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Post 1 of the series of the Odysseus blog on the Pact on Migration & Asylum

By Philippe De Bruycker, Professor at Université Libre de Bruxelles & Founder and Coordinator of the Odysseus Network 

The instruments adopted as part of the pact on migration and asylum will be extensively covered in the new courses of the Odysseus Summer School, taking place from 1 to 12 July 2024

Alleluia! The white smoke that rose above the European quarter in Brussels early in the morning of 20 December 2023, same as for the election of the Pope, was a signal that the EU policy makers would receive the New Pact on Migration and asylum as a Christmas gift. Following sleepless nights of negotiations under pressure to succeed, combined with fear of failure because there is “no agreement on anything as long as there is no agreement on everything”, the EU remained true to itself with the dramatic method it uses to adopt a broad compromise along a package of measures.

To conduct an inventory of what has been exactly adopted under the flagship of the pact is not such an easy task (see here for a recent presentation by the Commission). According to the Commission communication of 23 September 2020 titled “A new Pact on Migration and Asylum”, it is actually so extensive that it is difficult to identify its content and limits as it embraces asylum law, borders policy, legal migration, and the fight against smuggling, including the external dimension of those policies. More precisely, the Commission tabled five main legislative proposals together with four soft law instruments respectively on screening, migration and asylum management, asylum procedures, Eurodac and crisis and force majeure. Proposals such as the revision of the single permit directive politically agreed on 12 April 2024 and of the long-term residence directive that is still pending are presented as elements of the pact, and indeed the Commission explicitly quoted  them Commission in its Communication of 23 September 2020. Other instruments such as the revision of the Schengen borders Code agreed in February 2024 or the recast of the return directive still pending are formally not considered as being part of the pact, despite their close links with its content. Finally, one has to keep in mind four other instruments, respectively on reception conditions, qualification, resettlement and the asylum agency, that go back to 2016. These instruments  will only be formally adopted in 2024 with the reset of the New Pact proposals due to “the package approach” as explained below. On top, the European Parliament enumerates the amendment of the Interoperability Regulation and of ECRIS-TCN Regulation that the Commission proposed in liaison with the screening regulation as being part of the pact, but the other institutions do not quote this very specific instrument. 

The inheritance of the 2015 crisis: The first batch of asylum instruments on rights of refugees plus the Asylum Agency

Due to the arrival in the EU territory of about one million persons transiting through Turkey in 2015, the Commission envisaged to reform the Common European Asylum System by tabling in 2016 seven proposals. The first batch of four (see the table below in yellow) were the object of a political agreement already in 2018 but were not formally adopted due to the package approach, as all instruments need to be adopted simultaneously as part of an overall compromise agreement, and still have to be officially endorsed by the Council:

  1. The Qualification Regulation defining the persons eligible to international protection and their rights aiming at further harmonisation to avoid divergent practices of national asylum administrations in charge of recognising protected persons (see here for a first comment);
  2. A revision of the Directive on Reception Conditions to guarantee that asylum seekers benefit from them only in the responsible Member State (see here for a first comment); 
  3. The regulation transforming the European Asylum Support Office (EASO) in a European Union Asylum Agency (EUAA) to give it more power, in particular regarding monitoring the way Member States apply EU asylum law (see here for a first comment);
  4. A Regulation establishing a Union Resettlement framework providing financial support to Member States when they resettle refugees from third countries in the EU (see here for a first comment).

On the contrary, three other proposals related respectively to the reform of Dublin regulation (for a comment see here), the recast of the asylum procedures directive, as well as an amendment of the Eurodac Regulation also tabled by the Commission in 2016 were not the object of a political agreement. This was due to strong divergences among Member States in Council regarding the issues of balancing responsibility and solidarity, as well as reforming asylum border procedures. Thus, this first attempt to reform the Common European Asylum System failed despite the policy earthquake that the 2015 crisis represented. Only the Regulation 2021/2303 on the EU Asylum Agency was formally adopted in 2021 on the basis of a mini-deal cutting the specific instrument off from the package approach due to the inclusion of a sunrise clause (article 73) foreseeing that the monitoring mechanism would not enter into force in its entirety without a revision of the Dublin Regulation.

