ERA Summer Course on EU Asylum and Immigration Law

The New Pact on Asylum and Migration,

Responsibility & Solidarity

Francesco Maiani, University of Lausanne

samedi 22 juin 2024

 Plan of the presentation

• The New Pact

– Background: the CEAS and its crisis
– The New Pact in outline: building blocks and key ideas
• Responsibility & Solidarity in the New Pact
– The Asylum and Migration Management Regulation: intro
– Responsibility: “Dublin IV” and the innovations of the Pact
– Solidarity: governance and the new mechanism
• Concluding thoughts

2 ERA Summer Course samedi 22 juin 2024

 Background: the CEAS and its crisis (1)

• The CEAS as “system of systems” (≠ federal)

– Key element: the MS provide/withhold protection
• Components and functions
– Orderly distribution of responsibilities (àtrust-based)
– Level playing field à harmonization/unification
– (Common area of protection à free movement)
– Support to Member States
• Goals & principles (including… unwritten)
– Protect those in need/guarantee non-refoulement & HRs
– Solidarity and fair sharing of responsibility
– Rationalize/prevent secondary movement (àSchengen)
– (Ensure free movement/enhance integration prospects)
3 ERA Summer Course samedi 22 juin 2024
 Background: the CEAS and its crisis (2)
Dublin inefficient, secondary mov.
circumvention by applicants/MS
• Key functions
i o n
– Orderly distribution of responsibilities s , t
i t ie alua
• Underlying operational principle: trust p a r de v
d is v e
– Level playing field
i de e t i t i
w p
– (Common area of protection) m
co
– Support Member States
– Fair sharing of responsibilities
not on agenda
- Stem the flows
b a l a n c es
s t r i b u t i ve i m
v a st d i e a s u res
In for overhaul already after ‘13 recast! i t y of E U m
n t e r e st s
p a u c n s /i
• 2016 proposals … deadlock n t p e r c e ptio
d i ve r g e
• Proposed “New Pact” in 2020 d e f i a nce
ope n
4 ERA Summer Course samedi 22 juin 2024
 The “New Pact on Migration and Asylum” (1)
• Presented on 23.9.2020 after months of intensive
consultations and multiple delays
• Main messages: a “fresh start”
– “There is currently no effective solidarity mechanism in
place, and no efficient rule on responsibility” (!)
– “Abolish the Dublin Regulation” + “new forms of solidarity”
• Catchphrase: balancing responsibility and solidarity
– ”Return to Schengen”: strong external borders, efficient
returns, and the fight against secondary movements
• Worrying developments during negotiations
– Ascent of pushback practices, ”Instrumentalisation crisis”…

5 ERA Summer Course samedi 22 juin 2024

 The “New Pact on Migration and Asylum” (2)
• 9 main texts adopted 14.5.24, published 22.5.24
– Reception Conditions Directive (RCD, 2024/1346)
– Qualification Regulation (QR, 2024/1347)
– Procedures Regulation (PR, 2024/1348)
– Return Border Procedure Regulation (2024/1349)
– Resettlement Framework Regulation (2024/1350)
– Asylum and Migration Management Regulation
(AMMR 2024/1351)
– Screening Regulation (SR, 2024/1356)
– EURODAC Regulation (ER, 2024/1358)
– Crisis and Force Majeure Regulation (2024/1359)
• Applicable since 12.6 or 1.7 2026
– With exceptions (e.g. Resettlement framework: June 24)

6 ERA Summer Course samedi 22 juin 2024

 The “New Pact on Migration and Asylum” (3)
• Key policy ideas
– Strengthened external borders / externalisation, e.g.
• New screening procedure
• Special border return procedure
• Relaxed conditions for safe third country removals (à Turkey)
– Strengthened harmonization (?)
• From directives to regulations (save for reception conditions)
• Here and there, a reduction of existing options (e.g. suspensive
effect of appeals against Dublin transfers)
– Strengthened fight against secondary movements, e.g.
• New rules on place of first application, emphasis on “no choice”
• “Consequences” for “moving” applicants and beneficiaries
– Strengthened solidarity à new solidarity mechanism

7 ERA Summer Course samedi 22 juin 2024

 The AMMR: general aspects

• General preambular statements

– A “comprehensive approach” to strengthen the “mutual
trust” of Member States (rec 2)
– Introducing “mandatory” but “flexible” solidarity (rec 22)
– Responsibility rules that “build on” the Dublin III Regulation
while “addressing the challenges identified” (rec 40)
• Structure of the AMMR
– PT1: Subject Matter and Definitions
– PT2: Common Framework for Asylum and Migration
Management
– PT3: Criteria and Mechanisms (“Dublin IV”)
– PT4: Solidarity (close link with PT2)
– PT5-7: General and Final Provisions (application: 1.7.26)
8 ERA Summer Course samedi 22 juin 2024
 Responsibility: “We can Dublin again”

