EUROPEAN COMMISSION Brussels, 23.9.2020 SWD(2020) 207 final COMMISSION STAFF WORKING DOCUMENT Accompanying the document PROPOSAL FOR A REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on asylum and migration management and amending Council Directive (EC)2003/109 and the proposed Regulation (EU)XXX/XXX [Asylum and Migration Fund] {COM(2020) 610 final}



Table of Contents Executive summary List of abbreviations List of figures 1. INTRODUCTION 1.1 Political context 1.2 Persistent pressure on Member States’ external borders and asylum systems 1.3 Deficiencies in the current asylum and return systems 1.4 Consultations with European Parliament, Member States and civil society 2. THE CURRENT MIGRATION SITUATION 2.1 Changing composition of migratory flows and differences according to migratory route 2.2 Migrants saved in search and rescue operations 2.3 Return 2.4 Hotspots: Increased support to Member States 2.5 Key developments on resettlement 3. THE CHALLENGES FACED BY THE EU 3.1 Lack of an integrated approach at European level 3.1.1 Challenges of the return and asylum nexus

3.1.2 Limited use of assisted voluntary return programmes 3.1.3 Lack of streamlined procedures upon arrival 3.1.4 Delays in accessing the appropriate asylum procedure and slow processing of applications 3.1.5 Difficulty in using the border procedure 3.2 Absence of a broad and flexible mechanism for solidarity 3.3 Inefficiencies in the Dublin system Evaluation of the implementation of the Dublin III Regulation 3.3.1 Lack of a sustainable sharing of responsibility under the current system 3.3.2 Current rules on the shift of responsibility contribute to unauthorised movements 3.3.3 Inefficient data processing 3.3.4 Procedural inefficiencies of the Dublin system create an administrative burden 3.4 Lack of targeted mechanisms to address crisis situations 3.5 Lack of a fair and effective system for migrants and asylum seekers to access their rights 4. THE 2016 PROPOSALS TO REFORM THE COMMON EUROPEAN ASYLUM SYSTEM 4.1 Towards a reform of the Common European Asylum System: the proposals recommended for quick adoption 4.2 A stronger and more effective European return policy 4.3 Outstanding challenges 5. ADDRESSING THE CHALLENGES 5.1 A more efficient, seamless and harmonised migration management system 5.1.1 A comprehensive approach for efficient asylum management

5.1.2 A coordinated, effective and rapid screening phase 5.1.3 A seamless asylum-return procedure and an easier use of accelerated and border procedures 5.2 A fairer and more comprehensive approach to solidarity 5.2.1 A new approach to solidarity 5.2.2 Addressing specific situations under the new approach to solidarity 5.2.3 Contingency planning 5.3 Simplified and more efficient rules for robust migration management 5.3.1 A wider and fairer definition of responsibility criteria 5.3.2. Reducing cessation and shift of responsibility 5.3.3 More efficient data collection and processing 5.3.4 Improved procedural efficiency 5.4 Targeted procedures and mechanisms to address extreme crisis situations and situations of force majeure 5.5 A fairer and more effective system to reinforce migrants and asylum seekers’ rights 5.6 Other initiatives and measures under the New Pact on Migration and Asylum 5.6.1 Resettlement Recommendation 5.6.2 A comprehensive operational tool to improve case management in return, readmission and reintegration procedures 5.6.3 A Sustainable Return and Reintegration Strategy 5.6.4 Engaging with third countries willing to cooperate on readmission 5.6.5 Structured high-level cooperation on return and readmission 6. MONITORING and EVALUATION

6.1 Proposal for a Regulation on Asylum and Migration Management 6.2 The amended Proposal for a Regulation on establishing a common procedure for international protection in the Union (“Asylum procedures regulation”) 6.3 The amended Proposal for a Regulation on Proposal for a Regulation on the establishment of 'Eurodac' 6.4 Proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum 6.5 Proposal for a Regulation introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 Reporting obligations 6.6 The role of the European Union Agency for Asylum ANNEX: Data protection-relevant elements in Eurodac



Executive summary This paper presents the evidence and experience that underpin the legislative initiatives proposed under the New Pact on Migration and Asylum. It is based on publicly available EU data and statistics as well as experience gathered by the Commission services and EU agencies. It points to the key challenges in relation to migration faced by the European Union and provides an overview of the legislative and non-legislative proposals that seek to address the gaps and inefficiencies identified. Overview of the current situation Since the migration crisis of 2015, the number of arrivals and composition of flows have changed significantly, both between and along the different migratory routes. Additionally, there is significant variation of migratory pressure across countries and in terms of the tools applied to address it. The number of irregular arrivals to the EU dropped by 92% between 2015 and 2019, with Afghan (24% of the total), Syrian (17%), unspecified sub-Saharan nationals (10%) and Turkish (6%) as the most prominent nationalities.

In addition, the share of migrants from countries of origin whose nationals have a low chance of being granted international protection has increased. From a peak of 56% in 2016, the EU-wide first instance recognition rate fell to 30% at the end of 2019. Asylum applications have not followed the decreasing trend in irregular arrivals, meaning the ratio of asylum applications to irregular arrivals is higher today than it was in 2015. While there were 1,2 million first-time asylum seekers applying for international protection in the EU and 374,314 registered irregular border crossings on the three main routes in 2016, there were 612,685 first-time asylum seekers applying for international protection and 124,023 registered irregular border crossings in 2019. The discrepancy between consistently high asylum applications and the decreasing number of irregular arrivals can be explained by a number of factors, such as the increased number of first time asylum applications from citizens of visa-free countries, several asylum applications made in parallel within the same or another EU Member State, unauthorised movements and applications not immediately lodged at the external border. With a consistently high number of asylum applications in the past years, the pressure on national asylum systems remains high, especially in certain Member States, which can find it a challenge to rapidly process all asylum applications. At the end of 2019, there were more than 540,000 cases still pending at first-instance, up by 20% from a year earlier, half of which were pending for more than six months. Migrants disembarked following search and rescue (SAR) operations represent a significant share of arrivals, reaching 50% of total arrivals by sea in 2019. These arrivals have a direct impact on the EU’s migration and asylum systems, as well as on the effectiveness of integrated border management, due to the fact that Member States cannot apply the same tools that are applied for irregular crossings by land or by air. For instance, there are no official border checks for SAR arrivals, which not only means that points of entry are more difficult to define, but also that third-country nationals have no points where to officially seek entry. Member States requested the Commission to coordinate relocation to other Member States in 51 SAR cases since the beginning of 2019. The Commission was able to coordinate the relocation process at operational level for 39 of those requests. The number of third-country nationals found to be irregularly present in the EU substantially decreased by 70% from 2015 to 2019. However, the number of third-country nationals who returned decreased by only 3% and the number of actually returned third-country nationals decreased by 18% between 2015 and 2019. This means that, in 2019, only 32% of irregular third-country nationals actually returned, either voluntarily or forcibly. Against this background, the Commission has identified a number of challenges that prevent the EU’s current system from being fit to address the realities of migration, able to ensure international protection for those in need and effective and humane return of irregular migrants, fair in terms of solidarity and sharing of responsibility between Member States as well as ready for use in times of crisis and situations of force majeure. Challenges faced by the EU (1) First, there is a lack of an integrated approach at the EU-level that is effectively translated into national asylum and migration policies. Notwithstanding the assistance by EU agencies, notably the European Asylum Support Office (EASO) and the European Border and Coast Guard Agency (Frontex), as well as support from relevant EU funds, reliable and effective structures for coordinating the policies falling under the responsibility of different national authorities in the area of asylum and migration management are still wanting.

