After three continuous days of negotiations, the teams from the European Parliament and the Spanish Presidency of the EU Council managed, on Wednesday 20 December at around 8am, to conclude their negotiations on the ‘Pact on Migration and Asylum’, which include the regulations on asylum and migration management (AMMR), asylum procedures (APR), screening of migrants and situations of crisis, force majeure and instrumentalisation of migrants (‘Crisis’). The two parties had already reached a provisional agreement on the Eurodac regulation (see EUROPE 13317/8).
This set of provisional agreements, which will be followed by technical meetings in January and will then have to be approved by the parliamentary committee and then by the Member States, has been described as a “major success for Europe” by the President of the European Parliament, Roberta Metsola.
“This Pact on Migration and Asylum will ensure that there is an effective European response to this European challenge. It means that Europeans will decide who comes to the EU and who can stay, not the smugglers. It means protecting those in need”, commented Commission President Ursula von der Leyen in a press release.
“This Pact will also ensure that Member States share the effort responsibly, showing solidarity with those that protect our external borders while preventing illegal migration to the EU”, she added.
While French MEP Fabienne Keller (Renew Europe), rapporteur on the ‘asylum procedures’ dossier (APR), welcomed “a great European victory” that respects “humanist values” at the European Parliament on Thursday morning, some groups, namely the Greens/EFA and The Left, still had a bitter taste in their mouths after the final night of negotiations, such as Damien Carême, who described the agreement as a ‘disgrace’ and even “inhumane”.
The Greens/EFA group had its sights set on the agreement reached on the Crisis Regulation, which, according to the group, would jeopardise the activities of NGOs that could be described as hostile non-state actors seeking to destabilise the EU.
Although the EU Council and the Spanish rapporteur on ‘Crisis’, Juan Fernando Lopez Aguilar, brushed aside these concerns on Thursday morning, with the Spanish MEP explaining that a specific mention had been added to the text to protect the work of NGOs, the overall impression left by these negotiations is that the European Parliament had not scored many points in recent days. On almost all the texts of the ‘Pact’, and subject to a more detailed analysis of the agreements, Parliament seems to have had to accept most of the EU Council’s mandates and to have obtained only a few concessions.
On the AMMR regulation, the latest negotiations were in favour of Parliament, which succeeded in introducing specific solidarity measures for people rescued at sea, for whom a certain quota of all these solidarity measures will be earmarked, explained rapporteur Tomas Tobé (EPP, Swedish). The Commission will reportedly be invited to work on this percentage.
This regulation will therefore organise mandatory solidarity in times of migratory pressure (the precise thresholds for defining this pressure are not specified) with a commitment by the Member States to take charge of at least 30,000 people per year or to pay financial compensation of €20,000 per applicant not relocated.
Member States will also be able to contribute in the form of aid for the management of external borders. Each year, all the Member States will announce commitments in a ‘solidarity pool’ which the country under pressure can then ask to activate, receiving a rapid response to its request.
The respective contributions will be calculated on the basis of GDP and the size of the country. National commitments will not be made public. After several reminder stages, the Commission will also be able to intervene in a more binding way if the solidarity measures do not meet the needs. It will then set new aid quotas for the Member States.
This new regulation has also modified certain so-called ‘Dublin’ criteria, by introducing the criterion of a diploma obtained after one year’s study in a Member State, which may then become eligible to apply for asylum. But the European Parliament was not successful in extending the family criterion to include siblings. On the other hand, the Member States have agreed to extend the scope of Article 16 to family members residing legally on the basis of an EU long-term residence permit.
In addition, Member States will normally be able to carry out transfers to the first country responsible more quickly, without having to wait for the latter’s green light.
On the ‘Screening’ regulation, the agreement stipulates that any person, including minors, who arrives illegally at the EU’s external border will be subject to security, identity or health checks for five days and for a total of seven. These persons will not be considered as having arrived on European soil by virtue of the legal fiction of ‘non-entry’. They will then be redirected to the normal asylum procedure, the return procedure or the border procedure provided for by APR.
A mechanism for monitoring fundamental rights will be put in place at this stage of screening, but the EU Council has refused to extend it to border management.
Checks can also be carried out throughout the country, not just in border areas. The rapporteur, Birgit Sippel (S&D, German), was not present at the conference to describe the negotiations.
On the APR, the European Parliament has obtained some concessions in recent days, in particular on legal aid, which will be free at all administrative stages of proceedings, in addition to the free aid already provided for appeals. This new aid should come from the European budget. Under this text, a new border procedure will make it possible in six months, including appeals, to issue a negative asylum decision and a simultaneous return decision for people whose nationality generally receives less than a 20% positive response rate for asylum.
Countries of first entry will have to ensure that at least 30,000 beds (and up to 120,000 each year at EU level) are dedicated to this procedure. The European Parliament did not succeed in excluding minors and families, but obtained safeguards for them. The European Commissioner for Home Affairs, Ylva Johansson, also explained on Thursday that all those who could not be dealt with under this procedure, if a country had exceeded its capacity under the terms of the regulation, would be directed to the ordinary asylum procedure.
The European Parliament and the EU Council also held complex discussions on the concept of a ‘safe third country’, which in the end remains in line with the EU Council’s mandate of last June, making it mandatory for there to be a connection with the country where a person whose application for asylum is rejected would be sent back, and which would therefore justify an authority being able to reject the application for asylum in the EU.
‘Crisis’ Regulation. This is the most divisive regulation and the one that has most worried NGOs. Contrary to the threshold in the APR of 20% positive responses, Member States of first entry will be able to apply the border procedure to 100% of migrants who arrive in this way, and they will also be able to offer them poorer material reception conditions than other asylum seekers.
The definition of instrumentalisation will encompass third countries and all hostile non-state actors seeking to destabilise the EU. Humanitarian actors, if their aim is to destabilise the EU, could find themselves concerned, warned the Greens/EFA group in Parliament, even though the Spanish rapporteur assured that this will not be the case, with the addition of a specific paragraph.
For situations such as Ukraine in 2022 or the massive influxes of 2015, the countries of first entry will have longer deadlines for registering files, up to four weeks, which will delay as well access to rights under European legislation.
The other Member States will also have to make mandatory commitments in the form of relocations or alternative aid measures.
The final texts of the provisional agreements were not available at the time of going to press. (Original version in French by Solenn Paulic)