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A New EU Pact on Migration and Asylum

Maddalen Martin-Arteche , 27 septembre 2020

On 23 September 2020, the European Commission released a Communication on a New Pact on Migration and Asylum, whereby it announced its intention to adopt a number of legislative and non-legislative acts in the field of asylum, immigration and external borders of the European Union.

 By adopting the Pact, the efforts to reform the Common European Asylum System ever since the first legislative proposals to that effect were adopted following the 2015 refugee crisis are culminated. The latter crisis and its impact on EU Member States revealed shortcomings, for example, in the design of the system put in place for the allocation of responsibility between EU Member States over applications for international protection lodged by third-country nationals. Indeed, the Dublin system was said to place a disproportionate burden on certain Member States, especially frontline States where migrants set foot for the first time upon arrival at EU territory.

 The new Pact comprises, in particular:

-       A Proposal for a Regulation introducing a screening of third-country nationals at the EU external borders.

-       An amended Proposal for a Regulation establishing a common procedure for international protection in the EU.

-      A Proposal for a Regulation on Asylum and Migration Management putting in place, inter alia, a new system to determine the Member State responsible for examining an application for international protection.

-       An amended Proposal revising the Eurodac Regulation.

-       A Proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum.

-       A Recommendation on an EU mechanism for preparedness and management of crises related to migration.

-       A Recommendation on legal pathways to protection in the EU, aimed at promoting resettlement and humanitarian admission, among others.

-       A Recommendation on cooperation among Member States concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities.

-      A Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorized entry, transit and residence of third-country nationals.

In addition, the Commission announced the establishment of a taskforce to improve migrant reception facilities on the island of Lesvos (Greece). Such initiative comes as a response to the fires that, on 8 and 9 September 2020, devastated the Moria reception camp on Lesvos, leaving over 12,000 persons without a shelter.

 Two aspects of the New Pact must be highlighted. First, the announced Proposal for a Regulation on Asylum and Migration Management would not only replace the current criteria and mechanisms for determining the Member State responsible for examining an application for international protection. It would also set up a new solidarity mechanism to support Member States under migratory pressure. Such pressure would be assessed in the light of, inter alia, the number of applications for international protection lodged with the national authorities of a given Member State. Although compulsory, once the solidarity mechanism would be triggered, Member States would be entitled to choose the form of assisting the State under migratory pressure:

-       By accepting on their own territory some asylum seekers relocated from the Member State in difficulty.

-       By taking responsibility for returning to their countries of origin some persons with no right to remain in the EU.

-      Or by taking measures aimed at strengthening the capacity of the Member State under pressure in the field of asylum, reception and return.

The latter mechanism replaces previous mandatory solidarity mechanisms in the field of asylum, such as the two 2015 Council Decisions whereby Member States were obliged to relocate asylum seekers from Greece and Italy over a two year-period (from 2015 to 2017). Indeed, not all Member States welcomed nor complied with such mandatory relocation mechanism, as the judicial disputes between the Commission and Poland, Hungary and the Czech Republic evidenced (see the Court of Justice of the EU’s Joined Cases C-715/17, C-718/17 and C-719/17, Commission v. Poland).

In the light of the above, one could expect that Member States will content with the wider range of options at their disposal to assist each other in case of migratory pressure and, that, eventually, the number of judicial proceedings before the Court of Justice of the EU would decrease.

The second element in the Commission’s New Pact that deserves our attention is the ever-increasing focus on the importance of cooperating with third countries for the purpose of tackling current migration challenges (e.g. migrant smuggling). In the 23 September Communication, the Commission calls for bringing together a number of EU policies other than migration to promote cooperation with third countries, including education, development, visa, agriculture and trade policies. Although the latter approach is not new, the New Pact signals the EU’s will to exploit its external relations to the greatest extent possible to address challenges related to migration and asylum.

Maddalen MARTIN, A New EU Pact on Migration and Asylum, actualité du CEJE nº 34/2020, disponible sur www.ceje.ch

Catégorie: migration