POST 18 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
By Lilian Tsourdi, Associate Professor and Jean Monnet Chair in EU Migration Law and Governance, Faculty of Law and Maastricht Centre for European Law, Maastricht University
Audio version available here
Initially limited and labelled as ‘symbolic politics’, EU migration funding has steadily grown, and intricate management arrangements have developed for its disbursal and control. Parts of EU migration funding consist of national programs under shared management. Still, several components of EU migration funding, such as emergency funding or the funding that will become available in the future through the newly adopted Solidarity Pool, are essentially crisis response measures trying to cater for structural needs. The New Pact on Migration and Asylum instruments pay greater attention to implementation and governance aspects of the EU’s migration policies, including its funding component. The current Multi-Annual Financial Framework (MFF 2021-2027) frames the financial aspects of the New Pact instruments. However, the Pact instruments present innovations that seek to both mobilise and boost existing resources.
Against this backdrop, I provide, first, a brief critical overview of the funding component of the EU’s migration policies prior to the Pact. Next, I analyse the main elements of the current MFF 2021-2027 that frame the funding component of the EU’s migration policies. This is followed by a scrutiny of two key developments under the New Pact: i) an innovative approach to boosting migration implementation capacities, which is, however, based on a conception of solidarity as counterweight to migration pressures, and, ii) border processing as a potential blueprint for structural forms of EU migration funding. On this basis, I conclude on the interplay between funding and implementation under the New Pact.
Funding and Policy Implementation Prior to the Pact: From Symbolic Politics to the Permanence of Emergencies
EU funding targeting migration policies was originally exclusively geared to asylum, with the adoption of a European Refugee Fund in 2000. It was initially extremely limited, with an allocation of only €216 million over a four-year period, leading academic commentators to label it ‘symbolic politics’. A specific financial envelope was foreseen for the case of emergency, but it was linked exclusively with the activation of the EU Temporary Protection Directive. As that instrument was not activated, Member States could not access that dedicated amount. The European Refugee Fund was renewed for the 2005 to 2010 period, containing a slightly enhanced financial envelope, and largely following the initial design.
With the adoption of the 2007–2013 multi-annual financial framework, the EU undertook a substantial overhaul of Home Affairs funding, which led to the establishment, alongside a revamped European Refugee Fund (2007 ERF) of the following funding lines: the European Integration Fund, the European Return Fund, and the External Borders Fund. A major development during that period was the expansion of the scope of the financial reserve for emergency measures in the new European Refugee Fund Decision so that it covered, not only as before temporary protection, but also ‘situations of particular pressure’ (ERF 2007, Recs 21 and 22, and Art 5(1)–(2). Emergency funding came with strict requirements though, such as a 6 month implementation limit [ERF 2007, Recs 21 and 22, and Art 5(2)–(3)]. This made emergency funding difficult for Member States to absorb, for example, in 2010 Greece only managed to use only 6 per cent of the emergency funding available to it.
The set-up of the Home Affairs funding in the 2014–2020 multi-annual financial framework marked a departure from previous funding periods. Six funds were merged into two: the Asylum, Migration and Integration Fund (AMIF 2014) and the Internal Security Fund (ISF) (see here, and here). A single set of administrative rules included in a ‘Horizontal Regulation’ (meaning applicable to all the different funding instruments), regulated the implementation of both the AMIF and the ISF funds. The overall amount available, while more extensive than previous funding periods, still remained modest. For example, the global resources (that is, the funding for the entire period from 2014–2020) initially available for AMIF 2014 amounted to €3,137 billion [AMIF 2014, Art 14(1)], accounting at the time of its adoption for a mere 0.29 per cent of that MFF.
The funding instruments of the 2014–20 multi-annual period contained innovative elements. For example, the process for the activation of emergency funding was simplified, doing away with the 6 month implementation limit, while emergency assistance could amount to 100 per cent of the eligible expenditure for Member States [Horizontal Regulation, Rec 15 and Art 20(2)]. In addition, moderate design improvements led to a relative simplification of the management processes. One characteristic example was the elimination of the obligation for Member States to draw up annual programmes. Instead, funding operated on a multi-annual planning cycle, thus avoiding some repetitive paperwork for Member State authorities.
