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]
Date: 2020-09-23
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, asylum seeker, border control, foreign national, migration control, return migration, right of asylum, search and rescue, stateless person, third country

EN 

  EN 

   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 ............................................................................................................................... 4 

List of abbreviations ........................................................................................................................... 16 

List of figures ....................................................................................................................................... 17 

1. INTRODUCTION ........................................................................................................................... 18 

1.1 Political context ............................................................................................................................. 18 

1.2 Persistent pressure on Member States’ external borders and asylum systems ....................... 20 

1.3 Deficiencies in the current asylum and return systems ............................................................. 21 

1.4 Consultations with European Parliament, Member States and civil society ........................... 23 

2. THE CURRENT MIGRATION SITUATION ............................................................................. 28 

2.1 Changing composition of migratory flows and differences according to migratory route .... 28 

2.2 Migrants saved in search and rescue operations ........................................................................ 35 

2.3 Return ............................................................................................................................................ 36 

2.4 Hotspots: Increased support to Member States ......................................................................... 39 

2.5 Key developments on resettlement .............................................................................................. 41 

3. THE CHALLENGES FACED BY THE EU ................................................................................ 41 

3.1 Lack of an integrated approach at European level .................................................................... 41 

3.1.1 Challenges of the return and asylum nexus ......................................................................... 42 

3.1.2 Limited use of assisted voluntary return programmes ......................................................... 46 

3.1.3 Lack of streamlined procedures upon arrival ...................................................................... 47 

3.1.4 Delays in accessing the appropriate asylum procedure and slow processing of applications .... 48 

3.1.5 Difficulty in using the border procedure .............................................................................. 49 

3.2 Absence of a broad and flexible mechanism for solidarity ....................................................... 50 

3.3 Inefficiencies in the Dublin system .............................................................................................. 53 

Evaluation of the implementation of the Dublin III Regulation ..................................................... 53 

3.3.1 Lack of a sustainable sharing of responsibility under the current system ........................... 58 

3.3.2 Current rules on the shift of responsibility contribute to unauthorised movements ............ 59 

3.3.3 Inefficient data processing ................................................................................................... 59 

3.3.4 Procedural inefficiencies of the Dublin system create an administrative burden ............... 62 

3.4 Lack of targeted mechanisms to address crisis situations ......................................................... 63 

3.5 Lack of a fair and effective system for migrants and asylum seekers to access their rights .. 64 

4.  THE 2016 PROPOSALS TO REFORM THE COMMON EUROPEAN ASYLUM SYSTEM ........... 65 

4.1 Towards a reform of the Common European Asylum System: the proposals recommended 
for quick adoption ............................................................................................................................... 65 

4.2 A stronger and more effective European return policy ............................................................. 67 

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4.3 Outstanding challenges ................................................................................................................. 67 

5. ADDRESSING THE CHALLENGES .......................................................................................... 70 

5.1 A more efficient, seamless and harmonised migration management system ........................... 70 

5.1.1 A comprehensive approach for efficient asylum management ............................................. 70 

5.1.2 A coordinated, effective and rapid screening phase ............................................................ 71 

5.1.3 A seamless asylum-return procedure and an easier use of accelerated and border 
procedures ..................................................................................................................................... 72 

5.2 A fairer and more comprehensive approach to solidarity ........................................................ 74 

5.2.1 A new approach to solidarity ............................................................................................... 74 

5.2.2 Addressing specific situations under the new approach to solidarity .................................. 76 

5.2.3 Contingency planning .......................................................................................................... 77 

5.3 Simplified and more efficient rules for robust migration management ................................... 78 

5.3.1 A wider and fairer definition of responsibility criteria ........................................................ 78 

5.3.2. Reducing cessation and shift of responsibility .................................................................... 78 

5.3.3 More efficient data collection and processing ..................................................................... 78 

5.3.4 Improved procedural efficiency ........................................................................................... 81 

5.4 Targeted procedures and mechanisms to address extreme crisis situations and situations of 
force majeure........................................................................................................................................ 82 

5.5 A fairer and more effective system to reinforce migrants and asylum seekers’ rights ........... 84 

5.6 Other initiatives and measures under the New Pact on Migration and Asylum ..................... 87 

5.6.1 Resettlement Recommendation ............................................................................................ 87 

5.6.2 A comprehensive operational tool to improve case management in return, readmission and 
reintegration procedures............................................................................................................... 87 

5.6.3 A Sustainable Return and Reintegration Strategy ............................................................... 87 

5.6.4 Engaging with third countries willing to cooperate on readmission ................................... 88 

5.6.5 Structured high-level cooperation on return and readmission ............................................ 88 

6. MONITORING and EVALUATION ............................................................................................ 89 

6.1 Proposal for a Regulation on Asylum and Migration Management ............................................... 89 

6.2 The amended Proposal for a Regulation on establishing a common procedure for international 
protection in the Union (“Asylum procedures regulation”) ................................................................. 92 

6.3 The amended Proposal for a Regulation on Proposal for a Regulation on the establishment of 
'Eurodac' ............................................................................................................................................... 93 

6.4 Proposal for a Regulation addressing situations of crisis and force majeure in the field of 
migration and asylum ........................................................................................................................... 94 

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 ............................................................................................................................................... 95 

Reporting obligations .......................................................................................................................... 95 

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6.6 The role of the European Union Agency for Asylum ...................................................................... 96 

ANNEX: Data protection-relevant elements in Eurodac ................................................................ 98 

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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 

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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 

5 

 
 
 
 
 
 
 
 
 
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 Decisions1 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 

1 Council Decisions (EU) 2015/1523 and 2015/1601 of 14 and 22 September 2015 respectively on establishing 
provisional  measures in the area of international protection for the benefit of Italy and of Greece entered into 
force  on  16  September  and  25  September  2015  respectively  (hereafter  ‘Council  Decisions  on  Relocation’  or 
‘Council  Decisions’).  By  virtue  of  the  Council  Decisions  on  Relocation  Member  States  have  an  obligation  to 
relocate from Italy and Greece the number of persons allocated to them agreed in the Resolution of 20 July 2015 
of the Representatives of the Governments of the Member States meeting in Council and as per Annexes I and II 
to Council Decision (EU) 2015/1601. The Council Decisions are binding on all EU Member States, except on 
DK and the UK. 

6 

 
 
 
 
 
 
 
                                                           
 
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.  

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 (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-refoulement2. 
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 

2 Principle of international law. Ensuring that nobody is sent back to persecution.  

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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 

9 

 
 
 
 
 
 
 
 
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.  

10 

 
 
 
 
 
 
 
 
 
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 

11 

 
 
 
 
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 

12 

 
 
 
 
 
 
 
 
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 

13 

 
 
 
 
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, 

14 

 
 
 
 
 
 
 
 
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. 

15 

 
 
 
 
 
 
 
 
 
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  

16 

 
 
 
 
 
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

17 

 
 
 
 
 
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.  

1.1 Political context  

The  2016  asylum  reform  consisted  of  seven  legislative  proposals:  the  recast  Dublin 
Regulation3,  the  recast  Eurodac  Regulation4,  the  Regulation  establishing  the  European 
Union Agency for Asylum5, the Asylum Procedure Regulation6, the Qualification Regulation7, 
the  recast  Reception  Conditions  Directive8  and  the  Union  Resettlement  Framework 
Regulation9.  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 

3 COM(2016) 270 final. 
4 COM(2016) 272 final.   
5 COM(2016) 271 final.   
6 COM(2016) 467 final. 
7 COM(2016) 466 final. 
8 COM(2016) 465 final. 
9 COM(2016) 468 final. 

18 

 
 
 
 
                                                           
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. 

In addition, recent events such as the COVID-19 pandemic highlighted the need for the EU to 
be prepared to address situations of force majeure and broader crises, which have an impact 
on migration and asylum management systems. The COVID-19 outbreak also highlighted the 
social and economic vulnerability of extra-EU workers10, as well as their crucial contribution 
to  Europe's  coronavirus  response.  11  In  such  contexts,  it  is  essential  to  preserve  free 
movement  in  the  Schengen  area,  the  functioning  of  asylum  and  return  systems  and  the 
openness of some legal pathways (e.g. for seasonal workers, for instance, in the agricultural 
sector12). All whilst ensuring that all relevant health safeguards are in place and that crises are 
managed in full respect of basic rights for all. 

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  Directive13,  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)14, 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 return15 will ensure a better monitoring of 
return  decisions’  enforcement  across  the  EU  and  facilitate  return  decisions’  mutual 
recognition. 

10 A Vulnerable Workforce: Migrant Workers in the COVID-19 Pandemic, KCMD, 2020, available at: 
https://publications.jrc.ec.europa.eu/repository/handle/JRC120730. 
11 Immigrant Key Workers: Their Contribution to Europe's COVID-19 Response, KCMD, 2020, available at: 
https://ec.europa.eu/knowledge4policy/publication/immigrant-key-workers-their-contribution-europes-covid-19-
response_en. 
12 Meeting labour demand in agriculture in times of COVID 19 pandemic, KCMD, 2020, available at: 
https://ec.europa.eu/jrc/en/publication/annual-reports/meeting-labour-demand-agriculture-times-covid-19-
pandemic.  
13 COM(2018) 634. 
14 Regulation (EU) 2019/1896 on the European Border and Coast Guard and repealing Regulations (EU) No 
1052/2013 and (EU) 2016/1624, OJ L 295, 14.11.2019, p. 1. 
15 Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use 
of  the  Schengen  Information  System  for  the  return  of  illegally  staying  third-country  nationals,  OJ  L  312, 
7.12.2018, p. 1. 

19 

 
 
 
 
                                                           
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  place16;  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  rate17  in  2019  for  first  time  applications 
was just 30%18 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  applicants19  and  63,565  were  repeated 
applications. 

16  Readmission  agreements:  Hong  Kong,  Macao,  Sri  Lanka,  Albania,  Russian  Federation,  Ukraine,  North 
Macedonia,  Bosnia  and  Herzegovina,  Montenegro,  Serbia,  Moldova, Pakistan,  Georgia,  Armenia,  Azerbaijan, 
Turkey,  Cape  Verde,  Belarus;  arrangements:  Afghanistan,  Guinea,  Bangladesh,  Ethiopia,  The  Gambia,  Ivory 
Coast. 
17  For  the  purposes  of  this  paper,  recognition  rate  is  meant  as  the  share  of  positive  decisions  at  first  instance 
resulting  in  the  granting  of  refugee  status  or  subsidiary  protection  status  over  the  total  number  of  asylum 
decisions at first instance. 
18 Eurostat online data code: migr_asydcfsta 
19 First-time applicants in a given country. 

20 

 
 
 
 
 
 
                                                           
Figure 1.2: First-time and repeated asylum applications in the EU-27 

Asylum applications in the EU-27 

1.400.000

1.200.000

1.000.000

800.000

600.000

400.000

200.000

0
2008

2009

2010

2011

2012

First time
2013

2014

Repeated
2015

2016

2017

2018

2019

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 202020, 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  

important  structural  weaknesses  and  shortcomings 

There  are 
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 

20  EASO,  Latest  Asylum  Trends  January  2020,  available  at:  https://www.easo.europa.eu/latest-asylum-trends. 
While use EASO figures here, Eurostat data are slightly different: according to Eurostat, it was 842,490 in EU-
27 and 898,675 in EU-28 (end of January 2020 also available: 842,785 in EU-27, 891,820 in EU-28 

21 

 
 
 
                                                           
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  absconding21.  A  study  of  the  European 
Migration  Network  shows22  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 States23. 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 

2018. 

States, 

21  A  significant  number  of  Member  States  (15)  considers  the  risk  of  absconding  one  of  the  main  challenges 
linked  to  voluntary  departure.  Source:  European  Migration  Network  Study,  The  effectiveness  of  return  in  EU 
Member 
https://ec.europa.eu/home-
Available 
affairs/sites/homeaffairs/files/00_eu_return_study_synthesis_report_final_en.pdf 
22 European Migration Network Study, The effectiveness of return in EU Member States, 2018. Available at: 
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/00_eu_return_study_synthesis_report_final_en.pdf 
23 Generally, it seems that irregular migrants tend to abscond early on in the process (e.g. following a negative 
asylum decision, or during the period for voluntary departure following the issuing of a return decision) when in  
Member States that are considered ‘transit countries’, and much later (e.g. when final appeal is rejected, or when 
flight  details  are  shared  with  third  country  nationals)  when  in  Member  States  that  are  considered  ‘destination 
countries’. Although reliable data on absconding is not available, during the interviews it appeared that the rate 
of absconding can be estimated at around 30% in some Member States. 

at: 

22 

 
 
 
                                                           
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.24   

24 https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf  

23 

 
 
 
 
                                                           
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  regulation25.  The  Commission  kept  the  LIBE  Committee26  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 

25  EPRS,  European  Implementation  Assessment:  Dublin  Regulation  on  international  protection  applications, 
February 2020. 
26  Briefing  of  23  April  2020,  “The  Impact  of  Covid-19  Measures  on  Democracy,  the  Rule  of  Law  and 
Fundamental  Rights  in  the  EU”,  prepared  by  the  Policy  Department  for  Citizens’  Rights  and  Constitutional 
Affairs upon request of the LIBE committee Monitoring Group on Democracy, Rule of Law and Fundamental 
Rights.  It  focuses  on  the  measures  adopted  by  EU  Member  States  to  fight  Covid-19  and  their  impact  on 
democracy, the rule of law and fundamental rights in the EU. 

24 

 
 
                                                           
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  1927  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 
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 

in 

27 https://ec.europa.eu/commission/commissioners/2019-2024/johansson/announcements/statement-following-
meeting-social-partners-and-civil-society-role-migrants-economic-recovery_en  

25 

 
 
 
                                                           
Children  in  Migration28.  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 
authorities29,  non-governmental  and  international  organisations,  such  as  the  United  Nations 
High Commissioner for Refugees (UNHCR)30, the International Organization for Migration 
(IOM)31,  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 
operation32. 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  mechanism33.  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 
ports34.  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 level35. 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 rights36.   

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 

28  The  Initiative  for  Children  in  Migration  called  for  a  common  approach  to  address  the  issue  of  missing 
(unaccompanied and separated) children, to establish effective mechanisms to tackle the risks of trafficking, and 
the adoption of child-specific standards for asylum procedures. 
29  For  example,  Berlin  Action  Plan  on  a  new  European  Asylum  Policy,  25  November  2019,  signed  by  33 
organisations and municipalities. 
30  UNHCR  Recommendations  for  the  European  Commission’s  proposed  Pact  on  Migration  and  Asylum, 
January 2020. 
31 IOM Recommendations for the new European Union Pact on Migration and Asylum, February 2020.  
32 See also IOM-UNHCR Proposal to the European Union for a Regional Cooperative Arrangement Ensuring 
Predictable Disembarkation and Subsequent Processing of Persons Rescued at Sea, June 2020.  
33 CEPS Project Report, Search and rescue, disembarkation and relocation arrangements in the Mediterranean. 
Sailing Away from Responsibility?, June 2019. 
34 ECRE, Relying on relocation: ECRE’s proposal for a predictable and fair relocation arrangement following 
disembarkation, January 2019. 
35  EUI  Policy  Brief,  Migration  policy  scoreboard:  A  Monitoring  Mechanism  for  EU  Asylum  and  Migration 
policy, March 2020. 
36 Advocacy Letter, An emergency which knows no borders - Europe must lead by example and ‘leave no one 
behind’, 7 May 2020. Available at: https://www.refugeesinternational.org/reports/2020/5/8/call-for-the-eu-to-
protect-displaced-people-during-the-covid-19-crisis  

26 

 
 
 
                                                           
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 Network37 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  Demography38,  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 
Migration39.   

