MCC Brussels Briefing: EU Migration Pact

 

Executive summary

• The Migration Pact will not address the EU’s problem with weak borders. 

• Some measures could introduce a degree of security around those who try to come to the EU, and the new resettlement scheme and procedures may alleviate some pressure on those countries worst affected by the migrant influx. 

• The Pact fails to confront the fundamental issues that encourage irregular migration to EU countries: namely, weak borders, an expansive definition of what constitutes “international protection”, and determining loosely those persons to whom it applies. 
• The Pact’s approach to Asylum policy undermines the Member States and the sovereignty of their national asylum laws. In practice, the Member States are compelled to either take in more people or pay more money into a new EU fund as a migration tax or fine.
• Overall, the pact is yet another step toward centralizing policy in Brussels and expanding the EU’s supranational regulations and decision-making procedures at the expense of the member states. 

 

Background

Millions of people come to Europe every year legally, illegally, or as asylum-seekers claiming international protection. In 2023 there were over one million first-time asylum applications to EU countries, nearing the high records seen in 2015 and 2016.

The EU Migration Pact is an attempt to create new rules for those seeking international protection and attempting to cross borders illegally from non-EU countries.

Why do so many people try and cross the EU border illegally?

Reasons can be divided into ‘push’ and ‘pull’ factors.

• Push factors include: war and armed conflicts, general geopolitical instability in regions surrounding the EU (especially Ukraine and MENA), weak anti-democratic governments around the world, and poor economic conditions. 
• Pull factors include: weak border management, active encouragement by the EU or nation-states, and better living standards in Europe.

But the “hidden draw” that attracts migrants to the EU is a little-known provision baked into EU law itself —the concept of “international protection”:

• The EU has a very expansive definition of international protection and who can claim it, and thus which migrants the Member States are obliged to accept.
• This more permissive criteria for protection is a patchwork of legal agreements, conventions, and EU laws, derived from the Geneva Convention, Human Rights Law, and the EU’s concept of “subsidiary protection”. 
• The broad interpretation of “international protection” offers rights and protections to a sizeable population of migrants crossing the EU border by conflating serious and necessary reasons for migrations with more arbitrary and debatable ones — constantly expanding the definition and scope of “harm”. 

The effects of this are compounded by the network of legal institutions that make it very difficult to return individuals to their home countries even when they are found not to require “international protection”.

In essence, so long as the EU offers a wide number of justifications for which people are to be given protection, and EU member states are subject to restrictive human rights laws that constrain their ability to return individuals, the EU will remain a magnet for irregular crossing and mass migrations. 

 

What does the Migration Pact propose?

Here is a snapshot of some of the most important proposals, and whether we estimate them to have a positive or negative impact on the migration crisis: 

New screening rules

✓ Requirement for all Member States to implement a pre-screening process at the border, such as ID, biometric data, medical assessment, security check, etc.

✓ The processing must be done within 7 days of reaching the border, or 3 days if a migrant is found to have been illegally staying in the country.

✓ The legislation introduces what’s called the “legal fiction of non-entry” into EU law for the first time — whereby mere presence at the borders or ports of entry of a state would no longer constitute “entry” absent processing into the country. 

X A new “fundamental rights monitoring mechanism” is introduced that could become a magnet for human rights lawyers and NGOs.

EU asylum resettlement quotas and payments:

X A permanent annual EU quota for the resettlement of the migrants will be established for the first time (min 30k a year). 

X If a member state refuses to take in its assigned share of the migrants, it will be required to pay into a “solidarity fund” (min €600m a year).

X These decisions and related regulations will be made within a process that lacks transparency and uses secretive procedures:

• The European Commission is tasked with putting forward a secret proposal.
• The formula for the quota is based on Member States’ population size and GDP.
• Member States haggle over how many people they will accept or how much they are willing to pay. 
• The Council will then take the final decision (behind closed doors) via QMV.

X In practice, the Member States are compelled to either take in more people or pay more money into a new EU fund as a migration tax or fine.

Subsidiary Protection Remains in Force 

X Subsidiary protection is explicitly enshrined in EU treaties and entrenched in EU law but goes further than international legal obligations to refugees fleeing persecution (Geneva Convention).  

X It forces Member States to offer asylum to those fleeing armed conflict and facing “real risk” of “serious harm”, including death, execution, and torture. 

X The subsidiary protection is thus complementary to refugee status, making it a huge pull factor for people to come to Europe from war-affected regions. 

X The Pact does not propose any reforms or changes to “subsidiary protection”.

Other Initiatives 

✓ Easier access and upgraded EU databases for the collection of data, and better way of flagging security issues for national border/law enforcement agencies.

? New requirement on Member States to check if the country is safe for a person to return to (could lead to a small increase in returns).

 

Conclusion

On balance, most Member States will likely find the Migration Pact’s proposals to be ineffective, punitive, and undermining their sovereignty:   

• Ineffective: The measures do nothing to address the fundamental issue of “international protection” which provides wide latitude for large swathes of migrants to claim asylum in EU countries. The measures also do little to affirm or strengthen the inviolability of national borders. 

• Punitive: the EU’s new migrant relocation mechanism means Member States could be forced to take EU migrants according to their quotas or pay a commensurate fine
• Undermining: The pact is a further encroachment on Member State’s national sovereignty. It should be up to democratically accountable nation-states to decide their own immigration and asylum policies. In effect, the pact is yet another EU attempt to concentrate power in Brussels, granting new regulatory powers to the EU not only to set the agenda on migration and asylum policy but also to control its implementation. 

Good News…

Still, the proposals introduce some measures that can be cautiously welcomed by those who wish to see stronger borders: 

✓ Stricter and more standardized pre-screening across the EU.

✓ The first introduction of “Legal fiction of non-entry” in EU law.

✓ Updated access to databases for security checks and biometric data.

✓ May lead to a slight increase in migrants being returned to their homelands. 

✓ In the condition of sudden influx, Member States can get some limited derogations from certain EU obligations.

Outweighed by the bad

X Despite the potential of its stronger measures, the Pact will expand the EU’s control over migration. and ensure the EU’s asylum policy will take precedence over that of the Member States.

X Will not prevent huge numbers of irregular migrants from coming to Europe.

X Gives the EU greater control over granting residency rights and ID cards.

X Creates permanent annual EU resettlement (quotas) formula for the first time.

X If a Member State refuses to take in its allotted quota, it will have to pay a compensatory sum in lieu of its refusal.

X Further EU encroachment against national migration law (Establishing new EU laws & upgrading current laws from directives to regulations).

X Overlooks the issue of subsidiary protection entrenched in EU law and treaties.

X Does not address legal migration (of which millions more arrive every year).

X foresees new provisions for applicants to get free legal aid throughout the asylum process.

 

About the author

Jacob Reynolds is the head of policy for MCC Brussels