During the period of increased arrivals in 2015–2016, the need for structural forms of funding became ever more apparent. By structural forms of funding, I am referring to predictable forms of large-scale EU financing, that either fully cover implementation expenses (compensatory logic), or at least largely cover these expenses. Even Member States with stronger national economies, such as France, Germany, and the Netherlands, had recourse to emergency funding to implement their obligations. Moreover, several Member States demanded for the first time the activation of the Civil Protection Mechanism for migration-related purposes. This process allows for the pooling and transfer of non-financial resources and depends on the voluntary contribution of Member States. The non-financial resources consisted of items such as tents, blankets, etc. that were vital for emergency humanitarian assistance for those arriving. Items were undersupplied compared to demand. A further development was the creation of an intra-EU humanitarian aid budget line. This budget line, which draws from the general EU budget, is not specific to migration. However, its first activation related to the refugee crisis: several tranches of money were released for projects in Greece, mainly supporting reception capacity.
Overall EU funding still covered only a limited portion of national spending in the EU’s migration policies. The pre-determined share available to Member States was largely based on absolute indicators, such as number of asylum seekers or number of protected persons per Member State, that failed to account for relative pressures (e.g. AMIF 2014, Rec 37 and Annex I). In addition, Member States were required to set up intricate management and control systems at national level as part of the shared management model that demanded human and financial resources for their effective operation. It is typically for this reason that absorbing EU funding ‘costs’. Member States whose administrations were facing disproportionate pressures, or newer Member States with less technical know how, faced greater difficulties in absorbing EU funds.
Therefore, while expanding, EU migration funding was not able to cater for structural implementation needs under the MFF 2014-2020, while increased arrivals prompted overreliance to a patchwork of emergency funding lines instead of the emergence of more structural forms of funding that can ensure legal certainty and predictability.
The Multiannual Financial Framework and Migration 2021-2027: Empowering Policy Implementation but No Radical Overhaul
There is no radical overhaul in the philosophy or scope of EU migration funding in the current MFF which also frames the New Pact instruments. An enhanced financial envelope for these policies compared to the previous period, ie €25,7 billion, was initially foreseen for the budget heading relating to migration and border management. Expenditure for these policy areas is still a minor share of the EU budget (2.1 %, excluding the resources from the Next Generation EU recovery instrument), but these allocations represent a significant increase in relative terms, as compared with the 2014–2020 period. These amounts were further increased during the mid-term review of the MFF by €2 billion.
The following architecture in terms of funds has been adopted: an Asylum Migration and Integration Fund (AMIF 2021), and an Integrated Border Management Fund made of two components: the Border Management and Visa Instrument (BMVI), and the Customs Control Equipment Instrument (CCEI). In addition, a Horizontal Regulation concerning several funds under the cohesion policy and the migration policies funds regulates the implementation of all those funds.
AMIF 2021 continues to disburse part of the funding in the form of national programs (roughly 60 % of the fund) that it calculates based on a fixed amount that it augments in the case of Cyprus, Greece, and Malta (AMIF 2021, Annex I). Thereafter, it boosts this fixed amount through a number of absolute indicators, such as the number of protected beneficiaries, the numbers of asylum seekers, the number of legally residing third-country nationals, or the number of third country nationals subject to a return order (AMIF 2021, Annex I). These absolute indicators cannot account for the relative pressures these numbers represent for different Member States.
The BMVI also broadly follows the same logic for disbursing the amounts under the different national programs (BMVI, Annex I). It again foresees a fixed enhanced amount for the benefit of Cyprus, Greece, and Malta. The fixed amount is boosted by taking into account i) the length of external land borders and external sea borders of individual Member States weighted at 70 %; ii) the workload at external land and sea borders weighted at 30 %, that it ascertains through a number of absolute indicators, such as the number of crossings of the external borders at border crossing points. Since the sharing methods of the BMVI factor in the length of their external borders, they account better for the position and capacities of individual Member States as they. Nonetheless, the absolute indicators the fund employs to ascertain the workload once again do not account for the relative pressures experienced by the different Member States.
Both the AMIF 2021 and the BMVI, however, foresee an additional element of flexibility, which is the thematic facility. This is part of the funding which is not pre-allocated to national programs. Under AMIF 2021 it represents roughly 30 % of the overall available amount under the fund. Member States and the EU can direct the thematic facility under AMIF 2021 to actions such as emergency assistance, resettlement and humanitarian admission, and to additional support to Member States contributing to solidarity efforts (see, e.g. AMIF 2021, Art 11 and Rec 44).
