Following long and difficult negotiations, the European Parliament formally approved the New Pact on Migration and Asylum. The reforms intend to further harmonise national practices. However, the Pact falls short of this goal. Rather, once the new laws kick in, we will see more fragmentation and lower reception and protection standards.
The New Pact comprises several legislative texts governing reception conditions, eligibility, and procedures for providing protection, allocation of responsibilities, under the so-called ‘Dublin rules’ for asylum seekers, and fingerprinting via the Eurodac system, among others. The aim is to harmonise law and practices in asylum and migration, address dysfunctionalities as well as some of the main structural challenges of the current system and put an end to secondary movements.
Unfortunately, the new rules enshrine broad derogations from the Common European Asylum System (CEAS), which will likely run counter to the objectives pursued. Despite this, and having obtained very few concessions during the negotiations, the European Parliament adopted all the proposed reforms texts on 10 April, just before the end of its mandate. Should the EU be unable to address implementation challenges, member states will end up derogating from the asylum acquis, stretching the limits of what is permissible. This calls for greater attention to enforcement during the next political cycle, also ensuring that progressive EU values are protected. At the same time, the EU should pursue changes in other related areas, most notably integration and legal migration.
A new Pact, but also missed opportunities
The starting point of the New Pact is that migrants are fraudsters. Underlying the reforms is the erroneous assumption that migrants arrive in Europe with the intent to abuse the current system. However, this does not reflect the current reality where most people come to Europe because they genuinely need protection. Rather than addressing this reality, the final texts feature a combination of very strict rules for asylum seekers arriving in the EU, a great deal of flexibility for member states, and even derogations from asylum and procedural rules under certain conditions. However, the reforms will not substantially improve the current situation. The responsibility for most asylum seekers will continue to weigh on the member states of first entry since this criterion remains anchored in the new Asylum and Migration Management Regulation (AMMR). Solidarity for member states most affected, notably through the necessary relocation of asylum seekers, will make way for a flexible mechanism functioning at states’ discretion, with the option of funding infrastructures in the EU but also support for projects in third countries, including countries that do not respect human rights. Not only is there a risk that relocations will be under prioritised, but this also gives states leeway to externalise responsibilities over asylum seekers further. In the same vein, the generalisation of the concept of Safe Third Country (STC) will result in the majority of asylum applications being declared inadmissible and increased deportations.
Second, detention at the EU’s borders will increase, including for families with minors, and the EU will see lower material reception conditions, similar to what we have seen in camps on Moria, Lesbos, and Chios. EU member states will be obliged to carry out fast border procedures under the Asylum Procedures Regulation (APR). Not only are these procedures more complex and, contrary to what supporters of the Pact have claimed, more difficult to implement in practice, but they are also second rate, degrading standards and fundamental rights. Rather than becoming more harmonised, reception conditions and protection standards will remain disparate across the EU.
Thirdly, the reforms also fail to account for applicants' profiles and preferences. This represents a missed opportunity as we know from experience that people tend to move to member states where they have family or other connections. Instead of restoring trust between member states, and without a proper way to account for these connections, secondary movements of asylum applicants will continue, with member states likely resorting to internal border controls.
A final element worth highlighting is the possibility of derogating from the ordinary rules via the Crisis Regulation, particularly in cases of instrumentalisation by foreign actors. The provisions, however, will penalise migrants who are the real victims of instrumentalisation, rather than the perpetrators. They will also drastically undermine European harmonisation efforts in asylum. It is paradoxical to create a whole body of mandatory rules, only to include exceptions that allow them to be disregarded.
As a whole, the newly adopted reforms will not address the current problems. By promising to achieve something it cannot, the Pact deceives the public, which, in turn, could undermine the credibility of the EU and reinforce criticism and extremist positions in the migration debate. The CEAS already exists; rejecting these texts would not have pushed the Union into chaos.
While the current system is certainly dysfunctional, the New Pact is a missed opportunity to address some of the reasons for this. The Pact should have established common rules that genuinely guarantee access to a common asylum procedure in all member states, that strive to harmonise recognition rates for international protection, and provide for the recognition of a uniform refugee status across the whole of the EU and not just in the member state that issued the status (as is currently the case). The agreed solidarity mechanism also does not go far enough, which is unfortunate as we need real and predictable solidarity between member states.
