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2020 MEDAM ASSESSMENT REPORT
ON ASYLUM AND MIGRATION POLICIES IN EUROPE
European and African p
erspectives
on asylum and migration policy:
Seeking common ground
FUNDED BY© 2020 Kiel Institute for the World Economy (IfW) Mercator Dialogue on Asylum and Migration (MEDAM) Kiellinie 66 | 24105 Kiel | Germany Telephone: +49 431 8814-329; Internet: www.ifw-kiel.de and www.medam-migration.eu This work is a product of the Mercator Dialogue on Asylum and Migration (MEDAM). Rights and Permissions: This work may be reproduced, in whole or in part, for noncommercial purposes as long as full attribution to this work is given. Attribution: MEDAM (Mercator Dialogue on Asylum and Migration). 2020. 2020 MEDAM Assessment Report on Asylum and Migration Policies in Europe, Kiel: IfW All queries on rights and licenses regarding the ‘2020 MEDAM Assessment Report on Asylum and Migration Policies in Europe’ should be addressed to the Kiel Institute for the World Economy (IfW), Mercator Dialogue on Asylum and Migration (MEDAM). Email: info@medam-migration.eu ISSN (Print): 2567-6083 Cover photo credit: Photo by Timon Studler on Unsplash
2020 MEDAM ASSESSMENT REPORT
ON ASYLUM AND MIGRATION POLICIES IN EUROPE
European and African p
erspectives
on asylum and migration policy:
Seeking common ground2020 MEDAM Assessment Report
on Asylum and Migration Policies in Europe
Contents
Preface 7
About the authors 9
Main messages 11
1 Introduction 14
2 Discussions on EU migration and asylum policy ahead of the new pact 16
2.1 An uncertain future for European asylum policy 16
2.2 Developments in EU external migration policy 22
3 Conditionality for readmission cooperation 26
3.1 Increasing calls for conditionality 26
3.2 Is conditionality an effective response? 28
3.3 Current and future EU policy: A shift toward ‘less for less’? 31
4 The political economy of migration governance in West Africa 33
4.1 The politics of migration governance 34
4.2 Challenges for European interests in migration cooperation 36
4.3 Outlook 40
5 Implications for asylum and migration policies in Europe 42
Abbreviations 46
References 47
Box, figures and tables
Box 1 A holistic understanding of the politics of migration 33
Figure 1 Breakdown of return rates by EU countries, 2016–18 23
Figure 2 Breakdown of return rates by nationality of selected non-EU countries, 2016-18 23
Figure 3 Contribution of remittances and official development assistance as a percentage of GDP, 2017 34
Figure 4 Migration policy priorities in Nigeria, Senegal, Niger, and the Gambia 35
Figure 5 Overview of the main migration frameworks in Niger 36
Figure 6 Returns from the EU to the Gambia, 2016–18 38
Table 1 Indications of member states’ positions on the future of EU-wide responsibility sharing 17
Table 2 Allocations under the EUTF, January 2020 22
Table 3 Returns of migrants following return decisions by EU countries, 2014–18 22
Table 4 Informal EU-wide readmission agreements with non-EU countries since 2016 25
Table 5 Overview of EUTF projects, September 2019 35
52020 MEDAM Assessment Report 6
on Asylum and Migration Policies in Europe
Preface
I
n 2016, the Mercator Dialogue on Asylum and Mi- Asylum and migration issues have recently taken
gration (MEDAM) was established to improve our on a new urgency as conditions on the EU’s external
understanding of the interrelated challenges facing border have deteriorated in several member states.
the EU and its member states in the areas of asylum When Turkey opened certain border crossings toward
and migration. It seeks to stimulate a broad and open Greece to irregular migrants in March 2020, the fra-
conversation about implementable solutions to these gility of the existing understanding between the EU
dilemmas. Through our publications and outreach, we and Turkey on containing irregular migration to the
are engaging policy makers, academia and civil society EU came to the fore. More recently, several EU mem-
across the EU, culminating in practical recommenda- ber states have effectively eliminated access to asylum
tions. at their external borders, justifying their actions by the
Over the last three years, we have analyzed impor- COVID-19 pandemic.
tant elements of the asylum and migration system in In this report, the authors argue that the EU cannot
the EU and highlighting their global interdependen- sustainably handle these predicaments on its own, but
cies. These include the driving forces of migration in needs to cooperate with migrants’ countries of origin
countries of origin, migrants’ decision making, public and transit as equal partners. As part of its planned
attitudes toward immigration policy, and the inter new strategy (the forthcoming New Pact on Migration
action of EU rule-making and member state practices and Asylum), the EU should provide more support to
in asylum policies. low- and middle-income countries hosting refugees—
With this 2020 MEDAM Assessment Report, the especially to Turkey, which now hosts the world’s larg-
project enters its second phase (2020–22). We welcome est refugee population. To contain irregular migration
the European Policy Centre as our new partner, with to Europe along the Central Mediterranean route to
whom we will strengthen our monitoring and analy- Italy, the EU needs to work closely with countries of
sis of EU policies, along with our outreach to policy origin and transit in Africa.
makers and other stakeholders in Brussels. It is thanks to the continued generous support
Our strengthened focus on EU policy making is also by Stiftung Mercator that we can present this 2020
reflected by the new structure of the annual MEDAM MEDAM Assessment Report, whose objective is to
Assessment Report. It includes a substantive chapter help shape policies for refugee protection and migra-
assessing the state of play in EU asylum and migration tion in Europe that respond effectively to the immi-
policy and analyze important developments over the nent global challenges.
previous year.
