PENS POISED
THE NEW EU PACT ON MIGRATION AND ASYLUM
Pens Poised
The New EU Pact on Migration and Asylum
Joyce De Coninck 1
Pens poised we sit ready: ready to analyse, critique, predict and categorise. Early career scholars dipping their toes into the scholarly debates and interventions for the first time, and more senior scholars who have sat through almost-endless iterations of new pacts and developments in the realm of borders, asylum and migration. Time and time again, the proposals on the table are codified and advertised as a novelty, hailing their ingenuity and proclaiming to be the way out of the circular impasse of political leveraging of migration discourse, human rights atrocities at the EU’s external border, and the security-externalisation nexus. Scholars hover over the new legislative developments, the transitions from directives to regulations, agonising over minute details in recitals and operative provisions, and pondering the intent and rationale behind these changes. Like Agatha Christie’s detectives, we embark on a search for signs of legislative inconsistency and incoherence both within individual legal texts, as well as across the different legal texts that comprise these pacts. We conjecture about the conformity of these legislative developments with the EU’s Charter of Fundamental Rights and its compliance with different domestic and international legal regimes. We ponder how these European developments will impact how the law on borders, asylum and migration (‘BAM’) develops elsewhere. The EU’s New Pact on Migration and Asylum which was adopted by the European Parliament on April 10th 2024, kept true to this tendency and inspired a new set of interventions detailing how and why the new legislative packages do or do not conform with international (human rights) law, how these developments may contribute to fissures between the Court of Justice of the European Union (‘CJEU’) and the European Court of Human Rights (‘ECtHR’), and how these legislative developments will continue to entrench lawless zones in which third country nationals will be reduced to data points and barred from accessing any meaningful human rights protections.2
Having worked in this space for some time, it is not just the perceived erosion of rights that is alarming or disappointing,3 nor is it the almost predictable incoherence that arises from big legislative projects that implicate a plethora of actors and legal instruments within the field of borders, asylum and migration. Rather, it is the apparent
1. Max Weber Fellow, European University Institute.
2. Steve Peers, ‘The New EU Asylum Laws: Taking Rights Half-Seriously’ (2024) Yearbook of European Law; See for a schematic overview of the broad and stricter conceptualization of the Pact: Philippe De Bruycker, ‘Genealogy of and Futurology on the Pact on Migration and Asylum’ (EU Migration Law Blog, 6 May 2024); Lilian Tsourdi, Daniel Thym, Iris Goldner Lang and Catherine Warin (eds.), Special Collection on the EU Asylum and Migration Legislation after the Pact, (EU Immigration and Asylum Law and Policy), EU Migration Law Blog; Jouni Häkli, Gintare Kudžmaitė, Kirsi Pauliina Kallio, ‘Devaluing personhood: The framing of migrants in the EU’s new pact on migration and asylum’ (2024) Transactions of the Institute of British Geographers, 1–15; Sarah Wolff, ‘ The New Pact on Migration: Embedded Illiberalism?’ (2024) JCMS: Journal of Common Market Studies; PICUM, ‘More than 160 Civil Society Organisations call on MEPs to vote down harmful EU Migration Pact’ (February 2024) PICUM
3. PICUM, ‘More than 160 Civil Society Organisations call on MEPs to vote down harmful EU Migration Pact’ (February 2024) PICUM
It is the apparent lack of deeper engagement with the underlying sources of contestation and questions of (in-)justice in the realm of borders, asylum and migration that is particularly troubling
lack of deeper engagement with the underlying sources of contestation and questions of (in-)justice in the realm of borders, asylum and migration that is particularly troubling. We – scholars, practitioners and stakeholders alike – work within the EU’s acquis on borders, asylum and migration, endlessly dissecting its idiosyncrasies, without taking an urgent and much needed step backwards to allow for a more reflective perspective.4 Legal scholars in particular, are presented new draft legislation, legislative instruments, and judgements on these topics and almost instantaneously produce scholarly critiques. But stepping out of this scholarly hamster wheel ever so briefly, may very well generate some fresh and possibly even novel insights on what EU BAM governance could and perhaps, should look like. Without any claim to comprehensiveness, three sequential fallacies surface when surveying the anticipated changes brought about by the New Pact on Asylum and Migration, which are dealt with in what follows.
