The European Commission (EC) has presented its new set of proposals to reform the European Union asylum and migration management system. The long-awaited package includes a number of EU legislative proposals, with the clear-cut intention to provide policy solutions that all member states can accept and support. Indeed, the proposals represent a step forward as compared to previous Commission plans. Still, they are expected to give rise to fierce debates between Brussels and member states around the issue of migration.

THE LONG-AWAITED PACKAGE

It took a long time for the EC to present its proposals on the reform of the EU asylum and migration management system. No one with any knowledge of the migration policies of the EU, or who witnessed the migration processes which have affected member states since 2015 (since 2014, in fact) could doubt the necessity of a change to the existing legislation. The massive irregular influx of asylum seekers and economic migrants paralysed front member states such as Greece, Italy or Spain, and this problem still exists today (though to a lesser extent following some decrease in the number of arrivals). Bearing this in mind, and seeing the divisive debates on the issue of migration, the new EC, led by Ursula von der Leyen, aspired to prepare proposals that would meet the expectations and preferences of all member states. With regard to the package finally presented on 23 September 2020 (hereinafter “Package” or “Pact”),¹ we can have mixed impressions. While the emphasis on enhancing the efficiency of returns can be interpreted as undoubted progress (a development desired by many member states), relocation remains a core support measure under the broader category of solidarity. By reading the texts of the specific proposals, the reader can sense the Commission’s struggles in seeking consensus, which, among other things, unfortunately results in cumbersome and unrealistic provisions that will clearly be hard – or even impossible – to implement (if adopted).

The Pact itself contains the following nine legislative instruments:²

•   a new Screening Regulation;

•   an amended proposal revising the Asylum Procedures Regulation;

•   an amended proposal revising the Eurodac Regulation;

•   a new Asylum and Migration Management Regulation;

•   a new Crisis and Force Majeure Regulation;

•   a new Migration Preparedness and Crisis Blueprint;

•   a new Recommendation on Resettlement and complementary pathways;

•   a new Recommendation on Search and Rescue operations by private vessels;

•   a new Guidance on the Facilitators Directive.

The ambitious proposals developed by the Commission strive to cover all relevant aspects of asylum and migration management. Nevertheless, as already mentioned, they envisage an unrealistic system, entirely too complex and bureaucratic, the practical functioning of which is doubtful in the extreme. According to the EC’s plans, the Council and the European Parliament should negotiate and adopt the recommended legislation from 2020 on, predominantly in 2021.

In the following, we will describe two key elements of the Package to demonstrate the aforesaid shortcomings. Our brief analysis ends with a conclusion and future outlook.

NEW SCREENING PROCEDURE: MISSION IMPOSSIBLE?

The EC recommends the adoption of a new regulation that would introduce a screening of third-country nationals at the external borders of the EU.³ It foresees the screening of third-country nationals and stateless persons apprehended in connection with unauthorised crossings of the external border of a member state (including those saved and received in search and rescue operations), in order to ensure the legal entry of the same. The proposal’s purpose is twofold: on the one hand, it intends to introduce more efficient, enhanced controls over arrivals, and, on the other hand, to enable the subsequent launch and conduct of return or asylum procedures. The new screening procedure would include the following four elements:

•   a preliminary health and vulnerability check;

•   an identity check against information in European databases;

•   registration of biometric data (i.e. fingerprint data and facial image data) in the appropriate databases to the extent it has not occurred yet;

•   a security check through a query of relevant national and Union databases, in particular the Schengen Information System (SIS).

The above checks would be conducted by the competent authorities of member states in the presence of appropriate medical staff. As a general rule, the authorities would have five days to carry out the whole screening procedure, which could have two potential outcomes: a person subjected to such procedure could be found either eligible or ineligible for lodging an asylum application. In the former case, the person concerned would be required to leave the member state (i.e. return to his or her country of origin), while in the latter case the “normal” asylum procedure would follow. The procedure would be conducted at the border or nearby, but not in the territory of the given member state.

The new procedure to be introduced at the external borders to improve control and risk management measures can be welcomed and supported in theory. However, the proposal still leaves substantial room for identification and entry without any ID documents, which is problematic in view of the past five years’ experience, giving ground for abuses of the right to asylum. As for practical implementation concerns, we could mention the lack of additional capacities and resources required from member state authorities to conduct such a procedure. Today, key front countries would not be able to cope with the corresponding burden and carry out the screening. Furthermore, the proposal implies the detention of those found ineligible to enter a member state, subject to the national rules of detention applied by the member state in question. Detention can also entail huge costs, and must be limited and proportionate according to EU law (see the EU Court decision against Hungary’s transit zones).

