The New European Pact on Immigration and Asylum
can it respond to future migration challenges?
Catherine WIHTOL DE WENDEN
Fondation Robert Schuman 05 October 2021
In September 2020, the European Commission, through its
Chair Ursula von der Leyen, launched the third European Pact
on Immigration and Asylum, The first one dates from 2008
and the second from 2014, i.e. one every six years. This
pact, like the previous ones, is not a treaty but a consensus
commitment on common principles for the governance of
migration and asylum in Europe. In the context in which
it is set, it requires more compromise than the previous
ones: the Syrian crisis of 2015 revealed the lack of solidarity
between Member States regarding the reception of Syrian
refugees, the lack of trust between States regarding the
proposals made by the European Commission to “share the
burden”, with Jean-Claude Juncker's quotas and the divide
between Eastern and Western Europe between the socalled Višegrad countries
(Poland, Hungary, Czech Republic, Slovakia) and Western Europe,
notably Germany, which received more than one million asylum seekers in 2015.
It will therefore take more time for the new Pact to be adopted
unanimously by the European Council and undoubtedly,
more negotiations and even bargaining. In the current
context, following the US withdrawal from Afghanistan
and the Taliban takeover, which raises concerns about the
arrival of new Afghan refugees, does the new Pact offer
the necessary instruments to formulate a common and
effective response to future migration challenges?
WHAT ARE THE MAIN FEATURES OF THE
EUROPEAN PACT 2020?
The Pact sets the goal of "a fair and reasonable immigration
policy", perhaps drawing on the subtitle of the 2018
Marrakesh Global Compact, "For Safe, Orderly and Regular
Immigration". It sets out a number of key points:
- Harmonising asylum law by reviewing, in particular, the
Dublin Regulation and asylum applications from countries
where asylum seekers have obtained less than 20%
positive responses;
- organising compulsory solidarity decided by the European
Commission in the event of a crisis;
- speeding up border deportations and make them more
effective, in particular by activating readmission agreements
with third countries in exchange for closer cooperation on
development;
- strengthening external border controls through increased
resources for Frontex. A screening process is scheduled as
a precondition for entry into the European Union.
- not prosecuting humanitarian organisations, allowing
them to enter ports, and welcoming migrants rescued at
sea.
Although European States agree on tighter control of
borders and deportation to the countries of departure or
transit, it is not the case for solidarity. The European Pact
aims to put an end to the Dublin system, but it will continue
to exist, probably under a new name that has not yet been
defined. We should remember that the Dublin I agreements
(1990) sought to counter “asylum shopping” consisting of
asylum seekers applying to several European countries and
choosing the one with the best terms. From now on, one
can only apply for asylum in one country upon arrival.
Under the Dublin II agreements (2003), asylum seekers
who set foot in a European country were obliged to apply
in that country. This created a divide between the southern
European border countries and the rest of Europe. As people
rarely arrive in Europe via Sweden or Finland, this meant
that Southern Europe became the entry point for asylum
seekers who, if they had been identified according to their
fingerprints in these countries (Greece, Italy, Spain, Malta),
had to have their application examined in these countries
where positive responses were rare (Greece in particular),
procedures were long and the employment prospects
for settling once refugee status had been acquired were
unattractive or non-existent
This tendency of countries in the North, West and East of
the Union to offload asylum onto the countries of Southern
Europe has had political consequences leading, for example,
to the rise of the extreme right in Italy (with the League)
and in Greece (with Golden Dawn). But this system also
aimed to promote the previous "burden sharing" of reception
between European countries (Germany and Austria, which
had received many refugees and migrants after the fall of
the Berlin Wall), while strengthening the means of border
control and pressure on the EU's neighbouring countries.
In addition to military and computerised border control
instruments, the main instruments used have been
(FRONTEX, SIVE – Integrated External Vigilance System –,
EURODAC – fingerprinting of incoming asylum seekers, but
also of identified undocumented migrants and delinquents),
deportation agreements with countries on the southern
shore of the Mediterranean and beyond, outsourcing of
European border control to non-European countries, return
and development policies.
The adoption of the new Pact, which requires unanimity in
the Council, therefore seems to have little chance of success,
given the position of the Višegrad countries, as seen in 2015.
