Why is the European Pact on Migration and Asylum stalled?

In September 2020, the European Commission – led by Ursula von der Leyen – presented the European Pact on Migration and Asylum. Designed to replace the Dublin III system, the new pact was intended to provide a more coherent solution to migratory flows into the EU. Yet, 3 years on, the Pact still lacks unanimity, and the EU Council is still seeking common ground with the Parliament. Between disagreements among member states and criticism from NGOs, we take stock.

Member states divided

For the time being, EU migration policy is governed by the Dublin III text. Under this text, refugees must apply for asylum in the first EU country they reach. However, this mechanism results in a disproportionate distribution of asylum applications to southern European countries, which are the first port of entry for migrants from the Middle East, Asia and Africa. The new European pact therefore aims to redress the balance by allowing migrants to apply for asylum in countries where they have family ties, where they have worked or studied, or in a state that has issued them a visa in the past.

The reform also introduces a new solidarity mechanism. In simple terms, if a country is faced with a large influx of migrants and feels that it cannot bear the responsibility of receiving them, it will be able to request the activation of a “binding solidarity mechanism”. This decision must be taken by the Commission. In such a case, all member states would be required to contribute according to their economic and demographic strength. Theoretically, a state that fails to meet its solidarity obligations could be heavily sanctioned by the EU Court of Justice.

It is this new mechanism that is dividing opinion. While this addition would have helped to better manage the migratory crisis in 2015, several Eastern European countries are opposed to the introduction of such a solidarity mechanism. Hungary and Poland, historically known for their reticence towards non-European migrants, voted against, while Bulgaria, Lithuania and Slovakia abstained. Poland’s Prime Minister, Mateusz Morawiecki, described the pact as “a diktat aimed at changing European culture” [1].

A criticized exemption system

Aware of the challenge, the European Parliament published a proposal for a regulation on December 14, 2021 [2]. It includes the so-called solidarity mechanism, but also a special emergency procedure for migration management. The latter offers the possibility for a member state to derogate from its responsibilities in terms of receiving migrants if it suffers a situation of instrumentalization of migration. The EU Council defines instrumentalization of migrants as “situations in which a third country or non-state actor has (…) encouraged or facilitated the irregular movement of third-country nationals to (…) a territory, in order for them to reach the external border of the Member States” [3]. In the context of the Regulation, Member States are concerned that certain actors, such as Belarus, are facilitating irregular migration to the Baltic States, which are members of the Schengen area.

According to the European Economic and Social Committee, this exceptional procedure raises a number of questions [4]. Several NGOs, including the Ligue des droits de l’Homme, have also expressed concern [5]. Indeed, standardizing such measures at a time when the EU does not have enough time and space to guarantee the rights of migrants turned back at the border is tantamount to jeopardizing their fundamental rights. According to the Ligue des droits de l’Homme, the proposal is synonymous with:

  • reduced access to asylum through delayed registration periods, restricted access to legal counsel and increased risk of refoulement,
  • an increase in the number of people whose asylum applications are managed under second-order border procedures,
  • an increase in the number of people detained at the border, including unaccompanied minors and families, thanks to the extension of the time limits and personal scope of asylum and return procedures at the border,
  • insufficient reception, material and care conditions to reach the threshold of human dignity, particularly for vulnerable people, including children or survivors of torture or trafficking.

In a joint statement published in September 2022, over 80 NGOs declared that approval of this proposed regulation would result in the deconstruction of Europe’s asylum system [6], even though the pact was initially intended to make the system fairer.

ASSEDEL supports this position and calls on Member States and MEPs to remain vigilant against the introduction of derogations to the Common European Asylum System in other reform proposals.

Certainly, no single member state should bear the sole responsibility for taking in tens of thousands of refugees. Recent events in Lampedusa show just how important it is to reform our migration system [7].

So, as Mrs von der Leyen said in her speech at the beginning of September, “let’s finish the job” [8]. But let’s finish it while respecting the rights and freedoms of migrants, rather than in the interests of a few anti-immigration states.

[1] FranceInfo (2023), “Pourquoi le pacte européen sur la migration et l’asile divise les pays membres de l’UE ?”

[2] Proposal for a Regulation of the European Parliament and of the Council addressing situations of instrumentalisation in the field of migration and asylum [COM(2021) 890 – final – 2021/0427 (COD)]

[3] Conseil de l’UE (2022), “Code frontières Schengen: le Conseil adopte son orientation générale”

[4] Opinion EESC on the Security Union package/Schengen package [SOC/710-EESC-2022-00264-00-01-AC-TRA 12/1310]

[5] Ligue des droits de l’Homme (2023), “Appel des ONG aux États membres et au Parlement Européen: ne pas aller plus bas: rejeter l’utilisation de brèches juridiques dans les réformes du Droit d’asile de l’UE”

[6] Vues d’Europe (2022), “Règlement sur l’instrumentalisation : les inquiétudes subsistent malgré l’absence de compromis”

[7] CNN (2023), “7,000 people arrive on Italian island of 6,000 as migrant crisis overwhelms Lampedusa”

[8] Commission Européenne (2023), “Discours sur l’état de l’Union 2023 de la Présidente von der Leyen”

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