1. The Sanitised Singularity of Border Management
The New Pact finds its origins in the 2015-2016 migratory surge to the European Union. In direct response to this crisis, and notwithstanding the reform of the Common European Asylum System (‘CEAS’) that had just taken place,5 there arose renewed interest in reforming the system altogether. The rationale undergirding the entirety of the New Pact appears to be that if we can just get border management right, and fine-tune it in such a way that it addresses all the intangible factors it needs to—ranging from instrumentalisation to force majeure, to renewed approaches to ‘screening’—then migratory flows will stabilise and decrease. The underlying assumption appears to be – that is to say: how it is explained to the public – that the driving, if not determinative factor for mobility towards the European Union is the manner in which EU border management is conducted. And while terminologically, the New Pact is about asylum and migration, in practice, many of its legislative developments are by and large geared towards increasing the effectiveness of border management (e.g., enhanced rules on screening; rules on crisis and force majeure in relation to border management; the impact of instrumentalisation on border management).
4. For deeper engagement with these questions, see: E. Tendayi Achiume, ‘Migration as Decolonization’ (June 2019) Stanford Law Review 71, 1509.
5. Peers n 2.
While terminologically, the New Pact is about asylum and migration, in practice, many of its legislative developments are by and large geared towards increasing the effectiveness of border management
Naturally, a critical reader will point out that a relevant tool in the toolbox of migration management, is border management and that the legal bases upon which these border management specifically and migration management policies generally are based (Article 77, 78 and 79 TFEU) are inevitably interconnected and can never be fully severed. Furthermore, that same reader will note that the new Pact (if construed broadly)6 has equally given rise to a revised Blue Card Directive and Single Permit Directive. The point here is not to discount the work of so many unnamed individuals working tirelessly within the EU institutions towards a more balanced set of BAM policies,7 but rather to point out the continued dominance of border management in a debate on migration management.
It seems almost farcical to imagine that if all the right border management measures are in place, somehow that would bring a halt to (irregular) migratory flows to the EU. If the objective –as historically developed– is truly to construct an Area of Freedom, Security, and Justice, in which open borders prevail between Member States, surely this cannot be achieved by developing and predominantly pursuing a border management policy that ossifies trends of externalisation, militarisation, informalisation, digitalisation and datafication.8 These approaches have clearly failed to deliver on populist promises of bringing a halt to migration, and equally so on promises of safer and more human rights-centric access to international protection.9 Yet, the New Pact appears to overwhelmingly bring more of the same: border management measures that consolidate ongoing and largely unsuccessful approaches, with the question of borders largely being conflated with the question of migration management. In so doing, there is no real deep or critical engagement with the underlying assumptions and foundations upon which the New Pact, and the EU’s BAM policy generally, is based.
6. See for a schematic overview of the broad and stricter conceptualization of the Pact: Philippe De Bruycker, ‘Genealogy of and Futurology on the Pact on Migration and Asylum’ (EU Migration Law Blog, 6 May 2024).
7. See (i.a.) for work on the ‘invisible’ infrastructure behind the EU’s institutions: Päivi Leino-Sandberg, The Politics of Legal Expertise in EU Policy-Making, (2021 Cambridge University Press).
8. Giulia Raimondo, The European Integrated Border Management (Hart Publishing, 2024); Joyce De Coninck and Giulia Raimondo, ‘Understanding European Border Management: A Tale of Transformation and Orchestrated Impunity’ (VerfBlog, 27 February 2024).
9. International Organization for Migration, Europe Arrivals - Displacement Tracking Matrix (IOM, 2024).
2. Law on the Books and Law in Practice
Building on this previous point, a second fallacy surfaces. The New Pact suggests through its adoption of new legislative measures (e.g., the Screening Regulation,10 the Force Majeure and Instrumentalization Regulation,11 Asylum Procedures Regulation)12 that border management strictly and migration management more broadly, will be improved. Yet even where such legislative novelties provide for new collaboration, improved procedures, funding mechanisms to facilitate these changes and even legal obligations to prompt implementation (e.g., recital 11 Asylum Procedures Regulation; Common Implementation Plan for the Pact on Migration and Asylum13) the question of capacity for implementation remains largely unaddressed. Capacity here does not relate to the financial means to set in place the mechanisms required under EU law. Instead it relates to the more granular questions of who will be charged with the task of correctly applying and implementing new legislation, (willingness of) training of public officials and border authorities charged with implementing relevant legislation, and the setting in place of the necessary infrastructure to conduct border procedures. The European Commission’s Common Implementation Plan makes strides in drawing out a detailed plan to guide and support implementation of the New Pact, but crucially misses that further harmonisation does not necessarily resolve the fragmented and existing implementation issues that pre-date the New Pact. Instead, the Common Implementation Plan stipulates that Member States ‘should’, are ‘invited to’, ‘will have to’ and are ‘encouraged’ to adopt measures for the purpose of implementation – none of which point to clearly defined actionable commitments. Additionally, at different junctures the Common Implementation Plan requires Member States to ‘review administrative processes, workflows and standard operating procedures’, and to adhere to reporting obligations – both of which place significant emphasis on complying with procedures rather than considering how to enhance substantive legal compliance.
