WORKSHOP “The Proposed EU Pact on Migration and Asylum: Prospects and Challenges”
WORKSHOP “The Proposed EU Pact on Migration and Asylum: Prospects and Challenges”
On Thursday 6 April 2023, from 15.00 to 20.00h, the Jean Monnet European Center of Excellence of the National and Kapodistrian University of Athens organized an open online workshop about “The Proposed EU Pact on Migration and Asylum: Prospects and Challenges”, that was held via the Webex platform.
Professor Yannis Valinakis, President of the Jean Monnet European Center of Excellence of the University of Athens, coordinated the first part of the discussion. He first welcomed the speakers and participants, and then gave a brief overview of the Jean Monnet Center’s more-than-twenty-year history. The Center has been extremely successful in carrying out numerous research and educational activities throughout its long-standing academic and scientific presence. Mr. Valinakis made a brief introduction to the event’s topic, remarking that migration-related developments are fast and ongoing. The New Pact should promote European unity and solidarity, as well as Greece’s interests. Reduced flows and the introduction of a binding solidarity mechanism should be the Pact’s primary objectives. Mr. Valinakis presented the speakers, and passed the floor to them.
The first speaker, Mr. Markos Karavias, former Director of the Asylum Service, PhD in Law, University of Oxford, analyzed the steps, issues and prospects of the negotiation on the New Pact on Migration and Asylum. It is common ground that the Common European Asylum System (CEAS) is dysfunctional. After 2016-2016, and due to the absence of a solidarity mechanism, its deficiencies became self-evident. The countries at the EU’s external borders were expected to examine an exceeding their capacities number of asylum applications, and were criticized for the reception facilities conditions, while secondary movements from South to North as well as the Dublin system became points of contention. As a result, the reform of the CEAS was deemed necessary. Following the 2016-2018 failed attempt to reform the CEAS, in September 2020 the Commission presented its Proposals for the New Pact on Migration and Asylum, comprising nine texts (five Regulations, three Recommendations and a Guidance). Proposals for another three Directives are on the table -these three Proposals had been more thoroughly discussed and processed at the previous stage of the reform. The only text that has come into effect (in late 2021), is the Regulation on the European Union Agency for Asylum (EUAA). The rest of the texts are still under negotiation.
The Proposals aim to establish a three-pillar, equitable, viable and crises-resilient asylum system for: 1) faster and more effective procedures for the examination of asylum requests and for returns at the external borders, 2) fair burden-sharing by means of a solidarity mechanism, 3) the promotion of cooperation with third countries in order for trafficking to be controlled, legal pathways to be created, and returns of those not entitled to international protection to be facilitated. The cardinal point is how to strike a balance between responsibility of frontline countries, and solidarity from countries that do not experience pressure.
Mr. Karavias pointed out that the aim of the Proposals is to simply reform the existing asylum system, and not to fundamentally change it. This cautious approach is exemplified, among other instances, in the following two texts under negotiation: The Screening Regulation and the “heart” of the New Pact, the Asylum and Migration Management Regulation (AMR), which aims to recalibrate the burden-sharing system and to set up a solidarity mechanism. None of the above texts departs significantly from the provisions already in effect. Even the “mandatory” solidarity mechanism of the AMR, contains an element of flexibility, because the states bound by the solidarity obligation, are given a choice between relocation of asylum seekers, and financial assistance to frontline states.
The solidarity mechanism is a correction mechanism to be activated when a country is stressed by either flows or continuous arrivals after Search And Rescue (SAR) operations. Relocation, in particular, causes tension among countries, whose divergent views can grosso modo be categorized into three groups: 1) North and Central European countries favour speedy procedures at the external borders, 2) Mediterranean states and Bulgaria maintain that procedures at the external borders are unduly burdensome for the frontline countries, whose excessive responsibilities should be alleviated by means of an adequate solidarity mechanism, and 3) Visegrad and Baltic states were cautious towards solidarity, and conspicuously in favour of responsibility. Of course, some standpoints have changed during the negotiations and due to the developments, for instance, after the Russian invasion of Ukraine, and Lukashenko’s instrumentalization of migrants. Countries that did not favour solidarity before, now shift their position.
