Briefing: In search of a more humane EU migration and asylum policy

‘There are good intentions to improve policies, but somehow this is all being taken hostage by really negative politics.’

A stranded boat for migrants on a southern Mediterranean Sea beach. (GLF Media/Shutterstock)

The Maltese government has commissioned private ships to push people back to war-torn Libya, and the Greek authorities have been rounding up asylum seekers and migrants and illegally deporting them back to Turkey. 

These developments, and others seen since the onset of the coronavirus pandemic, are emblematic of a “normalisation of the extreme” when it comes to European policies on migration, according to Bram Frouws, head of the Mixed Migration Centre. “And it all got relatively little attention because everybody is focused on COVID-19,” Frouws told The New Humanitarian. 

Last year, the EU’s executive body, the European Commission, announced plans to introduce a New Pact on Migration and Asylum that would lay out proposals for reform and a vision to guide how the 27-country bloc will approach the topic in the years to come.

The New Pact was supposed to be unveiled in February, but its release was pushed back to mid-April, and the coronavirus has caused further delays. Details about its contents are still sparse, but in its 2020 Work Programme, the Commission said it wants to introduce a “more resilient, more humane and more effective migration and asylum system”. 

Given the direction of EU asylum and migration policies in recent years, the EU Commission will have to significantly alter course if it is to deliver a more humane approach. What would that look like? Is it possible? And what potential effect could the COVID-19 pandemic have on the EU’s New Pact? Here’s a breakdown of some of those key questions: 

What is the EU’s approach to migration and asylum now? 

Since the peak of the Mediterranean migration crisis in 2015, the EU and its member states have toughened policies aimed at keeping asylum seekers and migrants away from European borders, often with little regard for humanitarian consequences or EU and international law. 

The reaction to irregular migration during the coronavirus pandemic has, for the most part, reinforced these trends. Some countries have used the virus as an excuse to erode access to asylum and introduce hardline migration policies that can’t be justified by public health concerns, and EU states, especially Italy and Malta, have further retreated from the international legal obligation to rescue and provide safe harbour to asylum seekers and migrants who are in distress at sea.

“Whatever the costs for the lives of [people], whatever the potential infringements of international law, the focus has been on reducing numbers.”

Even before COVID-19, under the loose umbrella of EU migration policy, European countries had withdrawn from proactive search and rescue efforts in the Mediterranean, empowered the Libyan Coast Guard – through training, funding, and assistance – to intercept and return people to detention centres in the war-torn country, violently pushed asylum seekers back from Europe’s land borders, allowed tens of thousands of people to pile up in dismal camps on the Greek islands, funnelled money to African security forces implicated in grave human rights abuses, and pursued criminal cases against NGOs and volunteers helping asylum seekers and migrants. 

“Whatever the costs for the lives of [people], whatever the potential infringements of international law, the focus has been on reducing numbers,” Alberto Neidhardt, a migration policy analyst at the European Policy Centre in Brussels, told TNH.

What do we know about the New Pact so far?

Before taking office last December, European Commision President Ursula von der Leyen outlined a general vision for reforming the EU’s approach to migration and asylum. At the top of her list of priorities was strengthening the bloc’s external borders and reforming the Dublin Regulation, which requires people to apply for asylum in the first EU country they enter and has long been a point of contention between member states.

The vision also called for increased solidarity and burden sharing with the states where most asylum seekers and migrants first arrive, a focus on partnerships with third countries, more pathways for legal labour migration and refugee resettlement, a sustainable approach to search and rescue in the Mediterranean, and clear rules for returning people who do not qualify for asylum to their home countries.  

Beyond that broad sketch, little is known for certain about the form and substance of the pact. But a number of leaked documents that began circulating at the end of last year have provided some hints. According to a recent report by the European Policy Centre, the leaks suggest that “the Commission may opt to reduce the New Pact to a collection of watered-down compromises on responsibility-sharing. It also appears to be doubling down on control-oriented measures.”

Regardless of what the Commission puts forward, the New Pact will only be the starting point, and its contents will have to be debated by the EU Parliament and member states in order to reach a consensus on reforms, according to Philippe Dam, Human Rights Watch’s advocacy director for Europe and Central Asia.  

What would a more humane approach look like? 

Civil society organisations and human rights groups are looking at the New Pact as an opportunity for the EU to move away from reactionary policies developed in response to the 2015 migration crisis and are pushing the Commission to adopt an approach that is in line with international and EU law and European values, which include respect for human dignity and human rights. 

On the proactive end, the EU needs to open up far more channels for both high- and low-skilled regular labour migration, according to Michele LeVoy, director of the Brussels-based Platform for International Cooperation on Undocumented Migrants (PICUM). Currently, the EU primarily offers work permits to people for highly skilled jobs. “[There are] very few regular channels for low-wage workers,” LeVoy said. 