Despite increased cooperation in the implementation of the Common European Asylum System (CEAS), Member States’ asylum and return systems operate mostly separately. The recent increase in the share of asylum applications by nationals of countries with a low recognition rate increases the importance of linking up these procedures. There are a number of loopholes as regards return and asylum procedures that facilitate absconding and unauthorised movement of migrants across the EU, hamper returns and put a heavy burden on national administrative and judicial systems. These loopholes include, notably, return and negative asylum decisions being issued separately, inefficient rules in case of subsequent asylum applications or of applications submitted during the last stages of return. Another loophole is that only 10-15% of return decisions are followed up with a readmission request or a request for identification and re-documentation to the third country concerned. The existing readmission instruments and tools for cooperation with third countries are not yet used to their full potential. At the same time gaps remain in the predictability and reliability of readmission processes that require a more fruitful engagement by third countries. There is also potential for improving the effectiveness of programmes to facilitate the voluntary return and reintegration to irregular migrants. Some Member States offer assistance only to certain categories of irregular migrants, while others do not disseminate sufficient information about the availability of such programmes or lack appropriate funding. Procedures are often long and inefficient, and can be better tailored to match the needs of irregular migrants. Improving the way assistance is offered to migrants may also lead to increased voluntary return, which is more acceptable for third countries and sustainable for the migrants themselves. These identified weaknesses in national programmes present opportunities for the improvement of the effectiveness and sustainability of return. Procedures upon arrival, which are the basis for determining the next steps, are not sufficiently streamlined across the EU. Member States currently have different approaches to arrivals at the EU’s borders and there are no harmonised procedures for carrying out identity checks, heath checks, security checks or determining vulnerability as regards persons requesting international protection nor for persons entering irregularly. The use of accelerated and border procedures by Member States is still limited due to current rules on appeals, difficulties relating to returns, and the lack of the necessary infrastructure. Particularly, using these procedures for the examination of applications lodged by nationals of third countries with a low share of positive decisions on applications for international protection, including from visa-free countries, is currently not sufficiently streamlined. (2) Second, fragmented and voluntary ad hoc solidarity between Member States has put an disproportionate strain on Member States of first entry, threatened the political cohesion among Member States and put migrants in vulnerable situations at risk. Until today, the relocation of asylum seekers based on the 2015 Council Decisions has been the only time Member States were obliged to offer their solidarity in terms of relocation. However, mainly because of the changing migratory flows during the implementation of the Decisions and limitations in relation to the scope of asylum seekers eligible for relocation, it was not possible for Member States’ authorities to identify the number of eligible persons foreseen in the Decisions. Additionally, the Decisions did not include legal provisions for the Member States to provide other forms of solidarity support to those Member States still under pressure. Since then, Member States have engaged in voluntary exercises of relocation of migrants disembarked following search and rescue (SAR) operations, e.g. the Joint Declaration of Intent on a controlled emergency procedure discussed among France, Germany, Malta and Italy in September 2019, and the relocation exercise of vulnerable and unaccompanied minors from the Greek hotspots, agreed with several Member States in March 2020. However, relocation efforts have revealed several difficulties with such ad hoc and temporary formats of cooperation, with sometimes prolonged periods of time to find agreements to allow for disembarkation, and with only relatively few Member States contributing to relocation. This points to the need for a more comprehensive, effective and sustainable relocation system. Member States have also shown solidarity to those Member States under major pressure by means of other forms of voluntary contributions, including targeted support to Greece and cooperation with third countries to address the root causes of migration. Member States have also provided support by deploying their experts through the EU Agencies where needed most. While these measures point to a willingness of Member States to look at solidarity in a broader context and step up to assist those under major pressure, it also highlights the need for a structured and permanent framework for solidarity. (3) A third challenge concerns the lack of effective rules for sharing responsibility for asylum applicants across the EU. This is linked to several deficiencies and weaknesses of the current Dublin III Regulation, and its implementation. The current rules on the shift of responsibility provide an incentive for unauthorised movements and allow applicants for international protection to influence this shift. The shift of responsibility occurs when the time limits to send a transfer request expire, including when an applicant has evaded the transfer for over 18 months. Similarly, if an asylum seeker crosses a Member State’s external border irregularly, and applies for international protection in another Member State more than 12 months after entry, the Member State of first entry can no longer be held responsible, resulting in the Member State of first application becoming responsible.

These procedural inefficiencies of the current Dublin system also create a significant administrative burden on Member State’s asylum and reception systems. These include the burden to send take back and take charge requests, which are often ineffective, and the difficulties in obtaining and agreeing on evidence proving the Member State’s responsibility. Inefficient data collection and processing make it impossible to establish a clear picture of onward movements and of the Member States’ burden. The Dublin Regulation only allows for statistics that count transfer requests received by a specific Member State, without specifying for which reason the request was made, in relation to unauthorised movements (e.g. following irregular entry, previous residence permits and visas), or for other reasons (e.g. following requests for family reasons, dependent persons or humanitarian grounds). Additionally, the current architecture of the Eurodac Central System does not allow for counting the applicants but only for applications, which makes it impossible to identify any multiple counting of international protection applications in the system. (4) Fourth, there is no dedicated mechanism to address crisis situations and situations of force majeure. Every well-managed system needs to have a framework for dealing with extreme situations or situations of force majeure, where the regular response under an otherwise well-functioning legislative model is insufficient. These are situations when, in one or more Member States, normal procedures and safeguards become effectively inoperable or otherwise seriously deficient with respect to the situation at hand, thus threatening the functioning of the Union migration and asylum management system as a whole. Furthermore, these situations can risk having serious consequences for the functioning of, or result in the impossibility of applying, the Common European Asylum System and the migration management system of the Union.



Despite the improvements put in place after the 2015 crisis, the EU is still unprepared to address crisis situations, such as an exceptional situation of mass influx of third-country nationals or stateless persons arriving irregularly in a Member State or disembarked on its territory following search and rescue operations. In such situations, the effectiveness of the response can be greatly improved by effective foresight and preparation, moving from a reactive mode to one based on preparedness and anticipation. A dedicated mechanism is necessary as part of the effort to make the current migration management system more resilient and responsive in case of sudden events and one that enables Member States to take immediate measures to deal with extreme situations as they arise. Similarly, in light of the lessons learned from the COVID-19 pandemic, flexibility is also needed with respect to registration deadlines and carrying out public-facing services in situations of force majeure that do not relate to the migratory situation as such but nevertheless present serious challenges to migration and asylum management systems. (5) Importantly, the lack of a fair and effective migration system hinders the access of migrants to the asylum procedure, equal treatment in all Member States as regards the procedural safeguards for asylum-seekers' rights and legal certainty of asylum decisions. People seeking international protection who enter the EU need fair and quick access to asylum procedures, such as the right to seek asylum and the principle of non-refoulement. Also, the fundamental rights of those who are not in need of international protection need to be fully respected, in particular the right to seek asylum and the principle of non-refoulement. Based on experience, special attention needs to be given to migrants rescued in SAR operations. A ship-by-ship approach has proven to be unsustainable and puts vulnerable migrants at risk. In recent years, there have been allegations of use of force and violence directed at those crossing the EU external borders both by land and by sea. While Member States have the obligation to protect the EU’s external borders, border control must respect fundamental rights, such as the principle of non-refoulement. Any use of force must remain proportionate and used as a last resort. Guidelines to better translate and mainstream fundamental rights to all activities carried out by European Border and Coast Guard at EU and national level could be provided in the framework of the Multiannual Strategic Policy Cycle for the European integrated border management of which fundamental rights are overarching components. Experience also point to the need to reinforce the right to family reunification and strengthen the rights of unaccompanied minors. Addressing the challenges

·A more efficient, integrated and seamless migration management system In order to address the lack of a unified approach to implementing European asylum and migration policies, the proposal for a Regulation on Asylum and Migration Management sets out a common framework based on integrated policy making. It provides a comprehensive approach to migration management, including a new and wider approach to solidarity, in particular to address in a meaningful way situations where Member States are faced with migratory pressure and to take into account the specificities of search and rescue operations. The proposal sets out the different elements that comprise the comprehensive approach that underpins migration management and puts forward a common framework for Member States to implement such policies in a manner that ensures mutual trust. The key principles of integrated policy-making and solidarity and fair sharing of responsibility underpin this approach and ensure that the challenges of migration management, ranging from ensuring a balance of efforts in dealing with asylum applications, ensuring a quick identification of those in need of international protection or effective returns for those who are not in need of protection and managing irregular arrivals, should not have to be dealt with by individual Member States alone, but by the EU as a whole The proposed system provides for a governance and monitoring structure based on Member States’ reports on the implementation of the common framework, which will feed into a new European Strategy on Asylum and Migration Management. This will allow for comprehensive view of the situation at EU level and an early identification of gaps that require solidarity contributions. In addition, the proposed Regulation will ensure that Member States integrate the results of their national monitoring mechanism established by the Screening Regulation in their national strategies foreseen by this proposal. Furthermore, the new Pact introduces a coordinated, effective and rapid screening of persons apprehended in connection with unauthorised crossing of external borders, disembarked following SAR operations or who request international protection at border crossing points without fulfilling entry conditions. It proposes that all such third-country nationals are immediately screened, with identity and health checks and registration in Eurodac. Member States are not expected to screen irregular migrants who are not subject to the obligation to collect biometric data pursuant to the Eurodac rules. On the other hand, Member States are also expected to screen persons apprehended within the territory, subject to certain conditions. This proposal aims to ensure rapid legal certainty for those migrants concerned on their status, including their rights and responsibilities and to help national authorities to effectively channel individuals into the asylum or return procedure. Those apprehended at or near external borders without the right to enter the EU could, upon screening, be to immediate return in line with the procedures which respect Return Directive. The screening shall be carried out in full respect of fundamental rights as enshrined in the Charter of Fundamental Rights of the EU. A monitoring mechanism is foreseen in the screening regulation to ensure that rules are being applied by the Member States in line with legal obligations in relation to the screening. The monitoring mechanism should concerns also the application of the national rules on detention during the screening as well as the compliance with the principle of non-refoulement. The information collected during the screening procedure would be used later on in the asylum or return process as in the outcome of the screening persons are channelled to a relevant procedure (the border procedure or the regular procedure) to be applied. In addition, the screening phase would also contribute to a better implementation of the Eurodac regulation. The collection, processing and storage of personal data, as well as data sharing among competent authorities, would be carried out in full respect of the migrants’ right to data protection and confidentiality, as well as taking into account any vulnerabilities and other relevant personal circumstances. Additionally, the Commission also proposes a seamless asylum-return procedure and to bring together the rules on the asylum and return border procedure in a single legislative instrument. It allows for an accelerated assessment of asylum requests that are abusive or inadmissible, or that have been lodged by applicants from low recognition rate countries, in order to swiftly return those without a right to stay in the EU. A stronger border procedure makes return procedures more efficient as it ensure stronger links between the procedures and prevents the irregular entry into the territory of those not in need for international protection. An individual assessment of each asylum application, as well as full respect of the fundamental rights, such as principle of non-refoulement, must always be ensured. The proposal also addresses the loopholes in the existing asylum and return procedures by a new requirement to issue negative asylum decisions and return decisions together as part of the same act, allowing for only one level of appeal in a border procedure, with the same court looking at a rejection decision and return decision and with reduced possibilities during that time for an applicant to remain in the Member State. Joining the two appeal procedures will prevent deficiencies or a heavy burden in individual Member States’ asylum and return systems from leading to unauthorised movement and further unwanted effects for the Schengen area. Member States can receive EU financial and operational support to ensure that the asylum and return border procedures are closely connected. ·A fairer, more comprehensive approach to solidarity and relocation

