POST 10 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
By Paula García Andrade, Universidad Autónoma de Madrid
In spite of its manifest political importance under the New Pact on Migration and Asylum and its constant topicality, cooperation with third countries might not appear as a straightforward subject of attention for this Blog Series, devoted to the internal EU legal acts recently adopted as legislative expression of the Pact. When approaching this external dimension and its contentious partnerships, our focus normally spotlights those international instruments of quite varied form and substance that the EU agrees on with countries of origin and transit. This contribution will however show, in three different steps, how the external dimension occupies, at this occasion, a prominent role in this internal legislative package and how ‘the internal’ and ‘the external’ in these policies seem even more intertwined.
Firstly, in opposition to the lasting controversies over the diverse legislative dossiers on the ad intra aspects of the Pact, cooperation with third countries can be considered its consensual element (1). As we will see, this might be explained because of the essential – or, put it differently, instrumental – nature of the external dimension for the achievement of the objectives of the EU migration and asylum policies, but also because seeking solutions externally may give a (false) impression of effectiveness that overclouds the inability to achieve consensus on how to manage migration and asylum within the Union.
Secondly, although its relevance has been constantly underlined at the highest political levels, the external dimension had not received yet a ‘legal blessing’ until the adoption of the Asylum and Migration Management Regulation (EU) 2024/1351 (AMMR), which proceeds to its formalization and substantive definition (2). Assuming that any sort of legal codification is never done to everyone’s taste, the implications of making explicit, in secondary law, the importance of this external dimension shall be assessed.
And thirdly, besides this explicit formalization, cooperation with third countries also becomes part of the normative content of several instruments of the recent legislative package (3), as in the case of the solidarity mechanism foreseen in the AMMR or the presumption of ‘safe third country’ in the Asylum Procedures Regulation (EU) 2024/1348 (APR).
1.- The external dimension as the consensual element of the New Pact on migration and asylum
Cooperation with third countries was probably the element of the New Pact that attracted more consensus among Member States on the need for its implementation, or at least did not constitute a motive for important divisions. And, to a certain extent, this illustrates how strengthening the external dimension is usually the answer to the lack of advances on further integrating the internal aspects of these policies (see Santos, p. 148, and Milazzo). This allows to provide a false image of effectiveness and assumption of responsibilities on the management of migration and asylum by the EU and its Member States when the effect is usually, on the contrary, the outsourcing of those very same responsibilities to the authorities of partner countries (see Neidhardt).
In spite of the Commission’s insistence on the Pact presenting a new paradigm, no changes have been identified in the EU’s substantive approach to international cooperation on migration and asylum (as already noted here). The focus of the Pact is nonetheless put on the practical implementation of partnerships with third countries, to be led by a more pragmatic and flexible approach (see the European Council Conclusions of 24-25 June 2021, point 12). Examples of this ‘implementation-centered perspective’ can be found, on the one hand, in the adoption of action plans with selected priority countries of origin and transit (see the European Council Conclusions of 21-22 October 2021, point 15), for which a quick implementation and adequate financing is asked from the Commission, the High Representative and Member States. In addition, with a view to implement a ‘whole-of-route approach’, the Commission has produced action plans for several migration routes (Western Mediterranean and Atlantic, Western Balkans and Central Mediterranean; see Frasca and Gatta for the latter’s analysis). They focus on preventing departures and loss of lives, addressing the root causes of migration, fighting against migrant smuggling and improving readmissions, while, in the words of the President of the Commission, “harness(ing) all leverages and tools, including by providing for safe and orderly legal pathways” and thus preserving the already traditional conditionality approach of the EU.
Also, the signature, by the EU, of several informal agreements on migration cooperation can be presented as concrete outcomes of the New Pact. This is the case of the global cooperation deals, which include, to a greater or lesser extent, migration commitments, such as the ones with Tunisia (July 2023), and Egypt (March 2024), or the more specific migration partnership with Mauritania (March 2024). These arrangements share a soft law nature, the conditionality paradigm on which they lie and the serious concerns they provoke about human rights violations in partner countries. These common features are indeed not representative of a new paradigm, but raise, on the contrary, well-known controversies regarding their conformity with EU essential principles such as rule of law, coherence or institutional balance. To this effect, we may even question the abovementioned degree of consensus this external dimension creates, since precisely the decision to agree on the EU-Tunisia MoU on a strategic and global partnership engendered serious intra-EU divisions regarding both its substance and the procedure followed for its adoption (see a previous post in this Blog).
