The New Pact on Migration and Asylum is neither new nor daring in its approach, argues Angeliki Dimitriadi. Instead, it is pragmatic in acknowledging and reinforcing the reality of a Union moving further away from solidarity, between member states but especially towards refugees.
Angeliki Dimitriadi, The Hellenic Foundation of European & Foreign Policy (ELIAMEP)
On September 8, 2020 several fires broke out in the Moria camp on the island of Lesvos, destroying completely the Reception and Identification Centre (RIC) that sheltered approximately 3,000 migrants. The remaining 9,000 had spent the better part of the past year(s) in makeshift or bought tents on the olive groves surrounding the RIC.
The humanitarian crisis in the Greek Reception and Identification Centres, like Moria, is the result of a chronic, inflexible European and national immigration policy. The priority, and rightly so, was the search for suitable accommodation and the transportation of unaccompanied minors. In less than a month, 400 children were moved from the island to the mainland while Member States committed to undertake relocation of those deemed vulnerable in Moria, including the children. The pledges were enthusiastically received but the overall speedy resolution raised some fundamental questions. If such transfer was feasible, why had it not taken place before?
In the aftermath of the fire, a round of public condemnation ensued regarding the conditions of reception in Moria, calling for an end to the camps on the islands. The highly anticipated New Pact on Migration and Asylum, already postponed thrice, was touted as the beginning of a new pragmatic approach to European migration and asylum policy. Yet, not all is new with the Pact. In fact, many elements of the past five years seem to have found their way into the proposals, replicating often unsuccessful policies.
The Multiplication of the Hotspot Approach
One of the main lessons from Greece and Italy that seems to have found a way into the Pact is the hotspot approach. The hotspot approach first appears in the Agenda on Migration of 2015. The Agenda prescribes that, in principle, an external border section should be considered to be a «Hotspot» for the limited period of time during which the emergency or crisis situation subsists and during which the support of the «Hotspot» approach is necessary.
The hotspot approach requires that the European Asylum Support Office (EASO), the EU Border Agency (FRONTEX), the EU Police Cooperation Agency (Europol) and the EU Judicial Cooperation Agency (Eurojust) should work on the ground with the authorities of the frontline Member State in managing irregular arrivals. Specific functions designated in the hotspots – where the approach is implemented – are:
- screening by FRONTEX and national police for nationality determination, vulnerability assessment, document identification and fingerprinting by the national authorities
- debriefing of the migrant (interview on routes, smugglers, etc) which is voluntary.
Screening, therefore, is the first step before the border procedure is applied in Greece. The screening process contributed to the assessment whereby on the basis of nationality and vulnerability asylum applications are fast-tracked or enter regular procedure.
In the New Pact, the screening becomes the new norm for all borders, applicable to all who enter irregularly, for those who wish to apply for asylum and for those disembarked following search and rescue. Screening at the border should not exceed five days, with an additional five days given in cases of a high influx. The proposal replicates but also multiplies the current practice in Italy and Greece. The five days deadline may appear sufficient but largely depends on the capacity of the Member States, which differs vastly between countries.
More worrisomely, the Pact suggests that screening will take place before entering EU territory. It is not entirely clear how this will translate in practice, particularly for countries like Greece, which do not have official border posts where migrants can submit an asylum application (see ECHR ruling on N.D. and N.T. v. Spain). The implication is that transit zones will be used to host and process asylum applicants (resembling the system in Hungary), before they enter the EU. It is assumed that this would facilitate asylum applicants’ removal in case of rejection or inadmissibility, however, the proposal is vague in who retains legal responsibility for conditions, and whether the pre-border process described could take place also within the territory of the Member State rather than at its margins (for example for undetected arrivals).
For those whose application is accepted for processing, the border procedure is now obligatory and applicable in cases where the asylum seeker carries false documents, is perceived a threat to national security or belongs to a nationality under the 20% threshold recognition rate, i.e. the assumption being they will likely be rejected. This places nationality at the core of the decision process on asylum. Similarly, in cases of crisis, those with nationality e and above a 75% threshold of recognition can receive immediate temporary protection. Their asylum application must be processed within a year and it is the Commission who will authorise such measure pending request from the Member State. The structure presented in the Pact clearly draws inspiration from the relocation scheme (where the 75% threshold applied) and the EU-Turkey Statement, which placed nationality (Syrians) at the core of the eligibility assessment for return to Turkey.
To fast-track returns, the administrative delays of issuing decisions are bypassed. The rejection of the application will be accompanied by an expulsion decision. Only one level of appeal will be offered against rejections issued through border procedure.
Towards the end of February 2020, thousands of refugees moved towards the Greek-Turkish borders of Evros. In response, Greece closed its borders, with reports coming out of escalated practices of pushbacks, teargassing, and arrests of new arrivals. Widespread misinformation that the border was open resulted in thousands reaching the Greek-Turkish land border hoping to cross through. Among them, organised groups sought to create chaos and tension at the border. The decision of the Greek government to suspend access to asylum, in violation of international law, is a cause for concern. Greece announced it was invoking article 78 (3) to justify the suspension of asylum, however, this would require that a proposal is submitted by the Commission and agreed upon by the Council.
The crisis in Evros was, in fact, part of a broader issue that begins in Europe and extends to the countries of origin and transit. It has to do with legal responsibilities, norms, and values. During the refugee crisis, Europe proved unable and unwilling to showcase any form of solidarity that extends beyond financial assistance. It has since consistently placed deterrence at the heart of EU migration policy, framing it in humanitarian terms – saving lives by preventing journeys.
