Overcoming the Migration Deadlock: What Can the New EU Migration Pact Achieve?

The mood was tense when Margaritis Schinas and Ylva Johansson appeared before the press on Wednesday 23 September with their migration pact. “Nobody will be satisfied,” predicted the EU Commissioner for Migration and Home Affairs, foreseeing reactions to the more than 300-page proposals, even before the Visegrád heads of government, as expected, began their chorus of critics on Friday.

While human rights and migrant organisations in particular widely criticised the pact, as in their opinion it was too much focused on restrictive migration prevention, not only Hungary, Poland and Slovakia, but also Austria’s Federal Chancellor Sebastian Kurz signalled that they would not easily agree on the proposals.

The approach: reaching compromise by focusing on return

The discursive framing of the Pact was characterised by a restrictive rhetoric of migration prevention – as Commissioner Johansson repeatedly stressed that the EU should in future focus more on the return of rejected asylum seekers. Nevertheless, the Pact contains meaningful proposals to make real strides and to gradually overcome the backlog of reforms of the Common European Asylum System (CEAS). Let us look back for a moment: the legislative proposals that were drafted at the beginning of the migration crisis in 2015 were all based on a binding distribution key with clear criteria – a pill that the Visegrád states were not prepared to swallow until the very end. The model of a “coalition of the willing” has been assumed being the way forward – i.e. a group of Member States willing to accept refugees on a rule-based distribution. This model was supposed to be an alternative to further stalemates by a blocking minority in the formulation of a more rational CEAS. In return, only monetary or technical assistance in border management would be required. But the European Commission was not willing yet to sacrifice the idea of a proper European solution.

Its new proposal now consists of a choice of mandatory solidarity in the event of a crisis, with Member States being able to choose between the direct relocation of people with recognised refugee status or the return sponsorship of rejected asylum seekers, which was seen as a surprising coup in Brussels. With its focus on return, the proposal can be a pragmatic solution to avoid the deadlock of some Member States and still achieve a real pan-European sharing of responsibilities. However, it is no secret anymore that the return sponsorship is tantamount to accepting migrants through the back door: after 8 months (or 4 months in the event of a crisis) of unsuccessful repatriation, Member States would be forced to accept people permanently. To what extent this proposal meets with the approval of the Member States is therefore completely open.

The learning: EU migration policy exposes the weakness of the EU governance system

In addition to these concrete design questions, likely to be the subject of controversial negotiations within the Council in the coming weeks, the Pact also revealed the inherent weakness of the EU’s political system: a formal majority decision alone is not sufficient if this is de facto undermined by states unwilling to cooperate. Since the Treaty of Amsterdam, the EU’s common migration and asylum policy has largely become the supranational responsibility of the EU, which means that decisions can be taken by majority vote and thus theoretically also against the will of individual states. However, the discussion of the mandatory quota for the distribution of refugees within Europe has shown that this is not practicable if the EU lacks de facto sanctions for non-compliance with these rules. The idea of “return sponsorship”, which attempts to automate a pan-European solution to this politically so controversial issue, should also be understood against this background. This is to be flanked by a new EU coordinator for return policy as well as further legislative projects in spring 2021. This would in any case be a decisive step forward in border management. However, the EU should not insist on obtaining the agreement of all Member States at any price. Should the states unwilling to cooperate continue to put the brakes on any progress, the idea of enhanced cooperation in the form of a “coalition of the willing” would still be the last resort.

The premise: cooperation with countries of origin is key

By focusing on repatriation, the Commission is taking into account the reality of a large proportion of people coming to Europe who cannot claim for protection. In 2019 alone, only 38% of the almost 541,000 first decisions on asylum applications were accepted. In addition to visa-free EU neighbouring countries such as Georgia (almost 20,000 applications), these include above all African countries with a low recognition rate (e.g. Nigeria, Guinea or Morocco). The new migration pact thus recognises the central role of cooperation with countries of origin in this respect, which is crucial for the readmission of their nationals. As nice as the idea may seem on paper that Member States will henceforth share the uncomfortable task of repatriation, it is unclear why this should suddenly work better. Even countries such as France or Spain, which have historically had close relations with some countries of origin, often fail because home countries are not prepared to take back their nationals. It is rather unlikely that other Member States, such as Hungary or Finland, would have more chance of success in this respect. However, the proposal largely ignores what is really needed to improve migration management, especially with African countries: there is a lack of incentives to give substance to the much-invoked partnership “at eye level”. Besides monetary incentives, these could be legal migration routes and training partnerships with Africa, but the Pact rather neglects this aspect.” It is important that we see the topic of labour migration at the same time as the illegal arrivals”, says Jan-Christoph Oetjen, member of the Renew Europe Group in the European Parliament in an interview with FNF. Although the Commission plans to present further proposals on legal migration next spring, the past has shown that progress can only be made if different migration aspects are considered together in a holistic approach.

The pitfall: operational implementation by Member States is crucial

In addition to these conceptual blind spots, it remains to be seen in particular how the Member States will implement the proposals in practice if they are adopted in more or less modified form by the end of the year under the German Council Presidency. The acceleration of asylum procedures at the EU’s external border in the context of a new 12-week EU border procedure and a 5-day pre-screening is envisaged and urgently needed. In addition to identity verification and security checks within Eurodac, this should above all lead to a quick decision on whether to stay, so that it should quickly be clear whether an asylum or repatriation procedure is applicable. To this end, the human and technical capacities at the EU’s external borders are to be increased and the EU border states are to be supported by increased assistance of the EU Asylum Authority EASO. On paper, this replaces the Dublin Regulation, but it remains questionable to what extent EU support will fundamentally change the situation on the ground. Ultimately, countries such as Italy, Greece or Spain remain primarily responsible for the implementation of the procedure, as EASO and Frontex only provide support, but do not have primary responsibility. There can therefore be no question of a real push towards Europeanisation of the asylum procedure; however, this would be necessary to put an end to the inhuman conditions in camps such as Moria. Nevertheless, the new proposals are more than just a drop in the ocean. It is now up to the Member States to make proposals for the implementation of the measures in the further negotiations. Hopefully, this will result in more than just the lowest common denominator, so that Europe can finally do a little bit more to live up to its standards of a humane and at the same time efficient migration management.

Jeanette Süß

European Affairs Manager