EUROPEAN COMMISSION Strasbourg, 12.6.2018 COM(2018) 471 final 2018/0248(COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the Asylum and Migration Fund



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EXPLANATORY MEMORANDUM 1.CONTEXT OF THE PROPOSAL •Reasons for and objectives of the proposal During the high migratory flows in 2015 - 2016, the financial and technical support that the EU provided to its Member States contributed to the better managing of the challenges in the areas of asylum, migration and external borders. Indeed, the role of the Union budget has been pivotal in supporting the management of asylum seekers and migrants, in developing search and rescue capacities to save the lives of those attempting to reach Europe, in managing effective returns and in other actions that need a coordinated response framed by the European Agenda on Migration. The EU budget also is essential to finance common measures for the effective control and surveillance of the Union's external borders to compensate the abolition of internal border controls. For instance, the management of the Union's external borders has taken a major step forward with the establishment of the hotspots approach and a significantly reinforced European Border and Coast Guard Agency (EBCGA). These developments are fully supported by the EU budget. In October 2017, the European Council reaffirmed the need to pursue a comprehensive approach to migration management that aims to restore control of external borders, reduce irregular arrivals and the number of deaths at sea, and should be based on a flexible and coordinated use of all available Union and Member State instruments. Against this background, in its 2 May 2018 proposal on the 2021-2027 multi-annual financial framework, the Commission proposed to significantly reinforce the overall Union budget for the management of migration and external borders, by increasing it by over 2.6 times, including an increase to the funding allocated to the decentralised Agencies in this area. This proposal as such does not cover the funding allocated to the Agencies and regulates only the Asylum and Migration Fund that will provide support to the efficient management of migration by the Member States with an envelope of EUR 10 415 000 000 (in current prices). Article 80 of the Treaty on the Functioning of the European Union expressly states that the common policies of asylum and migration and external borders are based on the principle of solidarity and fair sharing of responsibilities between Member States. EU funding provides the concrete financial means to translate these twin principles into practice. The Fund will contribute to an EU migration policy that is robust, realistic and fair. A policy that acknowledges the needs of host societies and EU citizens and works closely with the partners worldwide. The Fund will ensure that the EU continues to fulfil our obligations to those in need of international protection, facilitates returning those persons who have no right to stay and support solutions that replace irregular and uncontrolled flows with safe and well-managed pathways. We need to look at the deep seated challenges that sit at the root of irregular migration, such as underdevelopment, demography, lack of opportunities, climate change, and inequality. Only comprehensive migration management, grounded on the principles of solidarity and fair sharing of responsibility, will deliver sustainable results. This includes an adequate distribution of Union funding to ensure that Member States that are most affected have sufficient capacity to address the challenges they are confronted with, for the benefit of the EU as a whole. In this context, the Commission proposal takes into account the ongoing efforts in reforming the Common European Asylum System and the current state of negotiations on the Dublin Regulation and the Union Resettlement Framework and some elements might need to be adapted to reflect their results once concluded. The success of the EU's migration management also relies on effective integration policies. To this end, the Cohesion policy Funds and ESF+ in particular will provide support to facilitate the medium and long-term integration of third-country nationals after the initial phase of reception including the integration into the labour market. To complement these efforts, the Fund will support action by national governments, local and regional authorities and civil society groups engaged in fostering the short-term integration of third-country nationals in the host communities, and mutual trust. This proposal will support reception and early integration measures to third-country nationals legally staying in the EU that are generally implemented in the early stage of integration in the period after arrival on EU territory. It will also support Member States in developing horizontal measures such as capacity building, exchanges with the host society, awareness raising campaigns or cooperation and mutual learning between Member States on the integration of third country nationals legally staying in the EU territory. The Fund will also contribute financially to an effective return policy that is an essential part of a well-managed migration system within the Union. It is also a necessary complement to a credible legal migration and asylum policy, and an important tool in the fight against irregular migration. The Fund will support and encourage efforts by the Member States with a view to an effective implementation of the Directive 2008/115/EC of the European Parliament and of the Council, with a more swift return system going hand-in-hand with the respect of the procedures and standards that allow Europe to ensure a humane and dignified treatment of returnees and a proportionate use of coercive measures, in line with fundamental rights and the principle of non-refoulement. For sustainable return policies, the Fund will support an integrated and coordinated approach to return management and cooperation with third countries to meet their obligations by offering support such as capacity building for the management of returns, information and awareness campaigns, and support for reintegration measures. The Fund will address the continuing needs in the areas of asylum, integration and return while adjusting its scope to support developments and the mandates of the European Border and Coast Guard Agency (EBCGA) and the future European Union Agency for Asylum. Cooperation with non-EU countries and international organisations is crucial to achieving these goals. The Fund will be able to support action in the external dimension that complements action supported by the relevant external instruments. The main challenge that the proposal aims to address is the need for greater flexibility in the management of the Fund, as compared with the current programming period, but also tools to ensure that funding is steered towards Union priorities and actions with a significant added value to the Union. New mechanisms for the allocation of funding for shared, direct and indirect management are therefore needed to address new challenges and priorities. The key for the distribution of funding is flexibility in determining the right delivery mode and the themes to which funding should be allocated, while maintaining a critical mass of upfront funding for structural and large, multiannual investments in line with Member States’ needs for the further development of their migration systems. The allocation of funding will also take fully into account the need for Member States to be fully compliant with the Union acquis and the need to focus investments on key EU priorities. The allocation of the funding to the programmes of the Member States will be composed of a fixed amount of EUR 5 000 000 and an amount allocated based on a distribution key reflecting the needs and pressures experienced by different Member States in three key areas covered by the Fund: asylum, legal migration and integration and countering irregular migration including returns. The distribution key will take into account various 'stocks' and 'flows' of the categories and reflect these specificities between Member States where some might experience bigger pressures in return and others in the area of integration and are impacted differently at different stages of receiving third country nationals. It is proposed to give 30% weighting to the area of asylum, 30% to the area of legal migration and integration and 40% to the area of countering irregular migration including returns. In this context, within asylum, it is proposed to give a 60% weighting to the number of first time asylum applications, 30% weighting to the number of persons with international protection status in a Member State and a 10% weighting to the number of people resettled. In the area of integration, 60% of weighting is given to the number of first time residence permits and 40% to the total number of third-country nationals in a Member State in a given year. As regards the criteria in the area of countering irregular migration including returns, it takes into account the number of orders to leave (50%) and the effective returns (50%) thereby taking into account the specific situation of a given Member State. The share for Member States’ programmes is 60 % of the total financial envelope of the Fund. It is proposed that Member States be provided with 50 % of the envelope at the beginning of the programming period, while retaining the possibility of topping up the envelope periodically. It is envisaged that one fixed top-up of 10 % of the envelope will be made at mid-term (technical adjustment of the distribution key subject to financial performance, according to which a Member State should have submitted payment claims covering at least 10 % of the initial amount of payment appropriations).

