Immigration and asylum law and policy
The New Pact and EU Agencies: an ambivalent approach towards administrative integration.
The ‘New Pact on Migration and Asylum’, and the relevant legislative proposals that accompany it, adopt an ambivalent approach towards administrative integration. They partly recognise EU agencies’ increased involvement in the implementation in EU’s migration, asylum, and external border control policies. At the same time, they do not satisfactorily embed the novel functions of EU agencies, such as their increased executive powers. This means that, for example, new procedural steps introduced by the Pact such as the screening at the external borders or the border procedure, neither take to account the particularities of the potential involvement of EU agencies in these processes nor do they frame these executive powers. This could have a potential impact on migrants’ procedural rights and on the accountability of EU agencies. In addition, the Pact ingrains a two-track approach to administrative integration. This means, that alongside institutionalised administrative cooperation through EU agencies, the Pact emphasizes bilateral and multilateral transnational co-operation between Member States, as portrayed by the new concept of return sponsorships. This could potentially impact the effectiveness of administrative cooperation and migrants’ fundamental rights protection.
This post, first, analyses in greater detail which are the two tracks of administrative integration, and briefly outlines the novel functions that two EU agencies, FRONTEX (used as a shorthand for the EU’s European Border and Coast Guard Agency), and EASO (used as a shorthand for the EU’s European Asylum Support Office) undertake in these fields. Next, I explain which legal instruments are to regulate their mandate according to the Pact, and whether the Commission Communication contains novelties regarding their role. Finally, I draw examples from two Pact legal instruments, notably the Proposal for an Asylum and Migration Management Regulation and the Amended Proposal for an Asylum Procedures Regulation to illustrate the Pact’s ambivalent approach to administrative integration.
THE TWO TRACKS OF ADMINISTRATIVE COOPERATION AND EU AGENCIES’ NOVEL FUNCTIONS
Administrative cooperation in the EU external border control, migration, and asylum policies has been pursued through two tracks. The first track is bilateral and multilateral transnational co-operation between Member States. The second track is institutionalised practical cooperation through EU agencies which has gradually evolved to joint implementation patterns and increased administrative integration. It is important to understand what each track entails in order to critically analyse a crucial development under the Pact, which is a renewed attention towards the first track of administrative cooperation.
In what concerns the first track, informal information-exchange among Member States, for example on asylum, started as early as 1992 through a consultation group chaired by the Council called CIREA (Centre for Information, Discussion and Exchange on Asylum). While its aim was facilitating coordination of practice, results were limited and the Commission lamented its ineffectiveness. Apart from information exchange through administrative networks, Member States sought transnational cooperation through ad hoc projects. For example, in 2004 the Dutch Presidency established of annual exchanges between General Directors of European Immigration Services (GDISC). Several projects supported by EU co-financing were developed under the auspices of GDISC. One such project was the European Asylum Curriculum (EAC), originally developed by a group of Member States led by Sweden with the financial support of the European Commission, and in cooperation with the Odysseus Academic Network. Its main aim was to ‘create a learning tool for the advancement of both knowledge and skills among officials working with asylum issues’. Nonetheless, it soon became apparent that ad hoc projects, and loose networks of information exchange were not enough to effectively address the implementation gap in EU’s asylum, external border control and return policies. This led to the emergence of institutionalised administrative cooperation, and EU agencies.
The second track has been characterised by institutionalisation, and the creation of relevant EU agencies. This development came about later chronologically. FRONTEX was initially set up in 2004, and its legal mandate was amended consecutively in 2007, 2011, 2016, and most recently in November 2019. EASO was set up in 2010 and its legal mandate continues to remain unaltered to date; its role has shifted de facto though. I analyse these developments and the status quo on EASO’s legal mandate in detail below. Overall, much has changed since these agencies were initially set up. Institutionalization of practical cooperation through EU agencies has begun to unsettle the initial implementation paradigm of ‘the EU legislating’ and ‘Member States implementing’. Focusing specifically on the de jure and de facto mandate expansion of EASO and FRONTEX two broad trends become apparent:
On the one hand, the operational expansion of EU agencies’ mandates has led to patterns of joint implementation, with their staff and experts deployed in fields such as border control, returns and the processing of asylum claims. This means that agency deployees increasingly have executive powers, implement policy alongside national authorities and administrations, and directly interact with refugees and migrants. On the other hand, these agencies’ mandate has expanded to encompass functions that far exceed support, including operational support and administrative cooperation. Reference is made to monitoring-like, as well as to functions which have the potential to steer policy implementation.
