The new European Pact on Migration and Asylum is now in force: more borders and fewer guarantees

After years of deadlock and many difficulties in moving forward, the major reform of the European Union’s migration policy is now a reality. Since 12 June, the European Pact on Migration and Asylum (EPMA) has been in force, a new common framework that redefines how Europe manages arrivals, asylum applications and returns. The agreement is not built around a single rule, but around a legislative package that regulates what happens when a person reaches a European border. This ranges from how they are identified and registered to how their asylum application is processed, which State takes responsibility for it and what procedure is opened if they are denied protection.

Brussels has hastened to present the EPMA as a way to make the migration system “more effective, fairer and more solidarity-based” through stronger control at external borders, faster procedures and a solidarity mechanism so that countries with the highest number of arrivals do not bear all the pressure alone. By contrast, social and human rights organisations warn that the pact may consolidate a harsher migration policy, with greater emphasis on border screening, accelerated procedures, returns and the externalisation of migration control to third countries.

Although the EPMA has already begun to be applied, a significant part of its impact has yet to be defined. “Right now, what we have before us is a scenario of great uncertainty,” warns Anna Figueras, a lawyer at the Comissió Espanyola d’Ajuda al Refugiat (CEAR). According to her, the pact introduces many changes and affects several areas, but the Spanish State still has to adapt its domestic legislation. That margin, she argues, may be used either to preserve guarantees or to cut back rights.

The same concern is expressed by Tina Miñana, from Novact, who stresses the lack of transparency in the rollout of this new framework. “The implementation of the EPMA remains very opaque at the institutional level,” she says. Although the legislation is extensive, it is still not clear how it will be applied or how the protection of migrants will be guaranteed, with implementation and strategy plans that have not been made public in sufficient detail, she laments.

The right to asylum, called into question at the border

The first area where this uncertainty may have serious consequences is the right to asylum. For CEAR, international protection does not depend only on whether a person can submit an application, but also on the conditions in which they do so, from clear information and legal assistance to interpretation, time to explain their case and effective remedies if they receive a rejection. For now, Figueras warns that a Spanish instruction has already removed the suspensive effect of the appeal for reconsideration, a guarantee that could stop a return while the case was being reviewed.

One of the central pieces of the new system is border screening, the first filter that must identify who wants to request asylum, register data and detect possible vulnerabilities. “This screening, at first, basically means determining who is making an asylum application — it does not resolve it — and identifying vulnerabilities,” Figueras explains. The problem is how this detection can be carried out under real conditions, with people who may arrive exhausted, without documentation, without knowing the language or after having suffered violence during the journey.

Speed is the critical point in all this. A victim of trafficking, a person who has suffered torture, an unaccompanied minor or someone with mental health problems may not be able to explain this in a first interview. “Within a very short period of time, from the outset, this clearly creates a difficulty,” Figueras warns. Novact adds a more political reading: the risk is that asylum will stop functioning as a protection process and become “a quick selection of who will be deported”.

“Safe” countries and non-refoulement

The Pact also reinforces two concepts that may have a direct impact on access to asylum: safe country of origin and safe third country. In the first case, the starting point is the idea that a person’s country of nationality provides sufficient guarantees and, therefore, their application may be viewed with suspicion from the very beginning. “In this way, they will have to make a greater evidentiary effort,” Figueras explains.

The risk is that this label weighs more heavily than each person’s specific story. For example, a country may be considered safe in general terms and, at the same time, not be safe for a woman, an LGBTI person, a political activist, a journalist or a persecuted minority. Figueras gives the example of a person from Morocco who applies for asylum on grounds of sexual orientation. The fact that their country is considered safe may make it more difficult for them to prove their need for protection.

In addition, the concept of safe third country opens the door to returning a person to a country they passed through before arriving in Europe, even if it is not their country of origin. This may facilitate faster rejections and referrals towards return.

For this reason, CEAR insists that every application must receive an individual examination and must guarantee the principle of non-refoulement, which prevents a person from being returned to a place where they may suffer persecution or serious rights violations. “It may create presumptions of rejection of applications from the very start,” Figueras warns.

Control, expulsion and borders outside Europe

Return is the other side of the new system. Although the European Return Regulation is moving forward through its own route, organisations place it within the same political shift embodied by the EPMA, with more weight given to border control, greater ease in expelling people and more externalisation towards third countries. “The return regulation is based on control, expulsion and externalisation,” Figueras summarises.