In addition to their very strong opposition to solidarity and
the reluctance of countries such as Austria, Denmark, for
example, has adopted very radical positions against asylum,
rejecting the EU's common immigration and asylum policy
and seeking to process asylum applications remotely in the
countries of departure or transit, as announced by Denmark
in summer 2020. The presidential campaign in France and
the negotiations for the formation of a coalition in Germany,
following the elections of 26 September, may also influence
the timing and success of the new Pact.
The associative world has spoken out against the
Commission's proposals on entry screening; restrictions
on the examination of asylum applications from countries
with a very low agreement rate; the continuation of the
Dublin agreements and the lack of reflection on legalising
entry for work reasons, which would reduce the demand for
asylum from countries that are not at war; the strengthening
of border control instruments such as Frontex; and the
"peripheralisation" of asylum management, in concentric
circles: first Southern Europe, then the Southern
Mediterranean, then Sub-Saharan Africa and the Near and
Middle East. In fact, the Pact focuses more on asylum than on
immigration and does not deal much with labour shortages
(highlighted by Covid-19 and Brexit) and integration (which
is not a European competence, but a national or local one by
virtue of the subsidiarity rule).
The European Pact on Immigration and Asylum aims to build
trust and create a new balance between responsibility and
solidarity. It recommends screening at entry with EURODAC
registration (some southern European countries have not
always registered fingerprints of newcomers, letting them
go abroad). It provides for a flexible contribution by Member
States, so as not to coerce, through relocations to other
host countries and the sharing of return costs between
European States. It also provides for the cooperation of third
countries, an accelerated asylum procedure for applicants of
nationalities with a recognition rate of less than 20% (which
presupposes a high degree of homogeneity of profiles, which
is not always the case within the same nationality).
The Pact also seeks to develop a global approach through
a common return system, a strengthening of control
instruments (border and coast guards) with a European
coordinator in charge of returns. It encourages legal
migration to attract talent and proposes a comprehensive
action plan on integration and exclusion. The role of EASO,
renamed the European Union Agency for Asylum, is to be
strengthened to better harmonise the rates of acceptance
and refusal of asylum applications between European
countries, which currently vary due to the sensitivities and
diplomacy of each State, which are anxious to preserve their
sovereignty in this area.
Finally, the Pact states that humanitarian sea rescue NGOs
should not be turned away and should not be criminalised,
and that they should have access to European ports.
The Pact is not a treaty: it has no binding effect on those who
sign it. Most observers point to the lack of radical change
announced, the continuation of the Dublin system and the
"hot spots" whose end was planned, the dependence on
failed solutions (return and development policies) to contain
migration, the abandonment of a binding distribution of new
arrivals and the insistence on the strategy of dissuasion with
many resources devoted to control, of little effect, with no
prospect of putting an end to illegal immigration, whereas
only the opening of legal channels for labour migration
seems to be an antidote to the tragedy of crossings, deaths
at the borders and the fortunes of smugglers.
The Pact focuses on asylum more than on immigration,
given the international context in which Europe finds itself.
According to the experts, the points that are likely to succeed
are the regulation concerning asylum (strengthening of
the EASO Agency), the European Blue Card on skills and
talents, already adopted by the European Parliament on 15
September 2021, to facilitate the employment of qualified
non-European nationals within the European Union. On the
other hand, the end of the Dublin system seems to have been
put off until later. Finally, integration, which is mentioned, will
continue to be dealt with in the framework of subsidiarity, i.e.
left to the competence of each Member State. The adoption
of a common policy on flows requires a change in mentality
within the Union and an approach linking immigration and
asylum.
COULD THE PACT HANDLE A POTENTIAL AFGHAN
CRISIS?
The President of the European Commission, Ursula von der
Leyen, recalled that Europe has, with the Pact, an instrument
to deal with the arrival of Afghans at European level.
Following the Taliban takeover of Kabul on 15 August 2021,
some 100 000 people had left Afghanistan, repatriated by US
forces to their bases in Germany, Spain, Italy and Kosovo,
or by European flights which had repatriated some of those
employed by those countries.