The proposal on asylum and migration management also introduces a fairer and more comprehensive approach to solidarity. It introduces new forms of solidarity, by widening the scope of relocation and including return sponsorship schemes through which a Member State commits to support returns from another one and, if the efforts are not successful, to transfer the irregular migrant. Relocation and return sponsorship are therefore the main pillars of this new approach to solidarity. Such a compulsory mechanism would be triggered through a holistic qualitative assessment evaluating whether a situation of migratory pressure has occurred according to a number of criteria. In certain cases, Member States under pressure may receive bilateral contributions in the field of capacity building, operational support and in the external dimension from other Member States instead of relocation or return sponsorship. The solution proposed responds to the need of broadening solidarity beyond the relocation of asylum seekers, and also to include the relocation of other categories of migrants and cater for a wider range of situations. In addition, in order to address the challenges related to migrants rescued at sea, it is proposed to extend the principle of solidarity to SAR operations, building on voluntary contributions with a mechanism that may become compulsory in case such an approach is insufficient to put in place a more sustainable and reliable European migration management approach. By means of an implementing act the Commission will establish the measures to be taken by each Member State for the benefit of the Member State under pressure. Member States would be obliged to contribute through measures relating either to relocation or return sponsorship or a mix of both. The share of such contributions will be calculated on the basis of to a distribution key based on 50% GDP and 50% population. In addition, where there are specific needs identified, other solidarity measures aimed at strengthening its capacity in the field of asylum, reception or return or, operational support or measures in the area of the external dimension in order to address migratory flows, may be contributed as long as such measures do not amount to over 30% of the required number of persons to be relocated or subject to return sponsorship. In case of such a situation, the Commission will ensure that the Member States that initially have indicated to provide other solidarity measures will have to contribute half of their share to either relocation or return sponsorship. For SAR operations, an implementing act setting out a solidarity pool of contributions will also be foreseen based on indications by Member States of the type of measures they intend to take from among relocation of persons not in the border procedure or measures in the field of capacity building. Where the indications are sufficient to deal with the situation, this shall be reflected in an implementing act to be proposed by the Commission. Where the indications by Member States fall short of the needs identified in the Migration Management Report the Commission will adopt an implementing act setting out the shares of each Member State according to the distribution key (50% GDP and 50% population). If, however, the indications from Member States to take measures other than relocation amount to more than 30% of the required number of persons to be relocated, the Commission will ensure that these Member States will have to contribute half of their share to relocation. In these situations Member States may also chose to contribute through return sponsorship instead of relocation. Throughout the year as disembarkations take place, the Commission will use the pool and prepare lists to distribute the persons to be relocated or each disembarkation or group of disembarkations to the contributing Member States. Where the solidarity pools risk being insufficient due to an increasing number of disembarkations, the Commission will amend the implementing act setting out an additional amount of projected measures for relocation. In addition where a Member State of disembarkation risks coming under migratory pressure its solidarity pool may be used for the purpose of relocating persons quickly until the implementing act foreseen for situations of pressure is adopted. The pools of other Member States of disembarkation may also used for this purpose as long as this does not jeopardise the functioning of their pool. Where the Migration Management Report identifies that Member States of disembarkation have particular challenges due to the presences of third-country nationals who are applicants for international protection, the solidarity pool may also be used for the purpose of quickly relocating such vulnerable persons. ·Simplified and more efficient responsibility rules for robust migration management Simplified and more efficient rules for sustainable sharing of responsibility for asylum applicants across the EU are proposed to be put in place through a number of measures in the new Proposal. The current responsibility criterion linked to first entry remains but the proposal adds a criterion on responsibility for examining an application registered after entry following a SAR operation to better reflect in the asylum acquis the obligations stemming from the International Convention on Maritime Search and Rescue. While the responsibility rules are the same for the two criteria, they will lead to a more accurate picture of the composition of migratory flows in the EU, as well as reflecting the fact that Member States of disembarkation face specific challenges as they cannot apply to SAR disembarkations the same tools as for irregular border crossings into a Member State by land or air. For rules concerning shift of responsibility, it is proposed to delete the rules allowing for cessation or shift of responsibility based on the behaviour of the applicant – absconding or leaving the territory of the Member States – while keeping the current rule that responsibility ceases if a person is effectively returned. In addition, by introducing a system of take back notifications instead of the existing take back request system for cases where responsibility has already been established, the proposal also introduces a simplification of the take back procedure and improves procedural efficiency. In terms of respect for fundamental rights, the changes proposed by the Commission reinforce the right to family reunification, strengthen the rights of unaccompanied minors and makes them a priority for relocation. The scope of the right to an effective remedy is limited to an assessment of whether the family criteria have been correctly applied, or whether the transfer represents a risk of inhuman or degrading treatment as prohibited by Article 4 of the Charter of Fundamental Rights of the EU. In order to prevent unauthorised movements, the Proposal also limits the right to material reception conditions to the Member State where the applicant is required to be present.

·A targeted mechanism to address extreme crisis situations and situations of force majeure Notwithstanding the proposal set out above, even the best-prepared and well-managed system needs to have a framework within which to deal with crises or situations of force majeure where the response under the various legislative instruments is insufficient. A new instrument is needed that provides Member States with the tools to deal with the various and different causes of migration but also the need for immediate measures to deal with the extreme pressure stemming from such situations. Therefore, for the migration management system to be truly comprehensive it also needs to provide a framework for a response in situations where one or more Member States are faced with a mass influx or risk of such influx that renders its asylum system inoperable and thus threatens the functioning of the Union as a whole. Flexibility in situations of force majeure also need to be introduced in light of the lessons learned from the COVID-19 pandemic. The proposal for a Regulation establishing procedures and mechanisms addressing situations of crisis aims to ensure that the Union has at its disposal specific rules that can be applied to ensure effective solidarity in situations of crisis in national asylum and return management systems, as well as to allow for possible derogations from the applicable EU acquis on asylum and return. Such specific rules should be rapidly triggered in respect of any Member State or Member States that experience crisis situations and of force majeure of such a magnitude as to put under significant strain even well prepared and functioning asylum systems. The proposed system distinguishes between crisis situations that are caused by a mass influx of third-country nationals or stateless persons arriving irregularly being of such a scale and nature that it would render a Member State’s asylum, reception or return system non-functional. It would cover situations where there is an imminent risk of such arrivals which risk having serious consequences for the functioning of the Common European Asylum System and the migration management system of the Union. Finally, situations of force majeure in the field of asylum and migration management are also addressed, including situations recently experienced by Member States due to the COVID-19 pandemic. The objective is to provide for the necessary adaptation of the rules on asylum and return procedures as well as the solidarity mechanism established in the Regulation on Asylum and Migration Management in order to ensure that Member States are able to address situations of crisis and force majeure in the field of migration and asylum within the EU. For this purpose, a wider scope for relocation is foreseen by including also applicants for international protection who are in the border procedure as well as irregular migrants with shortened timeframes for triggering the compulsory solidarity mechanism procedure foreseen for situations of pressure in the Regulation on Asylum and Migration Management. Given that this proposal and the proposal for a Regulation on Asylum and Migration Management include specific rules for relocation in situations of crisis, the Commission intends to withdraw its proposal of 2015 on the Proposal for a Regulation of the European Parliament and of the Council establishing a crisis relocation mechanism and amending Regulation (EU) No 604/2013. The asylum and return procedures in this proposal provide Member States with the tools to respond to crisis situations that render it impossible to fulfil certain obligations under the Asylum Procedure Regulation or the Return Directive, allowing for certain derogations such as a broader application of the border procedure to third-country nationals and stateless persons, and a longer deadline for registering applications for international protection. This proposal also foresees the introduction of a faster procedure to grant immediate protection to groups of third-country nationals who are facing a high degree of risk of being subject to indiscriminate violence, in exceptional situations of armed conflict, and who are unable to return to their country of origin. To that effect, it is proposed to repeal the Temporary Protection Directive (Council Directive 2001/55/EC). ·More efficient data collection and processing In order to address the identified data gaps, new rules are needed that improve and clarify the processing of data. The amended proposal for a Regulation on the establishment of ‘Eurodac’ aims to provide for more efficient data processing and contribute to providing a clearer picture of secondary movements. The new solidarity measures foreseen in the proposal for a Regulation establishing a common framework for the European Union’s asylum and migration management include, amongst others, relocation of persons including those that are disembarked following SAR operations. A dedicated category in Eurodac will distinguish persons who are disembarked on a Member State’s territory due to international obligations from persons having crossed the external borders irregularly. While the responsibility rules for this new category are the same as the rules for persons who enter irregularly, the distinction is relevant in relation to the fact that Member States of disembarkation face specific challenges as they cannot apply to SAR disembarkations the same tools as for irregular crossings by land or air. For instance, there are no official border checks for SAR arrivals, which not only means that points of entry are more difficult to define, but also that third-country nationals have no points where to officially seek entry. Moreover, this will also lead to a more accurate picture of the composition of migratory flows in the EU. In addition, in order to respond to the challenge of have a clearer picture of unauthorised movements, the amended Eurodac proposal also provides the possibility to count “applicants” as opposed to “applications”. It will also allow Member States to record the granting of assistance for voluntary return and reintegration to prevent abuses of such system. A fresh start on migration and asylum