Feedback  received  following  the  publication  of  Roadmap  on  the  New  Pact  on  Migration 
and Asylum 

The preparation of the Commission’s initiatives under the New Pact has also benefitted from 
the feedback received following the publication of Roadmap on the New Pact on Migration 
and Asylum. The Roadmap was available for stakeholders’ comments on the Commission’s 
‘Have your say’ portal between 30 July and 27 August 2020. It generated in total 1829 replies 
from 1753 unique respondents.40 Out of these 1753 unique respondents, 1657 were citizens, 
fifty  were  organisations,  six  were  public  administrations  and  forty  fell  under  the  ‘other’ 
category.  The  vast  majority  of  respondents  came  from  Germany  followed  by  Estonia, 
Austria, Hungary, Sweden, Belgium, the Netherlands, France, Italy and the United Kingdom 
(see graph 1.3 below).41  

37 All studies and reports of the European Migration Network are available at: https://ec.europa.eu/home-
affairs/what-we-do/networks/european_migration_network_en  
38  All  studies  and  reports  of  the  Knowledge  Centre  for  Migration  and  Demography  (KCMD)  of  the  Joint 
Research Centre are available at:  https://ec.europa.eu/knowledge4policy/migration-demography_en.   
39 The KCMD Atlas on Migration is available at: https://ec.europa.eu/knowledge4policy/atlas-migration_en.  
40 Individual responses can be visited here:  
https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12544-New-Pact-on-Migration-and-
Asylum/feedback?p_id=8267580  
41  Germany  (1205  EU  citizens,  9  non-EU  citizens,  3  NGOs,  2  academic  research  institutes,  2  companies,  27 
other respondents), followed by Estonia (165 EU citizens), Austria (101 EU citizens), Hungary (50 EU citizens), 
Sweden (35 EU citizens), Belgium (23 NGOs, 2 other respondents), the Netherlands (14 EU citizens, 4 NGOs), 
France (13 EU citizens, 1 academic research institute, 1 other respondent), Italy (13 EU citizens, 1 NGO) and 
the United Kingdom (5 EU citizens, 5 NGOs). 

27 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
Figure 1.3: Breakdown of respondents to the 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  replies42.  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  2019,43  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 

42 898 neutral, 749 negative, 42 positive and 41 mixed replies  
43 EBCGA data. 

28 

 
 
 
 
 
 
                                                           
Algeria44. 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 rates45 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%46.  Still in 2019, the EU-wide first instance recognition rate fell to 30% from its 
peak of 56% in 2016.  

44  On  the  Western  Mediterranean  route,  EBCGA  reported  more  than  half  of  migrants  as  ‘unspecified  sub-
Saharan nationals’ in 2019. 
45 At first instance. 
46 DG HOME calculation based on EBCGA data. 

29 

 
 
 
 
 
 
 
 
 
                                                           
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 route47 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.48  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. 

47 Western Mediterranean route refers to Spanish land and sea borders, including Canary Islands. 
48  European  Commission 
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-
migration/20200318_managing-migration-eu-turkey-statement-4-years-on_en.pdf 

report  on 

the  EU-Turkey  Statement,  March  2020.  Available  at: 

30 

 
 
 
 
 
 
 
                                                           
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) 

EU 

100%

80%

60%

40%

20%

0%

2014

2015

2016

2017

2018

2019Q1-Q3

Share of IBC from countries with RR<25%

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.  

31 

 
 
 
 
 
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  applications49  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.50  

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%) 
(Eurostat51). 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).  

49  According  to  Eurostat,  ‘First  time  asylum  applicant’  means  a  person  having  submitted  an  application  for 
international protection for the first time. The term ‘first time’ implies no time limits and therefore a person can 
be  recorded  as  a  first  time  applicant  only  if  he  or  she  had  never  applied  for  international  protection  in  the 
reporting country in the past, irrespective of the fact that he or she is found to have applied in another Member 
State of the European Union.  
50 Source: Eurostat and EBCGA. 
51 
https://ec.europa.eu/eurostat/documents/2995521/10554400/3-20032020-AP-EN.pdf/6ee052a9-ffb8-d170-e994-
9d5107def1a8 

Available 

Eurostat 

Release 

Source: 

March 

News 

2020. 

20 

of 

at:  

32 

 
 
 
                                                           
Figure 2.1 (e): Irregular arrivals via the three main routes and asylum applications at EU level 2016-
201952 

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 movements53; 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  applications54  from  citizens  of  visa-free  countries,  who 

52  While  the  graph  shows  the  number  of  applications  on  the  three  main  routes,  it  is  important  to  note  the 
considerable  impact  of  onward  movement  towards  the  northwest  of  the  EU  on  the  overall  number  of 
applications. 
53  Secondary  movements  cannot  be  exactly  quantified,  as  there  is  for  the  moment  no  one  single  indicator  for 
measuring  this  phenomenon.  Proxy  indicators  are  used  to  measure  the  extent  of  secondary  movements  in  the 
direction of the northwest of the EU and there are no publicly available reports to demonstrate the exact scope of 
the phenomenon. 
54  According  to  Eurostat,  ‘First  time  asylum  applicant’  means  a  person  having  submitted  an  application  for 
international protection for the first time. The term 'first time' implies no time limits and therefore a person can 
be recorded as first time applicant only if he or she had never applied for international protection in the reporting 

33 

 
 
 
 
 
                                                           
 
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  Venezuela55  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.  

country in the past, irrespective of the fact that he or she is found to have applied in another Member State of the 
European Union. 
55 https://www.easo.europa.eu/information-analysis  

34 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                                                     
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 

Total  number  of  rescued 
migrants in SAR cases 

233,158 
146,168 
89,406 
54,823 

Irregular  arrivals  to  EU 
28  by  sea  –  three  main 
migratory routes 
365,293 
175,667 
113,642 
106,236 

Year 

2016 
2017 
2018 
2019 

Source: EBCGA 

35 

 
 
 
 
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.  

36 

 
 
 
 
 
 
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) 

50%

45%

40%

35%

30%

25%

20%

15%

10%

5%

0%

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

2019

Source: DG HOME based on Eurostat data 

37 

 
 
 
 
 
 
 
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 

2.000.000

1.800.000

1.600.000

1.400.000

1.200.000

1.000.000

800.000

600.000

400.000

200.000

0

2015

2016

2017

2018

2019

Illegal border crossings

Ordered to leave

Returned to third country

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. 

38 

 
 
 
 
 
 
 
 
 
 
 
 
 
Figure 2.3 (d): Return rates from EU Member States to selected third countries 

120%

100%

80%

60%

40%

20%

0%

e
t
a
r
n
r
u
t
e
R

-20%

xxxx 

AT
FR
MT

BE
DE
NL

BG
EL
PL

HR
HU
PT

CY
IE
RO

CZ
IT
SK

DK
LV
SI

EE
LT
ES

FI
LU
SE

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.  

international  and  non-governmental  organisations, 

Operationally speaking, hotspots allow for cooperation among national authorities, European 
implementing 
agencies  and 
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.  

in 

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, 

39 

 
 
 
 
 
 
 
 
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 Statement56.  

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  hotspots57,  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 hotspots58. 

56 This is also due to the fact that the Statement does not provide for returns from mainland Greece to Turkey. 
57  In  2019  47%  (5,384)  migrants  were  channelled  through  the  four  existing  hotspots  (Lampedusa,  Messina, 
Pozzallo and Taranto), including 3,725 that arrived at Lampedusa. 
58 In 2017 the European Court of Auditors has recognised the value-added of the hotspots approach and made 
recommendations  to  improve  its  functioning,  in  particular  as  regards  reception  capacity  (Special  Report 
06/2017).  A  second  report  from  2019  (special  Report  24/2019)  has  acknowledged  improvements  made 
including  by  addressing  previous  recommendations,  while  outlining  persisting  deficiencies  and  issuing  new 
recommendations for future action. 

40 

 
 
 
 
 
 
 
 
                                                           
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 

41 

 
 
 
 
 
 
 
 
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 

42 

 
 
 
 
 
 
people in the EU every year59, 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  year60.  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  States61  (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  return 
systems  through  Schengen  evaluations,  that  weak  links  between  asylum  and  return 
procedures negatively affect the capacity of Member States to perform returns.  

Having separate decisions on asylum and return increases the legal possibilities for applicants 
to  hamper  their  return,  for  instance  by  increasing  the  duration  of  legal  proceedings  by 
appealing, as  allowed by national  laws,  both  decisions at  separate times.  In practical  terms, 
this means that first a rejected asylum seeker will have the possibility to lodge an appeal at 
several appellate levels. Once the decision becomes final, the return decision is issued, which 
the  irregular  migrant  will  be  able  to  challenge  also  at  several  levels  of  appeal.  In  the 
meantime,  irregular  migrants  have  the  possibility  to  abscond  in  order  to  avoid  return 
procedures. 

59 The average of negative asylum decisions at first instance in 2015-2018 in the EU-27. 
60  The  ratio  between  the  average  number  of  negative  asylum  decisions  and  the  average  number  of  return 
decisions issued in the period 2015-2018 (447.982,5) is 89.2% of the total number of return decisions issued. 
61 BE, BG, CY, CZ, EE, FR, EL, IT, LV, MT, PL, PT, RO, SK, SI, ES 

43 

 
 
 
                                                           
Furthermore, appeals to asylum and return related decisions require significant administrative 
capacity  and  time  from  –  often  already  overstrained  –  authorities  and  courts.  Having  a 
multiplicity  of  decisions  and  possible  appeals  per  third-country  national  also  multiplies  the 
burden on these institutions, which risks causing delays.  

Moreover, the return rate of countries where return decisions are issued in the same legal act 
as  negative  asylum  decisions  tend  to  have  higher  levels  of  return  efficiency  compared  to 
countries that have separate systems. 

Figure 3.1.1: Return rate per Member State (EU28) 

88% 

87% 

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97% 

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53% 

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19% 

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49% 

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100%

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Source: Eurostat 

The above  graph shows that ten Member States (BE, CZ,  IE, EL, ES,  FR,  IT, HU, PT, SI) 
have a return rate that is equal to or lower than 25%. Of these, eight Member States (BE, CZ, 
EL,  ES,  FR,  IT,  PT,  SI)  do  not  issue  return  decisions  together  with  negative  asylum 
decisions.  

In  Member  States  where  negative  asylum  decisions  and  return  decisions  are  issued  in 
separate  acts  by  different  authorities,  appeal  proceedings  against  both  decisions  follow 
different rules and path.  In all Member States62 that do not  issue a  return  decision together 
with  a  rejected  asylum  request,  appeals  are  not  dealt  with  at  the  same  time  and  appeal 
proceedings run separately. 

62 BE, BG, CY, CZ, EE, FR, EL, IT, LV, MT, PL, PT, RO, SK, SI, ES. 

44 

 
 
 
 
 
 
                                                           
Current rules on subsequent applications hamper returns 

In twenty-three Member States the asylum appeal procedure has automatic suspensive effect, 
while  in  sixteen  Member  States  the  return  appeal  procedure  has  suspensive  effect,  thus 
automatically  stopping  returns.63  According  to  the  EBCGA,  for  example,  last  minute 
subsequent  asylum  applications  are  the  second  reason  for  cancellations  of  returns  on 
scheduled flights. Furthermore, in response to a questionnaire sent out by EBCGA and EASO 
on last minute asylum applications, many Member States reported that this is a frequent issue. 
In one Member State, it is estimated that 50% of all return operations cancellations is due to 
last minute asylum applications.   

If a subsequent  last  minute asylum application has suspensive  effect,  the application has to 
either  be  processed  before  the  flight  departs,  or  the  removal  procedure  has  to  be  stopped. 
Third-country  nationals  may  ask  for  asylum  also  while  still  boarding  the  plane.  As  asylum 
processes,  including  appeals,  are  complex  and  time-consuming,  removal  is  usually  stopped 
even when it may appear evident at first sight that the application does not bring forward any 
new substantial element. This is expensive and burdensome for Member States as regards for 
instance tickets and escorts costs, but also for subsequent asylum reception costs. Moreover, 
it may give third-country nationals time to find other ways to hamper their return. 

There is no EU obligation to ensure that asylum and return decisions are subject to the same 
effective remedy before a court or tribunal and within the same time limits. As a result, the 
time  limit  for  lodging  appeals  varies  significantly  between  countries,  ranging  from  5  to  90 
days depending on the Member State and on the specific situations.64  

Readmission arrangements are not used to their full potential 

On average only 10-15%65 of return decisions are followed up with a readmission request or 
a request for identification and re-documentation to the third-country concerned.  

Whereas readmission agreements with neighbouring countries (Western Balkans and Eastern 
Partnership)  are  used  by  Member  States  to  their  full  potential,  agreements  with  other  third 
countries,  including  the  more  recently  agreed  readmission  arrangements66,  are  not  yet 

63  WK  9596/2019  INIT`,  Questionnaire  on  the  link  between  the  asylum  and  return  procedure:  Summary  and 
compilation of the answers’ - Brussels, 16 September 2019. For this query all Member States as well as Iceland, 
Norway, Liechtenstein and Switzerland provided answers. For summary, see ANNEX 1.  
64  WK  9596/2019  INIT`,  Questionnaire  on  the  link  between  the  asylum  and  return  procedure:  Summary  and 
compilation of the answers, 16 September 2019. For this query all Member States as well as Iceland, Norway, 
Liechtenstein and Switzerland provided answers. For summary, see ANNEX 1. 
65 Official statistics submitted by Member States to EUROSTAT under the current legislative framework do not 
include the number of readmission requests submitted to third countries and the number of requests accepted by 
third entries. So far, Member States have provided the Commission on voluntary and informal basis with such 
information as well as a qualitative assessment of the level of cooperation in preparation of technical meetings 
with third countries. As of 2020, under the new Visa Code art 25a, the Commission will make at least once a 
year an assessment of the level cooperation on readmission by relevant third countries based on quantitative and 
qualitative  data  provided  by  the  Member  States  along  more  granular  indicators  defined  in  the  Code,  such  as 
number of readmission requests per Member State accepted by the third country as a percentage of the number 
of such requests submitted to it.  
66 The EU has recently concluded 6 readmission arrangements with Afghanistan (2016), Bangladesh, Guinea 
(2017), Ethiopia, The Gambia and Ivory Coast (2018). 

45 

 
 
                                                           
used  by  all  Member  States.  For  the  effective  implementation  of  readmission  processes, 
Member States recognise67 the need for a very close follow up on cases and the added value 
of existing tools created at EU level, such as readmission case management systems and 
liaison officers. In addition to ensuring the availability of migrants for return, Member States 
indicate  further  obstacles,  such  as  the  lack  of  political  prioritisation  and  of  sufficient 
resources to follow up on cases systematically, in particular when it comes to unresponsive 
third countries. 

Third countries’ unwillingness or lack of capacity to cooperate on readmission of own 
nationals is an additional challenge.  Readmission of own nationals is an obligation under 
international  customary  law,  however,  in  practice  many  countries  do  not  cooperate 
effectively  on  readmission.  Even  though  the  substantial  Commission  efforts  to  engage  the 
interest  of  third  countries  in  this  respect  over  the  past  four  years  have  brought  some 
improvement, overall readmission cooperation remains a challenge.  

3.1.2 Limited use of assisted voluntary return programmes  

Voluntary return is the preferred way of returning irregular migrants. In fact, it is a more cost-
effective process than forced return, it is better accepted by third countries that then cooperate 
more  effectively  on  readmissions,  and  moreover,  it  allows  for  a  more  dignified  return  for 
migrants. 

The  share  of  voluntary  returns  from  the  EU,  as  reported  by  the  Member  States68,  has 
gradually increased from 20% in 2015 to 27% in 2019.69 Based on this data, the percentage of 
migrants  ordered  to  leave  who  chose  to  depart  voluntarily  has  increased  from  7%  to  9% 
during  this  period.70  As  such,  there  is  scope  to  increase  the  use  of  voluntary  returns  and 
improve their effectiveness, including through additional investments.  

The Schengen evaluations conducted during the years 2015-2019 have shown that there are 
discrepancies in the design, organisation and implementation of national schemes for assisted 
voluntary returns. For instance, Member States may offer assistance only to certain categories 
of  irregular  migrants  (e.g.  rejected  asylum  seekers  only,  irregular  migrants  coming  from 
specific third countries, migrants who are not detained, migrants subject to a return decision 
issued  only  by  one  of  the  national  competent  authorities  for  return).  In  addition,  in  some 
cases  Member  States  do  limited  efforts  to  disseminate  information  about  the  availability  of 

67  Member  States’  interventions  in  relevant  Council  Working  Groups,  such  as  the  Irregular  Migration  and 
Expulsion  working  Party,  the  Strategic  Committee  on  Immigration,  Frontiers  and  Asylum,  the  High  Level 
Working Group on Migration and expert meetings such as the monthly Readmission Expert Meeting. 
68 Reporting on the number voluntary returns to Eurostat is voluntary for Member States. Over the 2015-2018 
period,  19  to  21  Member  States  have  reported  on  this  specific  category.  On  the  other  hand,  during  the  same 
period, 27 to 28 Member States have reported on the number of total returns. 
69 Eurostat data on voluntary return 2015 to 2019: 
https://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_eirt_vol&lang=en 
https://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_eirtn&lang=en 
70 Eurostat data on return: 
https://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_eirt_vol&lang=en 
https://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_eiord&lang=en  

46 

 
 
 
                                                           
 
such programmes and lack appropriate funding. Furthermore, their procedures for setting up 
the programme and processing requests are very long and inefficient, and they are sometimes 
applied only in some parts of the country.   

