The way forward for EU migration and asylum policy

Russia’s invasion of Ukraine has led to Europe’s largest refugee crisis since World War Two, but the solidarity and swift protection offered Ukrainian refugees was very different from the treatment of non-European migrants and refugees. Will the Ukrainian refugee crisis affect European Union (EU) sentiments on this issue in the longer term? What lessons can be learned in terms of EU capacity to respond to and accommodate large numbers of arrivals?

The Ukrainian refugee crisis is unprecedented. More than eight million people have fled from Ukraine to neighbouring countries while more than seven million are displaced within Ukraine. Europe’s response to the displaced Ukrainians is also unprecedented. There has been an outpouring of solidarity, both in terms of public response and civil society engagement, as well as the swift protection mechanisms offered by European governments through the EU Temporary Protection Directive.

This is in stark contrast to the harsh stance of European countries towards people fleeing war or poverty in the Middle East, Africa, and Afghanistan. The public and political narrative has also been very different. Sheltering Ukrainians from Russian aggression has been praised as ‘the noble thing to do’ while non-Europeans and non-white asylum seekers have been framed as hybrid security threats. As former Bulgarian prime minister Kiril Petkov, stated, ‘These are not the refugees we are used to’, adding that Ukrainians are ‘Europeans, intelligent, educated people’ and ‘not the usual refugee wave of people with an unclear past’.

Whether we can expect a political or policy shift when it comes to Europe’s attitudes towards asylum seekers overall, the answer is, unfortunately, no – at least in the near future. On the contrary, the Ukrainian displacement has shown the discriminatory nature and double standards of Europe’s approach to asylum more clearly than ever before.

But there are lessons to be learned and the Ukrainian crisis shows us that a different, more humane, asylum policy is feasible in Europe. Firstly, in terms of scale and capacity, if the EU is able to manage the arrival of eight million people from Ukraine, a mere 300,000 irregular crossings at its external borders should not create panic or be a huge problem for European governments to deal with.

Secondly, to sustain this positive response towards Ukrainian refugees in the long term, there is a need for strong state commitments to complement this initial outpouring of support. There are a lot of disparities between existing asylum systems and a lot of work needs to be done in terms of protection and integration for refugees, both for Ukrainians and non-European refugees.

Migration was a key topic during a special EU summit in February, and the wording in its conclusion strikes a hard line on this issue, with Identity and Democracy – a far-right group in the European Parliament – claiming all their demands have made it into the final text. What are the key takeaways from this summit? What changes are likely in terms of policy?

Sadly, it is not surprising that the demands of the far right have made it into EU policy texts. The rhetoric and politics around asylum and migration have become increasingly toxic at both national and EU levels, and the European Council’s summit conclusions reflect this.

The council also adopted, almost verbatim, the recommendations made by member state alliances. For example, a letter issued just days before the summit by Denmark, Lithuania, Greece, Latvia, Slovakia, Malta, Estonia, and Austria called for measures to combat irregular migration and framed the European asylum system as a pull factor for refugee arrivals. 

The first key takeaway from the summit is that the crisis narrative continues to dominate public discourse on asylum and migration. Europe is presented as being threatened by the irregular arrival of asylum seekers and the policy focus remains on border control and deterrence, instead of improving domestic asylum systems and creating safe and legal pathways for refugees. It is striking that in the text of the conclusion, there is no reference to support for refugees and access to asylum in Europe – except when it comes to Ukrainians.

Another key takeaway is that externalization, shifting the EU’s asylum responsibilities outside Europe, remains the sole point of consensus between member states. There is emphasis on increased external action in the council’s conclusions, including cooperation with countries of origin and transit to prevent the arrival of asylum seekers and secure returns, using tools such as development aid, or trade and visa agreements.

I don’t believe we should expect to see any big policy changes in the coming months or during the coming EU presidencies. The area of asylum and migration is already highly politicized and securitized across the world – the unveiling of the UK government’s Illegal Migration Bill confirms this race to the bottom on asylum seekers’ rights. I expect that Europe will keep fortifying its borders and shift the burden of responsibility for refugees to third countries, neighbouring or not.