In 2016, the European Commission presented a set of legislative proposals to complete the reform of the Common European Asylum System, with the aim to move towards an efficient, fair and humane asylum policy framework that can function effectively also in times of a sudden increase in numbers of arrivals or rapidly changing types of migration. In 2017, the European Parliament and the Council reached a broad political agreement on five out of the seven CEAS proposals, namely as regards the setting-up of a fully-fledged European Union Asylum Agency, the reform of Eurodac, the review of the Reception Conditions Directive, the Qualification Regulation, and the EU Resettlement framework. However, the Council did not reach a common position on the reform of the Dublin system and the Asylum Procedure Regulation. While the Commission is proposing amendments to some of these proposals, it has been supporting a quick adoption of the proposals on which a political agreement has been reached by the co-legislators. In 2018, the Commission proposed a recast of the Return Directive in response to the existing obstacles to an effective return policy. The recast aims at making the EU rules fit for purpose in successfully addressing the risk of absconding, providing assistance to voluntary returns, ensuring proper monitoring of national procedures, and streamlining administrative and judicial procedures. In 2019, the Council reached a partial general approach on the text, except regarding the border procedure for returns. In the European Parliament, work to reach a negotiation mandate continues. The Commission believes that the developments and challenges described in this paper can only be addressed by making the European asylum and migration system more efficient, comprehensive and sustainable. As deficiencies or challenges in one part of the system affects the system as a whole, a new set of interlocking policies and rules that provide for more robust and simple cooperation between Member States as well as seamless links between all stages of the migration management process is needed. The New Pact on Migration and Asylum contains a number of solutions through new legislative proposals and amendments to pending proposals to put in place a system that is both humane and effective, representing an important step forward in the way the Union manages migration.



List of abbreviations AMIF: Asylum Migration and Integration Fund AVRR: Assisted Voluntary Return and Reintegration CEAS: Common European Asylum System CSOs: Civil society organisations DG HOME: Directorate-General for Migration and Home Affairs

EASO: European Asylum Support Office EBCGA/Frontex: European Border and Coast Guard Agency EU+: European Union Member States plus Norway and Switzerland IBC: Irregular border crossings LIBE: European Parliament Committee on Civil Liberties, Justice and Home Affairs RR: Recognition rate SAR: Search and rescue SCIFA: Strategic Committee on Immigration, Frontiers and Asylum

List of figures Figure 1.2: First-time and repeated asylum applications in the EU-27 Figure 2.1 (a): Irregular border crossings via the three main routes Figure 2.1 (b): Number of irregular arrivals to the EU from high and low recognition countries Figure 2.1 (c): Share of irregular arrivals of low recognition rate nationalities vs EU-wide recognition rate Figure 2.1 (d): First time asylum applications from low recognition rate countries compared to the total first time asylum applications, the return decisions issued and the actual returns for these groups Figure 2.1 (e): Irregular arrivals via the three main routes and asylum applications at EU level 2016-2019 Figure 2.1 (f): Share of visa-free countries of the total first time asylum applications Figure 2.3 (a): Comparison of return rate between 2016 and 2019 for selected third countries Figure 2.3 (b): Evolution of the return rate 2008-2019 (EU-28)

Figure 2.3 (c): Irregular arrivals, third-country nationals issued a return decision and third-country nationals returned after having been issued a return decision Figure 3.2.1: Return rate per Member State (EU27) Figure 3.2.5: Share of citizens of visa-free countries from first time applications (2015-2020) Figure 3.4.4: Time frame under which the majority of transfers is carried out in consulted Member States List of tables Table 2.2: Number of migrants rescued in SAR cases, 2016-2019 Table 3.4.3 (a): Irregular border crossings as registered by EBCGA, Eurodac (CAT 2) and unregistered Table 3.4.3 (b): Number of accepted Dublin requests (as reported by the country accepting the request) Table 3.4.3 (c): Number of incoming transfers (transfers effected) Table 3.4.3 (d): Share of transfers

1. INTRODUCTION This analytical document accompanies the legislative proposals proposed under the New Pact on Migration and Asylum: the proposal for a Regulation on asylum and migration management; the amended proposal for a Regulation on establishing a common procedure for international protection in the Union; the amended proposal for a Regulation on the establishment of 'Eurodac'; the proposal for a Regulation introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817; disembarked following search and rescue (SAR) operations or who request international protection at border crossing points; as well as the proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum. Its aim is to look comprehensively at the evidence and experience available to European Commission (hereinafter ‘Commission’) services, which underpin the above-mentioned legislative initiatives. The document also addresses some key issues raised during the negotiations of the recast Return Directive. 1.1Political context The 2016 asylum reform consisted of seven legislative proposals: the recast Dublin Regulation, the recast Eurodac Regulation, the Regulation establishing the European Union Agency for Asylum, the Asylum Procedure Regulation, the Qualification Regulation, the recast Reception Conditions Directive and the Union Resettlement Framework Regulation. In September 2018, the Commission also tabled an amended proposal to the Regulation establishing the EU Agency for Asylum and a recast Return Directive. Whereas significant progress and provisional political agreement among co-legislators was reached on the Qualification Regulation, the Reception Conditions Directive, the Union Resettlement Framework Regulation, the Eurodac Regulation and the first proposal establishing the EU Agency for Asylum, less progress was achieved on the Dublin and the Asylum Procedures Regulations, mainly due to diverging views within the Council. As there was no agreement on moving forward with only some of the proposals, the reform came to a stalemate, until the new institutional set-up brought about by the European elections in May 2019 and the new European Commission and European Council presidencies provided the opportunity for a fresh start and new common ground. With the New Pact and the accompanying legislative and non-legislative initiatives, the Commission is proposing to develop a new, comprehensive and sustainable approach to managing migration, taking into account the current migratory situation and trends. Albeit the number of irregular arrivals to the EU has dropped by 92% since 2015, structural challenges still exist, which put Member States' asylum, reception and return systems under strain. These are notably due to shortcomings in processing asylum applications efficiently; the lack of a system for fair sharing of responsibility amongst Member States; the difficulties in dealing with migrants disembarking following SAR operations; the lack of a solidarity mechanism; and the lack of a wider toolbox for crisis management and prevention.

As regards return, every year, between 400,000 and 500,000 foreign nationals are ordered to leave the EU because they have entered or have been staying irregularly. However, on average only one third of them go back to their home country, or to another third-country through which they travelled to the EU. Ensuring the return of irregular migrants is essential in order to enhance the credibility and sustainability of the EU and Member States’ policies in the field of migration. For this purpose, on 12 September 2018 the Commission tabled a proposal for a recast Return Directive, which consists of targeted amendments aimed at maximising the effectiveness of EU return policy, whilst safeguarding the fundamental rights of irregular migrants and ensuring the respect of the principle of non-refoulement. Legislative negotiations between the European Parliament and the Council are ongoing. This proposal builds on and complements several other policy and legislative initiatives launched in the last 5 years, aimed at strengthening the effectiveness of return. A major milestone in this context is the new mandate of the European Border and Coast Guard (EBCG) Agency (Frontex), which provides Frontex with its own operational arm (i.e. 10,000-strong standing corps by 2027), and reinforces the agency’s cooperation with EU and non-EU countries in the management of external borders and returns. In addition to this, the wider use of the Schengen Information System (SIS) in the area of return will ensure a better monitoring of return decisions’ enforcement across the EU and facilitate return decisions’ mutual recognition. To facilitate a more effective return of migrants with no right to stay, the EU has also engaged over the last 5 years in a sustained dialogue with main third countries of origin on the readmission of their nationals. Twenty-four readmission agreements and arrangements are now in place; an additional one will come into force in 2020, formal negotiations are ongoing with three other countries while with others the EU is engaging in broader migration dialogues. 1.2 Persistent pressure on Member States’ external borders and asylum systems Building partnerships with third countries and reinforcing the EU’s capacity to effectively protect its external borders, manage returns and respond to disproportionate migratory pressures, notably thanks to the establishment of the EBCG Agency and the central role played by its Agency, have helped reduce the number of irregular migrants arriving to the EU. Nevertheless, migratory pressure not only remains high along certain routes, but is now significantly different with respect to the one that characterised 2015-2016. Arrivals on the Eastern Mediterranean route are heavily influenced by the current political implications of the EU-Turkey Statement, while the increasing number of arrivals and the increase of complex asylum cases continues to be a challenge. The Central Mediterranean route takes in the majority of arrivals by SAR operations, which add a level of complexity to the sharing of responsibility among Member States. Finally, whilst cooperation with the EU’s neighbouring countries has shown concrete added value on the Western Mediterranean route, asylum applications lodged by nationals of visa-free countries pose an increasing challenge. Furthermore, today a large share of migrants arriving irregularly are unlikely to receive protection in the EU. The average EU recognition rate in 2019 for first time applications was just 30% in the EU-27. Member States are therefore not only faced with an increased burden to process asylum applications, but also have to return a higher number of irregular migrants with inadmissible or rejected asylum claims. The lodging of successive applications either in the same Member State (subsequent applications) or in a different Member State (secondary movements) also continues to be a challenge for Member States. According to Eurostat, out of a total of 676,250 asylum applicants in 2019, 612,685 were first-time asylum applicants and 63,565 were repeated applications. Figure 1.2: First-time and repeated asylum applications in the EU-27 Source: DG HOME based on Eurostat data Partially due to the additional burden caused by subsequent applications, the stock of pending asylum cases has also remained high between 2017 and 2019. At the end of December 2019, in the EU+, 911,430 cases were pending at all instances and around 500,000 were pending at first instance in January 2020, despite the decrease in irregular border crossings. This is a general problem in all Member States, which may also translate into pressure concerning the return caseload. In Germany, for example, according to the information collected by the Commission, there is a slight, but persistent increase in the number of persons obliged to leave the country (about 250,000). Another group of around 250,000 people is still in the asylum procedure, but has received a first negative decision, which will likely translate into return caseload. 1.3 Deficiencies in the current asylum and return systems

