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Asylum at the European Council 2018: outsourcing or reform?

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The expectations for the June 2018 European Council meeting were high in the area of migration and asylum. After two years of discussing the asylum package this meeting was announced as the decisive moment for the reform of the Common European Asylum System (CEAS). The EU leaders meeting was considered the last chance to resolve the deadlock on the solidarity chapter of the Commission’s proposal for a Dublin IV Regulation, and for there to be a chance to have the package adopted before the European elections in May 2019.

With five of the seven Commission proposals on asylum at trilogue stage and compromises concluded between the Presidency and the EP rapporteurs, remarkable progress had been made. In fact, compared to the first and second phase of harmonization in the area of asylum law, which in both cases took five years to conclude, the EU is still moving faster this time. Yet, without agreement on the reform of the Dublin system, no agreement on the other proposals seems possible as the Council maintains a package approach. As the various asylum instruments are strongly interconnected - both legally and politically - the Council is not thus far prepared to formally adopt the Commission proposals separately.

Initially envisaged by the Commission as the meeting which would give the final push for the completion of the CEAS reform, it was eventually hi-jacked by political turmoil within the German government and the debate on disembarkation of migrants and refugees rescued at sea triggered by the blunt refusal of the Italian government to let the NGO Search And Rescue (SAR) ship the Aquarius dock in its harbours. The final text of the Conclusions offers mainly vague ideas and admittedly creative new European jargon such as “controlled centres” and “regional disembarkation platforms”.1 However, the life-span of these concepts remains to be seen. Only hours after the European Council conclusions were adopted, France and Italy in particular were already bickering about the meaning and location of the “controlled centres”, with other Member States rejecting any possibility of creating such centres, or of receiving migrants and asylum seekers processed in such centres, on their territory.2 Also regional disembarkation platforms were received with scepticism due to the lack of a clear definition in the Conclusions.

Both concepts have since been further elaborated by the Commission in two non-papers published on 24 July 2018 which are discussed below as well as in the IOM-UNHCR proposal for a regional cooperative arrangement for migrants rescued in the Mediterranean,3 which served as a basis for the Commission’s non- paper on “regional disembarkation arrangements”.

Notwithstanding the emphasis on the externalization of EU protection obligations, some direction is provided on the reform of the CEAS and the next steps in negotiating the asylum package. Beyond an invitation to the Council to continue work with a view to concluding negotiations as soon as possible and a progress report at the October European Council, a “speedy solution to the whole package” and a “consensus” on the reform of the Dublin Regulation is called for. As imposing mandatory relocation proved a calamitous strategy, EU leaders seem to have decided against it in order to avoid the risk of another major political crisis. Whether this approach will lead to the speedy solutions the EU is looking for is uncertain, given the current political context and the conflicting interests of various groups of Member States in the reform of the Dublin system.

This policy paper first comments on the legal and practical implications and feasibility of proposals to outsource protection obligations of EU Member States to third countries that have once more gained momentum at the EU level. Secondly, taking stock of the progress made on the negotiations of the CEAS reform, the paper also presents ECRE’s main concerns regarding the compromises provisionally agreed between the Bulgarian Presidency and the European Parliament rapporteurs in June on the Qualifications Regulation, Reception Conditions Directive and the Union Resettlement Framework Regulation.

COREPER’s refusal to endorse the provisional compromise texts has provoked severe criticism from the European Parliament but at the same time presents an opportunity to address remaining protection gaps. Finally, ECRE’s key concerns and recommendations on the reform of the Dublin system will be reiterated.