Three years in negotiation, the European Commission's Pact on Migration and Asylum is a complex package of reforms intended to mark “a fresh start” for EU asylum and migration policy, but how does it measure up?
27 October 2023
In 2020, President of the European Commission, Ursula von der Leyen, admitted that "migration is complex. The old system no longer works."She was proposing a new EU Pact - one of the biggest overhauls to the EU's asylum and migration system in years.
Yet, three years on, there is still no consensus on what some of the core elements of the Pact will look like. The IRC believes it is well within Europe’s capacity to manage migration and asylum with fairness and humanity, in a way that works for both new arrivals and local communities. But there is work to do to ensure that the Pact lives up to these goals and represents a step forward rather than a step back.
Read on to learn why the Pact is so important, how the IRC is seeking to influence its direction of travel, and what is needed to ensure it delivers an EU migration and asylum system that is fit for the future.
What is the EU Pact on Migration and Asylum?
The EU Pact on Migration and Asylumwas launched in September 2020 with a view to finally breaking the longstanding political deadlock among member states on reforming the EU’s asylum and migration policy.
It refers to a package of policy proposals and recommendations in the areas of migration, asylum, integration and border management. While complex, the Pact is vitally important and will set the direction of travel of EU asylum and migration policy for many years to come.
In Autumn 2023, negotiations on the Pact on Migration and Asylum are entering their final phase, as the European Commission, Council and Parliament try to reach an agreement on these key reforms before the European elections in June 2024.
The vast majority of people who have been forced from their homes remain in their own region. Today, 76% of the world’s refugees are hosted by low or middle-income countries, many of which are unable to adequately support their needs. Just a small fraction seek to reach protection in Europe. However, EU states have consistently failed to reach agreement on how to deal with people seeking safety on its territory - resulting in increased political polarisation, states diverging from EU and international law, more human rights violations at Europe’s borders, and immense suffering experienced by people on the move.
The EU Pact is a chance for a fresh start - the opportunity for EU states to finally agree on a humane, sustainable, predictable approach to asylum and migration. This would benefit everyone - providing a lifeline for many people on the move, solidarity for countries currently hosting large numbers of refugees, and an orderly way for EU states to deal with new arrivals. Yet, there is a way to go to ensure the ultimate package achieves these goals.
What do we need to get right in the EU Pact on Migration and Asylum?
In their current form, some of the changes suggested by member states to the EU’s migration policy risk exacerbating rather than solving existing challenges such as decreasing pressure on states of first entry, limiting violence at the borders, and creating a Common European Asylum System with clear rules and regulations.
If the Pact is adopted unchanged, the responsibility for receiving refugees will continue to lie largely with the member states at the EU's external borders. As a result, pushbacks and violence at the borders are likely to increase, and many new arrivals, including children and families, could be detained at the external borders for long periods of time as part of their asylum procedure. Meanwhile, giving countries the opportunity to ignore or bypass the rules whenever a ‘crisis’ occurs undermines the idea of a common European response to migration, resulting in less solidarity and even more disorder.
In terms of external action, the IRC, like many other human rights organisations, lawyers, academics, and policymakers, has cautioned about the risks of a disproportionate focus on stopping people from reaching Europe that could increase the vulnerability of displaced people and undermine efforts to address the underlying drivers of migration.
A more humane approach is still possible - but to achieve this, we need to see vital safeguards upheld, especially for children and other vulnerable people; strong and truly independent border monitoring mechanisms to limit pushbacks and ensure those who commit human rights violations are held accountable; and safe pathways properly scaled up and operationalised on a far more ambitious scale than current efforts.
This article will explain six of the key themes of the Pact, and outline what is needed in this last crucial phase of negotiations to ensure it forges the humane, sustainable and predictable EU asylum system that is so desperately needed.
What are the EU Pact proposals?
Here are just a few of the Pact’s proposals that we’ll discuss in this article:
The Screening Regulationwhich determines the initial procedure to be faced by non-EU nationals who arrive irregularly into the EU.
In December 2022, EU institutions also agreed on a Union Resettlement Frameworkwhich, once adopted and operationalised, could provide a structured, predictable way for some refugees to arrive safely in the EU.
What is at stake around the EU Pact on Migration and Asylum?
Click below to expand more information on each topic.
1: Screening and border procedures risk increasing detention in prison-like facilities
What is the screening procedure?
The Screening Regulation states that all people who arrive irregularly at Europe’s borders will be subjected to a screening procedure. This will involve a preliminary health check, an identity check, a security check, and a vulnerability check to assess whether people face any particular risks to their safety and wellbeing (for example, children, people with disabilities, or older people), as well as fingerprinting and registration in the Eurodac database.
Why is the screening procedure worrying?