There are important structural weaknesses and shortcomings in the design and implementation of the European asylum and migration policy. Member States’ asylum and return systems remain largely not harmonised, thus creating inefficiencies and encouraging the movement of migrants across Europe to seek the best reception conditions and prospects for their stay. Migration management can be seen through the perspective of different policy areas, each with their own focus and actors. Each policy area seeks to address individual challenges, without considering the overall framework of migration management. This results in an overall lack of integrated policy-making, bringing together the different policies into a coherent whole, thus ensuring cost-effectiveness and sustainable implementation, including in times of crises. Another structural weakness of the Common European Asylum System (CEAS) is the absence of a functioning system for the fair sharing of responsibility among Member States. The current Dublin system is not aimed at ensuring the fair sharing of responsibility, but rather at objectively allocating the responsibility to examine an application for international protection to a specific Member State. Moreover, the effectiveness of this system is undermined by the fact that current rules can be abused to provide for a shift of responsibility among Member States after a given time. For example, if an applicant absconds for long enough in a Member State to avoid being effectively transferred, this Member State will eventually become responsible. Furthermore, the lack of a coherent EU approach to the link between the termination of legal stay due to a negative asylum decision, and the beginning of a consequent return procedure, including requesting readmission to third countries, decreases the effectiveness of the entire migration management system. Whilst the process of analysis is frustrated to an extent by a lack of insufficient or unreliable data to properly analyse the situation, the Commission has worked on the basis of all the data and information sources that are available. In January 2020, the Commission’s Directorate-General for Migration and Home Affairs (DG HOME) asked Member States for statistics concerning the intensity of unauthorised movements observed in their country. Whereas quantitative data from Member States was scarce, contributions from nineteen Member States regarded the number of asylum applications received and, in some cases, the number of incoming/outgoing Dublin transfer requests, instead of unauthorised movements per se. The persistently low rate of enforcement of return decisions reveals structural challenges for Member States in this context, among which is absconding. A study of the European Migration Network shows that a significant number of Member States (15) considers the risk of absconding one of the main challenges linked to voluntary departure. According to the interviews conducted with a sample of twelve Member States for the purpose of this document, both the rate of absconding and the moment in which irregular migrants are more likely to abscond vary significantly across Member States. The Commission also observed in several Schengen evaluations that national authorities have difficulties in and lack measures for monitoring the whereabouts of irregular migrants and the implementation of migration-related procedures, particularly where two different authorities are responsible for issuing negative asylum decisions and return decisions respectively. This also allows irregular migrants to prolong their irregular stay for long periods, even several years, before return is carried out. Return procedures are also made more cumbersome by the fact that irregular migrants subject to return and third countries’ authorities responsible for their identification and re-documentation are often unwilling to cooperate with competent national authorities in the EU. In addition, returnees might be able to frustrate the system by lodging several appeals, which grant a suspensive effect against negative asylum decision, and by making subsequent and unfounded asylum applications to suspend the return procedure. 1.4 Consultations with European Parliament, Member States and civil society The Commission consulted the European Parliament, the Member States and representatives of civil society on a number of occasions, to gather their views on a future Pact on Migration and Asylum. European Parliament The European Parliament’s LIBE Committee expressed, in a letter to Vice-President Schinas and Commissioner Johansson (January 2020) the importance of a holistic approach to a sustainable asylum and migration policy, highlighting that the Parliament had adopted a mandate for all the 2016 CEAS proposals, which should be taken into account for any new initiative the Commission intends to launch. Several political groups (European People’s Party, Greens/EFA, Renew Europe) presented position papers in which they expressed their views calling for a swift conclusion on the proposals for migration and asylum. In the current context of coronavirus pandemic, it is important that measures are taken to avoid a humanitarian crisis and ensure that the EU puts in place long-term solutions and strong solidarity on asylum measures. In a context of mixed-migration flows, the various political groups supported a holistic approach to migration, which takes into account the EU external dimension, the ability to tackle the root causes of migration and develop new partnerships with third countries, a stable search and rescue mechanism, and one that supports resettlements and legal pathways and integration measures. These political groups, as well as the Socialists and Democrats, also called for a system of compulsory solidarity that includes relocation. Ahead of the launch of the New Pact on Migration and Asylum, the Commission has kept the European Parliament regularly informed of the latest development in this area. In her speech at the European Parliament Plenary Session in November 2019, the President of the Commission Ursula von der Leyen reiterated her commitment to ensure that the EU will always provide shelter to those who are in need of protection, while ensuring that those who do not have the right to stay are returned to their country of origin. At their respective LIBE Committee hearings, on 1 and 3 October 2019, the then Vice-President-elect Schinas replied to questions on migration and asylum policy, while the then Commissioner-designate Johansson clarified how she planned to build consensus on reforming the asylum system. On 7 May 2020, Commissioner Johansson presented the development of the work on the Pact as well as on the voluntary relocation exercise of the unaccompanied minors from Greece. In this context, the European Parliament asked the Commission to ensure the adequate implementation by Member States of the relevant asylum acquis. In this context, LIBE held a hearing on 19 February 2020 on the implementation of Dublin regulation. The Commission kept the LIBE Committee regularly informed on concrete measures taken to support Member States in preventing the spread of the coronavirus and ensuring continuity of asylum, return and resettlement procedures in line with fundamental rights and international obligations. EU Member States The Romanian, Finnish and Croatian Presidencies have held both strategic and technical exchanges on the future of various aspects of the EU’s migration policy, including asylum, return, relations with third countries on readmission and reintegration. These consultations showed support for a fresh start to urgently address the flaws in the CEAS, to improve the effectiveness of the return system, to better structure and equip our relations with third countries on readmission and to ensure the sustainable reintegration of returning migrants. Vice-President Schinas and Commissioner Johansson held consultations with all Member States in their first 100 days in office. The aim of the consultations was to gather views and ideas on the future Pact on Migration and Asylum. Member States engaged actively in these consultations, presenting their ideas and suggestions for the upcoming proposals, with common ground emerging on the need for unity, for gradual progress in solving the weaknesses of the current system, for a new system of fair sharing of responsibility to which all Member States can contribute, for strong border protection, and on the importance of the external dimension of migration and improved returns. The Commission reaffirmed its commitment to work towards an agreement on the whole package as part of the comprehensive approach to migration. It strives to strike balance between responsibility and solidarity, taking into account the comprehensive approach set out by the June 2018 European Council; as well as the different positions expressed by the Member States in the discussions of the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) and Friends of Presidency. The fresh and comprehensive approach to migration management includes a new way of burden sharing. The Commission’s intention of finding new forms of solidarity was welcomed at several instances. A number of workshops and discussions were organised during the Finnish Presidency in various Council fora. Overall, Member States welcomed the intention of the Commission to find new forms of solidarity, underlined that solidarity measures should go hand in hand with responsibility measures, and highlighted the urgent need to fight unauthorised movements within the EU and to enforce the return of those who are not in need for international protection. The Ministers who participated to the Salzburg Forum underlined the importance of balancing responsibility and solidarity in the reform of the CEAS, to ensure its sustainability.

