The Council agrees its position on the migration pact: solidarity by cheque

On Thursday 8 June 2023 the Justice and Home Affairs Council, meeting in Luxembourg, agreed its negotiating position on two regulations proposed by the Commission in September 2020: the asylum procedure regulation and the asylum and migration management regulation. The second would replace the Dublin regulation. The Swedish Minister for Migration, Maria Malmer Stenergard, said that "no member state can deal with the challenges of migration alone" and that the agreement gives the presidency a basis to negotiate with the European Parliament[1]. The vote took most of the day. Hungary and Poland voted against. Bulgaria, Malta, Lithuania, Slovakia and the Czech Republic abstained. The Commissioner for Home Affairs, Ylva Johansson, said that "it has been a marathon"[2].

We were teenagers in 2015, when the Dublin system stopped working in practice and Member States argued over 160,000 relocations that mostly never happened. Nearly eight years later the Council has a position, and it should be read closely before it is praised.

What the Council has agreed

The asylum procedure regulation would create a mandatory border procedure. Applicants in that procedure are not authorised to enter the territory of the Member State. The procedure applies to applications made at external border crossing points, after apprehension in connection with an irregular crossing, and after disembarkation following a search and rescue operation. It is mandatory where the applicant poses a danger to national security or public order, where the applicant has misled the authorities, or where the applicant holds a nationality with a recognition rate below 20 per cent. The asylum and return border procedures together may not exceed six months. Each Member State must maintain an adequate capacity to run these procedures, and the Union-wide figure is set at 30,000 places, distributed by a formula based on irregular crossings and refusals of entry over three years[1].

The asylum and migration management regulation keeps the rule that an applicant must apply in the Member State of first entry or legal stay. The responsibility of the first-entry State lasts two years. The new element is a solidarity mechanism that the Council describes as mandatory in principle and flexible in form. Member States choose between relocation, financial contributions and other measures such as the deployment of personnel. No Member State can be obliged to relocate anyone. The minimum annual figures are 30,000 relocations and EUR 20,000 for each relocation that a Member State replaces with a financial contribution. A second-level measure, the responsibility offset, becomes mandatory if relocation pledges fall short of 60 per cent of identified needs or of the 30,000 figure[1].

The numbers should be placed against the demand. The European Union Agency for Asylum reported 966,000 asylum applications in the EU+ in 2022, a rise of more than 50 per cent on 2021 and the highest figure since 2016. Syrians, Afghans and Turks were the largest groups. The figures exclude most of the four million Ukrainians received under the Temporary Protection Directive[3]. A solidarity pool of 30,000 relocations a year is about 3 per cent of that caseload. Fewer than 160,000 people crossed the sea into the Union in 2022, and nearly 2,500 died or went missing on the way[4].

Who objects, and why

Hungary and Poland wanted the matter sent back to the heads of State or Government at their June meeting. The majority outvoted them. Viktor Orbán's spokesman, Zoltán Kovács, wrote that "this is unacceptable" and accused the other Member States of wanting to turn Hungary into a country of migrants[4]. The Council position contains no obligation to relocate, so the objection concerns the principle of paying.

The objection from the other side is more detailed. The European Council on Refugees and Exiles wrote on 9 June that the position expands the border procedure while reducing its safeguards, that more procedures will be run in detention at the external border, that there will be "almost no exemptions for vulnerable people, families or children", and that a Member State could treat pure transit as a sufficient connection to a safe third country. On solidarity, ECRE asked a question we share: "If Member States can choose, how many will choose relocation?"[5].

The European Parliament has its own answer. On 20 April 2023 the plenary confirmed its negotiating mandate on the asylum and migration management regulation by 413 votes to 142, with 20 abstentions. The Parliament's text provides for a binding solidarity mechanism for Member States under migratory pressure, including after search and rescue operations, and it adds an independent fundamental rights monitoring mechanism at the borders so that possible pushbacks are reported and investigated. The Parliament and the Council presidencies have committed to adopting the reform before the 2024 elections[6]. The joint roadmap of June 2022 set February 2024 as the date to finish negotiating all the files on the table[7]. The trilogues that begin now will decide which of the two institutions gives way.

What we would defend

We are the age group most likely to have shared a classroom with a child who arrived in 2015 or 2016, and the age group that will pay for the reception system over the next forty years. The Council position has the merit of existing. It has the defect of making relocation the one form of solidarity that every Member State can avoid.

We recommend that the Parliament hold its line on relocation as the default form of solidarity, with financial contributions as the exception, because EUR 20,000 is a price and not a share of responsibility. We recommend that the border procedure exclude families with children and unaccompanied minors by law, and that the six-month maximum be matched by a legal presumption against detention, because a procedure that denies entry for half a year is detention in all but name. We recommend that the Parliament's independent fundamental rights monitoring mechanism survive the trilogue in full and cover border surveillance, because the Council text has no equivalent and the pushback allegations of the last three years have not been answered. We recommend that the co-legislators publish, with the final text, the formula that distributes the 30,000 places of adequate capacity between Member States, because a figure without a distribution key is a promise that no frontline State can plan around.