Editorial: Asylum reforms: Ukraine Stimulates a Rethink at the Restart
9th September 2022 | News
The usual busy September restart of political work in Brussels is compounded this year by awareness that time is running out for legislation to be passed before the end of the mandates of the Commission and the Parliament in 2024. Even more so, given that, coincidentally, the change will be marked by a switch from a set of serious Council Presidencies, Sweden, Spain and Belgium, to a nightmare run of Hungary, Poland and Denmark.
The situation is acute in the field of EU asylum law where there are eleven legislative proposals outstanding, with limited progress having been made on many of them. From the perspective of fundamental rights – but also of workability and efficiency – they are of varying degrees of awfulness and need significant amendment.
At the same time, the Ukraine displacement crisis has both indicated that a very different political approach is possible while generating immense operational challenges across the whole of Europe, reinforcing the need for a rethink.
Endless pointless reforms never end
The stack of legislation to be passed results from decisions taken in 2016 and 2020 to attempt to resolve deep and probably irreconcilable political conflicts and practical challenges through legislating. It just doesn't work and the main effect has been a time-consuming process of analysis and negotiations within and occasionally between the two co-legislators. Almost all elements of all the legislative proposals reduce protection standards – that's kind of the point: they are supposed to act a deterrent and allow for rapid return, neither of which will happen. If passed, they will increase the focus on the borders, with more people subject to substandard asylum procedures in border detention.
At the same time the reforms do little to address the key challenges of the unfair Dublin rules on responsibility sharing or to tackle the lack of compliance, especially as they are accompanied by a constant refrain that the system is broken, this is the last chance etc, all of which gives succour to the Member States as they refuse to apply the law (including now flouting the Luxembourg court). There wasn't the time for all of this before the Ukraine crisis and there certainly isn't now.
The approach to the Ukraine crisis could be widely applied
While the invasion of Ukraine has led to massive displacement and an immense humanitarian emergency across much of Europe, the political response from the EU has been very positive, with the rapid activation of the TPD and efforts to ensure access to protection (and territory) rather than to deny it. As such, it is the opposite of the usual strategy and upends conventional "wisdom" in the asylum domain: in fact, unity can prevail and EU institutions can function in the face of a very serious crisis. The EU can manage the arrival of refugees when the decision is taken to manage – even with such huge numbers. Further, it has shown that there is no reason why the arrival of people should create political meltdown and paralysis, especially for eminently more manageable situations. It seems that the EU does have the tools it needs.
At the more granular level, allowing rapid (indeed automatic and immediate) access to protection is shown to be advantageous to the state, as well as the people concerned, and onward movement is not the end of the world, indeed it can lead to more even distribution and help people to reunite with family, which in turn supports integration. Society has a crucial role to play, from organised civil society to private hosts, suggesting that repression of civil society, dismantling support structures, for instance on integration, and criminalisation of solidarity weakens states' ability to manage and should be desisted.
Perhaps the most important lessons are emerging on solidarity, that stickiest of topics. It appears to work when it is something that is done, rather than something that is discussed. A Solidarity Platform for the Ukraine response is up and running and it could eventually be extended to other situations. Within the platform, Member States are cooperating to ensure that people have access to protection rather than to deny it.
But there are efforts to consolidate a two-tier system
While there is an impetus to learn from this response and apply some of that learning to the asylum system as a whole, there are also deliberate and concerted efforts to say that Ukraine is "different" and the response that was deployed is not relevant to other crises or to the ongoing job of protecting the small number of refugees (in global terms) who arrive in Europe. That the asylum reform proposals go in exactly the opposite direction of the widely praised response to displacement from Ukraine should at least lead to reflection, and not a rush to get misguided proposals passed. As well as the fundamental rights implications, most of the proposals create additional administrative burdens on the Member States, particularly those at the borders, with processes and physical infrastructure to contain people concentrated there and remove flexibility and discretion. The likely response of these states will be pushbacks, as we see from Greece's response to EU-imposed containment of people on the islands under the EU-Turkey Deal. At the same time, smugglers will continue to make untold fortunes – the harder it gets, the more they charge, and the more sinister and violent the groups attracted into the business.
Of course, there are differences – every displacement crisis has its specific characteristics. The point of International Refugee Law, and the Common European Asylum System (CEAS) which aims to incorporate it into the EU's legal order, is that everybody should be treated equally and fairly, with access to a procedure to determine their status and protection when they need it, regardless of their manner of arrival. An NGO statement published today on the alarming situation in Afghanistan and for Afghan refugees in Europe (here) highlights that this is far from the reality. The shameful political reaction of the EU's leaders, and in particularly interior ministers separately and jointly, to the Taliban takeover last year, embodied in the JHA Council's debates and statement, contrasts starkly with the approach to Ukraine. There are reasons that explain the differences in strategy towards people arriving – racial and religious bias, proximity, the assessment of Russia's role – but they do not justify the differences in treatment. Efforts to consolidate a two-tier approach suggest that people arriving other than from Ukraine are part of "structural migration", undeserving and so on. But most people arriving in the EU do have protection needs, as proper analysis of asylum decisions demonstrates. Rather than lessons being learned and applied from the Ukraine response there is a risk that it the wider asylum actually becomes harsher and more restrictive.
