The EU’s new asylum plan is filled with promise and peril

The EU’s new asylum plan is filled with promise and peril


The European Union has proposed an ambitious new plan to deal with the thousands of asylum seekers who continue to arrive on Europe’s shores. But even top officials in the bloc acknowledge that the plan won’t make anyone happy.

On Wednesday, the European Commission (the EU’s executive arm) released more than 500 pages filled with proposals to change its years-long asylum policy. The “New Pact for Migration and Asylum,” which is strongly backed by Germany, aims to convince EU member nations skeptical of letting in migrants, already overburdened with refugees, or angling for reform that a new compromise can be struck by the end of next year.

“I am not asking you to like it,” European Commission Vice President Margaritis Schinas told EU lawmakers on Thursday. “I am asking you to understand it.”

Under the plan, all 27 member states would agree to take in asylum seekers or take responsibility for sending those who are denied asylum back to their home countries. The plan would end the quotas for the number of refugees each country should take in, and would set up a new, expedited system for processing and deporting people who are denied asylum back to their countries of origin.

The problem is that the plan has upset nearly everyone, likely dooming its prospects for full adoption.

“These rules are not acceptable for us,” Czech Prime Minister Andrej Babis said during a Thursday news conference alongside other leaders hostile to refugees. “The strategy should be that these people really should stay and live in their home countries, and we have to do the maximum for this and we have really to discuss it.”

Those who want to help asylum seekers and believe the EU’s migration laws should be more welcoming don’t support the plan, either. “There’s not a whole lot that’s actually new in this proposal, and the few things that are new are, on the whole, ghastly,” said Judith Sunderland, the deputy director for Europe at Human Rights Watch (HRW).

Simply put, for some the new migration policy isn’t tough enough, and for others it isn’t humane enough — a divide that may be too wide to bridge. “The proposal is an attempt to reconcile two extreme positions among member states that can’t really be reconciled,” Gerald Knaus, chair of the European Stability Initiative (ESI) think tank headquartered in Berlin, told me.

Such a challenge hasn’t stopped European Commission President Ursula von der Leyen from tackling the continent’s migration woes, an issue she has made a core concern during her first year in charge. The EU’s migration policy needs “a fresh start,” she told reporters in Brussels after releasing the reform package. “The old system to deal with it in Europe no longer works.”

She has a point. European politics have roiled since more than a million people fleeing war and persecution sought asylum in the EU in 2015 — with hundreds of thousands arriving since, and others dying on the way — fueling the rise of far-right parties and the strongmen who lead them. The bloc’s mishandling of the issue, mainly by stashing those who await an asylum decision in sprawling refugee camps on the continent’s periphery, has deepened the humanitarian crisis.

The extent of the overall failure was underscored earlier this month when a fire destroyed Europe’s largest refugee camp on the Greek island of Lesbos, leaving the majority of its 12,000 residents homeless.

The lives of thousands of people, then, hang in the balance as European leaders debate the complex set of proposals over the coming year. Unfortunately, very few believe it’ll lead to any real progress.

“Most of this is unlikely to work the way the European Commission says it will work,” HRW’s Sunderland told me, “but it is likely to cause a lot of suffering to people.”

How the EU’s new asylum proposals would work

Within the 500-plus pages of proposals lie solutions to three interrelated problems the EU’s leaders aim to solve.

First, they want immigration officials in border states to adjudicate asylum claims much faster than they do now, hoping to reduce the number of people waiting for a decision and foster a more efficient process.

Second, they want to incentivize nations unwilling to assist with asylum claims to pitch in. If they don’t, there is a mechanism by which the bloc can force those countries to do so.

Third, they want to expedite the return of people not granted asylum back to their home countries, ensuring they don’t linger too long in the temporary host nation.

The reason for tackling those three issues is not only to attempt to improve the situation for thousands of refugees, but also to satisfy the concerns of countries that don’t want to accept more asylum seekers, according to multiple European Commission staffers I spoke with.

They said top Commission officials have engaged every nation’s leader for months — including immigration hawks in Hungary, Austria, Poland, Slovakia, the Czech Republic, and more — to hear their views. The suite of proposals is meant to assuage their worries.

