Unpacking the most contested aspects of the EU’s new Migration and Asylum Pact

MEPs last week narrowly passed a migration agreement that’s been in the works for nearly a decade – and rarely has legislation sparked such a level of controversy and division. Here's a breakdown of the law's key provisions.
Refugees from Syria and Afghanistan reach the shores of the Greek island of Lesvos after crossing in rafts from Turkey in June 2015.

By Sarah Schug

Sarah is a staff writer for The Parliament with a focus on art, culture, and human rights.

17 Apr 2024

The European Parliament last week approved the EU’s new Migration and Asylum Pact  in a nail-biter vote interrupted by protestors who entered the plenary session chanting, “This pact kills – vote no!”   

Even after eight years of what MEP and rapporteur Juan Fernando López Aguilar (S&D) called “strenuous work,” it wasn’t clear until the last minute if the agreement reached after nightlong negotiations between the Council of the European Union and the Parliament back in December would go through.  

MEPs narrowly endorsed the deal, but as López Aguilar said: “Nobody can be happy.” And MEP and rapporteur Matjaž Nemec (S&D) called it “a bitter pill” to swallow.  Nevertheless, both are supporters of the legislation and like a majority of lawmakers – largely represented by members of the European People’s Party, Socialists & Democrats, and Renew Europe – found the pact more favourable than no deal at all.   

Still, many MEPs affiliated with the Greens and the Left groups voted against the agreement because they found it too punitive, while those on the far right said it didn’t go far enough to thwart migration. “It is a bow to right-wing extremists and fascists of Europe,” the Left said in a press release. Conversely, in a post on X following the parliamentary vote, Hungarian Prime Minister Viktor Orbán called the pact “another nail in the coffin of the European Union, adding: "Unity is dead, secure borders are no more.”  

Rarely has a legislative package sparked this level of controversy and division. Even among NGOs that are normally aligned, new divisions have formed. Amnesty International and Human Rights Watch staunchly denounced the pact, with Eve Geddie, Amnesty’s head of European institutions office, saying it “will lead to greater human suffering.” At the same time, 22 organisations, including the International Rescue Committee and Oxfam, signed a joint statement describing some aspects of the deal as “a glimmer of hope.”  

The hard-fought deal comes nearly a decade after a migration crisis that shook the European Union to its core, with more than 2.3 million irregular border crossings in 2015 and 2016.   

But what’s actually in the pact? Here’s a close look at the most contested elements of the legislation.   

Solidarity mechanism  

The solidarity mechanism is one of the pillars of the EU’s new pact on migration and asylum. The idea behind it is to encourage responsibility-sharing among the EU member states, given countries located at the bloc’s borders have had to manage a higher influx of migrants and refugees. The mechanism, which requires member states to provide support, is laid out in the Regulation on Asylum and Migration Management.  

Governments can choose between different measures, such as financial assistance, relocation programmes, or logistical assistance. Critics point out that it gives member states the opportunity to avoid accepting their share of asylum seekers by buying their way out. Without mandatory redistribution, the arrival countries will likely continue to shoulder the biggest burden.   

Screening rules and border procedures  

In an attempt to speed up processes and harmonise asylum procedures at the EU's external borders, third-country nationals are supposed to be “screened” within seven days in order to quickly decide if they will have to return to their country of origin, if they qualify for the traditional asylum procedure, or an accelerated border procedure. It also includes a health and vulnerability check, an identity check, registration of biometric data, and a security check.  

The new screening process and the new accelerated border procedure are meant to be carried out near the external borders, using a method legally known as the “fiction of non-entry.” It means that even though an individual physically arrives on a country’s territory, the arrival is not (yet) legally recognised as having entered the EU, placing the person in a sort of transit zone.  

The European Council on Refugees and Exiles (ECRE) has warned that such a transit zone “creates a liminal legal space where states exert control by restricting access to rights for third-country nationals. In the context of asylum, the fiction of non-entry inhibits asylum seekers’ mobility, access to rights and asylum procedures, and risks refoulement.”  

Concretely, this means many refugees will be detained in closed facilities at borders with limited access to legal assistance before a decision is made, which could take months. Gaia Romeo, a researcher at Vrije Universiteit Brussel, pointed to the example of Turkey, with which the EU agreed fast-tracked border procedures in 2016. “It led to a humanitarian disaster, with refugees imprisoned for years,” she wrote in an op-ed for Euractiv in February.  

Additionally, if the average recognition rate for the country of origin of the asylum applicant is less than 20%, a refugee will instantly be transferred to the accelerated procedure. 

Crisis regulation  

The crisis regulation was developed as a way to deal with sudden, large-scale arrivals, as the EU experienced during an unprecedented influx of migrants and refugees in 2015-2016. It gives governments the opportunity to deviate from EU legal standards and apply stricter measures, while allowing the European Commission to request additional solidarity measures.  

But what exactly counts as a crisis? The International Rescue Committee has cautioned that the regulation could be used as a legal technicality to circumvent the rules.    

As a next step, the package needs to be formally approved by the Council. Thereafter, member states will have two years to amend their national laws. In parallel, the Commission is working on an implementation plan set to be published before the conclusion of the Belgian presidency at the end of June.  

It won’t be an easy feat, as some national reactions already show: “We will protect Poland against the relocation mechanism,” said Polish Prime Minister Donald Tusk last week.  

Indeed, implementation at the national level largely hinges on how the rules are interpreted and translated.  

MEP and rapporteur Sophie in ‘t Veld (Renew), who supported the pact and has highlighted its ability to improve children’s rights, put it this way: “Today's vote on the asylum and migration pact is probably one of the most difficult of this mandate. It contains elements which are prone to abuse by member state governments, and which can lead to human rights violations, depending on member state implementation.” 

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