The new European pact does not resolve the migrant crisis and endangers the right to asylum

On Wednesday night, a boat carrying hundreds of migrants capsized off the coast of Pylos, in the Aegean Sea, on the coast of the Peloponnese;the boat had set sail from Tobruk, Libya and was headed to Italy.There were 79 confirmed victims and hundreds of missing people, but it is not possible to calculate with certainty how many people were on board.The route from North Africa to Italy via the central Mediterranean is the deadliest in the world, according to the United Nations migration agency, which has recorded more than 17,000 deaths and disappearances since 2014.

Why people continue to die in the Mediterranean

According to the first reconstructions, there were up to 400 people on board, but a network of activists said they had received a distress call from a boat that was in the same area and which, according to passengers, was carrying 750 people.After the first alarm, Frontex aircraft and two merchant ships spotted the vessel heading north at high speed, according to the Greek Coast Guard.However, repeated calls to the vessel to offer help were refused, likely due to fear of possible pushback by the Coast Guard.“In the afternoon, a merchant vessel approached the ship and provided it with food and supplies, while the passengers refused any further assistance.”A second merchant ship then offered further supplies and assistance, which were refused, the agency added.Later, a Coast Guard patrol boat reached the vessel "and confirmed the presence of a large number of migrants on deck."

Alarm Phone, an activist network that provides a hotline to migrants in difficulty, he declared that she had been contacted already on Tuesday afternoon by people on a boat in the same area as the shipwreck;the organization then informed the Greek authorities and Frontex.In a communication with Alarm Phone, the migrants reported that the vessel was overcrowded and that the captain had abandoned ship in a small boat.

The European pact that endangers the right to asylum

Faced with what could be the most tragic episode ever to occur in the Mediterranean, the very recent political decisions of the European Union not only do not seem to understand the extent of this phenomenon, but actually proceed in the opposite direction.On 8 June the Council of European Interior Ministers, meeting in Luxembourg at the Home Affairs Council, identified an agreement to reform two regulations relating to border procedures and the management of asylum seekers in Europe;the pact, which modifies only some points of the entire matter, represents the result of a decision-making and political process that began in 2015.Support was broad and only Hungary and Poland voted against.The proposed reforms will replace some of those envisaged in the Dublin III regulation, highly criticized by many European countries, especially those in the Mediterranean basin.The objective of the pact, at least in theory, was to finally implement a true mechanism of solidarity and cooperation between all states.

Migrants, a Europe that builds walls instead of bridges

There are four main points.European states will have to participate in the redistribution of migrants with a minimum quota of 30 thousand relocations every year;alternatively they will be able to pay a contribution of 20 thousand euros per migrant to the common fund for the management of external borders.The examination of asylum applications will follow the so-called “border procedure”, an accelerated and summary process that must be completed within 12 weeks of submitting the application.This procedure will be applied to migrants who illegally cross the European border or to asylum seekers coming from "a third country deemed safe".The State responsible for examining the asylum application remains the one of first arrival in Europe and the period during which a State has responsibility for migrants arriving on its territory doubles to twenty-four months.As for the rejections and repatriations, European states will have autonomy in defining a country of departure or transit as "safe" and will therefore be able to carry out rejections also towards a transit country for migrants, and not only towards the country of origin.Now the Council will proceed to a discussion with the European Parliament, which will have to approve the new pact;everything is therefore not yet concluded, but it is the first time that Europe has found a common agreement on the management of migratory flows and regularization procedures in national territories.

The result of the agreement, once again, does not seem to be so much that of managing an emergency situation - humanitarian first of all -, but of correcting some organizational procedures in the division of migrants.The proposals do not deviate from the hegemonic vision on the management of migrants, the result of the inadequacy of European and national policies.Already in 2021, when European states were trying to agree on the new pact, human rights associations they had expressed their strong disappointment towards a security and conservative policy, incapable of evaluating the needs of migrant people and above all their rights.ASGI, acting as spokesperson for non-profit associations and international organizations, had disclosed some recommendations, which were not listened to.Among many, the major concerns concerned accelerated practices, arbitrary exclusion from the right to asylum, extralegal detention at the border and the lack of an effective individualized assessment regarding the risk of rejection or sending to a State where the foreigner could suffer persecution or serious harm.Two years after the last attempt to find an agreement and after numerous failures, the new pact confirms that the issue of migratory flows continues to be addressed only from one point of view, the economic one.

The country of first entry clause remains

The main concern that emerges is that the key principle of the Dublin regulation is not changed, i.e. the provision of all asylum procedures to be borne by the country of entry.Although it has been clear for years that the majority of migrants do not intend to stay, for example, in Italy, the pact has not taken care of equitably distributing the examination of applications in the different European territories.A different organization of asylum procedures would allow for a more careful examination of the place where the migrant wants to settle down.Instead, greater burdens will be expected to be borne by the country of first arrival and consequently an intensification of the problems:a public administration totally unprepared for the management of asylum procedures, systematic institutional discrimination even within the judicial system and the formalization of the hotspot system with the related critical issues that we know well in our country.