Currently,  there  is  no  common  EU  policy  on  assisted  voluntary  return  and  reintegration 
(AVRR). Member States and the EU have their own approaches to AVRR, which has led to 
significant  fragmentation  and  lack  of  coherence  and  complementarity  between  the  actions. 
Various  gaps  and  inconsistencies  exist  concerning  financing  AVRR  activities,  available 
information, cooperation between the various stakeholders, provision and content of support, 
monitoring  and  evaluation  of  current  programmes  and  further  referring  returnees  to  other 
projects.  

The need for an EU approach on AVRR has been called for by Member States and discussed 
in several Council Working Groups. A vast majority of Member States have been supportive 
and  vocal  for  a  more  harmonised  approach  and  the  need  for  complementarity  between  all 
relevant policy sectors at EU level and in line with a whole-of-route approach.  

On the side of the countries of origin, they are reluctant to cooperate on return especially if 
they  have  a  weak  capacity  to  reintegrate  the  returnees  back  into  their  societies  and  local 
economy.  Most  reintegration  projects  currently  running  in  third  countries  rely  heavily  on 
implementing partners  (international  organisation) with  insufficient  involvement of national 
and  local  authorities  and  often  no  strategic  links  with  other  national  development  projects, 
structural  community  support  or  employment  strategies.  There  is  a  need  to  increase  third 
countries’  capacities  to  deliver  reintegration  services  but  also  to  support  ownership  over  a 
more strategic approach to reintegration which links to other national policies and plans. 

An additional problem is the phenomenon of ‘AVRR shopping’, referring to the practice of 
unrightfully benefiting from AVRR funds. It can refer to returnees attempting to benefit from 
AVRR  programmes  in  a  Member  State  different  from  the  one  from  which  they  should  be 
returned.  This  behaviour  can  be  triggered  by  disparities  in  AVRR  programmes  in  the  EU, 
which  might  induce  returnees  to  attempt  to  benefit  from  AVRR  programmes  in  Member 
States where the assistance is greatest. On the other hand, the term ‘AVRR shopping’ is also 
used to describe the behaviour of those returnees who have already returned to their country 
of origin  with  AVRR assistance and who then come back to  the EU and attempt to  benefit 
from the assistance again. 

Understanding  the  size  of  this  phenomenon  is  difficult  because  there  is  no  repository  or 
database that collects information on the AVRR assistance granted to third-country nationals 
across  the  EU,  therefore  national  authorities  do  not  know  whether  a  person  has  already 
obtained assistance from another Member State. 

3.1.3 Lack of streamlined procedures upon arrival                      

Currently, there are different procedures that can be applied at the EU’s land or sea borders. 
Asylum seekers reaching the EU’s land borders and applying for international protection are 
admitted  to  the  EU’s  territory  and  are  directed  either  to  the  asylum  or  to  the  return 
procedures.  Migrants  who  are  apprehended  at  the  EU’s  land  borders  and  do  not  request 
asylum should be channelled to procedures which respect Return Directive. Finally, migrants 

47 

 
 
 
 
 
who are rescued at sea go through an identification and screening process, which determines 
whether they will be directed to either the return or the asylum procedure. 

There is currently little coordination in handling unfounded claims and in returning irregular 
migrants  to  third  countries  among  all  relevant  national  authorities  involved  in  assessing 
applications  for  international  protection.  Such  lack  of  coordination  is  one  of  the  factors  of 
absconding of applicants for international protection after having been admitted to the EU’s 
territory.  When  coordination  and  information  sharing  among  different  actors  is  increased, 
such  as  through  the  work  of  the  EU  Regional  Task  Forces  in  countries  where  hotspots  are 
implemented, benefits are tangible. 

The  EU  additionally  lacks  common  screening  rules  to  efficiently  control  the  crossing  of 
external  borders.  There  are  no  harmonised  procedures  for  carrying  out  identity,  health, 
vulnerability  and  security  checks  on  persons  apprehended  in  connection  with  irregular 
crossings by land, sea or air of the external  border of a Member State. Along with  the fact 
that asylum seekers are de facto authorised entry to the territory irrespective of whether they 
pursue  their  request  for  international  protection  in  the  country  of  first  entry  or  abandon  it, 
these are other factors influencing the risk of absconding. 

This lack of coordination also undermines the coherence of the asylum system. UNHCR has 
highlighted the usefulness of a streamlined process upon arrival for asylum seekers, including 
those arriving irregularly. Swift identification, registration, and the frontloading of resources 
to  support  referral  to  appropriate  procedures  will,  in  their  view,  also  ensure  access  to  the 
asylum procedure71.  

3.1.4  Delays  in  accessing  the  appropriate  asylum  procedure  and  slow  processing  of 
applications 

The lack of streamlined procedures upon arrival also creates delays in accessing the territory 
and in accessing the appropriate asylum procedure.  

Based  on  latest  available  data72  from  November  2019,  there  were  more  than  900,000  cases 
pending  at  all  instances  in  the  EU+.  Overall,  there  was  a  high  pressure  on  first-instance 
authorities:  at  the  end  of  2019,  some  540,559  cases  were  pending,  up  by  20%  from  a  year 
earlier,  and  the  highest  since  July  2017.  At  the  end  of  2019,  half  of  all  first-instance  cases 
were pending for more than six months. 

If  asylum  applicants  are  able  to  swiftly  reach  the  relevant  asylum  authorities,  a  more  fair, 
effective and tailor-made asylum process can be ensured. Focus therefore needs to be on the 
early stages of the procedure. Early collection of information facilitating a swift channelling 
of  applicants  to  the  most  appropriate  asylum  procedure  is  crucial.  More  straightforward 
criteria  are  also  needed  to  quickly  decide  on  which  procedure  to  apply,  be  it  a  normal 
procedure, accelerated procedure or a border procedure. Therefore, the use of accelerated and 
border  procedures  should  be  facilitated  by  foreseeing  to  apply  such  procedures  for  the 

71 UNHCR Recommendations for the European Commission’s proposed pact on migration and asylum, January 
2020.   
72 EASO, Asylum Trends Annual Overview 2019. 

48 

 
 
 
                                                           
examination  of  applications  where  the  applicants  are  nationals  of  third  countries  for  which 
the share of positive decisions on applications for international protection in the total number 
of decisions is low, including from visa-free countries.  

Despite  a  lack  of  complete  data  at  EU  level  concerning  processing  times  of  asylum 
applications,  existing  data  indicate  that  applications  from  applicants  from  low  recognition 
rate  countries,  in  particular  from  visa-free  countries,  tend  to  be  decided  more  swiftly. 
Therefore,  such  applications  should  be  dealt  with  in  an  accelerated/border  procedure, 
ensuring that those receiving a negative decision can be returned more swiftly, provided that 
there is cooperation from third countries.  

It  should  be  noted  that,  from  the  data  available,  the  processing  times  seem  to  vary 
considerably between Member States. While countries issuing fewer decisions typically have 
shorter  processing  times,  there  does  not  appear  to  be  a  systematic  relationship  between  the 
magnitude of administrative decisions issued and processing time.  

3.1.5 Difficulty in using the border procedure  

The  purpose  of  the  border  procedure,  set  out  in  the  current  Article  43  of  the  Asylum 
Procedures  Directive,  is  to  identify  asylum  applicants  with  abusive  or  inadmissible  asylum 
requests early in the process, in order to facilitate their quick return. The border procedure is 
particularly  effective  as  a  migration  management  tool  when  a  large  share  of  asylum 
applicants are citizens of countries with a low EU recognition rate (first instance). Based on 
available data, in the period 2014-2018, the recognition rate for decisions issued through the 
border  procedure  ranged  from  10%  to  12%.  Considering  the  increasing  trend  of  such 
applicants,  including  those  from  visa-free  countries  (see  graph  below),  the  relevance  of  the 
border procedure is also increasing. 

Figure 3.2.5: Share of citizens of visa-free countries from first time applications (2015-2020) 

Source: DG HOME based on Eurostat data 

49 

 
 
 
 
 
 
 
16  Member  States  currently  have  border  procedures  or  specific  procedural  arrangements  at 
the border in  place,  but  only very  few Member  States report data on decisions taken in  the 
border  procedure.  Looking  at  available  data,  the  use  of  the  border  procedure  also  seem  to 
have  been  marginal  in  the  period  2014-2018.  The  share  of  decisions  taken  by  border 
procedure did not go beyond 0.6% in 2018. 

Currently, at the level of national legislation EU Member States do not have a uniform way 
of shaping the border procedure provided by the recast Asylum Procedures Directive (APD) 
and  as  a  result,  national  border  procedures  are  not  necessarily  comparable  nor  applied  in  a 
similar number of cases.73 

It should however be noted that it is likely that some Member States report decisions taken 
through  border  procedure  as  taken  under  the  normal,  accelerated  or  the  admissibility 
procedure.  The  use  of  the  accelerated  procedure  also  fluctuates  at  a  relatively  low  range  - 
between  3%  and  8%  in  the  period  2014-2018  -  and  the  use  of  the  admissibility  procedure 
between a mere 0.5% and 1% in the same period.   

Indeed, various types of border procedures have been in use in EU+ countries for a long time, 
often preceding the EU-level harmonised arrangements laid out in the respective Directives 
(dating  from  2005  and  2013).  That  testifies  to  the  importance  of  border  procedure  as  an 
instrument  in  managing  applications  for  international  protection  overall  and  specifically  in 
improving  the  efficiency  of  the  procedure  (time-wise  and  resource-wise)  in  regard  to 
applicants who are already physically present at the border or in the transit zone where they 
are applying for international protection.74 

Member States generally have different reasons for the limited use of the border procedure. 
The  first  relates  to  difficulties  in  quickly  assessing  whether  an  applicant  could  qualify  for 
processing in the border procedure, and the need in the meantime to keep the applicant at the 
border. The second reason relates to the fact that appeal procedures take too long so that the 
deadline for completing  the border procedure expires before  a decision,  which is  no longer 
subject to an appeal, can be taken on the application. Third, Member States also point to the 
fact  that  border  procedures,  in  particular  in  case  of  significant  arrivals,  require  important 
investments and resources in terms of infrastructure for the processing of applications and for 
accommodating  applicants,  as  well  as  in  terms  of  staff  and  equipment.  Finally,  Member 
States increasingly underline the difficulty and usefulness in applying the border procedure in 
cases where there are no prospects of returning the rejected applicant to a third-country (e.g. 
where there is no readmission agreement in place).   

3.2 Absence of a broad and flexible mechanism for solidarity  

Since the peak of the crisis in 2015, the focus of discussions and actions on solidarity were 
almost exclusively focussed on relocation.   

73 Border Procedures for Asylum Applications in EU+ Countries; 
https://easo.europa.eu/sites/default/files/publications/Border-procedures-asylum-applications-2020.pdf  
74 Border Procedures for Asylum Applications in EU+ Countries; 
https://easo.europa.eu/sites/default/files/publications/Border-procedures-asylum-applications-2020.pdf  

50 

 
 
 
 
 
 
                                                           
Efforts to address the pressure of Member States through relocation solidarity measures dealt 
only  with  applicants  for  international  protection.  While  the  implementation  of  the  2015 
Council  Relocation  Decisions75  has  been  overall  a  success,  the  Commission  recognises 
certain limitations of their scope, to the extent that they related to asylum seekers who were 
nationals  of  countries  with  an  average  recognition  rate  of  75%  or  higher,  rather  than  to  a 
wider  range  of  asylum  applicants.  Mixed  arrival  flows  to  the  EU  make  it  all  the  more 
necessary to consider the widening of relocation to other categories of migrants.  At the same 
time  it  is  also  clearly  demonstrated  that  migratory  pressure  is  increasingly  an  issue  that  is 
borne by Member States in particular with an increasing share of mixed migration flows.  In 
such  situations,  relocation  may  not  the  only  effective  response  to  deal  with  the  realities 
presented by such flows and should also be addressed by different forms of solidarity. 

On  the  legislative  side,  negotiations  on  the  2016  CEAS  proposals  did  not  lead  to  an 
agreement among Member States, in particular due to divisions on the issue of compulsory 
relocation  of  applicants  for  international  protection,  which  continues  to  be  a  bone  of 
contention in the context of consultations with Member States on the New Pact on Asylum 
and  Migration.  Finding  an  agreement  among  Member  States  is  therefore  key  for  a  more 
effective management of migration.  

In  addition,  since  the  only  form  of  solidarity  provided  was  relocation,  there  were  no  legal 
provisions for the Member States to provide other forms of solidarity support that would have 
benefitted those Member States still under pressure.    

Over the two years of implementation of the 2015 Relocation Decisions, 34,712 persons were 
relocated  from  Greece  (21,999)  and  Italy  (12,713)  with  25  Member  States76  and  Schengen 
associated  countries  participating  actively  in  the  relocation  schemes.  Nevertheless,  the 
initially  agreed  number  of  relocations  was  eventually  not  met,  in  particular  because  of  the 
changes in migratory flows during the implementation period. 

The  relocation  schemes  underperformed77  mainly  because  Member  State  authorities  were 
initially  unable  to  identify  all  potential  candidates  for  relocation  and  successfully  channel 
them  towards  the  process.  More  specifically,  the  scope  of  the  2015  Council  Relocation 
Decisions  was  limited  to  nationals  of  countries  with  an  average  recognition  rate  of  75%  or 
higher, rather than to all asylum applicants. Nevertheless, despite the total number of persons 
relocated  being  eventually  significantly  lower  than  foreseen,  over  95%  of  all  eligible  and 
registered applicants were effectively relocated.  

In addition,  since 2018,  a number of Member States  demonstrated willingness  to  engage in 
solidarity by undertaking further relocations on a voluntary basis.  

75 Council Decisions (EU) 2015/1523 and 2015/1601 of 14 and 22 September 2015 respectively on establishing 
provisional  measures in the area of international protection for the benefit of Italy and of Greece entered into 
force  on  16  September  and  25  September  2015  respectively  (hereafter  ‘Council  Decisions  on  Relocation’  or 
‘Council  Decisions’).  By  virtue  of  the  Council  Decisions  on  Relocation  Member  States  have  an  obligation  to 
relocate from Italy and Greece the number of persons allocated to them agreed in the Resolution of 20 July 2015 
of the Representatives of the Governments of the Member States meeting in Council and as per Annexes I and II 
to Council Decision (EU) 2015/1601. The Council Decisions are binding on all EU Member States, except on 
DK and the UK. 
76 All Members States except the Czech Republic, Hungary and Poland. 
77  European  Court  of  Auditors  Report  on  the  migration  management  in  Greece  and  Italy,  Special  report  no 
06/2017: EU response to the refugee crisis: the ‘hotspot’ approach. 

51 

 
 
 
 
                                                           
The  Commission  has  been  coordinating  and  supporting  the  voluntary  relocation  from  Italy 
and Malta since January 2019 following SAR operations. So far, over 2,000 people have been 
relocated  from  Italy  and  Malta  to  other  Member  States.  The  Commission  has  also 
continuously been calling all actors engaged in search and rescue to act in coordinated way in 
a  spirit  of  genuine  cooperation.  But  ultimately,  a  structural  and  permanent  solution, 
embedded in a reformed Common European Asylum System is the only viable solution.   

On the other hand, the majority of Member States78 have not actively engaged in relocations 
from  Greece  or  Cyprus  outside  of  those  carried  out  under  the  2015  Council  Relocation 
Decisions,  despite  the  requests  from  Greek  and  Cypriot  authorities  and  the  significant 
migratory pressure on both countries in 2019. In light of the increased migratory pressure on 
Greece,  especially  during  the  summer  of  2019,  the  Greek  government  asked,  in  September 
2019,  for  the  voluntary  relocation  of  up  to  2,500  unaccompanied  minors  by  other  Member 
States. For several months, no Member State made any formal offer in this respect, but the 
subject  gained  political  momentum  in  the  light  of  the  recent  migratory  crisis  at  the  border 
between Greece and Turkey. Ten Member States expressed their willingness to participate in 
the  relocation  of  up  to  1,600  unaccompanied  minors  and  children  with  families  from 
Greece79,  under  the  coordination  of  the  Commission.  The  exercise  will  be  inspired  by  the 
2019 model of voluntary relocations following disembarkations in Italy and Malta.  

The  willingness  to  engage  in  solidarity  is  possibly  also  hampered  by  the  fact  that  Member 
States currently lack other the means to offer solidarity support in other fields, notably in the 
one  of  return.  Ensuring  successful  return  is  a  challenge  for  many  Member  States  and 
providing  for  solidarity  in  this  area  could  be  of  great  assistance  to  Member  States  facing 
arrivals of mixed migration flows. Solidarity in this field could also structurally increase the 
capacity to return and the return rate and could therefore potentially improve the willingness 
to  move  forward  with  solidarity  also  in  this  area,  underlining  the  importance  of  improving 
return efforts at Member State and EU-level. 

