Now in place, the new Commission needs to decide how it will approach asylum and migration – and whether it will embark on a new path, as urged by ECRE. The two Commissioners in charge, Margaritis Schinas and Ylva Johansson have both made strong and welcome speeches about doing things differently, about the need to change the narrative and the framing of asylum and migration in Europe.
They have an opportunity to signal a change in direction with the new Asylum and Migration Pact and the choices they make as to its process, status and content. The Pact could be used to realise the right to asylum in Europe and lay the groundwork for a rational, self-interested migration policy. Alternatively, if some of the rumours are to be believed, it may represent a consolidation of the old approach, simply repeating and reframing the same old damaging policies of keeping people out, regardless of the cost and consequences. In particular, the relationship between the Pact and the potential proposal for a new legal instrument, the “Border Instrument”, needs to be scrutinized.
The process: wider input
It seems that the Pact will be prepared quickly which has the benefit of avoiding endless circular and often toxic discussions. On the other hand, a rushed process is likely to be dominated by DG Home, the JHA Council and the Member States’ Interior Ministries because these are the main interlocutors for the Commissioners. This will lead to a skewed process and a distorted Pact that does not address asylum and migration in the necessary broader way. These political constituencies remain firmly committed to the existing agenda – deter, externalize and prevent arrivals (including of refugees). Instead, consultation should cover all relevant ministries, implementing agencies, and civil society broadly understood, in particular refugees and migrants themselves, and not just NGOs but also businesses, unions and academics.
The status: a political commitment
The Pact is likely to be in the form of the Communication making it a political document. The question is then how it relates to the EU’s legal framework on asylum and migration. One of the more concerning theories at present is that the Pact will lay the groundwork for the introduction of the Border Instrument, which will then be negotiated and even agreed during the German Presidency in the latter half of 2020.
The Border Instrument, if it comes, would be a new legal instrument that draws the worst elements from some of the legislative proposals on the table, specifically the Asylum Procedures Regulation, Dublin IV and the recast Return Directive. In particular, it would introduce mandatory border procedures to be applied to all people arriving in the EU to seek protection, perhaps with safe third country and first country of asylum concepts making a comeback. These procedures would be truncated, probably not respecting individual guarantees, and probably not ensuring clear exemption of vulnerable persons. The model is likely to entail de facto detention for everyone, in detention centres at the border, and a supposedly rapid return process.
The idea has been promoted by a few Member States over the last two years and also featured in Member States’ discussions on the APR; a version of it is contained in the Return Directive recast. Alarm bells have been ringing with the circulation of “Food for Thought” paper from Germany’s Interior Ministry, which might indicate German support for the idea.
Buying off the Borderlands?
There has been strong opposition to the idea from countries at the borders, on the basis that it would involve them managing large-scale detention centres and create multiple additional responsibilities for them, including expecting them to manage additional procedures. The recent forms of the proposal offer them a deal: additional solidarity measures will also be introduced and in exchange they should accept the mandatory use of border procedures.
The German non-paper even acknowledges that Dublin, the current system for allocation of responsibility, is unfair – which is a positive breakthrough in itself. However, reforms are important in and of themselves. The deal on the table is a bad one and should be rejected by the border countries – a small and probably non-mandatory amount of “solidarity” in exchange for being the site of large-scale prisons for people on the move doesn’t really add up.
For refugees arriving in Europe, the model is clearly a disaster; it is simply a scaling up the hotspot/Greek Island situation. Anticipating this plan as the next fake “solution” to Europe’s supposed problem, ECRE set out its critique six months ago, in its Policy Note “Border Procedures: Not a Panacea”, which concludes that “border procedures are not conducive to a fair and effective examination of international protection claims”, highlighting fundamental rights AND efficiency concerns, as well as showing that increasing or mandatory use of border procedures is based on “unsubstantiated assumptions about their feasibility”.