The remaining 40 % should be managed through a thematic facility, which will periodically provide funding for a number of priorities as defined in the Commission financing decisions. This facility offers flexibility in the management of the Fund by allowing the disbursement of funds to the technical assistance at the initiative of the Commission and to the following components: ·support for specific actions, providing additional funding for dedicated actions of high EU added value, through the programmes of Member States; in this context specific attention will be put on promoting effective returns; ·support for Union actions, managed through direct and indirect management; ·support for resettlement and the solidarity and responsibility efforts between the Member States; ·emergency assistance; and ·support to the European Migration Network. Actions under the thematic facility would be programmed through annual or multiannual work programmes adopted by Commission Implementing Decision. The facility will make it possible to address new priorities or take urgent action through the delivery mode that is best suited to the policy objective. Further simplification in the implementation of the Fund management, in particular by ensuring a coherent approach with rules applicable to the management of other Union Funds, (‘single rule book’), providing better guidance on the management and control systems and audit requirements, and ensuring that the eligibility rules under shared management make full use of simplified cost options (SCOs). It is important to maximise EU added value in the area of migration management and to implement an improved monitoring and evaluation framework so as to strengthen performancebased management. In order to support efforts to ensure a comprehensive approach to the management of migration grounded on solidarity and responsibility among Member States and EU institutions and to fulfil the objective of ensuring a common sustainable Union policy on asylum and immigration, an Asylum and Migration Fund (AMF) should be established to provide Member States with adequate financial resources. This proposal provides for a date of application as of 1 January 2021 and is presented for a Union of 27 Member States, in line with the notification by the United Kingdom of its intention to withdraw from the European Union and Euratom based on Article 50 of the Treaty on European Union received by the European Council on 29 March 2017. • Consistency with existing policy provisions in the policy area This Regulation establishing the Asylum and Migration Fund builds on the investments and achievements made with the support of its predecessors: the European Refugee Fund (ERF), the European Fund for the Integration of thirdcountry nationals (EIF) and the European Return Fund (RF) in 2007-2013, and the Asylum Migration and Integration Fund (AMIF), as established by Regulation (EU) No 516/2014, in 20142020. The Fund will maintain support for overall EU policies in the area of migration, integration and return, such as support to strengthen and develop the Common European Asylum System (including its external dimension), support for solidarity and responsibilitysharing between the Member States, in particular in favour of those most affected by migration and asylum flows, support for legal migration to the Member States and the development of proactive immigration strategies that respect the integration process of third-country nationals, support to enhance the Member States’ capacities and promote fair and effective return strategies and the development of partnerships and cooperation with nonEU countries. However, an intensified EU policy on migration needs action across the full spectrum of the tools at its disposal. In this respect, the work of Member States supported by the Funds will be more effective if it is complemented and buttressed with the relevant activities of Union agencies, in particular the European Asylum Support Office (EASO) and the European Border and Coast Guard Agency which will play a key role in identifying vulnerabilities and supporting Member States to address them including through joint operations, training and deployment of expertise. The Fund will work in full complementarity with these agencies for which a significant reinforcement is proposed for the future period. In its Communication 'A Modern Budget for a Union that Protects, Empowers and Defends', the Commission proposes to allocate an amount of EUR 865 000 000 (in current prices) to Union agencies in the area of migration. This Regulation does not cover the funding for these agencies. Their funding is determined in the regular annual budgetary procedure. Moreover, the Commission proposes to allocate an amount of EUR 12 013 000 000 (in current prices) to support a major scaling up of the European Border and Coast Guard Agency, making it fully operational, with a standing corps of around 10,000 border guards and a well-functioning European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA). •Consistency with other Union policies Union migration policy, and by extension the Asylum and Migration Fund, rely on the synergies and coherence with relevant EU policies such as border management, internal security, the social inclusion and integration of third-country nationals and the Union external policies that support third countries. The variety of elements of migration management requires a coordinated approach by a number of Union funding instruments that would support the implementation of the external and internal aspects of the Union policy. The Union external instruments have a key role to play in addressing the root causes of migration, ensuring access to international protection, enhancing border management and pursuing efforts in the fight against migrant smuggling and trafficking of human beings, support the implementation of the return actions as well as the management of the Union legal migration policy. Therefore, migration will be an area of focus in the Union proposals for the Union external instruments. Measures in and in relation to third countries supported through the Fund should be implemented in full synergy and coherence and should complement other actions outside the Union supported through the Union’s external financing instruments. In particular, in implementing such actions, full coherence should be sought with the principles and general objectives of the Union’s external action and foreign policy in respect of the country or region in question. In relation to the external dimension, the Fund should target support to enhance cooperation with third countries and to reinforce key aspects of migration management in areas of interest to the Union's migration policy. The European Regional Development Fund (ERDF) and the European Social Fund+ (ESF+), on the other hand, include important provisions to cover long term integration of third country nationals while this fund will rather focus on early integration measures. Other programmes such as the European Agricultural Fund for Rural Development (EAFRD) and Erasmus+ will also strengthen the provisions dealing with migrants and refugees. All these instruments will have to work in coherence to maximize the impact of their support. Synergies will also be ensured with the Justice, Rights and Values Fund that contributes to priorities and objectives related to the better management of migration, the promotion of inclusion and addressing trafficking in human beings. In addition, consistency and synergies will be sought with the Border Management and Visa Instrument as part of the Integrated Border Management Fund and the Internal Security Fund in addition to the Funds mentioned above.

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY •Legal basis Article 3(2) of the Treaty on European Union provides that ‘the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’. The legal basis for the proposed Union action can be found in the list of measures contained in Article 77(2) as well as in Article 79(2)(d) of the Treaty on the Functioning of the Union (TFEU), such as the common policy on visas, the checks on persons at external borders, any measures for the gradual establishment of an integrated management system for external borders and the combatting of trafficking in persons. Attention is also drawn to Article 80 of the TFEU, which underlines that the Union policies set out in chapter 2 of Title V of Part Three of the TFEU and their implementation are to be governed by the principle of solidarity and the fair sharing of responsibility, including its financial implications, between the Member States. Additionally, the Commission adopted on 29 May 2018 a proposal for a Common Provisions Regulation in order to improve the coordination and harmonise the implementation of support under shared management , with the main aim of simplifying policy delivery. The shared management part of AMF is covered by these common provisions. The different Funds in shared management pursue complementary objectives and share the same management mode, therefore Regulation (EU) .../.. [Common Provisions Regulation] sets out a series of general principles such as partnership. That Regulation also contains the common elements of strategic planning and programming, including provisions on the Partnership Agreement to be concluded with each Member State, and sets out a common approach to the performance orientation of the Funds. Accordingly, it includes enabling conditions and arrangements for monitoring, reporting and evaluation. Common provisions are also set out with regard to eligibility rules, financial management and management and control arrangements. The Fund will be open to the association of third countries, in accordance with the conditions laid down in a specific agreement covering the participation of the third country to the Asylum and Migration Fund, specifying their contributions and benefits and conditions of participation. •Subsidiarity (for non-exclusive competence) The management of migratory flows presents challenges that are increasingly transnational and on such a scale that they cannot be dealt with by the Member States acting alone. Given that dealing with migration requires substantial resources and capacities from the Member States and in order to ensure a comprehensive approach grounded in mutual trust, solidarity, responsibility sharing, cooperation and coordination among Member States and EU institutions, there is clear added value in Union intervention in this area and mobilising the EU budget. In that context, the Asylum and Migration Fund is expected to add value by ensuring a more efficient use of public funds by strengthening the Common European Asylum System through the establishment of common rules and procedures, developing Member States’ capacities to receive persons in need of international protection, promoting the use of legal avenues for migrants, ensuring the Union’s long-term competitiveness and the future of its social model, supporting the integration of legally staying third-country nationals and reducing incentives for irregular migration through a sustainable return and readmission policy. In relation to the external dimension of Home Affairs, partnerships and cooperation with third countries are an essential component of Union migration policy to ensure the adequate management of flows and express solidarity with third countries under migratory pressures through resettlement initiatives. It is clear that the adoption of measures and the pooling of resources at EU level will increase significantly the leverage that the EU needs to persuade third countries to engage with it on those migrationrelated issues that are primarily in the interest of the EU and the Member States. The proposal respects the principle of subsidiarity, because most of the funding will be implemented in accordance with the principle of shared management and respecting the institutional competencies of the Member States, while fully acknowledging that interventions should take place at an appropriate level and the role of the Union should not go beyond what is necessary. •Proportionality The proposal complies with the proportionality principle, and falls within the scope for action in the area of freedom, security and justice, as defined in Title V of the TFEU. The objectives and corresponding funding levels are proportional to what the instrument aims to achieve. The actions envisaged in this proposal address the European dimension of asylum and immigration. •Choice of the instrument Regulation of the European Parliament and the Council to establish an Asylum and Migration Fund. 3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS •Retrospective evaluations/fitness checks of existing legislation The proposal takes into account the results of evaluations of the previous funding instruments. It builds on the ex post evaluation of the European Refugee Fund, the European Integration Fund and the European Return Fund and the interim evaluation of the AMIF (2014-2020 programming period). In terms of the different evaluation criteria, the findings were as follows:

