The Flag of the European Union

Fortifying ‘Fortress Europe’: The EU’s new Pact on Migration and Asylum

by

Summary

By the end of 2023 alone, Europe had an influx of 292,985 migrants, 4114 of these were reported missing or dead (IOM, 2023). The President of the European Commission, Ursula von der Leyen (2024) considers migration to be a “challenge” (para.2) for the European Union (EU). 

A new Pact on Migration and Asylum has been compiled by the EU, but this has received criticism from civil society groups such as Amnesty International (2024) who have heralded that such reforms will see migrants having their rights denied due to reforms which deflect responsibility and focus more on border control.

Introduction

On April 10th 2024, the European Parliament voted in The Pact on Migration and Asylum, which the European Commission (2024a) relays to be “a set of new rules managing migration and establishing a common asylum system at EU level” which upholds European morals.

The Pact, which was formally adopted in The Council of the European Union on 14th May 2024, has been described by President von der Leyen (para.2, 2024) as “effective, and both fair and firm”.

However, since the Political Agreement on the Pact was reached in December 2023, a number of Non-Governmental Organisations (NGOs) have spoken out about the terrible implications this political decision could have on those seeking the right to asylum and international protection (Bouvier 2023, 2024; Save the Children, 2023; Amnesty International, 2024).

This policy brief is aimed at understanding whether the Pact is “the right balance between stricter rules against the abuse of the system and care for the most vulnerable” (para.2, von der Leyen, 2024) or if the EU’s main focus is the strengthen its borders at the risk of violating asylum seekers’ right to international protection.

The treacherous journey endured by asylum seekers who cross through the Central Mediterranean Route will be used to give context throughout the brief. The route refers to the odyssey endured from North African countries – namely Algeria, Egypt, Libya, and Tunisia – to Italy or Malta, both Southern EU Member States.

23,523 people have either gone missing or died from 2014 to 2024 (Missing Migrants Project, 2024) when embarking on this voyage.

Malta Grand Harbour

A European Union?

It has been long established by the Dublin Regulation that the country of first-entry into EU borders is responsible for the asylum applicants and their applications (Hierro et al., 2023).

This naturally places an asymmetric geographical burden on the southern EU states which are under pressure to accommodate for new entries who may be deemed to pose a national security threat and stir political far-right anti-immigration sentiments (Hierro et al., 2023).

The newly adopted Pact has been hailed by the European Commission (2024a) as a tool through which the burden of first-entry States could be resolved through the four pillars which support the Pact.

Due to inter-state disputes that have occurred regarding the responsibility for irregular migration, the ‘Effective system of solidarity and responsibility’ can be considered to be the most overriding pillar within the new Pact (De Bruckyer, 2022).

Whilst there is a degree of plasticity into how countries show their solidarity and relieve some pressure from first-entry States, the Permanent Solidarity Framework obliges Member States to pull their weight by either offering resettlement of applicants and beneficiaries,  financial contributions or processing asylum claims (European Commission, 2024a). 

The need for such an amount of flexibility, however, highlights a challenge within itself as it has been well documented that many member states are reluctant to take on the challenges imposed by the right to international protection (European Court of Auditors, 2023; HRW, 2024).

Front-liner States have also been accused of ‘pushbacks’ in pursuit of evading the responsibilities bestowed on them via international law (Creta et al., 2023; Levinson, 2024). Furthermore, the option of financial contributions gives EU Member States a way out from the burden of a significant involvement in the asylum process (De Bruckyer, 2022; Hierro et al., 2023; European Court of Auditors, 2023).

These arbitrary guidelines signal a sentiment of ostracism amongst an increasingly anti-immigration political climate in Europe (Said et Branislav, 2023; Gosling, 2023), whilst the EU continues to declare the right to asylum as an EU Fundamental Right (European Parliament, 2024).

In addition to the above, the Pact has given the green-light for States to employ the “legal fiction of non-entry”.

This condition enables EU Member States to declare that those seeking asylum, whilst having disembarked and crossed a physical EU Border, have not legally entered the State, and therefore the European Union (Rondine, 2023;Euro-Med Human Rights Monitor, 2024).

As the European Council on Refugees and Exiles elaborated, certain States have been using this legal fiction at their borders (even though it usually used in transit zones) to place irregular migrants in a lacuna during the application process, thus allowing States to deflect formal responsibilities and enabling human rights violations by physically binding those seeking refuge, and possibly restricting them from their basic needs (Soderstrom, 2022; Euro-Med Human Rights Monitor, 2024).

The Pact does set timelines for obligations by States hosting asylum seekers as seen in the Reception Conditions Directive and Asylum Procedure Regulation, however these have been criticized as ushering in a dark time for ‘Fortress Europe’ (Tsimitakis, 2024).