Reports of my death have been

greatly exaggerated (M. Twain)
• Art. 16-55 AMMR: new name, same (Dublin) system
– Same core principles: one chance, no choice (16(1) AMMR)
• If anything: stronger emphasis on “no choice” (19(1)(c) AMMR)
– Same outline of the criteria, same clauses, same rules
– Same outline of the procedure: take charge and take back
• Some important changes, none fundamental
– Scope of application
– Anti-secondary movement rules
– “Streamlined” procedures
– Touched-up criteria
9 ERA Summer Course samedi 22 juin 2024
 The revised Dublin rules: scope of application

• Unaltered territorial scope

– Dublin procedures applicable to applications made in the
territory of the MS “including at border or in transit zones”
• Ireland, Denmark, EFTA States will have to decide to opt in
• For DK and EFTA States, the alternative is dropping out
• What of applicants under screening (9 SR)? Right to “register”
application after screening, and trigger Dublin

• Expanded personal scope (36(1) AMMR)

– Applicants and failed protection seekers, as before
– New: beneficiaries of protection subject to take back
• Both “ordinary” (36(1)(b)) and resettled (36(1)(c))
• Further “sanction” in case of secondary movement: resetting
the waiting time for long term status to zero (40 QR)

10 ERA Summer Course samedi 22 juin 2024

 The revised Dublin rules: duties and penalties
• Duty to apply in the first State entered… (17(1))
– Exception for the rare applicants with visas or residence
documents (17(2))
• … and be present in the “right” State (17(4))
• Sanctions if this last obligation is violated
– Withdrawal of reception conditions ≈ “hostile
environment policy” (18)
• As from notification of transfer decision, and subject to
• Standard of living in conformity with the Charter
• Inapplicability to victims of trafficking
• Consideration of individual circumstances and proportionality
– In some cases, application is considered withdrawn and no
longer examined on take back (39 and 41(1)(f) PR)

11 ERA Summer Course samedi 22 juin 2024

 The revised Dublin rules: “streamlined”
procedures (1)
• A number of “efficiency-driven” touch-ups
– Shorter deadlines across the board
• E.g. take charge request within 2 months instead of 3
• But: if a MS fails to send a TKB request in time, no shift in
responsibility
• But: In case of absconding, the transfer deadline is extended
by 3 years (instead of 18 months currently)
– From TKB “requests” to “notifications” (41 AMMR)
• More of a formal change: the “notified” MS may still raise the
same objections as now to a transfer, i.e. cessation
• Rather: cessation rules are stricter (e.g. 37(4) AMMR)

12 ERA Summer Course samedi 22 juin 2024

 The revised Dublin rules: “streamlined”
procedures (2)
• Problematic revision of procedural guarantees
– Some expanded guarantees…
• Expanded right to information (19 AMMR)
• Legal counselling at first instance already (21 AMMR)
– … but drastic reduction of appeal rights (43 AMMR)
• Grounds of appeal: risk of inhuman or degrading treatment,
decisive “subsequent circumstances” (?), bad application of
family criteria
• Illegal: Art. 13 ECHR requires an effective remedy for any
alleged violation of fundamental rights; Art. 52(3) Charter
requires that EU Law and institutions respect that minimum
• Even assuming HR-compliant interpretation, no longer possible
to appeal for e.g. violation of deadlines or of other criteria
• So… legal aid from first instance: sugar-coating?

13 ERA Summer Course samedi 22 juin 2024

 Retouched hierarchy of criteria
• A sprinkling of “meaningful link” criteria
– Slight extension of the family definition and criteria
• Families formed in transit now included (2(8) AMMR)
• Expansion of relevant status of family members (26 AMMR)
– A new “real link” criterion: diplomas (30 AMMR)
• Again, emphasis on fighting secondary movements
– Irregular entry extended (33 AMMR): it determines
responsibility if application within 20 months, including SAR
– Special rules for “security cases”: pre-screening and
exclusion from take charge (16(4) AMMR)
– UMAs now subjected to take charge other than for family
reasons (25(5) AMMR)
• ”Systemic flaws” notion erased: 16(3) AMMR
14 ERA Summer Course samedi 22 juin 2024
 The Framework: “comprehensive approach”
• Successor to the 2013 “mechanism for early
warning, preparedness and crisis management”
• Art. 3-6 AMMR: restatement of existing principles
– Partly a book of dreams (e.g. 5(d) AMMR)
– Partly a reminder of existing principles: compliance with
fundamental rights, loyal cooperation…
– Overall, extremely little legal added value
• One possible exception: enforceable “principle of solidarity and
fair sharing” (6(1) AMMR)?