In terms of effectiveness, the AMIF has played an important role in improving asylum systems and strengthening reception capacity in the Member States. Due to the migration crisis, the area of asylum was especially prioritised in many countries. The AMIF also registered significant progress regarding the most vulnerable, including unaccompanied minors, and refugees and asylum seekers in regions such as north Africa and the Horn of Africa, thereby increasing the visibility of its external dimension. However, there is limited evidence of increased capacity to develop, monitor and evaluate asylum systems, and, while the EU resettlement programme has made progress, it has made only a limited contribution to establishing, developing and implementing national resettlement programmes. The AMIF has made good progress as regards the integration of third-country nationals, where mainly short-term integration measures have been prioritised over long-term measures, while limited progress has been made to date on legal migration, probably because of contextual factors. The results of those measures are not yet visible, as integration is a long-term process. The development of fair, sustainable and effective return strategies has been an objective of growing importance in most Member States and, despite both voluntary and forced return rates steadily increasing with the Fund’s support, findings show that the AMIF has made limited contributions to the effective implementation of return strategies. Solidarity and responsibility-sharing between Member States have been strengthened mainly through emergency assistance, relocation mechanisms and EU resettlement programmes. Available findings suggest that national programmes made limited additional contributions to both the transfer of asylum seekers and the transfer of beneficiaries of international protection, as compared with the relocation mechanism. The AMIF has made significant contributions to Member States in emergency situations, mainly through emergency assistance, which has been an essential instrument in strengthening solidarity. It has facilitated a swift and targeted response, in coordination and in synergy with the Emergency Support Instrument . As regards efficiency, overall, within the limits of available data, the evaluation indicated that the results of the Fund were achieved at reasonable cost in terms of both human and financial resources. Although the start of implementation of the national programmes was delayed, the Fund’s overall implementation appears to be on track, thanks to emergency assistance bridging the funding gap and catering to immediate needs, helped by the flexible approach applied to its management. The management and control measures have also been appropriate and effective, with stringent mechanisms to ensure the Fund is correctly implemented and that fraud and irregularities are prevented. At this stage, there is little evidence of a significant reduction in the administrative burden, although the AMIF has led to simplification as compared with the past. Several new administrative and managerial procedures were introduced, taking into account the lessons learnt from the previous funds. These include adopting the better regulation guidelines and toolbox, and collecting indicators in order to ensure a more appropriate measurement of performance. Overall, most of the innovative measures (e.g. simplified cost options, multiannual programming) are considered particularly useful by beneficiaries and appear to have achieved simplification. Despite simplification improvements, the national rules and procedures that apply under the national programmes appear to lead to moderate to high administrative burden, thereby affecting efficiency. Despite the challenges, the AMIF remains highly relevant, since it has proved to be sufficiently flexible, broad and all-encompassing to respond to different needs, and national programmes are in line with the Member States’ needs. However, the changing needs that Member States faced during the implementation period call for more flexibility in the financial allocations. Needs vary widely across Member States and different fields (i.e. asylum, integration and return), the volumes and scope of which have fluctuated, but generally increased. The area of asylum was prioritised in many countries. Due to the migration crisis, the scale of the AMIF ended up being different to what was initially envisaged and the original level of funding proved insufficient. Measures were taken during the Fund’s design, planning and programming stages to ensure that it was coherent with, complementary to, and aligned with other EU financial instruments and with relevant key EU policy strategies. During the implementation stage, the Commission ensured that EU funds with similar objectives were used in a coordinated way. At national level, the vast majority of Member States ensured coherence and complementarity by establishing coordination mechanisms, mainly in the form of monitoring committees bringing together the authorities involved in the implementation of the funds. However, there appears to be room for improved communication when it comes to internal coherence among different AMIF implementation mechanisms as some beneficiaries were not very familiar with the actions and projects supported in the AMIF framework, especially Union actions and emergency assistance. Nonetheless, there is little evidence of incoherence, overlaps and duplication, either internally or externally. Overall, the AMIF has generated significant EU added value, despite its relatively small size as compared with the challenges imposed by the crisis that occurred during this period. The main EUlevel benefit arises from the transnational dimension of certain actions (Union actions and the European Migration Network) and EUlevel burden-sharing, supported in particular by emergency assistance and the relocation mechanism under national programmes, both of which are proof that the principle of solidarity was applied. The AMIF brought significant EU added value in terms of: (i) ensuring the effective and efficient management of migratory flows at EU level (volume effects); (ii) improved procedures relating to migration management and greater knowhow and capacity (process effects); (iii) allowing Member States to reach more migrants, asylum seekers, refugees and third country nationals (scope effects); and (iv) innovations generated at national and European level through the implementation of the actions (role effects). The absence of AMIF funding would have been detrimental to the quality of the EU response to the migration crisis and Member States’ ability to cooperate and implement solutions. An interruption in the support would probably have significant negative consequences and lead to reductions in the scope and quality of actions implemented, and delayed or even suspended implementation of the actions, including on the application of the principles of solidarity, burden-sharing and mutual trust. The AMIF paid great attention to sustainability, through mechanisms put in place during the programming and implementation stages across different implementation mechanisms, although to a lesser extent in the context of emergency assistance (due to the nature of the actions). Greater account could be taken of sustainability criteria in the design of AMIF interventions. The sustainability of the effects of actions (effects lasting after the intervention ends) and financial sustainability (actions that could continue after AMIF financing ends) vary across implementation mechanisms, Member States and specific objectives, and depend on the adoption of a holistic approach. The sustainability of effects on target groups is likely to differ depending on the focus areas – integration and asylum outcomes are likely to last if they address longer-term needs, while return outcomes are more sustainable if they are based on voluntary return schemes and are supported by efforts for reintegration.

•Stakeholder consultations Two dedicated open public consultations on EU funds in the areas of migration and security ran from 10 January 2018 to 9 March 2018. Overall, respondents stressed the need for simplification in the delivery of home affairs financial instruments, greater flexibility (specifically in relation to the ability to respond to migration and securityrelated crises) and increased funding and support in areas with high levels of responsibility-sharing (asylum and border management) and/or cooperation between Member States and with home affairs agencies. Respondents argued that such measures can improve the effectiveness and efficiency of funding instruments and the EU added value. Stakeholders also pointed to the need for greater home affairs policy leverage in third countries. Member States’ responsible authorities were consulted in the framework of the AMIFISF Committee. Member States provided input on the main funding priorities, problems, the architecture of the funds and delivery modes. Other key stakeholders and beneficiaries of AMIF and Internal Security Fund (ISF) funding through direct and indirect management, such as international organisations and civil society organisations, were also consulted, as were home affairs agencies. Stakeholders concurred that in order to maximise EU added value, EU spending should reflect EUlevel priorities and policy commitments and support the implementation of the EU home affairs acquis. They called for sufficient funding to be made available to face current and newly emerging challenges. Sufficient funding should also be made available for the home affairs agencies, in line with their increasing activities. Stakeholders agreed on the need for more flexibility to be built into the structure of the funds. They found that, in order to retain sufficient flexibility to be able to react to changing circumstances, the multiannual programmes should be maintained. Non-governmental organisations were of the view that direct management should also be continued. The consultations confirmed a consensus among key stakeholders on the need for a wider scope of action for EU funding, including as regards its external dimension, enhancing the impact of Home Affairs policies, more simplification in delivery mechanisms and greater flexibility, in particular to respond to emergencies. •Collection and use of expertise Work on the preparation of the future financial instruments for Home Affairs started in 2016 and continued into 2017 and 2018. As part of this work, an MFF study was carried out in 2017 and 2018 to support the impact assessment which was launched in September 2017. These studies brought together available results from evaluations of the existing financial instruments and from the stakeholder consultations, and explored the problems, objectives and policy options, including their likely impact, as examined in the impact assessment. •Impact assessment An impact assessment has been carried out for the proposal. The impact assessment covered the following: the Asylum and Migration Fund, Internal Security Fund and the Integrated Border Management Fund, which is composed of the Instrument for Border Management and Visa and the Instrument for Customs Control Equipment. The summary sheet of the impact assessment and the positive opinion of the Regulatory Scrutiny Board can be found on the following website http://ec.europa.eu/transparency/regdoc/?fuseaction=ia . The impact assessment report analyses different policy options in terms of how the funding will be delivered, addressing the coherence and complementarities with other EU funding instruments, the external dimension of the migration and security funding, flexibility in a stable financial environment (including thematic facility), implementation modalities (shared, direct and indirect management), the possibility to provide emergency assistance as well as the mid-term review mechanism. The preferred option is a mix of options building on results and recommendations of the ex-post evaluation of the previous Funds (2007-2013 programming period) and the interim evaluations of the current Funds (2014-2020 programming period). The impact assessment addresses the recommendations made by the Regulatory Scrutiny Board. The table below outlines the main considerations and recommendations for improvement received for the Asylum and Migration Fund, the Border Management and Visa Instrument (as part of the Integrated Border Management Fund) and the Internal Security Fund and how the impact assessment report was amended to reflect these. Main considerations Regulatory Scrutiny Board Modifications impact assessment report The report does not explain how increasing EU competence in these areas (of home affairs) and expanded role of agencies will affect the overall system. For the Asylum and Migration Fund, the Border Management and Visa Instrument (as part of the Integrated Border Management Fund) and the Internal Security Fund, the report has been revised to explain how the extension of EU competence and larger role of Agencies affects the roles of the respective Funds (section 3.2). Having a key role in the implementation of Union migration and security policies, Home Affairs Agencies will have an important role during the programming phase of national programmes while their monitoring activities would feed into the mid-term review. An expanded mandate of the Agencies would not have as purpose to substitute the current tasks performed by Member States but rather to enhance and upgrade actions of the Union and its Member States in the area of migration, border management and security. Further considerations and recommendations for improvement Modifications impact assessment report (1) The report should present the main changes in the programme structure and the priorities compared to the current programming period. Moreover, the report should clarify the scope of the external component of the programme, i.e. its complementarity with the external instruments. The report has been revised to present the main changes to the programme structure compared to the current programming period (section 3.2) and to clarify the scope of the external component and its complementarity with the external instruments (section 3.3). The objectives of the Funds are based on the scope of their predecessors which, in general, were considered sufficiently broad to support the implementation of EU policy priorities, providing EU added value. Adaptations to priorities and actions reflect policy developments and the need for synergies with other EU Funds. Interventions in the external dimension will be designed and implemented in coherence with EU external action and foreign policy, in particular with the EU’s external Instrument. (2) The report should also explain how the extension of EU competence and larger role for agencies affects the roles of the respective programmes. Does it increase the need for actions at national level, for delegation to the agencies, or reduce the priority of some interventions? Please see the modifications made to the report accommodating the main consideration by the Regulatory Scrutiny Board presented above. (3) The Board understands that the new mechanism for performance reserves was still under development when drafting the report. Its final version should however update and clarify the chosen mechanism and justify it in the light of experience from other EU funds (as orally explained to the Board). The report has been revised to update and clarify the preferred mechanism, taking into account experience from other EU Funds and developments in the framework of preparing the future Common Provisions Regulation for shared management (section 4.1.4). No dedicated performance reserve is presented in the preferred option. A minimum level of financial implementation is included for allocating top-up funding in the technical adjustment at mid-term while performance elements would be taken into account when providing additional funds via the thematic facility. (4) The report should clarify how the new emergency mechanism will function within the envelopes of each of the three funds for migration and security, and that the use of emergency assistance should be limited due to the new flexibility provided by the thematic facility. It should explain the advantage of this mechanism over emergency funding in the previous programming period. The report has been revised to provide clarifications on how the new emergency mechanism will function (section 4.1.3). Emergency assistance provided through the Funds should be complementary to the Emergency Aid Reserve (at the level of the EU budget) and be used in clearly defined situations. Due to the flexibility embedded in the thematic facility, the use of emergency assistance is expected to be more limited than in the current programming period. Emergency assistance may be implemented through shared, direct or indirect management. (5) The monitoring arrangements are not well developed. The report should clarify how the programmes’ success will be defined and measured. The report has been revised (section 5.1) to present the measurement of the success of the programmes. This will be based on objectives set between Commission and Member States, to be agreed in the national programmes, and the subsequent measurement of achievements towards those objectives, through output and result indicators included in the legal proposals. Reporting requirements for shared management are laid down in the Common Provisions Regulation. • Regulatory fitness and simplification The Common Provisions Regulation (common to several shared management policy areas) will ensure simplification of the Fund through the use, as far as possible, of common rules, monitoring, control and audits for the implementation of programmes, including through the better use of the simplified cost options. The audit approach will be streamlined to focus more on risk-based audit sampling and follow the ‘single audit’ principle in order to reduce administrative burden. Further simplification under direct management will be achieved through the use of common Commission-wide IT tools (e-Grants management system). •Fundamental rights Financial support from the Union budget is indispensable to the implementation of the Asylum and Migration Fund to support Member States by ensuring common rules and procedures for receiving persons in need of international protection, promoting more legal avenues for migrants, supporting integration of non-EU nationals and reducing incentives for irregular migration through a sustainable return and readmission policy. These objectives will be pursued in full compliance with the Union’s commitments on fundamental rights. This will be monitored closely during the implementation of the Fund. 4.BUDGETARY IMPLICATIONS The Commission’s proposal for a multiannual financial framework includes EUR 10 415 000 000 (in current prices) for the Asylum and Migration Fund and EUR 865 000 000 (in current prices) for the relevant decentralised agencies for the 20212027 period.