Specifically on the external dimension of return, the Commission took full account of the discussions with Member States in various fora, including the SCIFA, the High Level Working Group on Asylum and Migration (HLWG), the Irregular Migration and Expulsion working party (IMEX) and other relevant working and expert groups, such as the European Migration Network and the Readmission Expert Group. In these discussions, using leverage from other policy areas emerged as a necessary element to improve cooperation with third countries, as did the need to enhance assisted voluntary return schemes and tools to increase take up by returnees and to ensure sustainable reintegration in countries of origin, the need to promote a more strategic and better coordinated approach to readmission, through wider political engagement, effective procedures and operational capacity. Civil Society Civil society was also engaged through a number of meetings and conferences, since the proposed 2016 CEAS package. The Tampere 2.0 conference, held on 24-25 October 2019 in Helsinki, aimed to facilitate the future negotiations by conducting a series of thematic discussions on why a common system is necessary and on how the current rules should be amended. The resulting recommendations focus, amongst others, on the root causes of migration, on the management of unauthorised movements, on issues arising from the lack of trust among Member States, and on the necessary trade-offs to establish a balanced framework of responsibility and solidarity, as a basis for a fully functioning CEAS. Commissioner Johansson held targeted consultations with civil society organisations (CSOs) on 14 February 2020, and with representatives of the Initiative for Children in Migration on 27 January 2020. Moreover, during her visits to Member States Commissioner Johansson regularly consulted with relevant local non-governmental organisations. Commissioner Johansson discussed also with social-economic partners and civil society on the essential role played by migrants in European economic recovery from COVID 19 and how to match European recovery needs on the labour market with the skills and talents from abroad and foster successful integration policies in the Pact. Commission services also held consultations with civil society on different aspects of the Pact. For instance, a meeting with CSOs on asylum, legal pathways and integration aspects took place on 21 February 2020; and a meeting on SAR operations and humanitarian assistance, notably in the Central Mediterranean, and broader aspects of humanitarian assistance to irregular migrants, was held on 3 March 2020. In this consultation process, specific recommendations focussed on a common approach to child-specific standards, following to the Communication of 2017 on Children in Migration. Civil society has also been consulted in the process of the Consultative Forum set up by EASO, on topics such as the initial steps in the asylum procedure (2019). The Commission has taken into consideration many recommendations of national and local authorities, non-governmental and international organisations, such as the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), as well as think tanks and academia, on how to address the current migration challenges in accordance with human rights standards. In their view, a fresh start on the reform should revise certain rules for the determination of responsibility and provide for a permanent mechanism of solidarity, including for persons disembarked further to a SAR operation. Non-governmental organisations also advocated for a common understanding of responsibility among Member States and called for the revised Dublin rules to include a more permanent relocation mechanism. For instance, the European Council on Refugees and Exiles (ECRE), which represents over 100 non-governmental organisations, called for a permanent and predictable relocation mechanism for asylum seekers disembarked in EU ports. In the framework of the Mercator Dialogue on Migration and Asylum (MEDAM) project, in addition, the Migration Policy Centre recommended to embed a migration policy scoreboard aimed at monitoring progress on the asylum and migration at EU level. At the same time, civil society called for revising the asylum procedures and standards, in order to dis-incentivise unauthorised movements. However, stakeholders also acknowledged the difficult political impasse, as Member States struggle to find a common understanding of solidarity, while protecting a European human rights based approach. Civil society called in various written contributions for the European institutions and agencies to seize the opportunity to lead by example and tackle the Covid-19 crisis by leaving no one behind and called for action to be taken in the spirit of solidarity and human rights. There have equally been exchanges with the Fundamental Rights Agency, in particular on questions related to key fundamental rights affected by the proposed regulations, such as the right to liberty and the right to an effective remedy. Monitoring options have also been looked at, in particular as regards the screening and the asylum and return border procedure. Contributions and studies by the European Migration Network were also taken into account. These were either launched by or with the support of the Commission, and covered topics such as the effectiveness of return in EU Member States, unaccompanied minors in migration, effective alternatives to detention, assisted voluntary return and reintegration schemes, as well as detention and material detention conditions, legal assistance in detention facilities and several other topics related to migration and asylum. The tools, studies and analysis of the Knowledge Centre for Migration and Demography, which provides independent scientific evidence for EU policymaking in migration and demography related fields, were also taken into consideration, and notably its comprehensive Atlas on Migration. Feedback received following the publication of Roadmap on the New Pact on Migration and Asylum

Overall, in terms of the tone/attitude of the replies towards the New Pact, the largest number were mostly neutral, followed by negative, positive and mixed replies. Respondents were mainly concerned about borders, including their protection and the return of migrants. Illegal migration and the scale of migration were also recurrent concerns in the replies received. Respondents highlighted the integration of migrants who arrive to Europe, mentioning legal migration and pathways to Europe to a lesser extent. Finally, some respondents were concerned about solidarity and rescue at sea. Non-governmental organisations and academic research institutes stressed the need to reform the Dublin Regulation and improve the implementation of the rest of the asylum acquis. They also underlined the need for safeguards in the asylum acquis, especially for women, children and other vulnerable groups. Some of them warned against the externalisation of migration policy, the introduction of a screening phase and the extension of the border procedure. They called for expanding legal channels to the EU and increased social inclusion. Regarding the external dimension of migration, some NGOs called for policy coherence and coherence with the UN Global Compacts. 2. THE CURRENT MIGRATION SITUATION 2.1 Changing composition of migratory flows and differences according to migratory route Since the migration crisis of 2015-2016, irregular migration to the EU has been gradually declining. Overall, the number of irregular arrivals to the EU went from over 1.8 million in 2015 to around 142,000 in 2019, a decrease of 92%. On the Central Mediterranean route, the number of irregular migrants dropped by 40% in 2019 (roughly 14,000) as compared to 2018, with most migrants coming from Tunisia and Sudan. The total number of irregular migrants on the Western Mediterranean route, including the Western Africa route, (roughly 27,000 people) dropped by 54% as compared to 2018, most of them coming from Morocco and Algeria . In contrast, there were significantly more arrivals in 2019 compared to 2018 via the Eastern Mediterranean (around 83,000; 47% more) and via the Western Balkan routes (around 15,000; 159% more). Nevertheless, these figures are still much lower than those of the 2015-2016 crisis. Figure 2.1 (a): Irregular border crossings via the three main routes Source: DG HOME based on EBCGA data The most frequent nationalities of irregular migrants on all routes in 2019 were Afghan (around 34,000 persons, 24% of the total), Syrian (24,000, 17% of the total), unspecified sub-Saharan nationals (14,000, 10% of the total), Moroccans (8,000, 6% of the total) and Turkish (also 8,000, around 6% of the total). Frequent other nationalities also include Iraqi, Algerian, Pakistani, Palestinian, Iranian and Somali nationals, but with a smaller share of the total. Between 2016 and 2019, the share of migrants from countries of origin that statistically have a low chance of being granted international protection was higher than 2015. While the number of irregular arrivals has decreased, the share of third-country nationals arriving from countries with recognition rates lower than 25% has risen from 14% in 2015 to 43% in 2016, climbed further to 67% in 2017 and 57% in 2018. For 2019, this figure is down to 26%. Still in 2019, the EU-wide first instance recognition rate fell to 30% from its peak of 56% in 2016.





Figure 2.1 (b): Number of irregular arrivals to the EU from high and low recognition countries (RR = recognition rate) Source: DG HOME based on EBCGA and Eurostat data. The EU recognition rate is calculated at first instance. Visa-free countries, countries with no first instance decision in the given year and migrants with unknown nationalities are excluded. In particular, on the Central Mediterranean route, the share of arrivals from countries with an EU-average recognition rate below 25% rose from 36% in 2014 to 70% in 2019. On the Western Mediterranean route their share rose sharply from 61% in 2014 to 99% in 2018 and 2019. In Spain, barely one out of twenty applicants, just 5% of the total, received refugee or subsidiary protection status in 2019, according to data released by Eurostat. See in particular the example of Venezuelan applicants further below. As regards the Eastern Mediterranean route, the arrival of third-country nationals with clear international protection needs in 2015-2016 (mostly Syrians) has been partly replaced by arrivals of persons with more complex cases, with more divergent recognition rates, in particular from Afghanistan and Iraq. The EU-Turkey statement has had a lasting effect on arrivals on this route. Four years from the EU-Turkey Statement, irregular arrivals are still 94% lower with respect to the period preceding the Statement, and the number of lives lost at sea has also decreased substantially. While the Statement could be subject to challenges stemming from the geopolitical context, the EU remains committed to its implementation and continues to support Syrian refugees in Turkey through the EUR 6 billion Facility for Refugees in Turkey. Figure 2.1 (c): Share of irregular arrivals of low recognition rate nationalities vs EU-wide recognition rate (IBC = irregular border crossings) (RR = recognition rate) Source: DG HOME based on EBCGA and Eurostat data. EU recognition rate is calculated at first instance Processing the asylum claims and finalising the return procedure of irregular migrants from third countries with a low recognition rate create a significant burden for national authorities, which need to deal with asylum applications that are very often unfounded and lodged merely to facilitate absconding or hamper returns. The increase of unfounded asylum claims from Moldovan citizens (often subsequent applications following a rejection in another Member State), which has been weighting on national administrations and receptions centres at the beginning of the winter in 2019, is a good example of this. While these applicants knew that their chances of being recognised as refugees were low, they also knew that prolonging the procedures would have given them the opportunity to either look for (undeclared) employment or at least receive financial support during their stay in reception centres. Such instances have a negative impact on the duration of return procedures, putting additional pressure on the return authorities. Figure 2.1 (d): First time asylum applications from low recognition rate countries compared to the total first time asylum applications, the return decisions issued and the actual returns for these groups Source: DG HOME based on Eurostat data

