On Tuesday 28 March, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) voted and agreed on four of the key files of the EU Pact on Migration and Asylum, first presented by the Commission in 2020 as a new EU common framework to respond and manage migration sustainably and in the long term.
Based on unofficial agreements seen by the Platform for International Cooperation on Undocumented Migrants (PICUM), problematic aspects in the initial proposal remain. The European Parliament’s agreement would entail the continuation of the hotspot approach, resulting in increased detention at borders (including for children above 12), accelerated border procedures, and swift returns. The shorter timelines will likely reduce the rights guarantees and result in increased use of derogations: exceptions from regular legal timelines during crisis situations. In essence the parties have agreed to create a system based on the expanded use of detention and quicker deportations to third countries (countries of origin or other). We elaborate further on some of the key concerns:
- Increased Reliance on Detention and Insufficient Safeguards
Overall, the proposal normalises and ramps up the use of detention (or conditions that in practice amount to detention) during procedures, despite the demonstrated impact this has on migrants even for short periods of time. Children above 12 years of age could also be detained at borders, disregarding existing internationally recognised standards that state that detaining children based on their migration status or their parents’ is never in their best interest and always constitutes a human rights violation (see Joint general comment No. 4, 2017). Our 2018 report Child Immigration Detention in Europe already highlighted the harmful impact that detention can have on children, and the need to phase out this practice by implementing viable alternatives that better protect the rights of children in migration procedures.
Many concerns have also been raised in relation to insufficient protections and safeguards for people in the process of being returned. People will have only 7 working days to appeal border procedures, and could be deported before the outcome of their appeal is known and available to them. People would also be automatically detained while waiting for their deportation if they were already detained during the asylum border procedure.
- Fiction of Non-entry: Normalisation of Legal Exceptionality
The current proposal maintains the option for Member States to rely on the fiction of non-entry for people going through border procedures (see Screening Regulation). Despite being already physically present within the territory, people in border procedures will not be formally authorised to enter the Member State’s territory. Migrants will only be said to arrive once they have been legally approved to enter the state. In practice this creates a legal limbo whereby Member States can bypass the legal obligations that apply under the regular regime, which presents significant risks in relation to non-refoulement, access to asylum procedures and access to rights and basic services.
- Misappropriation of Solidarity
The Pact introduces ‘mandatory flexible solidarity’, which allows Member States other than the one the migrant has arrived in to decide between relocating the migrant to their territory or providing ‘other forms of solidarity’. In the Parliament’s proposal, this includes providing financial support or capacity building for frontline Member States. The Council is keen to include, as part of these other forms of solidarity, actions that contribute to the external dimension of migration, such as strengthening cooperation with third countries on matters of border management or deportations (see the Council’s December 2022 draft, or more recent Member State comments circulated within the Council on 21 March).
This represents a clear misappropriation of the language of solidarity, which is no longer defined by Member States sharing responsibility in welcoming people, but is equated with Member States’ efforts to externalise the EU border in third countries and prevent people from coming to Europe. It also means that Member States can keep refusing to receive migrants and still be seen to perform EU ‘solidarity’ by opting to finance actions that in practice limit the space of rights for migrants and make their journeys more dangerous.
Some minor improvements from the Commission’s proposal are worth mentioning. The monitoring mechanism during screening was lightly expanded in scope, while minor changes to the Dublin rule were introduced, meaning that, in the unlikely scenario where the Parliament’s proposal is accepted, mandatory relocation within the EU will be prioritised in situations of crisis.
However, this is no cause for celebration. The proposal as a whole remains problematic from the perspective of the rights of persons in need of protection. The Parliament’s bid already contains sizeable compromises, keeping elements such as the fiction of non-entry, the possibility of detention of children above 12 years of age, and the reliance on derogations. In addition, there is a significant risk that the key provisions will be watered down or erased altogether as the negotiations progress. As expressed in a recent editorial by the European Council for Refugees and Exiles (ECRE), “priorities remain damage limitation and an exit from the process“.
What is next? Council position and trilogue
In a 29 March press conference, MEPs encouraged the Council to come up with their own position before the summer so that negotiations can continue in due course. Talks between the Council and the Parliament are expected to start after the 17-20 April plenary session if MEPs present no objections.
The EU Migration policies surely need improvement and reform, but it is unlikely that the negotiations that follow will lead to better outcomes for migrants and displaced people. Diluting responsibilities might be more conducive to a political agreement, but will not lead to better conditions for migrants and refugees. On the contrary, the proposals on the table will put Europe on track to apply the lowest common denominator when it comes to migrant protection.
If we want a European project that contributes to long-term peace, solidarity and responsibility should be indivisible concepts and core defining characteristics of EU action both inside and outside its external borders. This applies to migration, but also to other global challenges that reveal our deep interdependence and will increasingly define our political, economic and social lives – notably the climate and environmental crisis. It is possible to build a migration system based on solidarity between different actors, but only if we stick to solidarity’s true meaning: that of mutual support for life-affirming action.
For more information please contact QCEA’s Migration & Peace Coordinator Saskia Basa at email@example.com