• Art. 7-8: national and EU “strategies”

– Added value remains, again, to be seen

15 ERA Summer Course samedi 22 juin 2024

 The Framework: “management cycle” (1)
• 15 October – COM stocktaking and initiative
– European Annual Asylum and Migration Report (9)
– Implementing Decision determining MS under pressure (11)
• Can be adapted based on MS notifications during the year (59)
– Proposal for Council decision establishing Annual Solidarity
Pool (ASP) (12)
• A “weak” proposal: “indicative” contributions of the MS, and
can be amended by CNS by qualified majority (57(1))

• End of October – Pledging exercise

– High-Level EU Solidarity Forum (MS + Council presidency)
– “Comes to a conclusion” on contributions based on pledges
• If insufficient, Council may reconvene

16 ERA Summer Course samedi 22 juin 2024

 The Framework: “management cycle” (2)
• By year’s end – Annual Solidarity Pool (56-57)
– Council Decision by qualified majority
– Includes relocation, financial contributions, “alternative”,
established “in accordance” with pledging exercise
• Full discretion of MS as to quantum(?) + type of contributions
• There has to be “equal value”: 1 relocation = 20.000€
• Value of other contribution determined by pledging MS, but
benefitting State may opt for financial instead (57(4))

• Implementation
– Technical-Level Forum (under COM coordinator)
– On request of benefitting MS, complex system of deductions
• NB: Dublin conditionality (60(3) in fine)
• NB: “offsets” as fall-back vis-à-vis reluctant MS (63(3) and (5))

17 ERA Summer Course samedi 22 juin 2024

 Relocations (1)
• Eligibility and exclusions
– Applicants and beneficiaries of protection
– Identification by the benefitting MS assisted by EUAA
• Beneficiaries must consent, as required by Geneva Convention
– Exclusions
• Persons constituting a threat to internal security (67(2))
• Applicants for whom the benefitting State is responsible under
the family criteria (67(5))
– NB: this presupposes that a first Dublin assessment is made

• Choice of State of relocation

– Up to the benefitting State (67(3))
• “Take into account” any meaningful links to another MS
• Explicit “no choice” caveat
• Family members to be kept together (67(6))
18 ERA Summer Course samedi 22 juin 2024
 Relocations (2)
• Procedure
– “Take charge” akin to Dublin transfers (67(7) ff)
• In particular: tacit acceptance after short response periods
– Only ground of refusal: threat to internal security
– Upon transfer: if full Dublin procedure not carried out
already, “mini-Dublin procedure” based only on few criteria
• Not: first application, entry, documentation, diplomas
– If the applicant was the responsibility of benefitting State:
direct transfer of responsibility

19 ERA Summer Course samedi 22 juin 2024

 Concluding thoughts

• Were AMMR deliberations driven by evidence?

– Distributing persons against their will has a high human,
financial, administrative costs, and is inherently inefficient
• Strong factors: absence of a (reasonably) level playing field
and consideration for the real links between MS and applicants
• Freezing beneficiaries in place makes an unwanted initial
allocation even less acceptable
• UKR Temporary Protection: if you don’t work against them,
family/social networks can actually help
– Absent reliable and comprehensive “fair sharing insurance”,
cooperation between MS/loyalty are unattainable
• Is “sharing people” forcibly a large-scale option?
• Does the Mechanism entail sufficient predictability?

20 ERA Summer Course samedi 22 juin 2024

 Concluding thoughts
• An alternative list of priorities (Pact-compatible)
– Ensuring compliance with existing EU asylum standards
across the board
– Unlocking the debate on the free movement of beneficiaries
• There are mere traces of this in the new proposals
– Truly favoring (voluntary) “real link” transfers
• Much smaller costs (incl in time), much greater efficiency
– Ramping up financial and operational solidarity: a new scale
• Concept of “fiscal equivalency”: for EU-sized issue should not
the EU budget take the costs, in the long run?
• Progressive centralization of services (e.g. translation) and
products (COI) for less costs and more consistency

21 ERA Summer Course samedi 22 juin 2024