The European Migration and Asylum Pact

The EU Migration and Asylum Pact is a timely opportunity for EU citizens and their Governments to consider the future of migration in this continent. This is much more than just considering the relatively limited numbers of asylum seekers (1 million last year) arriving in the EU compared to the total external inflows and outflows of migrants for economic, educational, family or other reasons (approximately 7 million per year).  The total population of the EU is around 450 million.

Migration is a factor in all human societies and with the advent of new means of communication and travel as well as globalised movement of capital and labour, Europe has seen a marked increase in migration both within its common external borders and across the external border.  Common rules apply in relation to movement of EU or EEA (European Economic Area) citizens.

 Now, a short digression please.  Ireland is in a unique position of sharing a land border with a non-EU member and, at the same time, what is known as a ‘Common Travel Area (CTA).  For this reason, the procedures for border checks and controls are applied somewhat differently in Ireland as it falls outside the Schengen area, thus, requiring passport checks on travellers entering the CTA of Ireland and the UK.  Talk of open borders on the perimeter of either the EU or the intersecting CTA is nonsense.  The only ‘open border’ is that between Northern Ireland and Ireland (aka the Republic of Ireland).  The security forces on both side of the Irish land border know all about the challenges of policing it over decades of ‘troubles’.  The border is, largely, a fairly lonely place marked over a length of 500 Km by streams, rivers, mountains and ditches and some secondary roads where the border runs in between potholes as well as the odd little village or farmhouse where it is hard to tell where you are.  Moreover, Northern Ireland is just not another region or country of the United Kingdom. Particular political realities condition the management of goods, services and peoples across the Irish border.  The Irish Government and large sections of opinion across the island of Ireland with the assistance of the European Union fought long hard to keep borders open between north and south (and also, let it be said, between east and west to the extent possible within various agreements and protocols during the protracted Brexit divorce proceedings and negotiations in 2016-2023).  And matters are not entirely settled, yet, on every matter of detailed implementation.

But, back to matters EU.  In this blog, I focus on one dimension of migration in the EU, viz., the movement of asylum seekers seeking international protection under the terms of the 1951 Geneva Convention.  I consider the provisions of the recently agreed Migration and Asylum Pact (MAP) and how it might be applied in Ireland.

The MAP is the result of 8 years of negotiation and discussion in Europe.  There is a clear lack of coherence across EU Member States in how external migration including, especially, asylum seeker migration is handled. Some States – notably Cyprus, Greece, Malta, and Italy are on the frontline in terms of arrivals of persons from North Africa or the Middle East while Poland, Hungary and Croatia among others are on the frontline for arrivals from the Ukraine or the middle East.  The arrival of people from Syria in 2015 was a seminal moment for Germany, Austria and Sweden as these countries welcomed large numbers.  The unrelenting pressure from inward migration of displaced persons along with rising domestic tensions in many European countries has applied additional pressure on national governments and EU bodies. Frontline States resent carrying what they regard as a disproportionate burden of asylum seekers.  Some States such as Hungary but increasingly others have done their own thing and drastically sought to reduce inward migration while the United Kingdom left the European Union for a number of reasons including a desire to ‘take back control of our borders’.  They achieved more or less the opposite at least going by the record numbers of all types of immigrants arriving there last year.

In a nutshell, the MAP has sought to bring about a uniform handling of asylum seeker migration into the EU as well as to share the financial cost of accommodating asylum seekers as they await a decision on their status.

The following are the main strands of MAP as agreed by the European Parliament in April (I am drawing on a European Commission online resource - Pact on Migration and Asylum - A common EU system to manage migration) and subsequently endorsed by the Oireachtas in Ireland in June of this year.

Pillar 1

Measures to secure external borders

More ‘robust screening’: identification, security and health checks for those entering the EU.

Expanding the Eurodac asylum and migration database to contain much more information about asylum-seekers (hereafter International Protection applicants or IP for short).

A tougher mandatory border procedure for IP applicants deemed to be ‘unlikely to need protection’ or deemed likely to ‘mislead the authorities or present a security risk’. ‘Efficient returns with reintegration support’ will apply for those failing in their application.

A Crisis Regulation providing ‘quick crisis protocols, with operational support and funding, in emergency situations’.

 Pillar 2

Fast and efficient procedures

Clearer asylum rules determining which EU country will be responsible for handling an application.

Reception Conditions: harmonised standards will apply across the EU, ‘ensuring adequate living conditions for asylum seekers, while strengthening safeguards and guarantees and improving integration processes’.

Regulation of refugee status qualifications with the aim of clarifying the rights and obligations of beneficiaries.

‘Preventing abuses’ by setting out clear obligations of cooperation for IP applicants with clear consequences for non-compliance.

 Pillar 3

Solidarity and Responsibility

A new permanent solidarity framework. EU States choose how they will participate, between relocations, financial contributions, operational support, request deductions, and 'responsibility offsets'.

Operational and financial support for Member States

Clearer rules on responsibility for asylum applications
Preventing secondary movements: Asylum seekers must apply for international protection in the EU country of first entry and remain there until the country responsible for their application is determined – a significant development on ‘Dublin III regulation’.

 Pillar 4

International partnerships

 Preventing irregular departures: Strengthened capacities of border management authorities in priority partner countries, including through reinforced cooperation with Frontex.

Fighting migrant smuggling: Dedicated and tailor-made Anti-Smuggling Operational Partnerships with partner countries and UN agencies, tackling smuggling in key locations.