Only five days are set aside for the whole screening procedure, with an additional five days allowed in the event of a “massive influx” of new arrivals. The IRC’s experience of vulnerability checks in Greece finds that, in practice, undergoing this check in only 5 days is not realistic, and is likely to lead to extended time spent in detention at the borders as people wait for their first screening. The short time frame could also lead to incorrect vulnerability assessments, without the right to appeal the decision. As a result, people with special vulnerabilities could be put through fast-track asylum procedures without the necessary safeguards and assistance they are entitled to.
Under the screening procedure, people will be treated as not having entered EU territory (known as the “legal fiction of non-entry") until their screening is completed. In practice, this will lead to diminished safeguards and a risk of mass detention at the borders, including for children, in countries of first arrival.
What is the border procedure?
Following their screening, people will be channelled either to normal asylum procedures, or so-called “accelerated procedures”, also known as border procedures.
Why is the border procedure concerning?
Compared to a normal asylum procedure, people subject to border procedures would still be considered to not have officially entered EU territory. The border procedure will have shorter timelines and fewer safeguards, with limited access to legal advice.
Asylum seekers who come from a country where less than 20% of people who apply for asylum in the EU have their claims approved would be automatically referred to the border procedure. This would divide refugees into two classes on the basis of their nationality. It risks overlooking people’s individual reasons for fleeing their country, and not reflecting any situations that continue to develop and may affect their case.
Asylum and return border procedures will last for up to 12 weeks each. If an asylum seeker is rejected, it would result in a speedy deportation. If an asylum seeker lodges an appeal against their rejection, it would not pause the return procedure, meaning that the person could be deported while still in the middle of an appeal process that may ultimately grant them asylum.
If people cannot be returned in the time provided, which is often the case due to the inability or unwillingness of countries to take back their nationals, the procedure is to be continued according to the proposal of the Return Directive. This, among other things, provides for detention pending deportation of 3-6 months - in extreme cases even 12 months. The IRC’s experience of working in Greece shows that being contained for lengthy periods in detention facilities or closed camps has a disastrous effect on people’s mental health, severely impacting their quality of life, wellbeing and dignity.
Under the European Council’s current proposal, families with children aged 12 or under will be exempted from the border procedure, unless they are considered to be a danger to national security or public order. Those aged 12 or older, however, will not be exempted. This means that a 13-year-old minor travelling with their family would most likely spend months in detention. Unaccompanied minors will be channelled to the “regular asylum procedure” and will have the right to enter the territory, unless the minor is considered to be a danger to national security or public order.
Sometimes, people who do not qualify for refugee status nevertheless qualify for other forms of protection, such as humanitarian admission. However, in the border procedure there is no way for people to apply for other forms of protection, especially as they will have limited access to legal aid and assistance. This could have a particular impact on vulnerable groups, such as victims of torture and trafficking survivors.
As a result of the implementation of the Screening and Asylum Procedure Regulation, there is a danger that those seeking protection will have to remain in limbo, stuck in detention-like conditions for much longer than originally planned. This would not only be a bitter blow for people seeking protection, but could also result in a backlog in the asylum centres which are likely to be quickly overcrowded.
Ensure that people going through screening receive a copy of their ‘debriefing form’, which is the only document issued at the end of the screening procedure and may be crucial in determining whether people are referred to asylum procedures, return procedures or are refused entry, and have the ability to correct any information therein which may be incorrect due to the accelerated nature of the screening.
Ensure the application of the border procedure, with its limited safeguards, remains optional rather than mandatory for states to participate in, and exempt all children and their families from the border procedure, along with other vulnerable groups whose needs cannot be met during its implementation.
Maintain the right to free legal assistance and a personal interview for asylum applicants, as proposed by the European Parliament.
Ensure the Reception Conditions Directive, which guarantees minimum safeguards for asylum seekers, applies throughout administrative procedures at the border.
Detention should be a measure of last resort. The European Union Asylum Agency should develop guidelines on alternatives to detention, and EU states should invest in community-based accommodation solutions in accordance with the EU Action Plan on Integration and Inclusion, rather than costly, remote, prison-like detention centres.
2: The lack of effective border monitoring could lead to more human rights violations at Europe’s borders
To safeguard people’s fundamental right to asylum, the EU needs effective, independent, and properly resourced monitoring mechanisms at its borders to investigate incidents of human rights violations and hold perpetrators to account. As part of the Screening Regulation, the European Commission proposed the establishment of an independent border monitoring mechanism (IBMM). This is a positive development. However, it will only be able to address violations if it is expanded in scope, its independence is ensured, accountability for violations is strengthened, and governments face suitable consequences for non-compliance. Failing this, the mechanism risks being a fig leaf behind which violations continue.
