Refugee protection in Europe: weakened at present, undermined in the future?

On December 7, 2023, a so-called jumbo trilogue on the reform of the Common European Asylum System took place in Brussels. Unlike usual, on this day, negotiations did not address individual regulations, but rather five dossiers that were still unresolved, namely Eurodac, Screening, the Asylum Procedures Regulation, the Asylum and Migration Management Regulation, and finally the Crisis Regulation. The pressure on all negotiators to achieve a breakthrough was great, but despite a 12-hour marathon session, no agreement could be reached. The next major round of negotiations is now scheduled for December 18, 2023. What is at stake?

For years, the EU Commission and the EU Member States have been trying to reform the Common European Asylum System, the so-called CEAS. So far, however, every attempt at reform has failed due to the very different standpoints of the various Member States. In autumn 2020, the EU Commission presented a comprehensive package of reform proposals for a New Pact on Migration and Asylum and announced that there should be "no more Morias", i.e. no more disastrous camps like the infamous Camp Moria on Lesbos. In September 2022, the Council and Parliament agreed on a roadmap with the aim of concluding negotiations before the European Parliament elections in June 2024. In fact, an agreement seems more likely this time. Trilogue negotiations are now taking place under great time pressure on numerous, complex EU legal acts that contain far-reaching changes to the current system and would have massive consequences for asylum seekers and EU Member States if they were to come into force. Despite all the differences, there seems to be a fundamental consensus that so-called irregular migration must be curbed.

The reform package and the trilogue negotiations

The reform package contains a large number of legislative proposals, most of which are binding regulations, each of them complex in itself, but which are even more difficult to evaluate due to the package approach, as many sub-areas relate to each other and are mutually dependent. This is an important feature of the reform process and an aspect that is seen as a problem by our partner organizations, for example, given the political and practical implications due to the complexity of the matter: Thus, it is extremely difficult for civil society working on refugee policy to keep up to date with the negotiations and the content of the individual drafts. Critical monitoring of the negotiations by the very legal aid organizations, lawyers and social workers who apply EU Law in practice on a daily basis would actually be indispensable in view of the poor state of European asylum policy.

In June 2023, the EU Member States have already agreed on the Asylum Procedures Regulation and the Asylum Management Regulation in the EU Council. On that day, Federal Minister of the Interior Nancy Faeser spoke of a historic success for the European Union and for the protection of human rights. However, large sections of civil society, refugees themselves, migration researchers and asylum law experts – both in Germany and in other EU countries- are highly critical of this agreement.

There are essentially three aspects of the reform that should be particularly emphasized:

• screening and border procedures;
• the expansion of the concept of so-called "safe third countries";
• solidarity and relocation mechanism.

Screening and border procedures

The border procedures proposed by the Commission would mean the de facto detention of many people - including children - at the external borders, contrary to the principle of detention as a means of last resort. According to the Council agreement, these should be mandatory for people from a country of origin with an average protection rate of 20 percent or less, for anyone who has provided false information in connection with their identity, and for anyone who poses a "threat to public security and public order". Member states should also have the option of sending all those who have entered via so-called "safe third countries" to the border procedure. This would mean that those seeking protection would have limited legal protection and would be forced to remain in closed facilities at the external borders for the duration of the border procedure. Border procedures are to take place under the so-called "fiction of non-entry", similar to the German airport procedure. According to reports, at the Jumbo Trilogue on December 7, the EU Council is said to have advocated lowering the minimum age for border procedures from twelve to six years. Germany had originally campaigned to completely exclude families and unaccompanied children from border procedures altogether, but was unable to gain sufficient support from the other EU Member States. The border procedures are particularly serious in combination with the so-called Crisis Regulation, which stipulates that in times of "force majeure" or "instrumentalisation", exceptional rules should apply that would further restrict the right to asylum. Asylum procedures could then be suspended for weeks and all people from countries of origin with a recognition rate of up to 75% could be treated in border procedures, where they would have remain up to 20 weeks instead of the usual twelve.

"Safe third countries"

Another aspect of the planned CEAS reform that has come in for particular criticism is the expansion of the concept of "safe third countries" and the lowering of the criteria that a country must meet in order to be considered "safe". In combination with the above border procedures, this is particularly problematic because it can be assumed that those affected will have little or no legal recourse against such decisions. There is a risk of a far-reaching externalisation of refugee protection.

Solidarity and relocation mechanism

Finally, the aspect of the allocation of asylum seekers within the EU is an important component at the heart of the CEAS reform. Since the Dublin Regulation came into force, the principle of the country of first entry, which bears responsibility for the asylum procedure of a person seeking protection, has applied in the EU. This principle has placed a disproportionate amount of responsibility on countries at the external borders, such as Italy and Greece. Following the sudden increase in the number of people seeking protection in Europe in 2015, there was widespread agreement that the Dublin principle had failed. Despite this, the package proposed by the Commission adheres to this principle: it can even be argued that the Dublin system is to be tightened, as transfer deadlines are to be extended, for example, while at the same time restricting legal protection, which in practice could lead to months of limbo for asylum seekers. 

Although there is to be a solidarity mechanism between the EU Member States, this is to include financial payments as an alternative to accepting people seeking protection (€20.000 for each asylum seeker not accepted), with the money from this cynical offsetting then in turn being used for so-called "migration management". The Commission proposes a complex system of safeguards to secure this mechanism. However, it remains questionable how the implementation of relocation within the EU is actually to be guaranteed, taking into account the experience of previous relocation balances.

The right to asylum is an achievement of civilization

We still have a relatively high legal standard in the EU, but this is often not upheld, to the detriment of many refugees. The reality for many people on the ground in Greece and along the Balkan route is dire, despite the current legislation.

But what will happen if, in the course of the CEAS reform, the legal framework is adapted to the already existing discriminatory and brutal practices of some Member States, if refugee protection in Europe is also dismantled on paper and no longer just de facto? What will the reality be like for people on the move and those who support their rights? Or will "everything remain the same", because EU Law will only be honed in such a way that it adapts to the inhumane practices already in place at the external borders?

The fact that the fundamental right to asylum as an individual right, which actually forms the core of the current Geneva Refugee Convention, is being curtailed in this way, could lead to migration as such being criminalised in practice for good. This would have serious consequences both for people who have to seek protection in the future and for those who are already living in Europe. What happens if a structural distinction is made between countries of origin with "good and bad prospects of remaining" and the focus is no longer on individuals and their reasons for migrating?

The following still applies: everyone has the right to seek protection and to have their asylum application examined in a fair and constitutional procedure. This right is an achievement of civilisation, and not least a historical lesson from World War II, when it was denied to millions of people. This also applies to the appreciation, and not criminalisation, of the people committed to sea rescue and dignified treatment of refugees. This right should be at the heart of a Common European Asylum System so that future Moria camps can actually be prevented. Organisations and experts here in Greece and across Europe continue to campaign for this. It is to be hoped that they will be heard in Brussels.