The new Pact on Asylum and Migration: An Opportunity Seized or Squandered?

No more old wine in new bottles

Some Member States continue to promote the idea of a mandatory border procedure in non-papers and other informal contributions. Extrapolating from these documents and debates, the potential border instrument would combine the worst and most controversial elements of the 2016 CEAS reform package, pulling together parts of the Asylum Procedures Regulation, Dublin IV and recast Return Directive.

The procedure would be applied to all persons who arrive in the EU to seek protection and would lead to a massive expansion of detention centres at the borders. It would be truncated, with many necessary safeguards removed – but will still require the establishment of judicial infrastructure in the border centres. It may be combined with new proposals for mandatory safe third country and first country of asylum concepts, which would undermine access to protection in Europe, contribute to containment of refugees in other regions and jeopardize efforts for a more balanced sharing of responsibility for people who are displaced globally.

Reducing rights and increasing detention cannot be the answer

A change to the legal framework to introduce a mandatory, accelerated border procedure would undermine fair and effective examination of international protection claims. It is unlikely that all refoulement risks could be properly assessed in such a procedure and many versions of the plan significantly reduce the right to effective remedy. In addition, it will lead to a huge increase in the numbers of people detained and the length of detention, to cover the length of asylum processes and appeal processes. Any proposal that reduces access to a fair and efficient asylum procedure should be rejected.

The presentation of border procedures as a silver bullet to address all ailments of the EU’s current asylum system is a fraud; it will rather exacerbate many flaws and constitute a replication of the situation witnessed currently on the Greek islands. It also reinforces rather than rebalances the disproportionate responsibilities of countries at the borders. While the attempt is made to buy support through offering “solidarity” measures, such as redistribution of persons whose claims are deemed admissible, this will not compensate for having to introduce and manage large-scale prisons for people arriving in Europe.

Related concerns about the Pact are that it might focus excessively on return – the EU could hardly invest more resources in return which has been a priority for years. This disproportionate focus on return is damaging and counter-productive and often comes at the expense of investing in fair and efficient asylum procedures. The same goes for the continued focus on shifting responsibility for asylum to third countries via informal deals or instrumentalising development assistance for achieving EU migration control objectives.

Seizing the opportunity of the Pact: Focusing on compliance where relevant…

The key to making asylum work in Europe is to increase compliance with existing asylum law, not reform (with the exception of the Dublin III Regulation). Prominent implementation gaps which need to be addressed immediately include: inadequate reception provision; barriers to registration; lack of special procedural guarantees; the “asylum lottery” resulting from poor and inconsistent decision-making; and harmful and inefficient use of Dublin. In addition, the widespread practice of push-backs at European borders must end. The European Commission should address these gaps through monitoring compliance, evaluating legislation, issuing guidance to support proper implementation and, where relevant, pursuing enforcement and infringement procedures.

… and reform where necessary: Dublin

[dorotheaarapurtzidou]

With antisocial behaviour in Europe and climate change the refugee and migration business getting too complicated and dangerous game for European leaders.