The New Pact on Migration and Asylum: a paradigm shift in regulation and enforcement?

Salvatore Nicolosi and Paul Minderhoud

Last September 2020, the European Commission unveiled the New Pact on Migration and Asylum to commit the EU and its Member States ‘to build a system that manages and normalises migration for the long term.’ A fierce criticism has been already raised by scholars and civil society, claiming that this political platform is all but new and definitely unfit for the ‘fresh start’ sought by the Commission. In an attempt to contribute to this thriving debate, this post raises doubts on whether the Pact constitutes an effective paradigm shift in regulation and enforcement for EU asylum and migration law. As will be illustrated, the Pact reflects a regulatory framework that does not fix the existing divergences between the Member States, while at the enforcement level the approach is still precarious both as to the role of EU agencies and a strategy to ensure Member States compliance.

Restructuring the legal design of the Common European Asylum System without a sense of direction

The Pact relaunches the reform of the Common European Asylum System (CEAS), which was lying in a stalemate. While building on the progress achieved in the negotiation of some of the 2016 proposals, the Commission adds new legislative items for a comprehensive package that complements the core building blocks of the CEAS with new specific measures.

As to the core building blocks, the major elements of novelty connect with the difficulties in finding a compromise on the reform of the Dublin regulation and its model of solidarity as well as the need ‘to close the gaps between external border controls and asylum and return procedures.’ For the first time, the Commission repeals, or better renames, the Dublin Regulation, as Regulation on asylum and migration management, which designs a mix of flexible mandatory solidarity schemes. Moreover, the focus on procedures and enforcement is also expanded, as a new proposal for a Regulation introducing a screening of third country nationals at the external borders is added, complementing the amended proposal for the Common Procedures Regulation and the amended proposal for the Return Directive.

With reference to solidarity, the Pact departs from the axiological view recently expressed by Advocate General Sharpston, who emphasised that through their participation in the EU integration project, ‘Member States and their nationals have obligations as well as benefits, duties as well as rights.’ This ‘requires one to shoulder collective responsibilities and… burdens to further the common good.’ Instead the Pact pursue a pragmatic approach. Member States can choose either to relocate asylum seekers, either to sponsor returns to help another Member State repatriate irregular migrants, or provide other types of support including external cooperation for migration management in countries of origin or transit. Such a model of solidarity can produce adverse effects, as it discourages Member States from prioritising the relocation of asylum seekers. Likewise, considering that every year, only 40 % of third country nationals are effectively returned, little expectations are raised by the new tool of return sponsorships. Finally, this new framework instead of acting as a catalyst of a consensus, seems to rather contribute to further fragmentation in the effective management of the CEAS, neglecting that ‘the enjoyment of equal rights and benefits stemming from membership in the EU carries equal responsibilities.’

As to enforcement, the new legal design misses the opportunity to properly embed the role of the EU Agencies that, according to the Pact, should be involved in implementing the screening and border procedures. Despite creating the expectations of fully fledged agencies, the proposals underpinning the Pact, in fact, do not properly fix the conundrum of the legal mandate of these agencies and their executive powers that have been de facto expanding in the most recent years. This architecture, therefore, remains precarious in terms of procedural guarantees for migrants and coordination with the state authorities leaving accountability gaps open.

Ultimately, new legislative measures include a mix of fully harmonizing instruments as well as soft law measures, aiming at addressing situations of crisis, including those caused by search and rescue operations at sea. These encompass the proposal for a Regulation addressing situations of crisis and force majeure which repeals the never-triggered 2001 Temporary Protection Directive, and two Recommendations respectively on the Migration Preparedness and Crisis Blueprint, and on cooperation among Member States concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities.

This new legal design raises doubts about the overall direction in regulation and enforcement for the CEAS. As to regulation, it is worth stressing that an overly articulated set of more than ten proposals certainly complicates the negotiations and may affect once again the effectiveness of the reform. This can be still impaired by the lack of policy coherence, because, in view of offering a pragmatic platform to accommodate the diverging positions of the Member States, the new legal design misses the opportunity to operate a fundamental paradigm shift concerning the principle of solidarity.

