“Migration is a European challenge and all of Europe must do its part” [1] said Ursula von der Leyen in its speech on the 16th of September 2020.

As she put forward, migration is a complicated issue in Europe, and needs to be dealt with in a sustainable way. This is why on the 23th of September, Ylva Johansson, Commissioner for Home Affairs, and Margaritis Schinas, Vice President for Promoting our European Way of Life, released the New Pact on Migration and Asylum that is meant to reform the previous failed system.

 Migration and asylum issues have been very significant for the EU since the 2015 crisis. This crisis questioned EU strength, and its capacity to rise up and talk with the same voice on this internal and external matter. It was more a political crisis rather than a migratory one[2]. Hence, the migration and asylum issue is not only about humanitarian sensitivity, but it is also about the EU as a whole, its strength on the international scene. This is why it became a sensitive issue, for which the EU is still looking for solutions. The Juncker Commission responded to the 2015 crisis and tried to implement a system to manage the important influx of migrants. However, this crisis revealed the weakness of a European asylum and migration system that could not deal with the pressure imposed by the urgency of the moment. It revealed a European Union that is jammed by Member States’ disagreements and incapacity to be united.

Ursula von der Leyen made the migration and asylum issue a cornerstone of her mandate. She is willing to propose a New Pact on migration and asylum that would get rid of the Dublin regulation. She claimed that this pact will be more “human and humane”[3]. However, the critics of this newly proposed pact show that she, and the two commissioners that carried the project, are tied up by Member States’ wills.

Migration and asylum: a European gridlock

Shared competencies between the European Union and Member States

In the migration and asylum area, the EU and Member States share competencies. Indeed, the European Union sets common standards thanks to many regulations and directives, but the effective implementation of asylum and migration policies is the responsibility of Member States, which must ensure that their national legislation complies with EU law and international agreements[4].

For instance, the European Union has tried to harmonize Member States’ laws on asylum with the creation of the Common European Asylum System (CEAS). It sets the minimal rules in the asylum domain for Member States regarding the processing of asylum claims and people seeking protection. The CEAS is built on several directives and regulations[5]. One of them is the revised, and most controversial, Dublin Regulation. It sets the general rule for the repartition of asylum seekers in Member States. The Dublin regulation states that an asylum claim needs to be processed in the first country of arrival. As we will discuss later, this system has been criticized because it places the burden of asylum claims’ processing on the countries that are at the external borders of the EU, such as Greece, Italy, Spain or the Eastern European countries.

Besides, the Treaty of Lisbon states that migration policies in the European Union rely on the solidarity and responsibility sharing principles (article 80 of the FUE treaty)[6]. As a result, there is a European legal framework to manage migration and asylum.

So why migration and asylum became an issue for the EU?

First of all, the answer lies in the fact that Member States construct their own migration and asylum policies on the basis of this legislative framework. Indeed, if regulations are binding legislative acts, directives are legislative acts that just set up objectives and let Member States implement those objectives as they want. Thus, each Member States’ policies on migration and asylum is different, creating obstacles in building a common and efficient migration and asylum system. Besides, even if regulations are binding, the delay to sanction States that would not respect them is too long, and so they are less effective. For example, Hungary, Poland and the Czech Republic were condemned by the European Union Court of Justice, for having refused to participate in the relocation system of 2015 (that was voted by the European Union), only the 2nd of April 2020. It came five years after the crisis, when the relocation system was not implemented anymore[7]. Therefore, it feels like Member States can behave as they want to, with impunity.

Then, even if the EU has tried to build a common system, asylum and migration are fields where Member States’ legislation prevail. The sharing of competencies creates a gridlock in the implementation of a common European system. The EU needs Member States to be on the same page in order to move forward on its migration and asylum policies, which is far from being the case.

The Dublin Regulation: a showcase of the European asylum system’s failure

The Moria camp’s fire on the 9th of September was a shocking reminder of the EU system’s failure. Indeed, this regulation that was created to avoid asylum shopping[8], developed in fact inequalities among Member States in managing migrants. The flaws of this regulation appeared during the 2015 crisis, when the European Union was suddenly overwhelmed with migrants, especially Eastern and Southern Member States. It led to the closure of borders, such as in Hungary, fostering mistrust and resentment among Member States. Thus, the countries that are at the EU external border became more and more crowded with migrants, without having enough resources to take care of them. It resulted in the apparition of camps where living conditions are awful, and human rights not respected.