The EU’s new pact on migration and asylum was launched in 2020 and must be approved by the next EU elections in 2024. How likely is a deal to be approved and what are the main sticking points?

The pact on migration and asylum is a package of reform proposals presented by the European Commission in 2020, following previous failed efforts to reform the common European asylum system. Even though the pact was labelled by the commission as a ‘fresh start on migration’, it fails to include any reliable prospect of responsibility-sharing between member states. Instead, it reduces human rights protections, focuses on returns and deterrence, and externalizes migration control to non-European countries.

Pact negotiations were stalled until the start of 2022, when the French EU presidency managed to secure an agreement on three key legislative issues: the reform of the Schengen border codes, the screening regulation, and the Eurodac regulation. Instead of trying to reform the pact as a package, they pushed for gradual reform whereby individual legislative texts are negotiated step by step and independently of each other. This approach will probably make it easier to take forward the long-stalled EU asylum reforms and secure similar mini-deals before the end of the parliamentary term in 2024. A few weeks ago the Civil Liberties, Justice and Home Affairs (LIBE) committee of the European Parliament voted in favour of the key regulations included in the pact – taking the EU a step closer to its adoption.

However, there are still many sticking points – the stickiest of which is solidarity, meaning responsibility-sharing between member states. There are currently negotiations at council level as to which form solidarity should take, ranging from relocation mechanisms between member states to financial contributions and capacity-building in receiving member states.

There are so many different positions among member states and negotiations are at a very technical level, so instead of an EU-wide consensus on solidarity mechanisms, it is more likely that progress on key contentious issues, such as the relocation of asylum seekers, will only be possible in smaller groups of states – called a flexible solidarity model.

For example, in June last year, 18 member states signed a non-legally binding ‘solidarity declaration’ for the relocation of asylum seekers arriving in Mediterranean countries, whereby Western or Northern European countries committed to supporting Italy and other frontline states with financial contributions and operational support or relocation.

So there is some movement with regards to solidarity but not an EU-wide solution as the commission promises. The main problem with solidarity, and in general with these package deals, is that the interests of member states differ. There is a lot of political tension around migration at the council, leading to unworkable and impractical solutions being proposed in legislative texts.

Rather than secure what the EU calls a fair and efficient asylum system, the proposed reforms would do the opposite – by hardening border controls, creating large administrative burdens for frontline member states, and focusing on deterrence and externalization that serve to consolidate a two-tier approach to asylum.

The idea of external processing – processing asylum claims in countries outside EU borders – has been discussed as a possible solution to curb ‘irregular arrivals’. What does this look like in practice and what are the potential drawbacks?

External or offshore asylum processing is an old idea, often revisited by refugee destination countries as part of hardening their immigration policies. The US was the first to use this policy back in the 1980s when it intercepted asylum seekers from Cuba and Haiti and sent them to Guantanamo Bay. Australia has implemented similar externalization policies by intercepting and turning back asylum seekers at sea or detaining them offshore in offshore facilities on the islands of Nauru and Papua New Guinea.

In practice, it is very difficult to implement offshore asylum processing due to a plethora of legal and practical obstacles. For such a scheme to be lawful, it must meet strict conditions in line with international and domestic human rights laws. These include individual assessment of each transfer, fair and effective procedures in the asylum processing country, as well as ongoing protection in that country, which also means respect for the principle of non-refoulement, i.e. that the asylum seeker would not be sent back to a country of origin if considered as endangering them. In sum, offshore schemes are unworkable.

The costs to the taxpayer are also enormous. Australia pays more than A$1 billion per year to maintain this scheme, just for a few thousand asylum seekers in total since offshore processing resumed in 2012–  currently there are fewer than 200 asylum seekers held in these facilities. Meanwhile there is no evidence such policies succeed in curbing migration. 