European immigration and asylum policy should be, as is known, "governed by the principle of solidarity and fair distribution of responsibility between member states, including on a financial level" (art.80 TFEU).In concrete terms, however, the application of this principle has always encountered difficulties due to widespread resistance from Member States to taking charge of the management of irregular migrants, and thus helping States at the external border, such as Greece and Italy, which in 2021 they turned to the Court of Justice to try to lighten the load of landings on the Mediterranean coasts, without success.

The distortion of the concept of a safe country

The pact has been harshly criticized by organizations involved in protecting the rights of migrants, especially for the distortion of the concept of a safe third country.During the negotiation, there was a tough confrontation over the organization of repatriations, both for organizational issues and because it closely affects the relationships that individual European countries have with the countries of origin of the migrants.The Minister of the Interior Matteo Piantedosi he insisted for the approval of the rejections of migrants also in transit countries, while Germany he asked greater guarantees, such as the presence of family ties in these countries.The decision represents a risk for the peaceful exercise of the right to asylum for two reasons:the lack of an examination of the application based on the reasons of the individual migrant and, even more, the danger of leaving the autonomy to European countries to consider safe a third state of origin of the migrants.The ones are significant statements of Minister Piantedosi:“We wanted to ensure that no texts passed that weakened the possibility of making agreements with third countries, always in the implementation of the projection on the external dimension.It is a compromise that does not harm the international legal framework."The intention was to specify that the Member State will decide which countries to establish agreements with.

Europe is not new to these policies and has already made bilateral economic agreements on the rights of migrants prevail in the past, with countries such as Türkiye or the Libya.In this case, the recent visit of Giorgia Meloni, Ursula von der Leyen and Mark Rutte to Tunis with President Kais Saied to discuss a agreement which could end at the end of June, even if the Tunisian leader seems not to want to accept these conditions.The intention of the European Union would be to pay 150 million euros to support the necessary reforms, requested by the International Monetary Fund, to save the country from default;should this first economic maneuver conclude, Europe will undertake to pay another 900 million, of which 105 million will be earmarked for a new agreement on the control of the migratory flow.In fact:open new refugee camps to reject migrants arriving in Europe and increase repatriations to Tunisia, both as a place of origin and transit.The premise of the agreement, therefore, is that Tunisia is considered a safe country, despite the violence and abuses perpetrated by dictator Saied. 

Tunisia, with the Meloni - von der Leyen Memorandum on migrants we continue to look at the symptoms and not the causes

Backtrack on migrants' rights  

Even from an exclusively procedural point of view, the proposed agreement does not appear to be solid:the pact was drawn up by the council, without looking at the proposals previously made by the Commission and "without respect for the vote of parliament", according to Filippo Miraglia, head of immigration at Arci.Furthermore, the agreement does not seem to be really feasible on a legal level, because very long changes to the repatriation directive, as well as to the Schengen regulation, would be necessary.The greatest risk, however, is that such a policy aimed at very harshly combating illegal immigration and forced repatriations to places that cannot be considered safe would damage the entire system of the right to asylum, starting from the principle of non-refoulement.European jurisprudence, capable of influencing the decisions of national judges, has laboriously constructed this principle, also with the aim of harmonizing the different regulations of the States.

Migrants, the solution is not to stop the departures but to reform a reception system that fuels illegal immigration

Salvatore Fachile, lawyer for ASGI and founder of the Antarctic association, a legal association that deals with immigration law, harshly criticized the rules of the pact:“The new agreement endangers the right to asylum, starting from the concept of a safe third country because, in fact, all applications will be inadmissible, they will not even be examined”.The jurist's prediction is that Italy and the other countries of the Mediterranean basin will want to consider states such as Cameroon, Niger, Tunisia as safe countries, i.e. the routes most used by migrants.This involves a complete externalization of the demand:“It's the model wanted by Blair in 2003 which is finally fulfilled, the merits of the asylum application are no longer discussed, the general rule will be that of rejection".

A second critical point, explains Fachile, is the detention of migrants who have arrived illegally in the hotspots, a seriously unsuitable place with very few resources for assisting migrant people.The new procedures, in line with the Piantedosi decree, now become mandatory and allow "the deprivation of migrants' personal freedom only by virtue of an administrative act".According to the jurist, the so-called border procedure will be nothing more than a "mass detention in order to then be able to carry out a mass removal", considering that Europe will no longer take charge of the individual application of asylum seekers.Fachile also sees profiles of unconstitutionality in the phenomenon of extraterritorial detention:“When we are in border, transit or border areas, the detention of migrants is not formally on European territory”, with consequences above all for the protection of the rights of the restricted persons.

The last issue, which according to Fachile is "ambiguous", is Minister Piantedosi's statement regarding Italy's desire not to accept the money, the 20 thousand euros per migrant, provided for by the new rules of the pact.“It is not true that Italy will not accept the money, it will have it flow into the so-called repatriation fund.There will be an influx of millions of euros into a fund that will not be subject to control by the Court of Auditors;the risk is that this money, on the initiative of the ministry, will go to finance photo-signalling, military control and weapons companies".

Preview image: Sandor Csudai, CC BY-NC-ND 4.0, via ISPI