Migration: time for agreement on a comprehensive approach

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Migration is firmly back on the political agenda, as shown by the February meeting of the European Council. The debate went on for hours but was more consensual than expected. The time has come to overcome the divisions of the past.  

The 2015/16 refugee crisis[1] left the EU reeling and in the grip of fierce disagreements.  The controversial Commission proposal to tackle the massive arrivals by a system of obligatory relocation (‘migrant quotas’) throughout the Union. The Luxembourg Presidency managed to achieve a qualified majority in the Council in September 2015, but the political price of this was high. It was the wrong answer to the wrong question at the wrong time: obligatory quotas were not enforceable due to the reality of Schengen free movement, the approach created the false illusion that massive arrivals could be managed without limiting access to the EU, and it looked as though ‘Brussels’ wanted to use the chaos created by the crisis to grab more powers.  

Different camps were pitted against each other; all of them invoked the need for resolute action, but each had a radically different understanding of what this meant. The frontline Member States, faced with a huge inflow arrivals, asked for a fair distribution across the EU. The main receivers of asylum seekers insisted on the strict application of the so-called Dublin system whereby the country of first arrival has the obligation to proceed the asylum requests. Yet other Member States focused on a better control of the external borders.

Donald Tusk, the President of the European Council at the time,  was adamant that the absolute priority had to be to regain control over arrivals. Not doing so would lead to growing discontent among European citizens and have a pull factor on arrivals. “Our priority should be to have a proper migration policy. The EU and its Member States must regain the capacity to decide who crosses our borders where and when” .[2]

His line progressively gained ground, as the EU stepped up work with countries of origin and transit and used a much strengthened FRONTEX (the EU’s border guard agency) to help the frontline States manage the external borders. It also concluded an admittedly controversial deal with Turkey, whereby the country would prevent illegal departures towards the EU, and would in return receive substantial funds specifically to help the many Syrian refugees on its territory.

But despite repeated attempts by successive Presidencies, the EU failed to agree on a wide-ranging reform of its migratory and asylum policy because of the lingering disagreement about the application of the Dublin principle and the definition of a solidarity mechanism in case of an extraordinary inflow of migrants.

In 2020, the Commission issued an ambitious proposal for a new Pact for asylum and migration. In an attempt to correct the errors of 2015/16, it called for strengthening external border controls, including the systematic registration of arrivals, an accelerated asylum procedure at the borders, more cooperation with countries of origin and transit, and better return procedures. The text also included a revision of the Dublin mechanism and a new mechanism of solidarity, without compulsory quotas.

With many Member States again facing serious migratory pressures that are likely to further increase  in the near future, it is now imperative to deliver on this revised package. The February European Council allows for some cautious optimism, even though it did not at this stage go further than setting out the prerequisites for breaking the deadlock in terms of external border controls, cooperation with countries of origin and transit and return and readmission arrangements.  

It is worth recapitulating the main elements that are on the table and need to be agreed as parts of an overall package:

