Enrique Viguera
Spanish Ambassador
The implementation of border and immigration control policy in the European Union has been partial and slow since its inception, given its complexity and strong political sensitivity, as evidenced by the rise of populism, extremist and xenophobic movements, the demand for the renationalisation of EU policies, and even Brexit itself.
For this reason, one of the greatest achievements of the past Spanish presidency was to successfully conclude the complex and lengthy negotiation of the Immigration and Asylum Pact in the Council. It was Spain’s turn to conclude the negotiation of the last of the five Regulations that make up the Pact – the Regulation on Crisis Situations and Force Majeure. The previous ones (EURODAC, Control, Asylum and Migration Management and Common Procedure on International Protection) were concluded under previous presidencies. But it also fell to the Spanish Presidency of the Council to provisionally conclude negotiations with the European Parliament, on behalf of the Council. According to the President of the European Parliament, this was perhaps the most important agreement concluded between the Council and the European Parliament in the current legislature.
It is true, because it has been more than three years of arduous negotiations, following the migratory situation created in 2015, when the illegal entry of hundreds of thousands of immigrants caused one of the biggest crises in the EU, revealing the regrettable shortcomings of EU regulation. The Commission presented its proposal in 2020 in an attempt to reach an agreement among member states that sought different solutions according to their own national interests: the northern countries wanted to put an end to ‘secondary movements’; the southern countries wanted to avoid assuming exclusive responsibility and the cost of asylum procedures, seeking EU solidarity especially in times of crisis; and the eastern countries, focused more on ideological arguments, were not inclined to new commitments, particularly after the massive temporary reception of Ukrainians following the Russian invasion.
The final agreement achieves a certain degree of balance, but at the cost of ‘minoritising’ some member states (hopefully without consequences in the medium term) and leaving relevant issues aside. But it clarifies the responsibilities of member states, harmonises asylum procedures, which will be dealt with more quickly, from the identification of immigrants to their mobility within the EU, including their possible expulsion or readmission to their country of origin.
The Dublin system, which places the burden of responsibility on the first host state, prevails to some extent, but its application is softened in recognition of the greater pressure on southern maritime states. Relocations will be voluntary, but in times of crisis quotas are established which, if not accepted, would be channelled either to the Member State of first entry or to the third host country.
The role played by the Vice-President of the Commission, the Greek Margaritis Schinas, a great friend of Spain, as well as of the Swedish Commissioner Ylva Johannson, has been truly commendable.
The agreement has been facilitated by the fact that in recent years the financial coverage has been considerably extended to the point where, in the Multiannual Financial Framework 21-27, a separate heading, Heading 4, has been created, endowed with 22,671 million euros, that is, 3,239 million euros per year, with two new funds, the Asylum and Immigration Fund (865 million euros) and the Integrated Border Management Fund (1,839 million euros). This does not include the financial resources earmarked for cooperation with third countries, which are under Heading 7 (Neighbourhood and the rest of the world). It also helps that the institutional structure has been completed, with the competences of the sector’s Agencies, such as the Asylum Agency, created in 2021 to succeed EASO, and the European Border and Coast Guard Agency created in 2016 to replace Frontex, being considerably extended.
In the view of human rights organisations, the same ‘securitarian’ approach of the previous model has once again prevailed in the new EU regulation, leaving aside some humanitarian demands. It is feared that many asylum seekers will be de facto detained at the EU border itself or that, under EU law, asylum seekers may be deported to countries with authoritarian regimes where there is no guarantee of human rights
But such an approach was inevitable given the importance that Member States attach to border control. As examples of the same approach, the legislation of many Member States goes even further than the EU legislation, such as the recent legislation adopted in France with the support of the extreme right. So do new agreements with third countries: it is possible that the EU’s model agreement with Tunisia in June 2023, despite criticism, will be extended to other countries in the region such as Egypt and Morocco. The recent agreement between Italy and Albania, which allows for the deportation of illegal immigrants rescued at sea prior to their entry into Italy, has been widely criticised by human rights groups for apparently flagrantly contravening EU law.
It was urgent to conclude the new EU regulation in order to dispel the EU’s inoperability of its legal instruments to face a crisis similar to that of 2015 and to stop being at the mercy of some of its neighbouring countries, such as Turkey, Belarus, Morocco or Russia itself, which in recent years have taken advantage of this weakness to use illegal immigration as an instrument of pressure against the EU.
In short, the conclusion of this agreement seeks to play down the importance of a dossier with an extremely negative political impact, with the intention of preventing it from being exploited by populist groups. But that is no longer so certain. I fear that despite the undoubted step forward that the new EU regulation will bring, immigration will remain a major issue on the political agenda of many Member States, even if its economic benefit is proven, given the growing shortage of skilled and unskilled labour, due to the vegetative ageing of the population.
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