The worst of the proposals is moving on the Council side
In a context where there is not enough time for all proposals to pass, the most likely outcome is a partial reform consisting of different proposals put together in a mini-deal; the question then arises as to which of the possible partial reforms is best from a protection perspective.
While there is no obvious answer to this question because all options reduce protection standards, it is clear which partial reform is worst – the Instrumentalisation Regulation. A statement expressing concern was published (here), which draws on ECRE's detailed analysis of the draft legislation (here). By allowing Member States to derogate from "one or more" of a list of legal obligations in situations of instrumentalisation, using a definition that is so broad as to encompass all situations at the border, and based on the decision of the state itself that it is facing such a situation, the proposal has profound implications for EU law and also for the global protection system. The proposal was launched in 2021, along with reforms to the Schengen Border Code, appearing undemocratically given that a large set of proposals was already subject to legislative scrutiny at that time – and it is based on allowing widespread derogations, a model which had previously been rejected.
The Member States may have a common position on the Instrumentalisation Regulation relatively soon as, after all, who among them doesn't want to evade the law? The Parliament needs to get up to speed on this particular proposal, which is not part of its "package approach", meaning that it could be agreed separately, regardless of whether or not other proposals move.
In parallel, the Council and Parliament have signed a roadmap supporting the negotiations on most of the 2020 proposals and at the same time, the Czech Presidencies has suggested reviving the three proposals from 2016 where provisional agreements had been reached (rRCD, QR and URF). On the latter three, Parliament's position is clear and simple: it would be a positive move so long as the agreements hold and are not re-opened. On the 2020 Pact proposals, the Parliament's position becomes fiendishly complex, however.
After the French Presidency brokered an agreement termed the "Gradual Approach", which is a mini-deal consisting of the Screening and Eurodac Regulations on one side and a solidarity mechanism on the other. (ECRE has previously commented on this agreement, here and here), Parliament reiterated its position that two (or three if the Schengen reforms are included) legislative proposals should not advance without similar progress on other proposals, particularly the RAMM and APR.
It is not clear, however that Parliament's position on the RAMM will actually be better than Dublin III, and the APR remains a complex, unworkable mess, focused on rendering mandatory procedures aimed at limiting access to protection. (The Council has made no progress on either of these proposals).
A mild improvement on responsibility sharing and solidarity is possible
The debate about the reforms is as ever about solidarity (for the Member States – it is as ever little about solidarity with refugees or responsibility to abide by EU and international obligations). It's possible that some slim improvements emerge, although at every point the changing pattern of responsibilities has to be properly analysed. If Dublin is repealed and replaced by the RAMM, the content of the law adopted is crucial. The proposal does not foresee an improvement in the rules on allocation of responsibility and the Rapporteur's position thus far has been worse than the proposal (see ECRE's analysis, here).
A number of political groups at the Parliament are valiantly proposing amending RAMM to ensure the necessary deeper reform, including replacement of the first entry principle with a fairer system. Success will depend on whether the unlikely alliances hold – and on what happens to the rapporteur after Sweden's elections. The Council is not even discussing the chapters on the rules, let alone reaching agreements. Legislating to render the rules fairer (for applicants and for Member States) should always be attempted but may not pass.
Thus, as always, a plan B is also discussed in parallel: in the absence of a reform of the rules can compensatory solidarity mechanisms be deployed? Can they be adequate? ECRE – along with many other organisations – has put forward proposals for solidarity mechanisms that could be deployed in lieu of a deeper reform of Dublin. The relocation programme was one example. The ad hoc relocation mechanism is another.
A decent solidarity mechanisms should 1) prioritise relocation 2) to include only other solidarity contributions that focus on improving asylum systems in the countries benefiting, not on keeping people out 3) ensure maximum participation of countries offering solidarity 4) respect the rights of the people affected, without coercive elements, with guaranteed access to an asylum procedure and due process, the right to family reunification, and elements of preference, and 5) have a strong enough legal basis to ensure accountability and 6) some form of permanent structure to render to avoid time-consuming ad hocery every time a situation developments. (See ECRE's proposals, here).
