BAKGRUNN (fra kommisjonsforslaget av 23.9.2020)

In September 2019, European Commission President Ursula von der Leyen announced a New Pact on Migration and Asylum, involving a comprehensive approach to external borders, asylum and return systems, the Schengen area of free movement and the external dimension.

The Communication on a New Pact on Migration and Asylum, presented together with a set of legislative proposals, including this proposal amending the 2016 proposal for a recast Asylum Procedures Regulation, represents a fresh start on migration. The aim is to put in place a broad framework based on a comprehensive approach to migration management, promoting mutual trust among Member States. Based on the overarching principles of solidarity and a fair sharing of responsibility, the new Pact advocates integrated policy-making, bringing together policies in the areas of asylum, migration, return, external border protection and relations with key third countries.

The challenges of migration management, including those related to irregular arrivals and return, should not have to be dealt with by individual Member States alone, but by the EU as a whole. A European framework that can manage the interdependence between Member States’ policies and decisions is required. This framework must take into account the ever-changing realities of migration, which have meant increased complexity and an intensified need for coordination. Although the number of irregular arrivals to the Union has dropped dramatically by 92% since 2015, there are still a number of structural challenges, which put Member States' asylum, reception and return systems under strain. These include an increasing proportion of applicants for international protection who are unlikely to receive protection in the EU with a resulting increased administrative burden and delays in granting protection for those in genuine need of protection as well as a persistent phenomenon of onward movement of migrants within the EU. Moreover, the challenges for Member States’ authorities in ensuring the safety of applicants as well as their staff when facing the COVID-19 crisis must be acknowledged also.

Whilst the number or irregular arrivals has decreased since 2015, the share of migrants arriving from countries with recognition rates lower than 20% has risen from 13% in 2015 to 55% in 2018. At the same time, there has also been an increasing share of complex cases, which are more resource consuming to process, as the arrival of third-country nationals with clear international protection needs in 2015-2016 has been partly replaced by mixed arrivals of persons with more divergent recognition rates. Furthermore, notwithstanding the EU-wide decrease in irregular arrivals, the number of applications for international protection has continued to climb, reaching a fourfold difference to the number of arrivals. This trend points towards applicants not applying in the first Member State of arrival, multiple applications for international protection within the EU, and the need for reform of the current Dublin system. Finally, in 2019 half of all irregular arrivals by sea were disembarked following search and rescue operations putting a particular strain on certain Member States solely due to their geographical location.

The increased proportion of asylum applicants unlikely to receive international protection in the EU leads to an increased burden not only in relation to the processing of asylum applications in general but also in relation to the return of those migrants not in need of international protection. An average of 370,000 third-country nationals every year see their application for international protection rejected and they need to be channelled into the return procedure, which represents around 80% of the total number of return decisions issued every year. A seamless link between asylum and return procedures is therefore necessary to increase the overall efficiency and coherence of the asylum and migration system. Irregular migrants who have no protection needs, or no intention to apply for international protection should be quickly channelled into the return procedure. Existing procedural loopholes need to be addressed, such as the issuance of asylum and return decisions in separate acts and a delayed issuance of the return decision, separate remedies, and applicants delaying procedures for the sole purpose of trying to hamper their return from the Union, misusing the protection provided by the asylum system, and the possibility to allow applicants to remain on Member States’ territory during a second or further level of appeal.

It is equally important to work towards a more European return system. The Commission tabled in 2018 a proposal to recast the Return Directive to improve the management and effectiveness of returns. That proposal aims at preventing and reducing absconding and unauthorised movements, reinforcing the links with asylum procedures, boosting the use of assisted voluntary return programmes and improving monitoring and implementation with the support of national case-management systems. Beyond the procedural issues covered by this proposal for a Regulation and the proposal for a recast Return Directive, a more European return system requires the full implementation of the European Border and Coast Guard Regulation, with Frontex as the EU’s operational arm in returns, a comprehensive operational tool to improve case management in return, a sustainable return and reintegration strategy, engaging with third countries on readmission, and a structured high-level cooperation led by an EU return coordinator.

Likewise, the current migration management system continues to put a heavy burden on Member States of first arrival as well as on the asylum systems of other Member States through unauthorised movement. The current system is not sufficiently effective to address these realities. In particular, there is currently no effective solidarity mechanism in place and no clear rules to discourage and address unauthorised movements.

The New Pact builds on the Commission proposals to reform the Common European Asylum System from 2016 and 2018 as well as adding additional new elements to ensure the balance needed for a common framework bringing together all aspects of asylum and migration policy.

This proposal amending the 2016 proposal for an Asylum Procedure Regulation 1 , together with a new proposal for a Regulation on Asylum and Migration Management, the proposal introducing a screening 2 , the proposal amending the Eurodac proposal, and the proposal establishing procedures and mechanisms addressing situations of crisis together establishes the legislative framework that puts this comprehensive approach to migration and asylum management into practice. 

Together with the proposal for a Regulation introducing a screening, it ensures a seamless link between all stages of the migration procedure, from a new pre-entry phase to the outcome of an asylum application, i.e. either the integration of those recognised to be in need of protection or the return of applicants without the right to remain in the Union. The pre-entry phase comprises a screening consisting of identity, health and security checks on arrival, in view of fast channelling into the procedure for the examination of an application for international protection or the return procedure or the refusal of entry.

The proposal amending the 2016 proposal for a recast Eurodac Regulation puts in place a clear and consistent link between specific individuals and the procedures they are subjected to in order to better assist with the control of irregular migration and the detection of unauthorised movements. It also supports the implementation of the new solidarity mechanism established by the Regulation on Asylum and Migration Management, provides the necessary consequential amendments that will allow Eurodac to function within the interoperability framework, and will support Member States in monitoring the granting of assistance for voluntary return and reintegration.

Finally, the Commission is presenting, together with these proposals, a proposal for a Regulation on the management of crisis situations in order to set out the tools necessary to deal with crisis. This crisis instrument covers exceptional situations of mass influx of third country nationals or stateless persons arriving irregularly in a Member State being of such a scale and nature that it would renders a Member State’s asylum, reception or return system non-functional, as well as situations where there is an imminent risk of such arrivals, which risk having serious consequences for the functioning of, or result in the impossibility of applying, the Common European Asylum System and the migration management system of the Union. The Regulation establishes procedures to address situations of crisis and force majeure in the field of migration and asylum within the EU, it establishes possible derogations from the applicable EU acquis on asylum and return and sets out specific rules for the application, in situations of crisis, of the solidarity mechanism set out in the Regulation on Asylum and Migration Management.

The reform aims to tackle the fact that, despite significantly increased cooperation at EU level, including as regards support from EU agencies, Member States’ asylum, reception and return systems remain largely not harmonised. This creates inefficiencies and has the unintended consequence of not providing the same fair treatment to asylum seekers throughout Europe and incentivising therefore the movement of large numbers of migrants across Europe to seek the best conditions and prospects for their stay. In this context, the Commission supports the provisional political agreements already reached on the Qualification Regulation, the Reception Conditions Directive, the EU Resettlement Framework Regulation and the EU Agency for Asylum Regulation. These should be finally adopted as soon as possible. The negotiations on the Return Directive should also be swiftly concluded, together with the reform of the Common European Asylum System, to ensure that EU rules are successful in preventing absconding, providing assistance to voluntary returns and streamlining administrative and judicial procedures, reinforcing the effective functioning of the migration and asylum system.