Civil society’s key concerns about the reform of EU asylum law
By Catherine Woollard, European Council for Refugees and Exiles (ECRE)
The new proposals for the EU Pact on Migration and Asylum have been closely followed and analysed by various civil society organisations. Their major concerns include ensuring that the new Pact is not only in accordance with the values the EU stands for but is also in accordance with international law. Catherine Woollard, Director of the European Council for Refugees and Exiles, ECRE, frequently publishes her analysis and comments on the reform. Below she considers the main concerns of civil society and outlines priorities for the final stage of the reform process.
Concerns about the proposals
The reform of the EU’s Common European Asylum System (CEAS), the body of EU law on asylum matters, is reaching a conclusion after seven long years. The reform will introduce significant changes into the CEAS, already one of the most contentious areas of EU law. Civil society has closely followed the process, providing analysis, proposing amendments to the legislative proposals, and working with the co-legislators.
While civil society remains concerned about the content of the changes, the end of the reform process also marks an opportunity to return to a focus on implementation after many years when time and resources have been concentrated elsewhere, with compliance often neglected.
Civil society has expressed many concerns about the proposals. First, the proposals generally reduce protection standards in Europe. They are based on containing people at borders in order to facilitate rapid return to the countries of origin or to third countries and on a more restrictive approach which aims to deter people from seeking protection. This is based on the oft-repeated but nonetheless false notion that a large majority of asylum applicants arriving in Europe do not have protection needs. In fact, the protection rate — the percentage of asylum seekers who are recognised as in need of international protection — has been consistently high. In 2022, at first instance the figure was 49% on average across the EU. At second or further instances, following an appeal or review, around one-third of cases result in a positive decision, and there are also people with protection needs who do not have access to a fair or even an in-merits process, for instance, for Syrians who arrive in Greece. All told, it seems very probable that a majority of those arriving are entitled to protection — unsurprising when by far the most prevalent countries of origin are Syria and Afghanistan, with Iraq, Iran, Eritrea, Turkey and Venezuela other major countries of origin. In any case, harsh policies don’t serve as a deterrent when record number of people are displaced, with over 90% hosted in poor or fragile countries.
Second, the Pact and the 2016 reforms that preceded it, envisage a greater focus at the borders. The Screening Regulation provides for a screening process to take place at the EU’s external borders for all people arriving, in a fiction of non-entry — the pretence that the person has not entered the territory of the country (and the EU), which contributes to justifying the use of detention as the recast Reception Conditions Directive allows for the use of detention to assess whether a person should be allowed to enter.
In addition to the new screening process, the heart of the reform is the expanded use of special procedures, including the mandatory use of the asylum border procedure, which exists in the current CEAS but is not mandatory, and of the new return border procedure. In addition, acceleration of the examination procedure becomes mandatory in many cases.
Civil society is concerned because border procedures reduce the likelihood of protection being granted, often because a fair process is harder to realise in the border context. In addition, accelerated procedures may not allow sufficient time to examine claims, given the many complex cases in asylum systems. The erosion of procedural guarantees foreseen will weaken the position of the applicant vis-à-vis the already more powerful and often hostile state. As in any proceeding in any area of law, procedural guarantees are there to ensure fairness, which is undermined if they are harder to access.
Overall, civil society is also concerned about the increased administrative burden created by these new and highly complex procedural changes. A more efficient system would involve greater investment in the regular procedure, rather than the creation and management of this complex labyrinth of special procedures. A related fear is that, faced with increased responsibilities, the member states at the EU’s external borders are more likely to resort to pushbacks. The experience in Greece tends to indicate this as a possibility.
Third, although the reforms are premised on creating a new balance between responsibility and solidarity, the rules on allocation of responsibility in the new Regulation on Asylum and Migration Management (RAMM) remain largely similar to the current Dublin system. There is even increased responsibility for the countries at the external borders, as the duration of responsibility for an applicant is extended significantly and there are measures throughout the package to enforce take-back requests (whereby countries seek to transfer asylum applicants back to the country where they entered the EU), many of which fail currently.
For years, if not decades, the dysfunctionality of the Dublin Regulation, and notably of the principle of first entry, has been recognised. Although the Dublin Regulation is repealed and replaced by the RAMM, civil society is concerned the reform shies away from the deeper reform many consider necessary.
Fourth, punitive and deterrent measures run through the proposals but they are unlikely to discourage people from seeking protection, given that the majority are fleeing violence, persecution, and repression. Others who may not qualify as requiring international protection tend nonetheless to be in situations of forced migration. The measures proposed are likely to result rather in increased destitution, irregularity and vulnerability to exploitation. For example, the expansion of border detention may lead smugglers to diversify routes and switch to more expensive and more dangerous options. Attempts to punish ‘secondary movement’ (onward movement within the EU) include withdrawal of reception conditions however people are still likely to move onward — to escape poor reception conditions, detention or lack of integration prospects in the member states at the border.