The failure of the Dublin regulation showed the flaws of a migration and asylum system which relies on the solidarity principle to relocate migrants, that would be granted asylum, or to return them to their country of origin. However, this principle did not survive Member States’ competing interests. Besides, countries that were hosting migrants became overrun. For example, in 2019 “The ratio between decisions in the Dublin procedure and asylum applications filed was 20%, which could mean that a high number of applicants for international protection continued to make secondary movements to EU+ countries.”[9]. It gives the evidence of a system that failed to manage properly the influx of migrants.

The Visegrad group, composed of Poland, Hungary, Czech Republic and Slovakia, refused to relocate migrants at all, and pushed for a voluntary solidarity. Southern countries such as Greece, Italy or Spain, which were hosting refugees and felt left alone facing this responsibility, claimed that the solidarity principle should be mandatory, and that the Dublin regulation was unfair.  This lack of cooperation between Member States fragilized the European Union as a whole.

This is why the Juncker Commission tried to respond to the crisis by implementing several instruments to manage the influx of migrants. This response was defined as an externalization of the border policy, because the measures put in place were mainly about protecting the external border and to prevent irregular migration. In order to do so, the Juncker Commission relied on Frontex (the European Border and Coast Guard Agency), but also on third party countries agreements. For instance, an agreement was made with Turkey: in exchange for development funding, it would host migrants and prevent them to cross the Mediterranean. However, if this solution was good to relieve pressure on European host countries, it became also a political tool for blackmailing. Indeed, on the 27th of February, Turkish President Recep Tayyip Erdoğan started to let migrants enter the EU, breaking the EU-Turkey agreement. This decision was made following the death of 33 Turkish soldiers by a Syrian government airstrike. It was meant to draw attention to the Syrian crisis and its consequences, but also to put pressure on the EU to continue its funding[10].

Therefore, the European framework to manage migration, that was done in the urgency of the crisis, revealed flaws creating tensions among Member States. This is why it needed to be reformed.

An ambitious New Pact that stops where Member States sovereignty begins

In the last five years, the influx of migrants in Europe substantially decreased[11].

It is then the time to think about a European migration and asylum policy for the long term. Before proposing a new pact on migration and asylum, Ylva Johansson and Margaritis Schinas traveled in Member States to gather their opinion and aspirations for the new European framework. This approach aimed at creating a more inclusive and sustainable system that will fit all their interests. However, trying to fit all demands can lead to difficult compromises and gridlock to effectively create a more humane migration and asylum system.

The New Pact on Migration and Asylum: finding the equilibrium between Member States’ interests

In the State of the Union, von der Leyen promised a more “human and humane system”[12]. In framing the New pact, Ylva Johansson and Margaritis Schinas had to find a balance between a humane approach, respecting human rights and human dignity, and a security approach, protecting the external borders. Indeed, the security approach is the only point of consensus between Member States, but some organizations of the civil society, such as Oxfam and CNCD 11.11.11[13], call for a more humane approach.

First of all, the New Pact plans a solidarity mechanism through three options of contribution[14]:

  • Relocating migrants
  • Return sponsorship, that is to say “a Member State takes over the responsibility for returning a person” that would have been denied international protection. This return procedure must take place in the 8 months following the decision, otherwise the Member State in charge will have to relocate the individual on its territory.
  • Operational support, like supporting the construction of shelters, providing coast guards and so forth.  

The New Pact creates tailored responses for three types of situations:

  • “Disembarkation following search and rescue operations”[15]: in this case, Member States will be able to choose between the three options of solidarity. A “pool” of voluntary States will be created for the relocation of migrants. Besides, NGOs that participate in the rescue of migrants in the sea will not face lawsuits.
  • “Pressure or risk of pressure on a Member State’s migration management system” [16]
  • “Situations of crisis” [17]

These three situations call for different responses. For instance, if a Member State is under pressure because of a large influx of migrants, it can trigger a “mandatory solidarity mechanism” [18]. In this case, the Commission organizes the management of the crisis. A repartition scheme, that is calculated by taking into account 50% of the GDP and 50% of the population, will determine the fair share of Member States[19]. On this basis, each one can choose to relocate or to sponsor returns, and also to give operational support. This mechanism is supposed to be implemented by a binding act, which every Member State would have to respect. Therefore, this mechanism is tailored to respond to the demands of Southern European countries, that were denouncing the lack of support from other Member States. Choosing between relocation or sponsored returns is also a way to fit with the Visegrad group’s refusal to accept relocated migrants. Besides, if 30% of the objectives for relocation and returns are not reached, a correction mechanism, that will impose new constraints, will be put in place[20].