Overall, despite the boost in existing resources and the increased flexibility through the thematic facility, the design of EU funding comes only marginally closer to a compensatory logic and to structural interventions under the new MFF. A significant part of the financing for the operationalisation of these policies is still to be drawn from national budgets, following the logic of policy implementation by Member States. In terms of EU funding, there have been no changes to better account for subnational needs, for example mirroring the distribution methods of the EU’s cohesion policy. National programs are decided and administered at central government level.
Funding the New Pact: Towards the Emergence of Structural Forms of Funding?
The implementation design of the New Pact instruments was subject to the limitations imposed by the current ‘budgetary ceilings’ of the MFF 2021-2027. An immediate passage to a compensatory logic through the EU budget would have therefore been impossible, even in the theoretical scenario that there was enough political support to back such a policy shift. Instead, the Pact instruments establish an innovative mechanism to financially boost implementation capacities through a solidarity as counterweight to pressures conception framing (i). In addition, the co-legislators in the Pact reflected on the implications of the concrete operationalisation of the policies more explicitly than in previous harmonisation rounds, also tying this with the financial implications of policy implementation. An illustrative example of this trend is border processing (ii).
i) An Innovative Boost to Migration Implementation Capacities Limited to Solidarity as a counterweight to pressures.
The New Pact instruments do not fundamentally redesign the baseline implementation paradigm. According to the Asylum and Migration Management Regulation (AMMR), under ‘normal’ circumstances Member States are expected to operationalise their national asylum and external border control systems and related obligations largely relying on their own financial and operational resources and personnel. What is available on a permanent basis is the so-called Permanent EU Migration Support Toolbox [AMMR, Art 5(3)]. This toolbox encompasses elements that carry a solidarity potential, such as operational support through EU agencies, EU funding, and the Civil Protection Mechanism. Therefore, there is an explicit recognition of EU funding as a permanent staple of migration policy implementation. In terms of EU funding, however, the Toolbox refers to the existing resources as outlined in the current MFF. It does not add to those resources. The toolbox also contains vaguely phrased elements, such as ‘enhanced diplomatic and political outreach’, or ‘supporting effective and human rights-based migration policies in third countries’. The latter reflect the migration-development nexus policy thinking, whose impact is indirect at best, let alone empirically contested.
In addition to the Permanent Toolbox, the AMMR creates a more predictable operationalisation of inter-state solidarity through a structured annual policy cycle. A different blog post in the series analysed in detail the entire cycle. In this post I scrutinize only the elements that relate to funding and links with policy implementation. The solidarity cycle is meant to result in identification of Member States under migratory pressure, at risk of migratory pressure or facing a significant migratory situation that can benefit from solidarity measures. The rest of the Member States are then called to support beneficiary Member States through solidarity-related pledges which they are then meant to realise.
It is in this framework, that the Pact injects ‘fresh money’ for migration policy implementation, that is funding beyond the limitations of the current MFF. The AMMR achieves this in the following manner. One of the three envisaged types of solidarity contributions are financial contributions, meaning financial transfers from national budgets to the EU budget as externally assigned revenues to benefit Member States that have access to the Solidarity Pool a given year (AMMR, Art 64). Initial negotiating agreements between the co-legislators foresaw direct financial transfers between Member States. However, such a system would have led to administrative overload, while diminishing transparency and traceability of funds. Therefore, redirecting the amounts to the EU budget constitutes a more principled approach. That is contributing Member States will direct the financial amounts to the EU budget, and thereafter the full array of norms and principles that frame EU funding will apply. Benefitting Member States can deploy these amounts to boost either their own capacity, or third country capacities, in the areas of asylum, migration, or border management. The fact that these financial amounts can target actions in third countries illustrates once again a policy mindset influenced by the migration-development nexus discourse. It also points to externalisation tendencies, to the extent that amounts will target boosting the border control capacities of third states.
The third type of solidarity contribution in the annual pool also links with additional (financial) capacities for policy implementation. Notably, Member States can offer so-called ‘alternative contributions’ such as capacity building, staff support, and equipment (AMMR, Art 65). Member States retain full discretion in choosing between different types of solidarity measures that are considered ‘of equal value’. However, if they pledge alternative solidarity measures, they should indicate their financial value based on objective criteria. The AMMR does not provide further indications as to such criteria. Moreover, if a specific benefitting Member State has not asked for alternative measures, these should be converted to financial contributions instead. In this sense, also ‘alternative contributions’ might need to be translated to financial contributions.