Europe sent troops to Afghanistan, used interpreters
and other local staff, and allowed many NGOs to help the
population on the ground, while the United Nations High
Commissioner for Refugees (UNHCR) tried to fulfil its
mission of protecting the right to asylum by being present
in Afghanistan, Iran and Pakistan. Afghanistan has produced
the largest number of refugees since the beginning of the
Soviet invasion in 1979. Most of them have taken refuge,
90% of them, in neighbouring countries, notably Iran and
Pakistan, whose language they sometimes share (which
explains the attraction of young Afghans for the United
Kingdom where there is a large Pakistani population), but
also in Tajikistan or Uzbekistan. As in many international
conflicts, the poorest migrate within their own country (with
332,000 new IDPs since 2021, including 100,000 since
August 2021). 22,000 people have sought protection in
neighbouring countries since the beginning of 2021. Only
a minority are heading to Western countries. In terms of
stable populations (stocks), there are 3.5 million IDPs and
2.2 million Afghans in neighbouring countries. The UNHCR
estimates that there are 500,000 potential internal refugees
and 300,000 departures to Iran and Pakistan, and Europe
expects an additional 500,000 Afghan asylum seekers in
2021.
According to the European Asylum Agency (EASO), 123,000
Afghan asylum seekers have arrived in Europe since August
2021. 50% of them obtain protection in Europe, either
humanitarian or statutory as refugees under the Geneva
Convention. Since 2018, France is the country in Europe
that receives the largest number of Afghan asylum seekers
(more than 10,000 per year), partly due to the transfer of
asylum seekers from one European country to another, once
the asylum channels in the first country of arrival (Germany
most often) have been exhausted. Reception after the
required time limit, or the obligation, instead of applying in
the first identified European country where one has set foot
(the Dublin "one stop one shop" system as in the case of the
Afghans in Calais).
The profiles of the asylum seekers are diverse: intellectuals
and scientists left as soon as the Soviet invasion of 1979.
Then young Afghans arrived, sometimes isolated minors,
having travelled the Balkan route, often on foot. Of the
new arrivals, 45% are women, families, with a third of
them children. Many of them already had links with Europe
(spouses of nationals) and held "risky" jobs: lawyers,
journalists, artists, members of associations, although the
level of education was low for some of them, particularly
in terms of language learning (not financed during the
asylum application). Some of the civilian auxiliaries or locally
recruited civilian personnel who helped European countries
during their military presence in Afghanistan have also been
repatriated. But the closure of European embassies blocks
the departure of people in danger of death in their country.
On 16 August, French President Emmanuel Macron said that
"France is doing and will continue to do its duty to protect
those who are most at risk", while recalling "the need to
protect against significant irregular migration flows". OFPRA
decisions have been blocked since mid-August and there is no
longer any question of sending rejected asylum seekers back
to Afghanistan: no more so-called "Kabul" jurisprudence,
where they were sent back to the Afghan capital, which was
considered "safe" unlike the rest of the country.
In Germany, Angela Merkel acknowledged that she had
underestimated the Afghan situation, reminding us that we
should not repeat the mistakes of the Syrian crisis: avoid
a new influx of refugees into Europe and help those in
danger to find safe places in the vicinity of Afghanistan. This
is a nuanced statement, to say the least, compared to the
figure that the German chancellor had forged for herself by
welcoming the Syrians in 2015: "wir schaffen daß (we can
do it)". In Turkey, the country hosting the largest number
of refugees in the world (around 5 million in total, of which
3.7 million are Syrians), although the reception of Syrian
refugees has served Turkish diplomacy in its relations with
Europe (March 2016 agreement), a wall has been built over
100 km on the Iranian border and the population is showing
its discontent.
It is therefore likely that we will not see a new version of the
Syrian crisis, as fewer Afghans are taking the western route
than the Syrians did. The warning of a great migration wave
brandished by populist parties in Europe will not happen,
but the European Pact on Immigration and Asylum will be of
little help. The reinforced return policy is not feasible towards
Afghanistan, as it seems difficult to envisage a filtering at the
entry of those who would not fit the profile of refugees. It
seems difficult to encourage, through aid and agreements,
an infinite outsourcing of the settlement of refugees to Iran
or Pakistan, as Europe did with Turkey in 2016, because
Iran and Pakistan are not interlocutors of the same nature
as Europe. Europe is not in a position to impose "burden
sharing" among European States, as the most recalcitrant
were not sanctioned in 2015. Once again, the contradictions
between the security approach that dominates European
governments, the lack of solidarity between States and the
reminder by the head of European diplomacy, Josep Borrell,
of the duty of European countries to welcome immigrants
are now looming on the horizon. The European pact for
immigration and asylum tabled in 2020 by the European
Commission does not seem to be an effective tool and the
absence of a common asylum policy, which would be so
necessary, is cruelly lacking[1].
Catherine Wihtol de Wenden
Director of Research Emeritus at the CNRS
(CERI, Sciences Po)
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