European Pact on Migration and Asylum: A Sacrifice or Normative Values for Efficiency

Abstract

On 23 September 2020, the European Commission proposed a new Pact on Migrants and Asylum for a more holistic migration management system that is suggested to be reliable and predictable with comprehensive approaches. The Pact is based on two main "developments" to the current challenges at borders. Firstly, it is expected to vastly accelerate the procedures, which are proposed to be limited to 5 days for the initial process and 12 weeks in total for the appeal period. Therefore, neither borders will be piled up with migrants, nor those migrants will have to wait in the detention centers for a longer period. The second aspect of the Pact is to ensure fair burden-sharing and solidarity of the host Member States which are entitled to relocate the migrants in (or in the name of) another Member State, to encourage those who have been seeking asylum to return or to provide operational support unless they are able to perform the first two actions. As such, the Pact is claimed to strengthen internal and external management with common governance of migration not by an individual Member State but by the whole EU. On the other hand, there are several criticisms against the Pact. In the beginning, it has to be said that the proposed burden-sharing system is more complex than the Dublin system, in which the first arrival country is responsible for asylum processes. Moreover, with the new burden-sharing system, the Pact allows the member states to opt-out from relocating refugees as long as they fund other members and cooperate with them. Secondly, and maybe most importantly, the new Pact proposes an asylum system starting beyond the EU's borders; thus, protecting "Fortress Europe" by improving the border security and cooperation with non-member