The steady EU-wide decrease in irregular arrivals has not been followed by a decreasing number of asylum applications. In 2016, the number of first time applications was three times higher than the number of irregular arrivals on the three main routes. There were 1.2 million first time asylum applications in the EU-28, compared to 374,314 irregular arrivals on the three main routes. This ratio continued to climb in the following years. In 2017, the ratio increased, with 654,620 first time asylum applications in the EU-28 and 184,765 arrivals on the three main routes. In 2018, first instance asylum applications in the EU-28 (587,355) were four times higher than the combined irregular border crossings on the three main routes (137,613). The trend continued into 2019: there were 612,685 first-time asylum seekers applying for international protection in the EU-27, compared to 124,023 irregular border crossings on the three main routes. With 142,400 first-time applicants registered in 2019, Germany accounted for 23% of all first-time applicants in the EU. It was closely followed by France (119,900, or 20%) and Spain (115,200, or 19%), ahead of Greece (74,900, or 12%) and Italy (35,000, or 6%) (Eurostat). These five Member States account together for more than three quarters of all first-time applicants in the EU-28. Compared with the population of each Member State, the highest rate of registered first-time applicants in 2019 was recorded in Cyprus (14,495 first-time applicants per million population), followed by Malta (8,108) and Greece (6,985). Figure 2.1 (e): Irregular arrivals via the three main routes and asylum applications at EU level 2016-2019 Source: DG HOME based on EBCGA and Eurostat data The discrepancy between the number of irregular arrivals and the high number of asylum applications is to be found in multiple asylum applications within the same or another EU Member State, following unauthorised movements; in applications lodged by persons who arrive legally to the EU (e.g. third-country nationals exempt from visa requirements or having a Schengen visa); and in applications lodged by those arriving irregularly, without being apprehended at the external borders. This has resulted in Member States struggling to keep up with the number of lodged applications, notably as of January 2020. Fewer first-instance decisions were issued (51,000) than applications lodged (65,000) and, at the end of November 2019, there were more than 900,000 cases pending a final decision in the EU+. Most of these cases were with first-instance asylum authorities (as opposed to with the judiciary in appeal). At the end of the year, more than 540,000 applications were awaiting a first-instance decision, up by 20% from a year earlier. Of all pending cases, by the end of the year almost one-fifth concerned applicants from visa-free countries. The overall number of pending cases for visa-exempt citizens increased in 2019 compared to 2018, despite the fact that EU+ countries issued 60 % more decisions on their cases than the year before. As mentioned above, since the crisis of 2015-2016, there has been an increasing number and share of first time asylum applications from citizens of visa-free countries, who generally have little chances of receiving international protection. First instance recognition rates for nationals coming from Latin American countries ranged between 5% (Venezuelan) and 35% (Salvadoran) in 2019. Venezuelans in fact became the third largest country of origin of asylum seekers in the EU+ (following Syrians and Afghanis). The first EASO Country of Origin Information (COI) Report on Venezuela notes the deterioration of the political, security and economic situation in Venezuela which has led to the mass emigration of four million people since 2015, including over 100 000 who have sought asylum in the EU+. Applications by Venezuelan nationals in the EU+ have risen from 105 in 2013 to 45 675 in 2019; an increase of over 43 000%. In Spain, a temporary permit to stay with a national humanitarian status has often been granted to Venezuelans, whose asylum applications lodged in this specific country increased by 103% in 2019 as compared to 2018. About 90% of all applications by Venezuelans are lodged in Spain, the vast majority of which receive humanitarian protection status. Between 2015 and 2018, the number of Venezuelans registered in Spain increased by 54% to 255,000, according to Spain's National Statistics Institute. According to the 2019 EASO Asylum Trends report, Colombians lodged over three times as many applications as in 2018, and nationals of El Salvador lodged twice as many applications as in 2018. Moreover, applicants from Georgia, Honduras, El Salvador, Nicaragua and Peru also featured among the top 30 citizenships of origin, lodging more than 6,000 applications each in 2019, and at least doubling in number since 2018. The rate of positive decisions issued for applicants from visa free countries was also low: for example, for the countries of the Western Balkans, the rate ranged from 1% for North Macedonians to 6% for Albanians and for Eastern Partnership applicants from 1% for Moldovans to 8% for Ukrainians.



Figure 2.1 (f): Share of visa-free countries of the total first time asylum applications Source: DG HOME based on Eurostat data. Western Mediterranean includes Spain, Central Mediterranean includes Italy and Malta, while Eastern Mediterranean includes Bulgaria, Cyprus and Greece 2.2 Migrants saved in search and rescue operations Migrants disembarked further to SAR operations have represented a significant share of total irregular arrivals over the past years also due to the fact that most of the neighbouring countries at the Southern rim of the Mediterranean Sea - notably Libya - cannot be considered as offering adequate ports of safety in legal terms. The share was 64% in 2016 (233,158), decreasing to 52% in 2019 (54,823). The decrease corresponds to the overall decrease of 71% in irregular arrivals by sea, from 365,293 in 2016 to 106,236 in 2019, along the three main migratory routes. The scale of SAR activities over the past 5 years has been most significant in the Central Mediterranean, although this route is also subject to high fluctuations ranging from over 170,000 persons disembarked following SAR in 2016 to less than 7,000 in 2019. Figures for the first 8 months of 2020, however, also mark a rising trend in the Central Mediterranean, with close to 5,000 persons disembarked in Italy and Malta after SAR events. This is true also for the Eastern and Western Mediterranean, albeit the overall figures remain lower. Table 2.2: Number of migrants rescued in SAR cases, 2016-2019 Year Total number of rescued migrants in SAR cases Irregular arrivals to EU 28 by sea – three main migratory routes 2016 233,158 365,293 2017 146,168 175,667 2018 89,406 113,642 2019 54,823 106,236 Source: EBCGA SAR activities arise further to international obligations of Member States, including as defined in the International Convention on Maritime Search and Rescue adopted in Hamburg, Germany on 27 April 1979. The nature, profile, and scale of arrivals further to SAR operations have a direct impact on the EU’s migration and asylum systems, as well as on integrated border management, due to the fact that Member States cannot apply to SAR disembarkations the same tools as for irregular crossings by land. For instance, there are no official border checks for SAR arrivals, which not only means that points of entry are more difficult to define, but also that third-country nationals have no points where to officially seek entry. Upon Member States’ request, since January 2019, the Commission has been actively coordinating the operational aspects of ad hoc relocation exercises, which have also helped facilitating disembarkations. The fact that Member States have participated voluntarily to these exercises is the reflection of their willingness to coordinate among each other and to ensure more solidarity. However, the current situation also demonstrates limitations stemming from the lack of a structured approach. Current exercises of coordination to relocate persons disembarked suffers from a voluntary boat-by-boat approach where Member States do not indicate in advance their contributions to solidarity and where few Member States offer contributions. This creates difficulties which would be overcome by a more predictable system to allow for the Commission to ensure a smoother process of relocation. In addition the current lack of voluntary contributions by a majority of Member States is also an issue that needs to be addressed. 2.3 Return

Every year, between 400,000 and 500,000 foreign nationals are ordered to leave the EU because they have entered or are staying irregularly. However, on average only one third of them goes back to their home country or to another third-country through which they travelled to the EU. Eurostat data shows that, although the number of third-country nationals found to be irregularly present in the EU has significantly decreased by 70% from 2015 (2,155,485) to 2018 (650,175), the number of third-country nationals having been issued a return decision has only very slightly decreased in comparison (528,645 in 2015 and 513,470 in 2019, representing a 3% decrease). Furthermore, in 2015 the number of third-country nationals returned after having been issued a return decision amounted to 196,190, whereas in 2019 it amounted to 161,755, representing a decrease of 18%. This shows that the increased caseload for Member States’ return systems, and the consequent incapability to deal with a higher number of (often-complex) return cases, has a negative impact on the return rate. Furthermore, knowing a return decision is unlikely to be carried out forcibly, the subjects of the decision tend to be less prone to return voluntarily. The graphs below show that despite significant financial and political efforts and the implementation of action plans, the return rate remains low and for some third countries has even decreased between 2016 and 2019. Figure 2.3 (a): Comparison of return rate between 2016 and 2019 for selected third countries Source: DG HOME based on Eurostat Figure 2.3 (b): Evolution of the return rate 2008-2019 (EU-28) Source: DG HOME based on Eurostat data Figure 2.3 (c): Irregular arrivals, third-country nationals issued a return decision and third-country nationals returned after having been issued a return decision Source: DG HOME based on EBCGA and Eurostat data Furthermore, it is important to note that return rates from Member States to the same third country can differ substantially, as is clear from the graph below. There is a variety of factors that can help explain the divergence in return rates to the same third country. This includes bilateral relations, availability of embassies or consulates, national (political) context in Member States and differences in return systems and procedures. The divergence in return rates shows that there is room for mutual learning and coordination dialogue between Member States and for further research into these differences. The Commission and the EBCGA are engaged and actively promote cooperation and dialogue between Member States in various forums on this topic.