Implementation will be by means of shared or direct/indirect management. The global resources will be allocated as follows: 60 % to the Member States’ programmes implemented under shared management; and 40 % to the thematic facility, for specific actions at national or transnational level, Union actions, emergency assistance resettlement, solidarity and responsibility efforts and the European Migration Network. The thematic facility envelope will also be used for the technical assistance at the initiative of the Commission. 5.OTHER ELEMENTS •Implementation plans and monitoring, evaluation and reporting arrangements The funding is implemented though shared management by the Member States and direct/indirect management by the Commission. The monitoring and evaluation framework will be improved, including through a better methodology for tracking investments across relevant EU funds, to stimulate timely performance and to ensure that evaluations can provide effective input for any future revisions of policy interventions. This will be done through better indicators, closer cooperation with relevant partners and a mechanism to incentivise performance. A mid-term evaluation and a retrospective evaluation will be carried-out by the Commission. These evaluations will be carried out in line with paragraphs 22 and 23 of the Interinstitutional Agreement of 13 April 2016, where the three institutions confirmed that evaluations of existing legislation and policy should provide the basis for impact assessments of options for further action. The evaluations will assess the Fund's effects on the ground based on indicators and targets and on a detailed analysis of the degree to which the Fund can be deemed relevant, effective, and efficient, provides enough EU added value and is coherent with other EU policies. They will include lessons learnt to identify any lacks/problems or any potential to further improve the actions or their results and to help maximise their impact. The Member States under shared management are expected to report on the implementation of their programmes regularly and to submit a final performance report at the end of the programming period. •Detailed explanation of the specific provisions of the proposal Chapter I — General provisions of the proposed Regulation sets out its purpose, scope and key definitions. It requires that all actions supported under the Regulation comply with applicable Union and national law. It also sets out the objectives of the Regulation. The proposed scope of these articles largely builds on the current AMIF Regulation, while taking into account new policy developments, such as the European Agenda on Migration, and the need to provide an agile response to evolving migration challenges both within the EU and in cooperation with other countries. Chapter II — Financial and implementation framework sets out general principles for the support provided under the Regulation and conveys the importance of consistency and complementarities with relevant EU funding instruments. It stipulates the delivery modes for the actions supported under the Regulation: shared, direct and indirect management. The proposed mix of delivery modes is based on the positive experience with this combination in the implementation of the current funding instrument. The first section of the chapter lays down the financial framework. The proposal indicates an amount for the overall envelope for the Fund and its use through various implementation arrangements. The second, third and fourth sections describe the implementation framework for the Fund by implementation mode, such as programmes from the Commission and the Member States. It sets out detailed arrangements for the mid-term review and for the implementation of specific actions, Union actions, emergency assistance, technical assistance, financial instruments, budgetary guarantees and operating support. The final section sets out the necessary provisions on performance reports by Member States, monitoring and evaluation. Chapter III — Transitional and final provisions contains provisions on the delegation of power to the Commission to adopt delegated acts, and on the Committee procedure. It also covers the applicability of the Common Provisions Regulation to the proposed Regulation, proposes the repeal of the predecessor funding instrument and lays down a number of transitional provisions. The date of the entry into force of the proposed Regulation is set and it is stipulated that the Regulation will be binding in its entirety and directly applicable in all Member States in accordance with the Treaties from 1 January 2021. 2018/0248 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the Asylum and Migration Fund



THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 78(2) and Article 79(2) and (4) thereof, Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee, Having regard to the opinion of the Committee of the Regions, Acting in accordance with the ordinary legislative procedure, Whereas: (1)In the context of the evolving migratory challenges characterised by the need to support strong reception, asylum, integration and migration systems of Member States, prevent and adequately handle situations of pressure and replace irregular and unsafe arrivals with legal and safe pathways, investing in efficient and coordinated migration management in the Union is key to realising the Union’s objective of constituting an area of freedom, security and justice pursuant to Article 67(2) of the Treaty on the Functioning of the European Union. (2)The importance of a coordinated approach by the Union and the Member States is reflected in the European Agenda on Migration of May 2015, which stressed the need for a consistent and clear common policy to restore confidence in the Union’s ability to bring together European and national efforts to address migration and work together in an effective way, in accordance with the principles of solidarity and fair sharing of responsibility, and was confirmed in its mid-term review of September 2017 and the progress report of March and May 2018. (3)In its conclusions of 19 October 2017, the European Council reaffirmed the need to pursue a comprehensive, pragmatic and resolute approach to migration management that aims to restore control of external borders and reduce irregular arrivals and the number of deaths at sea, and should be based on a flexible and coordinated use of all available Union and Member State instruments. The European Council further called to ensure significantly enhanced returns through actions at both EU and Member States level, such as effective readmission agreements and arrangements. (4)In order to support efforts to ensure a comprehensive approach to management of migration grounded on mutual trust, solidarity and responsibility sharing among Member States and Union institutions, with the objective of ensuring a common sustainable Union policy on asylum and immigration, Member States should be supported by adequate financial resources in the form of the Asylum and Migration Fund (hereinafter referred to as ‘the Fund’). (5)The Fund should be implemented in full compliance with the rights and principles enshrined in the Charter of Fundamental Rights of the European Union and with the Union’s international obligations as regards fundamental rights. (6)The Fund should build on the results and investments achieved with the support of its predecessors: the European Refugee Fund established by the Decision 573/2007/EC of the European Parliament and the Council, the European Fund for the Integration of thirdcountry nationals established by the Council Decision 2007/435/EC, the European Return Fund established by the Decision 575/2007/EC of the European Parliament and the Council for the period 2007-2013 and the Asylum, Migration and Integration Fund for the period 2014-2020, as established by Regulation (EU) 516/2014 of the European Parliament and of the Council. It should at the same time take into account all relevant new developments. (7)The Fund should support the efficient management of migration flows, inter alia by promoting common measures in the area of asylum, including Member States’ efforts in receiving persons in need of international protection through resettlement and the transfer of applicants for or beneficiaries of international protection between Member States, supporting integration strategies and a more effective legal migration policy, so as to ensure the Union’s long-term competitiveness and the future of its social model and reduce incentives for irregular migration through a sustainable return and readmission policy. The Fund should support the strengthening of cooperation with third countries to reinforce management of flows of persons applying for asylum or other forms of international protection, avenues on legal migration and to counter irregular migration and ensure sustainability of return and effective readmission to third countries. (8)The migration crisis highlighted the need to reform the Common European Asylum System to ensure that efficient asylum procedures to prevent secondary movements, to provide uniform and appropriate reception conditions for applicants for international protection, uniform standards for the granting of international protection and appropriate rights and benefits for beneficiaries of international protection. At the same time, the reform was needed to put in place a fairer and more effective system of determining Member States’ responsibility for applicants for international protection as well as a Union framework for Member States’ resettlement efforts. Therefore, it is appropriate for the Fund to provide increased support to Member States’ efforts to fully and properly implement the reformed Common European Asylum System. (9)The Fund should also complement and reinforce the activities undertaken by the European Union Agency for Asylum (EUAA) established by Regulation (EU)../.. [EUAA Regulation] with a view to facilitating and improving the functioning of the common European asylum system, by coordinating and strengthening practical cooperation and information exchange between Member States, promoting Union law and operational standards on asylum in order to ensure a high degree of uniformity based on high protection standards as regards procedures for international protection, reception conditions and the assessment of protection needs across the Union, enabling a sustainable and fair distribution of applications for international protection, facilitate convergence in the assessment of applications for international protection across the Union, support the resettlement efforts of the Member States and provide operational and technical assistance to Member States for the management of their asylum and reception systems, in particular those whose systems are subject to disproportionate pressure. (10)The Fund should support the efforts by the Union and the Member States relating to the enhancement of the Member States’ capacity to develop, monitor and evaluate their asylum policies in the light of their obligations under existing Union law. (11)Partnerships and cooperation with third countries are an essential component of Union asylum policy to ensure the adequate management of flows of persons applying for asylum or other forms of international protection. With the aim of replacing the unsafe and irregular arrivals with legal and safe arrival to the territory of the Member States of third-country nationals or stateless persons in need of international protection, expressing solidarity with countries in regions to which or within which a large number of persons in need of international protection have been displaced by helping to alleviate the pressure on those countries, helping achieve the Union’s migration policy objectives by increasing the Union’s leverage vis-à-vis third countries, and of effectively contributing to global resettlement initiatives by speaking with one voice in international fora and with third countries, the Fund should provide financial incentives to the implementation of the Union Resettlement [and Humanitarian Admission] Framework. (12)Considering the high levels of migration flows to the Union in the last years and the importance of ensuring the cohesion of our societies, it is crucial to support Member States’ policies for early integration of legally staying third-country nationals, including in the priority areas identified in the Action Plan on Integration of third-country nationals adopted by the Commission in 2016. (13)In order to increase efficiency, achieve the greatest Union added value and to ensure the consistency of the Union’s response to foster the integration of third-country nationals, actions financed under the Fund should be specific and complementary to actions financed under the European Social Fund Plus (ESF+) and the European Regional Development Fund (ERDF). Measures financed under this Fund should support measures tailor-made to the needs of third-country nationals that are generally implemented in the early stage of integration, and horizontal actions supporting Member States’ capacities in the field of integration, whereas interventions for third-country nationals with a longer-term impact should be financed under the ERDF and ESF+. (14)In this context, the authorities of the Member States responsible for the implementation of the Fund should be required to cooperate and establish coordination mechanisms with the authorities identified by Member States for the purpose of the management of the interventions of the ESF+ and of the ERDF and wherever necessary with their managing authorities and with the managing authorities of other Union funds contributing to the integration of third-country nationals. (15)The implementation of the Fund in this area should be consistent with the Union’s common basic principles on integration, as specified in the common programme for integration.

(16)It is appropriate to allow those Member States that so wish to provide in their programmes that integration actions may include immediate relatives of third-country nationals, to the extent that this is necessary for the effective implementation of such actions. The term ‘immediate relative’ should be understood as meaning spouses, partners and any person having direct family links in descending or ascending line with the third-country national targeted by the integration action, and who would otherwise not be covered by the scope of the Fund. (17)Considering the crucial role played by local and regional authorities and civil society organisations in the field of integration and to facilitate the access of these entities to funding at Union level, the Fund should facilitate the implementation of actions in the field of integration by local and regional authorities or civil society organisations, including through the use of the thematic facility and through a higher co-financing rate for these actions. (18)Considering the long-term economic and demographic challenges faced by the Union, it is crucial to establish well-functioning legal migration channels to the Union to maintain the Union as an attractive destination for migrants and ensure the sustainability of welfare systems and growth of the Union economy. (19)The Fund should support Member States in setting up strategies organising legal migration, enhancing their capacity to develop, implement, monitor and evaluate in general all immigration and integration strategies, policies and measures for legally staying third-country nationals, including Union legal instruments. The Fund should also support the exchange of information, best practices and cooperation between different departments of administration and levels of governance, and between Member States. (20)An efficient return policy is an integral part of the comprehensive migration approach the Union and its Member States pursue. The Fund should support and encourage efforts by the Member States with a view to the effective implementation and further development of common standards on return, in particular as set out in Directive 2008/115/EC of the European Parliament and of the Council, and of an integrated and coordinated approach to return management. For sustainable return policies, the Fund should equally support related measures in third countries, such as the reintegration of returnees. (21)Member States should give preference to voluntary return. In order to promote voluntary return, Member States should envisage incentives such as preferential treatment in the form of enhanced return assistance should be envisaged for the voluntary return of persons. This kind of voluntary return is in the interests of both returnees and the authorities in terms of its cost-effectiveness. (22)Voluntary and enforced returns are nevertheless interlinked, with mutually reinforcing effect, and Member States should therefore be encouraged to reinforce the complementarities between these two forms of return. The possibility of removals is an important element contributing to the integrity of the asylum and legal migration systems. The Fund should therefore support actions of Member States to facilitate and carry out removals in accordance with the standards laid down in Union law, where applicable, and with full respect for the fundamental rights and dignity of returnees. (23)Specific support measures for returnees in the Member States and in the countries of return can improve conditions of return and enhance their reintegration. (24)Readmission agreements and other arrangements are an integral component of the Union return policy and a central tool for the efficient management of migration flows, as they facilitate the swift return of irregular migrants. Those agreements and arrangements are an important element in the framework of the dialogue and cooperation with third countries of origin and transit of irregular migrants and their implementation in third countries should be supported in the interests of effective return policies at national and Union level. (25)In addition to supporting the return of persons as provided for in this Regulation, the Fund should also support other measures to counter irregular migration, address incentives for illegal migration or the circumventing of existing legal migration rules, thereby safeguarding the integrity of Member States’ immigration systems. (26)The employment of irregular migrants creates a pull factor for illegal migration and undermines the development of a labour mobility policy built on legal migration schemes. The Fund should therefore support Member States, either directly or indirectly, in their implementation of Directive 2009/52/EC of the European Parliament and of the Council which prohibits the employment of illegally staying third-country nationals and provides for sanctions against employers who infringe that prohibition. (27)The Fund should support Member States, either directly or indirectly, in their implementation of Directive 2011/36/EU of the European Parliament and of the Council which sets forth provisions on assistance, support and protection of victims of trafficking in human beings. (28)The Fund should complement and reinforce the activities undertaken in the field of return by the European Border and Coast Guard Agency established by Regulation (EU) 2016/1624 of the European Parliament and of the Council, therefore contributing to effective European Integrated Border Management, as defined in Article 4 of that Regulation. (29)Synergies, consistency and efficiency should be sought with other Union funds and overlap between actions should be avoided. (30)Measures in and in relation to third countries supported through the Fund should complement other actions outside the Union supported through the Union’s external financing instruments. In particular, in implementing such actions, full coherence should be sought with the principles and general objectives of the Union’s external action and foreign policy in respect of the country or region in question and the Union international commitments. In relation to the external dimension, the Fund should target support to enhance cooperation with third countries and to reinforce key aspects of migration management in areas of interest to the Union's migration policy. (31)Funding from the Union budget should concentrate on activities where Union intervention can bring added value compared to action undertaken by Member States alone. Financial support provided under this Regulation should contribute, in particular, to strengthening national and Union capabilities in the areas of asylum and migration. (32)A Member State may be deemed not to be compliant with the relevant Union acquis, including as regards the use of operating support under this Fund, if it has failed to fulfil its obligations under the Treaties in the area of asylum and return, if there is a clear risk of a serious breach by the Member State of the Union’s values when implementing the acquis on asylum and return or if an evaluation report under the Schengen or the European Union Agency for Asylum evaluation and monitoring mechanism has identified deficiencies in the relevant area. (33)The Fund should reflect the need for increased flexibility and simplification while respecting requirements in terms of predictability, and ensuring a fair and transparent distribution of resources to meet the policy and specific objectives laid down in this Regulation. (34)This Regulation should establish the initial amounts to Member States consisting of a fixed amount and an amount calculated on the basis of criteria laid down in Annex I, which reflect the needs and pressure experienced by different Member States in the areas of asylum, integration and return. (35)These initial amounts should form a basis for Member States’ long-term investments. To take account of changes in migration flows and to address needs in the management of asylum and reception systems and integration of legally staying third-country nationals, and counter irregular migration through efficient and sustainable return policy, an additional amount should be allocated to the Member States at mid-term taking into account the absorption rates. This amount should be based on the latest available statistical data as set out in Annex I to reflect the changes in the baseline situation of Member States.

