international analysis and commentary

Europe’s proposed migration and asylum pact: Not yet the paradigm shift that is needed

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By adopting NextGenerationEU (the €750 billion emergency package meant to boost EU’s post-COVID-19 recovery) the longest-ever (17-21 July) European Council broke the taboo of debt mutualization and thus made history. In doing so, it resoundingly disproved EU’s reputation of congenital incapacity to take major decisions in short time and under pressure. Furthermore, unlike in the 2010 sovereign debt crisis, this time the emergency response was given without intergovernmental short-cuts. But while the arduous implementation process of the Recovery Package starts, another major Damocles’ sword keeps hanging on the continental polity.

 

A badly needed new Pact

How to cope with large-scale, unplanned migration inflows reaching (or being rescued at sea off) the bloc’s common external border? How to manage these arrivals reconciling protection obligations and security concerns? How to preserve liberal and humanitarian principles without losing elections? These are the fundamental dilemmas that in 2015-2016 threatened the very cohesion of the Union. Tackling them effectively has been singled out by Ursula von der Leyen as one of the key objectives of her mandate.

Arrivals of refugees and migrants to Europe, January-June 2020. Source: European Commission

 

The European Commission (EC) has now traced the way with a massive package of legislative and policy proposals, called the New Pact on Migration and Asylum (NPMA), that was eventually presented after several postponements on 23 September 2020.

The NPMA is the fruit of a long gestation, already the result of negotiations and compromises aimed at bridging entrenched divides among member states. It is meant as a problem-solving arsenal. Not just a set of principles and objectives, but rather a turnkey apparatus consisting of hundreds of pages of regulatory proposals and including a detailed (and very ambitious) roadmap.

In spite of protracted diplomatic preparations, the Commission is fully aware of the political hurdles. “No one will be satisfied”, Home Affairs Commissioner Ylva Johansson declared preemptively.

 

Building on ruins

The single most divisive issue is notoriously responsibility sharing. The core question is clear-cut: How to share among member states the legal responsibility (with its potentially heavy political fallout) for processing asylum applications filed by migrants arriving at the EU’s external borders?

The issue had been hovering menacingly for years, but it exploded in the summer of 2015. In order to correct the dramatically uneven distribution of mass arrivals from the Middle East, in September 2015 the Council adopted by qualified majority (with the contrary vote of the Czech Republic, Hungary, Romania and Slovakia) a decision enforcing a mechanism of mandatory relocation. Hungary and Slovakia turned to the EU’s Court of Justice (CJEU) to undo the decision, but their actions were dismissed. Nevertheless, due to poor design and bureaucratic obstructionism, when the temporary scheme expired (September 2017), results were disappointing (original target: 160,000; pledges by destination member states: 98,000; actually relocated: 34,000).

What’s more, if the technical outcome was below expectations, the political one was disastrous: the leaders of the Visegrád Four (V4) Group (Czech Republic, Hungary, Poland, Slovakia) were successful in fueling perceptions of a top-down breach on their national sovereignty in order to consolidate their consensus. Besides, the toothlessness of EU’s rule of law was blatantly exposed. Although in April 2020 the CJEU ruled against Poland, Hungary and the Czech Republic for failing to fulfill their relocation obligations, the political battle had already been lost.

 

The promise of a fresh start

On this tormented backdrop, the Commission is now proposing a “fresh start”. Nobody denies that the current rules (so-called “Dublin III regulation”) have become unsustainably dysfunctional and unfair. Therefore, the Commission is understandably keen to present its proposals as a radical break with the past. “Putting Dublin to bed”, this is how Vice-President Margaritis Schinas, in charge of coordinating a bunch of commissioners dealing with different aspects of the migration portfolio, branded the whole operation).

But how to guarantee more solidarity to external border countries (starting with Greece and Italy) without imposing politically unviable mandatory relocations on non-border countries? In tackling such wicked dilemma, the Commission now exploits the intrinsic vagueness of the concept of “solidarity” and proposes to make it “flexible” and leave different options open to member states: as put by President von der Leyen, “it is not a question whether member states should support with solidarity and contributions, but how they should support”.

In particular, if non-border country A is not willing to accept physical transfers of asylum seekers from border country B of first arrival, it can engage in what is labelled a “return sponsorship”. The relevant legislative proposal describes this “new form of solidarity” as a commitment “to return irregular migrants on behalf of another Member State, carrying out all the activities necessary for this purpose directly from the territory of the benefitting Member State (e.g. return counselling, leading policy dialogue with third countries, providing support for assisted voluntary return and reintegration).”

