EU: The new "pact" on migration and asylum - documentation, context and reactions

The Commission has published its long-awaited 'Pact on Migration and Asylum', along with a host of legislative proposals, guidance and other texts. Parts of the proposals will "abolish the rule of law at the external borders," according to one human rights group.


Press release: A fresh start on migration: Building confidence and striking a new balance between responsibility and solidarity (pdf, emphasis in original):

"The current system no longer works... The EU must move away from ad-hoc solutions and put in place a predictable and reliable migration management system."

Commission Communication

Legislative proposals

The proposal states:

"This proposal for a new Regulation on Asylum and Migration Management aims at replacing the current Dublin Regulation and relaunches the reform of the Common European Asylum System (CEAS) through the establishment of a common framework... This new approach anchors the existing system in a wider framework that is able to reflect the whole of government approach and ensure coherence and effectiveness of the actions and measures taken by the Union and its Member States. This approach also includes a new and more comprehensive mechanism for solidarity to ensure the normal functioning of the migration system, as well as streamlined criteria and more efficient mechanisms for determining the Member State responsible for examining an application for international protection."

According to the Commission's "roadmap", it expects this proposal to be adopted in "Q2 2021" - that is to say, by the end of June 2021 - just nine months from now.

This proposal foresees the establishment of "pre-entry screening that should be applicable to all third-country nationals who are present at the external border without fulfilling the entry conditions or after disembarkation, following a search and rescue operation."

German NGO Pro Asyl state in a press release (emphasis added):

"Screening acts as a pre-sorting facility, sorting primarily by country of origin. Among other things, those seeking international protection whose nationality has an EU-wide average recognition rate of less than 20% have to undergo an accelerated border procedure (Articles 40 and 41, new draft asylum procedure regulation). During the screening procedure and the border procedure, they are considered as not having entered the country (Article 4, draft screening regulation, Article 40, new draft asylum procedure regulation)."

As many as possible are to be sent back immediately from the border. However, fair asylum procedures will not exist in mass camps at the border... The pact thus threatens to abolish the rule of law at the external borders."

This Regulation will, amongst other things, repeal the 2001 Temporary Protection Directive. The EU was criticised by many commentators for not making use of this Directive during the 'crisis situation' of 2015-16. The proposal states:

"Given the development of the concepts and rules of qualification for international protection, and in view of the fact that this Regulation lays down rules for granting immediate protection status in crisis situations, the Temporary Protection Directive should be repealed. Under this proposal, immediate protection should be granted to displaced persons from third countries who are facing a high degree of risk of being subject to indiscriminate violence, in exceptional situations of armed conflict, and who are unable to return to their country of origin."

This is a proposal to amend a 2016 proposal; the result will be to replace the current Regulation on Eurodac, approved in 2013. The intention is to expand the system even further than envisaged by the 2016 proposal. Statewatch will analyse the proposal in detail in the coming weeks.

The Commission hopes that this proposal will be adopted by the Parliament and the Council by the end of the year.

Recommendation

Guidance

This document relates to two EU laws known as the 'Facilitators Package', and in particular the 2002 Facilitation Directive. The previous Commission refused to introduce guidance that would encourage the member states to outlaw the criminalisation of humanitarian acts - for example, offering people food or shelter - a position now reversed. The document states (emphasis added):

"...the Commission invites Member States that have not already done so to use the possibility provided for in Article 1(2) of the Facilitation Directive, which allows them to distinguish between activities carried out for the purpose of humanitarian assistance and activities that aim to facilitate irregular entry or transit, and allows for the exclusion of the former from criminalisation."

As of 2017, only seven EU member states (then including the UK) had adopted legislation specifically making such a distinction. See: Hindering humanitarianism: European Commission will not ensure protection for those aiding sans-papiers (April 2017)

Roadmap

Reactions and coverage

News

NGOs

"Rather than observing rights principles, the Pact is instead riddled with almost-certain risks of fundamental rights violations. They have seemingly been designed as a framework to facilitate and justify unlawful returns and refoulement, as well as the obstruction of access to the EU asylum system. It doesn’t take an expert to understand that this will lead to a further degradation of safeguarding of vulnerable people, as well as the basic human dignity and rights that supposedly lay at the foundation of the European project."

"“A thorough analysis of the proposed instruments will be needed for a comprehensive reaction” says Claudia Bonamini, JRS Europe’s policy and advocacy officer, “but at first sight it is hard to see how this Pact will enhance refugee protection or even reduce the pressure to manage arrivals for Member States at the EU external borders properly and humanely.”"

EU institutions

"During the debate with Commission Vice-President Margaritis Schinas and Commissioner for Home Affairs Ylva Johansson, MEPs requested more concrete information about how the pact would be applied on the ground and enforced. Some considered the initiative to be a positive step to help EU counries where most of the asylum seekers first arrive, while others described it as the only way forward from the current situation.

However, MEPs also questioned whether the new rules will prevent another humanitarian disaster such as the recent fire in the Moria refugee camp and wondered whether the new screening and border procedures would respect fundamental rights. Several MEPs regretted that the principle of the current Dublin regulation - requiring the country of first entry to handle asylum claims - remains in the new regulation proposal, because they were worried this will maintain the burden on countries where most of the asylum seekers first arrivve."

 

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