The French Presidency’s proposal for a gradual approach, instead of trying to agree on the whole “package”, was a turning point for the negotiation. Later, and during the Czech Presidency, a mandatory but flexible solidarity mechanism was proposed. The counterargument by the states of the South was that, if solidarity can be flexible, so can the responsibility. Today, the discussion is about how flexible responsibility will work. In practice, this means that, for 10,000 relocations in Europe, responsibility at the border will be for 10,000 persons.
The speaker remarked that, in our efforts to converge from divergent starting points, we have coined the term “flexible responsibility” -a paradox, in a sense. Our priority should be how the lack of confidence between North and South can be overcome. And, as Greece suggests, we should not take a purely procedural approach on asylum, but take a further step, beyond solidarity, towards mobility and the creation of a European space of protection, where refugees will have mobility rights. Thus, solidarity will become a reality.
The next speaker, Ms. Trisevgeni Gaitani, Expert Ambassador Counsellor A, G4 Directorate for Justice Internal Affairs and Schengen, Ministry of Foreign Affairs, analyzed the connectivity between the EU Common Visa Policy on the one hand, and Asylum and Migration on the other. In specific, the EU Visa Policy is a tool for:
1) Strengthening Member States’ economy, tourism, cultural exchange, research, attracting talent to the EU etc.
2) Maximizing EU partnerships with third countries.
3) Best managing borders (EES, ETIAS, VIS, SIS, Eurodac, ΙΟ).
4) More effective returns and readmissions.
5) Exercising political leverage on third countries regarding other sensitive issues, such as the protection of human rights.
Greece is the third among Schengen countries in number of visa applications for 2022. Regulation 1806/2018 lists the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. The Schengen area is faced with challenges because of the free movement of persons within its internal borders, and because of secondary movements of persons who enter the Schengen area with or without visa requirement, and stay for an extended period of time in Member States or seek asylum.
The speaker analyzed how the EU encourages cooperation with third countries on returns and readmissions by virtue of Art. 25a of the Community Code on Visas (Reg. EU 2019/1155). In cases of sufficient cooperation (indicators of -sufficient or insufficient- cooperation are the number of return decisions, the number of actual forced returns, the number of readmission requests per Member State accepted by the third country, and the level of practical cooperation with regard to return), the Commission may submit a favourable proposal to the Council. In cases of insufficient cooperation, the Council may adopt an implementing decision establishing restrictive measures on visas (like in the case of the Gambia; the EU is currently in talks with Senegal and Iraq whose level of cooperation has been considered insufficient).
The speaker also explained how the visa policy can reduce the number of unfounded asylum requests, and how the suspension of the exemption from the visa requirement (‘the suspension mechanism’) works (Art. 8 Reg. EU 2018/1806). The mechanism can be activated in cases of repeated unfounded asylum applications by third countries’ nationals who are exempt from the visa requirement, and gradually reintroduces the latter (circumstances taken into consideration are: a substantial increase in the number of nationals of a third country refused entry or found to be staying in a Member State’s territory without a right to do so; an increase in the number of asylum applications from the nationals of a third country for which the recognition rate is low; a decrease in cooperation on readmission; an increased risk or imminent threat to the public policy or internal security of Member States, in particular a substantial increase in serious criminal offences, linked to the nationals of a third country). The case of Vanuatu is characteristic. The suspension mechanism applied to Vanuatu because of its policy of naturalization without genuine link, but in exchange for investment, resulting in Vanuatu granting citizenship to individuals who posed a risk for the Member States’ internal security.
The cases of the Western Balkan and the Eastern Partnership states, which enjoy exemption from the visa requirement, were also presented. Serious problems have arisen because these countries grant visas to third countries’ nationals, thus generating secondary flows towards the EU and the Schengen area (namely, Indian and Turkish nationals enter Serbia and then try to make it to Northern Europe with forged documents). These countries are closely monitored (the Commission reports regularly to the European Parliament and to the Council, at least once a year). Conversely, Kosovo acquired the visa-free status -in effect from 1.1.2024- after many years of negotiations, while dialogue to the same end is underway with other third countries.
Last, Ms. Gaitani presented in brief the Swedish Presidency’s proposals on the above matters.
