Negotiators from the European Parliament and the EU Council will meet on Thursday 7 December for a full day devoted to the various regulations of the ‘Pact on Migration and Asylum’, namely the regulations covering asylum and migration management (AMMR), asylum procedures (APR), migrant screening, crisis situations and Eurodac.
While the two parties, who have scheduled talks until midnight at this stage, intend to make as much progress as possible, another trilogue session may be necessary and is already scheduled for 18 December.
There are still many issues to deal with, and some sources were already estimating on Monday 4 December that some of them might not be resolved on Thursday.
While the Eurodac regulation – which will create a major new migration database, including data on asylum seekers as well as all return decisions – is currently the most progressed in terms of negotiations and could be the subject of a provisional conclusion on Thursday, this is not the case for the other four texts, on which major divisions persist.
This is particularly true for the screening, APR and ‘crisis’ texts, with compromises appearing more within reach on the AMMR (ex-Dublin).
Regarding screening, the negotiators could finalise a number of points, such as detention (where partial agreement has already been reached, with a reminder of the traditional provisions laid down by European law for asylum seekers and the principles of detention for non-asylum seekers), minors and the use of information systems and the broad access offered to the competent authorities, which the European Parliament wants to look at more closely.
But two particularly sensitive questions could remain unanswered on Thursday: the right of the competent authorities to carry out ‘screening’ (security and health checks for 5 days on anyone crossing the EU’s external borders) throughout the country and not just in the border zone. The second complicated matter concerns the extension of the mechanism for monitoring respect for fundamental rights to the issue of external border surveillance.
On this last point, the European Parliament would also like to subject the activities of border guards and their respect for non-refoulement to this fundamental rights evaluation mechanism, whereas the EU Council only accepts this evaluation for the screening procedure.
As far as the location of the screening is concerned, the EU Council wants to be able to screen migrants even if they have avoided the initial screening carried out immediately after crossing the border. For the EU Council, this would mean that there are no loopholes in the monitoring of people arriving illegally. However, the European Parliament fears that national police forces will only detect these people in the rest of the country through discriminatory checks based on racial profiling.
Neither the European Parliament nor the EU Council reportedly have any intention of changing their position for the time being.
With regard to the crisis elements, instrumentalisation remains an obstacle, as the European Parliament does not have a specific mandate on instrumentalisation.
The legislators will also have to settle the question of the principle of ‘prima facie’ protection, which consists, in an extraordinary period of migration, of rapidly granting protection to migrants coming from areas that it is legitimate to believe present a real risk to these people. On this matter, as a gesture to the EU Council, the European Parliament recently agreed to automatic recognition of protection on a prima facie basis not being compulsory.
On the APR, the European Parliament also recently made a gesture to the EU Council by agreeing that this procedure, which combines an asylum decision and a return decision at the same time, should become compulsory.
But some major questions remain unanswered: - the exclusion of minors and families from this accelerated procedure (Member States such as Germany support the exclusion of these groups, as does the European Parliament); - the question of free legal aid (the EU Council believes that this would be too expensive); - the number of appeals against decisions, which the European Parliament wants to increase.
Additionally, the two parties reportedly do not agree on the possible recourse when a minor turns out not to be a minor.
Another point of difficulty is the definition of the concept of ‘safe country’, on which the EU Council has virtually no room for manoeuvre. Some Member States are even taking a harder line than the mandate adopted in June, and would like to remove the obligation to establish a link between the migrant who is the subject of a return decision and the third country to which he or she will be returned. A solution will also have to be found on the issue of document fraud and the possibility of bringing people back into the border procedure when they have presented false documents.
Finally, with regard to the AMMR, the two parties will have to try to strengthen the solidarity mechanism for countries under pressure. The European Parliament, which in its mandate defended a solidarity response equivalent to at least 80% asylum seeker relocations and 20% aid in other forms, has softened its position and can accept the flexibility sought by the EU Council.
The legislators have also yet to agree on the inclusion of siblings (already present on EU territory) as a criterion for determining the responsibility of a Member State in an asylum case, or the criterion of diplomas obtained in a particular Member State.
The specific measures that the European Parliament would also like to establish for people rescued at sea remain an issue to be resolved, as do the procedures for taking back asylum seekers already registered in a Member State.
The European Parliament insists that a sending State should make requests to the Member State responsible under the Dublin system to take them back. The Council, for its part, advocates that the ‘returning’ States should only send take-back notifications to the country originally responsible. (Original version in French by Solenn Paulic)