In the months that followed, multiple reports accused Greece of push-backs, resulting in a hearing before the Civil Liberties Committee of the European Parliament. The Greek Ministers for Citizen Protection and for Migration and Asylum dismissed the accusations, stressing that Greece is functioning as Europe’s ‘shield’ and noted that similar events will likely happen again with Turkey instrumentalising migration. Commissioner Ylva Johansson agreed that allegations of violence against asylum-seekers must be investigated, not only in Greece, but across Europe. Reports from the Balkans and especially Croatia are alarming as regards the rights of migrants and refugees. Croatia’s government has considered deploying the army to prevent migrants and asylum applicants from entering through Bosnia and Serbia, while human rights groups are accusing the government of pushbacks. Across the Balkans, governments are beefing up security at the borders, targeting migrants on the move.
The proposal for a new monitoring mechanism is a welcome step, though the tabled version is significantly watered down to what one would expect. The mechanism suggests that Member States undertake their own independent monitoring for push backs and the overall application of the Fundamental Rights framework. The Fundamental Rights Agency will assist Member States to develop appropriate methodology, but the monitoring appears to fall under national competence. The European Commission has not learnt a valuable lesson from 2015, which is that Member States have the ability to deviate from the rules, using multiple ways. Relocation is the best example.
When mandatory relocation was decided upon by a qualified majority in the European Council in 2015 some Member States objected. Others complied, but only on paper. The Visegrad Four objected to mandatory quotes for admission, with Slovakia and Hungary challenging the legality of the decision before the European Court of Justice. It is perhaps less important that the legal challenge failed, or that the Court of Justice of the European Union would eventually rule that the countries were in breach of their obligations under EU law. By the time the entire legal process concluded, relocation was a moot point. Others found various administrative way of delaying the process of relocation and refusing the transfer of many initially placed on the lists by Greek and Italian authorities. The relocation scheme set a target of 66,400 asylum seekers to be relocated from Greece. Of those only 21,999 had effectively been transferred as of 31 May 2018 and another 12 690 have been relocated from Italy. This constitutes less than 50% of the effort originally committed by Member States.
Even if Member States agree to a monitoring mechanism, it is not clear how the European Commission will ensure adherence to the standards inscribed. It is even less clear what will happen if a country fails or refuses to implement the recommendations produced by the monitoring body or what role will the European Commission have in ensuring Member States comply.
The right to derogate from the rules in cases of force majeure is also a direct product of events in Evros in early 2020 and is the only aspect of the Greek non-paper incorporated in the Pact. The Commission’s proposal suggests that Member States that face disproportionate pressure can trigger a crisis mechanism. A crisis is defined as “an ongoing, or imminent risk of, a massive influx of third-country nationals and stateless persons arriving irregularly at a Member State, thus overpowering its asylum reception and return system. The Member State (MS) should also demonstrate that the crisis would have serious consequences for the normal functioning of the Common European Asylum System (CEAS).”
The language in the Pact raises more questions than it answers. Would a pandemic be considered force majeure or would it require extraordinary pressure at the border? And what constitutes an extraordinary situation? The Member State assisted would be excluded from the obligation to contribute to relocation or undertake return sponsorship. The new crisis and force majeure regulation speeds up sponsored returns that should be completed within four months (instead of eight). Derogation from registration is allowed for four weeks and can be renewed following approval from the Commission. Applicants from countries with a high recognition rate (above 75%) can receive immediate protection.
Thus, the derogation mechanism establishes a direct rapport between the Member State and the European Commission, where exceptional measures are agreed and implemented.
Reception of the Pact
The European Commissioner Ylva Johansson, during the presentation of the Pact, suggested that ‘not one Member State will be happy’ with the proposals. On the one hand this makes sense, since the Pact draws inspiration heavily from the 2016 legislative package that deadlocked, while trying to incorporate the red lines of the Member States. On the other hand, some elements are likely to receive wide support, like the emphasis on returns.
The proposals were received with scepticism by front-line States like Greece, Italy and Spain. The mandatory but flexible solidarity does not go far enough to alleviate their concerns. It was well known that binding quotas could not be made with the Eastern European hardliners. However, what is offered does not address the core concerns of the external borders that remain the default option for the screening, registration and asylum processing in regular circumstances. Spain for example, is on the receiving end of applications from former colonies, arriving legally (via air) and applying for asylum. In this, the express border procedure offers little assistance.
Greece and Italy, by contrast, continue to receive maritime arrivals, which often necessitate Search and Rescue operations. What they are being offered is a multiplication of the policy applied for the past five years, and the right to derogate from the rules in times of crisis. This is as insufficient as it is ineffective.
The New Pact on Migration and Asylum is neither new nor bold in its aspirations. This is not entirely unexpected considering the lack of agreement in the past five years between Member States. There are positive aspects of the Pact, including the public discourse by the European Commission that went at lengths to present migration as a normal and much needed element of European societies. This is also where the divergence becomes more visible. On the one hand, the European Commission has tried to present migration in a rational manner, removed from the panic of 2015. On the other hand, the proposals tabled do not reflect the discourse. The Pact assumes migrants are first and foremost returnable and does not offer concrete solidarity with people on the move nor with front-line States. In the end, the latter will continue to shoulder the responsibility for Search and Rescue, reception and asylum processing, while people on the move will continue to undertake dangerous journeys in search of safety.
Dr. Angeliki Dimitriadi is a Senior Research Fellow and Head of the Migration Program at The Hellenic Foundation of European & Foreign Policy (ELIAMEP). She can be contacted at firstname.lastname@example.org.