The Pact as a positive alternative to the Border Instrument
Instead of serving as vehicle for a dirty deal among the Member States, as to allow the Border Instrument to go through, the Pact should be an alternative to it.
The Pact should focus on making asylum work in Europe. This means compliance with existing asylum law, not reform (with the exception of Dublin). ECRE has identified five key implementation gaps: inadequate reception provision; barriers to registration; lack of special procedural guarantees; the “asylum lottery” resulting from poor decision-making; and harmful and inefficient use of Dublin. Let the focus be on addressing these challenges. The 2016 proposals should be withdrawn, which looks likely. But why then replace them with more unnecessary proposals that will reduce protection standards and also won’t generate consensus? Compliance will not be enhanced by creating more law.
On Dublin, a meaningful reform process should start and the Pact could provide the framework. Dublin IV did not address the key flaw of Dublin, the first country of arrival default, so is not a good basis for a discussion, but there are hundreds of “alternatives to Dublin” proposals on the table. In the meantime, the amount of discretion available to Member States in Dublin III means they can make political choices to implement the Regulation in a humane and rights-based way, while minimising the burden on countries at borders: prioritise family reunification, limit transfer requests (most of which fail anyway), use the sovereignty and humanitarian clauses in the interests of refugees and to promote solidarity. Other short-term measures can be put in place to deal with the damaging impact of the system, such as relocation and provision of support in line with the needs of people arriving and the countries they reach.
With a focus on core asylum policy, the Pact should then contain important flanking measures to support asylum systems: a massive increase in safe and legal channels for asylum and non-asylum migration; and a strong focus on inclusion through rights, respect and regularisation. Rather than tests to prove adherence to fast disappearing European values, ensuring that the rights of third country nationals are respected would contribute to inclusion. Key rights where the EU could play a role include the right to work (and tackling of labour market exploitation), and the right to housing for all, as situations of destitution while generating shameful suffering are also a major contributor to public fear.
The Pact could then describe how EU funding, European Commission resources, and the support of EU agencies can be deployed to support a positive vision of asylum in Europe. For example, the Commission focused on guidance on tackling implementation gaps and infringement proceedings where needed; the new EUAA based on the 2017 agreement monitoring and supporting compliance in the Member States, as well as helping build capacity in national asylum systems, rather than on implementing the EU-Turkey Deal, managing controlled centres or other negative scenarios.
Keep in your lane
What the Pact shouldn’t contain however is external cooperation. Asylum policy is unique among policy areas in that policy-makers always look to other policy areas to make it work –foreign policy, development policy, security policy, return policy. The first step in making asylum policy work is to analysis what is wrong with asylum policy and try to fix it. Similarly, if you want to improve trade policy, you analyse trade policy, identify the problems and try to resolve them; you wouldn’t immediately look at other policies or indeed other countries of the world for solutions.
As in other policy areas, for asylum, the problems are a combination of poor implementation, lack of resources, and bad law creating dysfunction (Dublin). That the Commission, judging by Von der Leyen’s plans and the speeches of the Commissioners, is emphasising external non-solutions is a key weakness. Why would a Pact for Asylum and Migration in Europe focus on external affairs? Why are policy-makers with internal affairs remits so obsessed with capturing external policy? There is enough to be done in making asylum work in Europe. The only likely outcome here is to continue to undermine EU external policies at a time when the EU is yet again trying to establish itself as a serious global or “geopolitical” player.
The other trap to avoid is the myth that making asylum policy function requires return to increase. First, most of the implementation gaps in asylum policy have nothing to do with return. Second, the reasons for low return rates are multiple and complex, and often to do with countries of origin being unsafe or unwilling to accept back their nationals, or simply focused on other priorities. Low return rates are not primarily about the risk of people absconding and will thus not be changed by large-scale detention at the borders. One of the favoured phrases of outgoing Commissioners was that asylum systems are “clogged up” with the undeserving but this theory misrepresents the complexity of the situations that people leave and the legal cases that result. The high levels of forced displacement mean that many of those arriving do have protection needs.