Regarding the returns, in case a person would not be granted international protection, the Commission wants a better implication of Frontex[21] Besides, readmission agreements will be fostered by trade, development or visa incentives. A network of experts will be put in place to help Member States in the return process.

In order to make the external border control more effective, the New Pact wants a screening procedure of no more than five days, including the registration of fingerprints in the EURODAC[22] system, as well as health and security checks. Furthermore, for migrants deemed unlikely to obtain international protection, the asylum application will be processed at the border within twelve weeks[23]. As for the Dublin regulation, it will be revised. The country responsible for the application may be the country where a migrant has family ties, where he or she has worked or studied, or the country that issued the visa. Otherwise, the country of first arrival will remain responsible for the application[24]. These propositions are made in order to avoid crowded camps where human rights and human dignity is denied.

Therefore, this pact is very focused on solidarity and returns. Ylva Johansson said during the press conference, held on the 23th of September, that this focus on returns is a way to improve a domain where the EU and Member States were not efficient. Besides, it helps to diminish the pressure on Member States of first arrival. However, this pact is criticized for having focused its strategy on preventing migrants to come or stay in Europe, instead of finding sustainable solutions to face a structural immigration that has become a European reality.

An already controversial pact: is it doomed to fail?

As soon as the New Pact was announced by the Commission, critics burst. Indeed, trying to find compromises between different and opposed interests revealed to be a tough game, and the New Pact is denounced as a patchwork of previous policies rather than an ambitious reform of the European migration and asylum system.

For experts and NGOs, this New Pact is too much focused on security approaches. According to Oxfam, the Commission “bows to anti-migration governments” [25], instead of having an ambitious and humane New Pact. Indeed, for this NGO, the propositions, such as the fast pre-screening procedure, or the development of partnerships with third party countries, will create more harm than solutions. As for the CNCD 11.11.11, “The EU’s new Asylum and Migration Pact draws no lessons from the past”[26]. The new system does not propose sustainable solutions. Instead, it privileges returns at the expense of sustainable hosting strategies that would prevent tragedies, such as the one of the Moria camp. For them, “The announced change of the e Dublin Regulation is just correct in name, as the first countries of arrival will remain responsible for new arrivals”. Indeed, if new criteria are put in place, the overall majority of migrants are new on the continent, and so, they will become the responsibility of the first country of arrival. For Catherine Withol de Wenden, migrations are a structural phenomenon. Hence, the European Union will experience steady arrivals of migrants, but still, it will have to manage them. This is why the EU needs to create sustainable strategies to manage the reception of migrants, such as integration policies, instead of choosing rejection strategies[27].

Besides, CNCD 11.11.11 regrets that the Commission postponed the issue of legal migration to 2021, since it needs to be a significant part of the EU strategy regarding migration. A lot of irregular arrivals are caused by the fact that few legal immigration pathways exist in the EU. Therefore, some migrants use irregular routes in order to be able to make their claim in the EU. As Luca Jahier[28] said, the EU should guaranty “different legal pathways for populations in distress, such as resettlement programmes or humanitarian visas”[29]. It concerns also the labor market. As a matter of fact, a lot of irregular migrants apply for asylum, not because they are persecuted, but because it is the only way to attempt to enter the EU labor market. Therefore, along with welcoming high skilled workers, Member States and the EU should create others legal pathways for non-European workers. As the MEDAM Assessment Report puts it, “a sustainable asylum and migration policy needs both ingredients – ‘closing the back door’ of irregular immigration and ‘opening the front door’ of regular migration into labor markets”[30]. Answering this critic, Margaritis Schinas claimed that this matter has not been forgotten. It needs to be separated from the irregular migration issue. He also highlighted that “Legal migration is and always will be the voluntary prerogative of Member States, but it is one that can be supported by an EU framework and financing”[31]. Therefore, this issue will also depend on Member States’ interests. Besides, as we have demonstrated before, legal immigration must be linked to irregular migration, since both are interconnected. Finding solutions for one could solve the other.