Prof. Gabriel Felbermayr, PhD
President, Kiel Institute for the World Economy (IfW)
Senior Project Director, Mercator Dialogue on Asylum and Migration (MEDAM)
72020 MEDAM Assessment Report 8
on Asylum and Migration Policies in Europe
About the authors
Matthias Lücke is a senior researcher at the Kiel In- project on “The Political Economy of West African
stitute for the World Economy, an adjunct professor Migration Governance” (WAMiG), undertaken by the
at Kiel University, and a former senior economist at Arnold Bergstraesser Institute (ABI). Previously, Leo-
the International Monetary Fund. In his research and nie was a researcher for the project “African Migration:
teaching, he focuses on migration, development, in- Root Causes and Regulatory Dynamics” (AMIREG) at
ternational trade policy, and European integration. the United Nations University Institute on Compara-
Matthias coordinates the MEDAM project, guiding tive Regional Integration Studies (UNU-Cris) and the
the development of MEDAM’s research agenda and Institute for European Studies (IES). She has conducted
leading the project’s outreach to stakeholders. He has extensive field research in Ghana, Niger, and Senegal.
consulted widely for national governments and inter-
national organizations. Franzisca Zanker is a senior researcher and head of
the research cluster “Patterns of (Forced) Migration”
Olivia Sundberg Diez is a policy analyst for the Euro at the Arnold Bergstraesser Institute (ABI). Her re-
pean Migration and Diversity Programme at the search interests include refugee and migration govern-
European Policy Centre (EPC). In her work, she pri- ance, peace processes, and civil society. She has con-
marily focuses on the human rights implications of ducted fieldwork in Liberia, Kenya, South Africa, and
EU policies concerning irregular migration. Her lat- the Gambia. In addition, she is the co-founder of the
est work has concentrated on return and readmission research network “African Migration, Mobility, and
practices. She has worked for multiple UK think tanks Displacement.” Within the framework of MEDAM,
and has been a consultant for the European Council Franzisca leads the WAMiG project (“The Political
on Foreign Relations. In the MEDAM project, Olivia Economy of West African Migration Governance”),
co-authors policy-oriented publications and provides which is conducted by the ABI.
analysis of EU developments, policy processes, and
political preferences. While MEDAM team members share the whole sys-
tems approach to analyzing migration, not every au-
Leonie Jegen has researched the impacts of migration thor agrees with all policy conclusions in all sections
policy in Niger and Senegal as part of the MEDAM of the report.
92020 MEDAM Assessment Report 10
on Asylum and Migration Policies in Europe
Main messages
T
he European Commission is currently final- Message #1: The EU and its member states
izing its proposed New Pact on Migration should negotiate on an equal footing with coun-
and Asylum to re-start the debate on how to tries of origin and transit, particularly in Africa, for
reform the common European asylum system and comprehensive agreements on mobility that reflect
manage immigration from non-EU countries. One both sides’ interests, concerns, and political limita-
prominent concern is the ‘external dimension’: jointly tions (chapter 5).
managing migration to Europe with countries of ori- – In recent years, the EU has increasingly imposed
gin and transit. By cooperating with countries of ori- conditionality related to migration management on
gin and transit across a wide range of policy areas, the low- and middle-income countries by attaching it
EU and its member states may reduce irregular migra- to agreements in various policy areas. Yet, there has
tion to Europe without undermining their humanitar- been little improvement in measurable outcomes
ian principles and impairing bilateral relations, which like the effective return rate for non-EU citizens who
the present emphasis on securitizing the external EU have no permission to stay in the EU (section 2.2).
border risks doing. – Recently, the EU has shown a tendency to apply
In this 2020 MEDAM Assessment Report, we ex- conditionality ‘punitively’—for example, by making
plore how European and African governments can existing positive elements in visa practices condi-
reach common ground on jointly managing migration tional on the partner country promising to tighten
from Africa to Europe. On the one hand, the EU and controls on irregular migrant flows. This amounts
its member states are keen to limit irregular immigra- to introducing new demands in an already settled
tion along the Central and Western Mediterranean context and may encourage evasive behavior rather
routes, where in the recent past ‘mixed’ and labor mi- than constructive engagement by partner govern-
grants predominated while few asylum seekers were ments.
recognized as refugees in Europe. This situation differs – By imposing conditionality on governments that
from the Eastern Mediterranean region, where the fo- were poorly placed to refuse it, the EU sometimes
cus is on how states in the region and the international managed to obtain commitments on paper. Later,
community, including the EU and its member states, however, partner governments often had little in-
can fairly share responsibility for hosting several mil- centive to implement those provisions and, in fact,
lion war refugees. did not do so. To address this time-inconsistency is-
On the other hand, many African citizens and sue, the EU needs to acknowledge that it is in many
governments view migration and mobility as an im- ways the more powerful party in these agreements.
portant element in their economic and social devel- Thus, it is in the EU’s own interest to use its power
opment. Financial remittances from migrants, what- wisely and to ensure that agreements adequately re-
ever their legal status, sustain the livelihoods of many flect the policy space as well as the constraints of
households and are an important source of external both sides. The EU should aim to create an appro-
finance for many African economies. Cooperation priate incentive structure for both sides to adhere to
on migration management with the EU has therefore their commitments.
been patchy, especially in sensitive areas such as the
return and readmission of non-EU citizens who have Message #2: The EU and its member states are
no permission to remain in the EU. interested in reducing irregular immigration and
Below, we derive six main messages from our analy- facilitating the return and readmission of non-EU
sis to provide guidance on how the EU and its member citizens who have no permission to stay in the EU.
states can move ahead with the reform of the Euro- Nevertheless, many obstacles to smooth return and
pean asylum system and cooperate successfully with readmission arise from logistic and administrative
countries of origin and transit. The key task is to ne- failures in the EU and its member states, rather than
gotiate ‘self-enforcing’ agreements on joint migration from a lack of cooperation by countries of origin.
management—i.e., agreements that all parties have Given the importance that the EU and its member
strong incentives to abide by because, at any time, the states attach to return and readmission, they should
benefits from the agreement for each party are larger begin by streamlining their own administrative and
than the cost of implementing any unpopular provi- legal processes for return and readmission. It would
sions. A chief ingredient should be more legal oppor- be unhelpful to let return and readmission domi-
tunities for labor migration to Europe to complement nate bilateral relations with countries of origin to
measures to restrict irregular migration. the point where other important objectives—such
112020 MEDAM Assessment Report
as development cooperation or international mobil- history of both regional and international migra-
ity for education, research, tourism, or business— tion, which makes the governance of irregular mi-
are put at risk (chapter 3). gration highly sensitive.
