Outsourcing Responsibility: The EU’s New Pact on Migration and Asylum

The Context

Under Ursula von der Leyen's leadership, the European Commission has had to deal with some of the biggest challenges the EU has recently faced: a global pandemic and the consequent economic disruption, the push toward a green economic and energy transition, and the need to reform the block's migration system after its failure in 2015. For the latter, the EU Commission presented the "New Pact on Migration and Asylum" in September 2020 to rehaul the system. On December 20, 2023, the European Parliament and the European Council reached a deal on the pact, closing a circle of negotiations that lasted three years. The text will now be transmitted to the European Parliament for final approval, which is expected in April 2024.

The Content

The purpose of this package of reforms was to address weak spots in the EU migration regime, but after three years of negotiations, the pact has incorporated individual member states' requests at the expense of a sound common approach. The agreement reached on the main structure of the pact, which is built around five regulations, moves toward stricter border procedures, with fewer safeguards available for asylum seekers and a lack of a functional “solidarity mechanism” to take pressure off entry-point countries such as Italy, Malta, and Greece. External borders are the focus of the reform: screening of migrants will be carried out there through a procedure that will allow national authorities to identify requests as return cases or legitimate asylum requests. This institutionalizes the Hotspot approach, which had been presented previously as temporary. People arriving at the border will be treated as though they had not entered EU territory, which results in reduced safeguards and detention in reception centers. Furthermore, those who traveled through so-called "third-safe countries" (the definition of which will be left to member states’ discretion) before reaching Europe will risk having their requests dismissed without assessment. This will be the case, for example, for people coming through Tunisia, a country considered safe even though it just recently cracked down on migrants and asylum-seekers, expelling hundreds to the Libyan desert. In light of these new measures, more than 200 academics and experts have called the act “inhumane” and are calling on the European Parliament and the Council to review their positions on it.

Regarding one of the most problematic aspects of the EU's migration regime, the Dublin system, the new pact brings little or no change. Countries of first entry will still be responsible for managing arrivals and evaluating asylum requests. The only step forward has been the introduction of a mandatory but flexible solidarity mechanism. Member states will be able to support first-recipient countries through relocations or, if they do not want to take in any migrants, with financial contributions sponsoring the return of illegal third-country nationals, contributing to capacity-building in pressured member states, or supporting non-EU countries hosting large numbers of migrants. Pragmatism seems to have prevailed over principles in the new pact, continuing a shift toward a more security-based migration policy. This shift can be seen in the addition of an "instrumentalization" regulation, which originated in 2021, when the Belarusian government carried out a "hybrid attack" at the EU-Belarus border, resulting in 8,000 border crossings (compared to 667 in 2020) and the declaration of a state of emergency in Poland, Latvia, and Lithuania. The regulation does not frame the concept of instrumentalization with specifics, raising questions about how member states will use this provision in the future.

Next Steps and Risks

The implementation of the pact has yet to begin. The measures approved will require at least two years before they enter into force, so there will be no changes in the short term. Monitoring mechanisms must be put in place to ensure that member states will respect their obligations, particularly regarding infrastructure such as adequate reception centers, and that the new processes at the border will be in keeping with EU and international law. Monitoring will be particularly important as European and international law violations are far too common at the EU's external border. It will be critical also because the ill-defined derogations clauses allowing member states to suspend their obligations and the lack of a sustainable provision of solidarity encourage member states to push for further externalization of migration management. This amounts to an outsourcing of responsibility for how migrants are treated.