On the other hand, the more practical-oriented perspective of the Pact is also reflected in the adoption, in January 2022, of the Mechanism for the operational coordination of the external dimension of migration (MOCADEM), a flexible mechanism, under the direction of the Council Presidency and the strategic lead of the COREPER, aimed at ensuring the EU provides a coordinated and timely response to issues arising within the migration relations with a third country. A preliminary assessment of its functioning, based on roundtables with the participation of Council bodies, the Commission, the EEAS and interested Member States, highlights its added value on ensuring better information-sharing and coordination efforts, while also making visible the challenges it creates regarding other working groups and structures involved in this external dimension.
2.- Formalization in secondary law of the importance of the external dimension
The formal acknowledgement, in a secondary law act, of the external dimension as a constituent part of the EU migration and asylum policies presents, in my view, quite relevant implications. Although the recognition of cooperation with third countries as an essential element of these policies is well-established (mostly through the diverse quinquennial programs endorsed by the European Council until the New Pact and its ordinary conclusions), the truth is that no EU law act contained such a formal reference. The Lisbon Treaty had indeed conferred external competences on migration and asylum (both explicit on readmission in Art. 79(3) TFEU, and implicit on the management of asylum in Art. 78(2)(g) TFEU), but these only represent a scattered and partial recognition in primary law of the external dimension of these policies.
The formalization of the importance of cooperation with third countries as a fundamental element of EU migration and asylum policies appears in the normative text of the AMMR. After referring, in Art. 3, to the ‘comprehensive approach’ to asylum and migration management and the need to ensure a consistent implementation of these policies, including both the internal and external components, articles 4 and 5 of the AMMR respectively define these elements. Regarding the ‘external components of the comprehensive approach’, Art. 5 binds the EU and its Member States to “promote and build tailor-made and mutually beneficial partnerships”, following the terms employed by the Commission in the New Pact. This obligation is to be developed “in full compliance with international and Union law and on the basis of full respect for human rights”. The provision adds a second duty consistent in “foster[ing] close cooperation with relevant third countries at bilateral, regional, multilateral and international levels”, which would be nevertheless implicit in the reference to the building of partnerships. As a consequence, developing the external dimension of the EU migration and asylum policies becomes a legal obligation, which does not depend, from now on, on the political inclinations of EU institutions and Member States.
The AMMR also substantively defines the external dimension by specifying the objectives of the cooperation to set with third countries: promoting legal migration and legal pathways for people in need; supporting the protection efforts of partners and building their operational capacities in respect of human rights; preventing irregular migration and combatting smuggling and trafficking; addressing the root causes of migration; enhancing effective returns, readmission and reintegration; as well as ensuring the full implementation of the common visa policy. In short, Art. 5 condenses most of the dimensions of migration cooperation, in spite of the different degree of attention they receive in practice.
The AMMR explicitly insists also on the respect of the division of competences between the Union and its Member States, or between EU institutions, a legally unnecessary caveat that serves to highlight how these policy objectives are to be achieved in observance of the concurrent – and even specific exclusive – powers still preserved by Member States in these fields, and thus to insist on the indispensable coordination between both levels of action. The text of the preamble subjects the exercise of the external competences on migration to the “full respect for the procedural rules of the Treaties and in line with the case law of the Court of Justice of the European Union, in particular as regards non-binding instruments of the Union”. The growing importance of international soft law arrangements as migration cooperation tools (see Kassoti and Idriz) becomes thus established. What is more relevant, with this reference to the Swiss MoU case and the need to respect the principle of institutional balance when adopting informal agreements, we observe a further illustration of the ‘formalisation of informality’ (as we inferred from the inter-institutional arrangements on non-binding instruments, adopted as a follow-up of case C-660/13). These terms in the AMMR were evidently unnecessary for the creation of a legal obligation which flows already from the principle of institutional balance (Art. 13(2) TEU). It clearly demonstrates all the same the Member States’ will to prevent the Commission from once again conducting itself in violation of that principle, as it did when signing the MoU with Tunisia without the prior approval of the Council.
