"Today is truly a historic day", exclaimed the President of the European Parliament, Roberta Metsola, at the opening of the press conference following the conclusion of the trilogue negotiations on the morning of December 20, 2023. Standing next to her were the three Parliament rapporteurs for the three central regulations of the New Pact on Migration and Asylum. In the days and nights before, a compromise line for these legislative acts was negotiated between the Commission, Parliament and the Council as representatives of the Member States – thus sealing the reform of the Common European Asylum System (CEAS) as a whole.
The rapporteurs were visibly marked by the marathon negotiations and repeatedly emphasised that the agreement was a major political success. But even as they were speaking, the first contents and analyses of the compromise were published. It quickly became clear that the Council had prevailed on almost all issues, while the Parliament – despite the length of the negotiations – was only able to push through minimal improvements.
The hope expressed by many in the summer of 2023, even including parts of the German government coalition, that the European Parliament would be able to mitigate the worst hardships of the Council's position turned out to be a fallacy. This could have been foreseen beforehand: The Spanish Council Presidency's status report at the beginning of December already stated, somewhat triumphantly in tone, that the Council's position would prevail. However, it is only now becoming clear just how far the Council has actually managed to back Parliament into a corner.
At this point, it is not possible to go into the intricacies of the compromise in too much detail. On the one hand, this discussion quickly becomes highly technical. Secondly, it must be emphasised that once again – as was the case with the Council's compromise in June – only a political agreement has been reached. The actual wording of the laws, as they are now to be adopted and which will be decisive for their actual implementation, will only be finalised in the coming weeks. This leaves room for further aggravation and at the same time undermines the democratic process.
Border procedures with logic errors
As has been discussed for a long time, the introduction of border procedures will be a key aspect of the CEAS reform. These will be mandatory for the member states. To this end, facilities close to the border are to be set up in which up to 30,000 people can be detained at any time. Over the next few years, their capacity is to increase to 120,000 places. The border procedures will primarily affect people whose nationality has an overall recognition rate of less than 20 per cent in the EU.
This is a revealing logical error. If 'only' a tenth of the population in a country is persecuted, an effective asylum system that is designed to protect the individual should examine the individual case all the more closely. Instead, the statistical fiction is used that a low recognition rate is synonymous with a low probability of recognition in individual cases. This is already mathematically incorrect.[1] Above all, however, it shows how far the logic of the CEAS has moved away from that of the Geneva Refugee Convention. It is no longer about protecting the individual from persecution, but about the mere administration of forced mass migration, in which the person is merely a statistical element of an undesirable population.
The border procedure will also be mandatory for people who have travelled through a so-called safe third country. It seems undisputed that the border procedures will take place under conditions of detention and reduced legal protection. Parliament was only able to ensure that free legal advice (not legal assistance) will be provided. However, there will be no exceptions for the detention of children; only unaccompanied minor refugees are to be exempted.
No end to the pushbacks
Parliament was also unable to assert itself on a second important point. It had called for a robust monitoring mechanism for the Screening Regulation. This regulation governs the initial contact between the person seeking protection and the EU member state, for example if a person is apprehended after crossing the border without authorisation. In future, a decision will be made within seven days as to whether the person will be returned directly, transferred to the border procedure or transferred to the regular asylum procedure. The screening takes place under the fiction of non-entry. Despite de facto presence on the territory, it is assumed de jure that entry has not yet taken place. Persons undergoing screening can therefore rely on even fewer procedural safeguards.
It has been proven that the first contact between border guards and refugees often results in pushbacks, i.e. illegal and violent returns across the border. The slimmed-down monitoring mechanism is not intended to be installed at the border, but only in the screening centres. It will therefore not be able to effectively prevent pushbacks in the EU.
The only positive aspect to be noted is that the so-called connection link for deportations to third countries has been strengthened. Under the new rules, it will be possible to deport asylum seekers to a safe third country after a rejection in the border procedure. However, there must now be a strong connection link between the person and this third country; mere transit is no longer sufficient and 'voluntary' consent can no longer be a basis. This means that the so-called Rwanda model, which has already been categorised as unlawful in the UK, will also be incompatible with EU law in the future. It is to be hoped that this will quickly put an end to the debate in Germany.
Crisis, force majeure, instrumentalisation
These three aspects relate to the normal case of the CEAS. However, the reform also includes a crisis regulation that allows a further lowering of standards in cases of "crisis" (mass arrival), "force majeure" and "instrumentalisation" (support for forced migration by states or "hostile non-state actors" based on a political calculus). This opens the door to undermining the already low procedural safeguards for those seeking protection. Such a case must be decided by the Council (the Parliament is not involved here). However, given the political mood in the Council, it must be assumed that such decisions will be taken regularly as soon as Member States request them.
The reform must be recognised as having buried the original vision of the CEAS to establish a common and homogeneous "area of protection". Despite the fact that this is European legislation and that European institutions will have a stronger role: The spirit of the new regulations is no longer to guide state action in terms of an effective system of refugee protection and to limit it in cases of conflict with other state interests. Instead, member states are regularly free to take stricter measures – for example, extending border procedures to all those seeking protection.
No European solidarity
This leads to the last point. Even if the opposite is repeatedly claimed: The unequal distribution of responsibility for the processing of asylum applications, established by the Dublin system and which is the reason for its failure, is not being reformed. At the same time, no effective solidarity mechanism has been created. The return of the controversial concept of "flexible solidarity" means that member states are now free to decide how they assume responsibility in the CEAS. There is no longer an obligation to accept recognised asylum seekers; instead, they may also pay into a fund for border security measures. This also thwarts the idea of a common European system.
It is therefore more than questionable whether there are any fundamental incentives for the EU member states close to the border to participate in the new system. After all, they are now being asked to set up and operate massive detention centres close to the border. In return, however, they can hardly hope for support beyond financial assistance. One possible scenario would therefore be that their policy of waving people through to the north (which triggered the CEAS crisis) will continue. Another possible scenario is that a Member State would fundamentally favour border procedures and the detention of all those seeking protection. A third possibility would be for a Member State close to the border to repeatedly declare a crisis in order to override the rules of the CEAS. A similar dynamic has been observed for many years in the Schengen system, in which states have long turned the exception – temporary internal border controls – into the permanent rule.
Democracy and the rule of law in Europe are at stake
With the agreement on the reform of the CEAS, which was reached under great pressure, the EU, its member states and the parties represented in Parliament have placed an extremely dangerous bet on the future. They hope that the sheer force of the border will prevent people seeking protection from arriving in Europe. They are prepared to pay a horrendous human price for this, or more precisely: to make those seeking protection pay this horrendous price.
But what happens if the measures prove to be ineffective or their consequences – the multiplication of suffering at the external borders – demonstrate the extent to which the EU is prepared to betray its own values? Then the hour of authoritarianism, racism and fascism in the guise of the new right-wing movements in Europe will strike. Then democracy and the rule of law in Europe will be at stake even more. We can already see the beginnings of this today: The Sunak government in the UK and the Macron government in France might fall because they are no longer able to reconcile migration policy, fundamental and human rights and democracy under pressure from the right. This highlights that the dispute over migration is actually a battle for the future of democracy.
[1] With a repeated roll of the dice, the statistical probability of rolling a one is also less than 20 per cent (16.67 per cent). It is therefore contrary to experience to assume that future dice rolls will generally not result in a one.