EU Migration Policy – Internal Challenges and Possibilities

The so-called “migration crisis” that started in 2015 made flaws to EU’s migration policy come to light. It made it clear that there were structural deficiencies with the Common European Asylum System (CEAS) and it particularly brought up questions regarding the future of the Dublin regulation and the lack of harmonisation of reception conditions and asylum procedures across the union. The Commission has tried to tackle these issues since 2016 when they put forward legislative proposals for CEAS reform and tried to revise the Dublin system. However, efforts came to a standstill much because of the struggle to reach a common understanding of solidarity and responsibility principles. One response to the “crisis” and the mentioned problems has been to reinstate border controls by some states that continue to claim its necessity even today (France, Germany, Austria, Denmark, Sweden, Norway). This is one result of the lack of political cohesion, and the continued presence of far-right parties undoubtedly affects these claims as well. The reintroduction of internal border controls is an unfortunate development and it keeps undermining the Schengen Agreement. Even though the number of migrants arriving in the EU have dropped significantly, from over a million in 2015 to just above 100 000 in 2019 (pre-crisis level), the crisis mode continues to steer the approach of member states.

This situation calls for rethinking the approach to EU’s migration policy. It will be crucial for the new Commission to acknowledge that challenges are different to that of five years ago and to not get caught in a situation where calls for revisions or reform takes precedence over short-term measures that are crucial in a time where human lives are at stake.  Priorities must shift in order for a common and humanitarian response to prevail. Commission President Ursula von der Leyen has rightly noted that we need a “fresh start on migration”, but what has the new Commission actually planned to do?

A New Pact on Migration and Asylum

In her Political Guidelines for the next European Commission 2019-2024, presented on the 16 July 2019, von der Leyen mentions that she plans to propose a “New Pact on Migration and Asylum”. This includes the relaunch of the Dublin reform of asylum rules. The new Commissioners tasked with leading the work on migration and this New Pact is Margaritis Schinas in his role as Vice-President for Promoting our European Way of Life as well as Ylva Johansson, Commissioner for Home Affairs.

There are great possibilities with such a pact seeing that many problems stemming from the “crisis” period still haven’t been resolved. Von der Leyen recognises the issues with the CEAS and that the asylum system has to be modernised. This is a crucial point and if it is successful it could help harmonise asylum conditions. The uneven implementation of CEAS in Member States has meant that only a few states grant the majority of asylum claims and that the quality of reception conditions varies, which provides an incentive for asylum-seekers to only apply for asylum in certain Member States, driving secondary movements. Another problem has been that the asylum status hasn’t been valid throughout the Union. These factors in turn impede responsibility sharing and solidarity. The Dublin regulation is part of the CEAS and its ”first state of entry rule” for asylum applications has meant that EU’s external border countries, such as Italy, Greece and Spain, have been mostly responsible for examining these applications. The current system is not sustainable and the responsibility should be shared throughout the union, but the problem with finding a common understanding of solidarity has hindered progress and the imbalance between responsibility and solidarity persists. Even though there have been several previous attempts to reform this system since 2015, finding solutions for relocations and introducing solidarity mechanisms such as quotas has been proven difficult. The discussion has focussed on the nature of relocation schemes, if they should be temporary or permanent, voluntary or mandatory, with the Visegrad countries (Hungary, Poland, Slovakia and Czech Republic) especially opposing mandatory solutions.

In order for the relaunch of the reform of asylum rules to be successful, it will be important to acknowledge the divisions within the Union and the difficulty to enforce a mandatory relocation mechanism at this time. There are however other points in the CEAS reform package where there is wide consensus, which can therefore be dealt with first. It might also be time to recognise the other existing forms of solidarity that go beyond relocation. Financial and operational solidarity means that Member States under most pressure are supported and get sufficiently compensated. States that relocate voluntarily are also supported financially, but should be so in a systematic matter. Furthermore, the voluntary initiative to relocate refugees that were rescued in the Mediterranean, taken by eight states so far (France, Germany, Luxemburg, Lithuania, Portugal, Finland, Ireland and Croatia), is a much-needed initiative and shows that some states don’t want to stand idly by and wait for reform while people are dying. For more to join, financial support might provide an incentive. This can be one step to strengthening other forms of solidarity that remain quite weak.

Returning to a fully functioning Schengen Area

Another point mentioned in the Political Guidelines is the need for strong external borders. Von der Leyen calls for a reinforced European Border and Coast Guard Agency and aims to have 10,000 Frontex border guards by 2024. This is connected with the current problem of the Schengen Agreement and it is stated that an improvement in above-mentioned areas will allow for a return to a fully functioning Schengen Area of free movement. The situation with the Schengen system and the “temporary” reintroduction of border controls by the six Member States has indeed become problematic. Invoking Article 29 intends to be a temporary measure of last resort where exceptional circumstances put the overall functioning of the Schengen area at risk and the Commission acknowledged that this was not the case anymore when the maximum two-year period allowed under the article ending in November 2017. This led the states to change their legal basis, resorting to Article 25 that is granted if based on a threat to public policy or internal security. The time limit of six months has however been extended more than once and the continued reinstatement makes the compliance with EU law questionable, a criticism that has also been raised by the European Parliament. In addition to the disputed legality of continued internal border controls, the long-term risk of further prolonging border checks is that the confidence in Schengen and its regulations will continuously decrease, while the risk of border controls becoming a permanent reality maintains. The concern of secondary migration has further decreased with the current low levels of arriving asylum seekers and it is thus about time to return to a fully functioning Schengen Area, “a key driver of our prosperity, security and freedoms”, as stated by von der Leyen. This issue is however difficult to tackle, especially in light of continued pressure from far-right parties in some states. The states must review the actual necessity and efficiency of border controls while taking into account the possible consequences of sustained border checks for the future. It must also be highlighted that the values protected by opening internal borders are crucial to preserve and that the risks connected to it are manageable. Strengthening the European Border and Coast Guard Agency might be one way to increase the confidence in the Schengen system, showing that the EU has control over the situation. It will however be crucial not to loose sight of pressing humanitarian issues as people are still dying in the Mediterranean or being inhumanely treated in asylum camps.

In the mission letter to Commissioner Johansson, von der Leyen notes that we should “aim to unite around our common values and humanitarian responsibilities”. If solutions are to be grounded in the values of the EU, the current solidarity impasse must be dealt with. Voluntary initiatives are needed and much welcomed if we are to answer to our humanitarian responsibilities, but short-term measures like these must be combined with the continued search for pragmatic solutions that will drive reform of the CEAS. Now it is up to the new Commission to show that they can deliver a “fresh start on migration”.

We as A Path for Europe will closely watch the progress on the “New Pact on Migration and Asylum” and aim at sharing our ideas on a way forward. If you would like to share your thoughts on EU’s migration policy, draft articles can be sent to pathforeurope@gmail.com

/ Anette Sonnbäck
Director