Janine Silga (Dublin City University)
At its meeting on 8-9 June 2023, the Justice and Home Affairs Council defined its ‘general approach’ on two future key instruments of the Common European Asylum System (CEAS): The Proposal for a Regulation on asylum and migration management (‘Asylum and Migration Management Regulation’ – AMMR – proposal) and the Amended proposal for a Regulation establishing a common procedure for international protection in the Union (‘Amended Asylum Procedure Regulation’ – AAPR – proposal). The agreement reached by the Council on these two proposals intervenes ahead of the first reading of the European Parliament.
These two proposals originate in the New Pact on Migration and Asylum launched by the Commission in September 2020. However, they are to be understood in relation to previous policy developments that took place following the so-called ‘refugee crisis’ in 2015-2016. Following the ‘crisis’, the focus has been on the better management of ‘mixed’ flows of both refugees and other migrants and on increasing solidarity between the Member States.
In light of a – thus far – unprecedented number of third-country nationals reaching the European Union (EU) – many of whom were seeking asylum – the EU institutions initiated a deep reform of the CEAS which was deemed to be unfit for addressing such extensive challenges. This general shift was at the heart of the 2015 European Agenda on Migration, which led to a bundle of proposals in 2016 with a view to substantially reform the CEAS, as explained by the Commission. In spite of protracted negotiations, none of these proposals were adopted, except for the Regulation on the European Union Agency for Asylum replacing the former European Asylum Support Office.
This did not mean that a deep reform was no longer needed as the Commission highlighted in 2020 in its communication on a New Pact on Migration and Asylum. The AMMR proposal lies at the heart of the New Pact for two main reasons. First, it best reflects its objective to adopt an integrated – or ‘comprehensive’ – approach to asylum and migration. Second, this proposal introduces an ambitious and profound reform of the so-called ‘Dublin system’, which has long been considered the ‘Achilles heel’ of the CEAS. This system establishes the criteria and mechanisms for determining which Member State is in charge of examining an application for international protection within the EU. While the AMMR proposal does not depart in a major way from the current system when it comes to the rules for determining responsibility between the Member States, it notably includes a whole new Part IV on Solidarity as a concrete expression of the same principle enshrined in article 80 TFEU.
Solidarity towards Member States that are under or at risk of migratory pressure is to be expressed through a range of different measures that form a ‘Solidarity Pool’ as clarified by the Council in its general approach. These measures may consist in: the relocation of both applicants for and beneficiaries of international protection and of third-country nationals staying irregularly in the EU for the purpose of their return; direct financial contributions; or alternative solidarity measures focusing among other things on capacity building and technical support.
While all the Member States are expected to contribute, the Council is in favour of giving them ‘full discretion’ when choosing which way to express their solidarity. The Council also mentions the possibility that Member States could resort to ‘responsibility offsets’ instead of relocation and examine asylum applications for which they would not be responsible according to the ‘Dublin’ criteria. Compared to the Commission’s proposal, the Council appears to put more emphasis on clearly delineating the respective roles of the Member States and the Commission. The suggested creation of a High-Level EU Migration Forum of the Member States convened by the Council on an annual basis to ensure the effective implementation of Part IV of the proposal is especially worth mentioning. Alongside the High-Level Forum, a Technical-Level EU Migration Forum – convened and chaired by the Commission – should ensure that solidarity measures are operational. The specific content of the Solidarity Pool is to be determined annually on the basis of both the needs of Member States facing migratory pressure and the contributions pledged by the Member States. As a complement to the Solidarity Pool to be updated each year, the Council suggests the creation of a Permanent EU Migration Support Toolbox that would include cooperation with third countries to facilitate return and readmission.
While the European Parliament has not yet finalised its first reading of the AMMR proposal, the draft report presented in October 2021 might foretell some disagreements between the two co-legislators.
Less disagreements may be expected with regard to the AAPR proposal, the original version of which has been subject to an intense debate leading to the adoption of an amended proposal by the Commission. In its general approach, the Council confirms the overall objective to make the asylum procedure more efficient, to prevent ‘abuse’ and to discourage unauthorised movement of applicants for international protection. The extension of the scope of accelerated examination procedures and the main propositions for establishing a fully-fledged border procedure are also maintained. Interestingly, however, the Council defines more precisely what is to be the ‘adequate capacity’ at Union level to carry out the border procedures, which is 30 000. In addition, the Council’s approach generally tends to strengthen the effective judicial protection of applicants for international protection, to extend the scope of applicants who are in need of special procedural guarantees and to better define such guarantees. Another crucial aspect of the general approach consists in the confirmation of the more detailed definition of the safe country concepts and the adoption of common lists proposed by the Commission. Interestingly, this definition no longer appears to presuppose being a party and complying with the 1951 Geneva Convention as currently required by the ‘Procedures Directive’ (2013/32/EU). This possible departure from the international legal framework might be problematic in light of the constitutional requirement of the CEAS to be in accordance not only with the Geneva Convention but also its 1967 Protocol, as provided in article 78(1) TFEU.
The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.