While  there  is  a  small  but  important  willingness  to  demonstrate  solidarity  for  persons 
disembarked  following  SAR,  it  is  clear  that  relocations  in  the  form  of  voluntary  exercises 
alone are not  sustainable. The  continuous  ship-by-ship  approach is also  proving  difficult  to 
manage, with only a few Member States contributing to relocation. This points to the need of 
a  more  structured  and  well-managed  system  able  to  respond  to  such  situations  in  a  more 
effective and sustainable manner. 

In this  light,  the Joint Declaration of  Intent on a controlled emergency procedure discussed 
among  the Ministers of  France,  Germany, Malta and  Italy  at  the Ministerial  meeting  on 23 
September  2019  has  provided  a  useful  inspiration  for  a  more  structured  and  constant 
mechanism for better managing this migration reality.   

78 Only France has expressed interest so far to relocate 400 migrants from Greece by the summer of 2020. 
79  As  part  of  the  scheme  organised  by  the  European  Commission,  in  April  2020,  Luxembourg  welcomed  12 
unaccompanied  minor  migrants  from  Greece  refugee  camps  of  Lesbos,  Chios  and  Samos,  and  47  were 
welcomed in Germany. 

52 

 
 
 
 
 
                                                           
A new, more sustainable, reliable and permanent approach to SAR, replacing existing ad hoc 
and  voluntary  solutions  alone,  has  been  also  advocated  by  the  European  Parliament80, 
international organisations81 and other stakeholders82.   

3.3 Inefficiencies in the Dublin system 
The  Dublin  Regulation83  establishes  the  criteria  and  mechanisms  for  determining  which 
Member State is responsible for examining an application for international protection. In case 
an  applicant  lodges  an  application  in  a  Member  State  that  is  not  responsible  in  accordance 
with  the  Regulation,  it  further  outlines  the  procedures  for  transferring  the  applicant  to  the 
responsible Member State.  

However,  the  current  Dublin  Regulation  has  shown  several  deficiencies  and  weaknesses, 
concerning  the  existing  rules  and  in  the  implementation.  Even  with  a  more  efficient  and 
stricter enforcement by all Member States of the existing rules, and with additional measures 
to prevent unauthorised movements, there is a high likelihood that the current system would 
remain  unsustainable  in  the  face  of  continuing  migratory  pressure  and  without  a  solidarity 
mechanism to support Member States facing migratory pressure to address their needs. 

Evaluation of the implementation of the Dublin III Regulation 

Following  its  commitment  announced  in  the  European  Agenda  for  Migration,  the 
Commission  commissioned  external  studies  on  the  evaluation  of  the  Dublin  system  in 
2016.84 The evaluation assessed the effectiveness, efficiency, relevance, consistency and EU 
added  value  of  the  Dublin  III  Regulation.  It  examined  the  extent  to  which  the  Regulation 
addressed  its  objectives,  the  wider  policy  needs  of  the  EU  and  the  needs  of  the  target 
stakeholders.85 The evaluation included an in-depth study on the practical implementation of 
the  Dublin  III  Regulation  in  the  Member  States.86  The  main  findings  are  set  out  below, 
together with the changed migratory situation, and remain valid today. 

80 Motion for a Resolution on search and rescue in the Mediterranean (2019/2755(RSP)); Juan Fernando López 
Aguilar on behalf of the Committee on Civil Liberties, Justice and Home Affairs. 
81  IOM-UNHCR  Proposal  for  a  regional  cooperative  arrangement  ensuring  predictable  disembarkation  and 
subsequent processing of persons rescued at sea, June 2018. 
82  For  instance,  the  Research  Social  Platform  on  Migration  and  Asylum  (ReSOMA)  highlights  the  need  for 
stable and durable measures, replacing the temporary ad-hoc relocations. It also considers that flexible solidarity 
is not adequate solidarity. 
83 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the 
criteria  and  mechanisms  for  determining  the  Member  State  responsible  for  examining  an  application  for 
international protection lodged in one of the Member States by a third-country national or a stateless person, OJ 
L 180, 29.6.2013, p. 31. 
84  Evaluation 
implementation 
wedo/policies/asylum/examination-of-applicants/index_en.htm. 
85 The evaluation was based on desk research, quantitative analysis and consultations with legal/policy advisors 
in a total of 19 Member States (BE, BG, CH, CY, EL, FR, HR, HU, IT, LT, LV, MT, NL, NO, PL, RO, SE, SI, 
SK). Information from the other 12 Member States participating in the Dublin III Regulation was not received in 
time to be included in the report. 
86  A  broad  range  of  stakeholders  were  consulted,  including:  Dublin  units  in  national  asylum  administrations, 
legal/policy  advisors,  NGOs,  lawyers/legal  representatives,  appeal  and  review  authorities,  law  enforcement 
authorities,  detention  authorities,  applicants  and/or  beneficiaries  of  international  protection.  A  total  of  142 
interviews were conducted. Field visits were conducted in 15 Member States (AT, BE, DE, EL, FR, HU, LU, 

at:  http://ec.europa.eu/dgs/home-affairs/what-

available 

reports 

and 

53 

 
 
 
 
 
                                                           
 
The relevance of the Dublin III Regulation  

The system  for determining the Member State responsible for examining an application for 
international  protection  is  a  cornerstone  of  the  EU  asylum  acquis  and  its  objectives  remain 
valid.  An  EU  instrument  for  establishing  criteria  and  a  mechanism  for  determining  the 
Member  State  responsible  is  essential  as  long  as  separate  national  asylum  systems  exist 
within the Union. Without this, Member States would have to rely on ad hoc agreements as in 
pre-Dublin  times,  which  would  make  the  determination  of  responsibility  between  Member 
States extremely difficult. The evaluation  concluded that no national  or bilateral  instrument 
could provide the same effect overall, which could result in a failure to address applications 
for  international  protection  falling  between  national  jurisdictions.  Mixed  views  were 
expressed regarding the actual impact of the Regulation, which should ensure a swift access 
to  the  asylum  procedures  for  the  applicant  and  lead  to  a  long-term  strategy  discouraging 
multiple  applications.  This  would  further  provide  efficiency  to  the  asylum  system  by 
preventing misuse and would reduce the overall costs. 

In  addition,  the  European  Parliament  requested  the  European  Council  for  Refugees  and 
Exiles  (ECRE)  to  carry  out  a  study  on  ‘Dublin  Regulation  on  international  protection 
applications’87 in  February  2020. The study  also  confirms  the need for  a  system where one 
Member State is responsible for examining an application for international protection on the 
basis of common criteria and related evidentiary requirements, despite its current weaknesses.  

Implementation of the Regulation  

  General  

The  most  significant  problem  highlighted  in  the  external  study  commissioned  by  the 
Commission,  which  has  also  been  confirmed  by  Member  States  and  stakeholders  in  the 
consultations  held  since  the  Commission  adopted  its  proposal  in  2016,  was  the  lack  of 
consistent  and  correct  implementation  across  the  Member  States.  It  was  further  concluded 
that  the  design  of  the  Dublin  III  Regulation  had  a  number  of  shortcomings  which  made  it 
more difficult to achieve its main objectives. The hierarchy of criteria as set out in the Dublin 
III Regulation does not take into account the realities faced by the migration systems of the 
Member  States,  nor  does  it  aim  for  a  balance  of  efforts.  The  method  of  allocating 
responsibility  delays  access  to  the  asylum  procedure.  Under  the  current  system  applicants 
may wait up to 10 months (in the case of "take back" requests) or 11 months (in the case of 
"take  charge"  requests),  before  the  procedure  for  examining  the  claim  for  international 
protection  starts.  This  hinders  the  system’s  aim  to  ensure  an  applicant's  swift  access  to  the 
asylum procedure. 

It  is  also  clear  that  the  Dublin  III  Regulation  was  not  designed  to  deal  with  situations  of 
migratory pressure or a fair sharing of responsibility across the Member States. Nor does it 

IT, MT, NL, NO, PL, SE, UK, CH), whereas in 16 (BG, CY, CZ, DK, EE, ES, FI, HR, IE, LT, LV, PT, RO, SI, 
SK, LI) phone interviews were conducted. 
87 https://www.europarl.europa.eu/RegData/etudes/STUD/2020/642813/EPRS_STU(2020)642813_EN.pdf 

54 

 
 
                                                                                                                                                                                     
take  into  account  the  situation  of  migration  management  of  mixed migratory  flows  and  the 
consequent pressure these flows put on Member States’ migration systems.  

  Procedural guarantees and safeguards  

Information  to  the  applicant  about  the  Dublin  procedure  significantly  differs,  where  some 
Member  States  provide  only  limited,  general  or  outdated  information,  all  which  may  fall 
short of the requirements stipulated in Article 4(1). 

The  personal  interview  is  a  standard  practice  when  determining  responsibility  in  nearly  all 
Member States, but the lack of capacity in some of the overburdened countries prevented the 
authorities from routinely conducting interviews. 

The interpretation of the best interests of the child diverges. This has on some occasions led 
to  communication  issues  and  mistrust  between  the  Member  States.  Furthermore,  practical 
problems  have  been  identified  in  the  process  of  appointing  a  representative  for  the  minor, 
especially as a consequence of high influx of arrivals. 

  Criteria for determining the responsible Member State and evidence 

The  criteria  most  often  applied  as  grounds  for  transfer  are  those  relating  to  documentation 
and  irregular  entry  (Articles  12  and  13),  resulting  in  placing  a  substantial  share  of 
responsibility on Member States at the external border. This has led applicants to avoid being 
fingerprinted, contributing to unauthorised movements. 

Several Member States indicated that the interpretation of what is considered to be acceptable 
evidence by the authorities in the receiving country placed an unreasonable burden of proof 
on  the  sending  country.  Eurodac  and  Visa  Information  System  (VIS)  data  are  accepted  as 
proof by nearly all Member States, and is the evidence most often relied on when determining 
responsibility.  The  data  obtained  through  interviews  were  generally  not  considered  as 
sufficient  evidence.  The  discretionary  provision  and  provisions  on  dependent  persons 
(Articles  16  and  17),  dealing  with  humanitarian  cases,  are  infrequently  used,  with  the 
exception of only a small number of Member States. 

The  criteria  relating  to  family  links  were  also  less  frequently  used,  mainly  due  to  the 
difficulty of tracing family or obtaining evidence of family connections. The Member States 
greatly differ in respect of the evidence accepted for these criteria, but a main requirement is 
usually documentary evidence (such as birth or marriage certificate), which is often difficult 
to produce for the asylum applicant. The substantial divergence on what is acceptable proof 
of  family  connections  makes  it  difficult  to  determine  responsibility,  leading  to  lengthy 
procedures.  This  could  be  a  factor  in  driving  unauthorised  movements,  with  applicants 
attempting to travel onwards. 

These  conclusions  are  also  supported  by  the  findings  in  the  ECRE  study,  where  the  study 
points out the diverging ways in which Member States interpret some of their obligations as 
one of the main weaknesses in the Dublin system. The study gives concrete recommendations 
on how to improve the provisions of the Dublin Regulation to ensure the full respect of the 
applicants’  fundamental  rights,  such  as  improving  the  applicants'  right  to  information  and 

55 

 
 
promote family unity and the best interest of the child; the latter by requiring less stringent 
standard  of  proof  in  family  cases,  and  by  giving  priority  to  documentary  proof  in  the  age 
assessment  of  minors.  The  study  also  underlines  the  need  to  better  take  into  account  the 
applicants’  individual  circumstances  in  general  (e.g.  meaningful  links  with  a  specific 
country).  

  Taking charge and taking back procedures 

The  number  of  "take  back"  requests  was  significantly  higher  than  the  number  of  "take 
charge" requests. Between 2008 and 2014 72% of outgoing Dublin requests were take back 
requests, against 28% of outgoing take charge requests. Similarly, 74% of incoming Dublin 
requests  were  take  back  requests  compared  with  26%  of  incoming  take  charge  requests. 
Compared to the situation between 2015 and 2018, the situation has persisted. The share of 
take back requests represented around 70% between 2015 and 2018. This number must also 
be seen in relation to the increasing number of requests, which climbed from 20,988 accepted 
take back requests in 2012 to 65,230 in 2018. 

The  timeframes  stipulated  for  submitting  and  replying  to  these  requests  were  mostly 
complied with by all Member States.  

In  2014,  only  about  a  quarter  of  the  total  number  of  accepted  take  back  and  take  charge 
requests actually resulted in a physical transfer. While 2016 had an increase of an additional 
10%, the trend was back at 26% by 2018. These low numbers could be partly explained by 
delays  in  the  transfers,  which  is  not  captured  in  the  annual  data  used  in  the  evaluation. 
Another important reason for the low rate of transfers, as confirmed by many Member States, 
is  the  high  rate  of  absconding  during  the  Dublin  procedures,  resulting  in  a  shift  of 
responsibility between Member States. Nevertheless, it is important to keep in mind that each 
request  is  linked  to  an  individual  application,  and  a  person  could  have  lodged  several 
applications in different Member States before finally being transferred to the Member State 
responsible. 

  Implementation of transfers  

The  timeframe  for  implementing  the  transfers  varied  significantly.  Among  the  reasons 
indicated for delays was the extension of the time limits as per Article 29(2). Twenty Member 
States  stated  that  the  absconding  of  the  applicant,  allowing  for  a  total  of  18  months  for 
transfers, was the primary explanation for delays. Furthermore, 13 Member States highlighted 
that  transfers  in  general  lack  effectiveness,  indicating  that  unauthorised  movements  are 
‘often’ observed following a completed transfer.  

  Appeals  

Remedies  are  available  against  a  transfer  decision  in  all  Member  States.  In  the  process  of 
appeals, all Member States have introduced time limits for an applicant to exercise their right 
to an effective remedy, although the interpretation of what constitutes a ‘reasonable period of 
time’ greatly vary, ranging from three to 60 days. If a case is appealed, some Member States 
will automatically suspend the transfer, whilst others apply Article 27(3)(c), where this has to 
be requested by the applicant. 

56 

 
 
  Early Warning and Preparedness Mechanism 

The  Early  Warning  and  Preparedness  Mechanism  has  not  been  implemented  to  date.  This 
procedure was considered lengthy and complicated. Alternative support measures had helped 
to  relieve  the  pressure  and  may  have  obviated  the  need  to  trigger  that  mechanism.  The 
European  Asylum  and  Support  Office  was  used  as  an  example  of  support  that  made  it 
unnecessary  to  activate  the  mechanism,  helping  to  prevent  or  manage  crises  in  the  field  of 
international protection. 

Achieving the objectives of the Dublin III Regulation 

The main findings of the external study regarding the evaluation of the Dublin III Regulation, 
together with the changed migratory situation, is set out below. 

  To  prevent  applicants  from  pursuing  multiple  applications,  thereby  reducing 

unauthorised movements 

Notwithstanding  the  aim  of  reducing  unauthorised  movements,  multiple  applications  for 
international protection remain a common problem in the EU. 24% of the applicants in 2014 
had already launched previous applications in other Member States. In 2019, this number was 
32 %. This suggests that the Regulation has had little or no effect on reaching this objective. 

  To ensure solidarity between the Member States  

The Dublin III Regulation has limited impact on the distribution of applicants within the EU, 
given  that  net  transfers  in  Dublin  procedures  are  close  to  zero  due  to  equal  numbers  of 
incoming and outgoing transfers. This appears to be due to: the hierarchy of criteria, which 
does not take Member States' capacity into account; the disproportionate responsibility placed 
on Member States  at  the external  border, by mostly  applying the criteria  of first  country of 
entry;  and  the  low  number  of  actual  transfers,  which  suggests  that  applicants  are  able  to 
submit  claims  where  they  choose,  placing  a  greater  responsibility  on  more  desirable 
destinations. This is evident from the figures from 2019, where more than three quarters of all 
first-time applications for international protection were submitted in only five Member States. 

Negotiations in the Council on the 2016 proposal for a Dublin Regulation did not lead to an 
agreement  among  Member  States  due  to  divergent  views  on  the  balance  between 
responsibility and solidarity. Issues such as relocation following mathematical calculations of 
pressure,  the  necessity  of  Member  States  of  first  entry  to  undertake  an  admissibility 
assessment and the stable responsibility proved to be the most difficult issues.  