– Data on voluntary and mandatory returns from
EU member states to non-EU countries are subject Message #4: The EU and its member states
to many methodological uncertainties and return should offer substantially expanded opportunities
rates vary widely across member states and coun- for legal labor migration to Europe to complement
tries of origin (section 2.2). Despite the lack of relia- any efforts to reduce irregular migration through
ble information, it is clear that a lack of cooperation joint migration management. Legal migration op-
by country of origin authorities, for instance with portunities would benefit African workers and their
travel documents, is only one among many reasons families, sustain financial remittances to African
why the effective return rate is low for many mem- economies, and render restrictions on irregular mi-
ber states and countries of origin. gration politically feasible (chapter 5).
– Initially, EU member states applied conditionality – More legal migration will not in and of itself reduce
mainly to visa facilitation, for which there is a log- irregular migration. Some of those who will take
ical connection with return and readmission (visas advantage of future legal opportunities might never
can be granted more liberally if visa overstayers can migrate irregularly; at the same time, those who
be returned quickly). Subsequently, visa issuance by now migrate irregularly may still do so in the future
EU member states has become so restrictive as to if legal opportunities are beyond their reach. Even
impede legitimate travel between the EU and many so, those who benefit from legal opportunities will
low- and middle-income countries. have a strong incentive to support curbs on irreg-
– Some member states are now pushing for condition- ular migration by their governments because legal
ality to be tightened, notably in the area of develop- opportunities will depend on the country of origin’s
ment cooperation. This is especially problematic if authorities helping to reduce irregular migration.
development cooperation is targeted at disadvan- – Migrants would need certain educational, lan-
taged groups within the partner country. guage, and vocational skills to be able to integrate
into the EU labor markets and to earn enough to
Message #3: When would-be migrants in low- support themselves and their families. In order to
and middle-income countries must choose between be accessible to a meaningfully large number of Af-
migrating irregularly to a high-income coun- rican workers, EU member states should set those
try or not at all, irregular migration is often their requirements as low as possible without putting la-
preferred outcome. The EU and its member states bor market integration at risk.
should accept that citizens and governments in – One example of a similarly motivated initiative
countries of origin are concerned about repercus- is the German Western Balkans program: about
sions from losing financial remittances in the case 20,000 work visas are available annually for workers
of any push to reduce irregular migration (chapter from Western Balkan states who are offered a job in
4). Partner countries will only have an incentive to Germany at standard conditions. There are no other
work with the EU to reduce irregular migration if income, skill, or language requirements, making the
the EU offers compensation that addresses the po- German labor market far more accessible for citizens
tential losses at both the macroeconomic and the of these countries than for other non-EU citizens.
household level. The program started after the number of (mostly un-
– In many African economies, migrant remittances successful) asylum applications by Western Balkan
are a more important source of external finance citizens in Germany surged in late 2015. It is cred-
than development assistance and sustain the liveli- ited with helping to reverse that surge, combined
hoods of hundreds of thousands of households. with accelerated asylum procedures (Germany now
– We find in our research in West Africa that citizens classifies all Western Balkan states as safe countries
and stakeholders consider migration and mobility of origin) and the fact that all stakeholders are keen
an important element in promoting development to maintain EU visa liberalization for the Western
and securing livelihoods. This view reflects a long Balkans (MEDAM 2018, box 1.2).
12on Asylum and Migration Policies in Europe
– At the same time, there is a risk that even with mod- especially for possible ‘border measures’ like recep-
erate skill requirements compared with European tion centers near the external border (section 2.1).
labor market needs, migration to Europe could lead At this stage, it is impossible to predict what direc-
to a brain drain in Africa, given the relatively low tion discussions and negotiations will take over the
average performance of African secondary school coming months. In the meantime, the EU and its
students in internationally comparable skills tests member states should pursue progress along both
(Backhaus 2020). The EU should therefore combine the external and internal dimensions of migration
more labor market access in Europe with support and asylum policy because the two complement
for skill partnerships in Africa—vocational and lan- each other: resilient arrangements for cooperation
guage training programs that teach critical skills for with countries of origin and transit to manage im-
both local and European labor markets. migration to Europe will help to stabilize the num-
ber of asylum applications; in turn, with a more
Message #5: The EU and its member states should predictable external environment, it will be easier
assume more responsibility for protecting refugees for the Commission and member states to agree on
who are using the irregular migration routes to Eu- strategies for centralizing certain functions at the
rope to seek safety. EU level and sharing responsibility among member
– Although ‘mixed’ and labor migrants have made states.
up the majority of migrants along the Central and – The new pact will likely propose a combination of
Western Mediterranean migrant routes in recent mandatory flexible solidarity and accelerated bor-
years, there are also a significant number of refu- der procedures. If the Commission chooses this way
gees who require protection. If migration to Europe forward, the degree of division among EU member
is interrupted and refugees get stuck, the EU and its states should not be underestimated; member states
member states should help to protect these refugees. would have to cross many red lines to reach agree-
– In particular, the UNHCR’s Emergency Transit ment. There would also be difficult implementation
Mechanism is meant to evacuate vulnerable individ- issues, such as how to avoid unsustainable large-
uals from Libya to Niger or Rwanda and then pro- scale detention at the external border and how to
vide options for resettlement in non-EU countries, secure sufficient, reliable, long-term solidarity (be
voluntary return to countries of previous asylum, it by relocating asylum seekers, financial contri-
voluntary return to countries of origin (where safe), butions, or the provision of staff and material re-
or local integration in Rwanda. This emergency sources).