The European Commission

Security at all costs

In this section, the balance between humanitarian discourse and that of control over borders is highlighted.

One of the foregrounding elements supporting the EU’s plan to secure external borders is a rigorous screening procedure which has been scrutinised by several civil society groups (Schmitz, 2023; Caritas, 2024).

The anticipated duration of the screening process is three to five days, with the possibility of an additional five days in so-called ‘crisis’ scenarios.

Within this short time-frame, a comprehensive “checklist including identification, registration, ‘security checks’, as well as a health and vulnerability assessment” (p.1) must be completed (Schmitz, 2023).

With a large amount of cases requiring these risk assessments, over-crowding at screening centres, and rushed, inaccurate screenings become more probable effecting those most vulnerable (Save the Children, 2023; Caritas, 2024).

The European Commission (2024a) revealed that data and information gathered during such screenings will be stored in the Eurodac Asylum and Migration Database for five or ten years depending on the type of data that would be added.

The system, which will be collecting biometric data and identification documents from children aged six onwards, is envisioned to record any secondary movements, arrests, or information needed for family unification (European Commission, 2024a).

The pillar for ‘Fast and Efficient Procedures’ focuses on an well-organised system for return migration to happen in a swift manners so as to, according to the European Commission (2024b), hinder the possibility of any denied applicants attempting run away or cross another border.

This operation requires co-ordination with the third-country of return and Frontex (European Commission, 2024b).

Frontex is the European Border and Coast Guard Agency, a uniformed law enforcement, tasked to patrol the EU’s external borders, combat cross-border abuses, and share migratory intelligence between Non-EU and EU Member States (Frontex, 2024).

Unfortunately, the Agency has come under scrutiny over the last years for its ‘pull-back’ and ‘push-back’ operations which were allegedly co-ordinated with the EU-funded Libyan Coast Guard, placing the life of hundreds in peril (Barnes, 2022; HRW, 2022; MSF, 2024).

Interestingly, the EU has put the Crisis Regulation in place to fight instrumentalization which is an act committed by a third country to destabilise the European Union (European Commission, 2024b).

This allows EU Member States to tighten their borders in case of threats which, as Sundberg Diez (2023) contends, would result in a limited access to asylum.  Despite this safeguard, the EU is working creating more global partnerships to manage the migration challenge.

Satellite image Mediterranean Sea

Far-reaching measures

The fourth pillar in the newly adopted Pact is grounded in creating and strengthening international partnerships to prevent irregular departures by collaborating to promote legal pathways and co-operation on re-admission.

The prevention of irregular departures is based on information sharing with priority countries, a campaign based on creating fear of the dangers of making the arduous journey, and the involvement of Frontex (European Commission, 2024b).

As previously indicated, the EU already has ties with Libya in which funding is provided in a Bilateral Agreement which tasks Libyan Authorities with managing their borders to prevent irregular migration (European Commission, 2024c).

The European Union currently has a comprehensive deal based on inhibiting migration flows with two countries in the Central Mediterranean Route – Tunisia, which received a fund of EUR 150 million (European Commission, 2023) and Egypt, which received a fund of EUR 7.4 billion.

Both of these deals have been criticised as ignoring fundamental human rights and abuses as these do nothing to solve the root causes of displacement, irregular migration, thus not solving any problems but denying the vulnerable from their right to proception and right to be free from torture (Barnes, 2022; Giuffré et al., 2022; Werr, 2024).

Apart from comprehensive deals, the EU also engages in Readmission Agreements with a number of non-EU States in which return should be done in a more efficient and conscientious manner (European Commission, 2024d).

However, as examined by Osso (2023), such practices are more of a legal loophole to international law, and thus a border-control mechanism, than anything else.

Conclusion

The EU’s Pact on Migration and Asylum has failed to meet the mark when it comes to upholding the right to international protection for those seeking asylum.

Rather than creating safer conditions and implementing procedures which could slow down displacement, the EU has heightened its walls and thickened its borders.

An implementation roadmap for the Pact has been planned with the Pact’s objectives to fully come into effect on June 12, 2026 (Directorate-General for Migration and Home Affairs, 2024).

Reference List

Amnesty International, 2024. EU: Migration and Asylum Pact reforms will put people at heightened risk of human rights violations Migration and Asylum Pact reforms will put people at heightened risk of human rights violations [Online]. Amnesty International. Available from: https://www.amnesty.org/en/latest/news/2024/04/eu-migration-asylum-pact-put-people-at-risk-human-rights-violations/ [Accessed 16 June 2024].

Barnes, J., 2022. Torturous journeys: Cruelty, international law, and pushbacks and pullbacks over the Mediterranean Sea. Review of International Studies [Online], 48(3), pp.441–460. Available from: https://doi.org/10.1017/S0260210522000110.