This is not a trade-off – European states will “generously” continue to offer protection (i.e. meet their obligations under EU and international law) and in exchange mass deportations must occur. Return is one piece of asylum and migration policy – it is not the solution to everything. It already benefits from hugely disproportionate resources and attention. A similar false trade off exists with borders – if Europe wants to offer protection, it must accept that refugees often need to cross borders to reach safety. And that this not a security threat.
Thus, the test of whether this Commission really wants to do things differently is already underway. Will it run an open process and develop a Pact bases on making asylum work, compliance with existing standards, and unconditional reform of responsibility sharing, with short and long term solidarity measures? Or will the Pact be the basis for yet another attempt to legislate to keep people out, at a time when many arriving are in need of protection?
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)
New President of the European Commission Ursula Von der Leyen and Commissioner for International Partnerships Jutta Urpilainen visited Ethiopia to strengthen the EU’s partnership with the major refugee hosting country in the region. For North Africa, new actions of €150 million under the EU Emergency Trust Fund (EUTF) will focus on efforts to “combat human smuggling and manage irregular migration” and promote “voluntary return”.
During her first official visit outside Europe as President of the Commission, Ursula von der Leyen announced a significant boost to the EU's cooperation with Ethiopia. EU plans to help Ethiopia’s political transition and economic reforms to consolidate the country’s leading role in promoting economic integration, peace and stability in East Africa with €170 million. Ethiopia is one of the main refugee-hosting countries in Africa with a refugee population of more than 700, 000 people from Somalia, Eritrea and South Sudan as well as 2,1m internally displaced persons (IDP). Urpilainen travelled on to Kenya where she announced programmes totalling €31 million to boost investment and create jobs.
Under the North Africa Window of the EUTF, the Commission adopted four new “migration-related actions” totalling €147.7 million. The bulk of the amount, €101.7 million, will support Moroccan efforts to “combat human smuggling and manage irregular migration”. The second biggest chunk with €24 million is dedicated to “Voluntary Humanitarian Returns from Libya and protection measures”, in cooperation with the International Organisation for Migration (IOM). €17 million will support communities and vulnerable children in Libya.
The EU Emergency Trust Fund for Africa was established at the Valletta Summit on Migration in November 2015 to address the “root causes of instability, forced displacement and irregular migration and contribute to better migration management”. Despite formal commitments to create legal pathways of migration, the funding attributed to this objective remain marginal.
A report of the European Court of Auditors (ECA) reviewing EU support to Morocco found that budget support did not provide sufficient support for the country’s reforms and sustainable development goals. Migration under the Joint Programming (JP) process was outside the scope of the audit.
For further information:
- ECRE, Commission 4-year-Progress Report Lists Fall in Arrivals as Key Achievement, October 2019
- ECRE, Spain Curbs Last State-Run Rescue Operation in EU, August 2019
- ECRE, 52 People Jump Fence into Melilla while 40 Arrested, May 2019
- ECRE, Situation Worsens for Migrants on Western Mediterranean Route, June 2019
- ECRE, EU Report Links Drop in Arrivals to Spanish Moroccan Cooperation, May 2019
- ECRE, Op-ed: The Rights of Minors – UN Condemns Spain’s Push-Backs and Demands Legal Amendments, March 2019
- ECRE, Editorial: EU Africa Relations: Tone Down the ‘Newness’ and Revisit History, October 2018
- ECRE, Op-ed: Cooperation with Morocco in the EU’s African Border – a laboratory of externalization, January 2018
- ECRE, Trust Fund for Africa: focus on short-term EU policies jeopardizes long-term development goals of African partners, November 2017
After Pope Frances visited a refugee camp on the Greek island of Lesbos last week, his aide brought 33 refugees back to Rome where they will be hosted by the Vatican and the Community of Sant’Egidio. Faith-based and civil society associations from different European countries propose to take the model of “humanitarian corridors” to the European level.
