The New European Pact on Migration and Asylum: Pragmatism at all Costs Threatens Long-term Credibility
A European achievement, after all
After negotiations began in the afternoon of Monday 18 December, it was announced on the morning of Wednesday 20 December that a provisional agreement had been reached between Member States and the European Parliament on a comprehensive reform of the EU's migration policy, concluding a long negotiation process that began in 2020 and was repeatedly jeopardised by resistance from some national governments.
The negotiations, which were very tough and tight, covered numerous issues related to the management of migration flows, where both the Parliament and the Council had to compromise on their initial positions on issues such as the length of detention for asylum seekers, racial profiling of migrants, the treatment of unaccompanied minors, the management of search and rescue operations and the surveillance of external borders.
The agreement, hailed in Brussels as a great European success, nevertheless leaves unresolved some problematic aspects regarding its actual implementation and the related issue of respect for the human rights of migrants, to which due attention must be paid.
The strategic relevance of the Pact
For many, much of the Union's credibility was at stake in the Migration and Asylum Pact, since after three years of confrontation between Member States, the Commission and the Parliament, failure would have meant the absence of a European solution to the management of migratory flows, which had been the main criticism levelled at Europe in recent years. It was therefore clear to the European Parliament, the Commission and the Member States that the EU needed to achieve a reform of European asylum law by the end of the current legislature: an impossible goal without an agreement by the end of the Spanish six-month presidency, which ends at the end of 2023.
On the one hand, the Council wanted to give Member States as much room for manoeuvre as possible in dealing with migrants by extending the accelerated asylum procedure as far as possible, but at the cost of reducing guarantees for the protection of migrants' rights; on the other hand, the Parliament wanted to ensure full respect for the fundamental rights of applicants for international protection. In between, the European Commission provided technical support to the negotiations.
The negotiations, which took place in a 'jumbo trilogue' to avoid some of the negotiated measures being left out of the final agreement, enabled an agreement in principle to be reached on five separate but interrelated pieces of legislation to redefine the rules for the collective reception, management and relocation of irregular migrants on EU territory.
When the European institutions started working on the new Pact on Migration and Asylum in 2020, the aim was to put an end to the isolated and often extemporaneous initiatives with which individual Member States had in the past attempted to respond to the increase in migration flows to the EU: initiatives which, precisely because they were isolated, were often inefficient, if not counterproductive, as they prevented a joint EU response to a problem of global dimensions, which instead requires strategies capable of binding all Member States, irrespective of their geographical location and economic relevance. The proponents of the new Pact claim that it will succeed in intervening where it has not been possible before, for example by alleviating the burden of migratory flows on states with external European borders that receive a significant share of asylum seekers, such as Greece, Italy and Spain, through a genuine network of European solidarity that concretely involves all member states.
As mentioned above, the new Pact on Migration and Asylum aims to comprehensively regulate all aspects of migration management, from the moment migrants enter the territory of the Union to the assessment of their applications for international protection. Specifically, the Pact aims to regulate the so-called European 'internal dimension' of migration phenomena, while the so-called 'external dimension' is to be managed through specific agreements with neighbouring countries such as Turkey, Tunisia and Egypt.
Five single measures included
In detail, the New Pact contains five measures:
The Screening Regulation, which introduces a pre-entry procedure for the rapid profiling of asylum seekers and the collection of basic information such as nationality, age, fingerprints and facial image, as well as health and security checks.
The amended Eurodac Regulation updates Eurodac, the large-scale database that will store the biometric data collected during the screening process. The database will no longer count individual applications but the number of applicants in order to avoid multiple applications under the same name.
The amended Asylum Procedures Regulation (APR) provides for two possible stages for asylum seekers: an accelerated border procedure, which lasts up to 12 weeks, and the traditional asylum procedure, which is longer and can take several months before a final decision on the asylum application is made.
The Asylum and Migration Management Regulation (AMMR), which creates a system of so-called "compulsory solidarity", but on a flexible and voluntary basis, to be triggered when one or more Member States are subject to "migratory pressure". Member States will thus be obliged to intervene to help other EU countries affected by large migratory flows, but will be able to choose between three concrete options for intervention: relocating a certain number of asylum seekers, paying a contribution of €20,000 for each asylum seeker they refuse to relocate, or financing operational support.
