Recycled EU migration policy

Historical overview

The Dublin Convention is essentially an international agreement between the EU countries, Iceland, Switzerland, Liechtenstein and Norway, and they are called the Dublin countries. Following the amendment of the Geneva Convention by the New York Protocol of 1967, which relates to the status of refugees, in an effort to shorten the processing time of asylum applications and avoid unpleasant situations with applicants, an agreement was signed in Dublin, the capital of Ireland, on June 15, 1990. Convention determines the State responsible for considering asylum applications submitted in one of the Member States of the European Communities (97/C 254/01).

The Dublin States have undertaken to examine any request made by a third-country national or a stateless person from one of these States and to have the request processed by only one Member State. The criteria in Articles 4 through 8 indicate whether the applicant has family in the country where he or she is applying, whether he or she has a residence permit, and what type of residence permit he or she has and determine which is the first country to which the person entered legally or not legally. Other articles deal with the humane treatment of applicants and the assessment of whether the state is able to process the application and provide protection to such a person, and in this case, the possibility of asking another state to take responsibility for the applicant. It deals with situations where a country has difficulty in referring to the Committee, which is responsible for examining any question relating to the application or interpretation of this Convention.

The Convention was amended in subsequent years because certain criteria regarding the country responsible for the asylum seeker were not precise enough. Thus, in 2003, it was replaced by the Dublin Regulation, which was intended to minimise the time needed to determine the country responsible for examining the application and to prevent the abuse of asylum procedures. The Dublin Regulation II now establishes the principle that only one Member State is responsible for examining asylum applications, and in order to determine the States responsible, objective and hierarchical criteria have been established. These are the principles of family unity, issuance of residence permits or visas, illegal entry or stay in a Member State, legal entry into the Member State and application in the international transit area of the airport. In 2013, this regulation was also transformed into the Dublin Regulation III, which is also based on examples from the past, i.e. already saw mistakes when the Regulation II was adopted and aimed at fast access to the asylum procedure.

The New Pact with old shortcomings

The New Pact on Migration and Asylum was presented by the European Commission in September 2020. The Commission's documents and reform proposals, mainly from 2016 and 2018, are the starting point for the creation of the Pact. The main goal is to create a comprehensive, common policy on migration and asylum (MIGREC, 2022). The Pact was created as the Union's response to the challenges it faces in the field of migration. Although the pact is touted as a "new" migration pact, its proposals are based on old, failed ideas, including the principle of first entry, mandatory border procedures, and the fiction of non-entry (The Greens/EFA). The new pact is symbolically described as a house with three floors: internal solidarity and shared responsibility in the integration of migrants, an efficient border control system, and tailored partnerships with countries of origin/transit (MIGREC, 2022).

The New Pact on Migration and Asylum declared the end of the infamous Dublin Regulation. However, the underlying principle remains essentially intact. Responsibility for processing asylum cases remains largely with the country of entry, but the pact provides for a number of support measures. The novelty of the policy development is that with this proposal, the Commission abandoned its earlier call for mandatory resettlement of asylum seekers. The obligation to resettle has been transformed into an obligation to contribute in a flexible way, through a variety of support measures, including resettlement, capacity-building measures, and other forms of operational support measures, as well as the possibility of taking responsibility for the return of migrants, so-called "return sponsorships" (Abdou, 2022:10).)

According to Commission President Van der Leyen, the pact is intended to open a new chapter and make a new beginning possible. However, this pact has been widely criticized by both scholars and human rights organizations for proposing too little or nothing that could truly turn the tide. The pact highlights the static nature of the political core on migration and asylum created in the 1990s and early 2000s. The Van der Leyen Commission did not invent but inherited this political core, a legacy that is very difficult to leave behind in the face of political realities. The challenge for the EU's migration and asylum governance is the stability of this political core and, relatedly, the continuation of the regulatory path of asylum integration as opposed to institutional capacity building (Abdou, 2022:4).

On the other hand, one of the points of contention is a new ‘solidarity mechanism’. While the Pact states that “solidarity is not optional”, it advances a package of proposals implementing the concept of ‘mandatory flexible solidarity’ among EU Member States in the field of asylum and returns. Flexible solidarity is one expression of intergovernmentalism (Carrera and Cortinovis, 2019). It leads to fragmentation in European cooperation on an issue where common action is essential. This “flexibility” can be understood as “less EU” and it weakens the possibilities for the EU to fully accomplish a harmonised immigration and asylum policy that is consistent, ‘common’ and integrated.

However, if flexible solidarity means internal outsourcing, that is, that Northern and Eastern countries may choose to participate in return partnerships or capacity/operational support and not fully relocation, while Southern countries necessarily have to take charge of the burden of the registration and asylum procedures, there is a high risk that places such as the Canary Islands or Andalusia (as Lampedusa or Lesbos) may become ‘limbo-zones’ where people are contained, and rather inevitably, their rights endangered (Carrera, 2020). So, EU Return Sponsorship blurs who is accountable for what. On the one hand, the long ‘chain of responsibility’ makes it is increasingly difficult to assign the accountability for fundamental rights violations of detained or expelled individuals.

On the other hand, it is hard to imagine the situation where all the relevant actors directly or indirectly involved (‘benefiting’ and ‘sponsoring’ EU Member States, EU institutions and agencies, namely Frontex) would be called out. This will only increase the blame-shifting game among them. To avoid such chaos, the EU needs to stand firmly – with actions and words — behind the meaning of solidarity (Vosyliūtė, 2021). However, instead of presenting a truly new idea of solidarity, so strongly recommended in the Wikström-Report of the European Parliament, it relies more on the logics of ‘flexible solutions’ based on nationalistic interests (Hruschka and Maiani, 2017.) Also, there is a criticism regarding understanding importance of Global Compact on Refugees in this field.

Despite the fact that 27 out of the 28 EU Member States at the time affirmed the GCR (only Hungary opposed it), many informants expressed the reality that it is rarely discussed or implemented within the EU. There is a false perception of irrelevance of this act. A local government official in Germany engaged in a national programme for the local integration and empowerment of refugees (conceivably highly relevant to the GCR) put it bluntly: “It is very easy to answer your question, because the Global Compact on Refugees is not relevant for our work”. (Easton-Calabria, 2021).

The truth is that today, in the face of rising border restrictions, disappointing political outcomes and ongoing xenophobia, we need to make use of all the tools in our hands, and a GCR is definitely the important one. On the other side, we have the latest report from European Commission on migrations and asylum which is very positive and optimistic. In the introduction it states: The EU has shown itself able to react quickly, with concrete solidarity and effective coordination. But, we must not forget that, as s President Von der Leyen made clear in the State of the Union address, it is important that this solidarity continues to be present in EU migration debate, and the unprecedented efforts to welcome millions fleeing Ukraine should be an inspiration for future actions – a blueprint for coordinated, collaborative response at EU level.

The crucial question is whether it is possible for EU member states to leave behind the controversies of the past and move toward a more coherent and cohesive approach to migration and asylum. The economic, political, and social discrepancies among EU member states highlight the difficulty of establishing a common basis for discussion and implementing a more inclusive and transparent system for managing migration movements. Hungary, Poland and the Czech Republic have publicly spoken out against the EU's new migration pact. It is unlikely that there will be a sudden change of direction in migration policy and hospitality policies supported by these countries. Their reactions illustrate the controversial atmosphere that characterized the publication of the New Pact on Migration and Asylum.

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