Guest post by Barbara Joannon, Stephanie Pope and Marta Welander, outlining Refugee Rights Europe’s preliminary reaction to the European Commission’s Migration and Asylum Pact. 

For years, women, men and children in displacement have suffered human rights violations across Europe: left to drown at sea, beaten, violently and illegally pushed back at EU borders, contained without dignity at the EU’s edges, returned to danger under cynical deals with third countries. The Commission promised that the New Pact would be a fresh start to asylum and migration. It turns out to replicate or exacerbate past failures in new packaging. The overbearing focus is on preventing access to EU territory as if the success of the EU’s asylum and migration system was measured by its efficacy in “keeping numbers down”.

Photo: Tessa Kraan
 

Pre-entry screening and new border procedure

There are certain aspects of the Pact which represent a slight shift from the past model, albeit none of which are hope-inducing. Firstly, there’s the disgraceful introduction of compulsory pre-entry screening accompanied with a new border procedure. The latter will negatively affect displaced people from so-called ‘safe countries’, ‘safe third countries’ and third countries for which the recognition rate across the EU is below 20 percent: these people are a priori deemed not worthy of undergoing a ‘normal’ asylum procedure. It’s not rocket science: we have been warned countless times by civil society and legal experts, that arbitrary ‘selection’ procedures based on country of origin and recognition rates are unfair, dangerous and risk hindering access to asylum for international protection seekers. This new border procedure, essentially a truncated asylum procedure with diminished due process guarantees and insufficient time or practical opportunity for an appeal, is likely to lead to unlawful returns of protection seekers and a high risk of refoulement, in contravention of EU, European and international human rights and refugee law.

The proposed provisions for ‘preliminary vulnerability checks’ as part of the screening procedure are wholly inadequate. Officials are to check, “where relevant”, for individuals with vulnerabilities. Despite civil society outcries over inadequate vulnerability assessments which have for years contributed to harmful bottle-neck scenarios in reception facilities in frontline member states, the New Pact does nothing to improve these shortcomings. These provisions will most probably lead to a systematic lack of identification of vulnerable groups including LGBTQI+ individuals, survivors of trafficking and torture, and those with individual cases which need more time to be adequately assessed and properly understood. Hastening to return such groups of individuals, on the basis that they originate from so-called ‘safe countries’ or that they have a nationality with a relatively low recognition rate, will most certainly lead to increased unlawful refoulement, putting vulnerable people at risk of torture, persecution and even death upon return.

Relocation and 'return sponsorship'

The long-awaited ‘solidarity mechanism’ is also a source of grave concern. In an attempt to bridge disagreements between member states and appease Europe’s most hard-line governments, the Pact introduces a flexible option for exercising “mandatory solidarity” which in itself seems like an oxymoron. It proposes that countries can choose to share responsibility by contributing to relocation of asylum applicants from frontline states, or through ‘return sponsorship’, the latter of which is perhaps the most sinister of the new proposals put forward by the Commission. The “flexible” contributions can take a number of different forms: operational support, capacity-building, reception arrangements, return operations, or cooperation with non-EU countries.

It remains unclear how the Commission proposes to enforce the flexible solidarity mechanism in practice, and how it would work, in particular since asylum seekers who could not be returned by the sponsoring member state must be allowed to enter the member state of arrival. It is similarly unclear what happens if all states were to choose returns over relocation; a question that was also left unanswered amid journalists’ repeated attempts to seek clarification during the Commission’s press briefing following the Pact’s publication. In practice, this scenario will result in displaced individuals remaining in frontline member states for prolonged periods, if not indefinitely - a scenario that went up in flames two weeks ago in Moria.

Photo: Refugee Rights Europe

Fears over overcrowded containment areas

This brings us to the core issue of where people will stay during this time. The Pact and its Regulations allude to the possibility of member states accommodating people further in-land, at a distance from external borders. This inevitably raises fears of closed centres, de facto detention and deprivation of liberty, strategies that appear to be ‘piloted’ in various forms in the new emergency camp on Lesvos as well as the Hotspot on the island of Kos, among others. Civil society has been warning against this for years, warnings which apparently went unheard amid the Commissions ‘extensive consultations with stakeholders’. Despite the silence over this question in the New Pact, it is clear that individuals might become trapped for months in whichever facilities (inland or not) they are forced to remain for the duration of the pre-entry screening and the new border procedure. It is unclear how this will differ from the current ‘Hotspot’ approach on the Greek islands and elsewhere. New overcrowded containment areas, and many more ‘Morias’ across Europe will leave displaced individuals in hellish conditions, with European civil society wondering where exactly the ‘fresh start’ is to be found. What we’re facing is an old model with a new label, now rolled out across Europe’s borders and inland.