(36)To contribute to the achievement of the policy objective of the Fund, Member States should ensure that their programmes include actions addressing the specific objectives of this Regulation, that the priorities chosen are in line with the implementation measures as set out in Annex II and that the allocation of resources between the objectives ensures that the overall policy objective can be met. (37)As challenges in the area of migration are constantly evolving, there is a need to adapt the allocation of funding to the changes in migration flows. To respond to pressing needs and changes in policy and Union priorities, and to steer funding towards actions with a high level of Union added value, part of the funding will be periodically allocated to specific actions, Union actions, emergency assistance, resettlement and to provide additional support for Member States contributing to solidarity and responsibility efforts via a thematic facility. (38)Member States should be encouraged to use part of their programme allocation to fund the actions listed in Annex IV by benefiting from a higher Union contribution. (39)Part of the available resources under the Fund could also be allocated to Member States’ programmes for the implementation of specific actions in addition to the initial allocation. These specific actions should be identified at Union level and should concern actions which require cooperative effort or actions necessary to address developments in the Union which require additional funding to be made available to one or more Member States. (40)The Fund should contribute to supporting operating costs related to asylum and return and enable Member States to maintain capabilities which are crucial for that service for the Union as a whole. Such support consists of full reimbursement of specific costs related to the objectives under the Fund and should form an integral part of the Member States’ programmes. (41)To complement the implementation of the policy objective of this Fund at national level through Member States’ programmes, the Fund should also provide support for actions at Union level. Such actions should serve overall strategic purposes within the scope of intervention of the Fund relating to policy analysis and innovation, transnational mutual learning and partnerships and the testing of new initiatives and actions across the Union. (42)In order to strengthen the Union’s capacity to immediately address unforeseen or disproportionate heavy migratory pressure in one or more Member States characterised by a large or disproportionate inflow of third-country nationals, which places significant and urgent demands on their reception and detention facilities, asylum and migration management systems and procedures, heavy migratory pressures in third countries due to political developments or conflicts, it should be possible to provide emergency assistance in accordance with the framework set out in this Regulation. (43)This Regulation should ensure the continuation of the European Migration Network set up by Council Decision 2008/381/EC and should provide financial assistance in accordance with its objectives and tasks. (44)The policy objective of this Fund will be also addressed through financial instruments and budgetary guarantee under the policy windows of the InvestEU. Financial support should be used to address market failures or sub-optimal investment situations, in a proportionate manner and actions should not duplicate or crowd out private financing or distort competition in the Internal market. Actions should have a clear European added value. (45)This Regulation lays down a financial envelope for the entire Asylum and Migration Fund which is to constitute the prime reference amount, within the meaning of [reference to be updated as appropriate according to the new inter-institutional agreement: point 17 of the Interinstitutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management], for the European Parliament and the Council during the annual budgetary procedure. (46)Regulation (EU) No …/… [Financial Regulation] applies to this Fund. It lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect implementation, financial assistance, financial instruments and budgetary guarantees. (47)For the purpose of implementation of actions under shared management, the Fund should form part of a coherent framework consisting of this Regulation, Financial Regulation and Regulation (EU) …/2021 [Common Provisions Regulation]. (48)Regulation (EU) …/2021 [Common Provisions Regulation] establishes the framework for action for ERDF, ESF+, the Cohesion Fund, the European Maritime and Fisheries Fund (EMFF), the Asylum and Migration Fund (AMF), the Internal Security Fund (ISF) and the Border Management and Visa Instrument (BMVI) as a part of the Integrated Border Management Fund (IBMF), and lays down, in particular, the rules concerning programming, monitoring and evaluation, management and control for Union funds implemented under shared management. It is therefore necessary to specify the objectives of AMF, and to lay down specific provisions concerning the type of activities that may be financed by AMF. (49)The types of financing and the methods of implementation under this Regulation should be chosen on the basis of their ability to achieve the specific objectives of the actions and to deliver results, taking into account, in particular, the costs of controls, the administrative burden, and the expected risk of non-compliance. This should include consideration of the use of lump sums, flat rates and unit costs, as well as financing not linked to costs as referred to in Article 125(1) of the Financial Regulation. (50)In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council, Council Regulation (Euratom, EC) No 2988/95, Council Regulation (Euratom, EC) No 2185/96 and Council Regulation (EU) 2017/1939, the financial interests of the Union are to be protected through proportionate measures, including the prevention, detection, correction and investigation of irregularities and fraud, the recovery of funds lost, wrongly paid or incorrectly used and, where appropriate, the imposition of administrative sanctions. In particular, in accordance with Regulation (EU, Euratom) No 883/2013 and Regulation (Euratom, EC) No 2185/96, the European Anti-Fraud Office (OLAF) may carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other criminal offences affecting the financial interests of the Union. In accordance with Regulation (EU) 2017/1939, the European Public Prosecutor’s Office may investigate and prosecute fraud and other illegal activities affecting the financial interests of the Union as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council. In accordance with the Financial Regulation, any person or entity receiving Union funds is to cooperate fully in the protection of the Union’s financial interests to grant the necessary rights and access to the Commission, OLAF and the European Court of Auditors and to ensure that any third parties involved in the implementation of Union funds grant equivalent rights. (51)Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 of the Treaty on the Functioning of the European Union apply to this Regulation. These rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes, indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 of the TFEU also concern the protection of the Union's budget in case of generalised deficiencies as regards the rule of law in the Member States, as the respect for the rule of law is an essential precondition for sound financial management and effective EU funding. (52)Pursuant to Article 94 of Council Decision 2013/755/EU, persons and entities established in overseas countries and territories (OCTs) are eligible for funding subject to the rules and objectives of the Fund and possible arrangements applicable to the Member State to which the relevant overseas country or territory is linked. (53)Pursuant to Article 349 of the TFEU and in line with the Commission Communication 'A stronger and renewed strategic partnership with the EU's outermost regions', endorsed by the Council in its conclusion of 12 April 2018, relevant Member States should ensure that their national strategies and programmes address the specific challenges the outermost regions face in managing migration. The Fund supports these Member States with adequate resources to help these regions manage migration sustainably and handle possible situations of pressure. (54)Pursuant to paragraph 22 and 23 of the Inter-institutional agreement for Better Law-Making of 13 April 2016, there is a need to evaluate this Fund on the basis of information collected through specific monitoring requirements, while avoiding overregulation and administrative burden, in particular on Member States. These requirements, where appropriate, can include measurable indicators, as a basis for evaluating the effects of the Fund on the ground. In order to measure the achievements of the Fund, common indicators and related targets should be established in relation to each specific objective of the Fund. Through these common indicators and financial reporting, the Commission and the Member States should monitor the implementation of the Fund, in accordance with the relevant provisions of Regulation (EU) …/2021 of the European Parliament and of the Council [Common Provisions Regulation] and this Regulation. (55)Reflecting the importance of tackling climate change in line with the Union's commitments to implement the Paris Agreement and the United Nations Sustainable Development Goals, this Fund will contribute to mainstream climate actions and to the achievement of an overall target of 25 % of the EU budget expenditures supporting climate objectives. Relevant actions will be identified during the Fund's preparation and implementation, and reassessed in the context of the relevant evaluations and review processes.