Progressive values must be at the heart of EU migration and asylum policies
With the Pact adopted, further changes to the reformed rules may take time to achieve in the short-term. However, the EU can and should improve its approach in other areas where possible even in the next political cycle: reception conditions on the one hand and legal migration on the other should take priority. In doing so, it is imperative to move away from the current security-based approach driven by interior ministers and adopt one that fully considers the complexity and cross-cutting nature of the migration phenomenon. This requires, respectively, considering long-term integration prospects and needs as well as foreign policy aspects.
As to the former, attention must focus on improving the reception conditions of people following their arrival in Europe. Most of the practical arrangements for receiving asylum applicants remain the responsibility of the member states. Providing dignified reception, however, is more a political choice than a question of legal competences or money, as states have and will continue to benefit from EU funding for this purpose. For several years, some member states have instead chosen to "badly" receive asylum seekers in the belief that high-quality reception would incentivise more people to come (the famous "pull factor"). Yet, the facts disprove it: despite thousands of people living in the streets in France and Belgium, asylum applications are on the rise in both these countries, quite simply because people do not leave their own country for better housing or health care, but because they seek protection. Putting in place a real reception policy means not only guaranteeing the dignity of the people we take in, but also avoiding situations of precariousness with appalling health, social, and personal costs.
At the same time, better reception standards must be coupled with stronger housing and integration policies. The more difficult the living conditions for people are on arrival, the more complex and cumbersome integration will be. Therefore, it is vital to simultaneously address these two issues. In particular, member states should open accommodation places throughout their territories. We also need to call on member states to better coordinate national integration policies via European mechanisms such as national contact points. In addition, the local level must be supported, because it is cities and municipalities that are primarily in charge of managing reception, accommodation and integration. To this end, access to EU funds must be made simpler, more transparent, and faster.
Second, the EU should strengthen, but also recalibrate partnerships with third countries. A key priority for the EU in the future will be to guarantee an effective return policy and to engage third countries on the issue of readmission. However, in no circumstance should readmission be made conditional for obtaining European humanitarian aid. More broadly, there is an urgent need to broaden the scope of partnerships and develop legal pathways in a mutually beneficial way.
At present, legal migration policy is not very harmonised at the EU level and is mainly the prerogative of member states. There are several directives regulating legal migration, but their scope is limited in that they focus mainly on highly qualified workers. Legal migration was, unfortunately, not addressed in the Pact, but rather via a separate legal migration package. That said, the EU should prioritise it for several reasons: the more legal channels remain inaccessible or limited to select groups of people, the more people will be forced to migrate irregularly, at colossal human and financial cost. For this purpose, EU policymakers must seriously engage in discussions around establishing a European humanitarian visa. Considering impending climatic challenges, they should also consider what ‘climate refugee status’ could look like in law and practice, building on the Nansen Initiative.
Many benefits would follow from opening more legal pathways, including for people in need of protection. Offering credible safe and regular pathways is the only way to break smugglers' business model. At the same time, it reduces pain and suffering. To this end, we also need to put an end to the deaths in the Mediterranean Sea by setting up a genuine European search and rescue operation under the community’s aegis.
There is another crucial benefit: opening legal pathways would also make it possible to better predict arrivals and the profiles of migrants, and prepare for admissions, as well as respond to key challenges the EU will be facing in the future, whether economic or demographic. As far as migration for economic reasons is concerned, also considering growing labour gaps caused by demographic factors, we need to develop a constructive and balanced approach. EU leaders should, therefore, pursue greater harmonisation of the criteria for admission to member states’ territory, particularly for study and work purposes.
Although the Pact has been adopted, it is not too late to continue defending progressive ideas in EU migration and asylum policies. While promoting realistic and beneficial changes, in the next cycle, it will also be key to monitor the reforms’ implementation. To ensure that they are enforced in line with EU values and fundamental rights, involving the Court of Justice of the EU and the European Court of Human Rights may also be necessary. At the end of the day, if we do not defend humanist values and solidarity, who will?
Sylvie Guillaume is a Member of the European Parliament for the Socialists and Democrats (S&D) Group.
This Commentary is part of an EPC series on the New Pact on Migration and Asylum. To promote diverse and balanced discussions and inspire informed policy debates on the reforms, members of the European Parliament from different political groups were asked to share their views on how the reforms will help address some of the main political priorities ahead of the June 2024 European elections, as well as outline key challenges for the future. The first Commentary in the series, by Vice-President of the European Parliament Jan-Christoph Oetjen, can be accessed here, and the second Commentary, by MEP Lena Düpont, can be read here.
