Deciphering the European Union’s New Pact on Migration and Asylum

The European Commission’s newly released Pact on Migration and Asylum aims to address the imbalances in member states’ burdens related to migrant arrivals and streamline the asylum process. However, the proposal focuses primarily on technical aspects, sidestepping the values issue and broader migration trends, and delays some tough—and politically charged—decisions on regular migration and permanent relocation.

Q1: Why did the European Commission put forward a new Migration Pact?

A1: The 2015 “migration crisis” exposed the flaws in the European Union’s rules for asylum procedure, the “Dublin system,” which placed the responsibility for asylum claims on member states of first entry. The sudden influx of migrants that year put heavy pressure on both EU institutions and the institutions of mostly southern member states, demonstrating their inability, for some, and unwillingness, for others, to handle such arrivals and highlighting the disparate asylum procedures between states.

The European Union realized this fractured system inflamed tensions between member states while failing to address the challenge posed by migration. Whatever collective capital existed was disproportionately spent on policing and borders (e.g., between Greece and Turkey and in the Mediterranean). Attempts to streamline the system have faced intense resistance from some member states opposed to mandatory relocations or concrete forms of solidarity (despite Hungary losing a legal case over these relocations). These countries have been able to block reform due to the unanimity requirement in the Council on migration policy. Refugees and migrants often land in the same border states (Italy, Greece, Malta, and Spain), allowing some member states to distance themselves from the problem.

With migration routes via the Mediterranean still active, relocations have been conducted mostly ad hoc since 2015, based on member states’ willingness to accept migrants coming by boat. The policy focus has been placed on external border protection, returns, and engagement with third countries, the latter of which has concentrated on hosting refugees and migrants (including through repurposed development assistance), border enforcement, and security sector training. Furthermore, the 2016 EU-Turkey statement, meant to keep mostly Syrian refugees from crossing over to Greece, has been on increasingly shaky ground. Not only did it not prevent arrivals through other Mediterranean migration routes (something obviously outside of Turkey’s control), it has created a dependency on Turkey’s willingness to host refugees—a willingness now in decline.

The European Union’s post-2015 approach has not resolved the bloc’s migration challenges. In fact, it has contributed to the dire situation of migrants in Libya, overcrowded refugee camps in Greece, and pushed more people into dangerous irregular migration routes. The European Commission, now under the leadership of Ursula von der Leyen, sees an opportunity to reframe the issue and hopes to offer a way out; hence, the Migration Pact.

Q2: What is in the new Pact?

A2: First, this new Pact on Migration and Asylum offers no values proposition. As Commission vice president Margaritis Schinas noted: “no one’s concerns are more legitimate than the others.” The focus is on “more efficient procedures” and giving “clarity to applicants,” a bureaucratic emphasis that ignores the underlying reasons for migration and instead prioritizes streamlined processes, especially those concerning returns.

Second, it addresses the issue of solidarity through primarily border and returns enforcement via a new “compulsory, flexible” form of solidarity. Criteria for relocation would shift away from the Dublin system (country of first arrival) to an emphasis on the well-being of children, family ties, and academic ties. EU member states could choose their preferred form of solidarity between relocation or financial help with returns to address the inefficiencies of the returns system (i.e., too few people whose claims were denied are sent back), which could include assisting with third country cooperation or provide undefined “other assistance.” Notably, however, it seems the legally binding nature of this solidarity mechanism would only apply under “pressure” situations (based on Commission and member state assessments) and would revert to a voluntary nature otherwise. Resources for the border agency, Frontex, and for the modernization of management systems (including databases) would be increased.

Third, it proposes a new independent monitoring system to ensure rights to asylum and human rights are respected and to prevent breaches to the principle of non-refoulement. A promising new EU Agency for Asylum would help harmonize asylum rules across the 27 member states and offer monitoring and guidance. If this can be enforced, it would be a positive addition to the current system.

Fourth, international partnerships would be focused on support for host countries, returns and readmissions, counter-smuggling efforts, and increased economic opportunities. The last one remains a more distant goal that requires additional policymaking and resources.

Last, a glaringly absent element is a roadmap for legal migration. This issue is left for future action plans (expected in 2021) despite the Commission’s recognition of Europe’s need for immigration due to its demographic and economic picture. The legal immigration issue is “divorced from the discussion on irregular migration,” perhaps in an attempt to focus on the most vulnerable first, but more likely because of politics. Because the Pact needs unanimity for approval—and has yet to go through negotiations with the European Parliament and the Council—this narrower focus may be a way to reform asylum policy and delay the more politically charged debate.