The Crisis Regulation provides for exceptional rules to be applied in cases where the EU asylum system is threatened by a sudden massive arrival of refugees, such as during the 2015-2016 migration crisis, or by a situation of force majeure, such as the COVID-19 pandemic. In these cases, national authorities will be able to apply stricter migrant management measures, including longer detention periods.
The provisional agreement will now have to be translated into legal texts for approval by the Parliament and then the Council. Last-minute requests for amendments to the texts by the governments of some member states, which have been highly critical of the Pact's approach in the past, cannot be ruled out: however, as approval in the Council will be by qualified majority, individual countries will not be able to veto it. It will be the task of the Belgian Presidency, which begins on 1 January 2024, to ensure that the implementation of the Pact is completed before the next European elections at the beginning of June.
A pact at all costs that undermines the credibility of the EU
The news of the success of the trilogue came with great fanfare from Brussels in the early hours of 20 December: it was said that the EU had fulfilled one of its promises made at the beginning of the current legislature, that the Pact would put an end to the isolated actions of individual Member States in the management of migration flows by establishing a genuine European solidarity process of migration management, and that failure would play into the hands of the Union's critics.
It is certainly true that arriving at a European discipline is a considerable achievement, given the strong resistance both of the Parliament and, above all, of the Member States to a truly uniform regulation of the issue. On the other hand, this system of European solidarity is defined in the Pact itself as "compulsory", but flexible and voluntary in the way it is implemented: a concept that seems almost an oxymoron and one that betrays a certain weakness in the system, since, as we have said, each Member State will be able to choose how to provide solidarity to the others. The option of paying a contribution of 20,000 euros for each migrant that a country refuses to resettle, or the other alternative of financing other forms of support (yet to be defined), shows that the real problem, i.e. the concentration of large numbers of migrants in a few Member States, which are forced to bear the bulk of migratory flows mainly because of their geographical location, is not really resolved by the new regulation. From this point of view, it would have been appropriate to make the forced relocation of migrants the only option in all 27 Member States, clearly according to specific demographic and economic conditions, in order to create a real network of solidarity within the Union.
Another weak point of the agreement concerns the guarantee of respect for the fundamental rights of migrants: in particular, the possibility of using the accelerated procedure for examining asylum applications for those who seem to have little chance of receiving protection has been criticised by various NGOs involved in humanitarian aid for migrants heading to Europe. In an open letter of 18 December, 50 of them warned that by speeding up the procedures for assessing asylum applications, the new pact risks violating the fundamental rights of migrants and betraying the values and principles of respect for life and human dignity on which the European construction and integration process is based.
A similar criticism can be made of another of the Pact's pillars, namely that the external dimension of migration management should be based on specific agreements with countries outside the EU, along the lines of the one with Turkey, in order to intervene to prevent migrants' departures to European borders. In addition to Turkey, countries such as Tunisia and Egypt are mentioned in Brussels, but in reality we know that fundamental rights are not guaranteed in these countries at the moment. A system that provides economic support to the governments of Tunis and Cairo, and perhaps in the future to other states willing to work in this direction, risks not only being an economically very costly investment and jeopardising respect for the rights of the migrants detained there, but is also dangerous from a strategic point of view, as it would put a very powerful weapon of pressure on Europe in the hands of these governments should economic or political disputes arise between the EU and the countries concerned. Erdogan's example should be well remembered in Brussels and in European chancelleries.
Finally, a systemic comment. It has been said that by approving the pact, the EU is taking space away from the sovereigntists, who would have liked to see the negotiations fail in order to revive nationalist strategies in the next European election campaign. That's why it was so important to reach an agreement, and it took a strong dose of pragmatism on everyone's part to reach a compromise. It is true that it will be necessary to wait for the adoption of the implementing rules of the Pact, expected in spring 2024 under the Belgian Presidency, so that some specific aspects of the agreement cannot be evaluated before then. It is also true that the adoption of a European approach to the management of migration policies will make individual solutions obsolete: it will be interesting to see, for example, what will happen at this point to the pact between Italy and Albania, according to which some of the asylum seekers rescued by the Italian navy will be detained in centres built on Albanian territory from 2024. But it is equally true that Europe also remains a community of principles and values, the full respect of which is required of countries applying to join the Union as a precondition for their accession to be considered. It would be very damaging to the Union's credibility if, in order to solve a problem as urgent as the management of migratory flows, it gave the impression that it was prepared to depart from the principles and values of which it claims to be the proud defender.
Prof. Andrea De Petris
Centro Politiche Europee | Roma