One example of a monitoring-like function is the ‘vulnerability assessment’ that FRONTEX undertakes. This relates to issues such as state resources and state preparedness to undertake external border controls. It could lead to recommendations; a binding decision of measures set out by its Management Board; or, in cases where the external borders require urgent action, a Council implementing act prescribing measures which become binding for the Member States. An example of a function which has the potential to steer policy implementation is envisaged as part of a new European Union Agency on Asylum, the successor of EASO. This would be the adoption of a ‘common analysis’ on the situation in specific countries of origin and the production on this basis of guidance notes to assist Member States in the assessment of relevant asylum applications.
One might have expected that these trends would have intensified, or at least would have been fully reflected in the New Pact and its different legal instruments. Nevertheless, the picture which emerges is far more nuanced. I examine, next, the legal mandate of these agencies according to the Pact.
EU AGENCIES’ LEGAL MANDATES AND THE PACT: NOTHING NEW UNDER THE SUN?
The New Pact package does not alter the legal mandates of EASO and FRONTEX. This means that in what concerns FRONTEX the November 2019 instrument continues to regulate its functioning. Consecutive amendments to this legal instrument mean that it is attuned to the new administrative realities, clearly prescribes the newer functions of the agency, and sets out, at least on paper, improved fundamental rights guarantees. Things are more complicated in what concerns EASO. Currently, a 2010 Regulation underpins its functioning. As I have analysed elsewhere, this instrument has, since some time, no longer been fully attuned to the new administrative realities, such as joint implementation patterns, and this heightens EASO’s accountability challenge.
The Commission issued a proposal for a revamped EUAA (used as a shorthand for the European Union Agency on Asylum) in 2016. The two co-legislators, i.e. the Council and the European Parliament, reached a political agreement for several chapters of the EUAA proposal in late 2017. In the meantime, the Commission released in 2018 an amended proposal containing only targeted amendments reinforcing the operational tasks of the EUAA. The Commission did not release a new, or consolidated, proposal on the EUAA as part of the Pact. Instead, it urged co-legislators to swiftly adopt, concluding negotiations by the end of 2020, the new Regulation on the EUAA based on the pre-existing proposals and interim political agreements I outlined above (New Pact on Migration and Asylum, pp. 3, 10).
I find this approach problematic. EASO, and its successor the EUAA, play an increasingly pivotal role in the implementation of the EU asylum policy, and in implementing intra-EU solidarity. These previous proposals, part of the 2015-2016 European Agenda on Migration package, correlate with an approach to responsibility-sharing and solidarity which is now expected to be overhauled. This was the approach promulgated by the so-called Dublin IV proposal, analysed in this blog by Francesco Maiani and by Constantin Hruschka. Therefore, the co-legislators have been assigned the formidable task of consolidating themselves the 2016 initial Commission proposal, the 2017 EP and Council partial compromise, and the 2018 amended Commission proposal, with the entire package new logic!
This is a challenging task. Different package elements are analysed in this blog series in detail, and critically outlined in the introductory contribution of Daniel Thym: suffice to say that their complexity is immense. What is more, it had been impossible to conclude negotiations on the previous 2016 proposal because of politically salient issues. For example, Member States at the external borders were unwilling to close negotiations on envisaged monitoring-like functions of the agency, before they had concrete guarantees on enhanced solidarity. These salient issues remain pending, complicating further the wishes of the Commission for a speedy adoption of the new Regulation.
THE NEW PACT AND EU AGENCIES: WHAT WAY FORWARD FOR ADMINISTRATIVE COOPERATION?
Having ascertained the Pact’s position on the legal mandate of EU agencies, I now turn to analyse more broadly the way forward on administrative cooperation envisaged by the Pact. Namely, I fully substantiate arguments that I raised before: that the Pact instruments do not satisfactorily embed the novel functions of EU agencies, such as their increased executive powers; and that the Pact ingrains a two-track approach to administrative integration.
The Commission Communication: proclaiming the importance of EU agencies in administrative cooperation
Some indications on the Pact’s approach towards administrative cooperation can be drawn from the relevant Commission Communication, a non-legally binding document. I already mentioned that the document calls for the swift adoption of the amended EU agency proposal. However, it also contains further elements on the envisaged role of EU agencies.