Bouvier, C., 2023. Over 50 NGOs pen eleventh-hour open letter to EU on human rights risks in Migration Pact [Online]. PICUM. Available from: https://picum.org/blog/open-letter-eu-human-rights-risks-migration-pact/ [Accessed 16 June 2024].

Bouvier, C., 2024. More than 160 Civil Society Organisations call on MEPs to vote down harmful EU Migration Pact [Online]. PICUM. Available from: https://picum.org/blog/81-civil-society-organisations-call-on-meps-to-vote-down-harmful-eu-migration-pact/ [Accessed 16 June 2024].

Caritas, 2024. What’s wrong with the EU’s Pact on Migration? [Online]. Caritas. Available from: https://www.caritas.org/2024/04/whats-wrong-with-the-eus-pact-on-migration/ [Accessed 17 June 2024].

Creta, S., Malichudis, S., Sapoch, J., Bulman, M., van Dijken, K., Horlacher, M., Zellweger, C., Hull, J., Seemann, L., Regis, J., 2023. Detained below deck [Online]. Lighthouse Reports. Available from: https://www.lighthousereports.com/investigation/detained-below-deck/ [Accessed 17 June 2024].

De Bruycker, P., 2022. The New Pact on Migration and Asylum: What it is Not and What it Could Have Been. Reforming the Common European Asylum System: Opportunities, Pitfalls, and Downsides of the Commission Proposals for a New Pact on Migration and Asylum [Online], 38. 1st ed. Schriften Zum Migrationsrecht. Germany: Nomos Verlagsgesellschaft mbH & Co. KG, pp.33–42. Available from: https://www.nomos-elibrary.de/10.5771/9783748931164-33/the-new-pact-on-migration-and-asylum-what-it-is-not-and-what-it-could-have-been?page=1 [Accessed 15 June 2024].

Directorate-General for Migration and Home Affairs, 2024. Common Implementation Plan to turn the Pact on Migration and Asylum into a reality [Online]. European Commission. Available from: https://home-affairs.ec.europa.eu/news/common-implementation-plan-turn-pact-migration-and-asylum-reality-2024-06-12_en [Accessed 17 June 2024].

Euro-Med Human Rights Monitor, 2024. Fortress Europe’s migration pact: A blow to human rights, international protections [Online]. Euro-Med Human Rights Monitor. Available from: https://euromedmonitor.org/en/article/6310/Fortress-Europe%E2%80%99s-migration-pact:-A-blow-to-human-rights,-international-protections [Accessed 17 June 2024].

European Commission, 2023. The European Union and Tunisia come to an agreement on a EUR 150 million programme [Press corner], 20 December. Available from: https://ec.europa.eu/commission/presscorner/home/en [Accessed 17 June 2024].

European Commission, 2024d. A humane and effective return and readmission policy [Online]. European Commission. Available from: https://homeaffairs.ec.europa.eu/policies/migration-and-asylum/irregular-migration-and-return/humane-and-effective-return-and-readmission-policy_en [Accessed 17 June 2024].

European Commission, 2024c. Libya [Online]. European Commission. Available from: https://neighbourhood-enlargement.ec.europa.eu/european-neighbourhood-policy/countries-region/libya_en [Accessed 17 June 2024].

European Commission, 2024b. Legislative files in a nutshell [Online].European Commission. Available from: https://home-affairs.ec.europa.eu/policies/migration-and-asylum/pact-migration-and-asylum/legislative-files-nutshell_en [Accessed 17 June 2024].

European Commission, 2024a. Pact on Migration and Asylum [Online]. European Commission. Available from: https://home-affairs.ec.europa.eu/policies/migration-and-asylum/pact-migration-and-asylum_en [Accessed 15 June 2024].

European Court of Auditors, 2023. Solidarity under EU asylum policy with the New Pact on Migration and Asylum: Deal or Grail? Medium [Online]. Available from: https://euauditors.medium.com/solidarity-under-eu-asylum-policy-with-the-new-pact-on-migration-and-asylum-deal-or-grail-b5c61a712ff9 [Accessed 17 June 2024].

European Parliament, 2024. Guaranteeing the right to asylum [Online]. European Parliament. Available from: https://www.europarl.europa.eu/about-parliament/en/democracy-and-human-rights/fundamental-rights-in-the-eu/guaranteeing-the-right-to-asylum [Accessed 15 June 2024].

Frontex, 2024. Tasks & Mission [Online]. Frontex. Available from: https://www.frontex.europa.eu/about-frontex/who-we-are/tasks-mission/ [Accessed 17 June 2024].

Giuffré, M., Denaro, C. and Raach, F., 2022. On ‘Safety’ and EU Externalization of Borders: Questioning the Role of Tunisia as a “Safe Country of Origin” and a “Safe Third Country”. European Journal of Migration and Law [Online], 24(4), pp.570–599. Available from: https://doi.org/10.1163/15718166-12340141.