transit mechanism will be effective and sustainable – However, the EU and its member states may con-
only if there are enough places for resettlement in sider picking low-hanging fruit by implementing
the EU or elsewhere; otherwise, migrants will get a limited voluntary scheme for relocating asylum
stuck in transit centers and evacuations from Libya seekers from the most affected member states on
will cease, although the human rights of migrants the external border. Importantly, migrants who
continue to be violated there. enter EU territory irregularly across the external
border today account for no more than a third of
Message #6: In addition to the external dimen- asylum seekers in the EU. The shares of most EU
sion of EU migration and asylum policy, the Euro- member states in all first-time asylum applications
pean Commission’s proposed new pact will address are currently close to their ‘fair’ shares based on
the internal dimension, particularly the way EU population and GDP; the major exceptions are
member states share responsibility among them- Greece, Malta, and Cyprus with far higher num-
selves for refugee protection. Discussions among bers. Hence, a small, voluntary relocation scheme,
stakeholders will revolve around, first, whether (and possibly with EU financial support, would go a long
how) refugees should be relocated from EU member way toward addressing this impasse (MEDAM
states at the external border to other member states 2019, section 4.1). If such a scheme works well, it
for more equitable burden sharing; and second, how may later be scaled up to make the EU asylum sys-
much logistic and financial support will come from tem more resilient to possible future surges in refu-
the Union for asylum systems in member states, gee numbers.
132020 MEDAM Assessment Report
1 Introduction
W
ith its New Pact on Migration and Asylum, Second, irregular migration leads to many deaths
the European Commission will propose a among migrants as well as their exploitation by people
reform of the European asylum system to smugglers.1 Most activity by people smugglers takes
achieve two overarching objectives: to ensure that the place outside the EU where it is also most effectively
same adequate standard of refugee protection applies combatted. Therefore, cooperation with countries of
throughout the EU; and to distribute responsibility for origin and transit is essential.
refugee protection and border management equitably Third, although several EU member states on the
among EU member states. In the coming months, the external border have erected fences to discourage ir-
Commission proposal will be scrutinized and debated regular entry, these are costly to build, maintain, and
intensely by member states, the European Parliament, police; furthermore, it is difficult to secure sea borders
civil society, and the European public. in this way. Fences may also prevent non-EU citizens
One area of particular concern is the ‘external di- from applying for asylum, jeopardizing human rights
mension’ of migration and asylum policies—particu- commitments and the Geneva Convention. At the
larly the joint management of migration together same time, EU visa policy and member state policies
with migrants’ countries of origin and transit. This for labor migration limit entry to the EU to individu-
is important because the external dimension is key to als who meet certain requirements. If member states
the success of asylum reform: any system for distrib- could smoothly return those foreign citizens to their
uting responsibility for asylum applicants ‘internally’ countries of origin who have no permission to remain
among EU member states will come under severe in the EU, this would discourage irregular immi-
stress if the total number of applicants rises too high. gration without the need for physical barriers at the
Hence, to maintain a functioning asylum system, it is border. Again, return and readmission requires coop-
essential to manage the number of applications such eration between countries of destination, transit, and
that member states are not overwhelmed by their allo- origin.
cated responsibilities. While the EU and its member states are keenly in-
Doing so effectively and humanely requires agree- terested in reducing irregular immigration (and this
ment and close cooperation with neighboring coun- position is also in line with the Global Compact for
tries and countries of origin and transit in several Safe, Orderly, and Regular Migration),2 countries of
policy areas. First, refugees who have obtained inter- origin often find it difficult to implement policies that
national protected status in low- to middle-income, restrict the international movement of their citizens or
non-EU countries need to be supported so they can to cooperate with their mandatory return. This is not
lead dignified lives and have few incentives for sec- only because will they lose external financing in the
ondary migration to the EU. In addition to financial form of migrant remittances, but governments may
support as under the 2016 EU-Turkey Statement, this also lose political support from citizens who have in-
calls for the resettlement of some especially vulnerable vested heavily in their own irregular migration or that
refugees to EU member states. of their relatives and friends.
1
Technically speaking, people smugglers are usually understood to be illegal service providers who act in agreement with the wishes of migrants, whereas
t raffickers use force to exploit migrants. In many environments (such as Libya), this distinction has become blurred and migrants are subject to abuse and
exploitation from the same people through whose services they hope to travel to Europe.
2
United Nations, Resolution adopted by the General Assembly on 19 December 2018, Global Compact for Safe, Orderly and Regular Migration, A/RES/73/195,
January 11 (2019), https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/73/195.
14on Asylum and Migration Policies in Europe
Thus, when it comes to responding to irregular targeting (when mandatory return does not work
immigration, the EU and its member states need to well, this is often not due to the country of origin) and
choose between three approaches, which they can collateral damage to other EU objectives (such as to
combine to some degree: (i) effectively leave their mobility for education, development cooperation, or
external border open for anyone to cross irregu- tourism).
larly, possibly apply for asylum, and live in the EU In chapter 4, we report on field research on how mi-
indefinitely; or (ii) set up a new iron curtain, trying gration and migration policy are viewed by the pub-
to prevent irregular entry through physical barriers lic, civil society, and policy makers in West Africa.
and policing at the external border; or (iii) negoti- Above all, mobility within countries, within West
ate agreements and work with countries of origin Africa, and between continents is viewed as a way
and transit to reduce irregular migration, includ- of life and an opportunity for individuals and their
ing through mandatary return and readmission, families to improve their lives. As such, attempts to
while rewarding partner countries for their support restrict migration or to make emigrants return home
through economically and politically meaningful if they have no permission to remain in the destina-
measures including enhanced legal migration oppor- tion country are challenging for citizens and their
tunities (MEDAM 2019). governments.