  The reasonable cost in terms of financial and human resources deployed in the 

implementation of the Dublin III Regulation 

The  direct  and  indirect  estimated  cost  of  Dublin-related  work  in  2014  in  Europe  was 
approximately EUR 1 billion. The absence of such a mechanism would generate even higher 
costs for the EU and EEA States, but the evaluation found that the Dublin III Regulation in 
general lacked efficiency. The legally envisaged time to transfer an applicant is long and the 
rate  of  actual  transfers  small:  both  of  these  have  a  significant  financial  implication  on  the 

57 

 
 
indirect  costs,  and  the  overall  efficiency  of  the  system.  In  an  attempt  to  counteract 
absconding, the cost of detention in some Member States is very high. Absconding generates 
other indirect costs and reduces the efficiency of the system. Absence of transfers and returns 
of rejected applicants in practice generates high social costs linked to irregular migration. 

It  is  clear  that  the  current  system  remains  unsustainable  in  the  context  of  the  continuing 
migratory  pressure  and  mixed  flows,  as  proved  also  by  the  effective  suspension  of  Dublin 
transfers to Greece between 2011 and 2018 as well as the suspension to other Member States 
ordered in some cases by national courts. 

The ECRE study on ‘Dublin Regulation on international protection applications’ 

The ECRE study on ‘Dublin Regulation on international protection applications’88, requested 
by  the  European  Parliament  in  February  2020,  confirms  the  need  for  a  system  where  one 
Member State is responsible for examining an application for international protection on the 
basis of common criteria and related evidentiary requirements. However, the study points out 
several weaknesses in the Dublin system, often due to the diverging ways in which Member 
States interpret some of their obligations. The study also gives concrete recommendations on 
how  to  improve  the  provisions  of  the  Dublin  Regulation  to  ensure  the  full  respect  of  the 
applicants’  fundamental  rights.  For  example,  the  study  recommends  to  improve  the 
applicants' right to information and promote family unity and the best interest of the child; the 
latter by requiring less stringent standard of proof in family cases, and by giving priority to 
documentary proof in the age assessment of minors.  

3.3.1 Lack of a sustainable sharing of responsibility under the current system 

The  Dublin  system  was  not  designed  to  ensure  a  sustainable  sharing  of  responsibility  for 
asylum applicants across the EU, a shortcoming that has been highlighted by the 2015 crisis. 
In practice, the main criterion for allocating responsibility for asylum claims is irregular entry 
into one Member State’s territory, a criterion which links the allocation of responsibility to 
the  obligation  of  Member  States  to  protect  the  external  border.  However,  the  ability  to 
effectively control irregular inflows at the external border is largely dependent on cooperation 
with third countries, and presents different challenges at sea and land borders respectively. 

In  addition,  the  experience  of  recent  years  has  shown  that,  especially  in  situations  of  mass 
influx  via  specific  migratory  routes,  the  current  system  places  responsibility  for  the  vast 
majority  of  asylum  seekers  on  a  limited  number  of  Member  States,  a  situation  that  would 
stretch  the  capacities  of  any  Member  State.  These  are  not  only  the  Member  States  of  first 
entry, but also the Member State of first application in the large majority of cases where it is 
not possible to identify the Member State of first entry. Migrants often refuse to lodge asylum 
applications or comply with identification and registration obligations in the Member State of 
first arrival, in order to move on to the Member State where they wish to settle and apply for 
asylum.  These  unauthorised  movements  have  resulted  in  many  asylum  applications  in 
Member States that are not those of the first point of entry – a situation that has in turn been a 
contributing  factor  for  several  Member  States  to  reintroduce  internal  border  controls  to 
manage the influx. 

88 https://www.europarl.europa.eu/RegData/etudes/STUD/2020/642813/EPRS_STU(2020)642813_EN.pdf 

58 

 
 
 
                                                           
3.3.2 Current rules on the shift of responsibility contribute to unauthorised movements 

As a main rule under the current Dublin system, the shift of responsibility applies when the 
time  limits  to  send  a  transfer  request,  including  take  back  requests  in  case  of  multiple 
applications lodged in different Member States, and to transfer the applicant to the Member 
State  responsible,  expire.  The  time  limits  expire  also  after  an  applicant  has  evaded  the 
transfer  for  over  18  months,  in  which  case  the  Member  State  initially  determined  as 
responsible  ceases  being  responsible,  and  shifts  the  responsibility  to  the  Member  State  that 
failed to respect the transfer time limit. 

Similarly, if an asylum seeker crosses a Member State’s borders irregularly, but applies for 
international protection in another Member State more than 12 months after his/her entry, the 
Member State of first entry can no longer be held responsible, resulting in the Member State 
of  first  application  becoming  responsible.  The  same  goes  for  asylum  seekers  having  been 
issued  a  visa  or  residence  permit  by  a  Member  State,  who  then  apply  for  international 
protection  in  another  Member  State  6  months  or  2  years  after  the  expiry  of  the  visa  or 
residence permit respectively.  

These  rules  provide  an  incentive  for  unauthorised  movements  and  allow  applicants  for 
international protection to influence the shift of responsibility. 

3.3.3 Inefficient data processing 

It is currently impossible to get an accurate picture of migrants’ unauthorised movements for 
the  purpose  of  seeking  international  protection  (e.g.  to  lodge  subsequent  applications,  or 
various parallel applications in more than one Member State). This is because unauthorised 
movements  are  analysed  via  three  proxy  indicators,  related  to  administrative  procedures 
rather than to international protection applicants: 

  Dublin  decisions,  namely  decisions on outgoing  Dublin  requests and decisions  to  apply the 

discretionary clause;  

  Withdrawn asylum applications, mainly implicit withdrawals due to absconding; and  
  Eurodac hits89. 

As far as Dublin decisions are concerned, the main issue is that, according to the way data is 
collected,  it  is  difficult  to  distinguish  between  decisions  taken  in  relation  to  unauthorised 
movements (e.g. following irregular entry, previous residence permits and visas), and those 
taken  for  other  reasons  (e.g.  following  requests  for  family  reasons,  dependent  persons  or 
humanitarian grounds)90. Moreover, when reading together Dublin decisions and Eurodac hits 
it is important to consider that:  

 

It is currently impossible to identify the double counting of international protection applicants 
in the system, since data are collected per application and not per applicant;  

89 Eurodac hits means  where the fingerprints obtained from a registration site and the fingerprint database are 
matching. 
90 Data collected by EASO under EPS for Dublin decisions do not contain the Dublin article under which the 
request is made. 

59 

 
 
 
                                                           
  Eurodac  hits  do  not  cover  applicants  under  14  years  of  age (the  2016  proposal  however 

lowers this to 6 years of age); 

  Not all Dublin requests are triggered by a Eurodac hit, other evidence is possible; 
  Not all Eurodac hits result in a Dublin request;  
  There  could  be  ‘missed  hits’  in  Eurodac,  for  example  when  the  country  of  irregular  entry 

does not appear as a hit, due to the delayed transmission of data to the system; 

  The Dublin  Regulation has  certain  limits  for the application of the first entry criterion  (e.g. 
the criteria are not  applicable if the application was lodged more than 12 months after first 
entry). 

The way information is currently collected under Dublin and Eurodac – notably the fact that 
the  Dublin  Regulation  only  allows  for  statistics  that  count  transfer  requests  received  by  a 
specific  Member  State,  and  that  Eurodac  does  not  allow  for  counting  the  applicants  each 
Member State is responsible for – makes it impossible to get a complete and credible picture 
of the migratory situation in  Europe, including the extent of onward movements  and of the 
Member States’ burden. 

A look at statistics that are provided from Eurodac demonstrate this point. Statistics from the 
2019  eu-LISA  report  demonstrates  that  in  2019,  Eurodac  processed  a  total  of  592,691 
applications for international protection. Of these, 32% were multiple applications (190,201), 
meaning  that  the  persons  applied  for  international  protection  more  than  once  (whether  it  is 
twice, three times, or above, it is still counted as ‘multiple’). This share was exactly the same 
in 2016 (32%), whereas the years between 2016 and 2018 showed an increasing trend (37% 
in  2018 and 36% in  2017);  and the lowest  was in  2015 with  22%. The number of multiple 
applications is at EU level and it includes both applications made in the same Member State 
and in other Member States.91   

Discrepancies between irregular border crossings and registration in Eurodac 

Total irregular border crossings or unauthorised entries of third-country nationals above the 
age of 14 recorded in Eurodac (CAT 2)92 do not correspond to the number of total irregular 
border crossings detected by the EBCGA between the period 2016-2019.  

The  share  of  unregistered  third-country  nationals  in  the  table  below  does  not  necessarily 
correspond to persons under the age of 14 and this indicates that persons arriving irregularly 
are  not  systematically  registered  in  Eurodac.  Between  22%  and  31%  of  irregular  arrivals 
have not been registered, or are presumed to be registered at a later stage. 

This leads to a discrepancy that results in an inaccurate picture of movements and numbers, 
and shows the importance of a new screening phase where the fingerprinting obligation can 
be fully implemented.  

Table  3.4.3  (a):  Irregular  border  crossings  as  registered  by  EBCGA,  Eurodac  (CAT  2)  and 

91  Multiple  applications  are  counted  based  on  number  of  hits  (CAT1  against  CAT1).  ‘Local  hits’  where  for 
example DE got hit against DE record (multiple application was done in DE), or ‘foreign hits’ where DE got hit 
against record from any other MS. 305 543 represents total number of CAT1 hits in results of CAT1 searches. 
92  Third  country  national  or  stateless  person,  aged  14  or  older,  apprehended  when  irregularly  crossing  the 
external border of a Member State. 

60 

 
 
 
 
 
 
                                                           
unregistered  

Irregular border crossings  

2016 

2017 

2018 

2019 to be added 

Registered by EBCGA  

511,047 

204,654 

149,036 

Registered in Eurodac  (CAT 2) 

370,418 

160,816 

103,333 

Unregistered 

140,629 (28%)  43,838 (22%)  45,703 (31%) 

The Dublin system does not allow for the counting of applicants 

The Dublin statistics below relating to transfer requests and actual transfers demonstrate the 
need for a clearer picture on the cohort of actual applicants as opposed to applications.  

Table  3.4.3  (b):  Number  of  accepted  Dublin  requests  (as  reported  by  the  country  accepting  the 
request) 

Source: Eurostat 

A  take  charge  request  is  sent  when  the  applicant  applies  for  international  protection  in  a 
Member  State  for  the  first  time,  but  there  is  proof  or  circumstantial  evidence  that  another 
Member  State  is  responsible  due  to  the  application  of  the  responsibility  criteria  (family 
relations, issuance of residence documents or visas, or irregular entry into the EU). 
A take back request is sent when the applicant lodges an application in a Member State and 
there is proof or circumstantial evidence that he or she has previously lodged an application 
in another Member State. However, it is important to highlight that, since an applicant often 
absconds before the Dublin transfer is carried out and can lodge a third application in a third 
Member State, several of the accepted take back requests can relate to the same applicant. 

Table 3.4.3 (c): Number of incoming transfers (transfers effected) 

Source: Eurostat 

The share of actual transfers as compared to requests vary considerably over the years but has 
never increased above 35% since 2012 and was as low as 20% in 2015. 

61 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Table 3.4.3 (d): Share of transfers 

Source: Eurostat 

However, as stated above, while a request is linked to the application, the actual transfers is 
linked  to  the  person.  Since  the  number  of  requests  does  not  necessarily  correspond  to  a 
specific  person,  but  one  person  may  nevertheless  apply  several  times  in  several  Member 
States  before  one  Member  State  successfully  carries  out  the  transfer,  the  statistics  will  not 
show how many multiple requests correspond to actual transfers. 

3.3.4 Procedural inefficiencies of the Dublin system create an administrative burden 

The  procedural  inefficiencies  of  the  current  Dublin  system  also  create  a  significant 
administrative  burden  on  Member  States  authorities,  and  on  their  asylum  and  reception 
systems.  
As seen above, take back requests represent an average of over a two-thirds share out of all 
requests. This indicates that multiple applications repeated in several Member States create a 
considerable  administrative  burden  for  both  Member  States  involved.  On  the  one  hand,  the 
Member State where the application is lodged must carry out the Dublin procedure and give 
the  applicant  access  to  the  reception  system,  even  though  it  is  not  responsible  for  the 
applicant.  On  the  other  hand,  the  Member  State  responsible  must  reply  to  all  incoming 
requests,  sometimes  multiple  times  for  the  same  person,  and  make  the  necessary 
arrangements  in  relation  to  incoming  transfers.  As  the  responsibility  can  shift  if  the  time 
limits  for  sending  requests  are  not  respected,  this  also  implies  that  Member  States  are 
engaging  in  sending  transfer  requests  even  where  they  are  aware  that  an  actual  transfer  is 
unlikely to follow. This places a burden on the asylum system, and tends to be costly.  

Other  procedural  inefficiencies  also  include  the  difficulties  in  obtaining  and  agreeing  on 
evidence  proving  a  Member  State's  responsibility  for  examining  the  asylum  application, 
which lead to an increase in the number of rejections of transfer requests of applicants. Even 
where  Member  States  accept  transfer  requests,  only  about  a  quarter  of  such  cases  result  in 
effective  transfers,  and,  after  completion  of  a  transfer,  there  are  frequent  cases  of 
unauthorised movements back to the transferring Member State.  

The considerable burden on the asylum and reception systems of the Member States is further 
demonstrated by the diversity in the time taken  for implementing the Dublin transfers. The 
Evaluation93  from  2015 shows that the estimated time for implementing the transfers could 
take from three days (IE), to six months (most Member States). However, six Member States 
stated that few to very few transfers were implemented before the expiration of the 6-month 
time  limit.  Twenty  Member  States  stated  that  the  absconding  of  the  applicant,  allowing  for 

93Evaluation  of  the  Dublin  III  Regulation,  DG  Migration  and  Home  Affairs,  Final  report,  2015.  Available  at: 
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/asylum/examination-of-
applicants/docs/evaluation_of_the_dublin_iii_regulation_en.pdf  

62 

 
 
 
 
 
 
 
                                                           
the  extended  transfer  time  limit,  was  the  primary  explanation  for  delays.  These  divergent 
practices create legal uncertainty for all parties, including the applicant, as well as practical 
problems.  In  addition,  Member  States  also  highlighted  that  transfers  in  general  lack 
effectiveness,  indicating  that  unauthorised  movements  are  ‘often’  observed  following  a 
completed transfer.    

This  situation  also  comes  at  a  high  cost.  According  to  the  Cost  of  Non-Europe  in  Asylum 
Policy study by the European Parliamentary Research Service (EPRS), the above-mentioned 
rules for determining the Member State responsible, coupled with the lack of solidarity, lead 
to:  

  High number of transfer requests that are rejected (cost of EUR 186-236 million per year); 
  High numbers of appeals against Dublin transfers (estimated cost of EUR 74-87 million per 

year); 

  Accepted transfer requests that are not implemented (EUR 390 to 509 million per year); 
  Transfers without a distributive effect (EUR 16 million per year).  

Figure 3.3.4: Time frame under which the majority of transfers is carried out in consulted Member 
States 

3.4 Lack of targeted mechanisms to address crisis situations  

The  EU  is  currently  better  prepared  to  address  crisis  situations  than  it  was  in  2015. 
Nevertheless,  the EU is  still lacking a toolbox to  address  situations of crisis, which could 
result from a mass influx of third-country nationals arriving irregularly capable of rendering a 
Member State’s asylum or reception system non-functional,  and have serious consequences 
on the functioning of the overall CEAS. 

By  their  nature,  such  situations  of  crisis  would  make  it  difficult  to  ensure  quick  access  to 
asylum or other procedures at the borders. There is a need to have a framework within which 
to  deal  with  crises  or  situations  of  force  majeure  where  the  response  under  the  other 
legislative instruments, which are not designed for such exceptional circumstances, would be 
insufficient.  Member  States  need  tools  to  deal  with  the  various  and  different  causes  of 
migration as  well as immediate measures to  deal  with  the extreme pressure stemming from 
such situations.  

The  COVID-19  pandemic  declared  by  the  World  Health  Organisation  on  11  March  2020 
further point to areas where resilience is needed through specific rules that can be applied in 
situations of force majeure. For example, the rules on time limits for transfers in the Dublin 

63 

 
 
 
 
 
 
 
Regulation  presented  a  number  of  difficulties  in  a  situation  where  internal  borders  were 
closed and Member States imposed travel restrictions.  

The existing measures to grant quick access to  protection do not seem to be fit for purpose 
either,  apart  from  the  fact  that  it  should  still  be  possible  to  allow  for  an  almost-  automatic 
granting  of  protection  to  a  group  of  third-country  nationals  at  high  risk.  According  to  the 
Study94  on  the  Temporary  Protection  Directive95  (TPD),  in  the  absence  of  definitions  of 
different  types  of  mass  influx  set  out  in  the  Directive,  and  indicators  on  how  to  measure 
these, stakeholders agreed that it has been hardly possible to attain Member State agreement 
on the possible activation of the TPD. Procedural weaknesses to activate and implement the 
temporary  protection  mechanism  were  also  identified,  pointing  to  a  potentially  lengthy  and 
cumbersome procedure. The Temporary Protection Directive therefore no longer responds to 
Member States’ current reality and needs to be repealed.  

