burden-sharing, leading to certain Member States to unilaterally opt out of approaches rooted in solidarity. This is the main goal of the New Pact – enforcing solidarity. The Dublin System “was not designed to ensure a sustainable sharing of responsibility for applicants for international protection across the EU.” Finally, the European Union has called for a compulsory system across the bloc to manage migration. It was mostly backed up by Germany after fires in Moria camp on Lesbos Island, Greece, where people were forced to move to the worse conditions in a tent city, which appeared to become the final sign for the EU officials.

What is new in the Pact?

 

	Status Quo	2016 proposals	New Pact
Relocation	Ad hoc, non mandatory relocation	Mandatory relocation only in times of crisis (150% of ‘fair share’)	Constant solidarity through embedded solidarity mechanisms
Length of Responsibility	12 months	Unlimited	3 years
Free movement of refugees	After 5 years	After 5 years	After 3 years
Border procedure	Optional	Optional	Mandatory for certain categories
Screening Procedure	None	None	Mandatory at border
Crisis Measures	None	None	Dedicated Crisis Instrument + Blueprint
Solidarity for search and rescue cases	Ad hoc, non mandatory	None	Dedicated solidarity mechanism
Definition of family members for reunification	Nuclear family only (spouse and minor children)	Nuclear family only (spouse and minor children)	Nuclear family and siblings

Source: European Commission

The New Pact builds on 2016 and 2018 reforms replacing the Dublin Regulation, not the Common European Asylum System, and eliminating mandatory relocation quotas. The latter were the main point in between Scylla and Charybdis dividing the EU Member States. Furthermore, the New Pact focuses on countries that still do not want to accept relocation to them (like the Visegrad-4 Group), so those Member States would now be asked to pay for the return process, fund reception centers covering relocations or sponsoring returns contributing towards their ‘fair share’ calculated through: 50% based on GDP, 50% according to population.

Another initiative is to increase returns and improve border management, seeming to some that the EU is getting even tougher on migrants. The new proposals that have not seen light before are the new Screening Procedure and Crisis Measures. However, these prescreening procedures for the arrivals is a debatable measure as this could again exacerbate the current lack of solidarity for asylum in Europe and put more effort and administrative pressure on front-line Members (like Italy, Greece or Malta).

Moreover, although part of the new migration pact focuses on accelerating decisions on asylum applications, extra asylum procedures or tracks may increase detention, addressing it now not only by last resort principle, for up to 6 months at the EU’s borders, a maximum of 12 weeks for the asylum border procedure and another 12 weeks in case of a return border procedure. While in crisis, the mandatory application of asylum or return border procedures extend this time to 10 months. This approach resembles the failed ‘hotspot approach’ in some Member States (like Greek Islands).

What is agreeably good, the New Pact is developing more legal access to the EU through a Skills and Talent Package as well as a better regulation of families and children’ acceptance. Subsequently, the Pact regards partnership with third countries from where the main flows go proposed from the perspective of global care aiming at stopping conflicts there, as safety in those countries will stop people escaping. Additionally, it aims at supporting other states hosting refugees, as well as creating economic opportunities close to home for the youth.

As one may notice, these measures regard migrants and refugees differently, while it is important to make a distinction between the two. Migrants have a choice. They might be fleeing from unrest, famine, drought, or economic collapse. But unless they are in danger of conflict or persecution, they are not considered refugees. In contrast, refugees have no other choice but to leave their homes as their life and freedom are threatened there. Unlike migrants, they are protected by the international law from being returned, if it puts their lives at risk. As such, it distinguishes more clearly between migrants and asylum seekers, a welcome change given how these two are often muddled, at least in public perception.

Is it enough?

The New Migration Pact proposal has been called a “pragmatic and realistic” compromise towards lacking solidarity and disintegration between fellow Member States. However, as with any international rules-based framework, it is only as strong and efficient as Member States want it to be. While the debate is on, a few doubts have been raised around the issue. For instance, the Pact speaks about the new EU coordinator to returns but not for the relocation. It stresses that Members can choose between either so there is a risk of imbalance.

The OECD and other international organisations (the IMF, IOM and UNHCR) make their recommendations, such as adopting “as soon as possible” approach – the faster the migrants and refugees can get integrated, the easier the process will be for both sides; helping them to get employed and make sure foreign qualification counts – as being involved into a work process newcomers adopt faster; providing them access to education – the basis of values promotion, and focusing more on the youth, whose views are more sensitive to change; work with your civil society (employers, charities, immigrant associations, community based organisations and trade unions) – to make sure legal migrants and refugees are welcomed

Kristina Gera

Author : EUROPEUM
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