06 December 2023
Negotiations are close to an end on the new laws that make up the EU's Pact on Migration and Asylum, and the Council - which has consistently favoured rules that will downgrade human rights protections - appears to have largely got its way, according a document circulated by the Spanish Council Presidency yesterday. Amongst other things, the document openly admits that the Council is planning to sideline Parliament's concerns over "potential discrimination based on race."
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Lives on the line
“If they really pursue this New Pact, it will be against any kind of human or refugee rights. They are playing with the lives of people who are vulnerable and in danger,” said Parvin A, a woman who was severely beaten, detained and pushed back from Greece six times.
These views seem to matter little to the member states in the Council and, according to the Spanish Presidency, the Parliament - often seen by observers as the only EU institution that is likely to stand up for human rights - did not put up much of a fight.
A paper circulated by the Presidency yesterday, obtained by Statewatch and reproduced below, says "the core part of the Council mandates is being preserved in all files. This has been possible due to the fact that the European Parliament has accepted to make significant concessions."
Or, as the document states elsewhere:
"...the European Parliament showed openness to accept elements on the effectiveness of the procedures, provided that the Council shows a certain degree of flexibility on relevant points for the European Parliament, such as fairer responsibility rules, enhanced guarantees for families and minors, right to effective remedy, free legal assistance or effective monitoring of fundamental rights."
Even with these concessions from the Council, the overall result of the measures that make up the Pact are set to provide a significant lowering of human rights protections for migrants and refugees entering the EU - and, as Sara Prestianni, Advocacy Director for EuroMed Rights has put it, a situation in which "states can simply dodge their responsibilities by paying for weapons, walls, and detention camps in border states or non-EU countries with grim human rights records."
"Opening the door to human rights abuses"
The Presidency paper includes an overview of the "core part of the Council mandate," and the Presidency "is confident that they will be part of the final result of the negotiations with the EP," though notes that the Parliament's agreement to them depends on "obtaining further flexibility from the Council side."
If the Presidency's confidence is well-placed, then the situation in the coming years looks grim, according to human rights groups: the entrenchment of pushbacks; increased use of detention, including of families and children; greater risk of racial profiling within the EU; the further externalisation of European borders; lowering of procedural safeguards to increase deportations; and limiting access to legal assistance for asylum-seekers.
“The Migration Pact in its current form opens the door to human rights abuses, providing implicit and explicit EU backing for the arbitrary deprivation of liberty and severe human rights violations that have become commonplace at or near EU borders," said Michele LeVoy, director of the Platform for International Cooperation on Undocumented Migrants (PICUM).
The Presidency's view
The Presidency paper describes this situation in rather more anodyne terms.
The paper notes that there will be "an effective screening of all irregular arrivals to the EU," and "referral to the substantive procedures in a short period of time," while member states would be able to decide where precisely screening will take place.
"Moreover, the mandatory legal fiction of non-entry would be preserved for all cases," a point emphasised twice by the Presidency: "The final agreement would ensure an effective and meaningful mandatory border procedure, with full application of the legal fiction of non-entry, which constitutes a key element of the reform."
What this means in practice is that, despite people being physically present on the territory of an EU member state, the law will decree that they have not yet really entered that member state - and thus can be subject to detention and screening at the borders, with a view to swift deportation.
According to the paper, a key role for the Council will also be preserved in the complex and technocratic decision-making architecture that will be set up to govern the new EU asylum and migration system, including by deciding on "solidarity measures."
All those measures - whether that is accepting relocated refugees or providing funding to third countries for border externalisation - "would be considered as having equal value."
However, if a member state determines that it is unable to apply the new rules due to a situation of "crisis" or "force majeure," then "there should be a broad menu of derogations to respond to these exceptional situations."
The paper goes on to set out negotiating objectives for the bumper trilogue meeting scheduled with the Parliament and Commission for tomorrow, and includes a comment with regard to the possibility of carrying out "screening" within EU territory, rather than simply at the borders:
"Despite the Parliament's strong opposition, mainly due to concerns on potential discrimination based on race, the Presidency remains firm on maintaining this provision that is a strong priority for the Council."
The human rights groups making a last-ditch attempt to halt the Pact have warned that giving authorities the power to subject people already within the EU to the screening procedure will increase "the risk of racial profiling of people who live in and come to Europe, whatever their citizenship or residence status," as officials will treat skin colour as a proxy for immigration status.
According to the Presidency, the only room for negotiation on this point is the possibility for "the personal scope of such screening [to] be further clarified."
The paper also makes clear that despite the Parliament securing a "reinforced" fundamental rights monitoring mechanism, the Council will not accept monitoring of border surveillance operations - many of which of course lead to violent pushbacks of people seeking safety.
The full text of the document, which is not officially publicly available, is reproduced below (all emphasis in original).
