Why the EU’s Migration and Asylum Plan is Flawed

After the catastrophic Moria camp fire in Greece, the European Commission announced new proposals for dealing with migration. But there are three major flaws.

Expert comment Published 26 October 2020 Updated 9 November 2020 2 minute READ

Brussels clearly wants the New Pact on Migration and Asylum to serve as the basis of an overarching compromise to break the impasse between southern EU member states - such as Greece and Italy - where most ‘irregular’ migrants and refugees arrive in the bloc, and the central and eastern member states - such as Hungary and Poland - that refuse to accept them.

Stronger provisions regarding family reunification and a new mechanism monitoring human rights violations are certainly among the positive elements in the new plan. But three major flaws also exist in the proposals, and these represent major concessions to the agenda of the more hardline member states.

1) More Morias could still happen

The Pact does little to prevent a repeat of what recently happened in Moria. According to the proposals, newly-arrived migrants need to undergo compulsory screening, including identification, health, and security checks within a maximum of five days.

Those applying for asylum then go through a two-tier procedure, whereby those deemed less likely to see their claims recognized — most likely to be mainly nationals of countries with low recognition rates for international protection — undergo a ‘fast-tracked’ border process with decisions within 12 weeks. Others would enter the normal asylum procedure.

The accelerated border procedures aim to expedite application processes that currently can take months, if not years, to complete. But they also raise significant questions of fairness and effectiveness, as it will be difficult to maintain such exacting, rather unrealistic timelines while respecting procedural safeguards and applicants’ rights.

It is also easy to see how any delays in such a tight turnaround process would then ultimately result in a continuation of Moria-like overcrowded camps and closed reception centres within EU borders.

2) Flawed flexibility around ‘sponsorship’ option

The Pact introduces a new system of ‘mandatory’ yet ‘flexible’ solidarity which could be extremely problematic. An earlier plan to relocate asylum seekers throughout the EU failed because central and eastern European countries rejected the idea of mandatory quotas.

The Commission’s new proposals now give member states the option of showing ‘solidarity’ without actually accepting asylum seekers, by ‘sponsoring’ the return of those judged to have no right to stay in the EU to their countries of origin.

In practice, this means that the sponsoring member state would provid return counselling, or financial and practical support to assist rejected applicants’ voluntary return home directly from the territory of the beneficiary member state.

Aside from questions of implementation and accountability, this new ‘return sponsorship’ option means in effect that the European Commission would give the responsibility for deporting rejected applicants to those member states like Hungary and Poland that are the most hostile to admitting them, have a poor track record in treating them, and against which there is action taken at EU level for violations of the rule of law.

The Pact also foresees that, if repatriations are not completed within eight months, then those individuals in question will need to relocate to the country that has taken charge of their return.

Given that the average rate of return to their respective home countries of those irregular migrants found ineligible to stay — measured as a percentage of actual returns compared to return decisions issued by member states — was only 31.5 per cent in 2019 and 35.6 per cent in 2018, this raises concerns about how fundamental rights of migrants will be protected if left in countries clearly hostile to them.

3) Doubling down on deterrence approach

Whether it is the enhanced emphasis on border enforcement, or treating ‘solidarity’ primarily as a renewed push to increase and expedite returns, the unifying thread across many of the proposals is the consolidation of a stricter approach to migration - effectively doubling down on the deterrence model that has been driving EU migration and asylum policy for many years.

Despite the fact that irregular migrant arrivals are a small fraction of the numbers during the heights of the 2015-2016 crisis - when more than one million migrants applied for asylum in the bloc – the toxicity of the issue continues and the political mood has shifted in recent years.

The Commission seems to be focusing on trying to finally get an agreement between member states on a common migration and asylum policy, even if this results in turning a blind eye to genuinely serious human rights issues and legal concerns.

This latest plan is only the start of a long and arduous process of negotiations among member states and in the European Parliament which could last years, but the Pact does reflect the Commission’s calculated assessment of where Europe stands on migration at this moment in time.

Current politics around the issue means that, even though the proposal on ‘flexible solidarity’ leans heavily towards the position of Budapest or Warsaw, they still may ultimately not accept it.

However, whether they accept or not, the Pact itself represents yet another step away from crafting an integrated EU policy fully aligned with the Union’s fundamental values of respecting human dignity, human rights, and the rule of law.