But experts say the reform package falls well short of the mark, however well-intentioned. “The end result, if adopted, wouldn’t make much of a difference, and it wouldn’t address the problems along the external border today,” said ESI’s Knaus.

Let’s take a look at the proposals for those three problems:

1) Approve or deny asylum claims faster

The current EU asylum directive gives member states up to six months to decide whether or not to accept someone’s asylum claim if they arrive at a European border irregularly — that is, illegally by land or sea.

That’s a long time, but consider what goes into such a decision. The government must figure out if sending an applicant back home might lead to their persecution, imprisonment, or even death. That’s a hard thing to do, made harder by the fact that some people have weak — or even fraudulent — asylum claims. If the nation’s immigration agency is understaffed or overwhelmed by a large number of asylum seekers, delays inevitably ensue.

Many of the individuals and families come from war-torn nations or are religious and ethnic minorities facing persecution back home. Fleeing for their lives, they may not have the requisite paperwork and evidence to prove they were recently in mortal danger. They also may not have the funds to contract proper representation for a tricky legal matter.

International law states that someone who requests asylum at another nation’s port of entry should have their plea heard and fairly considered, and the EU as a whole abides by that. But, of course, there are countries that don’t want migrants awaiting asylum decisions for months in their territory, and most refugees would like an answer as quickly as possible.

To satisfy both needs, the EU has now proposed ways of making the entirety of the process faster.

Say an asylum seeker — let’s call him Alex — arrives in Greece irregularly from the United States. Before Alex can pass a border checkpoint, local and EU asylum officials will put him through a five-day-long screening process. He’ll have his ID and health checked, his background delved into, and more. After the screening, Alex will be placed on one of two tracks: 1) where a negative decision is likely, or 2) where a positive decision is likely.

Alex is most likely not going to get his asylum claim granted. The US is a safe country, he’s male, he’s in his 30s, and no one could find evidence that sending him back to his reporting job in Washington would put him in danger. There’s also the chance that border guards find Alex poses some security threat to Europe — perhaps he has an extremist acquaintance on Facebook — and that might also put him on the negative track.

In either case, under the new proposal, he will remain at Greece’s border in a facility constructed to house people going through the “border procedure.” He won’t be granted access into the country, he can’t leave the frontier, and he’ll only have 12 weeks total to make his case, including any needed appeals — about half the time of the current deadline. If Greece still thinks Alex has a weak asylum claim by the end of that time period, he’ll be sent back to the US, though that’s easier said than done (more on this in a minute).

(To be clear, if Alex were an unaccompanied minor, part of a family from a war-torn nation, or an individual from a country that might harm him upon return — say, Syria — he might be put in the positive decision track and the normal six-month process remains in effect.)

European Commission

At first blush, this all sounds well and good. Asylum seekers would be in limbo for less time, and authorities can more quickly remove from the queue people unlikely to have their appeals granted.

But if all this sounds familiar, it’s because it is. This is basically the EU’s existing plan, known as the “hotspot approach,” to house asylum seekers in ramshackle facilities at borders. The only real difference here is the handle-the-asylum-claims-faster twist.

The refugee camp in Lesbos that just burned down, for instance, was a so-called hotspot. So it seems the EU doesn’t actually have a plan to move away from having places like it. “What they’re proposing would lead to more and more and more [Lesbos-like camps] in more and more places,” said HRW’s Sunderland. “The whole logic of the hotspot approach hasn’t worked at all.”

There’s also a debate on the speed-of-decisions part. Some experts fear plowing through asylum claims will lead to more errors. For example, instead of delving more deeply into a refugee’s background, some details might be missed by authorities in an effort to rush, perhaps ending in a wrongful denial. Others say certain European countries — namely the Netherlands and Switzerland — have successfully expedited decisions on asylum claims by modernizing procedures, increasing staff, and offering government-funded legal advice to claimants.

Either way, this part of the reform package doesn’t seem that different at all, save for trying to move things along more quickly.

2) Get other countries to help with asylum claims, even if they don’t want to

This next change — having other nations chip in to help overwhelmed member states — is arguably the EU’s most controversial proposal and the one most likely to cause the greatest political strife.

Countries in Europe’s south — Greece, Italy, Spain, Malta, and more — have by virtue of their geography seen hundreds of thousands of asylum seekers arrive on their shores in the last five years alone. Nations elsewhere on the continent don’t see such high numbers of refugees because they’re not as easily accessible by land or sea.