Finally, many of the proposals are highly complex and have been rendered even more so by the amendments proposed by the co-legislators. In some cases, questions arise about workability and whether the proposals can actually be implemented
Three priorities for the conclusion of final stage
Defend the right to asylum in the negotiations
Although the overall direction of the reforms is negative, there is still a chance for improvement. As ECRE’s comparison of the positions of the European Parliament and the Council shows, there are numerous points on which the two disagree. The final stage in the process should focus on maintaining the positive changes that have been introduced and reducing or mitigating damage linked with negative changes. Generally, the Parliament’s amendments are preferable, although, on the main elements of the reforms, it has already made significant concessions and largely accepted the provisions in the Commission proposal.
The Council’s amendments, on the other hand, tend to worsen the proposals from a fundamental rights perspective, although there are also examples of where the Council’s position is better. In the negotiations, the Parliament must ensure that it defends its positions but also that — where it does concede — it then receives sufficient, equivalent concessions in return. For example, one of the points of disagreement is on the border procedure, where Parliament’s position removes the mandatory use of the border procedure, while the Council’s expands its use. It is widely assumed that the Parliament will concede on this point and accept the mandatory use of border procedures for certain categories of applicants. Given the serious impact of the border procedure, any such concession must be accompanied by other changes, including the bolstering of procedural guarantees, such as free legal assistance.
Definitively end the reform process: back to compliance
For seven years, drafting, promoting, analysing and negotiating the reforms has absorbed a large amount of time, not least of the European Commission. This has been to the detriment of enforcement of EU asylum law, which is already in place: the reforms have not been launched in a void, the EU already has extensive, complex and relatively new instruments forming a common asylum system. ECRE argued that the focus should have been on compliance and not reform (with the exception of the Dublin Regulation), given the widespread, often flagrant violations of the law which take place across Europe.
When the reform ends, prominence should be given to implementation. This requires a definitive end to the process, including the withdrawal of proposals that are not accepted. In particular, ECRE argues for the withdrawal of the hugely damaging instrumentalisation proposal1, which, if passed, would lead to a de-harmonisation of EU asylum law, as well as undermining the global protection system. If the reform continues after spring 2024 it will immediately run into challenges: a new Parliament will be elected in June 2024 and a new Commission nominated shortly afterwards, at the same time, the Council Presidency will be held from July 2024 by Hungary, Poland and then Denmark, all Member States with extremist positioning on asylum policy and likely to use the process to generate anti-EU sentiment.
Fair and comprehensive implementation
The implementation that follows the conclusion of the reform should be comprehensive and fair, ensuring that member states comply with the rules in all areas of the CEAS. This means that longstanding implementation gaps must be addressed, including sub-standard reception conditions; the asylum lottery that leads to significant divergences in protection rates; the systematic neglect of the procedural guarantees; the lack of registration; and the failure to ensure that the family unity and children’s rights are respected in allocation of responsibility for applications.
The debate about implementation has already begun and there are worrying signs that implementation might be selective, focusing on certain parts of the reform which are considered priority for some states, such as the border procedure. As part of a wider proposal for the revision of the EU’s budget, the Commission has proposed an additional €2 billion to be allocated to the Asylum, Migration and Integration Fund (AMIF) for the next four years. It refers to reception infrastructure, returns and relocations. If the proposal is accepted, it must be recalibrated to ensure a balanced implementation of the Pact from the start.
Finally, whatever legislative reforms are agreed, EU asylum law must be implemented in accordance with jurisprudence of the Court of Justice of the European Union, with EU primary legislation including the Charter of Fundamental Rights and with international law. The EU’s oversight bodies, including the European Court of Auditors, will all have a crucial role to play in ensuring that a functioning asylum system in the EU is in place through proper implementation of the reformed legal framework.
(1) In response to the increasing role of state actors (for example by the Belarusian regime) in artificially creating and facilitating irregular migration, using migratory flows as a tool — instrumentalise them — for political purposes, to destabilise the EU and its member states, this proposal sets up an emergency migration and asylum management procedure in relation to third-country nationals and stateless persons apprehended or found in the proximity of the border with a third country instrumentalising migrants after an unauthorised crossing or after having presented themselves at border crossing points.
This article was first published on the 2/2023 issue of the ECA Journal. The contents of the interviews and the articles are the sole responsibility of the interviewees and authors and do not necessarily reflect the opinion of the European Court of Auditors.
