Can the European Migration and Asylum Policy be Reformed?

The right to asylum is explicitly stated in the EU Treaties. Article 18 of the Charter of Fundamental Rights of the European Union states, “the right to asylum shall be guaranteed”. This ethos is repeated in Articles 67(2) and 78 of the Treaty on the Functioning of the European Union (TFEU). It is against EU values to turn down legitimate asylum seekers while knowing that returning them to their country of origin would put them in grave danger.

Three Reform Recommendations
As it currently stands, the EU needs a fully-fledged migration management system, with real-time monitoring and a single point of coordination and decision-making, based on robust intelligence collection. Also, the Common European Asylum System (CEAS) needs reform to ensure that it is not abused but protects genuine refugees. The EU needs migration and asylum policies that are effective, efficient and fast (Ueberecken 2019, p. 9). By the end of this year, the European Commission is expected to release the New Pact on Migration and Asylum. According to a recent discussion paper by the European Policy Centre, the New Pact should address the following three aspects.

First, there should be a new way of burden-sharing, putting forward a mechanism for meaningful solidarity between member states. This is considered a reform to the Dublin regulations, which dictated that the country of first entry would be the primary responsible party in protecting, hosting and reallocating asylum-seekers and refugees. This had put tremendous pressure on those countries of entry, such as Greece, Italy and Malta. To relieve this pressure, the EU should implement a coordinated instrument of hosting foreign arrivals, filing asylum applications, processing the applications and allocating asylums through a systematic and needs-based mechanism. Running on pooled European resources in a coherent, coordinated approach, this centralised asylum processing instrument would ensure that countries of entry, such as Greece, are no longer exposed to overwhelming pressure (Neidhardt & Diez 2020, pp. 8-10). However, how exactly this new way of burden-sharing would work remains uncertain.

Second, there should be improved right to asylum, ensuring that procedural safeguards are reinforced, and financial resources and operational support are invested in the regular asylum process to improve the efficiency of the CEAS. Most asylum-seekers and refugees regularly face grave danger in their countries of origin and transit. Moreover, while in transit, many fear death as their boats drown in the sea or respective European countries keep their borders shut, effectively denying them food and essential protection. The New Pact should incorporate measures to improve the treatment of asylum-seekers in this regard.

Third, there should be more robust partnerships with third countries, coordinating for safer and more effective control of irregular migrations as well as smooth facilitating of legitimate migrations. Such cooperation should aim to minimise the use of conditionality, preventing return and readmission from dominating the agenda, increasing and implementing resettlement commitments, and promoting the development of legal pathways. Given the current situation where European countries of entry are concerned to reduce their pressure, there is too much emphasis on keeping the borders shut and sending asylum-seekers back despite the imminence of their danger.

All these recommendations ultimately boil down to how responsibilities are shared among the MS, especially now that the Commission has abandoned von der Leyen’s original plan to relaunch the Dublin reform of asylum rules. Concerning this, the VP in charge of Protecting the European Way of Life has recently used the metaphor of baskets to describe a system of mandatory flexible solidarity. This new system would allow each EU MS to contribute in a unique way, such as providing financial resources, and others contributing to hosting asylum seekers or providing operational support. Each MS would be obliged to contribute in its unique way, to benefit everyone from solidarity. However, this basket model entails many questions. How could the Commission ensure the involvement of every MS? How would it decide if an MS has contributed too little? How could it ensure that all the baskets are filled adequately?

Impacts of the Corona Crisis
Amid the current corona crisis, the EU is faced with enormous challenges, especially in the field of asylum. Not only will the corona crisis significantly delay the future reform of the CEAS but also increase the so-called legitimacy of EU MS to keep their both internal and external borders shut in fear of the spread of the disease. It has been reported that coronavirus outbreaks in the Middle East and North Africa could potentially cause food shortages, destabilise security and strengthen the hand of militant groups, possibly resulting in increases in asylum-related migration in the medium term (Baczynska 2020).

At the same time, the pandemic has highlighted the importance of migrant workers in European healthcare systems. It has exposed Europe’s heavy dependence on the low-skilled foreign workforce, particularly in agriculture and transport, prompting us to reassess how we want to govern mobility going forward, once restrictions are eased. Matteo de Bellis of Amnesty International stresses, “the fact that governments only remember migrants when they need them reveals an embarrassing lack of empathy for people particularly at risk during the pandemic” (De Bellis 2020). In a way, the pandemic has presented itself as a testbed, revealing the true nature of the EU MS in how they treat their migrant workers on land and how they respond to the refugees at sea.

Will the Commission Deliver?
This brings us back to our initial question. Will the EU see meaningful reforms to its migration and asylum policy, after all that it has been through amid the pandemic? In a recent TV interview, the EU Commission Vice President Margaritis Schinas compared the upcoming New Pact on Migration and Asylum to a three-storey building (Euronews 2020). When questioned about his confidence, Schinas replied:

“When this was tried in 2016, Europe was not successful. This time, I think probably we have a better chance because the first and the second floor of the building are more developed. You can claim for solidarity if you can convince that the responsibility element is there, so that you have a stronger external dimension that you can control your borders. So you are entitled to ask for solidarity. I have the feeling that in 2016, the first two floors have not been fully developed. So, Europe cannot fail twice on such an important issue.”

The European Commission has long been known for its conservative neutralism. Despite its expression of confidence, the current leadership is more restrained than before, chiefly due to the increased political diversity among the MS. It also does not help that the Commission group in charge of migration and asylum is named ‘Protecting the European Way of Life’. This has led to criticism that the EU is prioritising to protect its external borders, not the lives of legitimate asylum seekers. Unfortunately, it would not be very surprising if the von der Leyen Commission ends up not achieving much reforms at the end of the day.

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