What’s new in the New Pact on Migration and Asylum?

On September 23, 2020, the European Commission launched the New Pact on Migration and Asylum, depicted as a ‘flagship initiative’ of the Von der Leyen Commission. The Pact has been in the pipeline for the entire 2020.

According to the European Commissioner for Home Affairs, Ylva Johansson, who had invested a lot of energies on the effects of COVID19 on migration issues, by adopting a pragmatic approach, the European Commission could reach a good compromise between conflicting preferences, namely of Mediterranean and Central European countries, to overcome the current stalemate in the European migration policy.

In her words, the European Commission has drafted the ‘best achievable solution’, a proposal acceptable to all EU Member States (EUMS), being necessary to have all EUMS on board to embark on an effective migration governance.

The European Commission is acting as a policy entrepreneur in migration policy, but is aware of the European internal divisions and institutional constrains that brought to a stalemate in the late 2010s.

In her speech on ‘The State of the Union’ on September 16, 2020, the President of the European Commission, Ursula Von Der Leyen, had announced a new course and new governance on migration relying upon a combination of solidarity and responsibility seeking to reactivate the reform of the Dublin Regulation.

Her political vision is that those countries who fulfill their legal and moral duties or are more exposed than others must be able to rely on the solidarity of our whole European Union (p.13).

She declared also that a ‘human and humane approach’ is needed to improve the conditions for the refugees and that saving lives at sea is not optional, being a legal obligation.

New Pact activates a mix of new and existing policy tools

The European Commission proposed a comprehensive strategy relying upon the strengthening of the external borders, agreements with the sending countries, a compulsory solidarity mechanism and the Dublin regulation reform.

The New Pact on Migration and Asylum is an ambitious policy framework, consisting of 9 legislative instruments and recommendations, including a roadmap of initiatives, that activates a mix of new and existing policy tools such as screening, border control, asylum procedure, resettlements, returns, readmissions, EURODAC, etc. 

Is this a new comprehensive approach to migration?

The New Pact recognizes that no Member State should shoulder a disproportionate responsibility and that all Member States should constantly contribute to solidarity. This combination of responsibility and solidarity recalls the European Agenda on Migration adopted in 2015, which assumed burden-sharing as the departing point to effectively address the so-called migration crisis of the mid-2010s.

Yet, the relocation of asylum seekers based on the 2015 Council Decisions was unsuccessful. In the New Pact possibilities for solidarity through relocation are widened and complemented by ‘return sponsorship’ schemes, under which a Member State should commit to supporting returns from another one.

What seems to be missing, however, are the new incentives for EUMS to get engaged in this pact.

Inspired by inclusion or deterrence?

On the one hand, the COVID19 crisis had a role in pointing out the risks of situations of force majeure, the need to provide health security, to guarantee migrants’ security and accelerate asylum procedures. On the other, the awareness of EUMS that a common action is needed is not to be taken for granted. Countries at the EU’s external borders remain the most exposed to migratory pressures and plead for burden-sharing, while Eastern countries refuse to share the costs of migration, with Hungary, Poland and the Czech Republic outright opposing the New Pact.

Is inclusion or rather deterrence what is inspiring the New Pact on Migration and Asylum? In line with existing documents such as the EU-Turkey agreement or the Memorandum of Understanding with Libya, the New Pact invests in the externalization of the external borders’ control.

It insists on returns and partnerships with origin and transit countries, on regional cooperation to fight smuggling, without addressing the issue of third countries where human rights are disregarded, nor the questionable procedures of the Libyan Coast Guard. Not even the strengthening of FRONTEX will provide more efficient asylum seekers’ procedures and refugees’ protection. 

Entrapped in à la carte solidarity. 

The New Pact contains also other contradictions. Irrespective of the complexity of the migration issue, the policy tools envisaged to address (irregular) migration and asylum reveal the typical EU approach differentiating economic migrants (who do not deserve protection) from refugees deserving protection.

There is no attempt to provide a comprehensive understanding of the multiple causes of migration.

Moreover, the Pact recognizes the specificity of search and rescue (SAR) at sea. While SARs and disembarkation are under the responsibility of coastal states, migration management should be a responsibility of the EU as a whole. So far the redistribution of rescued migrants has been highly controversial, within and among EUMS, and SARs remain entrapped in à la carte solidarity. 

The New Pact should be innovative and effective, setting human security as a key political goal. The introduction of a new mechanism of voluntary redistribution or financial support of redistribution and returns should overcome the political stalemate that had frozen redistribution via quotas.

It remains to be seen whether the EUMS that so far opposed burden-sharing mechanisms (including Austria alongside the so-called Visegrad countries) will be willing to implement this solidarity mechanism. The political challenge remains in the European capitals.

Negotiations at EUMS will soon demonstrate whether ‘return sponsorship’, as an alternative to the contested relocation set by the quota system, represents an effective incentive for a new migration governance, not envisaging new instruments but rather producing new results.

Success depends on EUMS’ will

Migration governance is the result of the interplay between different layers of government: the EU level interacts with EUMS and local actors engaged in migration management on the ground.

The European Commission has launched a proposal for a new European governance, but its success depends on the EUMS’s will. The New Pact envisages more coordination, but does not possess any sovranational platforms and depends (still) on intergovernmental logics.

If EUMS seek mutual independence, free-riding might prevail over effective solidarity. States remain the central actors in shaping the outcomes of European migration policy, and states only can turn the ambitious goal of ‘effective solidarity’ set by the European Commission into reality.