In  addition,  in  crisis  situations,  the  effectiveness  of  response  can  be  heavily  influenced  by 
effective  foresight  and  preparation,  moving  from  a  reactive  mode  to  one  based  on 
preparedness and anticipation. This is something that is still missing at EU level, and that is 
necessary as part of effort to make the current migration management system more resilient 
and responsive.   

The challenges outlined above highlight the need for specific rules on crisis solidarity, which 
would include a solidarity scheme for relocation with a wider scope or return sponsorship to 
ensure  that  Member  States  are  obliged  to  provide  a  quick  response  to  release  the  extreme 
pressure  faced  by  affected  Member  States.  They  also  call  for  procedural  derogations  that 
Member  States  can  apply  in  their  asylum  and  migration  systems.  Derogations  from  the 
asylum and return rules should ensure that Member States have the means and sufficient time 
to carry out relevant procedures in those fields.  

3.5 Lack of a fair and effective system for migrants and asylum seekers to access their 
rights  

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.   

Backlogs,  long  waiting  periods,  as  well  as  asylum  and  return  procedures  not  sufficiently 
streamlined,  can  have  an  impact  on  the  protection  of  fundamental  rights  of  those  seeking 
international protection.96  

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. 
This remains the case also in situations of crisis. Also, the fundamental rights of those who 
are not in need of international protection need to be fully respected. 

94 Carried out for DG HOME by ICF, January 2016. 
95 Council Directive 2001/55/EC.  
96 UNHCR, Recommendations for the European Commission’s proposed Pact on Migration and Asylum, 
January 2020. Available at: https://www.refworld.org/docid/5e3171364.html   

64 

 
 
 
 
 
 
 
 
 
 
                                                           
Experience also point to the need to reinforce the right to family reunification and strengthen 
the rights of unaccompanied minors. 

Based  on  experience,  special  attention  needs  to  be  given  to  migrants  rescued  in  SAR 
operations.  A  ship-by-ship  approach,  with  long  and  often  unpredictable  times  for 
disembarkations  and  relocations,  has  proven  to  be  unsustainable  and  putting  vulnerable 
migrants  at  risk  and  delaying  access  to  international  protection.  This  points  to  the  need  of 
clearer rules for the determination of responsibility and to provide for a solidarity mechanism 
that can reflect the specificities of disembarkations following search and rescue operations. 

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 points to the need to reinforce the right to family reunification and strengthen 
the rights of unaccompanied minors.97 As already highlighted in the Communication on the 
Protection  of  Children  in  Migration,98  family  reunification  and  family  unity  procedures  are 
often  protracted  or  start  too  late,  pointing  to  the  need  to  speed  up  family  reunification 
procedures and prioritise unaccompanied minors.   

4.    THE  2016  PROPOSALS  TO  REFORM  THE  COMMON  EUROPEAN 
ASYLUM SYSTEM  

In  2016  the  European  Commission  presented  a  set  of  legislative  proposals  to  complete  the 
reform of the CEAS, with the aim to move towards a fully efficient, fair and humane asylum 
policy which can function effectively also in times of high migratory pressure. 

4.1  Towards  a  reform  of  the  Common  European  Asylum  System:  the  proposals 
recommended for quick adoption 

The  co-legislators  reached  a  broad  political  agreement  on  five  out  of  the  seven  CEAS 
proposals  introduced in  2016, 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.  Although  a 
common position on the reform of the Dublin system and the Asylum Procedure Regulation 
was not reached, the Commission has been supporting a quick adoption of the proposals still 
on the table to rapidly move towards an, efficient, fair and humane CEAS. These proposals 
include: 

97 Save the Children, Protection beyond reach, 2020. Available at: 
https://resourcecentre.savethechildren.net/node/18172/pdf/report_5_years_migration_1.pdf  
98 European Commission, Communication on Children in Migration, 2017. Available at: 
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-
migration/20170412_communication_on_the_protection_of_children_in_migration_en.pdf  

65 

 
 
 
 
 
 
 
 
                                                           
The Qualification Regulation 

Replacing  the  Qualification  Directive  (Directive  2011/95/EU)  with  a  Regulation  aims  at 
achieving  more  convergence  in  asylum  decision-making,  by  changing  the  current  optional 
rules  providing  common  criteria  for  recognising  asylum  applicants  to  obligatory  rules,  by 
further  clarifying  and  specifying  the  content  of  international  protection,  in  particular  as 
regards the duration of residence permits and social rights, and by establishing rules aimed at 
preventing unauthorised movements.   

By  replacing  the  Qualification  Directive  with  a  Regulation,  protection  standards  will  be 
harmonised across the EU, by creating greater convergence of recognition rates and forms of 
protection.  The  new  Regulation  will  introduce  stricter  rules  sanctioning  unauthorised 
movements  and  strengthening  integration  incentives  for  beneficiaries  of  international 
protection. The new Regulation will clarify the criteria for granting international protection in 
particular  by  making  the  application  of  the  internal  protection  alternative  compulsory  for 
Member States as part of the assessment of the application for international protection. The 
content  of  protection  will  also  clarify  the  rights  and  obligation  of  the  beneficiary  of 
international protection.  

A recast Reception Conditions Directive 

The  Reception  Conditions  Directive  will  ensure  asylum  seekers  receive  decent  conditions 
throughout  the  EU,  reduce  incentives  for  abuse  and  increase  the  possibility  for  asylum 
seekers to be self-reliant. Member States will be obliged to have contingency plans in place to 
ensure  sufficient  reception  capacity  at  all  times,  including  in  times  of  disproportionate 
pressure. Asylum seekers will be provided with full reception conditions only in the Member 
State  responsible  for  their  asylum  application.  This  will  help  prevent  asylum  seekers  from 
travelling  from  Member  State  to  Member  State.  To  ensure  an  efficient  procedure,  Member 
States  will  be  able  to  allocate  asylum  seekers  to  a  geographical  area  within  their  territory, 
assign them a place of residence and impose  reporting obligations to discourage them from 
absconding. Asylum seekers with  well-founded  claims will be granted the right  to  work no 
later than six months after their application is registered. Minors will receive education within 
two  months  after  their  asylum  request  is  lodged.  Unaccompanied  minors  will  immediately 
receive assistance and will be appointed a representative no later than 15 days after an asylum 
application is made.  

A reinforced European Union Asylum Agency 

The adoption of this Regulation  will set-up a fully-fledged EU Asylum Agency and further 
reinforce the Agency’s operational capacity, equipping it with the necessary staff, tools and 
financial means to support Member states throughout the asylum procedure. 

An EU Resettlement Framework 

An  EU  Resettlement  Framework  would  establish  a  permanent  framework  with  a  unified 
procedure  for  resettlement  across  the  EU.  While  the  Member  States  will  remain  the  ones 
deciding on how many people will be resettled each year, by coordinating national efforts and 
acting  as  a  whole,  the  EU  will  have  a  greater  impact  and  will  be  able  to  contribute 
collectively and with one single voice to global resettlement efforts. 

66 

 
 
 
4.2 A stronger and more effective European return policy 

The recast Return Directive proposal 

To improve the effectiveness of the EU return policy, on 12 September 2018 the Commission 
proposed  a  targeted  revision  of  the  Return  Directive99.  The  recast  of  the  Return  Directive 
aims  to  tackle  difficulties  and  obstacles  that  Member  States  face  in  return  procedures, 
including:  

 

 
 
 

the lack of clear common rules on the definition of risk of absconding and the 
consequent  inconsistent  use  of  detention  resulting  in  absconding  and 
unauthorised movements;  
the lack of cooperation of individuals subject to return procedures;  
the insufficient monitoring of individual cases;  
the volatility of national assisted voluntary return programmes.  

The  revised  Return  Directive  will  allow  Member  States  to  better  deal  with  the  lack  of 
cooperation  on  the  part  of  the  third-country  nationals  that  leads  to  obstruct  the  return 
procedure,  by  setting  new  third-country  nationals’  obligations  and  increasing  support  for 
voluntary return. 

The main elements of the proposal are:  

  a new border procedure for the rapid return of applicants for  international protection whose 

application is rejected following an asylum border procedure; 

  clearer and more effective rules on the issuing of return decisions;  

  stronger coherence and synergy between return and asylum procedures;  

  streamlined rules on the granting of a period for voluntary departure, and a new framework 
for providing financial, material and in-kind assistance to irregular migrants willing to return 
voluntarily (assisted voluntary return); 

  common list of criteria to determine the risk that an irregular migrant may abscond;  

  stronger  rules  on  preventing  absconding  and  unauthorised  movements,  notably  by  allowing 
detention of irregular migrants who pose a security threat and establishing a maximum period 
of detention of at least three months; 

  new obligation for irregular migrants to cooperate with the competent national authorities in 

view of facilitating identification and speeding up procedures; 

  establishment  of  national  IT  systems  to  manage  and  monitor  the  administrative  procedures 
and facilitate the exchange of information among competent authorities and the execution of 
return, including with the EBCG Agency;  

  clearer rules on the possibilities to appeal against return decisions and the suspensive effect of 

such appeals. 

4.3 Outstanding challenges 

Since the 2016 legislative initiatives were put forward, new realities and trends emerged on 
the  different  migratory  routes.  Despite  progress  made  on  a  number  of  the  2016  proposals, 

99 COM(2018) 634. 

67 

 
 
 
                                                           
diverging  views  in  the  Council  have  prevented  agreement  on  the  full  reform.  In  addition, 
there  are  still  a  number  of  challenges  putting  Member  States’  asylum,  reception  and  return 
systems under strain. These are, in particular, the increasing proportion of asylum applicants 
without genuine claims, the persistent onward movements of migrants within the EU as well 
as the different challenges on the different migratory routes, a lack of a solidarity mechanism 
that  can  ease  the  pressure  on  Member  States  including  on  how  to  deal  with  migrants  after 
disembarkation  following  SAR  operations.  Further  tools  are  therefore  necessary  to  address 
these challenges. 

The  Commission  proposed  a  recast  Return  Directive  in  2018  to  address  loopholes  in  the 
return  system,  while  making  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. At the Justice and Home 
Affairs  meeting  of  6-7  June  2019,  the  Council  reached  a  partial  general  approach  on  all 
aspects of the proposal, apart from those relating to the border procedure for returns.  

As  rejected  asylum  seekers  represent  a  significant  number  of  the  irregular  migrants  in 
Europe,  the  asylum  and  return  procedures  must  flawlessly  work  together,  to  allow  prompt 
return  when  asylum  is  denied.  The  targeted  amendments  to  the  new  Asylum  Procedures 
Regulation will eliminate remaining loopholes, further reducing the possibilities for abusing 
the  asylum  system  and  frustrating  returns.  Amendments  to  the  Asylum  Procedures 
Regulation,  including  on  the  asylum  and  return  border  procedure,  should  facilitate  and 
accelerate  negotiations  on  the  Return  Directive  whose  swift  adoption  is  essential  for  an 
effective EU asylum and migration system. 

68 

 
 
 
 
THE CHALLENGES FACED BY THE EU  

Lack of integrated approach to implement the European asylum and 
migration policy  

• Unlevel playing field across Member States, hampering efforts to ensure access to 

procedures, equal treatment, clarity and legal certainty 

National inefficiencies and lack of EU harmonisation in asylum and 
migration management 

• Challenges of the return and asylum nexus  
• Limited use of assisted voluntary return programmes 
• Lack of streamlined procedures upon arrival  
• Delays in accessing the appropriate asylum procedure and slow processing of applications 
• Difficulty in using the border procedure 

ADDRESSING THE CHALLENGES  

A more efficient, seamless and harmonised migration management 
system  

• A comprehensive approach for efficient asylum management (Proposal for a Regulation 
establishing a common framework for the EU’s asylum and migration management) 

• A seamless asylum-return procedure and an easier use of accelerated and border 

procedures (Amended Proposal for a Regulation on establishing a common procedure for 
international protection in the Union) 

• A coordinated, effective and rapid screening phase (Proposal for a Regulation introducing 
the screening of persons apprehended in connection with irregular crossing of external 
borders, disembarked following SAR operations or who request international protection 
at border crossing points) 

A fairer, more comprehensive approach to solidarity and relocation 

Absence of a broad and flexible mechanism for solidarity 

• A solidarity system, allowing for compulsory solidarity with a broader scope (Proposal for a 

Regulation on asylum and migration management) 

• Relocation is not the only effective response to deal with mixed flows 

Simplified and more efficient rules for robust migration management 

Inefficiencies in the Dublin system 

• Lack of a sustainable sharing of responsibility under the current system 
• Current rules on the shift of responsibility contribute to unauthorised movements 
• Inefficient data processing 
• Procedural inefficiencies of the Dublin system create an administrative burden 

• A wider and fairer definition of responsibility criteria, reducing the cessation and shift of 

responsibility (Proposal for a Regulation on asylum and migration management) 

• More efficient data collection/processing, allowing for counting appliants rather than 

applications, and including a specific category for SAR (Amended Proposal for a Regulation 
on the establishment of ‘Eurodac’) 

• Improved procedural efficiency (Proposal for a Regulation on asylum and migration 

management)  

Lack of targeted mechanisms to address extreme crisis situations 

A targeted mechanism to address extreme crisis situations  

• EU's difficulty to ensure access to asylum or other procedures at the borders during 

situations of extreme crisis 

Lack of a fair and effective system to access fundamental rights  

• [...] (Proposal for a Regulation establishing procedures and mechanisms addressing 

situations of crisis)  

Improved access to fundamental rights of migrants and asylum 
seekers 

69 

 
 
 
 
 
 
5. ADDRESSING THE CHALLENGES 

The challenges described thus far can only be addressed by making the European asylum and 
migration  system  more  efficient,  comprehensive  and  sustainable.  The  EU’s  migration 
management has to be seen as a set of interlocking policies and rules, where the effectiveness 
and shortcomings of each single part affect the system as a whole. New or more streamlined 
and  coordinated  procedures  are  needed  to  create  a  seamless  link  between  all  stages  of  the 
migration  process.  This  will  create  a  level  playing  field  across  Member  States,  which  will 
reduce asylum shopping and limit unauthorised movements. 

The  new  system  should  also  be  fair  and  efficient,  ensuring  solidarity  and  responsibility  in 
situations  of  pressure  and  crisis.  It  should  also  recognise  the  particular  characteristics  and 
needs arising from SAR disembarkations. 

In this context, the Commission is presenting the following proposals:  

  Proposal for a Regulation on Asylum and Migration Management 
  Amended  proposal  for  a  Regulation  on  establishing  a  common  procedure  for  international 

protection in the Union 

  Amended proposal for a Regulation on the establishment of ‘Eurodac’ 
  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 

  Proposal  for  a  Regulation  addressing  situations  of  crisis  and  force  majeure  in  the  field  of 

migration and asylum  

5.1 A more efficient, seamless and harmonised migration management system  

5.1.1 A comprehensive approach for efficient asylum management  

The  proposed  Regulation  on  Asylum  and  Migration  Management  introduces  a  common 
framework  that  contributes  to  the  comprehensive  approach  to  asylum  and  migration 
management.  

This  allows  for  a  comprehensive  view  of  the  situation  at  EU  level,  as  well  for  a  realistic 
picture of the migration management system at the level of the Member States and an early 
identification  of  gaps  that  need  to  be  addressed.  Furthermore,  widening  the  scope  of  the 
proposal will also enable a tangible and effective response to migratory pressure based on a 
wider toolbox of solidarity measures. 

In order to implement such an approach, it is important to strengthen the framework with the 
principle of preparedness and planning. The proposal foresees a governance framework built 
on national strategies of Member States in order to ensure that sufficient capacity is in place 
to  effectively  manage  asylum  and  migration  policies,  including  on  contingency  planning. 
This will feed into a European Strategy on Asylum and Migration Management that will set 
out the strategic approach to managing asylum and migration at the European level and on the 

70 

 
 
 
 
 
 
 
 
 
implementation  of  asylum,  migration,  and  return  policies  in  accordance  with  the 
comprehensive approach.   

In  addition,  an  annual  Migration  Management  Report  published  by  the  Commission  will 
allow  for  a  timely  response  to  evolving  trends  in  migration  and  include  a  short-term 
projection of the evolution of the migratory situation. This framework will be underpinned by 
a  system  of  monitoring  of  the  migratory  situation  through  regular  situational  reports 
published by the Commission.  

