The EU Commission and Spanish Presidency want to close the Migration and Asylum Pact on December 7

Brussels – The next Belgian President and the Spanish President work with confidence to close the Migration and Asylum Pact in the coming days.

The date on which the negotiators of the EU institutions are focusing is December 7, when a (perhaps) decisive ‘jumbo trilogy’ will be held in Brussels.

“A lot has been done, with great progress,” underlined the Commissioner for Home Affairs, Ylva Johansson, not denying, however, that “ we have not reached our goal, there is a bit of work missing.”

The migration and asylum pact dossier

The Migration and Asylum Pact  was submitted to the EU Commission on September 23, 2020 but, given the difficulties of the negotiation process, in September last year, co-legislators agreed to adopt nine dossier by the end of the Parliamentary term (in the spring of 2024). The inter-institutional negotiations includes five files: Regulation on crimes and causes of force majeure (since October 12); Regulation on the Management of Asylum and Migration (since June 13); the amended Regulation on asylum procedures (started on April 18 at the level of general level and then resumed on June 13), the Screening Regulation (since April 25) and the revised OECD Regulations (started on December 15, 2016).

In addition to the nine dossier provided for in the roadmap to adopt the Migration and Asylum Pact by the end of the legislation (in spring 2024), there are other five , of which only two were adopted: the Blue Card Directive and the transformation of the European Asylum Support Office (Easo) into the European Asylum Agency (Euaa),. Since June 13, the amended Directive on the single application procedure for the issue of a single residence and work permit is being negotiated, while the negotiating mandate on the amended long-term residence was adopted by the EU on November 23. The regulation on instrumentalisation in the field of migration and asylum was added to the regulation on crises and force majeure by the 27 EU ministers on October 4, while the Parliament sees broad resistance to the concept of ‘instrumentalisation’ and codification in EU law.

What is the state of negotiations

Given that it is now taken for granted that the Repatriation Directive will be shelved, the spotlight should be on the five pieces of the Migration and Asylum Pact – from the September 2022 roadmap – that are currently being negotiated.

According to what EU sources tell Eunews, on the amended Eurodac Regulation (Jorge Buxadé Villalba report, Ecr) seven trialogues have taken place and one of the main issues to be resolved concerns the security alerts: the Council would like to apply them to all categories (e.g. for irregular border crossings), while the Parliament considers them only for asylum seekers and could consider extending them only with “solid guarantees”. The Council then proposed the revision of the Entry and Exit System (EES) Regulation through Eurodac, but Parliament is against this because the former has a Schengen legal basis and is ‘not relevant’ for Eurodac. Finally, the Council proposes that national law enforcement authorities should be able to access Eurodac before accessing other national databases. Parliament, on the other hand, ‘rejects the vision of Eurodac as a law enforcement tool’ and supports the ‘cascade principle’ (first the national database and then Eurodac).

On the Regulation on screening (Birgit Sippel report, S&D), six trilogues were held and the issues to be resolved were from “fiction of non-entry”, with Parliament supporting optional use (mandatory only if the Member State uses the border procedure), and the procedural guarantees for persons subject to screening (access to a copy of the screening form, reasons and conditions of detention and access to legal assistance for persons not applying international protection).  Parliament then considers that the fundamental rights monitoring mechanism should include both screening and surveillance at the borders ‘to reduce the risk of violations’. It is against the Commission’s proposal to allow screening within the territories of the Member States. The Council is in favour of granting national authorities direct access to EU systems, whereas Parliament considers that access should be limited.

The state of the other three files, on the other hand, is more complex. The regulation on asylum procedures (rapporteur Fabienne Keller, Renew Europe) has already seen six trialogues but there are still several concepts to be negotiated. Parliament proposes a stricter definition of the conditions for an accelerated procedure (the recognition rate of 20% or less should concern final decisions rather than first degree decisions), while the Council proposes to extend it by introducing other grounds on which Member States would be obliged to apply it. On the border procedure linked to the fiction of non-entry, Parliament supports the optional use, while for the Council it remains mandatory ‘in certain cases’. On the admissibility of applications, the Parliament maintained the optional decisions for Member States, while the Council made them compulsory for instance in case the applicant has already been granted international protection in another Member State, or in case of a subsequent application “without new relevant elements”. On the concept of safe third countries, Parliament proposed additional guarantees, the Council only needs the existence of an agreement between the EU and the third country, “or if the applicants themselves agree to be returned to that country” (MEPs rejected the proposal to have an EU list of safe third countries, instead the 27 governments provide for EU and national lists). Parliament also proposed to introduce a monitoring mechanism to ensure respect for fundamental rights, building on that provided for in the screening regulation.

On the Regulation on the management of asylum and migration</strong} (reporteur Tomas Tobé, Ppe) there were six trilogues. The main issues to be resolved concern governance Tomas Tobé Tomas Tobé, Ppe) there were six trilogues. The main issues to be resolved concern governance government, with “some progress made on the general common approach, while the Coucil is reluctant on Parliament’s proposal to set up a coordinator. Solidarity is one of the most sensitive parts of the negotiations: the Council considers financial contributions on a par with relocation, while Parliament refers to it as a ‘primary solidarity measure’ and, in case of insufficient needs in the solidarity pool, only for Parliament can the Commission distribute the remaining needs among the member states. On the responsible Member State there are different views on the scope of the definition criteria: Parliament’s position is to include family members legally residing in a Member State as a criterion, the Council could accept the first country of entry as the last criterion, while also on the termination of responsibility for the first country of entry there is a difference (Parliament sets it at 12 months, the Council at 24). Finally, the definition of family members – in particular the inclusion of siblings – has been removed in the Council mandate, and only unmarried siblings of a minor are included in the family procedure.

Finally, there is the most delicate of all files, the Crisis Regulation (reporteur Juan Fernando López Aguilar, S&D), with three trilogues already held since 4 October. The main problem is the scope of application, because the Council’s mandate includes instruction as an example of crisis situation and force majeure, “although in the Council’s mandate there is no merger of the legal basis of the propositions.” Parliament’s mandate does not include any reference to the instrumentalization. On the decision process the Council calls for a Council implementing decision (instead of Parliament’s delegated act) to determine crisis but compromises. Regarding the solidarity mechanism, Parliament sees relocation as “the only solidarity measure foreseen for crisis situations”, in contrast to the Council which envisages other solidarity measures. On exceptions to the EU acquis, the Council’s mandate foresees the extension of the duration of the asylum and border procedure to 8 additional weeks in crisis situations, Parliament’s 4 weeks. And finally, the Council wants an extension of the scope of the border procedure in crisis situations (taking decisions on the merits of an application in cases where the percentage of decisions granting asylum is 75% or less), the Parliament’s mandate removed this derogation.