Vedsted-Hansen notes that in prior negotiations of the Asylum Procedures Regulation, the question of capacity to implement, as well as lacking infrastructure were in fact been raised.14 The question of capacity (or the lack thereof) here is intertwined with a crucial distinction in the Asylum Procedures Regulation between mandatory and optional border procedures, the application of which necessarily brings about case load variations across Member States. In other words, the Asylum Procedures Regulation brings about new dynamic complexities which necessarily complicate the application of the law on the books in practice. Similarly, the Screening
10. Regulation (EU) 2024/1356 of the European Parliament and of the Council of 14 May 2024 introducing the screening of third-country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 (OJ L, 2024/1356, 22.5.2024).
11. Regulation (EU) 2024/1359 of the European Parliament and of the Council of 14 May 2024 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147 (OJ L, 2024/1359, 22.5.2024).
12. Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (OJ L, 2024/1348, 22.5.2024).
13. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Common Implementation Plan for the Pact on Migration and Asylum, COM (2024) 251 Final, https://eur-lex. europa.eu/legal-content/EN/TXT/?uri=COM%3A2024%3A251%3AFIN
14. Jens Vedsted-Hansen, ‘Harmonisation of types of asylum procedures: new Regulation, old dilemmas’ (EU Migration Law Blog, 17 May 2024).
Regulation which is intended to expedite the directing of individuals into either an asylum or return procedure at the border, negates the fact that law on the books is frequently and simply not applied in practice. Lyra Jakuleviciene rightfully notes that even where asylum protections had previously been in place at the EU’s external border, Lithuania and Poland have been repeatedly condemned by the ECtHR for simply not applying these asylum safeguards.15 Similarly, what was at stake in the case of MH v Croatia before the ECtHR, was essentially the nonapplication of the Dublin Regulation, resulting in the preventable death of 6-year-old Madiny Hussiny.16
The point that is made here is not that implementation is not being considered within negotiations of the New Pact – indeed the feasibility of and requirements for implementation are being considered for its new instruments and complemented with anticipated EU-support. Yet, the New Pact seems to overlook the critical issue of the widespread failure to enforce existing legislative measures in a meaningful and substantive way. Adding more elements to border procedures (and assessing the requirements for this implementation) may result in harmonisation on a legislative and procedural level, but this does not tackle the non-implementation of (pre-existing) asylum safeguards. To the contrary: it makes it more difficult.
Arguably what is at stake is thus not the need for more or innovative legislation, but instead, improved application of existing laws – including a multidisciplinary approach to applying these laws, mindful of the vulnerabilities of often already traumatised third country nationals. The requirements under the Screening Regulation for example (to expeditiously direct individuals towards asylum procedures where appropriate), were already inherent to the right to apply for asylum under international (human rights) law and EU secondary legislation. And while the codification of these screening requirements is commendable and undoubtedly necessary, it obscures the larger looming implementation gap evinced by continuous pushbacks at the EU’s external borders that remains largely unaddressed. In short, the law on the books does not mean that the law is applied in practice. The Pact does not meaningfully address this problem.
The Asylum Procedures Regulation brings about new dynamic complexities which necessarily complicate the application of the law on the books in practice
15. Lyra Jakuleviciene, ‘EU Screen Regulation: closing gaps in border control while opening new protection challenges?’ (EU Migration Law Blog, 17 May 2024).
