New Pact Series: Focus on the New Pact on Migration and Asylum

This policy study assesses the new screening, border asylum processing and border return procedures following the recently adopted New Pact on Migration and Asylum reform. It examines possible legal
challenges and shortcomings, as well as proposing forward-looking reflections for proper implementation.

Screening, border asylum processing and border return procedures are part of the revamped procedural setup foreseen by the reformed Common European Asylum System (CEAS). They are meant to make up a new seamless process at the EU's external borders, streamlining and simplifying procedural arrangements. Creating a seamless border migration process is not inherently negative, especially in light of mixed migration flows and irregular arrivals. However, this policy study shows that challenges may arise due to short processing time and inadequate material conditions, among others. More broadly, efficiency may be prioritised over the quality of processing.

Implementing the new rules in a protection-oriented manner will be instrumental in realising the Pact's goals in compliance with the Member States' obligations under refugee and human rights law. To this end, the policy study raises points for further reflection that could feed the thinking of EU and national policymakers and administrators, international organisations, and civil society in carrying out and supporting implementation. The study points to several possible initiatives, including actions to ensure adequate financial support, guarantees in relation to deprivation of liberty and the protection of vulnerable applicants, as well as effective monitoring in the new system.

The newly adopted Crisis and Force Majeure Regulation sets in place a procedure for determining if a Member state faces an emergency and defines which response should be set into motion, including enhanced solidarity and derogations from the Asylum Procedures Regulation (APR).

Against this background, this policy study examines the added value and the challenges relating to the implementation of these measures. To this end, it explores key aspects of the crisis cycle, including the potential impact of the derogations, the authorising procedure, as well as the monitoring and coordination mechanisms to be used in an emergency. The study's overarching question is whether the EU will be better prepared for future crises after the adoption of the New Pact reforms. It highlights that the EU is potentially better off with a common framework, also considering the likelihood of volatile migration flows in the future.

Nevertheless, the study points to the ambiguities and grey areas in the Crisis and Force Majeure Regulation, underlining that the flexibility for facilitating EU responses could come at the cost of legal certainty. At the same time, the benefit of using the derogations remains unclear, while solutions to address the root causes of an emergency may lie outside the New Pact instruments or even migration policy. Considering this, the newly adopted rules do not suffice to future-proof EU crisis management.

To address possible challenges, the study includes forward-looking reflections, which underline the need to make exit strategies part of the crisis response from the start. It also recommends using all foreseen measures – not just derogations – that can lead to an effective response on the ground while minimising the risks of rights violations and negative spillover effects for the EU.

Following the adoption of the New Pact reforms, the external dimension of the EU's migration policy will become even more relevant. With prospects of internal responsibility-sharing among Member States
remaining uncertain, limiting irregular arrivals and facilitating returns are being presented as essential preconditions to avoid putting pressure on national migration, asylum and reception systems. From this
viewpoint, securing stable cooperation with third countries will be instrumental for the sustainability of the newly reformed Common European Asylum System (CEAS).

The policy study examines the external dimension of the recently adopted New Pact reforms, specifically the Asylum Procedures Regulation (APR) and the Asylum and Migration Management Regulation (AMMR). The APR includes reformed provisions on safe country clauses that aim to facilitate returns. As for the AMMR, the reform includes a solidarity mechanism to support Member States facing disproportionate responsibilities. Yet, the flexibility of this solidarity mechanism, combined with the overall systemic priority of limiting pressure on national reception systems, will likely translate into stronger incentives to use funding to contain irregular arrivals.

While the New Pact has manifold policy goals, the containment priorities pursued in the external dimension of the EU's migration policy may fail to reflect the interests of partner countries sufficiently. Instead of promoting more balanced cooperation at the international level, they could lead to further responsibility-shifting to third countries. At the same time, the reforms pay insufficient attention to fundamental rights. This could incentivise cooperation with countries with poor human rights records. Since the latter tend to be unstable and unreliable partners too, in terms of ensuring adequate protection standards and a genuine commitment to continued cooperation, the external dimension of migration policy might backfire on the EU's goal of achieving a more resilient and fairer CEAS. However, this could be prevented if strong complementary measures are taken prior to and during the reforms' implementation.

For a long time, the allocation of responsibilities over asylum seekers among EU member states has been a bone of contention in the functioning of the Common European Asylum System (CEAS). Unfair responsibility-allocation rules under the 'Dublin system' and lack of compliance have resulted in deteriorating trust among member states. As part of the New Pact on Migration and Asylum, the recently adopted Asylum and Migration Management Regulation (AMMR) seeks to remedy the dysfunctionality of this system. Yet, it preserves the criterion of the country of first entry.

At the same time, it also establishes a new mandatory but flexible solidarity mechanism. Under this new mechanism, member states will be obligated to provide contributions either in the form of relocations, financial contributions, or in-kind contributions. Despite this innovation, questions remain as to whether it will suffice to counterbalance the disproportionate responsibilities of member states at the EU's external borders. Therefore, the fundamental political choice of keeping the Dublin system largely intact requires an equally strong political and practical commitment to implementing solidarity. As such, the AMMR also introduces a new annual migration management cycle, defining concrete steps for determining member states under pressure and solidarity needs, based on a comprehensive approach and assessment of migration, reception and asylum capacity. This focus on management, with a heightened role for the European Commission, reflects the EU's desire to proactively anticipate and respond to migration flows.

As member states will continue to face migratory pressure in the future, the proper implementation of the solidarity mechanism and, more broadly, the good functioning of the CEAS will depend on this new management system, as well as on the development of adequate implementation plans. Against this background, this Policy Study focuses on the solidarity provisions under the AMMR. After highlighting the slow emergence of solidarity in EU asylum policy, the Study examines the operationalisation of the newly introduced solidarity mechanism as part of the new annual migration management cycle. It then unpacks the system for determining solidarity and the types of contributions states will be able to benefit from.