The Pact relaunch of 2020: The second batch of instruments on borders plus Dublin & Solidarity

It is only with the arrival of a new Commission composition after the 2019 European elections that the legislative work resumed and led to the presentation of the pact on migration and asylum on 23 September 2020 (see here for a study of the Commission proposals including a history of the roots of the pact). The choice of the term “pact” refers to the attempt of the Commission to overcome the divisions between Member States in Council with early compromises in the proposals already including concessions to different groups of Member States having divergent views, respectively Northern Western Member States favouring responsibility, Southern Member States (the Med Group, in particular Italy and Greece) favouring solidarity and Eastern Member States (in particular the V4 called the Visegrad group) opposed to relocation of asylum seekers. 

This second batch is made of the following instruments (see the table below in blue):

  1. A Screening Regulation formalising Member States’ procedures for the identification of migrants in line with the hot spot approach (see here for a first comment); 
  2. An Asylum and Migration Management Regulation (AMMR) perpetuating the Dublin system on responsibility allocation but including a brand-new system of solidarity among Member States (see here for a first comment); 
  3. Two, instead of one, regulations as explained below imposing (mandatory) border procedures for asylum (see here for a first  comment) and for return at the external borders of EU Member States; 
  4. A revised Eurodac Regulation extending the purpose and scope of this existing database in order to fight better irregular migration by including illegally staying third country nationals (see here for a first comment);
  5. A Regulation on situations of crisis and force majeure allowing Member States to derogate from certain rules under exceptional circumstances, including instrumentalisation of migration by third states, and foreseeing additional solidarity measures in these cases (see here for a first comment).

Two last elements must be mentioned for the sake of clarity:

Firstly, a specific Regulation on a Return Border Procedure has been adopted separately from the Asylum Procedure Regulation due to its specific territorial scope, as the former is part of the Schengen acquis while the latter is not. This has been the object of a lengthy opinion of the Legal Service of the Council. The same is true regarding the Screening Regulation that is accompanied by another specific regulation amending the ECRIS and Interoperability Regulations for the same reasons.

Secondly, the proposal for a Regulation Addressing Situations of Instrumentalisation in the Field of Migration and Asylum tabled by the Commission in 2021 after Belarus allegedly manipulated migrants to push them towards the Polish border, initially not considered as part of the pact, has been merged with the Crisis and Force Majeure Regulation.

All in all, the pact is made of 1,425 pages of A4 format that can be consulted here on the Odysseus website.

Table of the 10 instruments that are part of the pact in the large sense

COMMISSION
PROPOSALS		YEARINSTRUMENTS ADOPTED YEAR
First batch made of 4 instruments on Rights of Refugees + Asylum Agency part of the pact in a large sense
1Qualification2016Regulation2024
2Reception Conditions 2016 Directive2024
3Asylum Agency2016 & 2018Regulation 2021/23032021
4Resettlement Framework2016Regulation2024
Second batch made of 7 instruments on Borders + Dublin / Solidarity at the core of the pact in a strict sense
5Screening 2020Regulation ScreeninRegulation Screening2024
6Regulation amending ECRIS & Interoperability Regulations
7Asylum and Return Border Procedure 2016 & 2020Regulation Asylum Procedure
Regulation Return Border Procedure 		2024
8Asylum & Migration Management (including "Dublin IV" and solidarity)2020Regulation AMMR2024
9Eurodac2016 & 2020Regulation2024
10Crisis and Force Majeure 2020Regulation Crisis & Force Majeur including instrumentalisation2024
11Instrumentalisation 2021

The negotiations of the pact

There was a lot of political pressure on the European legislators to adopt the Pact before the European elections of June 2024 to prove to the electorate that the EU can deliver on migration and asylum, crucial issues of the political debates. A failure would have been a signal that the EU cannot manage what is considered as one of the major challenges that may determine the results of the elections to a significant extent in several member States. 

The beginning of the legislative process was marked by a conflict between the Parliament and the Commission because the latter’s proposals were not accompanied by impact assessments, which led the European Parliamentary Research Service to produce its own substitute assessments. To guarantee that there will be progress with the negotiations, the European Parliament and the Council agreed on 7 September 2022 a roadmap foreseeing the organisation of regular meetings between the two institutions to evaluate the progress of the legislative process in view of its conclusion in February 2024. Although  the content of the pact was discussed during three years (September 2020 until December 2023), the bulk of the negotiations took place at the end 2023 after the Council  managed to adopt finally in June 2023 common positions on the proposals for the AMMR and for the Asylum Procedure Regulation. This allowed the start of the trilogues with Parliament and Commission. Negotiations surprisingly accelerated in December 2023 after three days of intense discussions that led to an agreement between the co-legislators on 20 December. 

