The New Pact on Migration and Asylum (part one): The Three Core Proposals

Following the 2015 migration crisis, in which the European Union was confronted with a total of 1 255 640 asylum petitions split throughout its Member States, the flaws of the current asylum framework were first exposed. The dramatic difficulties in dealing with such a large influx of third-country nationals brought to light a number of critical issues that should have been addressed in order to achieve a truly comprehensive European strategy for dealing with the influx of migrants into the Union.

The Commission’s efforts to resolve such challenges and modernize the Common European Asylum System (CEAS) prompted a first batch of reform suggestions in 2016, which were immediately met with the vastly varied perspectives held by Member States on the migration issue.

The issue of how to handle migration and its consequences for border control, asylum, and relocation had become a political one. The procedure was overseen by the State of first reception under the European Regulation defining which European State should manage the processing of asylum requests, known as Dublin III, which was last revised in 2013. This compromise was especially unfavourable for Southern States, primarily Italy, Spain, and Greece, which received the majority of arrivals, and it was coupled with non-uniform procedures for granting asylum across Member States, which made some States more appealing to migrants, thereby exacerbating the problems of undetected secondary movements.

The consequences of such issues not only resulted in profound regional differences and acrimonies between European States, but also significantly compromised the idea of solidarity, which is at the heart of the European Union’s values. Indeed, the domestic political weight of the migration issue has bolstered the growth of nationalist movements, which, once elected, have undertaken a series of dubious policies to ‘protect’ their national borders. Such phenomena, translated into the ‘Decreti Sicurezza’ in Italy, or in the construction of border walls in Hungary, Slovenia, and Croatia, emphasized the necessity for the European Union to adopt an unified and clear set of rules that would manage migration.

The process of reaching an agreement in this regard has since been marred by conflict, with Member States divided along regional lines on a number of key issues, the most prominent of which is frontline States’ insistence on including a redistribution mechanism in the reform, and Northern and Eastern States’ vehement opposition to any similar initiative. Faced with such an insurmountable scenario, the Commission set out to develop the reform of the asylum system, focusing on aspects that required restructuring while attempting to avoid points that could potentially result in irremediable political conflict, thereby stalling the achievement of an agreement.

After nearly four years of effort, the European Commission developed The New Pact on Migration and Asylum, in an attempt to meet the needs of all Member States, from the border to the Northern ones. The consequence of such efforts was a mash-up of stronger and faster measures to return irregular migrants and fortify European borders with the re-establishment of the solidarity principle. This would essentially imply a revision of the Dublin criteria for granting asylum, with the interests of the migrant seeking refuge competing with the one of the nation of first entry. Solidarity among Member States will also be strengthened, with a number of measures available to non-frontier Member States to assist another country in crisis.

The division caused by the migration issue, on the other hand, has proven especially difficult to overcome, owing to the fact that most Member States are unwilling to change their stance on the issue, each interpreting migration as a critical national prerogative and each defending a strong position of their own, with Southern States still fixated on creating a redistribution mechanism and Northern and Eastern countries firmly opposed to it. The New Pact on Migration and Asylum, which was last amended in December 2021 and is structured as a package of legislative and reform efforts, is now facing an implementation procedure fraught with uncertainty.

Before delving into each component of the proposed new framework, it is vital to recognize that its adoption as an organic whole is highly unlikely at this time. The negotiations, which have so far centred mostly on two ideas, the establishment of a European Union Agency for Asylum and the implementation of Eurodac reform, have proven exceptionally tenacious. In reality, both the Portuguese and Slovenian Presidency of the Council of the European Union saw these two draft measures as the starting point for a fruitful inter-State conversation on the broader issue of migration. Now that the Presidency is in the hands of the French, who have a vested interest in reaching an agreement on the remainder of the Migration and Asylum Pact, there is a greater likelihood that negotiations on the previously neglected elements of the framework will be accelerated.

Overall, the European Asylum and Migration Reform aims to create a holistic solution to the issue while addressing critical issues of security and efficiency, while also taking into account the new challenges revealed by the Covid crisis. To achieve such broad goals, the Commission has proposed both reforming current regulations, devices, and agencies and introducing new features, with negotiations extending back to 2017. As a result, a package of nine legislative measures has been developed that will form the foundation of the new common framework.

The primary Commission proposal, and the most contentious, has been centred on the new Asylum and Migration Management System (or AMR), a revised Regulation aimed at addressing the main Dublin III critical points. To ensure that all Member States maintain a fair standard for accepting migrants, such as avoiding overly harsh border control measures or other deterring devices, the updated regulation will ensure that State-level management of migration flows is not only consistent in time, but also in accordance with a general framework of action established at the European level. A control mechanism, in the form of a Migration Management Report, is to be filed on a regular basis to guarantee that each Member State maintains a clear path of action in this respect.