The Commission has also put forward a specific regulation for crisis situations, in an attempt to facilitate swifter ‘solidarity’ between member states during times of ‘crises’ such as increased numbers of arrivals of people seeking international protection. The prospects for humane handling of asylum applicants in these ‘crisis’ situations would be further hampered, with an extended scope and duration of the application of border procedures and hastened returns under the ‘return sponsorship’ mechanism. One could positively receive the proposal of granting immediate protection status to displaced people seeking asylum in times of crisis. However, this proposal is simply repealing the previous 2001 Temporary Protection Directive which was never implemented, not even in 2015 when most asylum seekers originated from war-torn countries, primarily Syria.

Paying lip-service to human rights

The Commission consistently claims that the Pact and its Regulations will ensure fundamental rights, observing the principles of the Charter of Fundamental Rights of the European Union and international legal obligations. Paying lip service to human rights in this manner, while presenting proposals that render their implementation near impracticable, quite frankly feels like an insult to all the civil society groups, human rights movements and volunteers working relentlessly to uphold basic rights and safeguard the last grains of human dignity left for people in displacement across Europe and at its borders.

Rather than observing rights principles, the Pact is instead riddled with almost-certain risks of fundamental rights violations. They have seemingly been designed as a framework to facilitate and justify unlawful returns and refoulement, as well as the obstruction of access to the EU asylum system. It doesn’t take an expert to understand that this will lead to a further degradation of safeguarding of vulnerable people, as well as the basic human dignity and rights that supposedly lie at the foundation of the European project.  

Photo: Frederic Moreau de Bellaing
 

The need for a meaningful monitoring mechanism

While the proposed monitoring mechanism is intended to help ensure fundamental rights compliance, and while the FRA’s role therein is welcome, it is hard to see how it could lead to effective compliance. First of all, it appears as though this mechanism would only relate to the pre-entry screening and border procedures, rather than the broader treatment of seekers of protection at the EU’s internal and external borders. Moreover, the burden of setting up these mechanisms and ensuring adequate investigation is placed largely on member states themselves. This appears slightly paradoxical as this mechanism was surely introduced in an attempt to rectify the sustained and systematic rights violations and illegal pushbacks documented at the EU’s borders over the past years. As lately proven by Croatian and Greek officials denying any rights violations at their borders despite clear evidence, it is difficult to see what incentives member states will have in documenting and investigating their own rights violations at borders.

Civil society has time and again called for a strong monitoring mechanism to be developed by the European Commission and in close collaboration with expert NGOs and civil society groups operating on the ground. In order to break with the current failures to hold member states accountable for their border violence and rights violations, such a mechanism would essentially need to involve civil society, NGOs and national human rights institutions to ensure that evidence is collected in a confidential way which does not put victims at risk, and that it leads to timely investigation and redress. Any other attempts will be futile and will not result in a veritable system of accountability.

A deeply misguided approach

In short, any remaining glimmers of hope for a more humane European approach to asylum and migration have faded with the publication of the Pact. In its current form, it is likely to replicate and exacerbate displaced people’s suffering on our doorstep and across Europe. Tragically, the Commission’s approach is deeply misguided; as the past years have undoubtedly proven, it is wrong to believe that the women, men and children fleeing their homelands to reach Europe will be deterred by the prospect of drowning at sea, being detained upon arrival, or being deported swiftly. People in displacement embark on treacherous migration journeys because anything appears safer than staying where they are, not out of choice. 

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How to cite this blog post (Harvard style) 

Joannon, B., Pope, S. and Welander, M. (2020). New Pact on Migration: An Exacerbation of Past Failures in Shiny New Packaging. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/09/new-pact [date]