Full text

On 23 September 2020, the European Commission proposed a new Pact on Migrants and Asylum
for a more holistic migration management system that is suggested to be reliable and predictable
with comprehensive approaches. The Pact is based on two main “developments” to the current
challenges at borders. Firstly, it is expected to vastly accelerate the procedures, which are
proposed to be limited to 5 days for the initial process and 12 weeks in total for the appeal period.
Therefore, neither borders will be piled up with migrants, nor those migrants will have to wait in
the detention centers for a longer period. The second aspect of the Pact is to ensure fair
burden-sharing and solidarity of the host Member States which are entitled to relocate the
migrants in (or in the name of) another Member State, to encourage those who have been seeking
asylum to return or to provide operational support unless they are able to perform the first two
actions. As such, the Pact is claimed to strengthen internal and external management with
common governance of migration not by an individual Member State but by the whole EU.
On the other hand, there are several criticisms against the Pact. In the beginning, it has to
be said that the proposed burden-sharing system is more complex than the Dublin system, in
which the first arrival country is responsible for asylum processes. Moreover, with the new
burden-sharing system, the Pact allows the member states to opt-out from relocating refugees as
long as they fund other members and cooperate with them. Secondly, and maybe most
importantly, the new Pact proposes an asylum system starting beyond the EU's borders; thus,
protecting “Fortress Europe” by improving the border security and cooperation with non-member
neighboring countries. Additionally, as the most current devastating issue, COVID-19 was
ignored in the Pact. It is not surprising that refugees will be affected by COVID-19 as most of the
host countries’ capacities for refugees will be challenged due to health issues and risks. Moreover,
the Pact did not reference the Global Compact on Refugees for the global refugee protection
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perspective. Lacking such a global perspective, the Pact has been criticized for being too
inward-oriented.
The Commission’s new proposal brought along many other controversies, such as whether
the proposed asylum and migration system will bargain away the values and rights of asylum
seekers over the efficiency of immigration control policies of the EU. As the international
community has acknowledged, the EU's current asylum and migration management system is not
sustainable and plausible due to its lack of procedural efficiency, preventive measures against
human rights violations of refugees, and imbalances in its burden-sharing approach. The current
system has caused pressures on asylum-systems of countries such as Greece, Italy, Malta, and
Cyprus. As a result, human rights violations occurred inside the camps in some of these countries
like, Moria Camp in Greece, as well as anti-immigrant perceptions in the host communities and
hostile attitudes, even fascist attacks towards immigrants. In addition, the push-back practices of
Greece and Italy have been observed. Therefore, the new pact was expected to provide solutions
to these issues with a rights-based and fair sharing of responsibility approach to asylum and
migration management. However, the aim and subject matter of the proposed Regulation
remained limited to the relocation of asylum-seekers and refugees, and acceleration of asylum
procedures, the introduction of border procedures with a focus on the return of immigrants. In this
sense, it can be argued that the EU turns a blind eye to the current human rights violations of
asylum-seekers and refugees, as well as the challenges on economic and social integration of
immigrants to host society, and unlawful push-back practices of member states, all of which
contradicts with the EU’s commitment to universal human rights, and international law.
According to the UNHCR, the new proposal leads to efficient border procedures that abide
by the EU law, especially regarding the non-refoulement principle. However, some might argue
that the normative values are about to be sacrificed since an initiative to send refugees back to the
safe third-countries emerges with the New Pact. The issue of determining the safety of the
third-countries, as well as possible sanctions to them in case of not cooperating with the EU, is
highly problematic. The fact that the irregular migrants who are subject to the border procedure
may wait for the pending appeals only in borders might contravene the right to fair trial provided
in the European Convention on Human Rights. Moreover, the proposal might undermine the
principle of non-refoulement from the 1951 Refugee Convention as the new measures necessitate
avery rapid decision-making process that hampers applicants in their effort to seek protection
within the EU. Overall, one can argue that the proposed effective fast-tracking system per se does
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not seem to undermine the normative values. Yet, its application is likely to do so mainly because
of the time pressure on the decision-makers, and of the two standards of asylum procedures in
which the applicants are faced with country-based evaluation instead of personal-based
evaluation, meaning that the applicants from countries of low acceptance rate are less likely to be
admitted than those from high acceptance rate. Even though there is still possibly an effective
evaluation process, one can suggest that the proposal does not prioritize responding to what
human rights entail in asylum policies, but rather to repatriate individuals.
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References
“Analysis of the New EU Pact on Migration and Asylum: A ‘Fresh Start’ for Human Rights
Violations,” EuroMed Rights, October 2020,
https://euromedrights.org/wp-content/uploads/2020/10/Analysis-of-Asylum-and-Migration-Pact_
Final_Clickable.pdf.
“BIC Reacts to the EU's New Pact on Migration and Asylum: BIC-RHR,” BIC, September 24,
2020, https://www.bic-rhr.com/news/bic-reacts-eus-new-pact-migration-and-asylum.
“Gallery - COVID-19 Response - COVID-19 Response,” IOM, accessed January 17, 2021,
https://medialib.iom.int/galleries/338/covid19-response.
“Gallery - Internal Displacement in DRC - Internal Displacement in DRC,” IOM, accessed
January 17, 2021, https://medialib.iom.int/galleries/283/internal-displacement-in-dr.
“IOM and UNHCR Call for a Truly Common and Principled Approach to European Migration
and Asylum Policies,” International Organization for Migration, September 22, 2020,
https://www.iom.int/news/iom-and-unhcr-call-truly-common-and-principled-approach-european-
migration-and-asylum-policies.
“Policy Note: Debunking The ‘Safe Third Country’ Myth,” European Council on Refugees and
Exiles (ECRE), November 2, 2017,
https://www.ecre.org/policy-note-debunking-the-safe-third-country-myth/.
“Press Corner.” European Commission - European Commission. Accessed January 17, 2021.
https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1707.
“Press Corner.” European Commission - European Commission. Accessed January 17, 2021.
https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_1723.
“Push-Back.” ECCHR, January 16, 2021. https://www.ecchr.eu/en/glossary/push-back/.
“Regulation of the European Parliament and of the Council on Asylum and Migration
Management and Amending Council Directive (EC) 2003/109 and the Proposed Regulation (EU)
XXX/XXX [Asylum and Migration Fund],” European Commission, September 23, 2020,
https://eur-lex.europa.eu/legal content/EN/TXT/?uri=COM%3A2020%3A610%3AFIN
“The Pact on Migration and Asylum.” Human Rights Watch, October 28, 2020.
https://www.hrw.org/news/2020/10/08/pact-migration-and-asylum.
“UNHCR, EU Slam Greece Over Migrant Pushbacks, Abuse.” Voice of America. Accessed
January 17, 2021.
https://www.voanews.com/europe/unhcr-eu-slam-greece-over-migrant-pushbacks-abuse
Alberto Tagliapietra, “The EU's Unbalanced New Pact on Migration and Asylum,” The German
Marshall Fund of the United States, November 24, 2020,
https://www.gmfus.org/blog/2020/11/24/eus-unbalanced-new-pact-migration-and-asylum.
Andrew Thompson Jay, “Refugee Rights and the Lucky Country: Does Australia's Regional
Resettlement Plan Violate Human Rights?” OHRH, May 19, 2014.
http://ohrh.law.ox.ac.uk/refugee-rights-and-the-lucky-country-does-australias-regional-resettleme
nt-plan-violate-human-rights/.
Antonio La Mantia, “Semester Autumn Package Published by the EU Commission.”
Eurodiaconia, April 9, 2020.
4