Certain amendments introduced by EU states seek to water down the IBMM proposed to the point where it will likely do more harm than good. These changes could provide a smokescreen of supposed accountability by setting up weak and ineffective border monitoring mechanisms, allowing pushbacks and other violations to continue without any real consequences or oversight. Greece is a case in point: although it has been facing pressure to establish a border monitoring mechanism since at least October 2021, as of May 2023 there is still no credible mechanism in place. While Greece has reportedly designated its National Transparency Authority (EAD) to act as the national border monitoring mechanism, IRC research shows that it is neither independent, transparent, nor powerful enough to provide effective protection against pushbacks. Clear regulations are needed to ensure other countries do not follow the same example and set up inefficient monitoring mechanisms by design.
Ensure the strengthened border monitoring mechanism, as proposed by the European Parliament, is maintained in order to offer effective protection to people arriving at Europe’s borders and clear consequences for human rights violations.
3: The Pact could lead to countries on Europe’s borders coming under more pressure - not less
Under the Asylum and Migration Management Regulation (RAMM), which regulates which EU state has responsibility for people arriving to seek asylum, the first country of entry principle would be maintained. This means that people would be obliged to apply for asylum or other forms of legal stay in the Member State of first entry and remain there. As a result, thousands of asylum seekers will find themselves stuck in Europe’s border countries, often in precarious conditions. In fact, frontline member states would be responsible for new arrivals for longer than before, increasing from the current six months to two years after an asylum seeker has moved on to another EU state, or three years if they are considered a ‘fugitive’. Additionally, the deadlines for sending "take charge requests” (where a member state requests that another EU state examines an asylum application based on family reunification provisions) would be shorter, potentially leading to fewer applicants successfully submitting requests and being able to reunite with their families in other countries.
Being able to live with their family not only improves the prospects of integration for new arrivals, but the right to family life is also enshrined in the European Convention on Human Rights. The European Commission had initially proposed expanding the definition of ‘family’ to include siblings and the extended family members of adult applicants as eligible for family reunification. This proposal, which would have expanded the number of individuals who could join family in other EU states, was rejected by the states themselves. This means that, for example, an applicant who just turned 18 in Greece, missing the broader family reunification protections available to unaccompanied children, would not be able to reunite with his adult brother living in another EU state - a challenge the IRC witnesses all too regularly.
If a person decides to move on from the state where they first applied for asylum, the EU state would be able to withdraw reception conditions. For instance, a person that arrived in Italy, applied for asylum, and then moved irregularly to Germany and applied again there, would not be entitled to material reception conditions such as housing, food, clothing, financial allowances or education of minors and would not be able to access the labour market in the second member state. This risks increasing suffering across the EU, with asylum seekers being forced into exploitation and abuse in order to survive as they would not be afforded the right to formal work or financial assistance. It also ignores the fact that people do not move on within the EU for no reason, but are often trying to escape precarious conditions such as homelessness, living in inhumane accommodation, or a lack of access to the labour market.
It is positive that the Pact proposes establishing a mandatory solidarity mechanism which all EU states need to take part in. However, rather than relocating new arrivals to their territory, member states who would have the choice to pay €20,000 per person they choose not to admit instead. While the Parliament has proposed some safeguards for how these financial contributions could be used, there is currently no strict definition or limits in the EU states’ proposal, meaning that funding could flow into border surveillance, deportations or to activities outside the EU to prevent people from arriving - instead of being used to improve protection programming or adequate reception.
Support the expansion of family definition criteria, as proposed by the Commission and Parliament, and maintain the Parliament proposal for fast-track family reunification procedures.
Support the Parliament position that withdrawal of reception conditions should not apply in cases in which the applicant’s presence in the EU state is due to reasons beyond their control, and the need to take into account the individual circumstances of the applicant, including the real risk of violations of fundamental rights in the Member State responsible for the asylum application.
Ensure thatthe final agreement on the Pact delivers a concrete and predictable solidarity mechanism for countries of first arrival, in the spirit of responsibility-sharing. This system should be centred on predictable relocations of asylum seekers as per the Parliament proposal, which is a tested and concrete way to display solidarity with asylum seekers and hosting states alike.
Other forms of solidarity, such as financial support, should have a clear protection focus, supporting dignified reception, integration services, and asylum procedures rather than policies based on containment and deterrence, such as constructing border fences, or increasing returns at any cost.
4: Changes to the concept of what constitutes a “safe country” could expose people on the move to even greater risk
If the EU states’ proposal is not changed, the definition of what currently constitutes a safe third country would be watered down significantly. This would allow states to transfer responsibility for an asylum claim based on the asylum seeker having passed through or temporarily resided in a so-called “safe third country”. A country would only need to provide “effective protection” to be considered safe. However, the definition of “effective protection” does not include access to legal status, full health care or family reunification. This is contrary to UNHCR guidelines on the designation of a safe third country, as well as existing case law of European Courts.
