The New Migration and Asylum Pact: A Path Towards Real Change?
DI MARTA VOLPE
The regulation of migration at the EU level has posed a significant challenge, exacerbated by the prevalence of anti-migrant sentiments across Europe in the aftermath of the 2015-2016 refugee crisis. The European Commission's proposal for a new Migration and Asylum Pact on September 23rd, 2020, aimed to address the shortcomings of the Dublin regulation, which places the responsibility for processing asylum applications on the first country of entry. The Dublin rules proved to be ineffective and unfair, placing an undue burden on EU countries at the borders, such as Italy and Greece. However, member states have been reluctant to cooperate, and negotiations to implement a solidarity mechanism for the repartition of international protection seekers have remained stuck for years.
Meanwhile, the EU has committed to curbing irregular migration by developing an externalization policy of border control and refugee management through agreements with third countries. Examples include the 2016 EU-Turkey agreement and the 2023 EU-Tunisia agreement, which involves the disbursement of financial resources to those countries to prevent the arrival of irregular migrants in the EU. While the EU's narrative suggests an attempt to combat smuggling, critics label these policies as limiting routes for refugees to find safety and as breaching humanitarian law.
Political Agreement Reached Between the European Parliament and the Council:
After three years of negotiations, on December 20, 2023, under the Spanish presidency, the Council and Parliament announced that they had reached a political agreement on the key issues of the Pact, expected to be adopted before the 2024 European elections. These laws aim to make the EU common asylum system more effective and enhance solidarity among member states.
Firstly, the new Asylum and Migration Management Regulation (RAMM) foresees mandatory solidarity for EU countries recognized as being under migratory pressure, allowing other member states to choose between relocating asylum applicants to their territory and making financial contributions. Additionally, the Crisis and Force Majeure Regulation establishes measures to support member states facing an exceptional influx of third-country nationals and the possibility of derogating the standard asylum procedures in case of instrumentalization of migrants by third countries or hostile non-state actors to destabilize the EU.
Furthermore, according to the new Screening Regulation, individuals who do not fulfill the conditions to enter the EU will be subject to a pre-entry screening procedure, including identification, collection of biometric data, health, and security checks, to streamline the application of the appropriate procedure, whether it be asylum or return. Additionally, member states are called to establish an independent border monitoring mechanism (IBMM) to investigate allegations of fundamental rights violations at borders. Additionally, the Asylum Procedures Regulation (APR) outlines a processing time of up to six months for the first decision on asylum applications, and includes a border procedure provision, facilitating the quick assessment of the admissibility of asylum claims. Finally, the Eurodac reform incorporates facial images into fingerprints, enhancing authorities' capacity for threat detection.
Concerns and Critics:
Many humanitarian organizations, including the International Rescue Committee and Amnesty International, deem the proposed change insufficient to address existing challenges and priorities, such as alleviating pressure on states of first entry and upholding human rights.
The Asylum and Migration Management Regulation predominantly upholds the principle of the first country of entry, necessitating international protection seekers to lodge their applications in the country of arrival and remain there throughout the procedural period. This framework holds the potential consequence of surpassing the reception capacity of EU border countries, and perpetrating cases of pushbacks and violence at the borders. The regulation also reduces time limits for family reunification applications, which may decrease the approval rate, and neglects to broaden the scope of the 'family' definition, resulting in scenarios where individuals over 18 years old might be denied reunification with adult siblings in other EU states.
Furthermore, the Screening Regulation proposed for individuals arriving irregularly at Europe's borders raises concerns due to the limited time frame allocated for the procedure, potentially resulting in prolonged detention and inaccurate vulnerability assessments. Additionally, the Independent Border Monitoring Mechanism (IBMM) raises concerns about its effectiveness, given its restricted scope of action and lack of independence guarantees.
Moreover, in the current agreement, the "safe third country" definition, based on which EU member states operate the relocation of migrants illegally entering the EU, is significantly weakened. This gives member states discretion to shift asylum responsibility based on refugees’ temporary stay or transition in a safe third country, posing a high risk of refoulement to countries violating human rights.
Ultimately, the Crisis Regulation allows for a delay of up to a month in registering asylum applications, leaving individuals in a state of legal uncertainty, increasing their vulnerability to deportation. This regulation also allows for the application of border procedures to all asylum applicants without distinction during the assumed "instrumentalization" of migration, which lacks a clear definition, and exposes more individuals to expedited processes with fewer safeguards.
To conclude, while the new Pact on Migration and Asylum presents some positive elements, such as the attempt to reform the asylum system and introduce solidarity mechanisms, concerns persist about potential negative impacts on refugees' rights.