Resettling more refugees is also an important step. In 2017, the EU launched a programme to resettle 50,000 refugees over the course of two years. When it ended in October last year, 37,520 people had been brought to Europe through the programme. “Few states actually participate in resettlement efforts,” Neidhardt, the migration policy analyst, said. “That obviously leaves no option to those who are seeking asylum [other than] to try to enter the EU irregularly.”

Civil society groups and rights advocates have also highlighted the importance of initiating proactive, state-led search and rescue efforts in the Mediterranean and ending the criminalisation of activities by NGOs and civilians working and volunteering to help asylum seekers and migrants, including independently funded search and rescue operations.

“Few states actually participate in resettlement efforts. That obviously leaves no option to those who are seeking asylum [other than] to try to enter the EU irregularly.”

Improving reception systems to prevent dangerously overcrowded and unsanitary situations – like on the Greek islands – is also a priority highlighted by civil society groups. This would likely involve revising the Dublin protocol and developing a system to distribute responsibility – often referred to as burden sharing – for hosting asylum seekers and migrants among EU member states. Investing in national asylum systems to make them faster without compromising on fairness or the right to appeal, ending migration detention, especially for children, and developing programmes to help people integrate into their new communities are also measures highlighted by NGOs.

The Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, has also emphasised the need for greater transparency and accountability in the EU’s cooperation with third countries on migration. “Whilst a legitimate instrument, such external co-operation may also entail human rights risks,” she wrote in a letter to the EU commissioners working on the New Pact, calling for risk assessments, monitoring mechanisms, and systems of redress to be put in place. 

Is a more humane approach possible? 

Despite clear and consistent messaging and proposals from civil society groups over a number of years, it will be difficult for the Commission to change the EU’s approach to migration and asylum. “There are good intentions to improve policies, but somehow this is all being taken hostage by really negative politics,” Frouws, from the Mixed Migration Centre, said. 

Since 2015, far-right political parties have gained ground in elections across Europe by stoking anxieties and anger about migration. The electoral ascent of these parties, which also often express scepticism about the benefits of European integration, has had a significant impact on how the EU approaches migration and asylum. “I think there are many EU leaders who… can only explain increased control to their electorate,” said Mikkel Barslund, a research fellow at CEPS, a Brussels-based think tank.  

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The Commission is approaching the development of the New Pact pragmatically, looking to make progress in areas that member states largely agree on. “This, seen from the viewpoint of those arguing for a progressive migration agenda, could be problematic,” Neidhardt said. 

Focusing on the concerns of states means the interests of civil society might end up taking a back seat. And while there is little agreement on burden sharing or other reforms that could lead to a more humane approach, states largely agree on the objectives of reducing arrivals and increasing returns. “Having a wider consensus also comes at the cost of a more progressive and humane policy,” Neidhardt added. 

Ultimately, the question about whether the EU enacts a more humane migration and asylum policy might be more about choosing to enforce existing conventions, agreements and laws – such as the 1951 Refugee Convention, the European Agenda on Migration, the Global Compact for Migration and EU asylum laws – than putting forward a New Pact. 

“We have all these agreements, and I think everything that needs to be done is actually in there,” Frouws said. “If there's going to be a New Pact, then I'm sure we will have lots of human rights-based language in it, but I doubt whether it's going to change that much.”

How will COVID-19 influence the New Pact? 

The coronavirus pandemic will likely impact more than just the timing of the release of the New Pact on Migration and Asylum. To slow the spread of the virus, countries in the visa-free Schengen Zone have reintroduced border controls. This may shift the focus of the New Pact to have a stronger emphasis on mobility within the EU and how the Schengen area should respond to future epidemic threats, according to Neidhardt. 

Several countries, including EU member state Hungary, have used the virus as an excuse to suspend access to asylum, and there’s a risk that policies like this will stay in place even after the pandemic ends. Frouws also worries that the emphasis on limiting mobility due to COVID-19 could lead to an even stronger emphasis on partnerships with third countries and efforts to constrain movement in the future. 

At the same time, migrant rights advocates have seen some developments in various EU countries during the pandemic that are promising, including people being released from migration detention, deportations being put on pause, social welfare and medical benefits being extended to undocumented migrants, and efforts to regularise the status of undocumented people, according to information compiled by PICUM.  

“Countries are now, more than ever, realising the extent to which certain sectors are heavily reliant on migrant labour,” Frouws said. “I hope this will have some positive influence on the Pact in terms of finally getting serious about… scaling up legal labour migration channels.”

In the long term, he is also hopeful that the restrictions on movement many people around the world have experienced during lockdowns may lead to more empathy. “Suddenly, all of us who are not used to [it] are experiencing a lack of freedom of movement; we are experiencing being involuntarily stuck in a place and not able to reach our families; dealing with all kinds of restrictions,” he said. “This is the daily reality of... refugees and migrants.”

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