16. MH and others v Croatia, App nos. 15670/18 and 43115/18) (ECtHR, 18 November 2021).
3. The Legality of EU Secondary Law
A third fallacy relates to the roles of the EU legislator on the one hand, and that of the Court of Justice of the EU (the ‘Court of Justice’ or ‘the Court’) on the other hand. Sandra Fredman has explored the different balancing exercises fulfilled by political and legislative decision-making on the one hand, and adjudication on the other hand.17 Inspired by Habermas, she posits that the former is engaged predominantly in interest-based and stakeholder coordination, whereas the latter is concerned more with reconciliation of (competing) values and the persuasiveness of argument rather than power dynamics (at least in theory).18 Applying this to the Pact, and the controversies that have already been raised,19 it is not unlikely that certain elements of the Pact will be challenged before the Court of Justice at some point. In other words, the veil of legality through formal legalisation of the Pact, does not mean that these acts will be ipso facto considered legal. Two noteworthy cases spring to mind. Firstly, in FMS the Court of Justice found that transit measures imposed by Hungary constituted detention, contrary to findings by the ECtHR for analogous facts in Ilias and Ahmed, as well as RR and others 20 Jakuleviciene rightly points out that the Pact and the Screening Regulation in particular, somewhat counterintuitively and using different terminology, appear to adopt a similar approach to what prompted the FMS case by the Hungarian authorities.21 The second case that springs to mind is the Court of Justice recent X v Staatssecretaris van Justitie en Veiligheid, where it was held by the Court that pushbacks from EU territory are not in compliance with EU law.22 While Peers notes that the Screening Regulation essentially concerns a filtering function, and does not necessarily involve a final decision on whether an individual meets the criteria to obtain access to international protection, there is a legitimate concern that the Screening Regulation may just be a gateway to further (semi-automated) refusal of entry,23 particularly when its application coalesces with the application of the Asylum Procedures Regulation (see above).
17. Sandra Fredman, Comparative Human Rights Law, (OUP 2018) 459-460.
18. Ibid.
The law on the books does not mean that the law is applied in practice. The Pact does not meaningfully address this problem
19. See among others: Lilian Tsourdi, ‘The EU’s New Pact on Migration and Asylum: three key arguments’ (EU Law Analysis, 14 September 2023); Anja Bossow, ‘Europe’s Faustian Bargain’ (VerfBlog, 1 October 2023); Tsourdi, Thym, Goldner Lang and Warin n 2.
20. [Grand Chamber] Judgment of the Court of Justice 14 May 2020, FMS and Others v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság, Joined Cases C-924/19 PPU and C-925/19 PPU, ECLI:EU:C:2020:367. See also on the Hungarian Röske Transit Center: Ilias and Ahmed v Hungary, App no. 47287/15 (ECtHR, 21 November 2019) and RR and others v Hungary, App no. 36037/17 (ECtHR, 2 March 2021).
21. Jakuleviciene, n 15.
22. Case C-392/22, X v Staatssecretaris [2024] ECLI:EU:C:2024:195, 50-51.
23. Steve Peers, ‘The New Screening Regulation – Part 5 of the analysis of new EU asylum laws’ (EU Law Analysis, 26 April 2024)
The foregoing suggest that the Pact places a strong emphasis on border management by presenting border control as a decisive factor for regulating mobility to the European Union, while seemingly downplaying the significance of a comprehensive migration strategy that extends beyond border control.24 Furthermore, the Pact’s emphasis on adjusting border management implies that an increase in legal provisions would inherently enhance the application of existing law, rather than focusing on improving the implementation of current instruments. Finally, the semblance of legality conferred by the EU’s legislative process does not guarantee that the Court of Justice will endorse the solutions proposed by the EU’s legislator. These findings are not particularly novel, astute or pathbreaking. Yet, such fallacies do prevent a deeper inquiry into the underlying and unaddressed issues in the Pact.
4. Deepening the Discourse
The foregoing suggests that a deeper inquiry is not only necessary but urgent if the objective is to truly develop an Area of Freedom, Security and Justice that is no longer a flanking measure to internal freedoms and instead offers a border, asylum and migration policy that is respectful of the values reflected in Article 2 TEU.
Without claiming to be exhaustive, two points are worth raising in this respect.
First, we seem to have flattened and oversimplified the existence and lived experiences of third-country nationals. The Asylum Procedures Regulation, along with the Screening Regulation, reduces the complex issues of mobility and migration to a binary question resulting in the classification of individuals as either worthy or unworthy of protection. However, this approach flattens an individual’s existence into a simplistic, binary determination, with significant consequences for their living conditions, employment opportunities, and overall well-being including the potential risk of retraumatisation, all of which are intrinsically tied to this categorisation. Such an approach precludes the consideration of alternative mobility schemes that may be more suitable and could potentially improve the lived experiences of those affected, including regulating return once conditions in the country of origin have stabilised.
