The Migration Conundrum Between Appearance and Reality: Towards a New Deal?  

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Once again, the Mediterranean has claimed hundreds of lives with the latest capsizing of a smuggler’s boat off the cost of Greece near Kalamata. Once again, the EU finds itself accused of failure, mismanagement, and worse, moral corruption. The Union’s attractiveness has become its vulnerability! It is difficult to respond to such accusations in the face of human suffering and the legitimate emotion it provokes. But emotion and moral judgements will not solve the problem of migration.

It is simply not possible, as some seem to imply, for Europe to take in all those who want to come and whenever they want to come. The failure to police the external borders in 2015 had far-reaching political consequences in many EU Member States, with extreme right parties playing on the fears of European citizens. The evolution of countries like Denmark and above all Sweden, historically very open to migrants, should make us all think. Not properly policing external borders will also jeopardize the Schengen acquis of free movement without controls within the internal borders. This could in turn lead to a constitutional crisis because the Schengen acquis became part of EU primary law with the Amsterdam treaty, as expressed in Article 3 (2) TEU: “The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which free movement of people is ensured in conjunction with appropriate measures with respect to external border control; asylum, immigration and the prevention of combating of crime.”

The EU therefore needs a comprehensive approach, which is made even more explicit in Article 67 (2) TFEU: “It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum; immigration and external border control, based on solidarity between Member States which is fair towards third-country nationals.”

The good news is that a few days before the Kalamata tragedy the JHA Council, after 8 years of blockage and mutual recriminations, agreed by qualified majority -with Hungary and Poland voting against and Bulgaria, Czechia, Malta, Lithuania and Slovakia abstaining, a ‘general approach’ on the Commission’s reform package proposal of 2020 on migration and asylum*. The negotiations will be complicated, not least because of the divergences remaining within the Council, but there is a fair chance of agreement being reached under Belgian Presidency before the end of this legislature in the first half of 2024.

The aim of the reform package is to better manage the flows of migrants, ensure an adequate protection of external borders, increase solidarity in dealing with asylum requests, create other conduits for asking for asylum than paying smugglers vast amounts of money and embark on perilous crossings of the sea. Rescue operations will be part of the overall approach, but great care must be taken not to create a massive pull factor encouraging more and more people to try crossing the Mediterranean at the risk of their lives. In 2013 and 2014, the Italian coastguard positioned an important flotilla in the Libyan waters (operation Mare Nostrum) to rescue migrants, but they abandoned the operation because of its high cost and because of the fear of creating just such a pull factor. Unless Europe coastguards go and collect the migrants ion the shores of the Southern Mediterranean, rescue operations, however ambitious, will never save all the migrants in difficulty. It bears repeating that European rescue operations have saved around 650,000 people over the past 8 years, but each year there are still thousands of people who drown while trying to reach Europe.

The first of the two major legislative proposals we are talking about is the asylum procedures regulation (APR). It foresees a procedure at the EU’s external borders to check whether applications for protection and asylum are founded and admissible. It applies when an asylum seeker makes an application at an external border crossing point, following apprehension in connection with an illegal border crossing or following disembarkation after a search and rescue operation. To that effect, the frontline countries are to build closed reception centers for up to 30000 migrants to assess their chances of being granted asylum in a fast-track process that is to last a maximum of six months. Migrants that are not eligible for protection will be returned to their country of origin, or a transit country. This happens when they present a danger to national security or public order, or have misled the authorities with false information and withheld information, or when they have a nationality with an asylum recognition rate below 20%.

The second legislative proposal is the asylum and migration management regulation (AMMR), which is meant to replace the current Dublin regulation. Its purpose is to determine which Member State is responsible for the examination of an asylum application. It also establishes a new migration management and solidarity mechanism which would assure a more even distribution of migrants across the EU. To this effect, it foresees the relocation of 30,000 asylum-seekers from frontline Member States to other Member States. The new rules combine mandatory solidarity with flexibility for Member States as regards the choice of the individual contributions. The available options include relocation, financial contributions (instead of relocations; the minimum annual amount will be fixed at EUR 20,000 per relocation) or alternative solidarity measures such as deployment of personnel or measures focusing on capacity building. Member states have full discretion as to the type of solidarity they contribute. No member state will be obliged to accept relocations. The regulation sets obligations for asylum seekers to apply in the member states of first entry or legal stay. It discourages secondary movements by limiting the possibilities for the cessation or shift of responsibility between member states and thus reduces the possibilities for the applicant to choose the member state where they submit their claim.

One of the tricky questions to be solved in the coming negotiations between the Council and the EP is whether and how to send persons who are not found eligible under the APR border procedure back to the last country of transit they come from. It will be important in this context to offer better legal means to file an application for protection or asylum without first entering the EXU territory. In 2016, the EU negotiated a deal with Turkey whereby the latter accepted to better police its borders to prevent illegal crossings against the promise of EU cash to help finance the management of migrants inside Turkey. At the same time, in a move destined to encourage legal routes for refugees to arrive in Europe, it was agreed that for each irregular migrant sent back to Turkey the EU would take in a refugee living in Turkey via the legal route. 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. But the underlying philosophy is the right one and should be borne in mind when thinking about similar deals with countries like Tunisia and possibly Libya.

There are still many hurdles to be cleared in the coming months, but there is a reasonable chance now that the EU will deliver a much-needed reform of its migration and asylum policy. While there is no easy or perfect solution, nor will there be one, this would create a more serene environment for dealing with the enormous challenges of the migration issue. It can only be hoped that it would also drastically reduce the loss of lives of migrants in the Mediterranean.

Jim Cloos, TEPSA Secretary-General

* A general approach is a Council agreement on a mandate for the Presidency to engage in negotiations with the European Parliament in so-called trilogue meetings.