The concern is not only that expulsions may increase, but how and where they may be carried out. Figueras points out that the new framework expands the planned periods of detention and opens the door to return centres outside the EU. This may lead to especially serious situations: “A person may end up being expelled to a country with which they have no link, no network, no language, nothing at all,” she warns.

Novact also reads this direction as a normalisation of the detention and deportation of migrant and racialised people. For Miñana, these regulations do not place protection or the guarantee of human rights at the centre, but instead reinforce a punitive logic. Figueras, in turn, sums it up by saying that “it is a vision of flow control where the person is not only not at the centre, they are not even on the periphery of this regulation”.

Framing migration as a threat

For Novact, this shift is not only legal, but also political and cultural, in the sense that the EPMA consolidates a way of looking at human mobility through control and suspicion. “Human mobility, instead of being an administrative procedure, becomes a security issue,” Tina Miñana explains. The consequence, she says, is that the Pact reinforces the idea of migration as a threat and places the regulation within the logic of national security and border control.

This view, Miñana warns, is not neutral. Novact links it to an institutionalisation of racism that has concrete effects on migrant and racialised people, such as greater exposure to institutional violence, more discriminatory practices and more impunity for far-right discourse and actions. In this framework, criminalisation affects not only the people who migrate, but also the organisations that support them before and after their arrival on European territory.

The shift in priorities can also be seen in resources. Miñana stresses that the funds allocated to border security, migration control and deportations far exceed those devoted to reception, to opening legal and safe pathways or to guaranteeing humanitarian channels. For Novact, this is one of the keys to the new model: Europe is not only speeding up procedures, but investing more in containing and expelling than in protecting.

The underlying issue: no legal and safe pathways

The underlying problem that the organisations place at the centre is the lack of legal and safe pathways to reach Europe. Without accessible channels to obtain a visa, request protection from the country of origin or arrive without putting one’s life at risk, many people are pushed onto increasingly dangerous routes and into an irregular administrative situation once inside the EU.

Figueras sums it up bluntly: “We do not have legal and safe pathways.” And she warns that if the few openings that do exist are closed, the right to asylum becomes increasingly limited to those people who have managed to reach European territory. In this regard, she argues that mechanisms such as Article 38 of Spain’s asylum law should be preserved. This article provides for the possibility of requesting protection in embassies and consulates, although it remains an underdeveloped and difficult pathway to activate.

Novact adds a structural reading and points out that irregularity is not merely an individual circumstance, but a condition produced by a system that does not offer real alternatives. “It is the system itself that creates the condition of irregularity by offering no other options,” Miñana says. Without regular pathways, migrants are more exposed to violence during the journey, to uncertainty upon arrival and also to situations of exploitation.

Surveillance, data and local control

The EPMA will not only have effects at the external borders of the European Union. It may also land in very concrete practices at the local level. We are talking about police controls, identity checks, the use of biometric data, surveillance systems and reception resources. For Novact, when the migration system is built on suspicion, this framework ends up reinforcing discriminatory mechanisms such as racial profiling.

Technology adds a layer that is harder to control. “Technology contributes to maintaining the status quo,” Miñana says. In a context of institutional racism, the use of algorithms, mass surveillance tools or automated decision-making systems may accelerate existing biases and make borders more impenetrable. The collection of biometric data is also a concern, due to the lack of guarantees and information on how it will be used.

The impact may also affect migrant children. Although the EPMA and Eurodac may expand the collection of biometric data and allow the confinement of minors and families, child protection remains a responsibility of the Generalitat de Catalunya. This is where Miñana sees room for action, making clear that “Catalan institutions have the opportunity to prioritise the protection of children over this securitarian logic”.

The border as the answer

The debate opened by the EPMA, therefore, is not only about how a new European legal framework will be applied, but about what migration model it consolidates. Organisations warn that if the system strengthens screening, speeds up procedures, expands returns and externalises borders, but does not open legal and safe pathways, the right to asylum remains recognised on paper while moving ever further away from the people who need it.

Figueras frames it as a warning about the margin that States still have when it comes to implementing the Pact: “The most respectful line towards people’s fundamental rights must be chosen.” For CEAR and Novact, that line means preserving guarantees, ensuring effective remedies, protecting people in vulnerable situations and not turning European migration policy into a race to decide more quickly who can stay and who must be expelled.