Holding the Commission to account for the New Pact on Migration and Asylum

Editor’s Blog: Produced in collaboration with the EU Buzz team 

As migrants scramble to reach the shores of Europe, the European Commission has sought to present its solution. In September 2020, the Commission released its New Pact on Migration and Asylum setting up a “Common European Framework for Migration and Asylum Management”. Negotiations of the Pact took place through both the German and Portuguese Presidencies of the EU, and have continued into the Slovenian Presidency without agreement amongst the Member States. Countries continue to disagree on key structural aspects of the Pact whilst, at the same time, the Commission has tried to force through its implementation. Civil society organisations and NGOs have been highly critical of the Pact, with EuroMed Rights denouncing it as a “fresh start” only for human rights violations.

In contravention to the 2016 Inter-institutional Agreement on Better Law-Making, the European Commission has not submitted any impact assessment to accompany the proposed Pact. The impact assessments are the foundations of providing a sound, independent, evidence based analysis  of the proposals, including of alternative policy options. Instead, the Commission has produced its own ‘Staff Working Document’ which has been termed “baseless” by many. The omission of an impact assessment is the first alert that all is not transparent. 

Pre-launch of the Pact, there has been no involvement of the EU Institutions, those mandated to analyse and comment on the Commission’s proposal. The only meetings which took place were bilateral negotiations between the Commission and Member States’ Ministers of Interior, which the Commission has conveniently framed as ‘consensus building’. This is not the normal functioning of the democratic processes of the European Union, where a ‘Community method of cooperation’ is the normal methodology adopted for bringing new legislation to the table. Furthermore, in relation to the Pact, the Commission endorses this selective policy development by calling for consensus building in EU policy areas benefiting from qualified majority voting in the Council, overriding the decision-making rules governing EU inter-institutional relations, including the commitment to sincere inter-institutional cooperation throughout the entire legislative cycle.

The Pact on Migration and Asylum has been presented as an ‘innovative approach’, coupling migration and asylum policy with border management though ‘integrated policymaking’ intended to provide a ‘seamless link’. It has, however, been based on the Commission’s own interpretation of available asylum statistics and the categorisation of “mixed flows in the EU. The Commission has assumed that third-country nationals can be easily and quickly distinguished between refugees and “irregular immigrants”. As a result, there is an underestimation of the number of legitimate international protection seekers and beneficiaries in the EU. Matters are made worse through a lack of legal clarity for both the EU and national governments meaning that some processes many run contrary to the EU Better Regulation Toolbox and EU Treaty obligations.

The Commission has concentrated its policy mainly on screening, asylum and return border procedures, much of which may well fall under human rights violations. The ‘effectiveness’ of EU return policy is also questionable with many third countries already demonstrating their reluctance to align with EU objectives in the field of return. In this respect, the Commission also does not take into account that people issued with a return decision may be ‘non-returnable’ for a number of well-justified and legitimate reasons, including on humanitarian grounds. 

The Pact also demonstrates a contradiction with the national laws of some states. The majority of EU Member States provide designated asylum authorities in accordance with the 1951 Geneva Convention regime within their legal systems. These national asylum authorities are often, independent from Home Affairs Ministries as their roles differ from those of the national authorities responsible for border controls and return decisions. The Pact, however, prioritises the role of migration enforcement authorities and of border police authorities over those responsible for asylum. Again, this will potentially lead to legal uncertainty, and possible contravention of international conventions on asylum and migration.  

The Commission has used a lack of legal clarity, alongside the notions of “crisis” and “force majeure” to create greater confusion which is causing frustration and concern amongst both European parliamentarians and civil society organisations alike. When suggestions are made that the Commission’s New Pact on Migration and Asylum may violate the EU Charter of Fundamental Rights, the role of the EU Institutions in holding the Commission to account must be enforced. As the EU is a beacon in the world for upholding rule of law, the EU Commission must itself uphold the principle. 

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