https://www.eurodiaconia.org/2019/12/semester-autumn-package-published-by-the-eu-commissio
n/.
Cathrin Hennicke, “Children Contemplating Suicide in Greece's Moria Refugee Camp,” Deutsche
Welle, September 21, 2018,
http://www.dw.com/en/children-contemplating-suicide-in-greeces-moria-refugee-camp/a-4559729
4.
Elspeth Guild, “Negotiating with Third Countries under the New Pact: Carrots and Sticks?,” EU
Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE,
November 27, 2020,
http://eumigrationlawblog.eu/negotiating-with-third-countries-under-the-new-pact-carrots-and-stic
ks/.
Emma Wallis, “'Investigate Greek Violations of EU Law on Migrants' Say Human Rights
Groups.” InfoMigrants. Infomigrants, September 22, 2020.
https://www.infomigrants.net/en/post/27465/investigate-greek-violations-of-eu-law-on-migrants-s
ay-human-rights-groups.
George Gallanis, “Growth of Fascistic Attacks on Refugees in Greece,” World Socialist Web Site,
February 14, 2020, https://www.wsws.org/en/articles/2020/02/14/gree-f14.html.
Kemal Kirişçi, M. Murat Erdoğan, and Nihal Eminoğlu, “The EU's ‘New Pact on Migration and
Asylum’ Is Missing a True Foundation.” Brookings. Brookings, November 7, 2020.
https://www.brookings.edu/blog/order-from-chaos/2020/11/06/the-eus-new-pact-on-migration-and
-asylum-is-missing-a-true-foundation/.
Lubica Debnarova, “New Pact on Migration and Asylum, Setting out a Fairer, More European
Approach,” Migration and Home Affairs - European Commission, September 23, 2020,
https://ec.europa.eu/home-affairs/news20200923/new-pact-migration-asylum-setting-out-fairer-m
ore-european-approach_en.
Müge Dalkiran, “AB'nin Yeni Göç Ve İltica Paktı Aslında Bir Geri Gönderme Paktı Mı?,”
Perspektif, October 14, 2020,
https://www.perspektif.online/abnin-yeni-goc-ve-iltica-pakti-aslinda-bir-geri-gonderme-pakti-mi/.
Novamigra. “The New Pact on Migration and Asylum. A Critical 'First Look' Analysis.”
NoVaMigra Blog, September 28, 2020.
https://blog.novamigra.eu/2020/09/24/the-new-pact-on-migration-and-asylum-a-critical-first-look-
analysis/%C2%A0.
Ortizda. “New 2020 Operating Plans Signed with Greece, Italy, Cyprus and Malta.” EUROPEAN
ASYLUM SUPPORT OFFICE, February 4, 2020.
https://easo.europa.eu/new-2020-operating-plans-signed-greece-italy-cyprus-and-malta.
Philippe De Bruycker, “The New Pact on Migration and Asylum: What It Is Not and What It
Could Have Been,” EU Immigration and Asylum Law and Policy Droit et Politique de
l'Immigration et de l'Asile de l'UE, December 15, 2020,
https://eumigrationlawblog.eu/the-new-pact-on-migration-and-asylum-what-it-is-not-and-what-it-
could-have-been/.
Refugee Rights Europe, End Pushback Partnership “Pushbacks and Rights Violations at Europe’s
Borders”
https://refugee-rights.eu/wp-content/uploads/2020/11/pushbacks-and-rights-violations-at-europes-
borders.pdf
5

Steve Peers, First analysis of the EU's new asylum proposals, January 1, 2020.
http://eulawanalysis.blogspot.com/2020/09/first-analysis-of-eus-new-asylum.html?m=1%C2%A0.
UNHCR “EU Pact on Migration and Asylum - Practical considerations for fair and fast border
procedures and solidarity in the European Union” https://www.refworld.org/pdfid/5f8838974.pdf
6