However, the main issue to be addressed by the Dublin III amendment is the correction of all conditions, both for asylum and crisis situations, that leave Member States in a fundamentally unequal position in the face of a migrant intake. This is a two-pronged issue because the discrepancy is dependent on both the criterion for granting refuge and the management of solidarity responses.

In relation to the first point, the parameters for determining which State should be responsible for awarding refuge have been enlarged beyond the criterion of ‘country of initial entry.’ The Commission’s goal in including the best interests of a child, family reunification, residence or visa permit, educational qualification or diploma of an institute in a Member State (Article 20 AMR) was to ensure that there would be legal prerequisites for demanding asylum in a Member State other than that of arrival, thus partially redistributing the burden of asylum procedures and preventing secondary movements.

Rethinking intra-EU solidarity, particularly in times of crisis, has been centred on the reform of two Dublin III articles, Article 33 and Article 17. The trouble with both articles is that their substance is non-obligatory, which has produced significant ambiguity and controversy among Member States in the aftermath of the 2015 migrant crisis. The new AMR is thus primarily focused with setting the criteria and mechanisms by which States other than those of first arrival should provide assistance to a fellow Member in a crisis scenario.

Article 33 of Dublin III, while envisaging an emergency procedure, provided Member States’ actions a voluntary basis, implying that the development of a crisis plan was totally up to the discretion of the State concerned, with no clear and well-structured framework of action. This deficiency, together with the idea of voluntary intra-Member State solidarity defined in Article 17 of the same Regulation, rendered the mechanism for dealing with large-scale migrant waves ineffective and fraught with dispute among Members.

The affirmation of the necessary nature of the principle of solidarity, initially envisioned in Article 80 TFEU, then, is the foundation of the reform at the heart of the updated Asylum and Migration Management System Regulation. The ECJ previously asserted the express codification of such mutual obligation of assistance in Slovak Republic and Hungary v Council of the European Union, a decision that, along with the one recently taken by the Court in Commission v Poland, Hungary, and the Czech Republic regarding refugee quotas, provides clear grounds for legal legitimacy for said reform.

By rethinking Article 17 of Dublin III, the Commission was then tasked with developing a clear operative solidarity framework that would control the Union’s harmonic behaviour in times of crises. This procedure is constructed as a four-step mechanism that will be triggered in the event of ‘pressure’ or ‘expected pressure’ produced by a migratory wave.

The first phase assigns to the Commission the job of determining whether a Member State facing a major influx of immigrants is in a risky, or foreseeably perilous, position in which its asylum system would be unable to receive and process a significant number of demands. Once such an occurrence is confirmed, the solidarity mechanism will be immediately activated, with the Commission once again playing a significant role in analysing the Member State’s forecasted needs and translating them into an official report to be shared with other Union Members. The latter’s response would thus be mandatory, albeit formalized in three avenues of support: offering relocation assistance, funding the return of illegal migrants, or other actions. Each Member State will be confronted with the task of developing a national plan in which they will decide which measure of solidarity, or combination of measures, they will use to assist the Member State in difficulty. The application of the solidarity principle becomes mandatory, but the manner in which it is carried out remains at the discretion of the single State.

The relocation of migrants, the primary cause of contention between Member States, remains one of the alternatives for providing aid, alongside newly adopted measures. The help consisting of migrant repatriation, both financial and operational, will be governed by ‘fair share’ criteria based on the number of people of the Member State and its total GDP. This method of allocation is supplemented by a further element aimed at protecting border Member States, in that if they can demonstrate that they have been responsible for “more than twice the EU per capita average of asylum applications” over a five-year period, their contribution in the event of a crisis will be reduced by 10%.

The final option to offer assistance is simply characterized as ‘other measures’. It includes a variety of choices, such as capacity-building, operational support or engagement, to support a fellow Member in crisis, to be selected by the third State in their ‘Solidarity plan’. To prevent this last option from being used as an effective way to avoid responsibility for intra-State support, it will be subject to a ‘critical mass correction mechanism’, a preventive measure to ensure that sufficient contributions are maintained, and that the assistance plan is revised accordingly if they are not.

The alternatives for sustaining the freshly rethought solidarity mechanism appear to be a reflection on the primary interests at stake in the migrant crisis. Migrant relocation, despite being the most efficient answer to the migration challenge, is undoubtedly the most contentious. Faced with the more than likely prospect of the AMR being struck down due to opposition from Northern and Eastern European countries, the Commission devised a way to keep such aid as an option for countries such as Germany that had previously demonstrated willingness to implement it, while also developing other viable alternatives. The option of assisting with migrant repatriation is a wise decision for providing an alternative to relocation while also assisting in the restriction of secondary movements. This solidarity instrument, combined with the option to pick other forms of support, was created specifically to engage reluctant Member States in the migrant issue while meeting their original requests.