5.1.2 A coordinated, effective and rapid screening phase  

In the context of the current mixed migratory flows, notably the high share of low recognition 
rate asylum applications, the EU must continue to provide protection to those eligible, while 
also ensuring that those who are not eligible to stay actually return.  

In  this  context,  a  coordinated,  effective  and  rapid  screening  phase,  comprising  of  the 
adequate  identity,  security  and  health  checks,  aims  to  help  national  authorities  whether  to 
refuse entry at the external border or to direct international protection applicants towards the 
appropriate  procedure  (i.e.  normal,  accelerated,  border  or  return  procedure100).  A  new 
screening  phase  will  also  facilitate  the  use  of  fast-track  procedures  for  applicants  coming 
from low-recognition rate countries or those coming from safe third countries. 

According to 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  SAR  operations  or  who  request 
international protection at border crossing points, all irregular migrants arriving at the EU’s 
external borders would be immediately screened within maximum five days. The procedure 
aims  at  establishing  their  identity  and  identify  any  security  or  health  concerns  or 
vulnerabilities. The screening should also apply to all those who have been apprehended on 
the  EU’s  territory,  whenever  there  is  an  indication  that  they  have  not  been  subject  to  entry 
checks upon arrival. 

In  addition,  swift  registration  in  Eurodac  would  contribute  to  more  accurate  and  more 
complete statistics and would ensure that third-country nationals or stateless persons do not 
move  forward  undetected.  This  would  also  help  correcting  the  discrepancies  between 
irregular  border  crossings  and  registrations  in  Eurodac,  allowing  for  data  to  be  sent 
immediately to Eurodac. 

During  the  screening,  migrants  would  be  held  by  competent  national  authorities,  who  will 
collect the relevant information to be shared with the authorities in charge of the follow-up 
procedure, through a de-briefing form from border guards to the asylum authority including 
any elements relevant to directing persons into the accelerated or border procedure. Helping 
the process in this way makes the asylum or return procedure more efficient.  

100  As  far  as  the  return  procedure  is  concerned,  this  should  be  identified  as  the  most  appropriate  one  only 
following  a  careful  analysis  of  the  individual  cases,  and  ensuring  compliance  with  the  principle  of  non-
refoulement. 

71 

 
 
 
 
 
 
                                                           
This  proposal  also  provides  an  obligation  for  the  Member  States  to  set  up  an  independent 
monitoring mechanism in order to ensure that the Charter of Fundamental Rights and other 
EU and international obligations are complied with during the screening. 

The  monitoring  under  the  screening  would  be  subject  to  the  obligation  concerning  the 
governance and monitoring of the migratory situation, resulting from the new Regulation on 
Asylum and Migration Management. Accordingly, Member States should integrate the results 
of  their  national  monitoring  mechanism  established  by  the  Screening  Regulation  in  their 
national strategies foreseen in the Regulation on Asylum and Migration Management. 

5.1.3  A  seamless  asylum-return  procedure  and  an  easier  use  of  accelerated  and  border 
procedures 

The  new  legislative  framework  has  to  address  a  number  of  challenges,  such  as  provide  for 
quick  procedures  for  identifying  the  different  categories,  ensure  that  vulnerable  cases  are 
identified, and that return procedures are efficient.  

Whilst asylum applications made at the EU’s external borders must be assessed, they do not 
constitute  an  automatic  right  to  enter  the  EU.  If  an  asylum  claim  is  clearly  abusive  or 
inadmissible, or if the applicant poses a threat to a Member State’s security, this should be 
swiftly  assessed  at  the  border,  to  allow  for  persons  with  inadmissible  applications  to  be 
quickly removed.  

The screening is  aimed  at  facilitating the assessment  of whether a third-country  national  or 
stateless  person  qualifies  for  the  border  procedure.  It  allows  for  a  pre-entry  triage  process 
which  can  identify  information  and  objective  grounds  which  serve  as  a  basis  for  asylum 
authorities  to  subsequently  apply  a  border  procedure;  in  particular  an  identified  security 
threat, a strong indication for an unfounded claim or the country of origin, should it indicate a 
low recognition rate or visa-exempt country.  

In this context, the amended proposal for a Regulation on establishing a common procedure 
for international protection in the Union strives to make border procedures more efficient and 
extend  their  use  to  cover  more  categories  of  applicants,  including  those  coming  from 
countries with very low recognition rates, as mentioned above. 

The  proposal  aims  to  set  up  a  seamless  procedure,  with  the  asylum  and  return  border 
procedures  in  a  single  legislative  instrument.  The  purpose  of  the  connected  asylum-return 
procedure  at  the  external  border  is  to  quickly  assess  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. An individual assessment of an 
asylum  application  is  nevertheless  always  to  be  ensured.  This  is  an  important  migration 
management tool, in particular where a large share of asylum applicants originate from low 
recognition rate countries.  

In addition, the border procedure would be more flexible than it currently is, allowing for the 
holding of  applicants  not  only at  the border or in proximity to  the border, but  also  at  other 
locations,  should  capacity  become  stretched.  The  length  of  the  procedure  would  also  be 
extended to  ensure that the asylum procedure could  be concluded within the deadline. This 
would address the challenges identified as regards the fact that the current border procedure 

72 

 
 
 
 
has  not  been  used  to  its  full  extent  by  Member  States,  as  well  as  remedy  the  challenge 
presented by tight deadlines.  

To serve its purpose, the border procedure needs to be easy to use. EU funds would be made 
available  for  the  necessary  infrastructure  to  keep  applicants.  In  other  cases,  its  application 
would be voluntary for the Member States to apply.  

More  efficient  border  procedures  will  lessen  the  burden  on  the  asylum  and  migration 
authorities  inland,  which  will  be  able to  more  efficiently  assess  the  genuine  claims,  deliver 
faster decisions and overall contribute to a better and more credible functioning of the CEAS.  

Furthermore, under the new proposal, Member States are to receive EU financial operational 
support to ensure that the asylum and return phases of the border procedure are closely 
connected to each other, e.g. by keeping applicants whose applications have been rejected in 
border  facilities  until  the  enforcement  of  the  return  decision.  Irregular  migrants  in  a  return 
border procedure would not be subject to detention as a rule. However, when it is necessary 
to prevent irregular entry already during the assessment of the asylum application, or there is 
a risk of absconding, of hampering return, or a threat to public order or national security, they 
may  be  subject  to  detention,  in  compliance  with  fundamental  rights  and  with  specific 
safeguards in place101.  

Alongside more efficient border procedures, the  Commission  also  proposes to  issue  return 
decisions  in  the  same  act  as  the  decision  rejecting  the  asylum  application,  in  order  to 
make  the  return  process  quicker  and  prevent  the  misuse  of  asylum  procedures.  Return 
decisions  would  also  be  appealed  to  the  same  court  and  with  the  same  deadlines  as  the 
asylum  ones.  A  system  where  return  decisions  are  issued  together  with  rejected  asylum 
claims may reduce the burden on both administrative and judicial authorities, as it unifies two 
administrative  and  appeal  procedures  into  a  single  one.  More  concretely,  joining  the  two 
appeal  procedures  will  prevent  deficiencies  in  asylum  and  return  systems  from  leading  to 
unauthorised movements and creating unwanted effects for the Schengen area (i.e. migrants 
moving to Member States where they can best evade return). It is important to highlight that 
joining the two appeal procedures is still coherent with the respect of the principles on non-
refoulement and of procedural autonomy of the Member States. Although this would have an 
impact  on  the  procedural  autonomy  of  the  Member  States,  the  measure  is  necessary  and 
proportionate  because  it  addresses  the  main  weakness  identified  in  the  relation  between 
asylum and return procedures. On the other hand, the procedural autonomy of Member States 
as regards irregular migrants who are not rejected asylum seekers remains unaffected.  

The proposal would only allow for one level of appeal in a border procedure and provide for 
a  non-automatic  suspensive  effect.  This  would  mean  that  only  one  court  would  look  at  a 
rejection  decision,  and  even  during  that  court  appeal,  the  person  would  only  be  allowed  to 
remain (and not returned) if the Court considers (upon request) that its presence is required 
for the exercise of the right of an effective legal remedy. This will prohibit suspensive effects 
on second level or further appeals, and ensure that asylum and return decisions are subject to 
the same effective remedy before a court or tribunal, within the same time limits.  

101 See Section 5.6 for impact on fundamental rights. 

73 

 
 
 
                                                           
This process supports, on the one hand, the efficient application of border procedures and, on 
the other hand, Member States’ rapid response to subsequent applications lodged during the 
last  phases  of  the  return  procedure,  which  often  have  the  sole  purpose  of  delaying  or 
preventing  return.  By  ensuring  that  rejected  asylum  seekers  do  not  enter  the  EU’s  territory 
and  that  returnees  remain  available  in  the  border  area  or  transit  zone,  the  return  border 
procedure will contribute to reducing irregular entry and stay and unauthorised movements.  

The  proposal  also  takes  into  account  the  feasibility  of  return  and  provides  for  a  derogation 
form the compulsory use of the border procedure by linking it to a clause in the Visa Code, 
which can be triggered by Member States if a third-country does not cooperate in this regard. 
Therefore, if such a clause is triggered vis-à-vis a third-country, which indicates that return 
could be challenging, Member States would not be obliged to use the border procedure vis-à-
vis those asylum applicants.   

Summary box 5.1 - A more efficient, seamless and harmonised migration management system 

  A  common  framework  that  contributes  to  the  comprehensive  approach  will  allow  for  a 
more  efficient  asylum  and  migration  management  system  and  for  a  better  prepared  and 
resilient system.  The governance system foreseen enables the Union to take a systematic 
strategic  approach  to  migration  and  to  better  prepare  for  the  short  and  longer  term 
challenges.  The  system  relies  on  national  strategies  and  strategies  and  reports  of  the  EU 
Agencies thus limiting the burden on Member States. 

  A  new  screening  phase  will  allow  for  a  swift  determination  of  whether  to  channel 

individuals into the asylum or return procedure. 

  In  the  amended  Asylum  Procedure  Regulation  proposal,  it  is  proposed  to  issue  return 
decisions in the same act as the decision rejecting the asylum application, in order to make 
the return process quicker and prevent the misuse of asylum procedures. 

5.2 A fairer and more comprehensive approach to solidarity  

The  proposal  for  a  Regulation  on  Asylum  and  Migration  Management  acknowledges  the 
challenge  of  mixed  flows  with  an  increasing  share  of  irregular  arrivals  to  the  EU  and 
addresses this reality at the EU level. This is done by promoting integrated policy-making in 
the  area  of  asylum  and  migration  management,  and  taking  into  account  the  effective 
implementation  of  policies  in  all  other  relevant  areas,  ranging  from  close  cooperation  and 
mutual  partnerships  with  relevant  third  countries,  to  the  effective  management  of  the  EU’s 
external borders. 

A  structured  solidarity  mechanism  is  proposed  to  provide  for  better  migration  management 
by  putting  in  place  a  system  to  address  situations  where  Member  States  are  faced  with 
migratory pressure in order to give meaning to the principle of solidarity and a fair sharing of 
responsibility  in  the  Treaty  on  the  Functioning  of  the  European  Union.    In  addition  the 
specificities  of  search  and  rescue  operations  are  also  addressed  through  the  solidarity 
mechanism. 

5.2.1 A new approach to solidarity 

For solidarity to be effective and meaningful, it needs to be broadened beyond the relocation 

74 

 
 
 
 
 
 
of  asylum-seekers  with  a  very  high  recognition  rate.  This  means  broadening  the  scope  to 
asylum-seekers  that  are  not  in  a  border  procedure  and  to  beneficiaries  of  international 
protection in order to ensure that the solidarity mechanism is more flexible and includes tools 
that  can  also  deal  with  the  realities  of  an  increasing  share  of  migrants  that  do  not  have 
protection needs.  This  means that the scope should be enlarged to include solidarity in the 
field of return by means of the new measure of return sponsorship, through which a Member 
State  commits  to  carry  out  the  necessary  activities  to  return  illegally  staying  third-country 
nationals  from  a  Member  State  under  pressure  and  to  transfer  the  third-country  nationals 
concerned if these measures have been unsuccessful after a period of 8 months (4 months in 
situation of crisis).      

Under the proposed approach, all Member States would have to contribute while retaining the 
possibility  to  choose  to  contribute  through  relocation  or  return  sponsorship  as  a  solidarity 
measure.  Member  States  would  have  to  submit  Solidarity  Response  Plans  indicating  which 
solidarity contributions they will make. The amount and nature of these contributions will be 
calculated  according  to  a  distribution  key  based  on  population  and  GDP  of  each  Member 
State. This will represent the share of contributions that each Member State would be obliged 
to  make.  An  approach  with  the  built-in  flexibility  to  choose  from  the  measures  that  they 
would  be  obliged  to  take  ensure  support  to  Member  States  under  migratory  pressure, 
respecting the type of solidarity contribution indicated by individual Member States.  

In certain cases needs may also be identified that require other types of solidarity in the form 
of capacity building or operational support or support in the external dimension that may be 
equally  necessary  in  dealing  with  such  pressure.  In  such  cases,  it  should  be  possible  for 
contributing Member States to provide solidarity in these areas instead of relocation or return 
sponsorship.  Such measures could take different forms ranging from assistance with putting 
in place enhanced reception capacity including infrastructure or other systems to enhance the 
reception  conditions  of  asylum  seekers.  This  could  also  include  financing  directed  at 
managing  the  asylum  and  migration  situation  in  a  specific  third-country  that  is  generating 
particular  migratory  flows  to  a  Member  State.  In  the  field  of  return  such  measures  could 
include, for instance, the financial or other assistance focussed on infrastructure and facilities 
that  may  be  necessary  to  improve  the  enforcement  of  returns  or  providing  material  or 
transport  means  for  carrying  out  operations.  Where  the  Commission  assesses  that  they  are 
proportionate to the share of these Member State and in line with the objectives set out in the 
Asylum and Migration Fund these contributions will be specified in the implementing act.   

If, however, the indications from Member States to take measures in the field of capacity, or 
operational  support,  or  the  external  dimension  amount  to  more  than  30%  of  the  required 
number  of  persons  to  be  relocated  or  subject  to  return  sponsorship,  the  Commission  will 
ensure that the Member States will have to contribute half of their share to these measures. 

A Member State may also request a reduction in its share where it can demonstrate that over 
the preceding 5 years it has been responsible for more than twice the EU per capita average 
of applications for international protection, and can request a deduction of 10% of its share. 
The  deduction  will  then  be  distributed  proportionately  among  the  other  Member  States 
contributing through relocation or return sponsorship. 

The  solidarity  mechanism  will  be  triggered  through  a  holistic  qualitative  assessment  and 
evaluated  according  to  a  number  of  criteria,  which  extend  beyond  the  asylum  field  to  the 
migratory situation of Member States, as well as to that of the EU as a whole.  By setting out 

75 

 
 
 
 
the broad assessment of pressure and the responses that would be necessary to deal with the 
situation, including on returns, the issue raised by a number of Member States that relocation 
can be a “pull factor” is also addressed. By means of providing for the possibility of return 
sponsorship it is clear that the Union is able to tackle the challenges of migration in a holistic 
manner.    

At  the  same  time,  the  new  approach  should  also  provide  for  other  forms  of  solidarity 
contributions.    Thus,  a  Member  State  may,  at  any  time,  on  a  voluntary  basis  make 
contributions for the benefit of that Member State, by means of relocation of applicants for 
international protection that are in the border procedure and irregularly staying third-country 
nationals.  

Under  the  proposed  Regulation  establishing  procedures  and  mechanisms  addressing 
situations of crisis and force majeure in the field of migration and asylum, relocation would 
also  be  applicable  to  persons  that  have  been  granted  immediate  protection  and  to  all 
applicants for international protection. 

5.2.2 Addressing specific situations under the new approach to solidarity 

Under the solidarity mechanism foreseen, a special focus is given to unaccompanied minors 
for the purposes of relocation.   

Firstly,  the  solidarity  mechanism  will  prioritise  the  relocation  of  unaccompanied  minors 
which will be supported by a higher lump sum from the EU budget. In the solidarity response 
plans to be submitted by Member States for solidarity measures, unaccompanied minors will 
have a special focus.   

The  realities  of  disembarkations  following  search  and  rescue  operations  also  need  to  be 
addressed  in  a  comprehensive  approach  to  migration  management.  An  annual  Migration 
Management  Report  will  set  out  the  short-term  projections  anticipated  on  all  routes  for 
disembarkations following such operations and indicating the solidarity response that would 
be required both in terms of relocation of applicants that are not in the border procedure or in 
terms  of  capacity  needs  of  the  concerned  Member  States.  Other  Member  States  shall  then 
indicate which type of solidarity measure they intend to take from either of the measures.   

