European Asylum Overhaul Nears Finish Line

Touted as a “historic” resolution to years of contention among Member States, the European Commission’s New Pact on Asylum and Migration has been the subject of controversy regarding the changes proposed to the procedure followed at European borders. The planned changes have been widely criticized, and non-governmental organizations have warned they could lead to a crumbling of human rights and the solidification of dangerous and often excessive practices at the borders

Negotiations on the pact, proposed by European Commission President, Ursula Von Der Leyen, almost three years ago, are reported to be in their final stages. On the heels of a characteristically prolonged period of conciliation between European institutions, officials have made their intentions of finalizing the content of the pact before the new year. It has become a priority to push the pact through before the upcoming European elections in the summer of 2024.

The pact is composed of five principal pieces of legislation which collectively aim to define and present a coherent legal framework outlining the measures to be taken in ordinary and extraordinary situations at the external borders of the Union. By formalizing procedures to be followed in the event of unusual pressure at the borders, the pact is envisioned to put an end to the autonomous and uninhibited responses of states to the increasingly common phenomena of border crises. It will also provide some relief to so-called frontline countries, whose national borders form the external borders of the Union and who must evidently bear the brunt of new arrivals. These nations have thus been the most vocal in their support of migration reform to reduce the perceived inequalities with regards specifically to the distribution of migrants across the 27 member states.

The “Screening Regulation” envisions a 5-day screening procedure to be imposed on all people on the move who enter the territory of the Union irregularly. During the course of this procedure, national authorities will collect biometric information and perform security and vulnerability checks. This preliminary inspection of the migrant’s profile will, in theory, allow for more accurate decision making as the asylum process continues. The data collected will be stored in the European Dactyloscopy database, which is used to keep track of and verify the identity of those who submit asylum requests. The prospects of this regulation in light of the constantly shifting migratory fluxes remain grim. However, the amount of time allowed for the procedure (extended to 10 days in the event of a “massive influx”) is more likely to lead to an increase in time spent in detention centers, waiting for a screening, rather than a well-functioning procedure. Furthermore, the fast-tracked procedure casts doubt on the ability of officials to correctly determine vulnerabilities or security risks and provide the necessary support. 

Alarmingly, all screening procedures will take place under what is called the “legal fiction of non-entry,” which establishes a difference between the physical border and the legal one. While they may have crossed the physical border, migrants are not considered to have entered the territory of the Member State until their presence is established and validated by a border official, which is the end-result of the screening procedure. As a result, they have crossed the ‘legal border’ and can now be considered as within the territory of the European Union. The European Council on Refugees and Exiles comments that in practice, this creates a transitory space of diminished protections, where Member States can potentially derogate from ensuring the rights that they would otherwise be compelled to if the migrant were to be inside their territory legally. This space is essential for the increased efficiency of border procedures, as it is the part of the justification used to impose limitations on movement, such as in detention centers, and increased observation on migrants.

After undergoing the screening procedure, migrants seeking asylum will be directed to one of two channels: normal asylum procedures, or the newly-introduced accelerated procedures, also termed border procedures. The border procedure applies to those applicants who are perceived to present more of a risk – those who have provided incorrect personal information, or that come from countries from which more than 20 percent of asylum applications were rejected. These asylum seekers may be detained for a period of up to 12 weeks, after which authorities will be granted a further 12 weeks to deport applicants in case of a rejection. In the common case where returning the migrant is not possible in this timeframe, the return regulation allows for up to 6 months of detention pending an impending deportation. The allowance for this extended period of detention would see migrants spend months in detention facilities and closed camps, which have until now proved to be ill-equipped to manage even their current load: inadequate access to shelter, food, and water are constantly reported at camps including in the frontline country of Greece.

The border procedure also takes place within the context of the aforementioned legal fiction: access to free legal aid, usually taking the form of further explanation of the asylum procedure and work on the potential and viability of appeal procedures, is not guaranteed by the pact, and the filing of an appeal does not inhibit the return procedure. This means that a person could be deported outside of the country while the appeal to a rejection is actively being processed. The border procedure, then, creates a hierarchy among asylum-seekers, based on not only their actual and potential behavior but immutable characteristics such as ethnicity. It risks generalizing the nationals of a particular nation to such an extent that the asylum procedure, meant to provide protection to the vulnerable, loses meaning and effectiveness.

The legislation introduced for the benefit of frontline countries is one of forced solidarity: when a frontline country declares itself to be in a state of migratory crisis, other member states must either relocate some migrants to their own territories or provide monetary support to the country undergoing the crisis. Tellingly, the European Commission has continuously stressed that payments made to the “solidarity pool” (which amount to 20, 000 euros per individual migrant) will exclude member states from having to relocate migrants to their own territory. There is no proposed guidance for the apportionment of the money, and thus no guarantee that it would be spent on bettering the experience of asylum seekers rather than strengthening border control mechanisms which would only serve to keep more people out.

The single most contentious segment of the pact is the proposed Crisis Regulation. This regulation, which comes into effect only during a “migratory crisis” or a major unforeseen event,  allows member states to derogate from standard asylum procedures. The length of border procedures, and thus the length of potential detention, could be extended by a period of 8 weeks, and parameters for directing asylum seekers to the border procedure could be loosened. The terms which form the cornerstone of this part of the regulation, crisis and force majeure, are not clearly defined. This leads to a situation where member states are incentivised to adopt a loose definition of crisis in order to more effectively create optimal conditions for their own goals, thus normalizing derogation from European Union law as a valid response to events that may or may not be considered “emergencies.”

Non-governmental organizations such as Amnesty International have strongly criticized the pact, with Director of the European Union office, Eva Geddie, commenting that “This agreement risks leaving people stranded, detained or destitute along Europe’s borders and will do nothing to improve the protection of asylum seekers in the EU.” in response to an agreement on the crisis regulation reached in October, while Human Rights Watch has stated that the pact will do nothing but increase suffering at the borders.  In the European parliament, the Left party has consistently advocated centering the rights of asylum seekers, with member of parliament, Cornelia Ernst, referring to the pact as “making a bad situation orders of magnitude worse.” 

The European Commission's New Pact on Asylum and Migration, aimed at resolving long standing disputes, faces significant criticism for its proposed border procedure changes. Concerns about potential human rights erosion, disproportionate practices, and procedural complexities persist. As negotiations near completion, the pact's impact on the rights and well-being of asylum seekers remains a contentious issue, drawing attention from both NGOs and within the European Parliament. The coming months will reveal whether these concerns are addressed in any meaningful way or if the pact proceeds despite the raised objections.