 

Problematic details

It may sound ingenious, but the devil, as always, lies in the details. Repatriation is not an easy game. The average return rate from EU countries is just 32% (and decreasing, as clearly shown here . Therefore, committing to return a migrant is not the same as actually doing it. Being aware of this, in order to avoid loopholes, the proposal foresees that “when return will not have been finalized within 8 months, the irregular migrants would be transferred to the territory of the Member State providing sponsorship with a view to continuing from there the efforts to enforce the return decisions.”

Therefore, even countries refusing relocation could eventually be obliged to accept a mandatory physical transfer. This time not any more of an asylum seeker, but of an irregular migrant who has already proven particularly hard to repatriate. Paradoxically, such an outcome could result even less politically palatable that the original relocation.

This is perhaps what explains that, after a few initial promising reactions , the Visegrád countries quickly aligned themselves on a position of intransigent closure. In a meeting with the EC President just one day after the launch of the New Pact, Poland’s Prime Minister Mateusz Morawiecki (current V4 President) and his colleagues from Hungary and Czechia accused Brussels of pouring old wine in new bottles. Speaking with journalists after the meeting, Hungarian Prime Minister Viktor Orbán claimed that the only real breakthrough “would mean outside hotspots, so nobody can step on the ground of the European Union without having permission to do so”.

 

Still too “path dependent”

Time will tell us if these bellicose declarations are just tactical artillery barrage or a sign that polarization is even deeper that expected. On the other side of the opinion spectrum, migrants’ rights advocates are also reacting critically. German NGO Pro Asyl, for instance, rejects the newly proposed fast screening procedure arguing that “the pact thus threatens to abolish the rule of law at the external borders”. In commenting the newly proposed return sponsorships, the Danish Refugee Council stresses that “this is not solidarity aimed at assisting people”.

Overcoming entrenched divisions and rebuilding trust is proving even more difficult in the migration field than in the financial one. Governments, in particular, seem to digest more easily a solidarity effort in the form of joint indebtedness than of acceptance of limited numbers of humans seeking protection.

Ursula von der Leyen proposed new rules for the EU migration and asylum policy

 

The New Pact on Migration and Asylum has just been proposed and, of course, it still has to be hoped that it will be the basis of productive negotiations. But a preliminary assessment of the package and the first reactions to it do not leave much ground to optimism. However technically sophisticated, from a political and strategic point of view the Commission proposals appear still too path-dependent and too much in line with years of narrowly security-centred and ultimately ineffective migration containment strategies.

Responsibility sharing is a political stumbling block that clearly exceeds the narrow perimeter of migration and asylum as a policy field. How to break the Dublin impasse is an existential question for the EU and it requires answers going far beyond the technical and sectoral level. The external borders conundrum raises questions that have directly to do with nothing less than the finalité politique of an ageing EU in an increasingly fractured and unstable world.

 

Making solidarity advantageous

Finding stable compromises therefore requires a larger exercise of strategic imagination and issue linkage. The Visegrád 4 are among the members with the bleakest demographic outlook in Europe and some of them are already substantial immigration destinations (Poland has surprisingly surpassed the USA as top destination for temporary labour migrants in the OECD). But like many other countries in Europe and beyond, the V4 suffer from a sort of self-immune syndrome, whereby they do not tolerate (politically and culturally) what they need (economically and demographically).

This is the structural deadlock on which the Dublin political impasse is hinged upon. In order to break the stalemate, also the underlying socio-economic and demographic challenges need to be tackled. One way to do it would be to make solidarity immediately advantageous through economic incentives for the local development of those shrinking regions which would accept newcomers. This way, solidarity would stop being perceived as an external, top-down imposition and could become a bottom-up claim, that national governments should acknowledge and come to terms with.

Similar concepts have been circulating for a while (see German politician and political scientist Gesine Schwan’s proposal of a European “Integration and municipal Development Fund”). But now, the resources and the momentum generated by NextGenerationEU make these ideas less visionary and more viable. And the COVID-19 crisis makes the goal of revitalizing peripheral and shrinking areas even more pressing and perhaps less elusive.

Ursula von der Leyen herself, in her inspiring State of the Union speech, sees digitalization as a “huge opportunity and the prerequisite for revitalizing rural areas. Only then can they fully exploit their potential and attract more people and investment.” But without demographic dynamism, even technology is powerless.

This is the kind of paradigm shift that is needed. Many decision-makers will dismiss this kind of arguments maintaining they go against the “will of the people(s)”. But sometimes, there are signals that the will of the people is in fact more advanced than what is usually presumed. For instance, in a recent poll on solidarity in Europe, at the question “Do you think [your country] should or should not allow a proportion of refugees to live there to help another [European/ EU] country that is facing a major refugee crisis?”, the gap between “yes” and “no” emerged as narrow (40% vs. 43%). And it is a source of hope that, among under-35, the “welcomers” clearly prevailed over the “rejecters”. In order to break the European migration deadlock, we should perhaps restart from here.