Unfolding the Legal Migration Issues

The new Pact also touches upon some legal migration issues – although they are hidden away at the very end of the document and are not very well elaborated. Section 7 is called Attracting Skills and Talent to the EU. This section should really be about new pathways but is woefully lacking. The largest part of this section is on reviewing, revising or intensifying already existing instruments: The EU Blue Card, the Long-Term Residence Directive and the Single Permit Directive. According to the Pact, the European Parliament and the Council should conclude their negotiations on the recast of the EU Blue Card Directive which is designed to attract highly skilled talent from outside the EU. Already in 2016 the Commission published a proposal to recast the 2009 Blue Card Directive proposing among other things a lower salary threshold and better intra EU mobility possibilities. So far the negotiations on this recast were unsuccessful because a substantial part of the Member States (including the Netherlands) were against one of the most important proposed changes. Member States have to abolish the possibility of their own national schemes for the admission of highly qualified workers in parallel to the Blue Card scheme. Statistics show that the Blue Card scheme has not been a successful labour market instrument, partly due to this wish of several Member States to give preference to national schemes for highly skilled workers. The total number of EU Blue Cards issued in 2018 was only 32 678, of which 82.6% was issued in Germany alone.

The Pact wants to revise the Directive on long-term residents, because it is currently under-used and does not provide an effective right to intra-EU mobility. The objective would be to create a true EU long-term residence status, in particular by strengthening the right of long-term residents to move and work in other Member States. Also, in this context the existence of national permits for permanent residents has limited the impact on the harmonisation of different types of long-term residence status provided for by the Long-Term Residents Directive, which has been less successful than intended. In 2017 there were three million EU long-term residents’ permits issued in the EU versus seven million national ones. The Pact promises a review of the Single Permit Directive as well, because it has not fully achieved its objective of simplifying the admission procedures for all third-country workers. This review would look at ways to clarify the scope of the legislation, including admission and residence conditions for low and medium skilled workers.

Further, there is a relatively new labour migration instrument introduced in the Pact:  the so-called EU Talent Pool. This is a pool for skilled workers which could operate as an EU-wide platform for international recruitment through which skilled third-country nationals could express their interest in migrating to the EU and could be identified by EU migration authorities. It will work through an Expression of Interest (EoI) model, supporting the selection of migrants under specific programmes. Three countries have implemented an EoI system so far: New Zealand, Australia and Canada. Whether this will be a real solution for the EU is questionable. A 2019 publication from the OECD shows that the international job matching features in the existing EoI systems so far have been underused. Besides, in the EU, migration and employment management systems are run in very different ways across EU countries. Issuance of residence permits is the competence of Member States, which also have the prerogative to define the number of labour migrants to admit to their respective labour markets. EoI in New Zealand, Australia and Canada leads to immediate permanent residence, which is unknown in EU Member State legislation and not contemplated in the EU legal migration framework. Even the most basic adaptation of this Expression of Interest model would require a complex and costly infrastructure.

Regarding legal migration, the Commission also proposes Talent Partnerships in the form of an enhanced commitment to support legal migration and mobility with key partners. These will provide a comprehensive EU policy framework as well as funding support for cooperation with third countries, to better match labour and skills needs in the EU, as well as being part of the EU’s toolbox for engaging partner-countries strategically on migration. The devil is in this detail because the partnerships would combine direct support for mobility schemes for work or training with capacity building in areas such as labour market or skills intelligence, vocational education and training with the integration of returning migrants. So it looks like a quid pro quo system.

Conclusion

To conclude, the Pact does not meet the expectations of a ‘fresh start’ for the governance of the asylum and migration policies in the EU. The legal design in the area of asylum seems to contradict the attempt to build a system which is truly common and based on genuine solidarity. While at the enforcement level, a clear operational mandate for the EU agencies as well as an adequate coordination with the State authorities is missing.

On labour migration, the Pact shows the fundamental problem of division of competences between the Commission and the Member States. Labour migration is still too much an issue of the individual Member States, which still seem very hesitant to embrace any harmonization. There is no ‘fresh start’ also as regards labour migration. The Commission is bound to limit itself to reviewing, revising and intensifying already existing instruments. As to enforcement it is dependent on the willingness of the Member States to comply. If the EU does not get more competences in this regard it will have to continue a policy of muddling through using vacuous words such as ‘added value’.

Partly based on the presentations given at the webinar ‘Same Old? Debating the New European Pact on Migration and Asylum‘ organised by the RENFORCE building block on Citizenship and Migration and the Maastricht Centre of European Law (MCEL).

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Salvatore Nicolosi

Over Salvatore Nicolosi

Salvo Nicolosi is Assistant Professor in European and International Law at Utrecht University Law School, where he is also a Researcher within RENFORCE. In his research Salvo combines expertise in the domains of European law, international human rights law and international refugee law, with particular attention to the development of the Common European Asylum System. He examines the EU institutional, law-making and enforcement dynamics in the context of asylum and migration and the relationship between the EU asylum legislation and the main international human rights legal instruments, including the 1951 Geneva Convention on the Status of Refugees and the 1950 European Convention on Human Rights.