The EU’s New Pact on Migration and Asylum: The Solidarity Dilemma

Author: Ilaria Canali
Editor: MinhAnh Nguyen

In the first part of this article, we have briefly introduced the EU’s migration managing system, and the changes the New Pact on Migration and Asylum is about to bring. We highlighted four main pillars which, if respected, are meant to bring more stability and solidarity between the member states in this moment of crisis. Furthermore, the new pact is supposed to improve the relationships between the EU and its neighbours in order to strengthen the control on its external border, in the total respect for human rights. 

In this second part, the focus will shift to some criticism of the Pact from experts of European law and migration studies [1]. According to Philippe De Bruycker, in his article “The New Pact on Migration and Asylum: What it is not and what it could have been,” he claims the pact to be unsuitable for the development of migration and asylum policies in the future by considering it as a document that failed to build consensus among the members with diverging opinions.

Indeed, some scholars of migration studies were hoping for it to set some new guidelines in the three areas of freedom, justice, and security, since it is of common use to renew these strategies once every five years, according to the article 68 TFEU “The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.” [2] However, it seems that the EU lost the chance to renew its migratory policies.

Scholars also hoped the Pact would bring an improvement to the 2015 Agenda on Migration, which revealed itself to be a total failure given the lack of solidarity and the deep political division among the EU members that went broadening in the past few years [3]. Indeed, despite over three years of negotiations, legislative proposals, such as the Dublin IV regulation, haven’t been adopted yet. This highlighted the big division between the North and South of the EU, and also Eastern countries and the Western ones were unable to agree on a common position concerning the relocation mechanism meant at bringing solidarity into the Dublin III system. 

Relocation refers to the movement of refugees from one EU Member State to another. It is an intra-EU process, in which Member States help another Member State to cope with the pressure of hosting a relatively large refugee population by agreeing to receive a number of them [4].

Solidarity appears to be an important target of the Pact. For it to be implemented, however, two elements are essential: being mandatory, but also flexible. First of all, solidarity is not a political favour but an obligation of international law (article 80 TFEU). However, the flexibility described in the new Pact is quite curious. Indeed, it says that Member states can choose whether to relocate the asylum seekers, by providing help such as funding and external cooperation with the countries of origin or transit, or they can choose to sponsor the repatriations. Sponsoring the return of migrants means giving support to the Member state in charge of the return. The help could come in the form of assistance for the voluntary return of the migrants, and re-admission in their home country, or assistance in organizing the return flight. This option seems quite fair since some Member states are under pressure to manage the migratory situation in their own territory and external borders, process asylum seekers applications, etc.

What have been the object of criticism, however,  are the two different options offered in the area of boosting solidarity. Indeed, states have the alternative of either receiving asylum seekers instead of the responsible Member states, or returning migrants to their country of origin. Basically, it means that Member states opposed to the idea of relocating migrants will be able to do exactly the opposite in the name of the same regulation on asylum and migration [1]

What causes more concerns is the idea that in the EU, border security has been prioritized over basic human rights, such as the right to asylum. Even if the Pact emphasises the principle of non-refoulement, it also introduces measures that if enforced are going to make it even harder for individuals to flee war and persecution, seek or obtain asylum in the EU [6].

According to many scholars, the Pact did not reflect a consensus among the member states but actually a disagreement among them.

This compromise may possibly satisfy the member states part of the so-called Visegrad Group or V4 (Czech Republic, Hungary, Poland, and Slovakia), since the Commission adopted the concept of flexible solidarity like they wanted it to be perceived. This move, however, will not help the rebuilding of trust among the members that will continue being deeply divided when it comes to migratory matters.

This also violates The Bratislava Declaration of the European Council (2016), which states that there has to be a broader consensus on long-term migratory policies. This aspect has therefore brought many scholars to define the new Pact on migration asylum as a bad compromise, allowing opposite interpretations rather than a REAL pact reconciling different views. 

The concept of solidarity could have been organized better by, for example, expecting the Member states to help in improving reception conditions and supporting asylum procedures in another member state part of the European Asylum Support Office (EASO), or to be active in member states under pressure, instead of allowing them NOT to take part in relocation programs. 

In other words, releasing some Member states of their obligations in the relocation process but at the same time, requiring them to contribute to the improvement of asylum seekers reception and procedure management would have been advisable. This would prove that there is a common policy agreed upon by all the member states.  

What It Could Have Been [1]

The New Pact on Migration and Asylum could have been the document laying down the new foundation for EU’s migratory policies in the long term, bringing consensus among the Member states on the basis of a unique common policy.

Scholars of European law and migration policies support the idea that a common policy needs a common legislation, common objectives, common implementation, common funding, and a common position regarding third countries. All these requirements will be briefly explained in the following paragraphs. 

The first important step is common legislation. The EU already tried in 2016 to draft a legislative document but it has been described as a ‘total failure’, therefore this new pact will then act as a new legislative package supposed to start the third generation of rules in the area of asylum [1]

The second element is common objectives. The legislative part focuses too much on details of the new provisions rather than on the objectives. More socio-political debates would have been in order at the beginning of the legislative process. Indeed, starting from “the EU is currently losing the global race for talent” (page 23) means that the Commission in the New Pact sees legal migration as a fundamental contribution to the talents the EU needs.

Based on these assumptions, new objectives on how refugees and asylum seekers would become a resource for the EU would have been appropriate. 

The third element is common implementation, instead of indirect administration under the EU law. A common implementation would bring the EU agencies directly involved on the ground to implement the new asylum policies, in a system based on the cooperation between the EU level and the national level. Despite the New Pact failing on this point, the possibility of having EU agencies that offer operational support to troubled Member states shows solidarity that could be easily accepted and implemented without the political and administrative difficulties like relocation. The New Pact goes even against this principle by describing the sponsorship of returns as a sign of solidarity.

Common funding is also a fundamental element that needs to be considered. Until today, the EU funding to migration and asylum policies is still circumstantial, but in order for new measures to be implemented, it must be engaged properly to become more structural. With the new pact, an increase in the funding allocated to migration and asylum policies has been decided starting the year 2021, but on the other hand, a diminish in funding to Frontex has also been discussed.

The fifth but not less important element is a common position regarding third countries. In the new Pact, it is quite clear that the EU Commission considers a balanced partnership with third, neighbouring countries an important element to regulate migration. Indeed, as the statement “both the EU and its partners have their own interests” implies, any form of partnerships with other countries should be mutually beneficial. However, in order to develop a solid partnership with third states, the EU should stop pretending that irregular migration is a shared concern, because it seems to be more problematic for the EU than for “partners” like Libya or Turkey. 

Final Conclusions 

To briefly conclude this long article, the main problem of the Pact is the ambiguous concept of solidarity. As the analysis has shown, the Pact failed to create consensus among the member states around this keyword. Solidarity is seen not as an agreement, but as a choice between two opposite measures: relocation, or return sponsorships. This choice will end up reconfirming the Member states’ previous opinions rather than build consensus for new asylum policies. The new pact should have created a new policy based on the five elements previously outlined, instead of just focusing on a common legislation. On a last note, the pact does not seem to consider the effect of the current pandemic, and on how  COVID-19 is going to impact the EU’s migration flows and asylum policies.

Further Readings:

Image: Photo by Christian Lue on Unsplash

The EU’s New Pact on Migration and Asylum: The Solidarity Dilemma
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