Firstly, the Communication explicitly links mutual trust with ‘consistency in implementation, requiring enhanced monitoring and operational support by EU agencies’ (p. 6). This is quite a bold statement which seems to recognise EU agencies’ increased role in implementation and, even, in monitoring. FRONTEX’s so-called ‘vulnerability assessments’ are lauded by the Commission as ‘particularly important, assessing the readiness of Member States to face threats and challenges at the external borders and recommending specific remedial action to mitigate vulnerabilities’ (p. 12). These assessments allow to ‘target the Agency’s operational support to the Member States to best effect’ (p. 12). This means that structural shortcomings and capacity issues first identified through these supervision-like processes can then be (partially) overcome through the additional deployment of human and technical resources and enhancement of joint implementation actions.
Thereafter, the Communication outlines the importance of the envisaged monitoring mechanism as part of a new EUAA. This mechanism is under negotiation; EASO does not currently hold such a function. Monitoring is explicitly linked with ‘bringing greater convergence’ and boosting mutual trust ‘through new monitoring of Member States’ asylum and reception systems and through the ability for the Commission to issue recommendations with assistance measures’ (p.6). A seminal future challenge will be the inherent underlying tension between the expanding operational and supervision mandates of EU agencies. Namely, the agencies will be called on to play a double, and at times contradictory role: implementing jointly, while simultaneously supervising implementation.
Next, the Communication identifies a ‘leading role’ for FRONTEX in the EU common system on returns (p. 8). The Commission goes as far as to state that ‘[i]t should be a priority for Frontex to become the operational arm of EU return policy’ (here, p. 8). This is linked with the deployment of the agency’s standing corps (p. 8). According to the November 2019 version of its Regulation, it is expected that by 2027 FRONTEX would have a total of 10.000 operational staff, comprised of both statutory staff, and staff made available through Member States for long and short term deployments. Achieving this level of operational staff is recognised by the Commission as ‘essential for the necessary capability to react quickly and sufficiently’ (p. 12). Return is a key area where operational staff will be involved.
A final area from the Communication concerns partnerships with third countries. The Commission envisages ‘a much deeper involvement of EU agencies’ to support the new partnerships (p. 20). It goes as far as to say that FRONTEX’s ‘enhanced scope of action should now be used to make cooperation with partners operational’ (p. 21). In what concerns the Western Balkans FRONTEX is to ‘to work together with national border guards on the territory of a partner country’ (p. 21). Reference is clearly made to joint implementation patterns in those countries. EASO is not left out either, however the Commission falls short of mentioning joint implementation patterns in the assessment of asylum claims. Rather it refers to capacity building and operational support, as well as support on refugee resettlement from third countries to the EU (p. 21).
The Pact legal instruments: no adequate reflection of policy ambition
These programmatic statements are not fully reflected in the legal instruments that make up the Pact. It is impossible to examine all Pact instruments exhaustively in this blog post. Instead, I will draw characteristic examples to illustrate my points.
I. Border procedure: unsatisfactory embedding of EU agencies’ existing roles and current administrative realities
The border procedure established by the Amended Proposal for an Asylum Procedures Regulation is an illustrative example of unsatisfactory embedding EU agencies’ existing roles and current administrative realities. The intricacies of the procedure itself will be analysed in this blog series by a forthcoming post of Jens Vedsted Hansen. Overall, through this procedure the Commission seeks to create ‘a seamless link between all stages of the migration procedure, from a new pre-entry phase to the outcome of an asylum application’ (Explanatory memorandum, p. 3). The pre-entry phase includes screening regulated by a different instrument analysed in this blog series by Lyra Jakuleviciene. For those channelled based on this initial screening to an asylum procedure, a decision will be made as to whether their application ‘should be assessed without authorising the applicant’s entry into the Member State’s territory in an asylum border procedure or in a normal asylum procedure’ (Explanatory memorandum, p. 4). If channelled to an asylum border procedure and found not to be in need of protection, failed applicants would then be directed to a return border procedure.