The third speaker, Mr. Aristidis Psarras, Head, Directorate General Team for Home Affairs, Representation of the European Commission in Greece, made an overall presentation of the New Pact’s provisions. He first remarked that the global challenges, such as demography and climate change, take an impact on migration. The 2015-2016 crisis exposed the migration policy’s major deficiencies -hence the need for a more effective one. Capitalizing on the lessons learnt, the Pact proposes a fresh start: 1) the states should stand in solidarity and cooperate with each other, 2) acting together should include good EU-third countries relations, which should be strengthened, 3) effectiveness depends on progress in all relevant matters: we should take a comprehensive approach on asylum – integration – border management, that should be taken as a whole.
In drafting the New Pact, the Commission held high-level consultations as well as consultations of technical character with many stakeholders (that is, the European Parliament, Member States, civil society, businesses). The Pact builds on consensus already achieved, by adding new elements. It tries to bridge differences among Member States and forward mutual trust. It takes into account Member States’ concerns, especially with regard to solidarity and responsibility, and proposes a new solidarity mechanism. It improves the border procedures, and ensures the harmonization of standards of the reception conditions.
The first -proposed by the Commission- stage of the asylum procedure is screening at the borders. It should take place within 5 – 10 days, and will establish the applicable procedure. The second proposed stage is the new Regulation on asylum, with the whole procedure -including appeal and return, if applicable- to be carried out within a 12-week time-limit, whilst safeguarding by all means non-refoulement and human rights. Minors and vulnerable individuals are excluded from the above accelerated border procedure, so, for them, the ordinary procedure shall be followed.
As regards the returns system, it can be said to be reliable only if those not entitled to international protection actually go back. Mr. Psarras made mention of the fact that only a 1/3 of third-country nationals with return decisions are returned in deed. The low rate of implementation results in undermining trust of EU citizens, in encouraging irregular migration, and in the exploitation of those irregularly staying in the EU, who are thus becoming more vulnerable. What is needed is a strong regulatory framework with solid structures at the EU level, alongside effective cooperation with third countries for returns and readmissions.
The speaker then examined the issue of balance between solidarity and responsibility in the newly proposed mechanism, based on relocation or return sponsorship. The mechanism also provides on alternative modes of contribution, such as operational and technical support, as well as know-how sharing. In a situation of crisis (determined by objective criteria and after consultations between the Commission and the concerned Member State) special rules will apply, and the Commission will define the necessary measures to be effectuated, including mandatory relocations. The instances when the responsible country changes, are also extended, so as to include, among others, family ties or educational links of the asylum seeker with another EU Member State. Furthermore, the best interest of the child and the accommodation of vulnerable groups’ needs are prioritized in the new asylum management system.
The root causes of migration are best addressed when people are given economic opportunities in their place of origin. On the one hand, the EU is the biggest donor of development aid worldwide. On the other, the New Pact does take into account EU’s demographic decline and the subsequent gaps in the labour market, and tries to make good use of the opportunities created by third-country legal migrants to the EU, in order to tackle the afore issues. The benefits from legal migrants’ integration are for all: For EU and third-country citizens, as well as for the economy’s dynamics. The European Integration Network promotes integration and equal opportunities. Mr. Psarras closed his presentation with a succinct enumeration of what remains to be done in order for Member States to agree on the New Pact, and in order for the New Pact to be completed and improved with regard to the matters it regulates.
Assistant Professor at the University of the Aegean, and Scientific Director at the Jean Monnet European Center of Excellence of the University of Athens, Mr. Ioannis Stribis, coordinated the second part of the discussion. He welcomed and presented the three speakers of the second part of the event, before passing the floor to them.
The fourth speaker, Ms. Maria-Daniella Marouda, Associate Professor of International Law, Jean Monnet Chair – EU Solidarity CIPROHA, Panteion University, ECRI Chair at Council of Europe, made the following remarks in relation to the New Pact on Migration and Asylum:
1) The way in which refugee flows from Ukraine were managed should serve as a model for the New Pact, whose aim should be the elimination of discriminations.
2) We should intensify our efforts to include -and no more integrate- newcomers as well as persons who have been living in the EU for decades but whose inclusion has yet to be achieved.