During the 2015 crisis, those southern countries, especially Greece and Italy, were overwhelmed with asylum claims and asked other nations to help them. But many didn’t, leaving them to handle the influx mostly by themselves.

In the following years, some southern European nations have forced boats of migrants and refugees to turn away, in violation of international and EU law, in order to keep the number of asylum-seekers down because they feel they can’t take anymore.

The EU’s leadership knows this is a problem and has long made boosting solidarity on this issue — that is, getting all member states to help with migration and asylum claims — a main focus. The new proposals this week offer a remedy, basically by forcing other states to help.

Here’s how it would work: Say Alex is joined by thousands upon thousands of refugees awaiting asylum decisions in Greece. Like in 2015, the influx is so large that it’s overtaking what Greece could handle, even with the EU’s assistance. At that point, either the EU or Greece may realize other countries in the bloc need to help with the situation and officially call for help.

This is where it gets tricky. Most simply put, EU countries would have to pledge how many asylum seekers they’re willing to care for. If the number of pledges falls below 70 percent of the determined need (i.e., countries in total are only willing to take 600 of 1,000 claimants) then the EU can force those who have under-pledged — determined by how rich and populous a nation is — to take more people. (More on the forcing mechanism, and the problems with it, in a moment.)

Countries pledging to help can do so in one of two ways.

First, they can choose to relocate an asylum seeker. In this case, a country like Sweden would take Alex from Greece and continue to process his asylum claim there, in Sweden. That option is straightforward and appeals to nations not skeptical of bringing in new migrants.

The second option is geared toward refugee-skeptic countries. Instead of taking in Alex, a country like Hungary could sponsor his return back to the US once his asylum claim is denied. Alex would stay in Greece, but Hungary would handle the negotiations with Washington to send him back and pay for the flight to the US. That makes Greece happy by taking Alex’s return issues out of its hands, and makes Hungary happy by allowing it to help without having to take Alex in.

There’s a catch, though: If Alex isn’t returned to America within eight months, he would be sent to Hungary as the process continues. The reason for that is to ensure Alex doesn’t grow too fond of Greece or set up familial roots by getting married or having kids — which would make his eventual return home harder — and also to incentivize Hungary to handle Alex’s case quickly instead of letting him languish in Greece.

European Commission

But what if Hungary doesn’t want to pay for Alex’s, or any asylum seeker’s, return? After all, Hungary already passed a law making asylum assistance harder, and Prime Minister Viktor Orbán is deeply hostile to refugees.

This is where the enforcement mechanism comes in.

Per European Commission officials I spoke to and the proposal documents, the European Commission would have the right to adopt an “implementing act” — a law — that would force a member state to assist whatever country is in need. Since such a measure would be official EU law, the strong belief is that EU member states would abide by it. After all, the bloc is governed by the rule of law, and Hungary would have no choice but to choose either the relocation or return-sponsorship option.

But EU officials don’t yet have an answer for what would happen if Hungary, or another refugee-hostile government, were to defy such a law. If that were to happen, the EU could find itself in a deep political crisis. “It’s hard to see how the Hungarian government is going to suddenly participate in schemes that would see more migrants move to Hungary,” said Andrew Geddes, director of the Migration Policy Center (MPC) in Florence, Italy.

That said, EU officials remain confident that even the migration-skeptic nations would follow the law, as they could be taken through the bloc’s judicial process for redress.

It’s therefore possible these proposals would work just fine if implemented and that cynicism is unwarranted. But what bothers some experts most is that the proposed reforms are the EU effectively cowing to refugee hardliners. “The lowest common denominator has been lowered,” Geddes told me. And even then, statements by Hungary’s government and other EU countries make it clear that those concessions still aren’t enough.

3) Send denied asylum seekers back to their home countries faster

Finally, we arrive at the return-to-the-home-country part.

Let’s stick with our example: Alex’s asylum claim in Greece was denied, and now he’ll be forced to go back to America. Greece can’t handle the return home because it’s overwhelmed, so Hungary — either willingly or forced by the EU — is taking care of it.

In this case, Alex’s return is quite simple. The US can easily absorb him back into society and his life won’t be in danger upon return. But say Alex was from Tunisia — now the situation gets trickier.