Cooperation on readmission: The development of legal migration goes hand in hand with strengthened cooperation on return and readmission.

Promoting legal pathways: An EU Talent Pool establishes the first EU-wide platform to facilitate international recruitment, while Talent Partnerships allow non-EU citizens to work, study, and train in the EU.

 A full overview of the legal texts, debates and bills passed at the European Parliament in April of this year are contained here.

The debate and voting in the European Paliament on the text was broken into separate parts as follows (and the documentation adds up to over 1,300 pages – thus exceeding the length of Ulysses while the latter might arguably make for easier reading):

 Solidarity and responsibility

Addressing situations of crisis

Screening of third-country nationals at EU borders (and see also here)

Faster asylum procedures (and see here)

Eurodac regulation

Qualifications standards

Receiving asylum applicants (and see here)

Safe and legal way to Europe

.The Pact, along with its eight separate parts, was accepted by a majority of Members of the Parliament. The opposition came, generally, from the more right wing and the more left wing parliament members. Opposition or reservations about the Pact have emerged among civil society organisations, the European Trade Union Confederation (ETUC) and here in Ireland among some left members of the Oireachtas as well as human rights organisations including NASC, the Immigrant Council and the Irish Refugees Council.  At the same time, opposition to the Pact has also emerged as more right wing and nationalistic voices concerned about restrictions on national sovereignty as well as the perceived risks of taking additional refugee numbers.  Some take a pragmatic view that the Pact, while far from ideal, is the ‘only game in town’ and better than the alternative of the status quo.  Still others would have preferred to see a separate vote on each strand of the Pact when it came to a debate and vote in the Oireachtas in June.  Now that the legislation has been passed by the European Parliament and in the Oireachtas, new legislation will be required in the next Dáil to replace the International Protection Act (2015).

 Areas of specific concern to me include the following:

• The asylum procedure regulation could compel Ireland to adopt measures not compatible with human rights.  IP seekers could be deemed to be legally non-resident even though they are physically present in the jurisdiction.
• Access to legal representation could be severely impacted within a sharply reduced processing time.
• The MAP does not provide for proper conditions and safety in places where people may be detained. There is no clarity on how detention centres will be operated and how families and children will be treated among others.
• The Pact contains provisions for outsourcing border controls to third party countries (including presumably Libya which has a notorious human rights record).
• The finger-printing of children over the age of six is a concern – while it may be used to counter child trafficking it could be misused and data privacy regulation remains unclear.

Numerous non-government organisations including the European Trade Union Confederation have spoken up strongly in opposition to the Pact. For example, the much respected Médecins Sans Frontières (MSF) argue that the Pact prioritizes border security over human rights, creating policies that lead to suffering and violence at Europe’s borders. Pushbacks such as we have already seen with the Libyan coast guard and the use of third country detention centres in North Africa and Turkey (referred to as externalisation of border management) undermine human rights of asylum seekers.  The right to asylum is a principle rooted in our post-WWII  world and is now under serious threat.  Many national governments including our own are moving in the direction of punitive measures to make asylum seeking almost as miserable an experience as those from where refugees have come.  Increasingly, violence and threats of violence are becoming the norm and Ireland is no exception.

 My take on the MAP is that contains some good points but it also opens a door to human rights violations. On balance I am opposed to it given the appalling record of the European Union in relation to the treatment of refugees attempting to enter Europe across the mediterranean.  As carefully documented by the courageous and truth-seeking journalist, Sally Hayden, in My Fourth Time We Drowned, the EU and many of its Member States have been complicit in gross violations of human rights by collaborating with agents and authorities in Northern Africa to return, detain and in some cases torture vulnerable families and individuals. These are not just isolated incidents but are part of a systematic policy of looking the other way as malign agents directly financed and enabled by the EU have captured and detained intending migrants to Europe in inhumane conditions.  This is an important context for considering the MAP and the likely ways in which it will be implemented in practice across the EU when it is fully operational by  2026 or later.  All the assurances fail to convince me otherwise.  However, it is important to draw a clear line of difference between a human rights stance of opposition to that of the nationalistic and hyper nationalistic forces in Europe and here in Ireland as articulated from the opposition benches of the Dáil.  They objected because, they claimed, the MAP would undermine national sovereignty and would remove control over the numbers of IP applicants arriving in Ireland.  They argued for absolute nation state control over asylum seeker migration across the EU even though the matters is a global challenge and one that is much beyond the control or discretion of any one country.

I believe that some of the principles behind MAP are good: European solidarity, avoidance of opportunistic beggar-thy-neighbour approaches by individuals states and, also, a mechanism whereby member states can financially share the cost of integrating IP applicants.  However, all of these positive features of the MAP and against which the hyper nationalists voice opposition need to be weighed against the very convincing evidence that the current administration and political dispensation in the European Union are not to be trusted where human rights abuses are concerned.

The problem with MAP is that it reinforces a Fortress Europe approach on inward migration from the rest of the world and feeds the narrative that Europe has been or will be over-run with refugees.  In the debates around MAP and immigration more broadly there is been very little attention paid the structural causes of world migration including the part played by prosperous economies and European Member States in perpetuating global inequality.

I stand opposed to the Migration and Asylum Pact in its current  form.  However, opposition is one thing: what alternatives should be pursued at European and nation state level?  In my next blog I will look at what a compassionate and realistic policy would look like.