Gosling, T., 2023. Nationalist, populist, far-right parties eye rising support across Europe [Online]. Al Jazeera. Available from: https://www.aljazeera.com/features/2023/9/20/nationalist-populist-far-right-parties-eye-rising-support-across-europe [Accessed 17 June 2024].

Hierro, M., Maza, A. and Villaverde, J., 2023. Asylum burden-sharing within the EU revisited: are we moving on the right track?, Journal of Economic Policy Reform [Online], 26(2), pp.126–144. Available from: https://doi.org/10.1080/17487870.2021.1983432.

HRW, 2022. EU: Frontex Complicit in Abuse in Libya [Online]. Human Rights Watch. Available from: https://www.hrw.org/news/2022/12/12/eu-frontex-complicit-abuse-libya [Accessed 17 June 2024].

HRW, 2024. EU: Falling Short of Protecting Those Most in Need [Online]. Human Rights Watch. Available from: https://www.hrw.org/news/2024/01/11/eu-falling-short-protecting-those-most-need [Accessed 17 June 2024].

IOM, 2023. Migration Flow to Europe [Online].  International Organization for Migration – Displacement Tracking Index. Available from: https://dtm.iom.int/europe/arrivals [Accessed 17 June 2024].

Levinson, R., 2024. Migrant’s drowning in Mediterranean prompts criticism of Malta’s rescue policies [Online]. Reuters. Available from: https://www.reuters.com/world/europe/migrants-drowning-mediterranean-prompts-criticism-maltas-rescue-policies-2023-10-17/ [Accessed 17 June 2024].

Missing Migrants Project (2022) Mediterranean [Online]. Missing Migrants Project. Available from: https://missingmigrants.iom.int/region/mediterranean [Accessed 16 June 2024].

MSF, 2024. EU-sponsored shameful abuses in the central Mediterranean must end. [Online] Médecins Sans Frontières. Available from: https://www.msf.org/eu-sponsored-shameful-abuses-central-mediterranean-must-end [Accessed 17 June 2024].

Osso, B.N., 2023. Unpacking the Safe Third Country Concept in the European Union: B/orders, Legal Spaces, and Asylum in the Shadow of Externalization. International Journal of Refugee Law [Online]. Available from: https://doi.org/10.1093/ijrl/eead028.

Rondine, F., 2023. Between physical and legal borders: the fiction of non-entry and its impact on fundamental rights of migrants at the borders between EU law and the ECHR. [Online].Université Catholique de Louvain. Available from: https://uclouvain.be/fr/instituts-recherche/juri/cedie/actualites/rondineaout2022.html [Accessed 17 June 2024].

Save the Children, 2023. Historically Bad: New EU Pact on Migration and Asylum Normalises Rights Violations and Endangers Children [Online]. Save the Children. Available from: https://www.savethechildren.net/news/historically-bad-new-eu-pact-migration-and-asylum-normalises-rights-violations-and-endangers.

Schmitz, C., 2023. Joint Policy Paper: The EU Screening Regulation [Online]. I Have Rights. Available from: https://ihaverights.eu/joint-policy-paper-the-eu-screening-regulation/ [Accessed 17 June 2024].

Soderstrom, K., 2022. An Analysis of the Fiction of Non-Entry as appears in the Screening Regulation [Online]. European Council on Refugees and Exiles. Available from: https://ecre.org/wp-content/uploads/2022/09/ECRE-Commentary-Fiction-of-Non-Entry-September-2022.pdf.

Sundberg Diez, O., 2023. EU Crisis Regulation: Securing reforms or constructing a crisis? [Online]. European Policy Centre. Available from: https://www.epc.eu/en/Publications/EU-Crisis-Regulation-Securing-reforms-or-constructing-a-crisis~55cae4 [Accessed 17 June 2024].

Tsimitakis, M., 2024. The EU’s migration policies and the end of human rights in Europe [Online]. Al Jazeera.  Available from: https://www.aljazeera.com/opinions/2024/2/12/the-eus-migration-policies-and-the-end-of-human-rights-in-europe [Accessed 17 June 2024].

von der Leyen, U. 2024. Statement by President von der Leyen at the joint press conference with President Metsola and Belgian Prime Minister De Croo on the adoption of the Pact on Migration and Asylum [Online]. European Commission. Available from: https://ec.europa.eu/commission/presscorner/detail/en/statement_24_1953 [Accessed 16 June 2024].

Werr, P., 2024. EU pledges billions of euros for Egypt as it seeks to curb migration [Online]. Reuters. Available from: https://www.reuters.com/world/eu-bolster-egypt-ties-with-billions-funding-2024-03-17/ [Accessed 17 June 2024].