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?
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.
On 20 December 2023, after three years of negotiations, the Council and European Parliament announced that they had reached political agreement on the key issues of the Pact. This is not the end of negotiations - technical discussions will continue next year, and the package still needs to be formally adopted. The IRC has warned that the agreement leaves troubling cracks in the foundations of what will become the future EU’s migration and asylum system.,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. Now that the negotiations are finalised, we are looking to EU leaders for guarantees that its implementation will safeguard rather than further erode fundamental rights and protections for people in search of safety.
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.
The EU Pact on Migration and Asylum was 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 entered their final phase, as the European Commission, Council and Parliament worked to reach an agreement on these key reforms before the European elections in June 2024. On December 20 2023, political agreement was found on key areas, opening the door for further technical negotiations and formal adoption in early 2024.
As of the end of September 2023, a record 114 million people were displaced from their homes worldwide - the devastating result of growing climate change, economic turmoil and armed conflict.
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.
While a reform of the European asylum and migration system is long overdue, there is still a way to go to ensure the Pact responds to these challenges.While the exact details of the Pact are still becoming clear, IRC is concerned that in its current format, the Pact does not offer sustainable solutions for people seeking safety at the EU's borders
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.
Europe is now at a crossroads; it can either move ahead with the policies of deterrence and exclusion which will simply drive more people onto dangerous journeys, or choose to lead by example, advancing safe pathways and safeguarding the rights of refugees and asylum seekers in a spirit of global humanitarian leadership.
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.
Here are just a few of the Pact’s proposals that we’ll discuss in this article:
Click below to expand more information on each topic.
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.
Only seven 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.
Following their screening, people will be channelled either to normal asylum procedures, or so-called “accelerated procedures”, also known as border procedures.
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 current agreement, families with children will not be exempted from the border procedure, with only limited additional safeguards. 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.
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.
Under the current agreement, the monitoring mechanism will only cover the screening. 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.
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.
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.
Under the current agreement,, 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.”
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.
One of the regulations now agreed on is the "Regulation on exceptions in cases of crisis, instrumentalisation and force majeure", or Crisis Regulation for short.
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.
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.
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 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.
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.
Related content:
IRC news and articles related to refugee resettlement in the EU.
Understand the different tools designed to support people seeking protection in Europe including resettlement, complementary pathways, and family reunification.
More on the IRC's work in Europe shaping policies to help people affected by humanitarian crises to survive, recover and rebuild their lives.
