Migration remains a polarising and salient issue in many European Union countries, including in Ireland. A comprehensive strategy for migration and asylum has long been absent at the EU level, with past policies relying on emergency solutions. In December 2023, after almost ten years (two legislative terms) of political gridlock, European Parliament and Council negotiators agreed on a set of regulations known as the New Pact on Migration and Asylum. But what implications will the proposed regulations have on the EU and Member State level? Why was it so difficult to reach an agreement? And is the EU actually facing a migration crisis? This Just the Facts unpacks the Pact.
Is the EU facing a migration crisis?
From 2015 to 2016, over two million people claimed asylum in the EU, many of them fleeing conflict in Syria, Afghanistan or Iraq during the so-called European “migration crisis”. In the years that followed, Europe witnessed the rise of a new generation of populist politicians across the continent. Research has challenged the view, often promoted by right-wing actors, that the past decade has seen an upward trend of an ever-increasing refugee population. According to data published by the United Nations Refugee Agency (UNHCR), refugee numbers fluctuate according to levels of conflict and crisis in origin countries.
Applications for international protection in the EU declined by almost a half between 2016 and 2019. However, since 2020, there has been a steady rise in the number of applications submitted in the EU. Despite this increase over the last four years, the EU continues to receive only a small share of the world’s refugees. In fact, the EU’s share of the world’s refugee population has significantly decreased from 70% in 1993 to under 20% since 2018. In 2022, it hosted 6.7 million refugees, which was about 19%, with only a small number of countries hosting the majority of this number. For example, in 2022, Germany, Poland and France hosted about 65% of that total 19%. About 74% of the world’s refugees are hosted by low-income and middle-income countries.
According to Frontex, irregular entries at the EU’s external border have been on the rise since 2020. In 2023, there were 380,000 detections of irregular entries, marking the “the highest level since 2016”. The rising number of detections may be caused by increasing migration pressure, but they may also be a result of increased reinforcement of borders, or improved reporting.
Despite the sustained focus on irregular entries among some politicians and media, the number of third country nationals arriving in the EU lawfully significantly exceeds the number of those attempting to enter the EU irregularly. Moreover, these narratives overlook the fact that many of those entering irregularly are fleeing conflict and persecution and have a right to seek international protection. The majority are forced to enter irregularly due to the failure of states to provide safe and legal routes. According to data from the International Organization for Migration, between 2014 and 2023 about 35,000 people lost their lives and more than 26,000 people went missing in the Mediterranean Sea.
Looking towards the 2024 European Elections
Migration was among the top five main issues that encouraged citizens to vote in the last European Parliament elections in 2019. A Eurobarometer survey, carried out in autumn 2023, reported that Europeans consider migration the most important issue facing the EU, along with the war in Ukraine
In this context, there is an expectation that far-right parties will make considerable gains during the June 2024 European elections. Many of these actors have consistently scapegoated migrants and refugees for various social issues driving xenophobia and public dissatisfaction. The far-right European Parliament political group, Identity and Democracy, were polling in third place as of March 2024. The issue of migration is one of the main focuses of their campaign. In turn, some mainstream centre and centre-right European parties appear to be emulating certain right-wing policies and rhetoric regarding migration on the European and national level.
At EU level, some observers have suggested that the New Pact on Migration and Asylum is a clear example of this “shift to the right” strategy in its proposal of tougher measures for migration. At a press conference in December 2023 announcing the deal on the Pact, European Parliament President, Roberta Metsola said that the unprecedented reforms would be something to “showcase” before the European elections. However, human rights organisations such as Amnesty International have said that the Pact will set back asylum law for years to come and undermine the rights of refugees.
Why was it so difficult to agree on legislative reform?
Previous EU policies regarding migration and asylum came under the Common European Asylum System (CEAS). However, this set of legislation presented many deficiencies and were difficult to reform, given the range of conflicting priorities within the Council. Member States were firmly in different camps: frontline countries (such as Greece and Italy), countries concerned with secondary movements (such as Ireland), those opposing any meaningful reform, and those that remained indifferent.
However, after years of political impasses, the context dramatically changed in 2022 with Russia’s invasion of Ukraine, which saw the largest refugee movement in Europe since World War II. The EU swiftly adapted the Temporary Protection Directive for the first time, granting protection and rights to millions of Ukrainians fleeing the war. The response to Ukrainian refugees demonstrated that the divisions between Member States within the Council could be overcome and that when the political will exists, the EU can show solidarity and provide protection to refugees in an effective and coordinated manner. It paved the way for a future agreement on migration and asylum policy reform.
What does the New Pact on Migration and Asylum propose?
The Pact is composed of five separate regulations:
- Asylum and migration management regulation
- Crisis and force majeure regulation
- Screening regulation
- Asylum procedures regulation
- Eurodac regulation
Solidarity Mechanism
The first key reform is the introduction of a complex solidarity mechanism under the asylum and migration regulation, which aims to ensure mandatory solidarity for EU countries recognised as being under migratory pressure. This includes the establishment of a “solidarity pool”; a mechanism whereby all EU countries will have flexibility as to how they would contribute. For example, Member States can contribute by relocating asylum applicants to their territory. There is a minimum annual number of 30,000 asylum seekers that should be relocated from Member States that receive the most arrivals in the EU to Member States that receive considerably less. It is important to note that no Member State will be obliged to carry out relocations. If relocations fall below 60% of identified needs (minimum 30,000 relocations as set out in the Regulation), mandatory “responsibility offsets” kick in, whereby states take over asylum claim examinations from the benefiting state.