After all Member States have completed their Solidarity Plans, the Commission will be in charge of officially certifying them within two weeks of the proposal’s submission. This four-step approach will then contribute to an organic and comprehensive framework to address the migration issue.

To guarantee that the AMR has solid foundations on which to operate, the Commission sets out to create a structure that would ensure that adequate preoperational requisites are always in place in regards to migration issues. As a result of these efforts, a proposal for the construction of a Migration Preparedness and Crisis Blueprint has been developed.

Such an instrument assures not only that the European mechanism can foresee and respond to possible crisis situations, but also that there is a well-oiled mechanism in place at both the national and European levels to mobilize sufficient resources to deal with potential crises.

Such a broad goal can then be subdivided into anticipation, coordination, the planning of a timely response, and flexible resource allocation in the face of a migration crisis. The immensity of such a scope implies that the actors involved are scattered throughout national and European organizations, including European Agencies. The plan then called for coordinated action from Member States, the Council, and the Commission, as well as European Migration Liaison Officers (EMLOs), the European External Action Service (including EU Delegations), relevant Common Security and Defence Policy missions and operations, and EU Agencies such as EASO, Frontex, and Europol. All of these actors will then help the Commission in its leadership role as Network chair, serve as its secretariat, gather information and deliver necessary reports, and supervise the implementation of any actor’s recommended measures. The Network’s goal will thereafter be to implement and coordinate the proposal’s two primary stages: stage one, or monitoring and preparedness, and stage two, or migratory crisis management.

‘Monitoring and preparedness’ is then founded on the idea that if all key stakeholders have a timely and complete understanding of events and new trends surrounding migrant influxes, they should be able to monitor the migration situation and be well prepared for a coordinated response. This ensures that emerging unpleasant and critical situations are foreseen as soon as feasible. In practice, this goal will be met by building an early warning and forecasting system at the EU level, to which all actors engaged should contribute data, including information obtained from non-EU sources such as third nations and international partners, where available. The ultimate goal of this instrument, which collects information from multiple actors in one location, is to enable the Commission to publish situational reports, or Migration Situational Awareness and Analysis (MISAA) reports. These would include trends and possibly early warning/forecasts of flows, allowing all actors to be alerted and remedial measures to be engineered. In effect, Member States should examine, taking into account its contents, steps to be implemented in the event of a migratory crisis at the technical, strategic, and, if required, political levels.

The MISAA, in conjunction with the plan to be developed by Member States in accordance with Article 6(3) of the proposal for a Regulation on Asylum and Migration Management, and with the contribution of reports from EU agencies, the EEAS, and collaboration with third countries, participates in the presentation of the annual Migration Management Report by the Commission in accordance with Article 6(4) of the new AMR. The Blueprint Network therefore serves an integrating function in the construction of the Migratory Resilience Contingency Cycle, meaning the framework to be established to prevent migration waves.

The second element of the Migration Preparedness and Crisis Blueprint focuses on crisis management in the event of a migration crisis. This function should be viewed as supplementary, serving to precede and assist the main EU crisis procedure. The Commission, as Network Chair, will guarantee that all key decision makers, from the Council to Member States, have prompt access to information about the crisis’s development. Because of its complete view of the problem, the Network’s coordinating activity will be to oversee action at the EU’s external borders, in countries of origin and transit, in Member States under pressure, and at the EU level in general. To fulfil its responsibility to the best of its ability, the Commission will be given a toolbox of measures ranging from financial assistance to coordinating emergency aid instruments for third countries, Member States, and EU organizations.

Given the clear efforts to enhance the infrastructures in charge of the new migration monitoring framework, it was necessary to create an entity tasked with assisting the Commission and Member States in the proper implementation of the new migration and asylum accord. This objective was met by establishing a full-fledged European Agency for Asylum, which will play a vital role in all elements of the migration process, from reception to asylum granting.

The current Agency is a potentiated version of the already existent European Asylum Support Office (EASO) established with Regulation 439/2010, which started its operations in 2011. This office was conceived with the main objectives of boosting practical cooperation between Member States in regard to asylum, offer support in situations of crisis and ensuring a comprehensive application of the CEAS. After the migration crisis of 2015, as mentioned above, the efficiency of the CEAS framework was strongly reconsidered as the legislative tools available to counter significant migratory proved to be substantially underpowered. The direction in which its reform has moved then, is one of significant increased capacity and agency which entitled, in the end, that the Agency coordinating asylum matters should too be vested with a broader operability.