As for some Member States, the New Pact does not give enough guaranties. Hungary expressed concerns regarding the security management of the external border with such propositions, whereas Giuseppe Conte, the chief of the Italian government is skeptical regarding the real and effective implementation of this New Pact. France and Germany were the sole supporters of this New Pact, saying that it was a step forward towards more solidarity[32]. Rational hopes or fantasy? Time will tell, but this pact will face lots of challenges for sure.

The first one will be the endorsement by the European Parliament and the Council of the European Union. Without the approval of both of them, no legislative acts can be implemented, and so no Pact can see the light of day. However, as the number of critics since the release of the New Pact shows, this legislative process promises to be complicated. As Jean Quatremer puts it, when this migration package[33] will be discussed and revised by the States, we can fear that “only the most repressive aspects will remain”[34].

To conclude, this New Pact on migration and asylum, by trying to fit with the competing Member States’ interests, proposed a quite complex scheme. Now, one question remains: will it be sustainable? Indeed, the solidarity options are relevant “to balance out competing interests”[35] of Member States. However, relocating migrants is still an important matter, because without relocation, countries of first arrival are overwhelmed. Therefore, this scheme needs enough States that pledge for hosting refugees. If a majority of countries opt for the “return sponsorship” option, first countries of arrival will face the same issue as before: how to manage the integration of migrants that are granted international protection?

According to Schinas, this attempt to find a balance was made because “It is not the case that for some to win, others must lose. That is not – and never was – what Europe is about”[36]. Indeed, the European Union rests upon Member States which all have different interests. Its aim is to make all these interests work together. However, “The problems we see now on migration (…) are not because of Europe but because of the lack of Europe”[37]. Indeed, to make the European migration and asylum system evolve, and become more humane, Member States need to take a step forward and rise above their own interests for the sake of migrants, and above all, for the sake of the European construction. This breakthrough was experienced during the coronavirus pandemic when Member States launched “an economic recovery fund, funded by joint bonds based on the EU budget”[38]. An evidence that cooperation is not impossible.

[1] von der Leyen, Ursula, « State of the Union 2020”, European Commission, 2020, p.21

[2] According to Yves Pascouau, a researcher specializing in European immigration issues, « No, there is no migration crisis (…) The crisis today is political »

Free translation of the author « Non, il n’y a pas de crise migratoire (…) La crise est aujourd’hui d’ordre politique », Campistron, Marie, « Il n’y a pas de crise migratoire, mais une crise politique », L’OBS, 25 June 2018

[3] von der Leyen, Ursula, « Let’s make change happen: op-ed article by Ursula von der Leyen, President of the European Commission”, European Commission, 20 September 2020

[4] Apap, Johanna, et Radjenovic, Anja, « Briefing – Les politiques de l’Union – Au service des citoyens : La question migratoire », EPRS – Service de recherche du Parlement européen, Juin 2019, p.3

[5]Migration and Home Affairs, « Common European Asylum System”, European Commission, 2020

[6] Schmid-Drüner, Marion, « Immigration policy », European Parliament, 2019

[7]François, Jean-Baptiste, « Pacte européen sur les migrations, un projet dans l’impasse », La Croix, 12 June 2020

[8] “The phenomenon where an asylum seeker applies for asylum in more than one EU State or chooses one EU State in preference to others on the basis of a perceived higher standard of reception conditions or social security assistance.”, European Commission, “Asylum shopping”, European Commission, 2020

[9]Free translation of the author, « Le rapport entre les décisions en procédure Dublin et les demandes d’asile déposées était de 20 %, ce qui pourrait signifier qu’un nombre élevé de demandeurs d’une protection internationale ont continué d’effectuer des déplacements secondaires dans les pays de l’UE+ », European Asylum Support Office, « Rapport de l’EASO sur la situation de l’asile 2020 », EASO, 2020, p.15

[10]Harris, Chris, “Aurope’s migrant crisis : Why Turkey let refugees head for EU and the link with Syria”, euronews, 4 March 2020

[11]BBC, “Europe migration : EU plans mandatory pact to « rebuild trust””, BBC News, 23 September 2020