Q3: What does the Pact tell us about the European Union’s priorities on migration?

A3: The narrative around migration has been ceded to reluctant, anti-migration member states through the emphasis on border enforcement and returns. The notion of solidarity, when made flexible, is diluted, and this framing does not bode well for the European institutions’ other efforts to shore up the fundamental rights and values enshrined in the treaties. The Commission has decided to take a technical, process-focused approach, putting aside for now the development of policies that address the human toll inflicted by the current system.

In addition, creating a new “immediate protection status” for those fleeing armed conflicts or crisis risks reducing the scope of “acceptable” asylum claims by establishing artificial sub-categories. These reforms could be aimed at ensuring compliance with the Geneva Convention and associated protocols by streamlining the process for those who are “clearly” entitled to protection, but mixed migrant flows will continue to make this differentiation challenging.

Separating relocation and reduction of arrivals from legal pathways ignores the dynamics of migration and how to truly address the reasons why people move in the first place, which range from persecution to seeking better opportunities. The forthcoming EU strategy for regular migration needs to connect those dots. “Divorcing” the two issues also fails to acknowledge the reality that migrant flows contain all types of migrants: there are not typically separate flows for asylum seekers, migrants, and refugees. Without regular pathways, they will continue to move together irregularly and make streamlined processing more difficult.

The Commission’s plan for cooperation with third countries—encouraging them to host refugees and migrants, providing them with support to do that, and boosting their own enforcement against smuggling—means these relationships will continue to be shaped by the migration issue. The EU-Africa Summit that was postponed to 2021 due to Covid-19 may well be held in the shadow of this Pact. This focus may also have unintended consequences: the 2016 agreement with Mali to try and curb irregular migration through Niger reduced the number of irregular migrants going through that route (and may have led to some decrease in the overall flow, though this is unclear), but evidence points to migrants rerouting, often at much greater cost and risk. Such assistance to third countries also tends to disproportionately focus on catching or holding migrants themselves while largely ignoring, in practice at least, more established smugglers, traffickers, and their networks.

Finally, the reception of the Pact in its “first draft” format (before negotiations with other institutions), despite its shortcomings, shows it may be the best the European Union can offer at the moment. Indeed, no member state has killed it outright, although Hungary, the Czech Republic, and Poland have criticized the new solidarity mechanism (Slovakia has too, though less overtly). These hardline members believe the focus should be on stopping migration instead of managing it, through methods like hotspots in third countries. This approach ignores the reality of twenty-first century migration but plays well with domestic audiences. Importantly, member states like France, Germany, Greece, and Italy (important arrival and relocation countries) have cautiously welcomed the proposal; with Germany holding the rotating Council presidency, there may be enough momentum to push this over the finish line and accommodate the more difficult members.

Q4: What potential impact could this pact have on migration flows to Europe?

A4: The Pact is unlikely to have a significant impact on irregular migration flows and does not address regular migration. While it may have some impact on where migrants attempt to go (e.g., if it becomes easier for them to reunite with family in Northern or Western Europe), it does not address fundamental drivers of migration. Throwing money at the problem—as evidenced by the agreement with Turkey—is not a viable long-term solution, and frontline countries like Italy and Greece will still bear the brunt of these arrivals.

Through its new procedures, the Pact may provide more clarity for asylum seekers and greater access for them to more places across the European Union. It must be said that the focus on upholding principles of non-refoulement are laudable, but these are relatively small numbers of people, especially compared to the regular and irregular migrant flows which, as mentioned, are unlikely to be significantly altered.

Importantly, the absence of legal pathways misses an opportunity: the Covid-19 crisis is creating labor shortages across Europe that could be filled by migrants (e.g., nurses), yet the fear of migrants—driven largely by anti-migration governments—has curtailed this possibility. This will likely reinforce the continued “non-system” whereby Europe’s agricultural, industrial, and service jobs, which are not filled to any significant degree by native-born populations, are performed by a mix of regular and irregular migrants.

Donatienne Ruy is an associate fellow with the Europe Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Erol Yayboke is deputy director and senior fellow with the CSIS Project on Prosperity and Development.

Critical Questions is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

© 2020 by the Center for Strategic and International Studies. All rights reserved.

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Donatienne Ruy
Director, Executive Education and Abshire-Inamori Leadership Academy
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Erol Yayboke
Director, Project on Fragility and Mobility and Senior Fellow, International Security Program