Loopholes in the EU’s New Migration Pact Could Endanger Migrants
After more than three years of negotiation, the member states of the European Council officially reached a landmark agreement May 14 to reform the norms governing the reception of migrants and asylum seekers. The Pact on Migration and Asylum, as it is known, consists of 10 legislative acts which by 2026 will reform the existing European framework for asylum and migration management, known as the Dublin Regulations.
During the voting session at the EU Council in Brussels earlier this month, Poland and Hungary opposed every piece of legislation, as expected. While other countries, such as Slovakia, the Czech Republic, Malta, and Austria, either abstained or voted against specific measures. Nevertheless, the regulations met the required threshold for approval, with 65 percent of EU countries representing at least 55 percent of the union’s total population voting for passage.
The presidents of the European Parliament and the European Commission hailed the new pact, saying it was an “historic day” and a “huge achievement,” respectively. However, their enthusiasm was tempered by the opposition of more than 160 civil society organizations, which contend that the new pact represents a step backward in safeguarding the human rights of migrants, particularly those of unaccompanied minors. During the voting, a group of activists even disrupted the proceedings, shouting “This pact kills, vote no.”
The new pact was presented by the European Commission in September 2020 and was crafted to navigate a delicate equilibrium between border management and solidarity, aiming to address both the internal and external dimensions of migration management. Understanding the benefits and limitations of the reforms is crucial as they will influence the direction of EU asylum and migration policy for the foreseeable future.
One of the pact’s key features is the introduction of a mandatory “solidarity mechanism” designed to promote responsibility-sharing among EU member states, and thereby relieve the disproportionate pressure borne by the bloc’s border states from the influx of migrants and refugees. This mechanism requires all member states to participate in the reception system, providing governments with a range of options on how to contribute.
The mechanism requires the European Commission to annually produce a report identifying countries facing significant “migratory pressures” and establish a solidarity pool, providing for a minimum of 30,000 relocations and 600 million euros in funding to support these countries. Other EU member states can then decide to contribute either by relocating a specified number of asylum seekers to their territory or by providing financial support for reception facilities and procedures in overburdened countries. Essentially, each relocation can be substituted with a 20,000 euro contribution.
Key to the success of this new migration architecture is even enforcement of the regulations, as the system would be rendered ineffective if some member states were to disregard their obligations. Ylva Johansson, the European Commissioner for Home Affairs, has already stressed the importance of uniform enforcement, saying the commission is prepared to employ coercive measures if necessary. In practice, however, it may take years before the European Court of Justice would be able to force countries which are bent on breaking the rules to comply. In the meantime, requests for asylum in EU countries and the arrival of migrants at the union’s borders are likely to continue unabated. In 2023 alone, there were 1,048,900 EU asylum requests, the highest number since 2016.
Instead of investing in robust reception facilities and expanding safe and legal pathways for asylum seekers, the union’s focus seems to be shifting towards outsourcing border management and containment strategies.
Among the most contentious measures introduced by the pact are updated protocols for screening newly arrived migrants. Third-country nationals arriving at the EU’s external borders will be required to undergo a screening within seven days to swiftly determine whether they will be repatriated to their home country, are eligible for the conventional asylum procedure, or are subject to an accelerated border process. The screenings will include health and vulnerability assessments, identity and security checks, and the collection of biometric data, significantly expanding the scope of the Eurodac database.
These new screening procedures and the accelerated border processes are designed to take place in proximity to the Union’s external borders, utilizing a method legally referred to as the “fiction of non-entry.” Essentially, this means that even when a migrant physically arrives within the territory of an EU member country, the receiving country can delay the formal recognition of their arrival within the EU borders, placing the individual in an effective transit zone. The European Council on Refugees and Exiles has stated that such zones “create a liminal legal space where states exert control by restricting access to rights for third-country nationals. In the context of asylum, the fiction of non-entry inhibits asylum seekers’ mobility, access to rights and asylum procedures, and risks refoulement.”
Another notable change introduced by the updated regulation is the extension of its application to children aged six and above. The framework governing the reception of unaccompanied minors is indeed significant. In 2022 alone, there were 42,000 asylum applications filed by unaccompanied minors across the 27 countries of the EU, plus Switzerland and Norway, the highest number since 2016. To properly adhere to internationally recognized human rights standards, the EU must ensure that every unaccompanied minor who arrives at its borders receives appropriate protection. The key international law concept that applies is that of the Best Interests of the Child, or BIC, granting children the right to have their best interests considered as a primary factor in all actions and decisions that affect them. Legally, the BIC is aimed at ensuring the full and effective enjoyment of all rights recognized in the United Nations Convention on the Rights of the Child and in the Charter of Fundamental Rights of the European Union.
One of the most worrisome provisions of the agreement reached last week is the one concerning “Crisis Regulation,” which grants countries the flexibility to opt out of certain EU asylum rules during periods of heightened arrivals, in circumstances where migrants are perceived as being exploited for political or other purposes, or when faced with unforeseen emergencies. While this flexibility may seem pragmatic, it raises concerns that it provides too large a loophole for getting around rights protections.
“This agreement will set back European asylum law for decades to come,” Eve Geddie, director of Amnesty International’s European Institutions Office, said in a statement released by the organization in December, when the pact was first agreed to. “Its likely outcome is a surge in suffering on every step of a person’s journey to seek asylum in the EU.”
The Crisis Regulation exemptions do raise concerns regarding compliance with international obligations under refugee and human rights laws. By allowing deviations from established asylum norms, there is a risk of eroding fundamental principles of protection and dignity for individuals seeking refuge. Furthermore, such exemptions may inadvertently contribute to a fragmented approach to asylum, undermining the EU’s efforts to foster solidarity and a cohesive response to migration challenges.
Moreover, the agreement’s emphasis on the externalization of border control is noteworthy. By deepening partnerships with countries outside the EU, such as Albania, Libya, Tunisia, and Turkey, the EU is extending its reliance on external actors to manage migration flows. While cooperation with third countries is essential for addressing the root causes of migration and enhancing border security, there’s a risk of prioritizing short-term border control measures over long-term, sustainable solutions.
In light of these developments, questions arise about the EU’s commitment to upholding its refugee protection responsibilities. Instead of investing in robust reception facilities and expanding safe and legal pathways for asylum seekers, the union’s focus seems to be shifting towards outsourcing border management and containment strategies. This approach may alleviate immediate pressures on EU member states but risks undermining the principles of solidarity and shared responsibility that underpin the EU’s asylum system.
Ultimately, the agreement reflects a delicate balance between sovereignty and solidarity, highlighting the ongoing tension between national interests and collective European values. As policymakers navigate these complexities, they should prioritize human rights, uphold legal obligations, and pursue comprehensive strategies that address the root causes of migration while safeguarding the rights and dignity of all individuals.
Sofia Maria Russo contributes to the editorial board of ISPI – the Italian Institute for International Political Studies. She holds a Bachelor’s Degree in International Sciences and European Institutions, awarded by Università degli Studi di Milano, and an LLM (Master of Laws) in International Law and Security, awarded with merit by the University of Glasgow.