This report explores how the third approach may These diverging positions render it challenging for
be adopted consistently. We start by summarizing key EU member states and African countries of origin and
developments in EU asylum policy over the last year transit to jointly manage migrant flows and to combat
and identify important challenges (chapter 2). Debates people smuggling and irregular migration (chapter 5).
and negotiations among EU member states on how re- Any agreement that provides for the kinds of restric-
sponsibility can be shared more equitably (the ‘inter- tions on irregular migration that the EU and its mem-
nal dimension’ of asylum policy) have become bogged ber states want to see, will also need to acknowledge
down (section 2.1). Meanwhile, many EU agreements the desire of African populations and their govern-
with low- and middle-income countries now include ments for (legal) migration opportunities and travel
provisions on migration management, especially on to Europe. Enabling measures, such as vocational
the readmission by their countries of origin of non-EU training for prospective labor migrants, are required
citizens who have no permission to remain in the EU to ensure that any new legal pathways come within the
(section 2.2). reach of an economically and politically significant
Such agreements often make EU actions that are fa- number of African workers, which is not the case for
vorable to the partner country, especially in the area existing migration channels.
of visa issuance or visa facilitation, conditional on the Although new legal opportunities may not directly
partner country’s cooperation with the readmission benefit the same people who now migrate irregularly,
of its citizens (and sometimes non-EU citizens who such opportunities may still help to reduce irregular
have passed through the partner country’s territory). migration because they would strengthen political
In chapter 3, we discuss the possible benefits as well as support for country-of-origin governments that coop-
risks inherent in such conditionality from the view- erate with the EU and its member states in migration
point of the EU. Concerns relate particularly to poor management.
152020 MEDAM Assessment Report
2 Discussions on EU migration
and asylum policy ahead of
the new pact Lead Author: Olivia Sundberg Diez
2
019 was a year of institutional transitions within embarkation and relocation for people rescued in the
the EU, as the European Parliament held elec- Mediterranean (the discussions around the Malta
tions in May and a new European Commission Declaration), and on a series of national position pa-
took office in December. On the internal dimension pers issued in the final months of 2019. These initia-
of EU asylum and migration policies, namely the way tives reveal a growing fragmentation among member
asylum and mobility are managed within the Union, states that will be challenging to address. Doing so,
there was little legislative progress at the EU level. In- however, should be a priority for the new European
stead, there was a distinct proliferation of national and Commission.
bilateral modes of policy making by member states. The second part of this chapter outlines the latest
At the same time, efforts on the external dimension developments in the EU’s cooperation with non-EU
of migration, including cooperation on migration countries on migration, particularly on arrivals and
management with non-EU countries, were notably returns. The EU’s approach to return and readmission
strengthened. This chapter provides an analytical has shifted to place an increasing emphasis on the use
overview of developments in both areas. of conditionality to secure other countries’ coopera-
The first part of this chapter discusses the growing tion in readmitting non-EU nationals. This chapter
tendency toward national and bilateral initiatives. provides an overview of these trends.
It focuses on attempts to reach an agreement on dis-
2.1 An uncertain future for
European asylum policy
Stalled progress on the internal dimension tentious mechanism for attributing responsibility for
asylum seekers within the Union.
W
hen the new European Commission took The package remains deadlocked despite there be-
office on December 1, 2019, it inherited a ing agreement on most of these files. Five made it to
gridlocked discussion about the future of trilogue negotiations and secured provisional com-
the Common European Asylum System (CEAS) and promises between the European Parliament and the
the internal dimension of migration more broadly. Council. However, since all the proposals were legis-
The package of seven legislative proposals that togeth- latively and politically interlinked (the ‘package ap-
er form the CEAS reforms, as first proposed by the proach’), a deadlock over two files has blocked the
Commission in 2016, has still not been adopted.3 The adoption of any of them. The two on which contention
proposals sought, among others, to increase harmo- has centered, and which have never made it to trilogue
nization by reducing states’ discretion regarding asy- negotiations, are the recast of the Dublin III Regula-
lum standards and procedures, to target the secondary tion (Dublin IV) and the proposed asylum procedures
movements of asylum seekers, and to revise the con- regulation (currently a directive).
3
The proposals introduced by the European Commission as part of the reform of the CEAS are a recast of the Dublin III Regulation, a recast of the Eurodac
Regulation, a regulation establishing a European agency on asylum, an asylum procedures regulation, a qualification regulation, a recast of the Reception
Conditions Directive, and the establishment of an EU Framework on Resettlement. See General Secretariat of the Council, “Reform of EU asylum rules,”
https://www.consilium.europa.eu/en/policies/migratory-pressures/ceas-reform/.