Tunisia is currently in an economic crisis and is struggling with the coronavirus. Because of that, thousands are crossing the Mediterranean Sea to Italy and other southern European countries to claim asylum. The problem is that not everyone is going to have their claim accepted, and Tunisia doesn’t necessarily want to take certain people back since they already wanted out (among other reasons).

As a result, there’d be a standoff as both Hungary and Tunisia work out what to do. Multiply that by thousands of cases, and you can see the scale of the problem: thousands of men, women, and children just languishing at European borders waiting for a resolution.

This is a common problem in the EU. Its own statistics show only 40 percent of asylum seekers are successfully returned to their home countries, and that number plummets if the home nation is outside of the European continent, experts told me. ESI’s Knaus said Germany could only deport 1,000 people outside Europe in the first half of this year, well below last year’s rate, when 4,000 people total were sent back to their non-European home nations.

It’s this issue countries like Hungary cite often, and it is partly why they’re opposed to even the return-sponsorship option. Remember, if the Hungarian government can’t send Alex to his home country within eight months, it has to bring him to Hungary as it further works on sending him out of the EU. That’s just not a scenario refugee-hostile nations want hanging over them.

Put together, the EU tried to tackle three key problems with its new reforms, but it seems they either repackaged old solutions or didn’t offer appealing remedies. It’s for those and other reasons experts feel the proposals won’t make it through a year or more of deliberations.

What would make the EU’s migration policy better?

To be adopted, every proposal must make it through the European Parliament — which is made up of representatives from member states — and the European Council, a decision-making group made up of heads of state or ministers from each EU nation. Unanimity isn’t required, but it will take a large portion of each body to approve the new measures.

That’s a big task, and few believe most of the proposals will make it through the process. “The European Commission is basically saying ‘these are our ideas,’ but it doesn’t mean member states will like them,” said MPC’s Geddes. ”This is a big test for the EU to see if it can put in place agreements for such issues of high politics. A lot is at stake.”

What’s more, most experts I spoke to believe debating these issues amounts to a wasted opportunity. If passed, the reforms would lock in most of the failures of the EU’s asylum and migration policies of the last few years. And if they fail to pass, vulnerable people will have continued to suffer while politicians spent time fruitlessly debating and posturing.

The experts offered three general solutions the EU should focus on instead.

First, the EU shouldn’t try to force countries to take in migrants they simply don’t want. The bloc’s focus should shift from finding a common policy to creating a “coalition of the willing” — a group of EU nations that actually do want asylum seekers. As a reward, they might receive more funding or perhaps even greater voting power inside the EU.

The downside is the bloc won’t be as cohesive on asylum and migration issues. But some feel giving people a welcoming place to stay should be the priority, not creating an artificial sense of unity.

“I don’t think Europe should be held hostage by a hostile minority,” HRW’s Sunderland told me.

Second, the EU should work on enforcing existing asylum and migration laws instead of trying to sell new ones. That means ensuring countries don’t push asylum seekers back on boats and actually take in refugees from hotspots to lessen the burden on the Greeces and Italys of Europe. Furthermore, the EU should find a way to punish countries like Hungary for making it harder for asylum seekers to enter there.

“The fundamental problem right now is that we have a lot of laws that are being broken already,” said ESI’s Knaus. “If laws are being broken with impunity, isn’t the first step toward change making the laws already in force count? Why would changed laws be any better?”

Third, the EU must get creative with how it deals with home nations. For example, Moroccans and Tunisians don’t have visa-free travel in the EU. The EU could offer visa-free travel to citizens — making tourism and commerce easier — in exchange for their willingness to expedite the return of nationals denied asylum in Europe. Such a trade worked with Ukraine, and the EU has found it easier to send back asylum-seekers there ever since a deal was struck.

None of these solutions is perfect, but many believe they’ll serve the interests of both refugees and the EU more than what was just proposed.

“There’s a big question mark about whether or not all this will actually help asylum seekers,” MPC’s Geddes told me. That said, he understands why EU leadership wants to settle this problem now before it gets any worse. “Something has to get done, or else the EU is never going to make an agreement.”

Correction 9/26: Knaus’s statistic about deportations from Germany were to outside Europe, not the EU. The change has been made.

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