The New Pact on Migration and Asylum and the recommendations of the EU Commission on legal pathways to protection in the European Union

By Tihomir Sabchev

Source: Sebastien Bertrand through Flickr

At the end of September 2020, the European Commission adopted its New Pact on Migration and Asylum. Among other objectives, the Pact aims at promoting sustainable and safe legal pathways for people in need of international protection. This blog outlines the main aspects of the Commission’s recommendations in this regard. 

It should be noted from the very beginning, that each Member State has the right to determine the volume of admission for people from third countries. In other words, the Commission cannot oblige Member States to admit people in need of international protection, but it can only try to influence their decisions through recommendations, funding, capacity building, coordination of existing efforts, etc. On the basis such soft instruments, the Commission included in the recently published Pact its “Recommendations on Legal Pathways to Protection in the EU”, focusing on the promotion of three main channels of admission of people in need of protection: resettlement, humanitarian admission and complementary pathways. 

Resettlement

In recent years, there has been a major increase in resettlement to the European Union. Since 2015, about 70,000 persons in need of protection have arrived to the EU in the framework of EU-sponsored resettlement schemes.* For this purpose, the Commission has allocated a total of 1 billion EUR, or up to 10,000 euro per Member State per resettled person. As a result, the EU share of global resettlement increased from less than 9% before 2016, to over 40% in 2018. This has made the EU an absolute global leader in resettlement, a position it took over from the United States. Importantly though, EU’s leadership in this field emerged as a result of the dramatically reduced resettlement pledges on behalf of the US under President Trump’s administration. This trend is expected to reverse, since the recently elected President Biden has committed to setting the US annual refugee admissions cap to 125,000. In any case, both the EU and the US resettlement pledges will continue to represent only a small fraction of the global resettlement needs, which according to the UNHCR estimation are close to 1,5 billion persons.  

Returning to the role of the Commission, since 2015 one can distinguish three separate resettlement schemes. The first two of them – the 2015-2017 scheme and 2018-2019 so-called “50,000 scheme” – resulted in the arrival of more than 60,000 people to Europe (Figure 1). Both these schemes had a relatively high success rate, with Member States fulfilling close to 90% of their initial resettlement pledges. In 2020, a number of Member States responded to the Commission’s call to continue resettling refugees and pledged in total 29,500 places. However, the Covid-19 pandemic significantly delayed the implementation of the initial plan, and by June 2020 only about 3,600 people had been resettled. Recognising the challenges brought by the pandemic, the Commission extended the implementation of the 2020 scheme to the end of 2021, which will effectively reduce by half the number of resettlements per year. 

Figure 1. EU-sponsored resettlement schemes, 2015-2020.  

In addition to the pandemic-related challenges and despite the efforts of the Commission to promote and expand EU-supported resettlement schemes, there are two important shortcomings worth mentioning. First, the number of Member States that participates in EU-sponsored resettlement is constantly decreasing. In the framework of the first scheme (2015-2017), all Member States besides Hungary made pledges to resettle refugees. In the framework of the second scheme, only about 2/3 of the Member States did so. Finally, within the 2020 scheme, only half of the Member States submitted resettlement pledges. On top of that, almost 16,000 out of the 29,500 pledges came from just three countries: Germany, France, and Sweden. Therefore, behind the EU’s generally increased commitment to resettlement, one can notice a worrisome ‘free riding’ trend, with more and more Member States simply discarding any common EU resettlement efforts.   

A second shortcoming relates to the ad hoc nature of the abovementioned resettlement schemes. Recognising this issue, the Commission proposed in 2016 a Regulation to establish a Union Resettlement Framework. The aim was to synchronise Member States’ efforts and make resettlement to the EU more sustainable and predictable. However, despite some progress over the last years, the Council has not yet endorsed the partial provision agreement it had reached with the Parliament regarding the Union Resettlement Framework. Given the decreasing commitment of Member States to participate in EU-funded resettlement schemes, reaching a consensus and further progress on this legislative proposal in the near future seems unlikely.

Humanitarian admission 

In addition to strengthening their resettlement efforts, the Commission also invites Member States to accept more vulnerable people in need of international protection through humanitarian admission programmes. In particular, the Commission calls upon states to put in place family reunification assistance programmes that would help individuals navigate through complex visa application processes, and reunite more easily with their family members under the provisions of the Family Reunification Directive. For cases that fall outside of the scope of this Directive, the Commission recommends that Member States set up additional humanitarian admission programmes, such as family-based sponsorship. 

Another important recommendation of the Commission when it comes to humanitarian pathways of admission relates to the so-called community-based and private sponsorship schemes. The expansion of already existing small-scale schemes of this kind is seen as an opportunity to increase the number of people receiving protection in the EU. In this respect, the Commission emphasises the important role of civil society partners, that can provide both financial and operational support. A concrete example here is the “Humanitarian Corridors” project developed by faith-based organisations and implemented in Italy, France and Belgium, which has resulted in the arrival of more than 2,700 people in need of protection since 2016. 

Last but not least, the Commission also expresses its willingness to support Member States in establishing community or private sponsorship schemes, through the provision of funding, capacity building, and knowledge-sharing platforms. The Commission’s vision includes the development of a common European approach to refugee sponsorship, which can lead to better integration outcomes in the long term. Thus far, two projects have been funded that aim to enhance the collaboration and the exchange of know-how in the field of community-based/private sponsorship between a number of Member States (Portugal, Italy, Greece, and Ireland). Additionally, the Commission invited Member States to participate actively in the EASO Resettlement and Humanitarian Admission Network, which was launched in early 2020. 

Complementary pathways 

Finally, the Commission also encourages Member States to develop complementary pathways for admission of people in need of international protection, especially through education and work. Member States are expected to take advantage of such opportunities by establishing wider partnerships with civil society and private sector actors. In regards to complementary pathways through education, more flexible intake procedures and financial support can help displaced people relocate to the EU on a study visa. One example of such an initiative is the project “University Corridors for Refugees” that I have already discussed in detail elsewhere. When it comes to complementary pathways linked to work, the Commission suggests that Member States develop innovative labour mobility schemes in collaboration with employers and trade unions. To support Member States’ efforts, the Commission recently launched an AMIF call with a total budget of almost 33 million euros, covering actions that help people in direct need of international protection enroll in European universities, access work-related residence permits, and reunite with their family members in different EU countries. 

All in all, one should recognise the fact that the EU has recently stepped up its efforts to promote the opening of more legal pathways to Europe for people in need of protection. Particularly important in this respect have been the increase in resettlement and the support for civil society in developing complementary pathways. The recommendations that the Commission published as part of the new Pact clearly aim at building upon these developments. Nevertheless, Member States have the final say. Given their free-riding tendency, especially when it comes to EU-sponsored resettlement schemes, it is hard to imagine that the ambitious vision of the Commission to further enhance legal pathways to protection will yield success any time soon. 

*Since March 2016, Member States have also resettled more than 27,000 people under the EU-Turkey Statement. However, part of those resettlements have been counted under the 2015-2017 and the 2018-2019 EU resettlement schemes. 

Bio:

Tihomir Sabchev is a PhD candidate at Utrecht University School of Law. His research focuses on the role of local authorities in the reception and integration of forced migrants in Greece and Italy.