A Pact: So What?

In the early hours of 20 December, after a marathon of several days, negotiators from the Council, represented by the Spanish Presidency, and the European Parliament, supported by the Commission, reached agreement on the five regulations making up the long-awaited Pact on Migration and Asylum.

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A Pact: so what?

In the early hours of 20 December, after a marathon of several days, negotiators from the Council, represented by the Spanish Presidency, and the European Parliament, supported by the Commission, reached agreement on the five regulations making up the long-awaited Pact on Migration and Asylum.

The negotiations were intense, and the outcome remains uncertain: finalising the texts and reaching a definitive agreement before the European Parliament elections is one of Belgium’s top priorities as it takes over from Spain at the helm of the Council. And these are real challenges: as is often the case, this agreement has been reached at the cost of “constructive ambiguities” that are likely to resurface and cast doubts on the ultimate outcome of the reform.

All stakeholders loudly rejoiced at what has been dubbed as a big political win for the Union and its Member States. In this regard the most explicit was undoubtedly the President of the European Parliament, Roberta Metsola, who described the adoption of “probably the most important legislative deal of this mandate” as “historic”.

But will the European Union now have a “robust legislative framework…that functions and that protects”, as Ms Metsola put it, and the “comprehensive approach to migration” that the European Council of 14-15 December committed to? To draw such a conclusion would be rather naïve. And this for at least three reasons.

Impact

Firstly, it is hard to measure the exact scope and impact of what has been decided (or not) until we have the texts in their final version, and much remains to be done to conclude this highly political legislative exercise.

More than ever, the devil will be in the details. The system to be put in place represents an attempt at reforming reception at the external borders, but the road ahead of its implementation is paved with hurdles and risks, particularly when it comes to putting in place adequate human rights safeguards for those seeking asylum.

One thing is certain: the EU legislators have seized the last chance to safeguard a resemblance of common policy, whatever its substance. They have done so just ahead of the European elections where failure on this hyper-sensitive issue would have weighed heavily in the balance.

The question remains whether this resolve will be enough to achieve a European solution to the decade-long migration problem or, rather, will it backfire.

Implementation

Secondly, rules are one thing, their implementation is another. The Pact will involve a cascade of implementation plans, first at the European level, then at the national one, which will come into effect within two years of the formal adoption of the texts, i.e. probably in the spring of 2026.

This means that the “European response” to the challenges of migration called for by many national politicians will remain virtual for some time to come.  In the meantime, the solidity of this response remains to be demonstrated and should not feed public expectations.

In the short term, the mobilization of the significant financial resources needed to implement the reform depends on an agreement yet to be reached on the mid-term review of the multi-annual financial framework. The European Council will return to this issue on 1 February, but the effectiveness of EU spending in this area remains questionable. Clearly, in fact, the billions of Euros made available to Member States or third countries over the past decades have not yielded the expected results.

A change of pace?

Thirdly, there are even deeper reasons for doubt. It would be an overstatement to claim that the Pact will finally put in place a mechanism that the EU lacked until now.

Since the turn of the millennium, the EU has put in place a regulatory framework, including administrative (agencies), technological (information systems), and budgetary instruments. The problem is that this apparatus has not been fully and properly implemented by the Member States. For its part, the Commission, sometimes unwillingly, has not been up to the task of monitoring its application. The cascade of reintroductions of internal border checks to control migration bears witness to this fundamental problem.

For the same reasons, it would be overly optimistic to expect this reform to substantially address the pitfalls of the existing system, starting from the much sought-after overhaul of the country-of-first-entry principle. Trust is still lacking and the prospects of striking the right balance between solidarity and responsibility-sharing on the ground, particularly through relocations, remain poor. Neither can be simply reinstated by regulation, and there is no guarantee that the implementation of the Pact will suffice.

If this pessimistic outlook were to materialize, the very future of the Schengen area and, ultimately, European integration would be at stake.

Another unsolved issue, in fact, is whether the Pact will mark a move beyond crisis-driven migration policy. The set of emergency measures and exceptions recognised in the texts suggest that this reform is more likely to crystallize this mode of managing migration rather than provide a convincing alternative to it.

To avoid this scenario, at this point, it would be essential to turn the page on this legislative phase and work on implementation “from day one”.

Other migration deals

In the meantime, a “European solution” in the form of migration deals with third countries continues to gain traction among EU institutions and Member States alike. In fact, the challenges ahead of the Pact’s adoption become even more substantial when we turn to the external dimension of migration management.

Here the EU continues to walk a fine line between acknowledging that “addressing migration with partners worldwide is most effective when our relationships are at their most comprehensive”, in the words of President von der Leyen’s letter to the December European Council; and – on the other hand – an approach stubbornly guided by the desire to appease national constituencies and pursue domestic objectives.

This unresolved tension has led to the conclusion of questionable agreements with third countries whose political regimes fall short of rule of law standards, only feeding into the EU’s dependency on unreliable partners.

More generally, while cooperation with third countries will be necessary to fulfil the Pact’s own predicaments, the EU persists in pursuing a counter-intuitive migration policy. The quest for strategic autonomy should prompt the Union to limit its dependency and prepare to face cyclical labour market shortages and structural demographic changes.

Instead, with the Pact and the constellation of migration deals that risk overshadowing it, poor migration management is likely to remain a liability for the EU.

Not only are there serious concerns regarding the level of human rights safeguards that it will be possible to ensure under the new procedures. The reform also appears unlikely to lead to a stronger asylum management system that is also more resilient to external shocks.

Looking ahead

How to conclude? If formally adopted, the Pact will help overcoming a political stumbling block. It will mark the end of the legislature without leaving a “black hole” on the highly salient migration issue. But progress on substance, if any, remains partial, uncertain, and fragile.

The Commission, the European Parliament, and the Member States would commit a political mistake if they ticked off the “migration” box once and for all, particularly as the European elections loom.

Quite to the contrary, as they prepare for the next institutional cycle, they should fully recognise the need for a much more ambitious agenda on migration. Efforts to manage irregular migration should be compounded with proportional attempts at channelling migration through regular – and safe – routes. Similarly, the EU should fully acknowledge the potential of mobility to prepare for the structural climate and demographic transitions.

The subject, in sum, will and should remain very high on the strategic agenda of the EU for the next five years.

(Photo credit: Unsplash, Henri Buenen)