European Pact on Migration and Asylum: A Sacrifice of Normative Values for Efficiency?

European Commissioner for Budget Kristalina Georgieva, Commission First Vice-President Frans Timmermans, European Union High Representative for Foreign Affairs and Security Policy, Federica Mogherini and European Commissioner for Migration and Home Affairs Dimitris Avramopoulos, from left, talk to the media prior an emergency EU heads of state summit on migration at the EU Commission headquarters in Brussels on Wednesday, Sept. 23, 2015. (AP Photo/Martin Meissner)

On 23 September 2020, the European Commission proposed a new Pact on Migrants and Asylum for a more holistic migration management system that is suggested to be reliable and predictable with comprehensive approaches. The Pact is based on two main “developments” to the current challenges at borders. Firstly, it is expected to vastly accelerate the procedures, which are proposed to be limited to 5 days for the initial process and 12 weeks in total for the appeal period. Therefore, neither borders will be piled up with migrants, nor those migrants will have to wait in the detention centers for a longer period. The second aspect of the Pact is to ensure fair burden-sharing and solidarity of the host Member States which are entitled to relocate the migrants in (or in the name of) another Member State, to encourage those who have been seeking asylum to return or to provide operational support unless they are able to perform the first two actions.

As such, the Pact is claimed to strengthen internal and external management with common governance of migration not by an individual Member State but by the whole EU.

On the other hand, there are several criticisms against the Pact. In the beginning, it has to be said that the proposed burden-sharing system is more complex than the Dublin system, in which the first arrival country is responsible for asylum processes. Moreover, with the new burden-sharing system, the Pact allows the member states to opt-out from relocating refugees as long as they fund other members and cooperate with them. Secondly, and maybe most importantly, the new Pact proposes an asylum system starting beyond the EU’s borders; thus, protecting “Fortress Europe” by improving the border security and cooperation with non-member neighboring countries. Additionally, as the most current devastating issue, COVID-19 was ignored in the Pact. It is not surprising that refugees will be affected by COVID-19 as most of the host countries’ capacities for refugees will be challenged due to health issues and risks. Moreover, the Pact did not reference the Global Compact on Refugees for the global refugee protection perspective.

Lacking such a global perspective, the Pact has been criticized for being too inward-oriented.

The Commission’s new proposal brought along many other controversies, such as whether the proposed asylum and migration system will bargain away the values and rights of asylum seekers over the efficiency of immigration control policies of the EU. As the international community has acknowledged, the EU’s current asylum and migration management system is not sustainable and plausible due to its lack of procedural efficiency, preventive measures against human rights violations of refugees, and imbalances in its burden-sharing approach. The current system has caused pressures on asylum systems of countries such as Greece, Italy, Malta, and Cyprus. As a result, human rights violations occurred inside the camps in some of these countries like Moria Camp in Greece, as well as anti-immigrant perceptions in the host communities and hostile attitudes, even fascist attacks towards immigrants. In addition, the push-back practices of Greece and Italy have been observed. Therefore, the new pact was expected to provide solutions to these issues with a rights-based and fair sharing of responsibility approach to asylum and migration management. However, the aim and subject matter of the proposed Regulation remained limited to the relocation of asylum-seekers and refugees, and acceleration of asylum procedures, the introduction of border procedures with a focus on the return of immigrants. In this sense, it can be argued that the EU turns a blind eye to the current human rights violations of asylum-seekers and refugees, as well as the challenges on economic and social integration of immigrants to host society, and unlawful push-back practices of member states, all of which contradicts with the EU’s commitment to universal human rights, and international law.

According to the UNHCR, the new proposal leads to efficient border procedures that abide by the EU law, especially regarding the non-refoulement principle. However, some might argue that the normative values are about to be sacrificed since an initiative to send refugees back to the safe third-countries emerges with the New Pact. The issue of determining the safety of the third-countries, as well as possible sanctions to them in case of not cooperating with the EU, is highly problematic. The fact that the irregular migrants who are subject to the border procedure may wait for the pending appeals only in borders might contravene the right to fair trial provided in the European Convention on Human Rights. Moreover, the proposal might undermine the principle of non-refoulement from the 1951 Refugee Convention as the new measures necessitate a very rapid decision-making process that hampers applicants in their effort to seek protection within the EU. Overall, one can argue that the proposed effective fast-tracking system per se does not seem to undermine the normative values. Yet, its application is likely to do so mainly because of the time pressure on the decision-makers, and of the two standards of asylum procedures in which the applicants are faced with country-based evaluation instead of personal-based evaluation, meaning that the applicants from countries of low acceptance rate are less likely to be admitted than those from high acceptance rate. Even though there is still possibly an effective evaluation process, one can suggest that the proposal does not prioritize responding to what human rights entail in asylum policies, but rather to repatriate individuals.

Author(s): Atahan Demirkol, Duygu Toprak, Merve Ceren Sözgen, Mesude Aslınur Oyan

 

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