A coalition of 161 NGOs called upon the members of the European Parliament to vote against the pact by arguing that “it will have devastating implications for the right to international protection and greenlights abuses across Europe including racial profiling, default de facto detention and pushbacks”. There is also a widespread idea that the Council that had defined precisely its red lines, is the “winner” of the legislative process. However, this impression on the outcomes of complex negotiations concerning numerous elements should be cautiously checked to determine if and to what extent it is true. 

The texts agreed did not become available before 9 February once the Coreper confirmed the political agreement with the Parliament. The pact has already been adopted by the plenary of the European Parliament on 10 April with the support of the three main political groups (Centre-right (EPP), Socialists (S&D) and Liberals (Renew)), with a few rebels among them. The formal adoption by the Council is expected to take place within the next few weeks (probably within May 2024). The new instruments will enter into force 20 days after their publication in the Official Journal of the EU expected before the summer 2024, but will start to apply only two years afterwards, so normally around the end of the first semester of 2026. 

Continuity with the past

While the Commission presented the pact as a fresh start, its proposal regarding the successor of Dublin shows on the contrary a perfect continuity with the past. Same as Tomorrow and James Bond, Dublin never dies. The Commission tried in full bad faith to argue that Dublin was abrogated but this is only true from a purely formal legal point of view asRregulation Dublin III 604/2013 is not essentially repealed, but actually copied in the new AMMR. Even if there are a lot of small changes to the variety of criteria determining responsibility and the functioning of transfers (a reason why specialists of the area could use the wording “Dublin IV”), the basic principle that is applicable in practice in most cases does not change: the Member States of first entry remains responsible for the asylum applications introduced on their territory by third country nationals entering the EU for the first time. 

The regulation on screening is more of a novelty, even if it formalises existing Member State practice. Its object is to organise in seven days the identification of persons (identity and nationality, security and public health risk, cases of vulnerability) to orient them to the adequate procedure: asylum (border or normal) procedure or return. One may wonder if the main goal of the legislator is not to ensure that the fingerprints of all persons will effectively be taken and introduced by border Member States in the Eurodac database leading to the  application of the criterion of first entry. One point that will be discussed is the absence of a formal identification decision that people could appeal. The system is premised on the idea that identification is a preparatory administrative act that can be challenged afterwards within the applicable asylum or return procedure. 

Novelties for the future

There are four important innovations introduced by the Pact, particularly a solidarity mechanism embedded in the Dublin system:

1.The system of governance of migration and asylum. The key word is Management in the new Regulation that stands for Asylum and Migration Management Regulation (AMMR). The EU pretends to manage migration and not to suffer anymore passively the flows, being dependent  upon the willingness of migrants and the actions of smugglers. This is exactly what the President of the European Commission meant when she said that “Europeans will decide who comes to the EU and who can stay, not the smugglers. Member States are therefore requested to prepare national strategies  based on a European strategy integrating  the internal and external dimensions of migration and asylum policies.

This interaction between the national and European levels will lead to a kind of method of coordination between the EU and its Member States that the Commission had proposed without success twenty years ago. The European and annual strategies that are part of an “annual migration management cycle” remind the Schengen and the borders policy cycles or even the European Semester annual cycle of economic policy coordination. It becomes clear, as the idea of management appearing in the title of the AMMR indicates, that the EU goes further than adopting legislative instruments in line with its classical function and will start dealing with the implementation of the migration and asylum policies on the ground. Being only at an embryonic stage compared to the European Employment policy that gives a prominent role to the Council tasked by making recommendations to Member States about the implementation of their national policy, it remains to be seen how the annual migration management cycle will develop. One weakness appears already. Except of the classical general monitoring and evaluation clause under article 69 of the AMMR and the monitoring function attributed to the EU Agency for Asylum, there is no reporting and evaluation phases included in the policy cycle. This lacuna contrasts with the Schengen cycle that, based on the Schengen evaluation mechanism leading to recommendations followed up by a monitoring phase to check their effective implementation, involves each year the Schengen Council in a discussion and report about the state of implementation of the Schengen roadmap.

