New pact on migration and asylum risks exacerbating returns instead of offering a fresh start – migration NGOs

An in-depth report criticising the EU Commission’s proposals for the new pact on migration and asylum, signed by a coalition of over 70 migration and human rights NGOs from all over Europe notes that instead of offering a fresh start, the pact risks exacerbating returns as well as deterrence, containment and externalisation.

Migration has been an ongoing issue within the EU for decades. At the end of September, the EU Commission (EC) announced its proposals for a new pact on migration and asylum.

In its document, the EC states that with this pact, it is “proposing a fresh start on migration by building confidence through more effective procedures and striking a new balance between responsibility and solidarity.”

However, Foreign Affairs Minister Evarist Bartolo and Home Affairs Minister Byron Camilleri have already come out saying that the proposals are not sufficient.

Similarly, migration NGOs think that what is being proposed might have the opposite effect or put focus on certain elements which are not as pertinent as other, more salient topics that still need to be tackled. They also questioned how feasible these proposals are in practice.

Pact missed the opportunity to reform existing systems

One key pillar in the EC’s proposals is flexible options for the relocation of recently arrived migrants. The Commission proposed a system of flexible contributions from the Member States and these can range from relocation of asylum seekers from the country of first entry, to a return sponsorship whereby a member state takes over responsibility for returning a person with no right to stay on behalf of another member state.

“This looks less like a mechanism that supports predictable sharing of responsibility and more like the kind of negotiations among Member States with which we have all become too familiar. The complexity of what has been proposed raises doubts as to whether it is actually workable in practice,” the coalition reports.

Additionally, the coalition believes that the concept of return sponsorship suggests an equal focus on returns to the focus on protection. Instead of supporting individual member states in managing a higher number of asylum applications, this proposal raises numerous human rights and legal concerns, especially should transfer to the socalled sponsor state take place after the deadline of eight months has passed, the coalition said.

The collation is of the idea that the overriding objective of the pact is an increase in the number of people who are returned or deported from Europe. The creation of the role of a Return Coordinator within the Commission and of a Frontex Deputy Executive Director on Returns without similar appointments on protection standards or relocation illustrate this point, they argued. “While dignified return is an accepted process of migration, investment in return is not the answer to the systematic non-compliance with asylum standards in EU member states.”

Expanded use of border procedures is predicted on two flawed assumptions

The EC is proposing new, faster asylum border procedures and, where applicable, followed by swift return procedure to speed up decision-making and make asylum procedures more efficient.

The coalition believes that this is predicted on two flawed assumptions; that the majority of people arriving in Europe do not have protection needs and that assessing asylum claims can be done easily and quickly, neither of which are correct.

“Furthermore, proposing that member states should issue an asylum and return decision simultaneously without clearly specifying the requirement that important safeguards related to non-refoulement, best interests of the child and protection of family and private life are assessed, undermines international legal obligations,” the coalition said.

The pact also includes new compulsory pre-entry screening that involves identification, health and security checks as well as fingerprint registration into Eurodac database. Here, the coalition raised questions on access to information, the rights of people undergoing the screening, including access to a lawyer and the right to challenge the decision, the grounds for refusal of entry and the privacy and protection of the data collected.

There is also the issue of member states extending or suspending border asylum procedures in a situation of crisis, like an exceptional situation of mass influx, which subjects people to substandard procedures. “With no claim registered for weeks, people may be at risk of detention, refoulement and their rights to adequate reception and basic services can be severely affected.”

A welcome initiative is the proposed independent monitoring of fundamental rights at the border.

“To ensure that this mechanism results in accountability for rights violations at the border, including the persistent use of summary removals and pushbacks across a large number of Member States, it needs to be expanded beyond the screening procedure, be independent of national authorities, and involve independent organisations such as NGOs.”

Support to search and rescue and actions of solidarity

In their report, the coalition also flagged the lack of attention towards external action and acts of solidarity in search and rescue operations.

Instead of addressing the behaviour and regulations of governments to obstruct sea rescues and enabling the work of human rights defenders, the EC suggests that safety standards on ships and communication levels with private actors need to be monitored, the report reads.

“While the issuance of guidance to prevent criminalisation of humanitarian action is welcome, this is limited to acts mandated by law with a specific focus on search and rescue. This risks leaving out humanitarian activities such as the provision of food, shelter or information conducted on land or carried out by organisations not mandated by law which are also subject to criminalisation and restrictions.”

Furthermore, the coalition foresees the continuation of attempts to externalise responsibility for asylum, and pressure third countries to cooperate on migration control and readmission agreements since “nothing new” was proposed on external action and relations.

“This not only risks contradicting the EU’s own commitment to development principles, but also undermining its international standing by generating mistrust and hostility from and among third countries. Furthermore, using informal agreements and security cooperation for migration control with countries such as Libya or Turkey risks enabling human rights abuses, emboldening repressive governments and creating greater instability.”

The way ahead

The coalition said that while negotiations on these proposals are ongoing, it is important to recall that there is an EU asylum framework in place and that Member States have obligations under existing international and EU laws.

This requires immediate action by EU policy makers, including Member States, to implement existing standards in relation to reception and asylum processes, investigate non-compliance and take necessary disciplinary measures, the coalition said. “Also to save lives at sea, ensuring search and rescue capacity, allowing timely disembarkation and swift relocation.” Policy makers should continue seeking ad-hoc solidarity arrangements to alleviate pressure on member states at the EU’s external borders and support member states to agree to relocation, the coalition added.

For the upcoming negotiations on the pact, the coalition made recommendations for co-legislators, starting by rejecting the mandatory application of substandard asylum or return border procedures “which reduce safeguards for applicants and increase detention.”

“This would exacerbate the current lack of solidarity for asylum in Europe by placing more responsibility on member states at the external border.”

Proposals should aim to fundamentally reform the way in which responsibility for people seeking asylum in Europe is organised, addressing the first country of entry principle, in order to create meaningful and predictable mechanisms for solidarity, the coalition said. More focus should be put on maintaining and raising asylum and human rights standards in Europe, rather than return.

“With regard to boarder procedures, co-legislators should increase the safeguards during screening to ensure information is provided, access to a lawyer is ensured while health needs and vulnerabilities are detected and swiftly acted upon.

Proposals should also discourage attempts to use development assistance, trade, investment, visa schemes, security cooperation and other policies and funding to pressure third countries into cooperation on narrowly defined EU migration control objectives, the coalition added.

The coalition said that the EC should also establish an EUfunded and run Search and Rescue Operation in the Mediterranean Sea while significantly expand safe and regular routes to Europe by swiftly implementing current resettlement commitments, proposing ambitious new targets and increasing opportunities for protection pathways.

“Finally, more attention should be given to promising proposals supporting inclusion through access to long-term residence and related rights by implementing the upcoming Action Plan on Integration and Inclusion at the EU, national and local level.”