New EU Asylum Rules: Even the Bare Minimum Will Require Radical Politics

For the past five years, European Union leaders have tried but failed to reform the block’s rules on asylum. The main bone of contention was the Dublin Regulation, in particular the rule of first entry, which specifies that the first EU member state that an asylum seeker enters is responsible for hosting them and processing their asylum claim. Because of fundamental disagreements on how to reform ​“Dublin”, all other reform proposals have gathered dust on shelves in Brussels. Meanwhile, thousands of asylum seekers still languish in dangerous camps at Europe’s borders. 

On Wednesday, the EU Commission finally unveiled the Union’s new reform ideas. On responsibility for asylum applications, they aim to replace the rules of the Dublin Regulation by – drumroll – the rules of the Dublin Regulation. In other words, the basic rules will continue to apply, with some tweaks like member state cooperation in the event of numerous asylum seekers arriving at one member’s borders at the same time. Fundamentally, the proposal cements the sad truth that the EU’s asylum policy has become a sinister race to the bottom on who manages to host the least asylum seekers. Even this lackluster proposal on distributing responsibility was met with immediate and fierce opposition in some member states – including by Austria’s Chancellor Sebastian Kurz, who declared it dead on arrival.

But the EU has few alternatives to reform. In 2015 and 2016, when the numbers of asylum applications spiked, illiberal political parties all over Europe were swift to exploit them for political gain. And they will do so again if member states fail to break the deadlock and sensibly reform the Dublin Regulation. Indeed, the current system leads to frustration everywhere: the EU’s border states like Greece will repeat their mantra of being left overburdened, while others like France or Poland will complain that most asylum seekers who end up further north should have been accommodated in the countries of their first arrival. 

Given this protracted situation, the upcoming negotiations on the proposed new laws will have to address two questions: What is the bare minimum that would make a reform better than no reform? And how can the champions of this bare minimum mobilize a majority for it? We think that, above all, a new governance would have to stand the test of being a more solidary system. But reaching – and salvaging – such a compromise will require radical political action. 

Call the bluff with a different resettlement option. The EU Commission proposes that states who are unwilling to host asylum seekers as part of a relocation effort ​“in times of crisis” can instead contribute to collective effort by organizing returns of asylum seekers whose claims have been rejected (“return sponsorships”). This idea could prove a slippery slope into a situation where virtually every member state wiggles out of a commitment to admit asylum seekers – a recipe for more disasters and human rights violations like the ones the world is currently witnessing in Moria, Greece. To prevent this, the EU should cap the total number of such ​“return sponsorships” to 10 percent of all asylum seekers who are being relocated in the EU. Member states that still refuse to accommodate asylum seekers could be offered the alternative to accept the equivalent of their share of recognized refugees from outside the EU. Refugees are recognized as such by the UN High Commissioner for Refugees, so that this compromise would call the bluff on the argument that redistribution creates a ​“pull factor”, as well as popular claims that only the most resourceful people manage to reach the EU. 

Push through a low threshold for mutual support. The pact is vague on the criteria that would trigger any new mechanism in support of an overburdened EU state. For instance, it does not define the kind of ​“crisis” that would oblige member states to support each other. To address this flaw, the EU should set a threshold for each member state, depending on its economic power. This would send a signal of serious intentions to the states at the EU’s external borders. In addition, any mechanism for mutual support would have to kick in automatically. Anything else would be an invitation for anti-EU governments to blame the European Union once the numbers of asylum seekers go up. 

Up the stakes for spoilers. The single most important leverage the EU has over its member states is its budget. EU leaders have just adopted a new budget for the next seven years, following a 90 hour-long summit. The ball is now in the European Parliament’s court – MEPs have yet to accept the carefully hatched proposal. One of the main points of contention is budget conditionality: many parliamentarians want the EU to be able to withhold funds when a member state does not comply with the principles of democratic rule of law. The EU parliament should explicitly include systematic violations of the rights of foreigners under EU jurisdiction – including during returns procedures – as part of its definition of democratic rule of law. This would finally give the EU leverage when a member state undercuts its minimum standards on asylum. It would also help to address the perverse incentive structure of the current system in which member states are ​“rewarded” for sub-standard asylum systems, because such systems bar the returns of asylum seekers who have traveled onward to other EU states. 

Hammer home the message of international credibility. The EU’s current treatment of asylum seekers is harming its international standing when advocating for principles like cooperation on migration policy, democratic rule of law and human rights. In several African states, EU officials have had to deal with rebuttals and accusations of hypocrisy when trying to argue for upholding the human rights of migrants. In private, German Chancellor Merkel has shared how China’s President Xi – of all people – has also confronted her with the failings of EU migration policy. A new, more humane compromise on asylum policy is a crucial step for the EU to regain some of its credibility on the international stage.

The chances are slim that the ​“pact’s” proposal on the Dublin Regulation will lead to concrete reforms worth fighting for. But the moment is more promising than it has been for a long time. The numbers of asylum applications in the EU have shrunk by almost 50 percent when compared to their peak in 2015. Since then, governments should have learned that the EU cannot afford a perpetual political crisis on asylum – and asylum seekers even less so.