Alternatively, Member States can make a financial contribution under the mechanism. However there is not a clear definition as to how this should be spent, meaning that funding could instead be used for border surveillance or deportations rather than invested in protection. The financial contribution a Member State can make will be fixed at €600 million.
The calculation of each Member State’s contribution, through relocation measures, financial means, or otherwise, is based on a distribution key that takes into account the size of the population (50%) and the GDP (50%). It is important to note that Ireland has the second highest GDP in the EU, after Luxembourg. At the same time, Ireland has the ninth smallest population in the EU.
Member States have full discretion as to the type of solidarity they contribute.
Safe Third Country
This is a key reform which will enable Member States to reject asylum applications where they deem that there is effective protection and no risk of persecution or removal in a third country. The Commission in the past has discussed making the application of the Safe Third Country concept mandatory, despite it being a contested concept: while it exists in EU law, it does not have a legal basis in the UN Refugee Convention. It poses significant risks to the rights of refugees, not least the risk of violating non-refoulement obligations: the prohibition on states to return someone to a place where they would be at serious risk of harm.
The European Council on Refugees and Exiles (ECRE) warned that there is a “weakening” of this concept within the proposed Regulation, including a lowering of the threshold for a country to be classed as “safe”. Furthermore, the Pact will permit Member States to send people “elsewhere”, including a wider scope for the internal protection alternative, a concept which allows states to send people to supposedly “safe parts” of non-safe countries.
Eurodac
Eurodac is the EU’s fingerprint database for asylum seekers. Under the proposed Eurodac Regulation, Eurodac’s role will expand. It will register beneficiaries of temporary protection to ensure they receive full rights and data protection. This excludes Ukrainians under the current temporary protection scheme. Eurodac will also help implement refugee resettlement programs by registering resettled persons. Additionally, security threats posed by individuals can now be marked in Eurodac records. Significantly, law enforcement authorities will gain broader access to Eurodac data to investigate terrorism and serious crimes, with expanded search capabilities now allowing direct consultation without prior checks of national systems.
Instrumentalisation
Under the crisis and force majeure regulation, the concept of instrumentalisation has been introduced, allowing Member States to derogate from their obligations. It aims to prevent and address situations like the border tensions between Greece and Türkiye in 2020 or the sudden influx of migrants from Belarus to Eastern European countries in 2021. The “situations of crisis” definitions are so broad that they will enable states to invoke them at any time, undermining EU law and further complicating coordinated and predictable response.
When faced with a crisis, the concerned Member State will have to make a reasoned request to the Commission who will assess the situation within two weeks and adopt a decision on the presence or otherwise of a crisis situation. The Commission will then make a proposal to the Council on solidarity measures and derogations, together with a recommendation establishing the categories of persons who should be entitled to protection.
Human rights concerns
Human rights groups, including refugee rights groups, have expressed concern however that the Pact does not go far enough to ensure safeguards for the protection of refugees and compliance with Member States obligations. The failure to develop effective mechanisms for sharing responsibility – a core principle of the Geneva Convention – to process and host refugees with Member States at the external borders, risks the persistence of pushbacks and violations of refugee rights.
Furthermore, the screening procedures contemplated in the screening regulation will enable accelerated asylum procedures, which risk removing the necessary safeguards that those seeking international protection are entitled to. Organisations such as Médecins Sans Frontières (MSF) have decried the Pact’s consolidation of harmful practices such as procedures at EU borders where people are subject to containment which can, in turn, result in de facto detention as has been the case in Greece and Italy.
MSF have also raised other objections, highlighting that the Pact enshrines the notion that EU Member States can provide financial support to non-EU countries, including Libya, Egypt and Tunisia, for example. MSF have said that this can have devastating consequences for those seeking refuge.
While Member States consider the Pact essential in the face of growing geopolitical uncertainty, the UN and others have urged the EU to ensure that the necessary safeguards are abided by to guarantee the protection of people seeking asylum, and that Member States comply with their obligations under EU and international law.
Next steps
On 20 December 2023, the Parliament and the Council (under the Spanish Presidency) reached a provisional agreement on the Pact. On 8 February 2024, EU Member States’ representatives in the Council (Coreper) approved the provisional agreement.
On 27 March 2024, the Irish Minister for Justice, Helen McEntee, secured government approval for Ireland to opt into the Pact.
The five legislative files making up the Pact were formally adopted by the European Parliament in Brussels on 10 April 2024. The Pact will now have to be formally adopted by the Council (under the Belgian Presidency). It is expected that the reform will be finalised before the 2024 European elections, as previously agreed by co-legislators.
As soon as it is adopted, a new phase of work will begin, focusing on the operationalisation and implementation of the Pact. In this context, a ministerial conference on the operationalisation of the Pact will be held on 28-30 April 2024.
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