3) Because of the consecutive and protracted crises (financial, energy, health) EU’s humanitarian and development aid to third countries is reduced, which will result in new mixed flows.
4) The New Pact marks a change in conditionality, since development aid is no longer linked with democracy-human rights-rule of law, but with cooperation in returns/readmissions by third countries.
5) Ultranationalism, the far-right and hate speech by -mostly but not exclusively- authoritarian governments, instrumentalizes migration. Russia directly or indirectly intervenes in Europe by supporting persons like Orban or Meloni.
6) The EU does not take decisive action by means of legally binding, directly applicable Regulations, but sets up Action Plans. This means that the EU policy is fragmented and based on optional instruments, i.e., soft-law instruments, which in practice do not work (for example, the EU-Turkey Joint Statement in 2016, the Malta Declaration in 2017 or Action Plans such as the one for Central Mediterranean in 2022). In this way, and in order for unltranationalists to be persuaded, intergovernmentalism has prevailed in the New Pact on Migration and Asylum.
The speaker expressed her concerns at the fact that the EU appears systemically weak when it comes to managing migrant flows.
Ms. Marouda then made special mention of the EUAA (former EASO) that is strengthened insofar it now has a bigger budget and support offices in third countries such as Moldova and Turkey, besides those in EU countries. Frontex is also reinforced, with monitoring and support mechanisms in third countries.
The Action Plan for the Central Mediterranean was also presented by Ms. Marouda, who views its adoption by the European Council in late 2022 as a response to Meloni’s governance. The new term “actionable commitments” appears for the first time in the Plan, which has three pillars: The first pillar includes a package of thirteen measures on cooperation with third countries on returns; the second one a package of four measures on Member States responsibilities in SAR operations; and the third pillar comprises a package of three measures on the voluntary solidarity mechanism. The term “solidarity” appears sixteen times in the text, whose objectives are the continuation of negotiations for the New Pact, the enhancement of cooperation between Member States, Frontex and the EUAA on the one hand with third countries (Tunisia, Libya, Bangladesh, Niger, Egypt) on the other, and the enhancement of cooperation between third countries and the International Organization for Migration, United Nations High Commissioner for Refugees and International Maritime Organization.
The speaker closed with the remark that there has been a shift in emphasis from reception and international protection as a whole towards the need for managing migration through effective borders control and for shaping relations with third countries with a view to unobstructed and prompt returns, using aid of all sorts towards that end. In the end, what has actually changed is the rule of law, democracy and human rights.
The next speaker, Mr. Markos Papakonstantis, PhD in Law, Université Nancy II, Attorney-at-Law, described the process until today’s state of play regarding the Pact. It is the last in a series of political Programmes intended to prepare the ground for an EU policy on migration and asylum, preceded by the Tampere, the Hague, the Stockholm and the post-Stockholm Programmes. An impasse was reached in 2015 following the refugee crisis and terrorist attacks. Then, it was deemed more appropriate to tackle the migration and asylum issues through Agendas. This was the case until 2020, when the Commission presented its Proposals for the New Pact, which was called “New” because in 2008 the French Presidency had also made proposals for a European Pact on Migration and Asylum. In 2016, the Commission’s proposals had also failed: The negotiations had come to a standstill as a result of certain states’ reasonable position -among which Greece- that the proposals should not be adopted separately and one by one, but as a whole. If the proposals were adopted separately from one another, Greece would have voted all proposals in the beginning, and would end up without leverage when the difficult matters of solidarity, burden-sharing and Dublin would de facto be discussed last. In trying to find a way out, the Commission drafted its Proposals for the New Pact and presented them in September 2020.
