Dr. Janine Silga (Dublin City University)

The political agreement between the European Parliament and the Council reached in December last year on five major instruments of the Pact on Migration and Asylum has been described as ‘historic’. Considering the protracted negotiations of the reform to the Common European Asylum System and especially the so-called ‘Dublin system’, the achievement of this far-reaching agreement was likely to trigger a sense of (political) triumph. 

However, after the initial exaltation, a closer look at the measures concerned should quickly give rise to perplexity, if not concern. This is true not least because of the ever-clearer alignment of the asylum regime with migration management objectives, which further waters down the rights of asylum-seekers. This is also true when looking at the rather discreet mentions of cooperation with third countries in the centrepiece of the Pact, the future Asylum and Migration Management Regulation (AMMR). 

The external dimension of migration has been a permanent feature of the EU migration policy since the 1990s. It is therefore not surprising that the association of Third Countries to the realisation of this policy through the establishment of ‘mutually beneficial partnerships’ was identified as one of the central elements of the Pact. What is more surprising, however, is the little space dedicated to these ‘mutually beneficial partnerships’ in the AMMR. 

The much-celebrated political agreement on this text, followed by its recent adoption by the European Parliament, could have led one to hope that the presence of mutually beneficial partnerships would feature more prominently in this text. However, the outcome remains disappointing in this respect, despite the visible effort of the European Parliament to improve the ‘mutually beneficial’ aspect of these partnerships beyond their control-oriented nature. This may explain the disappearance of initially proposed Article 7 on ‘Cooperation with Third Countries to Facilitate Return and Readmission’ and with it, its very explicit conditionality. 

But do these formal amendments herald a change in the ever more worrying direction taken by the EU asylum policy in the aftermath of the so-called 2015/2016 ‘crisis’? Nothing is less certain. The reason being that the external dimension of the EU asylum policy or rather its ‘externalisation’ has deeper roots than the AMMR, with wider ramifications for the whole field of migration. 

Although it is no longer an EU Member State, the most topical example of this move towards heightened externalisation is the much-decried 2022 UK-Rwanda Memorandum of Understanding. This case is not unique, however, as we can also mention an earlier initiative of Denmark in 2021 to externalise the processing of asylum claims outside its territory. More recently, Italy and Albania have signed a Memorandum of Understanding, which should allow for some migrants who have been rescued at sea on their way to Italy to be transferred directly to Albania for their detention – and potentially for their asylum claims to be processed there. At the EU level, taking inspiration from the EU-Turkey Statement and the reshuffled ‘Comprehensive Approach’, the EU has struck similar ‘deals’ with Tunisia and Egypt, respectively in July 2023 and March 2024.

For experts in the field, the existence of an external dimension to asylum or the pairing of asylum with either cooperation with third countries on readmission and/or the ‘bargaining’ of asylum seekers in exchange for funding and other advantages constitutes a paradox. The question is, how has this rather odd feature of EU asylum policy come into existence? 

The 2015/2016 ‘crisis’ is commonly regarded as the turning point leading to a dramatic shift in thinking about an external dimension to asylum but one can safely hypothesise that the externalisation of asylum – and especially the rise of the extraterritorial processing of asylum claims – has been long in the making. In this sense, the decoupling between access to the territory and ensuring protection has been at the origin of some initiatives, such as Regional Protection Programmes or the exploration of processing asylum claims outside the EU territory, already in the early 2000s. Moreover, the concern over ‘mixed flows’ of migrants – that would include ‘genuine refugees’ and ‘economic migrants’ – has directly influenced this development through the emergence of the safe country concept. 

More deeply, the roots of this current movement towards the externalisation of asylum can be explained by three factors, which constitute the ‘dark triad’ of the EU migration policy. The first consists in placing readmission and return at the heart of the EU migration policy. The second relates to the increasing informalization of the cooperation with third countries in the field of migration. The final element consists in the subjection of external funding to fulfil migration management objectives, which has led to its conditional attribution upon the willingness of Third Countries to support EU migration management, and especially readmission. 

While this ‘dark triad’ is not clearly visible in the AMMR and even less in the other recently agreed instruments of the Pact, it permeates the whole migration policy with its even more regrettable impact on asylum. From this perspective, there is not much to celebrate.

Janine Silga is an Assistant Professor in European Union Law at the School of Law and Government at Dublin City University.  Her research focuses on EU migration law and policy, and on the EU development policy with substantial research on human rights in connection to both migration and asylum.

The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.