(56)In order to supplement and amend certain non-essential elements of this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the list of actions eligible for higher co-financing as listed in Annex IV, operating support and in order to develop further the common monitoring and evaluation framework. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that these consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law Making of 13 April 2016. (57)In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. These powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. The examination procedure should be used for implementing acts that lay down common obligations on Member States, in particular on the provision of information to the Commission, and the advisory procedure should be used for the adoption of implementing acts relating to the arrangements for providing information to the Commission in the framework of programming and reporting, given their purely technical nature. (58)Since the objective of this Regulation, namely to contribute to an effective management of migration flows in the Union, in accordance with the common policy on asylum and international protection and the common immigration policy, cannot be sufficiently achieved by the Member States acting alone and can be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (59)In accordance with Article 3 of the Protocol on the position of [the United Kingdom] and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland [is not taking part in the adoption of this Regulation and is not bound by it or subject to its application / has notified its wish to take part in the adoption and application of this Regulation]. (60)In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. (61)It is appropriate to align the period of application of this Regulation with that of Council Regulation (EU, Euratom) …/2021 [Multiannual Financial Framework Regulation], HAVE ADOPTED THIS REGULATION: CHAPTER I



GENERAL PROVISIONS Article 1 Subject matter 1.This Regulation establishes the Asylum and Migration Fund (‘the Fund’). 2.This Regulation lays down the objectives of the Fund, the budget for the period from 2021 to 2027, the forms of Union funding and the rules for providing such funding. Article 2 Definitions For the purpose of this Regulation, the following definitions shall apply: (a)'applicant for international protection' means an applicant as defined in point [x] of Article 2 of Regulation (EU) ../.. [Asylum Procedure Regulation]; (b)'beneficiary of international protection' within the meaning of point (2) of Article [2] of Regulation (EU) ../.. [Qualification Regulation]; (c)'blending operation' means actions supported by the Union budget, including within blending facilities as defined in point (6) of Article 2 of the Financial Regulation, combining non-repayable forms of support or financial instruments from the Union budget with repayable forms of support from development or other public finance institutions, as well as from commercial finance institutions and investors; (d)'family member' means any third-country national as defined under the Union law relevant to the policy area of action supported under the Fund;

(e)'humanitarian admission' within the meaning of Article [2] of Regulation (EU) ../.. [Union Resettlement [and Humanitarian Admission] Framework]; (f)'removal' means 'removal' as defined in point (5) of Article 3 of Directive 2008/115/EC; (g)'resettlement' means ‘resettlement’ as defined in Article [2] of Regulation (EU) ../.. [Union Resettlement [and Humanitarian Admission] Framework]; (h)'return' means 'return' as defined in point (3) of Article 3 of Directive 2008/115/EC; (i)'third-country national' means any person who is not a citizen of the Union as defined in Article 20(1) of the TFEU. Reference to third-country nationals shall be understood to include stateless persons and persons with undetermined nationality; (j)'vulnerable person' means any person as defined under the Union law relevant to the policy area of action supported under the Fund. Article 3 Objectives of the Fund 1.The policy objective of the Fund shall be to contribute to an efficient management of migration flows in line with the relevant Union acquis and in compliance with the Union’s commitments on fundamental rights. 2.Within the policy objective set out in paragraph 1, the Fund shall contribute to the following specific objectives: (a)to strengthen and develop all aspects of the Common European Asylum System, including its external dimension; (b)to support legal migration to the Member States including to contribute to the integration of third-country nationals; (c)to contribute to countering irregular migration and ensuring effectiveness of return and readmission in third countries. 3.Within the specific objectives set out in paragraph 2, the Fund shall be implemented through the implementation measures listed in Annex II. Article 4 Scope of support 1.Within the objectives referred to in Article 3, and in line with the implementation measures listed in Annex II, the Fund shall in particular support the actions listed in Annex III. 2.To achieve the objectives of this Regulation, the Fund may support the actions in line with the Union priorities as referred to in Annex III in relation to and in third countries, where appropriate, in accordance with Article 5 and 6. 3.The objectives of this Regulation shall support actions focusing on one or more target groups within the scope of Articles 78 and 79 of the Treaty on the Functioning of the European Union.

Article 5 Third countries associated to the Fund The Fund shall be open to third countries in accordance with the conditions laid down in a specific agreement covering the participation of the third country to the Asylum and Migration Fund, provided that the agreement: –ensures a fair balance as regards the contributions and benefits of the third country participating in the Fund; –lays down the conditions of participation in the Fund, including the calculation of financial contributions to the Fund and their administrative costs. These contributions shall constitute assigned revenues in accordance with Article [21(5)] of the Financial Regulation; –does not confer to the third country a decisional power on the Fund; –guarantees the rights of the Union to ensure sound financial management and to protect its financial interests. Article 6 Eligible entities 1.The following entities may be eligible: (a)legal entities established in any of the following countries: (1)a Member State or an overseas country or territory linked to it; (2)third country associated to the Fund; (3)third country listed in the work programme under the conditions specified therein; (b)any legal entity created under Union law or any international organisation. 2.Natural persons are not eligible. 3.Legal entities established in a third country are exceptionally eligible to participate where this is necessary for the achievement of the objectives of a given action. 4.Legal entities participating in consortia of at least two independent entities, established in different Member States or overseas countries or territories linked to those states or in third countries are eligible. CHAPTER II



FINANCIAL AND IMPLEMENTATION FRAMEWORK

section 1

common provisions Article 7 General principles 1.Support provided under this Regulation shall complement national, regional and local intervention, and shall focus on adding value to the objectives of this Regulation. 2.The Commission and the Member States shall ensure that the support provided under this Regulation and by the Member States is consistent with the relevant activities, policies and priorities of the Union and is complementary to other Union instruments. 3.The Fund shall be implemented in shared, direct or indirect management in accordance with Articles [62(1) (a), (b) and (c)] of the Financial Regulation. Article 8 Budget 1.The financial envelope for the implementation of the Fund for the 2021-2027 period shall be EUR 10 415 000 000 in current prices. 2.The financial resources shall be used as follows: (a)EUR 6 249 000 000 shall be allocated to the programmes implemented under shared management; (b)EUR 4 166 000 000 shall be allocated to the thematic facility. 3.Up to 0.42 % of the financial envelope shall be allocated for technical assistance at the initiative of the Commission as referred to in Article 29 of the Regulation EU ../.. [Common Provisions Regulation]. Article 9 General provisions on the implementation of the thematic facility 1.The financial envelope referred to in Article 8(2)(b) shall be allocated flexibly through the thematic facility using shared, direct and indirect management as set out in work programmes. Funding from the thematic facility shall be used for its components: a)specific actions; b)Union actions; c)emergency assistance;

d)resettlement; e)support to Member States contributing to solidarity and responsibility efforts; and f)European Migration Network. Technical assistance at the initiative of the Commission shall also be supported from the financial envelope for the thematic facility. 2.Funding from the thematic facility shall address priorities with a high added value to the Union or be used to respond to urgent needs in line with agreed Union priorities as outlined in Annex II. 3.When funding from the thematic facility is granted in direct or indirect management to Member States, it shall be ensured that selected projects are not affected by a reasoned opinion by the Commission in respect of an infringement under Article 258 of the TFEU that puts at risk the legality and regularity of expenditure or the performance of projects. 4.When funding from the thematic facility is implemented in shared management, the Commission shall, for the purposes of Articles 18 and 19(2) of Regulation EU ../.. [Common Provisions Regulation], assess whether the foreseen actions are not affected by a reasoned opinion by the Commission in respect of an infringement under Article 258 of the TFEU that puts at risk the legality and regularity of expenditure or the performance of the projects. 5.The Commission shall establish the overall amount made available for the thematic facility under the annual appropriations of the Union budget. The Commission shall adopt financing decisions as referred to in Article [110] of the Financial Regulation for the thematic facility identifying objectives and actions to be supported and specifying the amounts for each of its components as referred to in paragraph 1. Financing decisions shall set out, where applicable, the overall amount reserved for blending operations. 6.The thematic facility shall in particular, support actions falling under the implementation measure 2(b) of Annex II that are implemented by the local and regional authorities or civil society organisations. 7.Following the adoption of a financing decision as referred to in paragraph 5, the Commission may amend the programmes implemented under shared management accordingly. 8.These financing decisions may be annual or multiannual and may cover one or more components of the thematic facility. SECTION 2