16on Asylum and Migration Policies in Europe
First, the entrenched disagreement over the Dublin border, the potential for using it at locations other than
IV regulation, and the notion of responsibility sharing the external border or transit zones, and most impor-
for asylum seekers in particular, has been at the core of tantly whether the procedure should be optional or
the deadlock over the package. In essence, the Com- mandatory. States at the EU external border, whose
mission proposal advanced in May 2016 retained the asylum systems are already under pressure, forcefully
current system for allocating responsibility (namely, reject making border procedures mandatory, claiming
the first country of entry), but introduced a ‘correc- that it would be too inflexible and impractical, espe-
tive allocation mechanism’ to alleviate the pressure cially at sea borders. This would require considerable
on member states receiving asylum seekers at over 150 staff and resources for procedures to be completed
percent of their capacity.4 The European Parliament is- in time and to cover the entire external border (such
sued its report in November 2017 calling for far greater as the shores of southern states), create multiple new
responsibility-sharing measures. The Council never responsibilities, and entail the potential of large-scale
issued a position on the regulation, given the signifi- detention. Despite this opposition, discussions in the
cant disagreements between member states. Council have made modest advancements. A possible
Several states, primarily those on the southern bor- compromise would involve making border procedures
der, supported a revision of the regulation that en- mandatory only after a transition period and on cer-
tails greater responsibility sharing for asylum seekers tain grounds.5
within the Union. Meanwhile, the ‘Visegrad Four’ In addition, the decision to uphold the package ap-
states (Hungary, the Czech Republic, Poland, and Slo- proach even as the difficulty of resolving these dead-
vakia) remain irreconcilably opposed to any manda- locks became apparent has itself been subject to criti-
Table 1 Indications of member states’ positions on the future of EU-wide responsibility
sharing
Support mandatory relocations Hold flexible or varying positions Support voluntary relocations
on the form of solidarity
Belgium, the Netherlands, S weden, Germany, France, Spain, Portugal, Denmark, Austria, Romania, the
Bulgaria, Cyprus, Greece, Italy, Slovenia, Lithuania, Poland, Finland, Czech Republic, Hungary, Slovakia,
Malta Croatia, Latvia Ireland, Estonia, Latvia
Source: Own compilation, based on EU and national documents, as well as media comments, as of early 2020.
tory relocation. The positions of other countries that cism (MEDAM 2019). The Parliament and the Council
receive large numbers of asylum applications, such insisted on treating the reform proposals as a package,
as France and Germany, have changed over time, be- rather than moving forward on at least those proposals
coming relatively open to incorporating a degree of on which there was agreement: nothing is agreed until
flexibility in solidarity models (Maushagen 2018; see everything is agreed. Both sides feared that ‘unpack-
also table 1). Other disagreements in the context of the ing’ them would entail losing leverage with respect
Dublin IV regulation concern the duration of respon- to the more sensitive Dublin discussions. The Parlia-
sibility, the scope of pre-Dublin checks, and the inclu- ment sought to press for a more systematic and equi-
sion of beneficiaries of international protection in the table system of responsibility sharing, whereas within
Dublin rules. the Council, several states were insistent on opposing
Second, the proposal for an asylum procedures reg- any system based on mandatory relocations. The Eu-
ulation was also stuck in the Council. Member states ropean Council Conclusions of June 2018, for exam-
have been especially divided on the Commission’s ple, stressed states’ insistence on “a speedy solution
proposed inclusion of accelerated procedures at bor- to the whole package.” 6 Under President Jean-Claude
der posts, which involve faster processing with re- Juncker, the Commission made efforts to separate the
duced safeguards for asylum seekers. Sticking points proposals: in December 2018, Home Affairs Commis-
have included the deadline for keeping people at the sioner Dimitris Avramopoulos called on the Council
4
Capacity would be based on a reference key, calculated through a member state’s total population size and GDP in equal weighting.
5
Council of the European Union, “Note from the Presidency to the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA): Border Procedures,”
Brussels (2018), https://www.statewatch.org/news/2018/oct/eu-council-ceas-asylum-border-procedure-13376-18.pdf.
6
European Council, European Council Conclusions of 28 June, Brussels (2018), https://www.consilium.europa.eu/en/press/press-releases/2018/06/29/
20180628-euco-conclusions-final/.
172020 MEDAM Assessment Report
and the Parliament to be “realistic and pragmatic” and protections for asylum seekers before and after the
adopt five of the seven proposals.7 Still, this turned out transfer than those afforded by the regulation. In do-
to be too little too late to influence the discussions. ing so, the agreements violated the applicable EU law,
Because of these entrenched divisions between and should not have been applied (Hruschka 2019),
member states, and the lack of procedural decisions as was later confirmed by a German administrative
to proceed despite them, no significant progress was court.9 Second, experts stressed that they undermined
made on the seven CEAS proposals prior to the Euro- the credibility of the current and any prospective
pean Parliament elections in May 2019 or the change of asylum package, as they opened up the possibility of
the European Commission in late 2019. The new Com- member states openly violating the asylum standards
mission announced in February 2020 that it planned therein (ECRE 2018, 7). Third, concerns were raised
to drop its proposals on both Dublin and asylum pro- about negotiations that would have an impact on EU
cedures. By contrast, the proposals that had made the policies being conducted without the parliamentary
most progress dealt with the external dimension (such and public scrutiny that EU-level procedures normally
as the revised European Border and Coast Guard Reg- receive (Refugee Support Aegean 2018).
ulation, the revised Visa Code, and the recast Return Two proposals advanced by the Austrian Council
Directive), as discussed in a later section. Presidency in the second half of 2018 also reflect the
tendency toward national action. In September 2018,
Proliferation of national and bilateral policy Austria and Italy issued a proposal to process asylum
making seekers on ships (Deutsche Welle 2018). The following
month, Austria and Denmark released a joint vision
In the absence of progress at the EU level, policy mak- paper.10 In it, they called for providing protection only
ing has shifted decisively to national and bilateral to those individuals who cannot find asylum closer to
modes. Throughout 2018 and 2019, ad hoc initiatives their home country. All others would be denied asylum
addressing the internal dimension of asylum policy and would, instead, get European economic assistance
multiplied, led by either individual member states or in their region. Both ideas were quickly dismissed as
‘coalitions of the willing.’ incompatible with international law (Dastyari and
At the June 2018 European Council summit, expec- Ghezelbash 2018; Ruhs and Barslund 2018).
tations were high for breaking the deadlock on several In 2019, unilateral or coalition-of-the-willing ap-
proposals, but no agreements or serious commitments proaches gained further prominence, with two par-
were reached. On the sidelines of the summit, however, ticularly relevant initiatives. One is a temporary dis-
Germany began negotiating bilateral agreements with embarkation and relocation mechanism established
several member states to address secondary move- for individuals rescued in the Mediterranean (the
ments by securing quick transfers of asylum seekers ‘Malta Declaration’). Another is a series of non-papers
who had been registered elsewhere. Administrative ar- by member states in late 2019 in the context of the
rangements with Spain, Greece, and Portugal entered upcoming New Pact on Migration and Asylum. Both
into force later that year.8 initiatives reveal the growing polarization of member
These arrangements were presented as an interim states, and the urgency of addressing it.