2. The creation of a solidarity mechanism. This is certainly the major novelty as solidarity has been missing for 34 years , i.e. since the adoption of the Schengen and Dublin 1990 conventions that placed the burden of border controls and asylum applications upon Member States located at the external borders without discussion  because these early Conventions incorporated only the views of Northern Western Member States. The legislators made the basic choice of keeping rather than amending the premises of the Dublin system. Therefore, the solution was to inject solidarity. It is well known that the EU tried without success to implement relocations on a voluntary basis. Due to the extremely limited results of this option, the AMMR opts clearly in favour of mandatory solidarity. To accommodate the concerns of Eastern Member States (in particular the Visegrad Group), this mandatory mechanism is built upon flexibility. Member States must implement solidarity, but they are allowed to choose among three types of solidarity: relocation of asylum seekers, financial contributions for projects and alternative measures. It does not seem that this flexibility satisfies Hungary, Poland and Slovakia that continue to oppose the pact just after its adoption, while Lithuania has announced that it would prefer to pay than to relocate. Solidarity is one of the elements that will remain at the core of the political debate. The key question is if the mechanism will produce enough solidarity to convince the border Member States to take over their important legal responsibilities as they must identify all migrants, and proceed at the border in the case of those falling under this procedure. An annual minimum of 30,000 relocations and € 600 million is set by the AMMR, but only the implementation of the system will tell us in the future whether what will be enough. The idea often mentioned to impose a fine of € 20,000 per asylum seeker that the Member States would refuse to relocate does not appear in the text adopted. A controversial element relates to the types of measures that the solidarity contributions can fund. These measures can include the strengthening of external borders, and it will be interesting to see if the Commission will support within this framework the building of walls, contrary to what has been up to date its doctrine regarding the use of European funding. Considering that solidarity measures should aim at fighting irregular migration rather than reinforcing Member States’ asylum systems, NGOs oppose that solidarity measures can be implemented outside the EU in third countries

3. The imposition of border procedures. The idea is to implement asylum and return procedures at the external borders to avoid that migrants can abscond. Border procedures remain an option for Member States, but become mandatory in some cases, such as for asylum seekers whose recognition rate is below the European average of 20%. The Regulations foresee that 30,000 places for border processing must be created in the entire Union divided in the different Member States through a complex distribution key. Asylum procedures, including appeals, should be completed within 12 weeks which is a real challenge knowing how lengthy they are normally in the EU. Free legal counselling (but not assistance or representation ) as defined by article 16 of the regulation on a common asylum procedure will be ensured even at first instance level, that is the processing  before the administration. This is a progress that will need to be evaluated against the fact that the concerned persons will be detained. Detention is precisely the most controversial issue. Even if the Asylum Procedure Regulation obliges euphemistically Member States to require applicants to “reside” at or in proximity to the external border (see article 54, §1), people will logically be detained as the aim is precisely to avoid absconding. This will give rise to litigation as the amended reception conditions directive prohibits automatic detention and imposes the recourse to alternative measures.

For the rest, the Regulation fails to simplify asylum procedures as the least that can be said is that the rules remain extremely complex. It is clear that there will be controversies about the compatibility of some provisions with human rights, in particular regarding the limited time to appeal and the curtailment of automatic suspensive effect.

4. The regulation on crisis and force majeure, including instrumentalisation. This instrument allows Member States to use derogations to some common rules due to exceptional circumstances. Civil society organisations are afraid that this instrument will be abused by some Member States to declare the asylum situation as a crisis. They have also criticised this instrument as they consider the exceptional circumstances as humanitarian rather than a migratory crisis, so that measures should be taken to ensure the basic needs of migrants instead of derogations to basic rules such as the prolongation of the period foreseen for the registration of asylum applications and for the length of border procedures. 

One more episode of a long series 

Rather than a fresh start as it has been labelled by the Commission, the pact is one more episode of a long series. It completes the Common European Asylum System with a third generation of rules after the minimum standards of 2003/2005 and the second generation of 2011/2013 that were meant to finalise it. This set of new rules unplanned by the treaties proves that the asylum policy is far from being achieved and this will still be the case with the pact. 

There is of course progress in favour of more Europeanisation with several elements such as :

  • the adoption of regulations that do not anymore need to be transposed like the previous directives, even if some of their provisions are not detailed enough and will require the adoption of complementary national legislation by the Member States;
  • The procedural autonomy of Member States is reduced with the asylum procedure regulation, but this instrument requires an in-depth analysis to evaluate to which extent these procedure(s) is/are now really common to all Member States; 
  • Asylum becomes progressively a more common policy with the introduction of the coordination method by the AMMR that will allow the EU to enter the area of policy implementation, going far beyond classical legislative harmonisation;
  • The fact that a more or less important part of the funding necessary for the implementation of the pact will come from the EU is a step in the same direction, in particular regarding the provision of legal counselling that could be entirely EU funded as it has been announced. 