As the application of the concept of a “safe third country” will be left at the discretion of member states, there would therefore be a high risk of refoulement and chain deportations to and from countries that might be considered “safe”, despite clearly violating human rights. Member states also want the existence of an agreement between the EU and a third country to be sufficient to prove that the country in question is indeed safe for returns. The recent EU-Tunisia deal is a clear example of the potential protection risks of such an approach.
It is also questionable whether the safe third country regulation would actually work in practice. Greece, for example, rejects a large number of asylum applications, including from Syrians and Afghans, as inadmissible with the argument that their transit country, Türkiye, is safe for them. Türkiye in turn does not take back the asylum seekers rejected in this way, leaving people stuck in limbo. Similarly, seven years after the EU-Türkiye deal was introduced, only 2,100 people who have made the often very dangerous journey to the Greek islands have been returned to Türkiye, while thousands more are trapped in Greece where they are cut off from basic assistance. If the safe third country principle is watered down to the point of being unworkable, the number of people in these types of situations would only increase.
Agree on a definition of a “safe country” that corresponds to international human rights law, including the Refugee Convention; by removing the presumption that an agreement with a third country is sufficient to designate it a ‘safe third country’; and by removing the provision that merely transiting through a country would constitute enough of a ‘meaningful connection’ to return someone there.
5: The Pact could make diverging from EU law the ‘new normal’
One of the regulations currently under discussion is the "Regulation on exceptions in cases of crisis, instrumentalisation and force majeure", or Crisis Regulation for short. On 4 October 2023, EU states agreed on a common position, which means negotiations with the European Parliament can begin.
Member States are seeking to introduce changes to the Crisis Regulation which riskdrastically worsening the already precarious situation for people seeking protection. These include extending registration deadlines and processes and broadening the number of people funnelled into the border procedure whenever a ‘crisis’ occurs. This approach would make derogations from existing asylum law the norm rather than the exception, which could create more rather than less disorder at the borders.
Everything is a crisis
The Crisis Regulation is intended for cases of "crisis, instrumentalisation and force majeure".
However,the term "crisis", “instrumentalisation”, and “force majeure” are not clearly defined, and open up a wide scope for interpretation. Instead of obliging member states to prepare for a steep increase in the number of refugees arriving so they can deal with this constructively and efficiently, the Regulation allows member states to severely restrict procedural standards. This means that, in practice, people applying for asylum will be treated differently based on when they happen to arrive, rather than on their actual protection needs.
Extended procedures, expanded detention
When a “crisis, situation of force majeure or instrumentalisation” occurs, the Regulation allows for the registration of asylum applications to be delayed for as much as a month - leaving people without a clear status and the rights associated with it. This is problematic as unregistered people are much more vulnerable to illegal pushbacks and deportation, as their presence on European territory is difficult to prove. In practice, this delay also prolongs the asylum procedure and thus peoples’ stay in de-facto detention centres.
The Crisis Regulation also allows for the expansion of border procedures, to cover all applicants from countries with a less than 75% recognition rate in the case of a "crisis" or "force majeure", or applying to all asylum applicants without distinction if "instrumentalisation" is assumed, leading to more people going through accelerated procedures with lowered safeguards. The Regulation would also significantly increase the duration of the border procedure itself. Almost all asylum seekers would have to wait over five months in detention-like conditions for the outcome of their procedure. If an asylum application is rejected, this detention could last for a total of ten months.
While the European Parliament position introduces some important safeguards, including clearer definitions of ‘crisis’ and greater emphasis on crisis preparedness and solidarity measures, the Parliament should only agree to the Regulation if most of its amendments are agreed. Otherwise, the extensive derogations from existing asylum law and extended use of detention will only create more disorder at Europe’s borders.
6: The Union Resettlement Framework is an opportunity to expand safe pathways to Europe
Alongside negotiations on the Pact, in December 2022 the EU institutions finally reached an agreement on the Union Resettlement Framework, after years of deadlock.
Alongside a functioning asylum system, refugee resettlement offers a lifeline to people forced to flee – a way to reach safety without risking their lives on dangerous journeys. For countries of first refuge, they represent a form of solidarity and support. While for receiving countries, they provide a structured and durable approach to welcoming people in need.
Once formally adopted, this regulation would make EU resettlement efforts more coherent, structured, and predictable, and safeguard them as a central pillar of EU-wide asylum and migration systems. This would establish a strong foundation for renewed national momentum to expand these programmes. This important legislation is long overdue: the creation of safe routes to protection is the missing piece in the EU’s asylum and migration policy, and would go a long way towards harmonising the patchwork of different processes, policies, criteria and statuses provided across European states at present.
Swiftly adopt the Union Resettlement and Humanitarian Admission Framework and ensure its proper implementation via ambitious commitments that address today’s unprecedented global resettlement needs, in consultation with relevant civil society and humanitarian organisations active in the field.