The border procedure is not unknown to national asylum systems. However, it is currently not obligatory, neither is it regulated by such detail in EU law. Rather, the possibility exists under EU law for Member States to introduce such a procedure to be framed by national law. This is a possibility that some Member States have taken up. EU agencies, and specifically EASO, have come to play pivotal roles in the application of current variants of border and accelerated procedures. The agency has been key in the operationalisation of the hotspot approach to migration management in Greece. Greek national law in 2016 introduced an accelerated border asylum procedure, addressing also the situation at hotspots. Consecutive amendments of Greek national law established increasing levels of EASO involvement in the processing of asylum applications in admissibility and, later, the merits of applications. While the final decision rests with the Greek Asylum Service, EASO experts emit a non-binding advisory opinion, making these processes a peculiar type of mixed proceedings regulated only by national law, with the involvement of both the EU and national levels in asylum decision-making. EASO’s implication in processing in Greece is numerically significant. For example, EASO conducted 8,958 interviews in the fast-track border procedure during 2018. During the first half of 2019, EASO conducted 2,955 interviews in the fast-track border procedure, mainly covering applicants from Afghanistan, Palestine, Iraq, Syria and Cameroon.
Given these factual realities and the pivotal role played by EASO in existing national variants of border procedures, the proposed amended Asylum Procedures Regulation is surprisingly silent on the role of EU agencies in general and, of EASO specifically. The Commission announces that through its proposal, ‘consistency is ensured’ with the provisional political agreements already reached on most elements of the EUAA (Explanatory memorandum, p. 6). Again, in the Explanatory Memorandum of the proposal in a paragraph titled ‘budgetary implications’ the Commission states that ‘within their respective mandates’, EASO and FRONTEX can support Member States with staff for operationalising the border procedure (p. 12). This of course could include assistance in processing applications through joint implementation patterns, an element that is expected to be included in the new enhanced mandate of the EUAA. Thereafter, the proposal refers in the Explanatory Memorandum to EASO’s material, as part of its quality initiatives, on operational standards and indicators for asylum procedures (p. 8). A recital also refers to EASO’s guidance note, as part of the material to be taken into account into ascertaining which applicants fall under the border procedure (Recital 39a).
These passing references to the possibility of EASO staff supporting border procedures do not do justice to current administrative realities. EASO is in fact involved in the assessment of thousands of applications in Greece, mainly as part of the country’s border procedure. New, enhanced, obligations to conduct such type of processing will only increase the needs of border Member States for operational support. While the instrument does not negate the involvement of EASO within the remits of its mandate in asylum processing, it does not explicitly reflect or regulate the procedural implications of EU-coordinated involvement either. And yet, the EU Ombudsman has already been called twice (see here and here) to scrutinize potential violations of applicants’ procedural rights in Greece, due to EASO involvement. These complaints reveal the procedural complexities and need for a broader rethink of EU procedural law and the establishment of the requisite accountability arrangements. Similar observations regarding lack of reflection on EU agencies’ involvement can be made about the new screening procedure, as poignantly observed by Lyra Jakuleviciene in this blog.
II. Return sponsorships: embedding the two-track approach to administrative cooperation
Return sponsorships are an illustrative example of the Pact’s embedding of the two-track approach to administrative cooperation. They are one of the solidarity tools envisaged by the Asylum and Migration Management Regulation. Through a return sponsorship a Member State commits to support another Member State which faces ‘migratory pressure’ in carrying out the necessary activities to return irregularly staying third-country nationals (Rec. 27). While the individuals are present on its territory, the benefitting Member State remains responsible for carrying out the return. However, if return has not taken place after 8 months (4 months in situations of crisis), the sponsoring Member State becomes responsible for transferring the migrants in an irregular situation and should relocate them to its territory (Art. 55, para. 2).
The instrument recognises that return sponsorship is part of the common EU system of returns, which also includes operational support through FRONTEX (Rec. 27). Measures to support return include providing counselling; using ‘the national programme and resources for providing logistical, financial and other material or in-kind assistance’ to those willing to depart voluntarily; leading or supporting the policy dialogue and exchanges with the authorities of third countries for the purpose of facilitating readmission; contacting the third country authorities to verify identity and obtain a valid travel document; and organising on behalf of the benefitting Member State the practical arrangements for the enforcement of return, such as charter or scheduled flights or other means of transport to the third country of return (Art. 55, para. 4 a-d).