This brings me to a broader, and arguably more controversial, question—one that, despite its contentious nature, is worth exploring. Much of the Pact is anchored in the framework of international protection or refugee status. Alternative forms of migration are typically marginalised or entirely absent from discussions on EU border, asylum, and migration policy. Yet, the very concept of refugee status, which emerged as a direct response to the atrocities of World War II, was initially intended as a temporary measure which grew out of a very specific context. With this in mind, refugee status may no longer serve as the most appropriate (legal) basis upon which to anchor and structure the EU’s migration and border policies, if the EU’s objective is truly to develop a well-functioning migration system that reflects the AFSJ as not just a flanking measure for internal freedoms. The current framework places the burden on third-country nationals to prove their dependency and vulnerability, while positioning the EU Member States as benefactors, selectively dispensing protection, rather than recognising the mutual benefits of mobility schemes and its own role in facilitating mobility and migratory flows.
24. See the Common Implementation Plan, where ‘legal pathways’ for migration are focused on in an ancillary manner and solely in relation to ‘labour migration’.
Much of the Pact is anchored in the framework of international protection or refugee status. Alternative forms of migration are typically marginalised or entirely absent from discussions on EU border, asylum, and migration policy
This observation ties into the work of E. Tendayi Achiume, who argues that despite the formal end of colonialism, de facto colonial structures and power-balances persist that may very well be contributing factors towards migratory flows to the European Union.25 Achiume’s rethinking of sovereignty and mobility, challenges the EU’s traditional approaches to border management, asylum, and migration, by significantly opening and deepening the debate on the role of border control within migration management. It prompts further inquiry into the historical and contemporary causal relationship between EU actions—beyond mere border management—and the migratory movements towards its borders. Some may dismiss scholarship and inquiries that push the question of the EU’s BAM policies in this direction. But exploring the extent to which EU and Member State policies contribute to third country national migration could lead to an entirely new way of theorising how borders, asylum, and migration should be governed. And is this not the role of (at least) the scholar? To bridge the divide between the interestbalancing of the legislator and the value-balancing of the judges and to continue to push new lines of inquiry, by unveiling new and alternative paths of research that push us beyond the maelstrom of revised legislation that largely reenacts what was already there?
25. Achiume, n 4.
In various domains of the EU’s AFSJ, there is a clear need for a theory and practice of shared responsibility, which adequately accommodates the power dynamics at play
This leads to a final point that appears to be overlooked in the Pact. Without delving into detailed critiques of potential EU human rights responsibilities arising from non-compliance with human rights standards during the adoption and implementation of the Pact, it is important to note that one of its primary developments is the move towards harmonisation. As Peers observes, this harmonisation assigns a greater role to EU entities in implementing the Pact26, which inevitably raises longstanding concerns among scholars, activists, litigators, and stakeholders in this field regarding shared responsibility.27 In an earlier piece, Sarmiento discussed the complexities of integrated decision-making within the EU and judicial review.28 The questions asked in his contribution are precisely the types of questions that triggered the SHARED project and the development of the SHARED Guidelines on Shared Responsibility for European Integrated Border Management. These questions are also precisely the questions that lay at the basis of the Marián Kočner ruling29 before the Court of Justice, and have been the subject of action for damages before the CJEU against Frontex.30 In other words, in various domains of the EU’s AFSJ, there is a clear need for a theory and practice of shared responsibility, which adequately accommodates the power dynamics at play. Perhaps relational human rights responsibility can capture such dynamics?31
26. Peers, n 23.
27. Between Spring 2023 and September 2023, a series of conferences and workshops were organized under the overarching theme of ‘Shared Responsibility at the EU’s External Borders.’ These events facilitated in-depth discussions with officials from both the European Parliament and the European Commission, while also bringing together a diverse array of scholars, policymakers, and experts specializing in EU border management and the concept of shared responsibility. This same set of events, gave rise to the ‘Joint Guidelines on Shared Responsibility for European Integrated Border Management’ and has given rise to a forthcoming special issue: Violeta Moreno-Lax (ed), Special Issue on Conceptualising ‘Shared Responsibility’ in EU Law: Insights from the Schengen External Border, ( forthcoming) European Law Open.
28. Daniel Sarmiento, ‘Integrated Decision-Making in the EU and Judicial Review: Can the Puzzle be Fixed?’ (EU Law Live Weekend Edition, 24 May 2024).
29. Judgement of the Court of Justice (Grand Chamber) of 5 March 2024, Marián Kočner, C-755/21 P, EU:C:2024:202.
30. Judgement of the General Court of 6 September 2023, WS and others v Frontex, T-600/21, EU:T:2023:492; Order of the General Court of 13 December 2023, Alaa Hamoudi v Frontex, T-136/22, EU:T:2023:821.
31. Joyce De Coninck, The EU’s Human Rights Responsibility Gap (Hart, 2024).