The speaker expressed his doubts as to whether the New Pact will be actually implemented, in case it is adopted, because experience has shown that the states prioritize their national interest over the EU one. For example, in 2011, as a result of the Arab Uprisings, thousands of Libyans and Tunisians arrived in Lampedusa. Italy provided them with three-month humanitarian permits and train tickets to France, which closed its borders in violation of the Schengen Borders Code, thus “annulling” the major acquis of free movement of persons in the Schengen Area. Denmark, which closed its border with Sweden, and Austria followed next. Τhe failure of the relocations solidarity mechanism for relieving pressure on Greece, also evidences that states prioritize their national interest, notwithstanding the ECJ judgements on Commission’s actions against Hungary and Poland, strongly condemning the two countries. Mr. Papakonstantis thinks that states will continue putting their national interest first, in defiance of the possibility of their voting rights be suspended by virtue of Art. 7 TEU. The fact that, in 2022, 330,000 irregular migrants entered the EU, and a total of 880,000 asylum applications were submitted, out of which only 45,000 in Hungary, leaves no room for optimism, according to the speaker. States, when their national interest is at stake, do not comply with either regulatory instruments or policies. This disobedience is evident not only in the asylum policy, but elsewhere as well, such as in the Common Foreign Policy.
Instead of acquiring more supranational characteristics, the EU moves towards intergovernmentalism. The frequent European Council summits attest to the fact that intergovernmentalism, i.e., the national interest, prevails, was Mr. Papakonstantis’ closing comment.
The last speaker, Mr. Lefteris Papagiannakis, Director at the Greek Council for Refugees, started his speech with the clarification that migration is part of the human history -and not a problem. Owing to climate change or crisis, more and more “climate refugees” will be generated -although the term is yet to become official. The EU, on its part, views migration as an issue to be managed. In this way, the discussion begins from wrong assumptions, while the rise of nationalism only makes things worse.
Mr. Papagiannakis holds the view that in the negotiations for the New Pact, the Council and the Commission push for the adoption of more conservative positions, while the European Parliament has been “blackmailed” to adopt a more watered-down and much more problematic position, as opposed to its initial one. The Parliament’s yield before pressure by the Council and the Commission takes a toll on the EU in terms of the Parliament’s institutional functioning, insofar the Parliament -being in a less advantageous position in relation to the other two EU organs- retreats or chooses to retreat. The fact and only is alarming.
The New Pact provides on management procedures (e.g., legal procedures, solidarity, Eurodac), but does not provide on the inclusion of migrants and refugees. This means that the EU sees migration as a problem to be managed. The proposed Pact came to being and has been impacted by the 2015-17 crisis, which was -as the speaker stressed- a reception and not a refugee crisis. The Pact is also problematic regarding the protection of human rights. Special mention was made of the fact that Greece is already being monitored for not observing rule of law, and could be held accountable and penalized with retention of funds for violating it.
With regard to conditionality as a tool for leverage over third countries so that they agree on returns, Mr. Papagiannakis remarked that it is most insufficient. What is needed is a more structured approach. Another reason why conditionality is inadequate, is because third countries in Africa and the Middle East have started receiving development aid from other third countries, e.g., China, which forward their own interests, that are incompatible with the EU ones, in order to gain power and influence. The EU should therefore stop using conditionality / development aid as a tool, given its ineffectiveness due to the newly shaped circumstances and needs.
Next, the speaker briefly discussed the absence of legal, safe pathways for migration, as well as the issue of Europe’s demographic decline. The latter, being very complex, cannot obviously be resolved by integrating migrants into the European society. This is because an ageing population is an issue that takes time to successfully deal with, and because migrants adapt to the host countries’ way of life -including to lower birth rate. As far as Greece is concerned, there is no integration policy in place, since no government has ever made serious efforts in that direction, and it looks like there is no will to design an integration policy in the future. Quite the contrary, opposing voices have been very clear. The strategic plans on integration only in name deal with the matter, as they include no budget, time schedule or stakeholder participation (e.g., Local Authorities and civil society, which the current government treats as a troublemaker).
To sum up, Mr. Papagiannakis emphasized that the negotiations for the New Pact is a very difficult process, a political debate that negatively impacts the EU at the institutional level and with regard to human rights. The politically sensitive issue of migration is instrumentalized in its own right, but what is more, the very process of the Pact negotiation is also instrumentalized: The Commission would like to close it so as not to be considered to have failed to pass the Pact. In conclusion, the speaker said that, in his opinion, the New Pact on Migration and Asylum will not be adopted.
After Mr. Papagiannakis’ presentation, the coordinator of the second part of the event, Mr. Stribis, summarized the main points of each one of the last three speeches. The event closed with the speakers answering participants’ questions on the above subjects.