The 33 refugees, among them families from Cameroon, Afghanistan and Togo, arrived in Rome on December 13. The Vatican’s latest “human corridor” mission from Lesbos was implemented following the approval of Greek authorities and the Italian interior ministry. Cardinal Konrad Krajewski, the Vatican’s almoner, condemned the EU’s handling of the refugee situation and urged Catholic churches across Europe to open their doors to refugees.
Italy is the only European country that has been regularly cooperating with the UN Refugee Agency ( UNHCR), to evacuate vulnerable people from detention centers in Libya directly and via the UN Emergency Transit Mechanism in Niger. Since December 2017, 913 vulnerable people have been relocated to Italy from Libya. France, Belgium, and Andorra have also provided humanitarian corridors, mainly to refugees from camps in Lebanon and Ethiopia.
A group of faith-based and ecumenical associations are working to take the “good practice” from Italy to the European level. Following a declaration by 15 representatives of Protestant churches from 15 EU countries in October, Paolo Naso, coordinator of the refugee and migrant programme of the Federation of Protestant Churches in Italy (FCEI) presented a concept paper in the European Parliament this week outlining goals and principles for “European Humanitarian Corridors”. The paper envisages a flexible approach adapted to the national context of each state and involving international organisations and NGOs as well as national governments and civil society organisations. The goal is to transfer, in cooperation with UNHCR, 50,000 vulnerable people from Libya and neighbouring countries to the EU over two years.
Representatives of the Italian government declared the commitment of Italy to lead this initiative. Vice-president of the European Parliament Fabio Massimo Castaldo stressed that the main challenge is to include funding for European Humanitarian Corridors in the EU’s financial framework for 2021-27 currently under negotiation.
For further information:
On December 11 authorities in Bosnia-Herzegovina carried out operations to remove between 600 and 700 people from the Vucjak camp near the countries northern border with Croatia. The removal follows widespread criticism of the inhumane conditions in the camp including by Council of Europe Commissioner for Human Rights Dunja Mijatovic
In an operation involving 100 police officers and 15 buses the former inhabitants of the Vucjak camp have been transferred to temporary accommodation in Usivak near the capital Sarajevo. They will be relocated to spend the winter in the former barracks of Blazuj where the first 300 have already arrived. According to a spokesperson of the canton of Sarajevo the operation was carried out without difficulties or incidents but media had no access to the site.
The Vucjak camp, established in June is surrounded by landmines left over from the wars of the nineties, and the conditions poses significant health and safety risks with people left in makeshift tents without heating in temperatures falling below zero at night. After a visit in the camp in early December Europe Commissioner for Human Rights Dunja Mijatovic stated: “If we don’t close the camp today, tomorrow, people will start dying here.” Mijatovic welcomed the closure of Vucjak and thanked the NGOs and volunteers who had provided assistance in the camp during its existence.
Since 2018 an estimated 50,000 people have entered Bosnia-Herzegovina irregularly since 2018 and up to 8000 remain in the country. Violence, abuse and push-backs from Croatian border guards of people seeking access to Europe via Croatia from Bosnia-Herzegovina is well documented. On December 12 local media reported that Croatian police are beating and robbing migrants arriving from Bosnia-Herzegovina and secretly transporting them to Serbia.
For further information:
The corpses of six people who had entered Greece irregularly were discovered between December 5 and 8 in the Evros region. Greek authorities are reportedly considering to extend an existing iron fence along the entire Evros River on the Northeastern border.
According to the Greek coroner four men and two women under the age of thirty whose bodies were discovered in the Evros region died from exposure to the cold. They presumably entered Greece irregularly and none of them carried any ID.
An estimated 14,000 people have taken the route through the Evros region to enter Europe from Turkey so far this year. Greek authorities announced in November the hiring of 1200 new border guards, 400 of which were to be located in that area. According to local media the Greek government further plans to extend an existing iron fence along the entire Evros River stretching 230 kilometers.