solution in the context of stalled negotiations, but
faced substantial criticism for attempting to bypass the The Malta Declaration
existing legal framework (ECRE 2018, 7). First, while
replicating commitments that already existed under A long series of high-profile cases of search and res-
the Dublin III Regulation, the agreements provided cue operations in the Mediterranean took place in
fewer procedural safeguards and fundamental rights the summer of 2019. In several of the cases, Italy and
7
European Commission, “Remarks by Commissioner Avramopoulos on Progress Made under the European Agenda on Migration,” Brussels (2018),
https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_18_6660.
8
Hellenic Republic and Federal Republic of Germany, “Administrative Arrangement on Cooperation when Refusing Entry to Persons Seeking Protection in the
Context of Temporary Checks at the Internal German-Austrian Border,” Federal Ministry of the Interior, Building and Community, Berlin (2018); Kingdom of Spain
and Federal Republic of Germany, “Administrative Arrangement on Cooperation between Germany and Spain when Refusing Entry to Persons Seeking Protection
in the Context of Temporary Checks at the Internal German-Austrian Border,” Federal Ministry of the Interior, Building and Community, Berlin (2018); and Federal
Ministry of the Interior, Building and Community, “Federal Minister of the Interior Seehofer Welcomes his Portuguese Counterpart,” Berlin (2018),
https://www.bmi.bund.de/SharedDocs/pressemitteilungen/EN/2018/portugiuese-counterpart.html.
9
Administrative Court of Munich, Case M 18 E 19.32238, Amygdaleza Detention Center v. Bundesrepublik Deutschland, August 9, 2019, https://www.proasyl.de/
wp-content/uploads/Eilbeschluss-VG-M%C3%BCnchen_8.8.2019-2.pdf.
10
Federal Ministry of the Interior, Republic of Austria and Ministry of Immigration and Integration, Denmark, ”Vision for a Better Protection System in a Globalized
World” (2018), https://uim.dk/filer/nyheder-2018/vision-for-a-better-protection-system-in-a-globalized-world.pdf.
18on Asylum and Migration Policies in Europe
Malta did not allow the people rescued at sea to dis- The Malta Declaration has likewise received a cold
embark in their ports for up to 19 days, until other reception from other member states. It was presented
member states had agreed to relocate them. In this at the Justice and Home Affairs Council meeting on
context, and under Franco-German impetus, several October 8, 2019 with a view to securing relocation
informal discussions were held on a predictable mech- commitments from additional member states. As was
anism to manage future cases. A meeting in Malta on made clear from the outset by the original signatory
September 23, 2019 sought to formalize the agreement states, success would depend on widespread endorse-
(the Malta Declaration), which was signed by France, ment. However, only three more countries confirmed
Germany, Italy, and Malta. their support—Ireland, Luxembourg, and Portugal—
According to the leaked Joint Declaration of Intent, with at best a lukewarm response from some others.
the participating states would allow people rescued States that have traditionally rejected responsibili-
by private vessels to have access to a safe port, which ty-sharing mechanisms, including the Visegrad group,
could be rotated on a voluntary basis.11 Following Austria, and Denmark, remained opposed (Bault
disembarkation, participating states would relocate 2019). At the same time, the discussions revealed the
the individuals rescued based on predeclared pledges growing divisions between member states on the ex-
and within a period of four weeks. Rescued migrants ternal border: all other states of first arrival also re-
would be subject to fast-tracked asylum and return jected the Malta Declaration. Cyprus, Greece, and
procedures (if applicable). The mechanism would act Bulgaria submitted a paper on the Eastern Mediter-
as a pilot for six months, yet could be suspended in ranean Migration Route Initiative, calling for greater
the event of disproportionate migratory pressure. The focus on and resources for the region (Barigazzi 2019).
agreement therefore envisions solidarity with a very Spain refused to participate in relocations, and reiter-
limited scope, namely when it is least urgent and for a ated that solutions must apply to the entire Mediterra-
small percentage of arrivals. Only 9 percent of the mi- nean, and not only to Italy and Malta (Abellán 2019).
grants who entered Italy irregularly in the 14 months The Malta agreement has remained instrumental in
before the Malta Declaration had been rescued by coordinating disembarkations and relocations since
nongovernmental organizations (NGOs); all the oth- then. The Commission stated that in 2019, it had co-
ers had arrived autonomously and were excluded from ordinated the relocation of 1,000 people rescued at
relocations (Villa and Corradi 2019). sea from Italy and Malta in the context of the Malta
Similar to other ad hoc initiatives, the informal, Declaration and earlier ad hoc arrangements (Schief-
opaque, and extra-Treaty nature of the agreement fer 2020). Although as many as 10 member states have
also raises some legitimate concerns. These include participated at one point, most of the relocations ap-
questions over whether the streamlined asylum and pear to have been to France and Germany. Many had
return procedures would comply with the minimum hoped that the Malta Declaration would be a gesture
safeguards expected in the EU asylum acquis. Notably, of solidarity that could serve as a litmus test for states’
there is a lack of transparency or systematic oversight willingness to redistribute asylum seekers on a lim-
of the relocation process, including whether existing ited scale, perhaps gradually unlocking compromise
family ties would be considered (Neidhardt et al. 2019, on Dublin. Instead, it has confirmed the difficulty of
4). Leaked guidelines on the disembarkation and re- reaching an agreement even on responsibility-sharing
location process reference the possibility for states to schemes that are ad hoc, temporary, and voluntary.
indicate migrant “profiles” that they are willing to
accept, which could give way to discriminatory prac- Member states’ policy positions
tices.12 Relevant questions about the agreement’s exact
terms remain unanswered, limiting judicial and dem- As a second development, the autumn of 2019 was
ocratic scrutiny. marked by a series of position papers on European
11
See the “Joint Declaration of Intent on a Controlled Emergency Procedure—Voluntary Commitments by Member States for a Predictable Temporary
S olidarity Mechanism,” Valletta, September 23, 2019 (published by Statewatch), http://www.statewatch.org/news/2019/sep/eu-temporary-voluntary-relocation-
mechanism-declaration.pdf.
