For years, the European Commission, the EU Member States, and the European Parliament have been trying to reform the Common European Asylum System (CEAS). Until recently, reform attempts have failed because of widely diverging positions on the issue. In the fall of 2020, the Commission presented comprehensive reform proposals for a “new migration and asylum package.” In September 2022, the Council and Parliament agreed on a roadmap, aiming to conclude negotiations before the next European elections. In fact, on December 20, 2023, the Council and the European Parliament reached a political agreement in high-pressure trilogue negotiations in which the Council’s positions largely prevailed. The key consensus in the now adopted reform package is to curb what is called irregular migration. Once it enters into force, it will result in sweeping changes to the existing asylum system, with massive consequences for asylum seekers as well as for the EU Member States.
The reform package and the trilogue negotiations
The vast number of legislative changes is a complex challenge in itself. The package approach makes them even more difficult to assess because many sub-areas are interconnected and contingent upon each other. The complexity of the matter definitely has political and practical implications: It has been nearly impossible for legal aid organizations, lawyers, and social workers who apply EU law in their daily practice to critically monitor this complex and nontransparent negotiation process. Given the dire state of European asylum policy, such monitoring would have been indispensable. The package includes three essential aspects that are particularly worth emphasizing:
- The border procedures that have been proposed by the Commission and agreed in the trilogue are to be governed by what is called the fiction of non-entry. It means that EU soil is to be treated extraterritorially, similar to German airport procedures. Combined with the so-called Crisis Regulation, which provides for exceptional rules to apply in times of “force majeure” or “instrumentalization,” this would have serious impacts and would further restrict the right to asylum, resulting in even longer detention of refugees in border procedures.
- Expanding the concept of “safe third countries.” This will likely largely externalize refugee protection and lower the criteria a country must meet to be considered “safe.” Particularly in combination with border procedures, we must assume that refugees will have little or no legal recourse against such decisions.
- Lastly, another key component of the CEAS reform is the distribution of asylum seekers within the EU. Despite criticism, the recent agreement upholds the principle of the Dublin Regulation, under which the country of first entry has jurisdiction over a case. Although there is to be a solidarity mechanism between the EU Member States, countries will be able to pay their way out of accepting refugees (€20,000 for each refused refugee). The funds are also to be used for “migration management,” including repatriations.
The right to asylum is an achievement of human civilization
We still have a relatively high legal standard in the EU, but it is often not upheld, to the detriment of many refugees. Now the CEAS reform seems to be adapting the legal framework to the existing discriminatory and sometimes brutal practices of some Member States. This will likely reduce refugee protection in Europe, officially on paper, rather than just de facto. As of right now, everyone still has the right to seek protection and have their application for asylum reviewed in a fair and constitutional procedure. This right is an achievement of human civilization and, not least, a historical lesson learned from World War II, when millions were deprived of this right.
Numerous experts and activists across Europe, including partner organizations of the Heinrich Böll Foundation, are advocating for this right. Their commitment is all the more important now in light of the recently passed reform. Human rights and the protection of refugees in Europe must be upheld in the future, especially in view of the erosion of EU law.
Neda Noraie-Kia has headed the Heinrich Böll Foundation’s regional program on Migration and Flight at the foundation’s Thessaloniki Office since 2020. As a political scientist, she previously spent five years working as a research assistant and office manager for Luise Amtsberg, the then refugee policy spokesperson for the Alliance 90/The Greens parliamentary group in the German Bundestag.