Problems continue
The bad EU asylum compromise obliges the traffic lights
A guest article by Julian Lehmann
April 14, 2024, 11:12 a.m
The federal government is celebrating the European asylum law reform as a success. In reality, she has to implement a bad compromise – that makes her even more obligated.
With the vote in the EU Parliament, it is a done deal: the EU is implementing the most far-reaching reform in the history of its common asylum system. From 2026 onwards, the plan includes, among other things, rapid procedures at the borders, the detention of those whose asylum applications have a statistically lower chance of success, and an expansion of the regulations on “safe third countries”.
The realpolitik compromise ends years of struggle for the time being. For Chancellor Olaf Scholz, the agreement was “historic”. Foreign Minister Annalena Baerbock was still promoting the “toughly negotiated reform” on Tuesday, even though the federal government was hardly able to set its own accents in these negotiations. Not only that: to the annoyance of some federal Greens, the European Greens joined in the vote on Wednesday.
In fact, the negotiated compromise is a bad one – it does not solve the main structural and political problems of the EU asylum system.
First There is a lack of political incentives to harmonize asylum systems and the reception of refugees. The most important reasons for the current unequal distribution of newly arrived asylum seekers in the member states are, in addition to family ties, the different conditions for asylum seekers in the EU countries, for example in terms of asylum procedures, accommodation or the labor market situation. These conditions encourage asylum seekers to move on within the EU, particularly to Germany. In the period from January to August 2023, other member states were actually responsible for the asylum procedure in Germany in over 38,000 cases. In addition, there is a significant, but smaller than widely assumed, group of people who should actually have previously been registered in another EU country. Transfers to other EU countries also fail because of the authorities in Germany and other EU states, but also because of the German courts. They rightly ensure that people are not transferred to places where their existence is threatened by emergencies and a lack of accommodation.
None of the proposed reforms provide incentives for member states to improve the conditions for asylum seekers. The reform does not affect the controversial Dublin rules, in particular not the rule that states that have allowed an asylum seeker to enter the EU for the first time are responsible for processing asylum applications. At the same time, the solidarity mechanism that should support the EU’s main host countries and actually increase the political willingness to accept refugees is weak. Experience from recent years shows that there is little willingness to voluntarily accept refugees from other EU countries.
Secondly makes the EU dependent on third countries: In the confrontation with right-wing populism, democratic parties in all EU states have allowed themselves to be pushed into a corner in which the only currency for political success is the drastic reduction in access numbers. However, there is no legally secure way to reduce these numbers to such an extent that does not require political cooperation with third countries. Even the application of the regulations that have now been decided on safe third countries remains dependent on the political willingness there to accept refugees. But nothing in the reform will strengthen the political will in these states to improve their own asylum system so that it meets European requirements. On the contrary: the prospect of acting as a refugee reception center for the EU has not yet been attractive to any country. In the Western Balkans, unlawful rejections along migration routes have been increasing for years.
Third There is a risk of inadequate monitoring of the minimum standards. One of the biggest problems of the Common Asylum System is the failure to comply with the minimum standards agreed upon years ago: push-backs, criminal proceedings against sea rescuers and other humanitarian aid workers, a lack of legal protection, poor procedures and inadequate accommodation – none of this should actually exist. Instead of increasing control, the reform creates new loopholes. The EU Commission, actually the “guardian of the treaties” in the European Union, has long since stopped fulfilling this control function for fear of anti-EU headwinds. But it is also the flippant to openly illegal approach to EU law that has contributed to right-wing populists exploiting asylum issues in recent years. The EU is at a point where it is apparently seen as easier to negotiate with the Tunisian president than to negotiate between themselves for better treatment of asylum seekers in line with EU minimum standards and fundamental rights.
It remains to be seen whether a different result would have been possible given the current political majority in Europe. The federal government also has to implement the bad compromise. This makes the traffic lights even more obligatory. In the next two years, the federal government must play a pioneering role in implementing the rules in accordance with fundamental rights. It must push to improve control mechanisms in the EU institutions and in the member states. To do this, it must, above all, work with other EU partners to ensure that the EU Commission (soon to be replaced and now freed from the burden of the legislative process) takes its control function in the area of asylum seriously again and reconsiders its reluctance to engage in infringement proceedings. The federal government must also object to EU cooperation with third countries that are not linked to minimum standards of human rights and refugee policy. And finally, in response to right-wing populism, it must model a constructive domestic policy approach to asylum issues: Instead of making promises that are difficult to keep – such as outsourcing asylum procedures to third countries – it must enable increased public investment in municipal infrastructure, education, and social housing which are beneficial for both refugees and the local population.
The author: Julian Lehmann is an expert on migration and human rights at the Global Public Policy Institute in Berlin.