The New EU Pact on Migration and Asylum: a recipe for suffering

Preliminary agreements on the new EU Pact on Migration and Asylum were reached on December 20th 2023 after three years of negotiation. The new pact was designed with the objective of marking a “new start” for EU asylum and migration policy, as the previous system was deemed to “no longer work” by President of the European Commission Ursula von der Leyen. Migration governance and asylum has been a long debated issue for key EU institutions, despite 76% of the world’s refugees being hosted in low and middle-income countries (International Rescue Committee, 2023). Meanwhile, the, in comparison, microscopic percentage of forcibly displaced migrants who survive the dangerous journey to the EU has over the last decade been subjected to heated political polarization, anti-immigration legislation, populism, violent border practices and law violations, including illegal pushbacks.

The reform package proposed as part of the new EU Migration and Asylum Pact is, in short, a devastating setback for the protection of asylum seekers, forced migrants, refugees and asylum law as a whole. Proposals include:

- A new screening regulation for “irregular” non-EU newcomers arriving in the EU
- A revised Asylum Procedures Regulation which functions as the main instrument for setting up mechanisms/processes after the asylum application procedure
has been initiated
- The Asylum and Migration Management Regulation which effectively replaces the Dublin Regulation to rule over solidarity measures between EU member
states
- The Crisis and Force Majeure Regulation which is responsible for regulating situations of “crisis”
- The Union Resettlement Framework which is set to provide predictable ways for some refugees to arrive in the EU (ibid)

At first glance, the new pact allows member states to circumvent EU asylum rules by making use of the force majeure regulation. For example, this tool may be applied by nation states in times of increased arrivals in order to avoid having to commit to international human rights law and international obligations related to refugee protection (Amnesty International, 2023). In practice, this could entail arbitrarily declaring a crisis situation and suspending any protection services for asylum seekers and forced migrants or enforcing stricter border control/violence measures which would prevent people seeking protection from entering the EU. It could also culminate in having non-nationals, asylum seekers and refugees etc. arbitrarily stopped in the streets by the police, or even detained, for which the declared “crisis situation” would provide justification. The new pact would as such normalize the racialization of asylum seekers and forced migrants, which LGBTQIA+ asylum seekers and refugees at present already disproportionately suffer from in various political, social and cultural settings.

The pact, perhaps unsurprisingly, does little to nothing to alleviate the pressure member states of first arrival and/or states bordering the EU face when dealing with migrant influx. On the contrary, the new pact paves the way for further externalizing EU borders through new bilateral/regional agreements (ibid). Recent deals with Tunisia, Libya, Türkiye and Albania are evidence of such shifts within migration governance. The new pact will, most certainly, only add to them and, at the same time, fortify violent border practices, illegal pushbacks and inhumane border agency interventions. For LGBTQIA+ asylum seekers and forced migrants who heavily rely on established social networks and are often forced into prostitution to be able to undertake their dangerous migration journey to the EU, these additional border security and deterrence measures only intensify their suffering, both physically and mentally.

The new pact’s focus on deportation, which is entrenched in the watering down of “safe third country” definitions, is particularly worrisome, as it dismisses the fundamental and absolute principle of non-refoulement, which prohibits states from sending people back to places where they would be at serious risk of facing persecution, human rights violations and other forms of abuse. The new pact operates on the logic that migrants arriving “irregularly” in the EU should immediately return or be deported and the amended Asylum Procedures Regulation legalizes, through the return border procedure, prolonged detention for persons refused international protection at the border, where they will have no access to alternative permits. During the new screening procedure, forced migrants and asylum seekers will have virtually no access to a lawyer, while severe time limits are enforced for the appealing process (PICUM, 2023:3-6). The screening process is set to be finalized within seven days, which is unrealistic, especially for countries located at the EU’s external borders. This will in return likely lead to extended detention for forced migrants, where they will not have access to necessary relief and support services (International Rescue Committee, 2023). The new pact does also not consider those undergoing the screening procedure to have officially entered EU territory, which is extremely problematic. LGBTQIA+ asylum seekers struggle with the threat of deportation on a daily basis due to the inadequate credibility assessment of their sexual orientation and/or gender identity. This has serious effects on their mental health, their quality of life and may re-traumatize them in the process. The risk of deportation which the new pact brings about is therefore more serious than ever; a migration and asylum pact which prioritizes deportation over protection and safeguards will have disastrous effects on the lives of forced migrants and asylum seekers, but also refugees.

The new pact, with its increased detention and deportation focus and its mandatory use of asylum border procedures may effectively put LGBTQIA+ asylum seekers and forced migrants into a de-facto state of having no legal representation and puts them in life-threatening situations when they are returned to a third country, where, often, they are exposed to punishment, sexual, physical and verbal abuse and torture due to their sexual orientation and/or gender identity (PICUM, 2023). The new EU Migration and Asylum Pact promises normalized racial profiling, the externalization of borders, mass arbitrary detention, tougher rules in case of “emergencies” and border procedures which fast-track applications from persons from low approval rate countries such as Morocco, Pakistan and India for speedy deportation (Marsi, 2024). The (human) rights of LGBTQIA+ asylum seekers and forced migrants are at serious risk of being eroded and the cruelty of the new pact is a step towards the denial of the right to asylum altogether. Strong pressure must be put on the European Parliament to uphold its core values, to protect vulnerable individuals and to respect their fundamental rights at the border and beyond.