The EU's new Migration Pact: deportations more important than rights

Refugees Welcome, Denmark, agrees with the criticisms of the pact put forward by a large number of NGOs

Uneven enforcement across the EU

The inadequacy of the EU’s Dublin Regulation became apparent during the extraordinarily large influx of migrants and asylum seekers into the EU in 2015. Criticism from across the EU has led the Commission to propose a ‘simple and coherent migration policy for the Union’, but the proposal fails to address fundamental issues in the EU's handling of asylum cases, often creating more problems than it solves.

The battle for a more balanced distribution of asylum seekers between EU countries has already been lost with the maintenance of the 'first country of arrival'  principle in asylum cases. This is especially evident at Europe's external borders, in countries such as Italy and Greece, where the terrible conditions like those in Moria camp on Lesvos island are now widely known. The unwillingness of several countries to receive refugees, such as Poland, Hungary and Denmark, does not help the situation. Five countries received 80% of EU asylum applicants in 2019.

The new pact will maintain the principle that the country of arrival is primarily responsible for the treatment of asylum cases, but is now accompanied by a "compulsory solidarity" where all EU countries are obliged to help the most affected states by either taking over asylum cases or contributing to repatriation efforts. In addition, the screening and decision-making process for newcomers will be accelerated, and cooperation with third countries will be expanded through new visa agreements.

More problems than solutions

There are also some positive aspects to the proposal: planned harmonisation of the criteria for international protection and improvements of conditions in recipient countries at the EU's external borders may go some way toward preventing a new Moria. The pact also contains a proposal for independent monitoring of fundamental rights at the borders, but it is unclear how this independence will be guaranteed. In addition, it is promising that permanent residency will be possible to obtain after three years and that opportunities to work and move to other countries in the Union will be strengthened. It is also positive that an expert group is being established to develop EU policy based on migrants' own experiences and views.

However, there are far more questionable elements in the proposal. Faster procedures for processing asylum cases at the border seems like a good starting point, for example, the Danish  “manifestly unfounded” procedure works well, but the kind of accelerated screening described in the pact will affect legal certainty. Border countries already have problems implementing asylum procedures, and hurrying the process could do more harm than good when it comes to securing the rights of new arrivals.

It is deeply problematic to subject those nationalities with an average EU recognition rate of less than 20% to a procedure where they do not have access to legal assistance and are not covered by existing legal guarantees. In periods with many arrivals, this can even be extended to nationalities where less than 75% are granted asylum on average - at present this would include everyone except Syrians and Eritreans. During high-demand periods, Member States are also allowed to refrain from registering newcomers for up to three months, during which time they may be detained, deported, at risk of refoulement, and denied their basic benefits.

Deportations and Detention

In general, the proposal emphasises return, a nicer word for deportations. Interestingly, the word "return" appears more than 100 times in the Commission's proposal, but the word "rights" only 14 times. The appointment of a Return Coordinator in the Commission and Frontex as a Deputy Administrator for Return reflects Denmark's newly established Return Agency. Cooperation with third countries is being extended in order to return people to places where protection of migrants' rights is not guaranteed, thus keeping the problems out of sight and out of mind.

The principle of "compulsory solidarity", in which states can opt out of receiving refugees, should instead be called "voluntary solidarity", as the EU has given up on compelling reluctant countries to do justice. If one state gets away with simply refusing to accept refugees, it creates fertile ground for greater reluctance among other states, leading to further pressure on already hard-pressed border countries, and most likely to a higher deportation rate.

The screening process and subsequent asylum procedure will lead to mass detention in camps and closed reception centers (essentially prisons), especially in border states. The proposal also contains an exception rule where, during times of especially large migratory flows, people can be detained at the border for up to 10 months, and we fear this will become the norm in the future despite its clear conflict with the principles of necessity and proportionality in international law. Asylum seekers can already be detained for up to 18 months in many EU countries, including Denmark, which is a dubious practice in terms of human rights.

The special need for protection of refugee children is taken seriously in the proposal, where alternatives to deprivation of liberty and offers of education are made available for children under 12 years of age and unaccompanied minors. It is noteworthy however that children between the ages of 12 and 18, accompanied by a parent or guardian, are not given these opportunities. This is contrary to the global definition of children as all people under 18 years of age.

Massive criticism from NGOs

Overall, the Pact provides very weak safeguarding of refugees' rights on arrival in Europe. The vast majority of the people who come here by strenuous and often life-threatening routes are in need of protection. With this proposal, the EU places the interests of some of the world's most vulnerable people into the background in favor of additional repatriation tools. Instead of ensuring better solidarity between EU countries, loopholes are expanding so that states can avoid the responsibility we all have to ensure that no human being is subjected to inhuman or degrading treatment.

We hope that these criticisms, among other things, will be included in further negotiations before an agreement falls into place. A number of other organizations in Europe have criticized the same points, for example the 6 page document from PICUM, of which Refugees Welcome is a member. ECRE has gathered more than 80 NGOs in a Joint Statement, including Amnesty International, Human Rights Watch, SOS Children's Villages, Action Aid International, Caritas Europe - and from Denmark; Danish Refugee Council and DIGNITY (6-page document and recommendations available in various languages, including Danish).

Benjamin Vissinger is a law student and volunteer advisor at Refugees Welcome.