European Pact on Asylum and Migration : Migreurop position and legal analysis

On 23 September 2020, the European Commission proposed a "New Pact on Migration and Asylum" which was supposed to renew European migration policies. Far from representing a new deal, the orientation and the measures advocated in this Pact are in reality a continuation of the repressive and security-oriented policies implemented by European institutions and their member states since the late 1990s. More than thirty years later, the objective remains the same: to see as few exiles as possible arrive in Europe, through the intensification of border control and externalisation policies, whatever the cost in terms of rights violations.

In the wake of the "crisis of reception" of 2015, this new Pact also appears to be a tool for restoring Member States’ confidence in the EU, the aim being to reach of a common position despite their differences, on the lowest common denominator for managing the few exiles who set foot on European soil. The Pact responds primarily to the repressive and insistent demands of certain countries (such as the concept of "flexible solidarity" advocated since 2016) and does not respond to legitimate demands for greater solidarity in terms of hospitality with the Mediterranean countries of first entry. Thus, the Pact is part of a process of Europeanising the "worst", which Migreurop sets out here to make sense of.

The normalisation of rights violations at Europe’s borders

For several decades now, the EU and its Member States have been pursuing the same migration policies that are doomed to failure, advocating for the – illusory – closure of borders and the externalisation of migration management for exiles from the global South to the detriment of solidarity through hospitality, solidarity and respect for people’s rights.

Since the entry into force of the Amsterdam Treaty in 1999, the number of measures designed to repel exiles deemed "undesirable" has steadily increased. We can cite as examples the depletion of "safe and legal routes" to Europe, the militarisation of Europe’s borders with the increased role of the European agency Frontex, the trivialisation of refoulement practices with total impunity, the establishment of sorting centres at the entrance to European territory (hotspots), the widespread imprisonment of foreign nationals in the North as well as in the global South, the deterioration in the conditions of reception and integration on the European continent, the externalisation of border controls and asylum to non-EU countries (known as ’third countries’), making development aid conditional on collaboration to control migratory movements, and financing authoritarian regimes through these means, criminalisation of any form of solidarity with displaced persons..., etc. The list of the means deployed by the EU and its Member States to prevent most migrants from the global South from reaching European territory and access to their rights seems endless.

Costly, ineffective and deadly, these policies have proved to be failures from the outset. In fact, despite the scale of the resources devoted to turning Europe into a fortress, it is well known that increasing the number of obstacles to mobility only pushes migrants onto longer and more dangerous routes, because they are “illegalised”. According to "United against Refugee Deaths", European migration policies are estimated to have cost the lives of more than 48,000 people between 1993 and 2022.
Throughout the territory of EU Member States, at Europe’s borders and beyond, these policies generate massive rights violations, reinforce discrimination, racism and xenophobia, and perpetuate structural inequalities. These policies lead to a veritable "mobility apartheid" imposed by countries of the global North on citizens of the global South [1], a system that establishes a hierarchy for rights and lives on the basis of nationality, class and racial categorisation which makes the lives of migrants more precarious throughout their journey, by allowing them to be exploited on European soil.

The EU Pact on Migration and Asylum – a reiteration of harmful and ineffective measures to stem migration

The new European Pact on Migration and Asylum, which is in reality a pact against migrants, proposes to ratify various measures in continuity with an apartheid-like rationale for mobility that underlies the core of European policies:

  • The strengthening of externalisation of migration and asylum management by limiting the collaboration of EU States with Southern States to the containment of departures and the removal of persons without a right of residence. Official Development Assistance and visas will be conditioned and instrumentalized for this purpose. A new post of European Commissioner responsible for returns will be created.
  • The consolidation of the militarization of border control with, once again, an increase in the budget and role of the European border and coast guard agency Frontex. As a result, cases of refoulement and of people "left to die" at sea, in which the agency is accused of being involved [2] - and that are part of the EU’s deterrence policy - are set to continue.
  • The normalisation of the "hotspot approach". This will manifest itself in the near-systematic detention of people on the move at the borders, an expansion in the collection, filing and use of their personal data (EURODAC), sorting through new filtering procedures including a legal fiction of European extra-territoriality and, for the majority of exiles, the issuing of referral/return decisions- even before they have had a chance to set foot on European soil or apply for asylum - to third countries conveniently and often wrongly recognized as "safe". Thus, this signals the end of the right to asylum as enshrined in the Geneva Convention - all the more so since a "crisis mechanism" can also be activated to suspend the examination of applications for international protection - as well as the institutionalisation, on a European scale, of practices that currently exist on a limited or informal basis [3]. Furthermore, the first country of entry will remain the main criteria for determining the country responsible for their asylum claims, and for the activity of sorting out the few "good refugees" to be "relocated" and a majority of "bad migrants" to be sent back.
  • The implementation of a so-called "flexible" European solidarity mechanism that will enable Member States to opt for either the reception or the return of migrants. Given the failure of the 2015 [4] relocation process, it is to be expected that few states will opt for reception.

Thus the Pact, which has been described as an "avalanche of paper", and which may seem abstract insofar as it comprises several legislative proposals [that will not be voted on months, even years, by the different European institutions] in fact reflects policies and practices that for the most part already exist [5]. In fact, it is being put into practice even before the legislative tools have been finalised. This is borne out by several documents produced by the European Commission that aim to "operationalize" the Pact [6], the most recent of which concern intensifying the externalisation of asylum in response to the "influx" of Afghan exiles so feared by the EU [7].

So, there is nothing new under the European Union sun. Moreover, although the Pact aims to bring States to agree on a common framework, the internal tensions that persist between them suggest that the Pact will never be adopted in its entirety, but rather in "small packages” [8].

Migreurop’s position: For a different Pact based on solidarity, inclusiveness, a decolonial outlook and that guarantees the right to mobility for all.

Since its creation, Migreurop has relentlessly criticised European migration policies that flout rights, particularly the right to mobility. In particular, Migreurop condemns the externalisation of both migration control and asylum, the encampment and detention of migrants as a migration management tool, and the deadly consequences of Europe’s border control policies. The European Pact "against" migration and asylum merely perpetuates and intensifies this logic of sorting, confinement, exclusion and hierarchization of migrants’ rights.

Instead of a Pact that is "new" in name only, we call for a real break with the orientations of European migration policy that have dominated the political agenda over the last thirty years. We call for courage, will and imagination to ensure that a migration policy founded on the principles of inclusive democracy, equality, freedom, solidarity and justice can finally come into being [9].

While the Union’s current discriminatory migration policy aligns with the unequal relations between the EU and the Global South, this new migration policy should be a dimension of the decolonization of these relations. While EU migration policy is defined by member states against migrants, a fair and sustainable policy can only be defined with them. It must be based on the reality of migration and the lives of migrants and not just on their denial. Finally, it will provide a legal framework so that everyone can exercise their right to freedom of movement and settlement without risking their lives.

© Sabine Lösing