Through these innovative means, the New Pact boosts funding capacities for policy implementation, surpassing the limitations of the ceilings under the current MFF. However, there are limitations to this approach. Firstly, it is still exceptional situations of ‘pressure’ that trigger solidarity measures gathered under the framework of the Solidarity Pool, including additional financial contributions. Therefore, solidarity is framed as a counterweight to pressures, and the New Pact retains a vision of palliative and to an extent emergency-driven solidarity. This approach fails to recognise the structural needs of Member States in implementing the EU’s migration policies. In addition, the currently envisaged additional amounts are modest, namely at least €600 million for financial contributions annually. While this amount is meant as an annual minimum and not a ceiling, it gives an initial sense of measure of the expected volumes of additional contributions. Finally, overreliance in financial contributions as a solidarity means could limit the overall solidarity potential of the AMMR, a line of argument that I have developed more fully here. Still, the establishment of the mechanism itself is an interesting policy and legal innovation in boosting implementation capacities.
ii) Funding Border Processing: A Blueprint for Structural Forms of Migration Funding?
The New Pact establishes screening, border asylum processing, and border return procedures as part of a new seamless process at the EU’s external borders. Other authors in this series (see here, here, here, and here), as well I elsewhere have analysed fully the constitutive elements and implications of these new processes. This blog instead highlights the implementation implications of border processing, and their links with funding.
The Asylum Procedure Regulation (APR) establishes the notion of adequate capacity [APR, Art 46] referring to the number of persons who must go through the asylum border procedure and return border procedure at any given moment. In simple terms, the APR establishes that throughout the EU, capacity to examine 30,000 asylum applications in the border procedure at all times should be maintained. The capacity of each individual Member State is then calculated through a formula that takes to account migration pressures ([APR, Art 47]. Given the indicators adopted, Member States at the external borders attract enhanced obligations. Adequate capacity is meant to operate on an inflow/outflow basis. The APR establishes what happens when adequate capacity is reached and stipulates an annual maximum of applicants that Member States are meant to assess through border procedures.
Ascertaining levels of responsibility in border processing through objective indicators marks an improvement compared to the current situation where this is a matter of disputable self-assessment by Member States on their levels of capacity. Objective assessments have the potential to enhance mutual trust, predictability, and transparency. However, the new rules also raise the question of whether Member States at the external borders have the infrastructure and personnel to fulfil their responsibilities, and how they could effectively be supported in the rules’ operationalisation.
Funding is key in supporting Member States to operationalise their responsibilities. The APR explicitly mentions AMIF 2021 (APR, Rec 11), while the Screening Regulation and the Border Return Procedures Regulation (BRPR) mention the BMVI (Screening Regulation, Rec 23; BRPR, Rec 18). The Pact instruments refer to amounts made available through the national programming component of the EU funds, as well as through the Thematic Facility. In fact, AMIF 2021 stipulates that the EU and Member States should direct 20% of the funds allocated under the Facility to enhance solidarity and fair sharing of responsibility between the Member States. The APR also refers to further amounts made available following the MFF mid-term review (APR, Rec 11) that was explicitly also aimed at the implementation of the New Pact border processes. Once the Solidarity Pool under the AMMR begins to operate, it will make available further amounts to support border processing.
Overall, while more robust forms of EU funding than previously are foreseen, including through the AMMR ‘fresh money’ injections, it is not certain what percentage of the actual spending will be covered by EU resources. In addition, there is the risk that Member States will disproportionately gear EU funding to border procedures, the operational component of which is more clearly outlined, to the detriment of other aspects and objectives of national asylum systems.
Concluding remarks
Funding in the EU’s migration policies is no longer merely symbolic politics. At the same time, the EU still has a long way ahead to achieving structural forms of funding. The instruments of the New Pact could not in and of themselves radically revamp the implementation design as they were restrained by the status quo of the MFF 2021-2027. They do, however, contain innovations. The instruments outline concretely, and for the first time, on an objective basis, implementation obligations linked with processing at the EU’s borders. Moreover, they boost resources for policy implementation by inserting ‘fresh money’ in the system through the national budgets in the form of externally assigned revenues. This financial component is, however, framed as solidarity as a counterweight to pressures. In addition, currently envisaged amounts are modestly ambitious. Still, this policy and legal experiment could be delinked from solidarity, as well as numerically boosted. Eventually, it could be the precursor of structural forms of migration policy financing that would be embedded in the MFF. Until then, the Member States will need to rely on solidarity as a counterweight to pressures, and emergency measures to enhance policy implementation capacities, that is to rely on imperfect fixes.