E.g., 10/26/2020
E.g., 10/26/2020

The EU Pact on Migration and Asylum—A Bold Move to Avoid the Abyss?

Commentaries
October 2020

The EU Pact on Migration and Asylum—A Bold Move to Avoid the Abyss?

European Parliament

The recently unveiled EU Pact on Migration and Asylum is a complex document that seeks to set out a comprehensive vision for a bloc that has been riven by increasingly acrimonious internal differences over migration since the 2015-16 migration and refugee crisis. The growing rifts have not only hamstrung Europe’s ability to speak with one voice on high-level migration and protection issues, but increasingly have colored national capitals’ relations with Brussels in other fora, taxing the European experiment at a time it already has been wounded by Brexit. 

As such, the pact drafted by the European Commission and due to be debated by interior ministers from the Member States later this week represents a last-gasp, realpolitik effort by European leaders to set forward a plan that keeps all 27 countries at the table. It does so by not averting its eyes from the widening gulf that has some states open to accepting their fair share of asylum seekers even as the increasingly fractious Visegrad-Austria-Denmark group has rejected the vision for burden-sharing articulated in the Common European Asylum System (CEAS). In some cases, the latter group is demanding that asylum seekers be dealt with outside of EU territory.

Under this new definition of mandatory burden-sharing, the pact accommodates the Visegrad group’s notion of “flexible solidarity” by carving out a role for the Hungaries and Austrias of the continent to effectively become the bouncers of Europe, making them take on tough responsibilities for external border management and/or return of rejected asylum seekers. If they will not accept redistribution of asylum seekers under the proportional system set out under the CEAS—to which France, Germany, Sweden, the Netherlands, and others remain committed—the European Union intends to hold these restive members to other responsibilities.

With the introduction of solidarity à la carte, the European Commission may well have plunged the CEAS into a new chapter, officially moving the bloc from “we all do the same thing” (harmonization) to “we divide up tasks and may specialize over time” (differentiation). Though this aspect of the pact has been criticized by humanitarian and migrant-rights organizations, civil society, and academics, the reality is that the  a growing group of Member States have not—and will not—accept asylum seekers under the existing redistribution mechanism. By recognizing the different ideological and political realities, and crafting a vision that creates a role for each Member State based on what it is willing to do rather than perpetuating a one-size-fits-all approach that has patently failed, Commission officials have put forward a bold strategy that responds to the political demands and constraints of the present day.

The pact may well be the last step before an abyss in which migration and asylum policy is sidelined on the journey towards European integration and 27 national governments each determine the fate of migrants and refugees in their own waypractically guaranteeing future conflicts between countries and injecting further uncertainty for refugees and migrants as to rights and treatment.

If the pact is deemed dead on arrival or Member States refuse to treat it as the starting point of a long-overdue conversation, this may all too soon lead Commission President Ursula von der Leyen to demote the issue on her crowded policy agenda. The migration problems may seem small fry at present for a bloc that is fighting one of the largest public-health threats of our time. Beyond dampening the direst economic and social knock-on effects of the COVID-19 pandemic via a regeneration package, the EU leadership also is intent on securing trade deals with China and the United Kingdom that shore up Europe’s economic revival, as well as reducing barriers to trade with the United States.

While incidents such as the recent fire at Greece’s Moria refugee camp touch off brief, bright flares of media and political attention, the absence of a full-blown migration crisis as witnessed in 2015-16 could leave the migration portfolio dangling. Instead, national and EU policymakers could invest their bargaining chips in more urgent or politically rewarding policy goals, such as climate-change mitigation investments, improvements to the European public-health system, and ways to gain advantage in the growing competition for skills and innovation. Silently but surgically dropping migration and asylum from the European integration trajectory would have profound effects for those who reach Europe in search of refuge or for labor, study, or family reunification.

With each month that passes without endorsement of a final pact or without a newfound commitment in Brussels to take stiff measures to ensure Member State compliance with existing EU asylum and migration laws and agreements, the contours of this alternative reality will become more apparent. The policy “innovation” that several Member States have displayed in their attempts to shrug off responsibilities laid down in the CEAS and international agreements seems far from reaching its creative end. Recent years have witnessed European governments building fences at their land or sea borders, pushing asylum seekers out to neighboring territorial waters, unilaterally suspending the right to asylum, parking newcomers in denigrating reception circumstances, and agreeing to partake in relocation but then devising the most elusive profile of asylum seekers eligible for it. All with little—or no—reproach or sanction from Brussels.

For those who still hold to the idea that the European Union has a significant role to play in the global protection regime, the pact should not be ignored or dismissed. In the absence of an agreed legal and policy framework and a system of carrots and sticks that ensures compliance by all Member States, the European Union may become another spot on the globe where the 1951 Geneva Convention is a giant on clay feet: still formidable on paper, but ineffective in today’s reality.

The pact undeniably requires revision—including in the design of systems that work in practice—but the red lines in the negotiations that begin later this week will have to be carefully defined and the methods to achieve success smartly chosen. The hotly debated elements of the pact are multifold. Among them:

  • Concerns over the obligatory screening of all incoming migrants and the application of a more stringent border procedure to assess asylum claims for nationalities that on average have less than a 20 percent recognition rate across Member States.
  • In the case of rejected asylum seekers who are not returned to their country of origin within an eight-month period and thus become the responsibility of the Member State that agreed to “sponsor” their return, what fate awaits them in terms of rights and (local) treatment?
  • The feasibility of the newly introduced EU-wide pledging system that annually will seek  commitments from Member States on which parts of the relocation, return, border-management support, and other CEAS burden-sharing tasks they will commit to taking on, based on projections of the anticipated size of spontaneous migration to the bloc.
  • How will the European Commission decide if a Member State faces a case of force majeure and can therefore pause its commitments under the CEAS?

Negotiators should be wary of hammering out a minutely detailed legal framework. Instead, the negotiations should focus on questions such as “How will we make it work in practice to secure rapid, yet robust, decisions on who gets to stay in Europe?” and “How will we keep a close eye to detect and quickly correct aberrations?” These questions stand a higher chance of devising a multiyear, well-resourced plan that enables the bloc to jointly run a first-arrival process at the EU external borders, but also has the checks and balances in place to warn if the system goes off the rails. These operational blueprints—which may not always require a rigid imprint in legislation and where also EU agencies, international organizations, and NGOs play a powerful role in their eventual success—may inject the necessary oxygen to permit an effective solution, even if only for the near term, to a five-year EU saga that even Shakespeare could not conjure.

Yes, the compromises necessary to achieve a successful pact may dampen dreams for the ultimate EU migration and asylum system that knits all Member States into a harmonized whole. But it may well represent a last, best chance for Europe to have a common, 27-state approach to asylum and migration, even if this means different states doing different things within an agreed framework. The alternative—having each state go its own way—may quickly unleash chaos, as witnessed with the overnight influx of migrants and asylum seekers in Slovenia after Hungary closed its border with Croatia in 2015 or when police and border guards from Italy and France secretly entered each other’s territory to seize and/or push back arriving migrants. And the repeated suspension of the right to asylum by Greece this year leaves little to the imagination as to what the country will do if it is completely cut loose from a broader, jointly carried EU system on asylum.  

The stakes are high. And the pact, while far from perfect, offers an eleventh-hour opportunity for Europe to develop a more productive, unified approach on migration and asylum that stands a chance of working.