With a successful – but not unanimous – final vote in the Council in mid-May, the New Pact on Migration and Asylum has now been formally adopted. After years of stalemate on legislative reform and bitter disagreements, the EU co-legislators were able to achieve a compromise on the legislative package, cementing hopes of a new chapter on migration and asylum policies.
With the political formalities out of the way, policymakers are now focusing on the implementation of the measures, with many legal, operational, and financial questions remaining open. A renewed sense of mutual trust and goodwill seems to be propelling inter-institutional discussions to define this next phase. This is not to say that the Pact reforms are not controversial. Civil society, commentators, and several political figures reacted to the compromise on the Pact instruments with scepticism due to its potential impact on migrants’ fundamental rights. In addition, the opposition by Poland and Hungary in the Council’s recent vote, as well as the abstentions of further member states, are a stark reminder that the current honeymoon may not last long. As a result, it is critical to identify and promote methods that will allow for adequate implementation of the new rules, as well as address practical and legal gaps early on.
While the upcoming European Parliament and national elections add a degree of uncertainty to this endeavour, the start of a new EU legislative cycle offers a renewed opportunity to reflect on the preconditions for a new chapter in migration and asylum policies. Paraphrasing a sensible and optimistic remark made at the most recent EPC event dedicated to the reforms, it is no secret that the legislative process and the New Pact negotiations were not always conducted on the basis of objective needs. Few negotiations at the European level ever are. But, with the divisive negotiations now over, the EU and member states can put needs and evidence-informed assessments at the heart of implementation and policymaking.
While it may be too much to expect migration and asylum policies to be based on reason and vision from now on, the EU and member states are left with little or no excuse not to set divisions and emotions aside and make way for informed decision-making.
Against this background, the European Policy Centre and the Odysseus Academic Network for Legal Studies on Immigration and Asylum in Europe have come together and conducted an in-depth analysis of some of the key adopted reforms, bringing fresh perspectives into a highly polarised debate. The series of publications launched today aims to identify challenging aspects of the reforms, whether legal, political, or practical. At the same time, it seeks to identify means for the best possible implementation outcomes of the new rules, in line with fundamental rights and values, while pointing to priorities for the next policy cycle.
The building blocks of the future EU migration and asylum system
Several overarching issues run throughout the contributions to the series. A fundamental concern is the expected impact of the reforms on the ground, and whether they sufficiently address the shortcomings and structural problems that have long undermined the functioning of the Common European Asylum System (CEAS) and integrated border management policy, such as the balance between solidarity and responsibility, deficient reception conditions, or onward movements within the Schengen area and beyond.
Recent weeks have seen accusations by immigration hardliners that the reforms do not go far enough in preventing alleged abuses of the asylum systems by applicants. Meanwhile, the Pact has given rise to renewed concerns around the risk of fundamental rights violations being normalised. In this context, the contributions aim to put forward a critical and balanced assessment of both the problematic and more promising elements of the reforms.
The contributions also consider key questions that EU and national policymakers will have to address in the run-up and as soon as the package of reforms becomes fully applicable in two years. For example, what immediate and long-term funding, training, and infrastructures will be necessary to operationalise the new rules? Such insights should pave the way for more informed discussions on future policymaking, for example the design of and funding allocations under the next MFF (2028-2034).
The contributions to this series will analyse the building blocks of future migration and asylum system as follows:
Evangelia (Lilian) Tsourdi focuses on screening, border asylum processing, and border return procedures making up the new ‘seamless procedure’ at EU’s external borders. While such a set-up could potentially help to manage mixed migration flows better, her contribution also identifies several legal, practical, and material challenges that may stand in the way of this objective.
In his contribution, Philippe De Bruycker examines the functioning of the Asylum and Migration Management Regulation which replaces the so-called Dublin system. He discusses the new mandatory but flexible solidarity mechanism, as well as the complex system for identifying member states considered under migratory pressure and determining the necessary level of solidarity. The contribution also unpacks the new governance structures that are intended to improve the predictability and stability of the new system of sharing responsibility.
Alberto-Horst Neidhardt explores the expected functioning of the rules for situations of crisis, instrumentalisation, and force majeure. These are part of an entirely new instrument that was unprecedented in the EU and beyond. His contribution examines the derogations foreseen in such emergency scenarios against whether the EU will be better prepared for future crises, including those engineered by foreign actors, thanks to this new crisis management system.
Several reforms comprising the New Pact on Migration and Asylum are strongly tied to the so-called external dimension of EU migration policy. This is because the implementation and stability of the newly established migration system is contingent on partnership between the EU and third countries’ ability to jointly manage migration and execute returns. In this context, Andreina De Leo and Eleonora Milazzo identify how the provision on asylum procedures and solidarity will shape relations between the EU and third countries.
Helena Hahn builds on these analyses and takes a broader view of the balance and shift in powers among the EU institutions as laid out under the Pact reforms. Her analysis focuses on the role of the European Commission in managing as well as monitoring the implementation of the new rules, exploring how far this marks a departure from its traditional role and responsibilities.
This series goes beyond the core New Pact files and includes two contributions on interrelated policy areas and other reforms that were concluded in tandem or may acquire further priority in the next: the functioning of the Schengen system and legal migration.
In recent years, the resilience of the Schengen area has been shaken by terrorism, the COVID-19 pandemic, and greater migratory movements. But in his contribution, Daniel Thym argues that the reform of the Schengen Borders Code (SBC) amounts to an agglomeration of half-hearted structural changes that may ultimately prove insufficient to overcome the deep-seated deficiencies that have undermined trust between members of the Schengen area. Smaller-scale amendments may, accordingly, fail to create a more resilient Schengen system.
Tesseltje de Lange critically assesses the regulation of legal migration pathways to the EU, focusing on opportunities for international students and trainees specifically. Against the background of the EU’s increasing attention on the need for international talent on the one hand, but also a move away from the internationalization of migration in several member states, her contribution explores how talent attraction could be combined with quality reception and longer-term perspectives in the EU, while at the same time generating greater mobility opportunities vis-à-vis partner countries.
Quo Vadis, migration and asylum policies?
For a proper “fresh start” to happen, collective and actual needs, long-term perspectives, and common interests should come first, and replace the emotions, crisis-induced short-term thinking, and national prerogatives that shaped the debates for many years. This series assesses the extent to which the reforms will pave the way for a new chapter in migration and asylum policies, and the work that remains to be done in the next policy cycle.
Alberto Horst Neidhardt is a Senior Policy Analyst and Head of the European Migration and Diversity programme.
Helena Hahn joined the EPC in 2020. She is currently a Policy Analyst within the European Migration and Diversity programme.
Evangelia (Lilian) Tsourdi is tenured Associate Professor and Jean Monnet Chair in EU Migration Law and Governance at the Law Faculty of Maastricht University and the Maastricht Centre for European Law.
Read the full papers at the links below:
The new screening and border procedures: Towards a seamless migration process? by Evangelia (Lilian) Tsourdi
The Crisis and Force Majeure Regulation: Towards future-proof crisis management and responses? by Alberto-Horst Neidhardt
Responsibility sharing or shifting? Implications of the New Pact for future EU cooperation with third countries by Eleonora Milazzo and Andreina De Leo
Reinvigorating Schengen amid legal changes and secondary movements by Daniel Thym
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