Ready for Adoption?

The Commission’s principles and the structure of the Pact

On 4 October, the Spanish presidency managed to secure an agreement based on a consensual text for the Crisis Regulation, the last legislative component of the New Pact on Migration and Asylum presented by the European Commission more than three years ago. The Council of the European Union had already completed a series of agreements that form the Pact’s legal architecture (the Asylum Procedure Regulation, the Asylum and Migration Management Regulation, the Eurodac Regulation, and the External Border Management Regulation).  This set of five regulations on migration and asylum that make up the Commission’s proposal now moves on to the next stages of negotiation foreseen in the Union’s legislative procedure.

The New Pact maintains the principles from the Commission’s former proposals. These are: common procedures to award international protection and equivalent reception standards, the responsibility of the first country of arrival for the scrutiny and resolution of the asylum application, protection on its own territory for those who obtain asylum, and the effective enforcement of the return of those whose application are rejected. Crucial points are now external border control, speedy procedures and speedy return.

Nothing is agreed until everything is agreed

If the principles are maintained, the emphasis will now be put on robust governance and permanent monitoring to avoid non-compliance. To do this, regulation has been prioritised over the directive, in a measure that narrows the states’ margin of action, and by which the new European Asylum Agency and FRONTEX set up a support system for member states, which is both a system of scrutiny and control. For the same reasons, the Pact is also very detailed in terms of regulation — for the first time this is common to asylum and the control of irregular migration, and it develops exhaustive action plans and implementing mechanisms. The Pact is all this, and not just the legislative part, and every last aspect of it must be agreed, under the principle that ‘nothing is agreed until everything is agreed’.

Avoid new crises

It should come as no surprise that the most difficult agreement revolved around the Crisis Regulation. Using this legislative and management structure, the proposal aims for rigid governance of the asylum system and irregular migration control. One major objective is to prevent crisis from generating chaos and an inability to provide responses that should be in line with the international right to asylum. It should also enable the EU to manage new migratory crises without negatively affecting relations between the Member States and the governance of the Union, as has happened successively in recent decades. 

Three groups of countries, three outlooks

The stumbling block that European migration and asylum policy has always come up against has been the conflicting views of two groups of countries with different difficulties. On the one hand, there are the countries with the most exposed external borders, such as Spain, Italy or Greece, to whom the system gives all the responsibility of controlling and managing arrivals. On the other hand, there are countries with traditionally much more robust asylum systems such as Germany, that effectively receive the greatest number of refugees, many from the first country of arrival. A third group has joined the debate that, while not experiencing any particular difficulties, outright rejects the entry of migrants and any obligation derived from the European asylum system, impoverishing a debate to which they add an even more toxic touch.

As a result of these disagreements — and the belligerence of this third group — the agreement concedes the opportunity to remain outside the solidarity system in terms of reception if they provide support to the management of procedures and returns, or in exchange for financial contributions, a new idea that has not necessarily been welcomed in all institutions.

An on-going negotiation

Spain is one of the border states that has demonstrated the strongest commitment to the European migration and asylum policy. Compared to the countries around it, Madrid has developed migration policy with some flexibility and consensus. It is a country with authority to drive the Pact forward and so the Spanish Presidency has been able to forge an agreement between the Member States in a complex context.

Negotiation of the Pact’s legal architecture is on-going, although it remains difficult to adopt. The European Parliament, with whom it has to be negotiated, champions a higher degree of integration for immigration and asylum policies. Furthermore, it mistrusts the compatibility of the envisaged border management measures — the speed of the procedures, the fiction of non-entry on European soil, prolonged detention, or immediate return — complying with the International Right to Asylum. Consistent with this, it aims to focus solidarity on effective and compulsory reception.

Unresolved questions

Against this background, two questions emerge. Firstly, will the Pact be adopted as a whole, and will this happen before the next crisis looms? Secondly, will it meet expectations in the medium term to restore trust among the Member States and for the states to trust the system? Will it manage to prevent new internal crises that affect central pillars of the European project such as the free movement of people, which is currently highly damaged and at risk of crumbling?

The answer to the first question is closer to being revealed, and we might hope that it will go through within the planned timeframe. To answer the second question, we will have to wait. The Pact does not substantially modify what has not worked up until now. It remains to be seen whether a more standardised, constantly monitored system, with stronger governance is capable of dealing with the reality of migration in an organised way and meeting all objectives. If not, it will be necessary to go one step further, analyse what works and what does not, and introduce new approaches to our common migration and asylum policies, taking into account internal and external realities.

The need for new outlooks

Perhaps, looking inwards, we might see that migration as a whole is being excluded from the common management of European affairs. Spain has much to contribute to this field as it is a country with a remarkable experience in managing migration flows. The Spanish system has several strengths. Among them, the anchoring migration in the labour field and the existence of legal instruments that allow for what could be described as organised flexibility. In addition, Spain has a ministry specifically dedicated to migration policies and relies on the strong involvement of regional and local administrations.

The European Pact strengthens asylum rules and goes into detail on the procedures for it to be strictly applied. This emphasis on ‘law enforcement’ stretches to migration. For the first time, it explicitly addresses asylum and migration together, integrating procedures to control both. However, the Pact once again leaves out migration rules and policies, particularly labour migration, which represents the vast majority of migratory flows to Europe. Nevertheless, the European Commission does recognise labour migration. Last November, aside from the Pact and with no legal aspirations, the European Commission launched the EU Talent Pool,  as part of the updated Skills and Talent Mobility Package. It is noteworthy that on this occasion the need to attract people of different educational levels to the Union is openly recognised. We should keep an eye on how this initiative develops as it could be a step forward in tackling labour migration, a different matter, but also related to the Pact. 

Looking outwards, it may be appropriate to review the various rationalities of international migration, widening the focus from the border to the whole migratory situation and set up strategies that go beyond the mere transactional agreement with countries of origin. The external dimension is a mainstay of the Pact. It would be difficult to strengthen relations with third countries without considering their agendas and their interests in terms of migration, including labour migration.

It is to be hoped that under the Spanish presidency there will be negotiations between institutions to improve the proposal and that it will be adopted. But it is not daring to say that the European Union must keep on working beyond the Pact to also be a global player in this field.