12
Council of the European Union, General Secretariat, “Guidelines on Temporary Arrangements for Disembarkation,” Brussels (2019), http://statewatch.org/
news/2019/jun/eu-council-wk-guidelines-on-temporary-arrangement-disembarkation.pdf.
192020 MEDAM Assessment Report
migration policies released by several member states. state take precedence over Dublin transfers—and on a
These sought to inform the Commission’s New Pact on greater use of leverage to secure readmission cooper-
Migration and Asylum—a new proposal for reforming ation with non-EU countries. Greece issued a further
the European asylum system expected to be published position paper in January 2020 (Ekathimerini 2020). It
in the late spring of 2020. stressed the need for a mandatory responsibility-shar-
One of the most impactful proposals came from ing mechanism, not only in terms of financial and hu-
Germany in November 2019 and advocated a “reori- manitarian assistance, but also the hosting of asylum
entation” of the CEAS.13 It proposed, to begin with, seekers.
screening asylum applications at the EU’s external A leaked document from the Finnish Presidency of
border in a quick “initial assessment.” The EU asy- the Council emphasized the need to accelerate read-
lum agency (EUAA, currently the European Asylum mission cooperation on returns, including through
Support Office, EASO) would play a strong role in broad use of leverage.15 Denmark, in turn, issued a
these assessments. Asylum seekers with manifestly non-paper calling for the external processing of asy-
unfounded or inadmissible applications—potentially lum seekers in reception centers in North Africa, while
including individuals traveling from a safe non-EU withdrawing the possibility to spontaneously apply for
country—would be denied entry into the EU and asylum in Europe (Thobo-Carlsen 2019). Finally, It-
swiftly returned with the support of Frontex. aly issued a non-paper, which was not circulated, but
For applicants who were allowed to enter the EU, the which reportedly also focused on returns and on re-
EUAA would determine which member state should storing a fully functioning Schengen area (Eder 2019).
be responsible for examining their asylum applica- A couple of observations can be made about this
tions and making final decisions. Each state’s prede- series of proposals. First, many of these ideas are not
fined responsibilities, or ‘fair share,’ would be calcu- new. Rather, they are often proposals that have been
lated based on population size and GDP. Individuals previously rejected due to the considerable practical or
would be transferred to the responsible state, which legal obstacles to their implementation, due to the con-
would be permanently responsible for that person’s siderable weakening of safeguards for migrants they
asylum application and, if applicable, return proce- entail compared with the existing EU framework, or
dures. Applicants would only receive accommodation due to the inability to secure EU-wide commitments
and social assistance in the member state responsible. on them. Typically, they disproportionately reflect the
France’s non-paper addressed similar issues.14 It interests of the member state drafting the proposal,
called, first, for mandatory accelerated asylum pro- and thus will not necessarily be compatible with oth-
cedures in ‘controlled’ centers at the external border, ers. As such, these modes of policy making are more
followed by swift returns by Frontex of those rejected, likely to further polarize and impede discussions on
which echoed the German proposal. Second, it called a common asylum system than they are to produce a
for a mandatory solidarity mechanism among EU new way forward.
member states for those in need of protection in ‘crisis External processing, which is advocated by Den-
periods.’ There would be additional, systematic soli- mark, was discussed extensively in EU-wide debates
darity measures for individuals rescued at sea, not just in 2018, and subsequently in the Austrian-Danish pro-
in crisis periods, so as to secure southern states’ coop- posal of that same year. Although the European Com-
eration on disembarkation. Solidarity would primarily mission was tasked with examining the feasibility of
involve relocations, but states that refused to accom- this approach, it was later abandoned.16 This was, in
modate asylum seekers could also make substantial part, due to the legal and practical hurdles to its im-
financial, material, or personnel contributions to rel- plementation, including non-EU countries’ unwill-
evant EU agencies. A suspension of EU funds could ingness to host processing centers (McNamara 2018;
apply for states that contributed in neither way. Carrera and Guild 2017). The screenings at the border
Greece issued two statements. A non-paper in De- proposed by Germany incorporate accelerated border
cember focused on returns (ANA-MPA 2019). It ar- procedures, which have already proven contentious in
gued for, among others, a new framework on the both the Council and the European Parliament to the
mutual recognition of return decisions within the point of blocking any progress on the proposed asy-
EU—so that return decisions issued by the responsible lum procedures regulation. If they are to be carried
13
See “Food for Thought: Outline for Reorienting the Common European Asylum System”, Berlin, November 13, 2019 (published by Statewatch),
http://www.statewatch.org/news/2019/dec/eu-asylum-FoodForThought-GermanNoPaper.pdf.
14
Derived from the document “Refondation de l’espace Schengen,” to which the author had access through electronic correspondence on a confidential basis at
the time of writing, in January 2020. For further details, contact the author at o.sundberg@epc.eu.
15
Council of the European Union, “Policies and Tools to Enhance Readmission Cooperation—Presidency Discussion Paper,” Brussels (2019),
http://www.statewatch.org/news/2019/nov/eu-council-readmission-cooperation-13190-19.pdf.
16
European Commission, “Managing Migration: Commission Expands on Disembarkation and Controlled Centre Concepts,” Brussels (2018),
https://ec.europa.eu/commission/presscorner/detail/en/IP_18_4629.
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