Despite this, proposals for external processing have reemerged across Europe, especially in the last couple of years. The UK and Denmark have signed relevant agreements with Rwanda, but no transfer has been made yet. Rwanda is far from a safe country for asylum seekers with well-documented cases of torture and arbitrary detention, and there are ongoing challenges in the UK against this plan.

At EU level, the commission has clarified that asylum processing outside EU territory would not be possible for member states because they are bound by EU asylum rules, and this would put the fundamental rights of asylum seekers at risk. Denmark was able to conclude an agreement with Rwanda because it is exempt from certain EU and immigration and asylum policy rules. This is because when it joined the EU, it only signed up to the Dublin Regulation and the Eurodac regulation, not the rest of the EU asylum acquis.

While the EU or its member states cannot implement such direct external processing schemes, there are other forms of externalization applied by the EU, such as agreements with third countries like Turkey or Libya, to keep refugees and migrants out. It is also known the EU is funding the transfer of asylum seekers from detention centers in Libya to Niger with the support of UN. The EU cannot use external processing for asylum seekers who have already entered EU territory, as the UK wants to do, but it succeeds in preventing people from arriving.

Austria has blocked Romania and Bulgaria’s accession to the Schengen zone over concerns about border control in the two countries and the sharp increase in the number of migrants entering the EU via the Western Balkan route. Could concerns over migration jeopardize the free movement of people enshrined in EU law?

The Austrian veto is used to put pressure on the EU for asylum policy reforms. Among other things, Austria is pushing for the introduction of rapid asylum procedures at EU borders and the option to request asylum in safer countries as an externalization measure – and it is using access to Schengen as a carrot.

It is not surprising accession to the Schengen area is used as a bargaining chip in asylum-related negotiations, as this has been the case since the start of the common European asylum system in the early 2000s. External border member states such as Greece agreed to the Dublin Regulation in exchange for entering the Schengen area and enabling free movement for their citizens.

The Dublin Regulation determines which member state is responsible for examining an asylum application. This is usually the country through which the asylum seeker first enters the EU, thus shifting responsibility to external EU states. Greece and other border states agreed to the Dublin Regulation because that was a prerequisite for entering the Schengen area.

Dublin and Schengen are historically interconnected and mutually dependent through the assumption that an EU free movement zone requires a common policy on its external borders. In other words, intra-EU borders remain open only so long as the external borders are shut, or as shut as possible.

And while it is true that most Schengen states have reintroduced internal border checks, both in the aftermath of the large refugee arrivals in 2015 and more recently with the COVID-19 pandemic, I would not go so far as to say that Schengen is failing due to asylum-related internal border controls. Schengen is still very much thriving, for EU citizens at least. However, the impact of asylum policies on EU citizens’ freedoms is worth exploring further.

The EU border agency Frontex has been accused of human rights abuses and illegal pushbacks along the bloc’s external borders. What is the role of Frontex in border control and how is responsibility shared with national border agencies?

Frontex is one of the most powerful EU agencies. It operates at and beyond EU’s external borders, and its mandate, budget, and staff were significantly increased with the adoption of a new Frontex regulation in 2019. Its role is to assist member states with border control through the deployment of experts and equipment as well as through coordination and capacity-building.

Member states have exclusive responsibility to control their borders but Frontex is becoming more active along certain external borders such as Greece, Italy, or Poland’s border with Belarus. There has been a lot of controversy surrounding Frontex’s activities, following evidence that the agency was involved in illegal pushback operations in Greece, performed by the Greek coastguard agency.

The participation of multiple actors in Frontex operations – generally search and rescue or border control – and the secrecy that surrounds these operations have blurred the lines of responsibility between national border agencies and Frontex. In turn, this has made it easier to shift the blame onto each other and particularly for Frontex to blame member states.

However, multiple investigations found Frontex failed to report human rights violations and covered up pushbacks. And its internal accountability processes are heavily criticized as insufficient to ensure respect for human rights, rule of law, and transparency. This all led to the resignation of Frontex’s director in 2022 and the freezing of its budget until further notice. A new director has since been appointed who has vowed to restore trust and change the way Frontex operates.