EU institutions reach comprehensive deal on migration
EU institutions have reached a political agreement on five laws that, for the first time, will lay down a harmonised approach to migration management for Europe, though NGOs have criticised the deal as going against basic human rights.
The deal was reached after 48 hours of negotiations from Monday to Tuesday (18-19 December).
The proposal for a migration pact was first launched by the European Commission in September 2020. Since then, the co-legislators, the European Parliament and the Council of the EU comprised of national ministers, adopted their positions on the pact and then negotiated for months a common approach, with divisions persisting until the very end.
The pact was hotly debated in EU countries, since migration has always been a very sensitive topic in the national context and high political pressure accompanied each legislative step.
In September 2022, EU co-legislators signed a non-binding agreement to reach a common position on the files before the end of the mandate, which will expire next June with the European elections.
Reactions from NGOs and civil society members have been fierce, with over 50 groups penning an eleventh-hour open letter to policymakers highlighting the rights risks embedded in the pact.
“What has been agreed is not better – in many ways, it is far worse,” said Stephanie Pope, EU Migration Policy Advisor at Oxfam International, following the announcement of the agreement.
“The EU missed the opportunity to finally agree on better responsibility-sharing and solidarity rules. Instead, they agreed on more detention, including of children and families in prison-like centres,” she continued.
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Five regulations agreed on
The legislative files indicated in the roadmap to agree on were ten, but a deal was reached only on five regulations.
However, the agreed laws were broadened in scope throughout the negotiations to cover all the aspects EU lawmakers were keen to address.
The laws – Eurodac, Screening, Asylum Procedure Regulation, Regulation on Asylum Migration Management, and the Crisis Management Regulation – will provide EU rules on the management of non-Europeans arriving on EU soil, and will have a critical impact on what will happen at the borders.
The pact does not cover search and rescue operations at sea, which are regulated by maritime international law, nor EU-third country agreements, residence or work permits or visa procedures.
The regulations’ rules apply the first entry into the EU territory, in which new arrivals will be ‘screened’ and biometric data collected – including checks on racial profiling. This data will be collected in an EU database called Eurodac and law enforcement authorities, including the EU police agency Europol, will have access to it.
Afterwards, different channels of application will be put in place, and some applicants will enter into the Asylum Border Procedures, which will be compulsory for three categories: those coming from countries with a less than 20% asylum acceptance rate, those – including minors – who fall into the category of a ‘security risk’, and those who ‘mislead’ the authorities.
There will be no free-of-charge legal assistance during procedures for applicants, who can still benefit from counselling assistance funded by the EU.
A monitoring mechanism to protect applicants, sought after by the European Parliament, will be put in place.
In the procedure, among criteria of rejections, there is the possibility to use the ‘safe country of origin’, which will refer to EU and national lists of not-EU countries considered safe.
Solidarity mechanisms
Under the Regulation on Asylum Migration Management (RAMM), countries in difficulty will be helped by a pool of ‘contributing countries’ that will decide how to provide aid.
In concrete terms, this cross-country help can be in the form of relocation (also under family reunification), financial contributions, the provision of operational material, but also the building of walls, fences, surveillance tools and agreements with third countries.
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According to this agreement, relocations are not mandatory. However, a country under migratory pressure can benefit from solidarity from those countries that decide to help.
The legislation envisages a ‘Dublin offsets’ scenario when there are not enough pledges for relocations.
When a third-country national arrives irregularly in a second member state – one that is not their place of first arrival – and the country of first arrival is not able to take the person back due to high pressure, the second country should take responsibility for the person.
For purposes of family reunification, siblings are not recognised, and only those who are EU citizens or long-term residents in an EU country can apply.
As it stands, the ‘solidarity pool’ (who contributes and with what) will be classified information since according to some negotiators, the disclosure of this information will be considered a potential ‘pull factor’ for migrants.
In a situation of massive arrivals, the Crisis Management Regulation can be triggered by EU member states and in such a scenario, different provisions and derogations at EU borders will be applied.
In this scenario, there will be a solidarity mechanism which does not include mandatory relocations, similar to RAMM, in which member states can decide how to help.
According to civil society organisations, these kinds of emergency situations will create limited access to asylum for applicants at the EU borders.
“The proposals to allow states to disregard asylum standards in a vague and expansive set of situations would be a severe attack on asylum in Europe,” Amnesty International’s EU migration spokesperson, Olivia Sundberg, told Euractiv.
Among the three cases of ‘crisis’, there is the so-called instrumentalisation, which indicates a situation where a country or a non-state actor facilitates the arrival of migrants in the EU territory. As a case scenario of the instrumentalisation definition, it includes the case of disembarkation following search and rescue operations at sea or lake.
However, in the final text, it was specified that humanitarian aid operations should not be considered as causes of instrumentalisation of migrants “when there is no aim to destabilise the Union or member states”.
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Next steps
The agreement is ‘provisional’ and it means that it has to be confirmed with a formal vote by EU lawmakers, after the legal checks. In the meantime, co-legislators will continue the negotiations on the so-called ‘technical level’, which will be crucial for the implementation of the regulations.
The implementation period will be of two years. However, it can be expected that some member states will manage to apply the new provisions at an earlier stage.
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