SUPPORT AND IMPLEMENTATION UNDER SHARED MANAGEMENT Article 10 Scope 1.This section applies to the part of the financial envelope referred to in Article 8(2)(a), and additional resources to be implemented under shared management according to the Commission decision for the thematic facility referred to in Article 9. 2.Support under this section shall be implemented under shared management in accordance with Article [63] of the Financial Regulation and the Regulation EU ../.. [Common Provisions Regulation]. Article 11 Budgetary resources 1.Resources referred to in Article 8(2)(a) shall be allocated to the national programmes (the 'programmes') implemented by Member States under shared management indicatively as follows:

(a)EUR 5 207 500 000 to the Member States in accordance with Annex I; (b)EUR 1 041 500 000 to the Member States for the adjustment of the allocations for the programmes as referred to in Article 14(1). 2.Where the amount referred to in paragraph 1(b) is not allocated, the remaining amount may be added to the amount referred to in Article 8(2)(b). Article 12 Co-financing rates 1.The contribution from the Union budget shall not exceed 75 % of the total eligible expenditure of a project. 2.The contribution from the Union budget may be increased to 90 % of the total eligible expenditure for projects implemented under specific actions. 3.The contribution from the Union budget may be increased to 90 % of the total eligible expenditure for actions listed in Annex IV. 4.The contribution from the Union budget may be increased to 100 % of the total eligible expenditure for operating support. 5.The contribution from the Union budget may be increased to 100 % of the total eligible expenditure for emergency assistance. 6.The Commission decision approving a programme shall set the co-financing rate and the maximum amount of support from this Fund for the types of actions referred to in paragraphs 1 to 5. 7.For each specific objective, the Commission decision shall set out whether the co-financing rate for the specific objective is to be applied to: (a)the total contribution, including the public and private contributions; or (b)the public contribution only. Article 13 Programmes 1.Each Member State shall ensure that the priorities addressed in its programme are consistent with, and respond to, the Union priorities and challenges in the area of migration management and are fully in line with the relevant Union acquis and agreed Union priorities. In defining the priorities of their programmes Member States shall ensure that the implementation measures set out in Annex II are adequately addressed. 2.The Commission shall ensure that the European Union Agency for Asylum and the European Border and Coast Guard Agency are associated to the process of developing the programmes at an early stage, as regards the areas of their competence. The Commission shall consult the European Border and Coast Guard Agency and the European Union Agency for Asylum on the draft programmes to ensure consistency and complementarity of the actions of the agencies and those of the Member States. 3.The Commission may associate the European Union Agency for Asylum and European Border and Coast Guard Agency in monitoring and evaluation tasks as referred to in Section 5 where appropriate in particular in view of ensuring that the actions implemented with the support of the Fund are compliant with the relevant Union acquis and agreed Union priorities. 4.Further to a monitoring exercise as carried out in accordance with Regulation (EU) [ ../..] [EUAA Regulation] or the adoption of recommendations in accordance with Regulation (EU) No 1053/2013 which are within the scope of this Regulation, the Member State concerned shall examine, together with the Commission, and where relevant with the European Union Agency for Asylum and the European Border and Coast Guard Agency, how to address the findings, including any shortcomings or issues of capacity and preparedness, and shall implement the recommendations through its programme.

5.Where necessary, the programme in question shall be amended to take into account the recommendations referred to in paragraph 4. Depending on the impact of the adjustment, the revised programme may be approved by the Commission. 6.In cooperation and consultation with the Commission and the relevant agencies in accordance with their competence, as applicable, resources under the programme may be reallocated with the aim of addressing recommendations, as referred to in paragraph 4 that have financial implications. 7.Member States shall in particular pursue the actions eligible for higher co-financing as listed in Annex IV. In the event of unforeseen or new circumstances or in order to ensure the effective implementation of funding, the Commission shall be empowered to adopt delegated acts in accordance with Article 32 to amend the list of actions eligible for higher co-financing as listed in Annex IV. 8.Whenever a Member State decides to implement projects with or in a third country with the support of the Fund, the Member State concerned shall consult the Commission prior to the start of the project. 9.Programming as referred to in Article 17(5) of Regulation EU) …/2021 [Common Provisions Regulation], shall be based on the types of intervention set out in Table 1 of Annex VI. Article 14 Mid-term review 1.In 2024, the Commission shall allocate to the programmes of Member States concerned the additional amount referred to in Article 11(1)(b) in accordance with the criteria referred to in paragraphs 1(b) to 5 of Annex I. Funding shall be effective for the period as of the calendar year 2025. 2.If at least 10 % of the initial allocation of a programme referred to in Article 11(1)(a) has not been covered by payment applications submitted in accordance with Article [85] of Regulation (EU) …/2021 [Common Provisions Regulation], the Member State concerned shall not be eligible to receive the additional allocation for the programme referred to in paragraph 1. 3.The allocation of the funds from the thematic facility as of 2025 shall, where appropriate, take into account the progress made in achieving milestones of the performance framework as referred to in Article [12] of Regulation (EU) …/2021 [Common Provisions Regulation] and identified implementation shortcomings. Article 15 Specific actions 1.Specific actions are transnational or national projects in line with the objectives of this Regulation for which one, several or all Member States may receive an additional allocation to their programmes. 2.Member States may in addition to their allocation calculated in accordance with Article 11(1), receive an additional amount, provided that it is earmarked as such in the programme and is used to contribute to the implementation of the objectives of this Regulation. 3.The funding shall not be used for other actions in the programme except in duly justified circumstances and as approved by the Commission through the amendment of the programme. Article 16 Resources for the Union Resettlement [and Humanitarian Admission] Framework 1.Member States shall receive, in addition to their allocation calculated in accordance with Article 11(1)(a), a contribution of EUR 10 000 for each resettled person in accordance with the targeted Union resettlement scheme. That contribution shall take the form of financing not linked to costs in accordance with Article [125] of the Financial Regulation. 2.The amount referred to in paragraph 1 shall be allocated to the Member States through the amendment of their programme provided that the person in respect of whom the contribution is allocated was effectively resettled in accordance with the Union Resettlement [and Humanitarian Admission] Framework. 3.The funding shall not be used for other actions in the programme except in duly justified circumstances and as approved by the Commission through the amendment of the programme.

4.Member States shall keep the information necessary to allow the proper identification of the resettled persons and of the date of their resettlement. Article 17 Resources to support the implementation of Regulation ../.. [Dublin Regulation] 1.A Member State shall receive, in addition to their allocation calculated in accordance with Article 11(1)(a), a contribution of EUR [10 000] for each applicant for international protection for whom that Member State becomes responsible as from when that Member State is in challenging circumstances as defined in Regulation (EU) ../.. [Dublin Regulation]. 2.A Member State shall receive, in addition to their allocation calculated in accordance with Article 11(1)(a), a contribution of EUR [10 000] for each applicant for international protection allocated to that Member State who is above the benefitting Member State's fair share. 3.A Member State referred to in paragraphs 1 and 2 shall receive an additional contribution of EUR [10 000] per applicant who has been granted international protection for the implementation of integration measures. 4.A Member State referred to in paragraphs 1 and 2 shall receive an additional contribution of EUR [10 000] per person for whom the Member State can establish on the basis of the updating of the data set referred to in Article 11(d) of Regulation (EU) ../.. [Eurodac Regulation] that the person has left the territory of the Member State, on either a compulsory or voluntarily basis in compliance with a return decision or a removal order. 5.A Member State shall receive, in addition to its allocation calculated in accordance with Article 11(1)(a), a contribution of EUR [500] for each applicant of international protection transferred from one Member State to another, for each applicant transferred pursuant to point (c) of the first paragraph of Article 34(i) of Regulation (EU) ../… [Dublin Regulation] and, where applicable, for each applicant transferred pursuant to point (g) of Article 34 (j) of Regulation (EU) ../.. [Dublin Regulation]. 6.The amounts referred to in this Article shall take the form of financing not linked to costs in accordance with Article [125] of the Financial Regulation. 7.The additional amounts referred to in paragraphs 1 to 5 shall be allocated to the Member States in their programmes provided that the person in respect of whom the contribution is allocated was, as applicable, effectively transferred to a Member State, effectively returned or registered as an applicant in the Member State responsible in accordance with Regulation (EU) ../.. [Dublin Regulation]. 8.This funding shall not be used for other actions in the programme except in duly justified circumstances and as approved by the Commission through the amendment of the programme. Article 18 Operating support 1.Operating support is a part of a Member State’s allocation which may be used as support to the public authorities responsible for accomplishing the tasks and services which constitute a public service for the Union; 2.A Member State may use up to 10 % of the amount allocated under the Fund to its programme to finance operating support under objectives in Article 3(2)(a) and (c). 3.The Member States using operating support shall comply with the Union acquis on asylum and return. 4.Member States shall justify in the programme and in the annual performance report as refe