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28th Feb 2024

Crunch talks seek breakthrough on EU asylum overhaul

  • EU negotiators are hoping for a political agreement before the end of the year (Photo: Sara Prestianni)
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The EU is hoping for a political breakthrough on asylum reform during morning-to-midnight closed-door marathon negotiations on Thursday (7 December).

The Spanish EU presidency and the European Commission have both said that the positions of the European Parliament and the Council, representing member states, are close.

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But in reality, core differences abound amid possible concessions from MEPs as political pressure mounts to reach an agreement on the outstanding five files that make up the European pact on asylum and migration.

Should they fail, then follow-up crunch talks on 18 December are likely, less than a week after an EU summit is scheduled to take place in Brussels.

Some files are closer to being finalised than others, including Eurodac, a reform of a massive EU database that seeks to collect the finger prints and facial imagery of asylum seekers as young a six.

The overhaul has been billed by the European Commission and others as the solution to address all the problems facing EU states when it comes asylum.

They say a deal must also be penned in order to counter far-right political parties ahead of the European elections next June, as well as hostile states 'instrumentalising' migration, like Belarus and Russia.

But critics say it will cause further chaos, won't be possible to implement, lead to detention at the external borders, and erode fundamental rights of asylum seekers.

Cyprus, Greece, Italy, Malta and Spain are also likely to end up with more problems, given as coastal Mediterranean EU states they are most exposed to irregular arrivals and will have to shoulder most of the responsibilities.

It also likely means EU states will instead try to find alternative solutions by cutting deals to outsource asylum to countries like Albania and Tunisia.

But the basic plan under the reform is to first identify everyone arriving at an external border during a five-day screening procedure where people are placed in a legal limbo, a so-called legal fiction of non-entry.

Those with legitimate claims will have access to a normal asylum procedure.

Everyone else, including nationalities with less than a 20 percent successful asylum rate in the EU, are shuffled into a separate fast track 12-week border procedure.

This procedure could expand to anyone that has transited through a country deemed already safe — possibly including the Western Balkans.

First proposed by the European Commission in late 2020, the five core files have been grinding their way through the legislative machinery.

The imprint of the co-legislators on the original texts has since shifted, with the Council pushing for more restrictive measures amid pushback from the European Parliament.

The five files include the asylum and migration management regulation (AMMR), the crisis and 'force majeure' regulation, screening regulation, asylum procedures regulation, and Eurodac.

These are intertwined with a host of other proposals, including an instrumentalisation regulation that was later added in response to Belarus pushing migrant and asylum seekers over their borders with Poland, Lithuania and Latvia.

AMMR

The asylum and migration management regulation (AMMR) deals with the politically-charged issues of solidarity and responsibility, including relocations whereby arriving asylum seekers would be distributed across EU states on a voluntary basis.

For the Council, the 'solidarity' concept spans relocation, financial contributions or alternative solidarity measures such as deployment of personnel.

And it has also managed to downgrade the priority given to relocations, whereby 30,000 per year are supposed to be taken from EU states under pressure.

But judging by past relocation efforts spearheaded by the French EU presidency, the likelihood of achieving such figures seems low.

Those member states that refuse could also instead pay €20,000, which was immediately framed by anti-migration Hungary and Poland as a fine.

Among the bigger sticking points to be ironed out on Thursday is whether to expand solidarity to include search-and-rescues at sea.

The Council is against the idea, leaving Cyprus, Greece, Italy, Malta and Spain scrambling for other solutions.

'Crisis'

The crisis regulation deals with so-called 'crisis moments', broadly defined as an exceptional and unexpected mass arrival of people.

Whereas people would normally be shuffled into the accelerated border procedure when their nationality asylum rates are below 20 percent, the crisis bill increases it to 75 percent.

The lead MEP on the file is Spanish MEP Juan Fernando López Aguilar, a native of the Canary Islands where thousands of people arrive by boats on a daily basis.

Last year, he said the European Commission must be given the powers to force member states to relocate asylum seekers in times of crisis. This includes input from the European Parliament, a move contested by the Council.

The bill includes derogations on laws, allowing EU states to deviate from standard asylum rules.

"This will just get worse if member states now have multiple options to just opt out to the common rules whenever they feel like it, basically," said Stephanie Pope, a policy expert from Oxfam.

Pope says the bill would lead to prolonged detention periods for people fleeing conflict or persecution.

The Council has since folded the instrumentalisation regulation into the crisis bill, posing further rights questions.

Despite resistance among the socialists, López Aguilar appears increasingly open to also folding the instrumentalisation into the crisis bill.

Screening regulation

The screening bill seeks to identify people, determine their nationality, and fingerprint them before shuffling them into different asylum tracts.

It also involves setting up an independent monitor to ensure rights are respected. But where and to what extent the monitor will be able to carry out his or her duties remains contentious.

The Spanish EU presidency says it will be limited and won't include border surveillance, or areas where most illegal pushbacks are likely to occur.

The European Parliament wants border surveillance included.

"It is the sensible way to ensure a coherent monitoring of fundamental rights at our European borders. However, this is still a point of contention with the member states and is likely to remain so till the very end of the negotiations," said Birgit Sippel, a German Socialists & Democrats MEP spearheading the file on behalf of the European parliament.

Another flashpoint is where screening occurs.

EU states want to be able to screen people anywhere, including cities and not just at the external borders. But the parliament says this could lead to discrimination and racial profiling.

Other critics say the bill itself will lead to administrative bottlenecks among competing authorities, such as what is currently happening in Greece.

One authority will conduct screening, while another will be in charge of the asylum process.

"This leads to asylum authorities very often unfairly dismissing asylum applications," said Minos Mouzourakis, a legal officer at the Greek-based Refugee Support Aegean, at an event last month.

Asylum procedures regulation

People who have been screened with no valid asylum claim, or whose country's successful asylum protection rate is 20 percent or below, will be shuffled into a fast track asylum procedure.

The bill attempts to layout the legal framework for this 12-week process, which could include families with children older than five years, and in specific cases, unaccompanied minors.

Critics say it will lead to detention and prison-like centres that will further isolate asylum seekers from local communities.

Sensitive issues include council demands to make the border procedure mandatory for everyone, including children.

The European Parliament appears increasingly open to idea but under certain pre-conditions such as ensuring proper accommodations and medical aid.

Another flashpoint is the 'safe third country' concept, a basis for denying people access to an on-merits asylum procedure or to protection in Europe.

If a country outside the EU is deemed safe, then an asylum seeker could be transferred to that country to have his claim processed. This is similar to the EU deal with Turkey.

But the council says a safe third county could also be one where an asylum seeker had only transited.

The EU parliament says there needs to be a stronger connection and the country needs to a functioning asylum system, labour market access, and protection against pushbacks.

Eurodac

Among all the files, this one is most likely to be concluded on Thursday with a political agreement. The legislation aims to fingerprint asylum seekers as young as six, to process facial images, and to use force if necessary. Civil rights defenders say the proposed reform of the database is tantamount to mass surveillance.

MEPs lay out asylum vision as majority back fence funds

MEPs leading files on the EU asylum reform want binding relocations of asylum seekers in times of crisis, a contentious issue for member states. But some capitals will be pleased that most MEPs also endorsed EU funding for border fences.

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