Introduction
On 23 September 2020, the Commission released its New Pact on Migration and Asylum (see Communication from the Commission COM(2020) 609). Through the New Pact, the Commission aims at establishing a long-lasting, flexible and effective migration system that would divide the responsibilities fairly between the Member States and increase the Member States and citizens’ trust in the migration process. It tries to tackle the problems that have been more or less apparent since the influx of refugees at the external borders of the Union in 2015, including measures to prevent illegal immigration and migrant-smuggling (see p. 2).
A struggle for a solution
Since 2015, a new migration system has been under discussion (see related posts on this blog). However, the Member States’ colliding views on migration have complicated the process towards functioning measures (see, for example, a Special issue of the Journal of Ethnic and Migration Studies of this year) discussing the differences in public opinion towards migration in Europe).
In the past, the measures agreed by the Member States have not been applied without obstacles. To ease the pressure on migration systems of Greece and Italy, the Council established a temporary relocation mechanism of refugees (Decisions (EU) 2015/1523 and (EU) 2015/1601). The mechanism got challenged the same year by Slovakia and Hungary (Joined cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union). The Member States argued, for instance, that the relocation mechanism was not proportional or necessary (paras. 225 ff. and 262 ff.). The Court dismissed the actions. Still, it did not prevent further difficulties. In 2017, the Commission started infringement proceedings against Hungary, Poland and the Czech Republic for not having fulfilled their obligations relating to the Decisions. (Joined cases C-715/17, C-718-17, and C-719/17 Commission v Poland, Hungary and the Czech Republic, previously commented on this blog).
Even today, there are at least three different cases between the Commission and Hungary pending before the ECJ that directly involve immigration or asylum, showing that the differences in the opinions have not vanished (Case C-821/19, Case C-761/19, Case C-808/18).
New measures
In the New Pact, the Commission suggests unifying asylum requirements and more functional administrative systems, thus making the communication between the Member States easier. It wants to strengthen the border control through identity, health and security checks while making entry to the Union easier for those in need of protection. A part of the new plan is to involve third countries in the mechanism, including addressing the original reasons for migration. (Section 1, p. 2 of the Communication)
The Commission maintains the requirement of solidarity and shared responsibility between the Member States as its focus. Instead of enforcing the mandatory relocation quotas, it introduces alternative ways to contribute, acknowledging the different challenges of the Member States. Until now, the focus has been on the relocation system, in which a Member State receives a person in need of protection from the country of entry. According to the Commission’s New Pact, the Member States would be able to participate through return sponsorship, in which a Member State takes the responsibility of returning those asylum seekers that do not qualify for international protection. While relocation would remain as one of the primary forms of solidarity, the Member States could freely define the extent of the relocation measures and additionally show more solidarity through alternative measures. (Section 2, p. 5 of the Communication). The New Pact further enables additional support in alternative ways, such as providing operational assistance or expertise (Section 2.2, pp. 5-6 of the Communication).
The Commission wants to further prevent unauthorised movement between the Member States by giving the refugees ‘an incentive to remain in the Member State, that granted international protection’. The objective is to avoid responsibility-shifting from a Member State to another and to ease integration into local communities (p. 6).
Conclusion
The Commission’s attempt to strengthen the cooperation between the divergent Member States is evident from its continuous solidarity-focused language. With the New Pact, the Commission provides tools for participation even to those Member States that are more hesitant to receive refugees into their territory.
The Commission further appears to be affected by the Member States’ criticism. For example, the Czech Republic argued that it preferred to support through measures directed towards third countries instead of relocating refugees (Commission v Poland, Hungary, and the Czech Republic, paras. 173-176). Even the suggested procedures at the border that would identify applicants in a unified manner responds directly to the Member States’ concerns related to the confirmation of identities. (paras. 133-136).
Keeping in mind the past issues concerning the migration systems, it is not surprising that criticism towards the New Pact has already risen among the Member States. Hungary and the Czech Republic have expressed their opposing opinions, commenting that the optimal solution would be to protect the external borders and keeping the applicants outside of Europe (see Euronews and DW, 24 September 2020). Therefore, the question remains whether the Commission’s actions to improve solidarity are enough to unify regardless of the differences.
Minna Koskela
EU Law | Örebro universitet 