There are various ways to put in place a stronger solidarity mechanism of this type. The Czech Presidency has launched what appears to be a useful effort to build on the mechanism set out in Solidarity Declaration, including adding mandatory elements and a stronger legal basis. They are also exploring whether elements of the RAMM proposal could be used, for instance, extracting the elements on solidarity, something which ECRE recommended from the beginning. Another alternative would be to continue with the full RAMM proposal but a significantly amended version of it, as per the approach of some in Parliament. That would also provide a strengthened legal basis for the solidarity measures however the RAMM is a monstrous proposal with many twists and turns within it; extensive amendment would be required, as ECRE's original analysis demonstrates (here). In addition, the RAMM remains wedded to the APR, which looks beyond redemption. A final sources of inspiration on solidarity lies in practice – in the form of the Solidarity Platform, as mentioned above.
September's elections may have an impact
Although Sweden's reforms since 2016 have already undermined its longstanding positive record on human rights, it is still far from being Denmark. This week's elections may change that. If a centre-right government propped up by the extreme right Sweden Democrats comes into power it could lead to significant deterioration in standards and worsen its position in EU discussions. That said, it seems likely that whichever government comes in, Sweden will actively pick up where the Czechs and the French left off. That means taking forward the instrumentalisation proposals if it has progressed through the Council, and/or continuing with the Gradual Approach deal brokered by the French.
Whether the latter, the Gradual Approach deal holds, will depend on another September election – that in Italy. The deal is not a great one for Italy (or the other countries at the border) because the Dublin Regulation rules remains in place, and then Screening and Eurodac add to their responsibilities, with the solidarity offered in exchange rather meagre.
The election of a "political" government in Italy after one that was partially technocratic with a prime minister deeply embedded in EU structures, may mean that the country reneges on the deal. It hard, though, to avoid the suspicion that more was offered to Italy than an unpredictable small-scale solidarity mechanism. In particular, Italy's economic position is dire and the EU is sitting on a huge amount of economic power in the form of the post-COVID recovery funds, and new tools, such as loans. Regardless of the political stripes of the new government, jeopardising economic support for a row on migration AFTER winning the election may not be wise, so it may stick to what the French have brokered, while strongly backing instrumentalisation, which has drawn favourable attention from the Italian far right in the EP.
Focus on Ukraine and compliance; rethink and conclude the reforms
The legacy of Commissioner Johansson – and indeed the Commission as a whole – is the Ukraine response in its many facets but the crisis stage is far from over. The war may continue for many years, with neither ceasefire nor settlement, and with continued occupation, violence and uncertainty. Millions of people will remain displaced internally and across Europe, unable to return even though they and their government may wish for that. Even without a flare up, nuclear crisis or further invasions, the situation could fully occupy EU decision-makers for the next two years and beyond. Heads of government are consumed by this crisis and the related energy and cost of living crises, and the concomitant risk that certain Member States go into major economic and/or political dysfunction. They will not have the time to devote to asylum reform (which is not necessarily a bad thing).
The EU also needs to brace itself for the triple whammy of Hungary, Poland and Denmark, where it can be assumed that racist rhetoric will again prevail in the JHA, as during Austria's tenure when their far-right minister chaired. Similarly, it can be supposed that a series of fantasy externalization options – possibly involving Rwanda, certainly involving Albania – will be aired, debated and will go nowhere. Beyond these issues, the more serious question is how the EU will weather any crises that develop during this period, related to Ukraine, Russia, energy, climate, cost of living or anything else, with anti-EU governments in the lead.
In the run-up to this, there is enough to do without continuing to spend time on damaging and largely pointless reforms. But the fact is that they won't just go away. Thus, a whole set of parallel efforts are necessary.
First, the Ukraine response needs to be both maintained and replicated. A new phase of TPD implementation is coming into play, focused on access to the socio-economic rights that are part of the decision. Second, the asylum reforms need to be adapted to reflect the learning from this experience rather persisting with a model that is the opposite of what is actually being used in the face of a real crisis. Third, if some reforms have to move forward in order to end the process of otherwise endless reforms, then they should be the least bad options, not the worst, which is clearly the Instrumentalisation Regulation. Failed reforms should then be withdrawn and the process concluded. Fourth, the thin opening for some progress on solidarity should be seized, ideally with legislative change, otherwise with a robust solidarity mechanism building on practice and seeking a stronger legal basis. Finally, more than ever, the acute need is for avoiding crisis in the wider asylum system through compliance with the law and adequate resourcing and management. The Ukraine displacement crisis shows the approaches and tools that work. The TPD is part of the Common European Asylum System, and it was activated in order to ensure that the system continues to function in the face of a major influx of people. Some of the efforts, resources, unity, and focus on protection need to be applied to the ongoing management of the system as a whole.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)