In the Explanatory Memorandum, the Commission affirms that these activities are ‘additional to the ones carried out by the European Border and Coast Guard Agency (EBCGA) by virtue of its mandate and notably include measures that the Agency cannot implement (e.g. offering diplomatic support to the benefitting Member State in relations with third countries)’ (p. 2, p. 19). Nonetheless, when one scrutinizes the measures that Member States are to undertake in the framework of a return sponsorship it becomes apparent that they are not all additional to the activities FRONTEX undertakes. For example, organising the practical arrangements for the enforcement of return is an action that also FRONTEX undertakes as part of its operational role on returns. Therefore, there will now officially be two tracks on administrative cooperation on returns: an institutionalised one, i.e. through FRONTEX, and a second track which, in essence, will consist of several bilateral co-operations between a ‘benefiting Member State’ and other Member States that will activate themselves in ‘sponsoring’ returns.
A policy choice was clearly made: instead of streamlining all operational support on return through FRONTEX, the Pact envisages a parallel track, that of bilateral transnational co-operation on implementing return. It seems that Member States were not yet fully prepared to make FRONTEX the ‘operational arm’ of the EU return policy after all. It will be one of the actors that will be active in this area. The other actors will be Member States through their administrations.
Institutionalised administrative integration through EU agencies is not inherently negative or positive. I already outlined the accountability and fundamental rights challenges that have emerged through the increased operational powers of EU agencies. However, bilateral administrative co-operation in this area is likely to present even more problems. It is unlikely to be efficient as it will not allow for the creation of economies of scale. It will create additional administrative burdens for the ‘benefitting’ Member state that instead of one interface will have to collaborate with several Member State authorities that will be acting, understandably, in an uncoordinated manner.
In addition, operational support under this framework will not be covered by the enhanced fundamental rights protection layer that has been developed by FRONTEX including, among other, a fundamental rights officer, an individual complaints mechanism, and fundamental rights monitors. This framework has been put to place specifically to address fundamental rights violations in the framework of operational activities of the agency. Put plainly, a migrant under a return obligation in the territory of Greece, whose return is sponsored by Hungary under a bilateral cooperation framework, cannot make use of the FRONTEX individual complaints mechanism regarding a potential violation by a Hungarian agent. It is certain that these mechanisms are not flawless as the most recent allegations on the role of FRONTEX in pushbacks in Greece once again highlights. But the complete absence of these novel human rights mechanisms in an environment of transnational administrative co-operation which dilutes accountability and liability will be even worse. Monitoring foreseen by the Commission as part of the Asylum and Migration Management Regulation (art. 6) might be able to reveal potential violations, especially where they are widespread, but will not be linked with an ‘access to justice’ component for individuals.
The New Pact was expected to breathe new life into EU’s asylum, migration, and external border control policies. There is little innovative thinking though in what concerns the role of EU agencies, and opportunities presented by administrative integration. The programmatic declarations of the Pact Communication namely endorse the status quo in what concerns the role of EU agencies. When it comes to EASO’s mandate, the Commission’s approach of leaving the co-legislators to consolidate themselves a 2017 partial agreement on a 2016 proposal with the entire new Pact logic on solidarity and integrated processing seems likely to lead to yet another impasse. This means EASO’s mandate will continue to be out of tune with the administrative reality on the ground.
Unlike the Pact Communication, the Pact legal instruments do not even fully embed, or regulate, existing de jure and de facto developments, such as joint implementation patterns. The Pact’s ‘fresh’ approach is to provide renewed attention to the other track of administrative co-operation, which is bilateral and multilateral transnational administrative co-operation between Member States. This method is not inherently negative. However, it is unlikely to prove efficient in policies which essentially seek to provide regional public goods, such as asylum provision, or safeguarding EU’s external borders in respect of fundamental rights. It also seems capable of jeopardizing migrants’ fundamental rights even further.
Member State support for agency involvement to better respond to functional pressures and the unmet interstate solidarity imperative might have acted as the precursor of more radical shifts in the implementation modes of these policies. At the current juncture though, it seems that Member States and the Commission had little appetite for such a policy direction. Not much is new under the sun then, other than the Pact’s ambivalence towards administrative integration.
|Originally published on Eumigrationlawblog.eu - More blogs on Law Blogs Maastricht|
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Evangelia (Lilian) Tsourdi is a tenured senior-level Assistant Professor and Dutch Research Council grantee at the Law Faculty of Maastricht University and the Maastricht Centre for European Law, as well as a visiting professor at Sciences Po Paris (since 2016). She has received three prestigious research grants as Principal Investigator: a Marie Skłodowska-Curie Individual Fellowship by the European Commission and a VENI and a Hestia grant by the Dutch Research Council (NWO).