  1. A new bargain to overcome the right balance between external border controls and solidarity: better control of the external borders should create the political environment for reaching agreement on more solidarity in (voluntary) distribution. This is the reasoning behind the decision of the European Council to use EU funds to improve the infrastructure at the external borders.
  2. A review of how to apply the 1951 Geneva refugee convention: the European interpretation of the latter amounts to what in the EU jargon we call ‘gold-plating’ , i.e. going further in the application of a legal text than the text itself requires. As Brady explains in his article, a ruling in 2012 by the European Court of Human Rights ( the Hirsi judgement) forced Italy to stop its practice of turning back (human) smuggler boats before they could  reach its territorial waters.[3] “No other signatory of the 1951 refugee convention interprets its obligations in this way. No such right exists, say, in international waters off the coast of Canada, or in the Caribbean, where US authorities rapidly determine status on deck.”  Human smugglers were quick to use this situation to pack migrants on rickety boats and send them out onto the open seas, with high risks to their lives, as we have witnessed once again with the latest tragedy off the coast of Calabria. When the Belarus dictator Lukashenko used migrants to destabilise the EU, Poland wanted to temporarily close its border with Belarus, but the Commission was obliged to tell Warsaw that this was not possible, even in a situation of absolute urgency, because of the refugee convention. Our rules for policing our external borders as set out in the Schengen border code and the extensive interpretation of the refugee convention are contradictory. People who enter the EU irregularly for whatever reason now routinely ask for an asylum procedure, even if they are clearly economic migrants. The procedures are long and complex, with considerable budgetary costs; moreover, the vast majority of asylum seekers whose claim is denied are never returned. This situation is not tenable in the long run and could actually lead to the political repudiation of the refugee convention, which would be a disaster. Asylum is meant to save people with a genuine claim for protection, not to deal with every category of migrants.
  • A more efficient system of return and readmission: the Commission recently issued an important communication on this theme. As long as migrants know that repatriations following the rejection of a claim are rare, the asylum system will be the preferred option for many. The idea is being floated of putting pressure on countries of origin to take back their citizens. There are good reasons to get their cooperation, but withholding development funds, as some suggest, will not solve the problem and may make it worse. Ways must be found to convince countries of origin that they too have something to gain from a better managed system. This means both helping them develop their economies and opening more avenues for legal and controlled migration.
  1. Legal ways for asylum seekers to ask for asylum while not yet on the EU territory: this was the idea behind the deal with Turkey which foresaw sending back irregular migrants, but offering equivalent asylum offers to Syrian refugees in Turkey who would choose the legal option. Unfortunately, this part of the deal did not work because very few of the irregular migrants arriving in Greece were sent back to Turkey, for internal Greek reasons and because Turkey almost systematically refused to take people back, despite the many resettlements accepted by the EU. It is however worth pursuing the idea of allowing people to ask for asylum without first entering the EU territory illegally and with the help of smugglers who make a lot of money at their expense and who expose them to high risks.
  2. Attracting skills and talents as part of the solution to our labour needs: the February EUCO recognized the problem of labour markets in paragraph 15 (d) of the conclusions: “Skills: bolder, more ambitious action should be taken to further develop the skills that are required for the green and digital transitions through education, training, upskilling and reskilling to meet the challenges of labour shortages and the transformation of jobs, including in the context of demographic challenges.” It mentioned this in the economic part of the conclusions, but there surely is also a migration aspect to it. The EU will need immigrants if it is to face up to the major demographic challenges it encounters.[4] This requires a well thought-through policy and intelligent management because there is no automatic match between the skills of migrants and the requirements of our labour markets. [5] There are also huge differences between Ukrainian refugees coming from a neighbouring country and benefiting from the EU’s directive on temporary protection[6], asylum seekers from further abroad, and economic migrants who constitute the bulk of the people arriving via the Mediterranean route. But it is worth the effort. I recently participated in a highly interesting seminar chaired by Peter Bosch. It was part of a Skills and talents initiative conducted by the Egmont Institute. The idea is to develop a pro-active progamme to attract labour from abroad. A catalogue of practical measures like a much better assessment of needs, a concerted effort to attract the right profiles, vocational training abroad, nomad schemes allowing for temporary work permits and many more is to be presented by the end of the year as part of the 2023 European Year of Skills. Canada’s migration and labour market policies can serve as a source of inspiration in this respect.  

The EU needs a functioning migration and asylum system because the problem will not simply go away. In order to reach that objective, it must develop various facets of solidarity coupled to responsibility. This requires political involvement at the highest level, and the recent debate at the European Council was a step in the right direction. What we now need is a joint European “Wir schaffen das” that covers not just one aspect of the migration and asylum policy, but all of them in a balanced approach.[7] 

[1] It was primarily a refugee crisis with Syrians fleeing their country at war. But it was also a ‘migration’ crisis because a high percentage of the people crossing our borders illegally were actually people coming from the other places, including the Maghreb, in search of a better life (economic migrants).

[2] Donald Tusk, President of the European Council, at the European Peoples Party Congress in Madrid, October 22nd 2015. Quoted by Hugo Brady, in Le Grand Continent, Openness versus helplessness: Europe’s 2015-2017 border crisis (June 2021). I drew on this excellent article when writing this editorial.

[3] See also the legal analysis provided by Vladimir Simonak ‘Back to Geneva’ for the Maertens Centre : https://www.martenscentre.eu/publication/back-to-geneva-reinterpreting-asylum-in-the-eu/

[4] See the convincing case for this made by Giles Merritt in People Power (Why we need more migrants), I.B. Taurus, 2021.

[5] See the following article https://www.wsj.com/articles/germany-is-short-of-workers-but-its-migrants-are-struggling-to-find-jobs-11670844930

[6] The EU has handled the Ukrainian situation magnificently. This has given rise to criticism that Europeans only care about white Christians. This is unfair. The temporary protection scheme is typically there to help in the case of  a neighbouring country  where a massive refugee situation arises. In the Syrian case it was Turkey that provided this temporary protection to the Syrian refugees. If we applied this to the whole world to replace the classical asylum procedure, we would create an unmanageable pull factor.  

[7] In 2015, Mrs. Merkel uttered those words with respect to the management of the reception of migrants in Germany. This was seen in many EU Member States as an open invitation for migrants to move to the EU, and a way to force other Member States to accept high numbers of migrants via an obligatory distribution system. 

Jim Cloos, TEPSA Secretary-General