Figure 2.3 (d): Return rates from EU Member States to selected third countries Source: DG HOME based on EASO data 2.4 Hotspots: Increased support to Member States Identified under the 2015 European Agenda on Migration, and further defined in the Regulation on the EBCG, hotspots were established as an operational model to bring integrated support to key locations at the EU’s external borders, in Member States disproportionately impacted by large migratory flows – notably Greece and Italy – upon their request and with their agreement. Operationally speaking, hotspots allow for cooperation among national authorities, European agencies and international and non-governmental organisations, in implementing identification, registration, fingerprinting, screening and debriefing procedures for large numbers of migrants upon their first arrival in the EU. From a structural point of view, a hotspot is a designated area, usually in proximity of a landing place, where the above-mentioned procedures and very first accommodation are provided. Five hotspots are operational in Greece and four in Italy. Through the hotspots in Greece, the EU has provided extensive funding and technical support, effectively contributing to increasing reception capacity, upgrading infrastructure, delivering cleaning services and non-food items, reinforcing medical care and accelerating asylum procedures on the islands. However, the partially ineffective legal framework and the significant increase in arrivals to the Greek islands in the second half of 2019, has had an adverse impact on the Greek system, which, despite the improvements registered over the last 4 years, was still not crisis-resilient. This has led to an overcrowding of the Greek hotspots, which, by the end of 2019, hosted more than 38,000 people in the Reception and Identification Centres (RICs), whose nominal capacity is 6,178 places.

Furthermore, the lack of sufficient reception capacity in the mainland and the limited number of medical staff necessary for the vulnerability assessment, the increased arrivals in Greece resulted in the deterioration of living conditions, major delays in the asylum procedure and very slow pace of returns from the islands under the EU-Turkey Statement. This experience has not only shown the key role of adequate resources, administrative capacity and effective coordination of all actors on the ground to ensure the correct implementation of existing rules, but also the necessity of improvements to the legal framework. On this basis, a new law on international protection entered into force in Greece in January 2020, aiming to make the asylum procedure more efficient and increasing returns. During the peak of sea arrivals to Italy between 2015 and mid-2018, migrants rescued at sea or autonomously arriving by boat were not only channelled through hotspots, but also through a series of ports functioning like hotspots. This was due to the fact that the capacity of the Italian hotspots during those years was never enough to channel more than 1/3 of all arriving migrants, which limited tangibly their operational added value, notably in terms of systematic registration, identification and fingerprinting. Nevertheless, the considerable reduction in arrivals over the past 2 years has led to a significantly improved functioning in the Italian hotspots, with migrants generally spending less than the standard 72 hours for their registration and transfer to other reception structures. Moreover, in 2019 less than 50% of arrivals were channelled through the hotspots, with the majority of autonomous landings being dealt with by national law enforcement authorities. In this context, in order to ensure high levels of registration, fingerprinting and access to procedures, it is key that the hotspot approach is applied consistently as a working method, even when migrants do not physically pass through the hotspots. The Commission, together with relevant agencies, continues to support Italy in updating arrivals procedures and their follow up. Hotspots can be helpful in ensuring the systematic identification, registration and fingerprinting of migrants, checking data against relevant security databases, and channelling migrants to the asylum or return procedure, as relevant. However, it is also evident that the hotspot approach needs to be complemented by appropriate and efficient follow-up procedures, i.e. national asylum application, relocation to another Member State or return. Unfortunately, the implementation of these procedures is often slow and subject to various bottlenecks, which can have repercussions on the functioning of the hotspots. Finally, the hotspots experience has also shown that flexibility in terms of the type and scale of support provided in a given country is essential, alongside combined internal and external action, solidarity and synergies among EU and national actors. 2.5 Key developments on resettlement Resettlement continues to be a safe and legal alternative to irregular and dangerous journeys for refugees, and a demonstration of European solidarity with non-EU countries hosting large numbers of persons fleeing war or persecution. Since 2015, 70,000 persons in need of protection have been resettled in the EU in the framework of EU-sponsored resettlement schemes. Member States have responded to the Commission’s call to continue resettling in 2020 by pledging almost 30,000 resettlement places for 2020. This confirms Member States’ continued commitment to resettlement as a safe and legal pathway into the EU. 3. THE CHALLENGES FACED BY THE EU Given the current migration situation, this chapter describes the resulting challenges faced by the EU: the lack of an integrated approach to the implementation of European asylum and migration policy; inefficiencies in national migration and asylum management systems and lack of harmonisation at EU level; absence of a broader mechanism for solidarity reflecting the migratory flows; inefficiencies in the Dublin system; and the lack of targeted mechanisms to address extreme crisis situations.

A sustainable system, which works for all Member States, has not been put in place so as to ensure immediate and real reactivity to external factors, including, or especially so, in times of crisis. There is no structured solidarity mechanism in the current Dublin system or in the CEAS in general, whereas the pressure on individual Member States can vary greatly, especially when that pressure is measured against total population or GDP. 3.1 Lack of an integrated approach at European level The EU Agencies, such as EASO and the European Border and Coast Guard (EBCG) Agency, play a key role in supporting EU Institutions, Member States and other bodies regarding the further development of the CEAS, and overseeing the effective functioning of border control at the EU external borders. EASO specifically provides permanent, special or emergency support – addressing situations where asylum and reception systems are under particular pressure. Frontex provides technical and operational assistance to Member States to support the border protection and assist them in returns. It also supports, as part of the European Border and Coast Guard, for the effective implementation of European integrated border management. Among the existing funding programmes, the Asylum, Migration and Integration Fund (AMIF) promotes the efficient management of migration flows and the implementation, strengthening and development of a common Union approach to asylum and immigration. With a EUR 3.31 billion initial allocation for 2014-2020, its budget has been increased to over EUR 6.6 billion. The Internal Security Fund (ISF), with a total of EUR 3.8 billion for seven years, supports the implementation of the Internal Security Strategy, law enforcement cooperation and the management of the Union's external borders. However, the EU Agencies’ support and the funding instruments alone do not provide a sufficient response to structured solidarity and responsibility needs. Despite significantly increased cooperation in the implementation of the EU’s common migration and asylum systems, significant structural weaknesses and shortcomings still exist. Member States’ asylum and return systems operate mostly separately, creating inefficiencies and encouraging the movement of migrants across Europe. There is a lack of coordination and streamlining at all stages of the migration management process, from the arrival to the processing of asylum requests, provision of reception conditions and handling of returns. Member States are exposed to different types and degrees of migration pressure, which might have an impact on one or several aspects of their asylum and migration systems. Migratory pressure might mean having to run more efficient asylum procedures, in terms of staff, for example, or ensuring sufficient reception capacity, also taking into account vulnerable applicants and limiting backlogs in asylum authority decisions. The lack of an integrated approach leads to an unlevel playing field across Member States, which subsequently hampers efforts to ensure a fair and swift process that guarantees access to procedures, equal treatment, clarity and legal certainty. At the same time, it reduces the capacity to return people who do not qualify for international protection, by increasing obstacles within the EU and to third countries’ cooperation on readmission. The lack of an integrated approach is also manifested in Member States lacking sufficient preparedness and contingency plans in order to ensure sufficient capacity in case they are confronted with increased or rapidly changing migration pressure. Alternatively, where it exists, contingency planning is fragmented and lacking of the necessary structures to coordinate an efficient response of national authorities responsible for asylum and migration management. Furthermore, there are challenges related to the lack of harmonisation at the EU level in the implementation of CEAS rules. According to the 2016 Communication outlining the European Commission approach to the reform of the CEAS: ‘there [were] significant structural weaknesses and shortcomings in the design and implementation of the European asylum and migration policy’. The political impasse on the reform package, and the changes occurring in the nature and composition of the flows, highlighted other different weaknesses related to the lack of harmonisation at EU level. It became apparent that there are no harmonised rules for arrivals, nor screening and there are loopholes between the asylum and return procedures as well. 3.1.1 Challenges of the return and asylum nexus The low EU average recognition rate (30% in 2019 in the EU-27) makes strengthening the links between asylum and return procedures of vital importance for the proper management of migration in the EU. Many rejected asylum applicants, representing around 370,000 people in the EU every year, need to be channelled into the return procedure. According to the statistics available to the Commission, this represents around 80% of the total number of return decisions issued every year. The low recognition rate therefore significantly contributes to the overall high return caseload and an increasing strain on return systems. Member States regularly report to the Commission that they face a significant burden in dealing with unfounded, inadmissible or fraudulent asylum applicants who, through the use of procedural and legal loopholes in the national asylum systems, are able to delay or prevent their return. These loopholes relate, for instance, to the issuance of return decisions to rejected asylum seekers, the separation of the appeals procedures for asylum and return, the rules applicable in case of subsequent asylum applications and notably those made during the last stages of return procedure. The existence of these loopholes facilitates absconding and hampers returns, putting a heavy burden on national administrative and judicial systems.

Separate return and negative asylum decisions Part of the problem is that in some Member States asylum and return decisions are not issued together. A significant share of Member States (16) do not issue return decisions together with rejected asylum applications. It is observed that in several Member States, third-country nationals first appeal the negative asylum decision and will then lodge an appeal against the return decision once the proceedings on the negative asylum decision will have been concluded. However, since the finalisation of appeals can take months, if not years, this facilitates the absconding of irregular migrants and lead to significant and unnecessary delays in return procedures and unauthorised movements within the Schengen area. This situation is further exacerbated by significant gaps, in certain Member States, in the timely transmission of information about the case from asylum to return authorities. There are clear indications, mostly collected through the assessment of the national r