In the first half of 2023, asylum applications have increased all over the EU compared to last year, raising fears of a new ‘crisis’. Since 2015, the crisis has been the main frame of reference for migration at the EU level. This crisis narrative, focused on irregular migration rather than deaths at sea, has been widely discussed for legitimate reasons. In the past years, this narrative has been used to adopt policy orientations and working methods to address an emergency, which was largely created by oppressive policies with little chance of success, adopted at the EU and Member States’ level.
The reaction to the crisis and its management were largely read by scholars as a setback to intergovernmental dynamics, particularly because of the EU-Turkey deal, negotiated by the European Council, and in particular Germany. While there are some undeniable signs of intergovernmentalism, particularly in the legislative field, through my doctoral research I argue that since 2015, we have witnessed more EU integration in the migration and asylum policy area. The incapacity to progress on the legislative front pushed the Commission to act strategically through alternative policy frames, including the use of EU funds, and the deployment of Justice and Home Affairs agencies, thus expanding the administrative governance of the policy area, and leading to more integration, despite the intergovernmental façade.
Permanent crisis situation
The 2015 so-called “refugee crisis” was a breaking point for the EU on different levels. Parallel to the reception crisis in Europe due to the lack of sustainable reception and asylum policies, it also marked the beginning of a political crisis situation in the migration policy area over the mandatory relocation of asylum seekers, and the politicisation of the situation by populist governments, leading to the impossibility to reach consensus and find compromises over the reform of the EU asylum and migration acquis within the Council.
However recent developments put an end to this 10-year deadlock. In the past year, during the Swedish and Spanish presidencies of the Council of the EU, the Member States found a common position on every legislative proposal of the New Pact on Migration and Asylum package. Ministers agreed on overall more restrictive policies, severely undermining asylum law. They will now need to negotiate with the European Parliament to adopt the package before the 2024 European elections.
New Pact on Migration and Asylum and Intergovernmental Shadow
In this polarized political climate, to facilitate compromise, or to solve or prevent political crises in the policy area, the Commission, on several occasions, designed migration and asylum law reforms according to the Member States’ preferences, instead of conducting the usual evidence-based preparatory work and institutional procedures. This was particularly the case for the New Pact on Migration and Asylum presented in September 2020, for which Commissioner Johansson did a ‘tour of the capitals’ to consult national Ministries of the interiors. By accommodating the Member States’ political requests, the Commission feeds into a monolithic securitised narrative on migration driven by the Member States, focused on the fight against irregular migration. The New Pact on Migration and Asylum proposes a common approach to address irregular migration and asylum, which blurs the migration categories at the expense of the rights of migrants and undermines the right to asylum.
According to the Better Regulation Guidelines, Impact Assessment reports are required for every piece of legislation or policy that might have strong economic, social and environmental impacts, and shall include different policy options to assess their potential impacts. However, they can be bypassed in exceptional situations. Migration policies are among those that should be accompanied by an Impact Assessment Report, but the permanent crisis situation in the policy area inevitably leads to a crisis working mode and emergency preparatory work at the Commission’s level (crisification of policy-making), and the tight preparation deadlines leave little to no time for evidence-based policy-making which requires longer preparation timeframes. Since 2015, this supposed exceptionality in working methods has become a habit in migration policy-making, led by DG HOME. Despite those accommodations to the Member States, compromises on legislative reforms are still difficult to reach in the Council over migration and asylum policy.
Expansion of Administrative Tools to govern the EU Migration Area
Migration policy is nevertheless one of the most prolific policy areas when it comes to non-legislative acts and the expansion of administrative governance, particularly for the external dimension of migration and within the EU. The empowerment of Justice and Home Affairs agencies, such as Frontex and the European Union Agency for Asylum, and the increase of EU funds dedicated to migration, both for the internal (Asylum, Migration and Integration Fund) and external dimension (NDICI-Global Europe) provide new tools for the EU to govern the policy area and to provide efficient support to Member States.
The Commission has a central role in the implementation and administration of those instruments. Since 2015, most of the acts governing the migration and asylum policy area are administrative acts, which were adopted by the Commission in depoliticised contexts. They are discussed and negotiated with Member States in closed settings, such as the MOCADEM (Operational Coordination Mechanism for the External Dimension of Migration), which was inaugurated under the French Presidency. The lack of transparency and public debate over this governance mode due to the exclusion of the European Parliament makes it more immune to politicisation and instrumentalisation for political interests than legislative acts.
When it comes to the external dimension of migration, EU funds and EU agencies are used to support border management operations and irregular migration policies carried out by authorities in third countries. Such partnerships, with countries such as Libya, or Tunisia, which have been harmful to the human rights of migrants, rely entirely on EU funds.
Since 2015, the political crisis has reshuffled the governance modalities of the EU migration and asylum policy. Administrative tools are now an essential part of migration policy used by the EU to manage migration, while decision-making regularly departs from institutional procedures and exceptional ‘crisis’ working methods are becoming the norm. Administrative governance put the Commission in a central position of agenda-setter, for the management of the policy area.
However, this governance mode proves to be harmful to migrants. By accommodating the legislative requests of the Member States, the Commission is not only becoming a ‘service provider’ rather than the neutral agent it is supposed to be, but it is also perpetuating a unique securitised discourse on migration, which is not supported by research carried out by its staff, nor by academic scholarship. When it comes to administrative governance, the lack of safeguards and democratic scrutiny due to the side-lining of the European Parliament and other external stakeholders put migrants’ rights at risk due to the absence of public debates and transparency in addition to issues of liability in case of human rights violations. The Commission is in the position to start a proper debate over the orientation of the migration policy, however, it is unlikely that this will happen under von der Leyen’s mandate.
Thanks to a UACES microgrant, I could participate in the annual conference of the Italian Political Science Society (SISP) in Genoa from 14-16 September 2023. During the conference, I had the opportunity to present my PhD research to a broad audience, in a panel on European migration governance and its challenges, and to receive fruitful feedback for my thesis.
Since I started my PhD in 2020, I haven’t been able to work from my university in Palermo, firstly because of the COVID-19 pandemic, then because of fieldwork in Brussels and research visits abroad. This event was thus a great opportunity to get more involved in Italian academic life, particularly in Political Science. I am especially grateful to UACES. Without this microgrant, participation in this conference would have represented a financial burden, as is so often the case in early academic life. Remuneration and compensation for PhD candidates are not equal across Europe, and this represents an obstacle to occasions to connect, and grow as a researcher, so UACES grants are extremely valuable.
The UACES Microgrant scheme is aimed at supporting research for our Early-Career and Individual Members.
The microgrants scheme will provide grants of between £100 and £500 to UACES members to assist them to cover the costs of undertaking their research. The grants are designed to recognise the challenges facing researchers at this time.