[12] von der Leyen, Ursula, « Let’s make change happen: op-ed article by Ursula von der Leyen, President of the European Commission”, European Commission, 20 September 2020

[13] “The National Center for Development Cooperation (CNCD-11.11.11) coordinates the voice of 90 Belgian international solidarity NGOs and thousands of volunteers” 

Free translation of the author : « le Centre national de coopération au développement (CNCD-11.11.11) coordonne la voix de 90 ONG belges de solidarité internationale et de milliers de volontaires », CNCD 11.11.11, “Le CNCD-11.11.11 en bref», CNCD 11.11.11, 15 October 2017

[14] European Commission, “Migration: New Pact on Migration and Asylum”, European Commission, September 2020, p.4

[15] Ibid

[16] Ibid

[17] Ibid

[18] AFP Infos Françaises, “Politique migratoire : Bruxelles dévoile sa réforme sous le feu des critiques », EUROPRESSE, 23 September 2020

[19] European Commission, “Migration: New Pact on Migration and Asylum”, European Commission, September 2020, p.11

[20] Ibid

[21] “Frontex, the European Border and Coast Guard Agency, is an essential part of Europe’s efforts to safeguard the area of freedom, security and justice (…) Frontex monitors what is going on at the external borders, where support may be needed and how to react”, Leggeri, Fabrice, “Foreword”, Frontex, 2020

[22]“EURODAC (Identification of applicants) helps; by matching fingerprints to make it easier for EU States to determine responsibility for examining an asylum application by comparing fingerprint datasets. Since its creation in 2003 ; EURODAC has been used for asylum purposes only: when someone applies for asylum; no matter where they are in the EU or in any of the countries participating in this cooperation; their fingerprints are transmitted to the central database”, European Commission, “EURODAC (European Asylum Dactyloscopy Database)”, European Commission, 4 August 2020

[23] Agence Europe, “Entre fermeté et solidarité, la Commission cherche un chemin sur la réforme de l’asile et de la politique migratoire », Agence Europe, 23 September 2020

[24] Charente Libre, “Migrants : l’UE serre la vis », EUROPRESSE, 24 September 2020

[25]Oxfam France, « Nouveau Pacte européen d’asile et migration : à la recherche d’un consensus, la Commission européennes s’incline devant les gouvernements anti-migration », Oxfma France, 23 September 2020

[26]CNCD 11.11.11, “Le Pacte Européen sur l’Asile et les Migrations ne tire aucune leçon de la « crise migratoire » », CNCD 11.11.11, 24 September 2020

[27] Withol de Wenden, Catherine, “Un nouveau pacte européen sur l’immigration et l’asile pour répondre au « défi migratoire » », Fondation Robert Schuman, 25 November 2019

[28] President of the European Economic and Social Committee

[29]Free translation of the author, “d’autres filières de migration légale vers l’Union (…) par exemple des programmes de réinstallation ou des visas humanitaires », François, Jean-Baptiste, « Pacte européen sur les migrations, un projet dans l’impasse », La Croix, 12 June 2020

[30] Kiel Institute for the World Economy (IfW), and Mercator Dialogue on Asylum and Migration (MEDAM), “2017 MEDAM Assessment Report on Asylum and Migration Policies in Europe – Sharing responsibility for refugees and expanding legal migration”, MEDAM, 2017, p.12

[31]Schinas, Margaritis, “Speech by Vice-President Schinas on the New Pact on Migration and Asylum”, European Commission, 23 September 2020

[32] Réseau EURACTIV, “Le nouveau pacte migratoire fait des vagues au sein du navire européen », EURACTIV, 24 September 2020

[33] It must be adopted by a qualified majority (55% of the States representing 65% of the population)

[34] Free translation of the author « On peut craindre qu’une fois passés à la moulinette des Etats, qui doivent adopter ce paquet à la majorité qualifiée (55% des Etats représentant 65 % de la population), il ne reste que les aspects les plus répressifs », Quatremer, Jean, « Droit d’asile : Bruxelles rate son « pacte » », Libération, 22 September 2020

[35] Schinas, Margaritis, “Speech by Vice-President Schinas on the New Pact on Migration and Asylum”, European Commission, 23 September 2020


[37] Ibid

[38] Ibid

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