2. On creating legal pathways for asylum seekers
By having a very broad scope, the Pact does not make concrete suggestions with regard to safe pathways but, rather, leaves full discretion to Member States, that so far have only implemented ad-hoc measures related to visa such as human corridors (including in Italy) that cannot nearly be compared to structured alternatives to irregular migration.
The lack of concrete solutions to irregular flows of asylum seekers in the Pact comes as a surprise considering the EU and national debate has been going on for many years. However, the Commission was unlikely to provide an articulate input considering this topic has proven very controversial within Member States and no consensus has yet been built on approaches and initiatives.
3. On sharing responsability for asylum seekers
The Pact proposes new actions that are nevertheless not very innovative or effective. The Proposal for a regulation of the European Parliament and of the Council on asylum and migration management is a useful tool for identifying and discussing them.
Responsibility is addressed on two separate levels: the “criteria for determining the Member State responsible” for each asylum seekers reaching the EU and the “solidarity mechanisms”. Indeed, responsibility can be shared by identifying a responsible Member State other than the country of entry – in contrast with the “first safe country” criterion used in international law – but also by unburdening countries of entry through specific measures in case of high migratory pressure.
4. Sharing responsability – competence in asylum procedures
The Proposal features several criteria to determine which Member State is responsible for the asylum procedure. The general rule adopted is the “Member State of first entry”, in line with the Dublin Regulation and international law, but with some exceptions:
- Where the applicant is an unaccompanied minor who has a relative who is legally present in another Member State, that Member State shall be responsible for the asylum application (art. 15(2)(3)). In the absence of a family member or a relative, the Member State responsible shall be that where the unaccompanied minor’s application for international protection was first registered (not necessarily the Member state of first entry) (art. 15 (5)). If approved, this provision would be innovative as it would not only lift part of the burden from Member States of first entry but would also ensure a better protection of the best interest of the child, a principle codified in art. 3 of the United Nation Convention on the rights of the child. This could clearly have implications in terms of family reunion and the possibility to apply for international protection in a different country than the entry one, as unaccompanied minors can often easily identify the country that offers them the best chances.Regrettably, however, language skills or education are not given any relevance in the Proposal, despite their potential to facilitate the minor’s integration in a specific Member State.
- Where the applicant has a family member who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection (art. 15 and 16). This provision would also be innovative and could help moving beyond the “first safe country” doctrine featured in international law and the Dublin Regulation. Not only would this unburden Member States of first entry in terms of reception, it would also play in favor of asylum seekers as they would benefit from immediate family reunion.
- In the absence of the aforementioned conditions, where asylum seekers are in possession of a diploma or qualification issued by an education establishment established in a Member State, that Member State shall be responsible for examining the application for international protection (art. 20). While this criterion seems innovative and reasonable due to its relevance for integration outcomes, it is designed in such a stringent way that it might lead to unequal treatment. Indeed, only a few asylum seekers hold diplomas issued by EU Member States while many of them – especially Africans – hold diplomas from their country or region of origin issued in cooperation with a specific EU Member state – especially former colonial countries – that recognizes them when granting citizenship. Surprisingly, the Proposal does not properly acknowledge bilateral cooperation on education when identifying the responsible Member state, despite its role in facilitating integration.
5. Sharing responsability – solidarity mechanisms
The Proposal also mentions solidarity mechanisms aimed at sharing responsibility to help those Member States that, based on the competence criteria, are confronted with high number of asylum seekers in specific circumstances.
At the basis of these mechanisms is the so-called “assessment of migratory pressure” (art. 50) that should be run by the European Commission and should cover the situation in the Member State concerned during the preceding six months, compared to the overall situation in the Union. The assessment focuses on factors such as the number of applications received and the number of third-country nationals not fulfilling the conditions for entry, stay and residence. The assessment does not include people disembarked following search and rescue operations. Following the assessment, some solidarity mechanisms would be triggered to help the Member state under pressure, including (art. 45):
- Relocation of asylum seekers to other EU Member States
- Relocation of beneficiaries of international protection to other EU Member States
- Return sponsorship of illegally staying third-country nationals by other EU Member States
- Capacity-building measures in the field of asylum, reception and return
This scenario is clearly very distant from the automatic relocation based on quotas that Italy has long been advocating for. Under this mechanism, for instance, if the EU-Turkey deal came to an end and 10.000 asylum seekers reached Greece, 3.000 would be sent to Germany, 2.000 to France, 1.000 to Italy and so on.
Unless Member state are confronted with high numbers of disembarked people – an unlikely scenario for the moment – the solidarity mechanism would only be triggered after a relatively long time after the beginning of crises. For instance, if Italy was confronted with increasing flows in March 2021, it would meet the conditions for triggering the solidarity mechanisms only in August with the result that no concrete measure would start before Autumn.
In addition, since relocation of asylum seekers is just one of the instruments available, Member States could show solidarity through indirect support such as funds or capacity building. This would not only delay managing the crisis but would also give Member States great discretion, which would risk preventing the creation of a true, effective burden sharing mechanism.
6. Conclusive remarks
A few days after the launch of the long-awaited New Pact on Migration and Asylum, it feels that the European Commission has embarked on a proposal that has certainly some potential but seems unfit for enacting the kind of change that actors had advocated for in the past years in terms of sharing responsibility for the reception of asylum seekers at European level. As it was highlighted in this article, the Pact features some innovative elements, especially on specific aspects of asylum, but a clear gap still remains between needs – largely mentioned in the text – and sound forecasts. On the one hand the Pact lacks any positive action on how to create legal pathways for asylum seekers and its rhetoric against irregular migration risks creating policy vacuums and denying rights. On the other hand, responsibility sharing is addressed in a way too timid manner.
Time is a prime indicator of the limitation of this approach, as it is one of the major issues afflicting national reception systems. In times of significant migratory pressure, asylum seekers should somehow be distributed rapidly to avoid creating dramatic situations at local level and violating fundamental rights. How is it reasonable, then, to wait at least six months before proving any solution, leaving asylum seekers stuck in an emergency-stricken country?
The excessive discretion on solidarity given to Member States is also worrisome. From this point of view, the Pact does not seem to take stock of the past developments in terms of relocation agreements between countries – e.g. the Malta agreement that led to the relocation of over 500 asylum seekers.
No U-turn was proposed on the Dublin Regulation, despite the widespread idea that such system is not fit for purpose and that the EU should play a stronger role in fostering solidarity among Member States. What is more, this timid document is just a draft of the Pact and will likely be subject to Member States’ restrictive negotiations in the upcoming months.
The current policy framework turned out to be highly unstable, as proven by the dramatic situation in Greece, and did not collapse mainly thanks to Germany’s admission of Syrian asylum seekers in 2015, the goodwill of civil society in countries like Italy and the questionable deals between the EU and Turkey or between Italy and Libya.
In the wake of its launch, we wish that the Pact will be enriched with more decisive proposals to foster more effective solidarity between Member States and ensure a system for relocating asylum seekers that is fair and strives to put people in the best conditions for their integration.
by Ennio Codini and Marina D’Odorico 
 The article is a joint effort. However, paragraphs 1, 2 and 5 were drafted by Ennio Codini while paragraphs 3 and 4 were drafted by Marna D’Odorico.