3.- Cooperation with third countries within the normative content of the recent legislative package
Besides its formalization, cooperation with third countries also becomes explicit part of the normative content of certain legislative acts adopted in this reform. Firstly, this is the case of the AMMR, which, besides Art. 5 explained above, contains other legally relevant references to this external dimension. On the one hand, the level of cooperation with third countries on migration, return and readmission constitutes an element the Commission shall take into account when assessing the ‘overall migratory situation’ or whether a Member State is under ‘migratory pressure’, ‘at risk of migratory pressure’ or ‘confronted with a significant migratory situation’ (Art. 10(2)(b) of AMMR, see also letters (c) and (g)), scenarios that will allow the Member State in question to rely on the solidarity contributions included in the Annual Solidarity Pool. In spite of its vagueness, this provision shows that an evaluation of third countries’ cooperation on migration will not just be politically relevant, but also legally necessary, since the confirmation of those situations may lead to the activation of the EU Solidarity Pool to the benefit of the Member State in need.
At the same time, the Solidarity Pool itself, as a concrete expression of the solidarity principle and main stumbling block during this legislative procedure, will relate to actions typical of this external dimension. One of the components of the Annual Solidarity Pool (see Maiani’s analysis here), alternative to Member States’ commitments on relocations, consists of financial contributions, which may serve to provide support for actions in or in relation to third countries having a direct impact on migratory flows to Member States’ external borders or improving the migration, asylum or reception systems of that third country (Art. 56(2)(b) of the AMMR; see also Art. 56(3)). It is quite disputable, however, to what extent these supporting actions in third countries may have an equivalent impact to relocations (see Tsourdi) and may thus contribute to alleviate the particular burden of the migration system of a Member State by achieving the desired ad intra solidarity.
If we turn to other legislative outcomes of the reform package (Regulation on crisis and force majeure evidently refers to third countries’ role in instrumentalization, while the asylum and return border procedures will certainly impact on partners’ cooperation on return), we find another explicit reference to the EU external action on migration in the APR (on this act, see Chetail and Ferolla in this blog). When it addresses the concept of ‘safe third country’, as a ground for inadmissibility of an asylum request, Art. 59 of the APR establishes a presumption of safety for countries that signed an agreement with the EU, pursuant to Art. 218 TFEU, by which migrants admitted under it will be protected in accordance with international standards and in full respect of the non-refoulement principle. This provision, absent from the Commission’s proposal, may cover formal readmission agreements that include readmission obligations on third-country nationals, as well as other cooperation agreements providing for schemes similar to the one contained in the EU-Turkey Statement of 2016, under which Turkey engaged to admit all irregular migrants crossing from its territory to the Greek islands. Actually, the Statement uses the very same terms, as Art. 59 of APR, regarding migrants’ protection (“in accordance with the relevant international standards and in respect of the principle of non-refoulement”). However, the “informal” EU-Turkey Statement (or any other readmission arrangement signed by the EU; on these instruments, see Fernando Gonzalo and Frasca and Roman) would not be covered by this new provision, since it was not concluded, as a proper international agreement, under Art. 218 TFEU.
It appears certainly controversial, in any case, that a third country can be categorized as ‘safe’ because of having entered into commitments with the EU regarding migrants’ (re)admission. Concluding readmission agreements with countries having poor human rights records is certainly worrying, if we think of the treatment their authorities would provide to readmitted persons, but the implementation of internal EU legislation on return and its safeguards should prevent the adoption and enforcement of a decision to return refugees to those countries. Art. 59(7) of the APR, by referring to those agreements, will directly authorize that course of action on a presumption of safety (on its application to Turkey in particular, see Roman, Baird and Radcliffe), which, hopefully, could be reversed in case of evidence against respect for the material conditions of safety reflected in Art. 59(1) and without prejudice to the individual assessment and the connection criterion foreseen in Art. 59(5) and 59(6) (see Thym here and here; and Peers).