Despite these steps towards more EU integration, the success of the pact will depend upon its implementation. This can of course be said about every policy, but it is particularly true in this case. On the one hand, frontline Member States will need to make important investments to develop infrastructures, recruit and train personnel as well as buy technical equipment in order to render functional border procedures. This is an important challenge as the examination of asylum applications under this procedure will have to be finalised within 12 weeks (appeal included!). In addition, return border procedures are also meant to be completed in 12 weeks even though it is difficult to understand why they would function quicker than normal return procedures. On the other hand, the rest of the Member States will have to show enough solidarity even if the levels of solidarity will be discretionary. Discretion emerges as the major rule in a complex game involving several political and administrative players as defined by the AMMR: other than the Commission, the Council will be assisted by two new bodies composed of Member States representatives: a High level Solidarity Forum and a Technical Level Solidarity Forum, the overall being orchestrated by the new function of  Solidarity Coordinator from the Commission. 

As one can see, the adoption of the pact is not the end, not even the beginning of the end, but perhaps the end of the beginning as Churchill said. If its adoption has obviously been a long and difficult step, it is also without any doubt not the last one. It has been rightly described as historical by the President of the Commission and of the European Parliament, in particular due to the adoption of the solidarity mechanism. However, only the future will tell us if this is really the case as implementation of the pact will be crucial. This phase may prove to be as difficult as the adoption phase, if not even more challenging, despite the fact that there will be no transposition phase as almost all instruments adopted are regulations instead of directives.

The EU and its Member States have two years in front of them to prepare themselves before the new regulations will have to be applied in practice in the course of 2026. As announced in a communication of 12 March 2024, the Commission will present a Common Implementation  Plan in June and do gap analyses for Member States in close cooperation with them. They will afterwards have to adopt their own national plan to make sure that everybody is ready to implement the new regulations in 2026. The level of preparation of Member States in view of the operationalisation of the pact and the first years of its implementation will tell us if its adoption corresponds to a real support from their side, or rather to a way to get rid of a legislative package pending since too long. The negative votes of Poland and Hungary and the abstentions of Slovakia and the Czech Republic in the Council when it adopted the instruments of the new pact on 14 May are not a good sign. It appears that the pact has not allowed to rebuild trust with the Member States of the Visegrad group. It remains to be seen if this will lead them to obstruct the implementation of the solidarity mechanism in the future

Two scenarios for the near future plus one for the long term

The first scenario is success. Border procedures function miraculously. Secondary movements diminish.Trust among Member States is re-established based on the pact that is viewed as a compromise serving the interests of all of them. Solidarity among the Member States  becomes effective. The latent climate of crisis around migration and asylum issues diminishes progressively. Finally, widespread violations of EU law with a lack of reception conditions, lasting internal border controls, and even pushbacks in violation of the principle of non-refoulement come to an end.

The second is disaster. Borders procedures are unmanageable within 12 weeks. Inhuman and degrading reception conditions in centres located at the borders mirror the Greek precedent of the hotspots. Litigation about de facto detention increases and renders the political debate more difficult. Secondary movements perpetuate, and solidarity is not applied. Member States distrust each other more than ever contrary to the logic of a pact. Disrespect for EU law continues and Northern Member States envisaged to reintroduce internal border controls within the Schengen area against frontline Member States.

Of course, no one knows which scenario will become real, and reality may also well be in between. But what will happen is finally more Europe. Under the first scenario because the pact is only a first step towards more integration. Under the second scenario, Member States, after another deep crisis that could be worse than that of 2015, will eventually realise and have to accept that only the EU level can allow them to manage  – as much as this is possible in the real world – the phenomenon of migration and asylum. 

Time will come when the need for a single asylum space will be recognised. A space where financial solidarity would be implemented through the EU budget, rather than on the basis of intergovernmental agreements between Member States like under the pact. A space where there would no longer be a need for a Dublin-like responsibility determination mechanism, and where issues such as internal transfers between Member States of asylum seekers or illegal migrants, secondary movements and internal border controls would simply lose their relevance because the area of freedom, security and justice would have become truly common. Transforming Frontex and the EUAA into federal-like agencies, thus centralising to a certain extent the provision of public goods like border control and asylum, will be at the core of this transformation that has already started to take place, surreptitiously but surely. Indeed, Frontex and the EUAA steer their way year by year, month by month, day by day, thought by thought as Leonard Cohen says. And post by post, as it did about the proposals for the pact that have been the object of a book, the Odysseus Network will contribute to the debate by a series of publications on its blog until the early fall 2024 paving  the way to a European conference about the pact planned for 17 and 18 October 2024.

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