Overall, the introduction of the new screening procedure would be an efficient tool if it was combined with the effective and efficient protection of the external borders. However, that is not the case according to the Pact. This, in addition to the identified practical difficulties, makes the corresponding proposal unrealistic. Moreover, it encourages those seeking ways to get into the territory of the EU to deceive the authorities. The possibility of economic migrants abusing the asylum system is also unfair to real asylum seekers in justified need of international protection.

NEW FORMS OF SOLIDARITY: AN ILLUSION OF FREE CHOICE?

The Package also introduces some new forms of solidarity. The Commission has presented two legislative instruments in this regard: a draft regulation on asylum and migration management⁴ and a draft regulation addressing situations of crisis and force majeure.⁵ The EC proposes a new solidarity mechanism “that is flexible and responsive in design in order to be adjustable to the different situations presented by the different migratory challenges faced by the member states”.

The member states would have several options to choose from under “mandatory solidarity”. The proposals envisage a three-level system of solidarity mechanisms and situations where member states would be required to contribute: migratory pressure,⁶ situations of crisis and force majeure situations. Any such situation would be assessed and announced by the EC upon the request and signal of member states. If any of them is established by the EC, other member states would be required to contribute. As a general rule, in situations of migratory pressure, the member states could choose relocation, return sponsorship or capacity-building. In the new system, every member state would contribute based on a distribution key (50 per cent defined by GDP and 50 per cent by population). As a brand-new form of solidarity, return sponsorship would mean the full arrangement of the repatriation of those not eligible to remain in the overloaded requesting member state, ranging from the technical organisation of returns to the effective repatriation of the rejected persons (including the conduct of negotiations with the countries of origin). The member states choosing this contribution would have eight months to carry out the repatriation. However, in situations of crisis or force majeure situations, the countries opting for return sponsorship would have only four months for the process.

Though not formally mandatory, relocation remains a key form of solidarity in the new Package as well. Nevertheless, it can easily become a binding obligation if a member state originally choosing return sponsorship as a contribution is not able to ensure the return of rejected persons within eight (in situations of crisis, four) months. Based on the past five years’ experience, returns are often not implemented at all, not simply in eight or four months’ time. This is clearly not acceptable to several member states. Furthermore, similarly to the newly proposed screening procedure, the proposals on solidarity appear to be unrealistic: it is hard to imagine that other member states will act efficiently in conducting returns from an overloaded member state. This holds true even if the problems of detention are somehow overcome, and thus the persons designated for return are available to the authorities of the member state concerned. Add to this the fact that the new system could be unreasonably complex, bureaucratic, expensive and hard to monitor: it is enough to consider how a contributing member state will negotiate with a third country on accepting its own citizens, for instance, from Greece.

WHAT NEXT? – CONCLUSION

Despite all the efforts of the EC, the new set of proposals developed to reform the EU asylum and migration system remains ambiguous and unsatisfactory. Though improvements can be noticed compared to previous EC proposals (for instance, due to the emphasis on more efficient repatriation), contested elements (such as relocation quotas) are still at play. The desperate consensus-seeking of the Commission has resulted in a Pact that is unacceptable to many various stakeholders in its current form. Left-wing political players and human rights NGOs criticise it for its inhumanity, while some right-wing parties, EP political groups reject it for giving insufficient protection to external borders, or the emphatic observance of relocation quotas (which, though not formally mandatory, can easily result in a binding obligation). To date, the Visegrád Group, Austria and Denmark have also expressed their reluctance to support the Package with particular reference to the relocation mechanism. And, as demonstrated in the foregoing, the new asylum and migration management proposals developed by the Commission imply a rather complex, bureaucratic and unrealistic system that is hard to implement. The proposals fail to address the weaknesses of the existing system, and can function as a pull factor among irregular economic migrants, something the EU should strictly avoid in order to ease the pressure on its member states and to save lives en route to its territory from outside the continent.

In view of this assessment, we can surely expect heated political and professional debates in the upcoming months. Though the EU has learned some lessons from the past five years, it seems some more still need to be learned.

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