Council of the European Union
Brussels, 5 December 2023
To: Permanent Representatives Committee
Subject: Towards a final compromise on the Pact on Migration and Asylum – Discussion paper
Migration and asylum are European challenges that require a European response. After more than seven years of negotiations, the European Parliament and the Council are closer than ever to reach a historical agreement in this field. The time has come to seize this opportunity with full determination in order to improve the current acquis by developing more efficient and sustainable systems and to foster mutual trust among Member States in this field.
The Spanish Presidency is devoting tireless efforts to defend the Council position in the negotiations with the Parliament. Reaching an agreement in December 2023 is crucial to formally conclude the files in the current legislative term in line with the roadmap agreed with the European Parliament.
As stated during the discussions in COREPER on 8, 17 and 27 November, the Spanish Presidency reiterates that the final agreement will necessarily respect four key features of the system that is being developed: effectiveness, practicability, fairness and balance between responsibility and solidarity.
In this context, the Spanish Presidency is upholding these principles and approach in the interinstitutional negotiations. In the current state of negotiations the core part of the Council mandates is being preserved in all files. This has been possible due to the fact that the European Parliament has accepted to make significant concessions.
Preserving the key building blocks in the final compromise
To illustrate how the core part of the Council mandate is being preserved, the following section summarises most of these core elements, which the Presidency is confident that they will be part of the final result of the negotiations with the EP. The EP has made conditional its agreement on these key issues to obtaining further flexibility from the Council side.
In the final outcome, in contrast to the current status quo, there would be an effective screening of all irregular arrivals to the EU, and a referral to the substantive procedures in a short period of time.
Member States would have the flexibility to designate the locations where screening will be conducted. Another key feature would be the direct access by the relevant authorities to the databases to conduct security checks. Moreover, the mandatory legal fiction of non-entry would be preserved for all cases.
There would also be an obligation to effectively register all categories in Eurodac, be it applicants, irregular crossing, SAR cases or resettled persons. Moreover, Member States would be able to collect data of resettled persons in third countries. The retention period for applicants of international protection would be maintained at 10 years. In coherence with Screening, the law enforcement authorities would have direct access to Eurodac, avoiding thus a cascade check prior to accessing Eurodac. Finally, Member States would be able to insert security flags upon registration in Eurodac, in order to strengthen the internal security.
The final agreement would ensure an effective and meaningful mandatory border procedure, with full application of the legal fiction of non-entry, which constitutes a key element of the reform.
Regarding the overall governance on migration and asylum, the role of the Council would be preserved when it comes to decisions on solidarity measures, and specific reference to the Toolbox would be maintained. Moreover, the institutional architecture would be based on a two-level set-up, including a ministerial and a technical level. Mandatory, flexible and needs-based solidarity would be preserved, which means that all solidarity measures would be considered as having equal value and Member States would have full discretion on which measures to use. The final agreement would also include take back notifications with no shift of responsibility and the transfer time limits set out in the Council mandate.
On the crisis regulation, the final agreement should include instrumentalisation as part of the scope as well as force majeure. In general, there should be a broad menu of derogations to respond to these exceptional situations.
How to preserve the core elements and overall objectives of the Pact
As mentioned above, the European Parliament showed willing to accept all major Council’s core elements on the effectiveness of the procedures, provided that the Council shows a certain degree of flexibility on relevant points for the European Parliament, such as fairer responsibility rules, enhanced guarantees for families and minors, right to effective remedy, free legal assistance or effective monitoring of fundamental rights.
On the clear understanding that nothing is agreed until everything is agreed, the Presidency considers that following the COREPER meetings on 17 and 27 November, and after consultations with all delegations, the following elements on the different legislative files could constitute a reasonable way forward in order to seeking an overall compromise with the European Parliament.
On the Asylum Procedures Regulation (APR):
On the Asylum Migration Management Regulation (AMMR):
On the Crisis, including instrumentalisation, and force majeure Regulation:
The Presidency invites COREPER to discuss the above package of compromise proposals with a view to finding an agreement that can be the basis for the negotiations during the trilogues of 7 December.
Of the five legislative proposals in the EU's Pact on Migration and Asylum, there is only one for which the Council has not so far adopted a negotiating position: the crisis and force majeure Regulation. The main purpose of the law is to set out derogations from other measures in the Pact, which are all due to be approved by next spring. The latest version of the text (published here) was up for discussion yesterday at the Justice and Home Affairs Council, which failed to reach agreement on it. Another attempt will reportedly be made on Monday.
On 26 July the Council Presidency circulated what it intended to be the Council's negotiating mandate on the proposed Regulation addressing situations of crisis and force majeure in the field of migration and asylum. Agreement within the Council on the text remains elusive, but it is being made public here, alongside previous versions of the text and compilations of comments from member states on various issues raised by the proposal.
The latest Council Presidency compromise text of the Crisis and Force Majeure Regulation includes new provisions on "solidarity and support measures in a situation of crisis or instrumentalisation," and changes to the proposals on the notification and authorisation procedures for member states deemed to be facing a migration "crisis" or the "instrumentalisation of migration".
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