A pending case before the CJEU, C-134/23, precisely relates to a preliminary question of interpretation by which a Greek court asks whether the still in force Asylum Procedures Directive 2013/32/EU precludes a Member State from designating as safe a third country that decided to de facto suspend the readmission of applicants of international protection, as Turkey did, since March 2020, with the EU readmission agreement. In support of our argument, it is interesting to observe how AG Pikamäe, in his Opinion of 13 June 2024, considers that actual admission to the country is not an element necessary for its classification as a ‘safe third country’, but a condition of enforcement of the admissibility decision to a particular applicant. If this may effectively lead to conclude that the suspension of a readmission agreement precludes the inadmissibility of an application for international protection on the basis of a ‘safe third country’ designation, it cannot however imply that the mere possibility of readmission to the country, on the basis of an international agreement, equates to a presumption of safety. Moreover, the preamble of the APR clarifies that this presumption will not apply when an agreement is suspended in accordance with Art. 218(9) TFEU, a caution that should have entered into the normative body of the Regulation.
Finally, we welcome the suppression of a reference to the external dimension in the final version of two legislative acts of the reform package. On the one hand, the Commission’s proposal for a Regulation establishing a Union framework on resettlement included third countries’ effective cooperation with the EU on migration as an element to take into account when determining the regions or countries from where resettlement should take place. In particular, the Commission and the Council had to consider the country’s efforts in reducing irregular migration from its territory, in cooperating on readmission, and in increasing its reception and protection capacities (Art. 4(c) and (d) of the Proposal). This clearly signaled that resettlement was not a demonstration of international solidarity or a form of sharing the burden of protection with regions of origin, but an expression of the EU’s conditionality approach by which resettlement is controversially added as a new leverage to obtain migration management cooperation from third countries. Fortunately, due to the opposition of the European Parliament (see EP amendments in first reading), this factor on which to decide the origin of resettlement was suppressed from the final legislative act. The definitive version of Art. 4 of Regulation (EU) 2024/1350 just refers to the scope for improving protection in third countries and to the resettlement commitments they assume, as this could create synergies to collectively contribute to the global resettlement needs. No mention is however made of the role of third countries in the resettlement and humanitarian admission processes (see Bratanova), which are expected to require their cooperation in practice.
On the other hand, a second welcome suppression that represents another ‘step backwards’ from the formalization of the conditionality approach on migration relates to the original content of the Proposal for the AMMR. Art. 7, on cooperation with third countries on return and readmission, included a formal conditionality mechanism, allowing the Commission to conclude on the existence of an insufficient cooperation of a third country on readmission and identify the necessary measures to adopt, “taking into account the Union’s overall relations with [that] country”. Fortunately too, this provision does not appear in Regulation 2024/1351 (see EP amendments in first reading). The conditionality spirit is however preserved, firstly because the quite similar mechanism set by Art. 25a of the Visa Code is still in force (for a critical comment, see Nicolosi) and, secondly, since one of the main aims of the MOCADEM is precisely to assist in the mobilization of leverages to achieve migration objectives.
Concluding remarks
With this major legislative reform of the EU policies on migration and asylum, cooperation with third countries has certainly consolidated as a constituent element of these policies, its development becoming not just politically relevant or adequate, but legally binding. This will not end with the usual imbalance of migration partnerships, neither with the risks of (and actual) human rights violations this cooperation entails, nor with the challenges associated to the outsourcing of migration and asylum responsibilities; or the circumvention of institutional safeguards that informality involves. Indeed, these and other deficiencies and limitations of the external dimension of the EU migration and asylum policies will certainly remain, the legislative reform even providing, as we have seen, new reasons for concern. A sign of hope could, however, be envisaged, since the increasing legal formalization of these cooperation strategies could allow us to explore new judicial protection possibilities for requiring compliance with the EU structural principles this external action must abide by.