In fact, the EASO had already been overreaching its functions in assisting the coastline States of Italy, Spain and Greece during the most intense periods of migration by filling gaps between Member States policies and covering their lack of resources. In some particular cases, such as the one of Greece, the office had even increased its operability to a level in which it assisted National authorities with the collection and processing of asylum applications. This instance represented a clear overstepping of its official role and a significant interference in what should have been a national prerogative without the appropriate legal basis.

These problems are all to be resolved by the recast Regulation establishing European Union Agency for Asylum, recently approved, by codifying into law the already enhanced functions of the asylum Office. The tools already in the hands of the EASO are effectively corroborated, allowing for better practical cooperation and information exchange in asylum between Member States, promoting uniform application of Union law and operational standards, ensuring a shared approach to assess protection needs across Member States, and providing operational and technical assistance in times of distress.

The first element, strengthening practical collaboration and information exchange on asylum, is addressed in Chapter 2. By developing the capability of constructing a comprehensive picture of the asylum situation in the Union and third countries, the agency will become a centre of expertise. Such informational analysis should have the ultimate goal of allowing the Agency to help Member States in comprehending asylum-related issues, allowing them to better prepare for preventive measures. Given its elevated status as the central institution for immigration proceedings, the Agency should play a key role in educating and training personnel of national administrations, from the field to the courtroom. Given this obligation, it is imperative that all Agency specialists who participate in assistance operations with Member States be as well-prepared as possible.

The responsibility of the Agency in assisting Member States in coordinating their response to exceptional migratory influxes is defined in Chapter 3 of the new Regulation. Despite the fact that the EASO already plays such a support role, which translates into a constant influx of information, in its new capacities as an Agency, it can now also collect and provide such data on third-countries through self-established networks, providing a comprehensive picture of the situation (Article 35). Because of its newfound capacity to interact directly with third nations, the new Agency is also entrusted with creating a uniform European list of “safe countries,” or those from which residents will not be eligible to seek refuge.

Chapter 4 discusses operational standards, guidelines, and best practices. The office had the option to accept technical documentation on the implementation of asylum measures under the previous mandate. Such capability is currently realized through the ability to define operational standards, guidelines, and best practices for implementing Union law on asylum, as well as indicators for assessing conformity with it. If the situation calls for it, Member States and the Commission can both request the Agency’s action.

When the Regulation was drafted in 2016, Chapter 5 was intended to strengthen the Agency’s role in overseeing the CEAS’s implementation. As for 2021, with the substitution of the CEAS with the new framework the role of the Agency still remains the same. The primary goals of this monitoring role are, on the one hand, to identify any inadequacies in the effectiveness of the renovated system as soon as possible, and, on the other hand, to guarantee that Member States have all of the necessary tools to deal with tough situations. Articles 13 and 14 define the scope and method of such a mechanism. If a Member State is found to be noncompliant with critical features that could threaten the operation of the asylum system, the Commission should take control and assess the Member States’ action plans, recommending adjustments and, if necessary, additional Agency recommendations. In the event of further noncompliance, the Commission may decide to charge the Agency with directly intervening in Member States’ assistance (Article 15).

Chapter 6 of the proposal enhances the Agency’s role in providing technical help to Member States, particularly in the areas of translating services, information on countries of origin, and experience of the handling and management of asylum cases through the deployment of asylum support teams. The Agency’s new mandate should canter on the prospect of assisting Member States in the examination of applications for international protection. Asylum assistance teams will be made of specialists from Member States or experts seconded to the Agency by Member States, as well as experts from the Agency’s own personnel.

The duration of the presence of these expert pools is defined by the home Member State, but it should not be less than thirty days in order to ensure proper absolution of its functions. The deployment of such teams, for example, for the delivery of technical support, can be requested by a Member State or based on an Agency proposal.

Special migration management support teams are stationed in hotspot locations with mixed migratory flows, suggesting a crisis situation. The role of experts sent by the European Agency for Asylum is to screen third-country nationals, register applications for international protection, and examine such applications when requested by Member States, as well as offer assistance to applicants or potential applicants who may be subject to relocation. To best manage such responsibilities, the Agency should have a coordinating officer who acts as a liaison between the Member States involved.

These three concepts, the Asylum and Migration Management System, the Migration Preparedness and Crisis Blueprint, and the Regulation Establishing a European Agency for Asylum, are crucial to the New Pact on Migration and Asylum because they lay the groundwork for subsequent reforms. In fact, significant adjustments were made to the receiving system, including modifying screening methods and material reception conditions, as well as the asylum-granting system and the procedure to follow in the event of force majeure. These changes will be covered in the subsequent articles.