Despite the increase of arrivals through the Evros region the route across the Aegean Sea remains the main transit point for people seeking access to Europe. The UN Refugee Agency (UNHCR) estimates that 55,000 people have crossed from Turkey to Greece via the Aegean islands so far this year.
For further information:
Although the German Federal Foreign Office has declared Syria unsafe for returns, Interior ministers of the German federal states are pushing for the return of certain individuals back to Syria.
During last week’s council of interior ministers, the extension of the general ban on deportations to Syria for an additional six months was approved until June 2020. The interior ministers further instructed the Federal Foreign Office to update its evaluation of the situation in the country by that date and to consider possibilities for returning certain individuals, namely persons who pose a threat to national security, who have been condemned for committing serious crimes and/or who have visited Syria. ECRE member PRO ASYL is concerned that many refugees will be left with insecurities about their future and recalls that returning any person to Syria would constitute a clear violation of international and European law.
Conservative forces have been pushing for deportations to Syria since November 2018. However, several sources, including the German Foreign Office, continue to document alarming and persisting human rights violations in Syria, ranging from massive unlawful arrest and detention practices, the lack of protection for persons being persecuted across the territory and the conduct of politically motivated security screenings by the authorities of persons who wish to return back to the country. Since 2012, more than 144,000 people have reportedly been imprisoned or disappeared and 17,000 people have been tortured to death.
In addition to adequate conditions in the country of return, ECRE has named three prerequisites for return that need to be in place in Europe for return to be legitimate: fair and consistent asylum decision-making, dignified return procedures, and partnerships with third countries that are transparent and respect fundamental rights.
For further information:
- ECRE, Amnesty Report Documents Forced Returns from Turkey to Syria, 31 October 2019
- ECRE, Lebanon: Deportations of Syrian Refugees Despite Warnings, 5 September 2019
- ECRE, Germany: Conservatives Push for Deportations to Afghanistan and Syria, June 2019
- ECRE, Germany: BAMF Stops Processing Syrian Asylum Applications while Reassessing Security Situation, May 2019
- AIDA, managed by ECRE, Country Report Germany, 2018 Update, April 2019
- ECRE, Policy Note: No Reason For Returns To Afghanistan, February 2019
- ECRE, Op-ed: Detention, Insecurity, Rights Deprivation – The Legal Crackdown on Asylum Seekers in Germany, 19 April 2019
- Pro Asyl, Kein internationaler Schutz mehr für Syrer*innen? BAMF verharmlost das Assad-Regime, 13 April 2019
- Odysseus Network, “From Tampere 20 to Tampere 2.0: Towards a new European consensus on migration”, December 2019
- European Court of Auditors, Special Report EU support to Morocco – Limited results so far, December 2019
- Council of Europe, Promoting child-friendly approaches in the area of migration, December 2019
- Mixed Migration Centre (MMC), What makes refugees and migrants vulnerable to detention in Libya? A microlevel study of the determinants of detention, December 2019
- Migration Politcy Institute, Refugee Sponsorship Programs: A Global State of Play and Opportunities for Investment, December 2019
#FairLassen …: For independent legal assistance in the asylum process. Against isolation. The Austrian legal reform of May 2019 jeopardises dignified asylum procedures in line with European law. We demand the provision of independent legal assistance, dignified reception conditions and integration instead of isolation for people seeking protection in Austria.
Choose Respect: Together We Can Tackle Anti-Migrant Hate Speech. Hate speech against migrants and refugees is all too common, both online and in the real world. But it isn’t always easy to know how to react effectively – and it’s even harder to respond in a way which changes attitudes. In the run-up to elections, politics is a frequent topic of debate. But if the discussion turns nasty – either around the dinner table or on your social media feed – here are some tips to help you make a constructive contribution to a more positive discourse.
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