Where the contributions indicated by the Member States are sufficient, the Commission shall 
adopt an implementing act establishing a solidarity pool.  However, 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).  Where  Member  States 
have indicated that they would intend to take measures in the field of capacity or the external 
dimension the Commission will establish the measure in the implementing act ensuring that 
they are in proportion to the share that they would have otherwise been responsible for in the 
case  of  relocation.  If  however  the  indications  from  Member  States  to  take  measures  in  the 
field  of  capacity  or  the  external  dimension  amount  to  over  30%  of  the  required  number  of 
persons  to  be  relocated,  the  Commission  will  ensure  that  the  Member  States  will  have  to 
contribute half of their share to relocation. In these cases a Member State may also chose to 
contribute to  return sponsorship instead of relocation. 

76 

 
 
 
The  proposed  mechanism  provides  for  a  process  whereby  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  for  the  particular 
benefitting  Member  State  or  Member  States.  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 vulnerable, the 
solidarity pool may also be used for the purpose of quickly relocating such persons.  

In order to facilitate a more structured cooperation and common approach between Member 
States  to  search  and  rescue,  besides  the  aspect  of  relocation  of  those  rescued  at  sea,  the 
Commission  will  set  up  the  first  European  Contact  Group  on  search  and  rescue  matters, 
bringing  together  Member  States  and  facilitating  exchanges  with  all  other  relevant 
stakeholders,  including  private  operators,  EU  Agencies  and  the  International  Maritime 
Organisation (IMO). 

5.2.3 Contingency planning 

The  proposal  for  a  Regulation  on  asylum  and  migration  management  provides  for  a 
governance and monitoring structure based on Member States’ reports on the implementation 
of  the  common  framework,  including  on  contingency  planning.  It  also  foresees  a  more 
structured system for planning, preparedness and prevention, including through contingency 
plans  at  both  national  and  EU  level,  with  the  aim  to  prevent  the  build-up  of  migratory 
pressure. 
A  new  European  Strategy  will  enable  a  forward-looking  perspective  on  the  risks  and 
opportunities present in migration management and how best to deal with them.  

Summary box 5.2 - A fairer and more comprehensive approach to solidarity 

  Compulsory  solidarity  for  situations  of  pressure  and  a  specific  solidarity  process  for 
disembarkations following search and rescue operations through a wider scope for relocation and 
inclusion of return sponsorship will ensure an effective response for those Member States facing 
migratory pressure or dealing with the specificities of search and rescue operations.  

  This widened solidarity will allow for an effective response to pressure caused by mixed flows of 
migration and ensure that solidarity is available to return those persons not in need of international 
protection,  by  strengthening  the  migration  management  system  and  addressing  any  possible  pull 
factors that arise. 

  The specific situation of solidarity for unaccompanied minors will also be addressed by prioritizing 
the relocation  of such  persons.  In  addition, the  flexibility  foreseen  for the  possibility  of  Member 
States to contribute through solidarity in the field of capacity building or external dimension will 
ensure  a  mechanism  that  is  fit  for  purpose  and  able  to  respond  to  the  needs  of  the  particular 
Member State under pressure. 

  The  costs  to  Member  States  for  such  relocation  (as  well  as  the  transfer  resulting  in  case  of 
relocation where return sponsorship is unsuccessful) will be offset by means of payments from the 
EU  budget  of  EUR  10,000  for  each  relocation.  A  higher  payment  of  EUR  12,000  per  person  is 
foreseen for relocation of unaccompanied minors. 

77 

 
 
 
 
 
 
 
 
5.3 Simplified and more efficient rules for robust migration management 

The  challenges  related  to  the  current  Dublin  system’s  rules  on  responsibility  are  addressed 
through  a  number  of  measures  in  the  new  proposal.  Some  of  these  have  already  been 
proposed in 2016 under the Dublin IV proposal102, and some are based on the current Dublin 
rules but improved.  

5.3.1 A wider and fairer definition of responsibility criteria 

The  new  system  foresees  a  wider  definition  of  ‘family  member’  to  include  siblings  and 
families  formed  in  transit.  By  extending  the  application  of  the  family  criteria,  these  will 
become  applicable  to  the  movements  of  people  across  borders  to  reunite  with  their  family 
members, which today are considered as unauthorised movements. 

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. 

5.3.2. Reducing cessation and shift of responsibility 

While  keeping  the  current  Dublin  rule  that  responsibility  ceases  if  the  person  is  effectively 
returned in compliance with a rejection or return decision, the principle that the applicant’s 
behaviour should not lead to a shift of responsibility, as proposed in 2016, is also maintained 
in the new proposal. This is done by deleting the current rules allowing for cessation or shift 
of responsibility where the person leaves the territory of the Member States for a minimum of 
three  months  during  the  examination  of  the  application,  or  absconds  to  evade  a  Dublin 
transfer for more than 18 months. For the same reason, the criterion linked to irregular entry 
should be applicable up to three years after the irregular entry took place, as opposed to the 
current 12 months. 

As proposed in 2016, the deletion of shift of responsibility when the time limit for sending a 
take back notification is not respected should be kept. Such shifts appear to have encouraged 
circumventing  the  rules  and  obstructing  the  procedure,  as  the  current  Dublin  procedure, 
including  the  respect  for  the  time  limits,  has  to  be  applied  for  every  time  an  application  is 
lodged in a Member State.  

5.3.3 More efficient data collection and processing 

A specific category in Eurodac for SAR 

102 European Commission, Proposal for a [Dublin IV Regulation], COM (2016) 270, 4 May 2016. 

78 

 
 
 
 
 
 
 
 
 
 
 
                                                           
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,  a  specific  process  leading  to 
relocation of persons following disembarkation from 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 
secondary 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.  

Counting applicants in addition to counting applications 

The  new  Eurodac  legislative  framework  also  provides  the  possibility  to  link  procedures  to 
specific  individuals,  rather  than  applications  for  international  protection,  in  order  to  have  a 
clearer picture of unauthorised movements. 

To  avoid  the  discrepancy  between  incoming  Dublin  requests  and  decisions  on  outgoing 
transfers, the proposed system allows for counting applicants in addition to applications. All 
data sets in Eurodac belonging to one person will be linked, regardless of their category, in 
one sequence103.  

Furthermore,  a  specific  provision  in  the  Eurodac  Proposal  requires  eu-LISA  to  produce 
statistics on the total number of asylum applicants and first-time applicants.  

The linking of the data set belonging to the same person will be automatically processed by 
the  Eurodac  Central  System,  once  the  hit  between  data  sets  is  confirmed  by  at  least  one 
Member  State  of  origin,  with  minimal  impact  on  the  administration  workload.  This  match 
will be automatically checked by each national Automated Fingerprint Identification System 
(AFIS)  and  a  verification  by  a  fingerprint/facial  image  expert  will  be  done  only  in  case  of 
doubt. 

Additional information to be introduced in Eurodac 

In order to facilitate the implementation of these proposed solutions, several additional new 
elements will be introduced in Eurodac, as follows: 

103 The data protection implications for applicants are analysed in the Annex to this document. 

79 

 
 
  
  
 
                                                           
 
  A new field that will allow Member States to mark when an application has been rejected and 
the applicant has no right to remain, in accordance with the amended proposal on the Asylum 
Procedures Regulation. This will also reinforce the link with return procedures and facilitate 
the  work  of  national  authorities  dealing  with  an  application  already  rejected  in  another 
Member State.  

  A new field to flag whether Voluntary Return and Reintegration Assistance (AVRR) has ever 
been granted, to improve Member States’ monitoring capacities in this field, detect possible 
abuses, and ultimately prevent the practice of returnees unrightfully benefiting from  AVRR 
funds. Introducing this new field would also help gather statistics and fill the information gap 
about “AVVR shopping”.   

  A  new  field  to  mark  whether  an  asylum  seeker  has  been  identified  as  a  potential  security 
threat  during  the  screening,  to  allow  for  their  exclusion  from  the  relocation  process,  in 
conformity  with  the  rules  on  relocation  in  the  proposal  for  a  Regulation  for  a  common 
framework for the EU’s asylum and migration management. 

  A field to indicate the Member State that issued or extended a visa, or on behalf of which the 
visa  has  been  issued,  alongside  the  visa  application  number.  This  would  facilitate  the 
application of the responsibility criteria for those Member States/Associated Countries, which 
are not bound by the VIS Regulation, but are, nevertheless, affected by the issuance of a visa.  

Consequential amendments on interoperability between EU large-scale information 
systems 

As  part  of  the  new  legislative  framework,  several  consequential  amendments  will  be 
introduced in Eurodac. 

In  2019,  the  Interoperability  Regulations104  were  adopted,  establishing  a  framework  for 
interoperability  between  EU  large-scale  information  systems.  This  framework  consists  of 
four  components:  a  European  Search  Portal  (EPS),  a  shared  Biometric  Matching  Service 
(shared BMS), a Common Identity Repository (CIR) and a Multiple Identity Detector (MID). 
Furthermore,  the  Regulations  also  established  a  Central  Repository  for  Reporting  and 
Statistics to support the objectives of all databases covered by the interoperability framework, 
by producing anonymised statistics using data from the databases.  

104 Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a 
framework for interoperability between EU information systems in the field of borders and visa and amending 
Regulations (EC) No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 
2018/1861  of  the  European  Parliament  and  of  the  Council  and  Council  Decisions  2004/512/EC  and 
2008/633/JHA and Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 
on  establishing  a  framework  for  interoperability  between  EU  information  systems  in  the  field  of  police  and 
judicial  cooperation,  asylum  and  migration  and  amending  Regulations  (EU)  2018/1726,  (EU)  2018/1862  and 
(EU) 2019/816.  

80 

 
 
 
 
 
 
                                                           
In  order  for  all  the  interoperability  elements  to  function  properly,  amendments  of  the  legal 
acts  governing  the  respective  databases  are  necessary.  Moreover,  it  is  also  necessary  to 
provide the possibility to produce cross-system statistics between the Eurodac, EES, VIS and 
ETIAS,  for  the  purpose  of  assisting  the  control  of  irregular  immigration  to  the  EU,  the 
detection of unauthorised movements within the EU’s territory, and to regulate access to such 
statistics. 

Summary box 5.3.3 – Impact on data protection 

  The  new  provisions  introduced  by  the  amended  Eurodac  proposal  are  mainly  of  a  consequential 
nature. Hence, they are necessary either to reflect and allow the implementation of the new proposal 
for a Regulation for Asylum and Migration Management (new SAR category, indicating if a visa has 
been  issued,  flagging  a  security  threat)  or  to  allow  Eurodac  to  function  in  the  interoperability 
framework.  

  From a data protection perspective, most of these new provisions do not entail data collection per se, 
being mainly fields that will need to be checked. Persons falling under the new SAR category are 
already registered in Eurodac as persons crossing irregularly an external border (CAT 2) – the same 
data would be collected when such persons will be registered as SAR and the same safeguards and 
guarantees would apply.  

  Finally,  the  change  that  is  not  of  a  consequential  nature,  meaning  that  is  not  linked  to  another 
legislative act/proposal concerns the counting of applicants. This would allow a more accurate input 
for better policymaking and appropriate responses in the area of asylum, especially with respect to 
tackling  unauthorised  movements.  Such  a  linking  process  would  not  have  an  impact  from  a  data 
protection  perspective  as  Member  States  would  keep  ownership  of  and  responsibility  for  the  data 
and  all  rules  and  safeguards  foreseen  in  the  Regulation  for  data  collection  and  data  processing, 
including with respect to data security, would continue to apply. The data subject’s rights of access, 
rectification,  completion,  reassure  and  restriction  of  the  processing  will  not  be  affected  and  will 
remain as laid down in the Regulation. 

5.3.4 Improved procedural efficiency   

The  new  legislative  framework  introduces  several  measures  that  will  alleviate  the 
administrative  burden  that  currently  exists  due  to  procedural  inefficiencies  in  the  Dublin 
system.  In  particular,  the  proposal  for  a  Regulation  for  a  common  framework  for  the  EU’s 
asylum  and  migration  management  foresees  an  obligation  to  take  back  a  beneficiary  of 
international protection who made an application or is irregularly present in another Member 
State, and adds a similar (new) obligation to take back resettled persons. This obligation gives 
the  Member  States  the  necessary  legal  tool  to  enforce  transfers  back  to  the  Member  State 
responsible, which is important to limit secondary movements.  

The proposal also introduces a system of take back notifications instead of the existing take-
back  request  system.  The  notified  Member  State  will  then  be  able  to  object,  within  a  one-
week deadline, to the responsibility determination, on the grounds that the responsibility has 
ceased  or  shifted  pursuant  to  clearer  rules.  This  will  lead  to  simplification  and  more 
effectiveness  in  the  procedures,  as  the  Member  State  responsible  will  be  visible  from  the 
Eurodac search. 

81 

 
 
 
Summary box 5.3.4 – Simplified and more efficient rules for robust migration management  

 

 The streamlined responsibility criteria will enhance the effectiveness of the procedure for 
determining responsibility for examining an application and allow for quick access to the 
procedures for granting international protection. By removing current obstacles and adding 
important  elements  for  the  procedure  for  family  reunification,  such  as  the  widened 
definition of family members and the adjusted rules on evidence, the criteria will maintain 
and  expand  family  unity  at  the  top  of  the  hierarchy  and  ensure  a  swift  reunification 
procedure. In addition, the extended time a Member State will be responsible after issuing 
a residence permit or a visa, or after letting the person concerned enter the territory, will 
reduce the possibility for abuse of the rules. 

  By improving the procedural efficiency of the Regulation, the Dublin system will be more 
transparent and its effectiveness enhanced. In particular, the registration in Eurodac of the 
Member State responsible will significantly alleviate the burden Member States currently 
have when applying the take back procedure, and the simple take back notifications will 
eliminate the current complex and lengthy procedures, which have created a disincentive 
for  compliance  with  the  rules  by  applicants.  In  this  context,  limiting  the  shift  of 
responsibility will also ensure that the behaviour of applicants will not lead to a Member 
State becoming responsible and remove the current incentive for unauthorised movements. 

5.4  Targeted  procedures  and  mechanisms  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 addressing situations of crisis and force majeure in the field of 
migration and asylum aims to ensure that the Union has at its disposal specific rules 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  a  risk  of  such  a  situation.  Finally, 
situations  of  force  majeure  in  the  field  of  asylum  and  migration  management  are  also 

82 

 
 
 
 
 
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  with  the  inclusion  of  applicants  for  international 
protection  that  are  in  the  border  procedure  and  also  irregular  migrants;  and  with  shortened 
timeframes  for  triggering  the  compulsory  solidarity  mechanism  procedure  foreseen  for 
situations  of  pressure  in  the  Regulation  on  Asylum  and  Migration  Management.  It  also 
foresees  a  shorter  period  of  time  for  triggering  the  transfer  of  migrants  subject  to  return 
sponsorship  but  who did  not  successfully return  – 4 months instead of 8  months set by the 
Regulation on Asylum and Migration Management. 

The  asylum  and  return  crisis  management  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).  These  persons  granted 
immediate protection remain applicants for international protection, and are at the same time 
beneficiaries of immediate protection. As such, they are able to benefit from all the rights that 
beneficiaries of subsidiary protection enjoy. 

To enable Member States and the Union to deal effectively with situations of force majeure, 
the  proposed  Regulation  also  provides  for  the  possibility  for  a  Member  State  to  extend  the 
time  limits  set  out  in  the  proposed  Asylum  Procedures  Regulation  for  the  registration  of 
applications  for  international  protection,  and  to  extend  certain  time  limits  set  out  in  the 
proposed Regulation on Asylum and Migration Management. This proposal also provides for 
an  extension  of  the  timeframe  for  the  implementation  of  the  obligation  to  relocate  or 
undertake  return  sponsorship  of  persons  when  a  Member  State  is  in  a  situation  of  force 
majeure which renders it impossible to fulfil these obligations set out in this Regulation. 

Summary box 5.4 - Targeted procedures and mechanisms to address crisis situations  

  The  main  benefits  stemming  from  the  rules  set  out  in  the  proposal  include  allowing  Member 
States  various  ways  to  manage  situations  of  crisis  encompassing  exceptional circumstances  of 
mass  influx  of  third-country  nationals  or  stateless  persons  arriving  irregularly  in  a  Member 
State.  

  A  solidarity  system  for  relocation  of  all  applicants  and  irregular  migrants  as  well  as  return 
sponsorship  and  procedural  derogations  that  Member  States  can  apply,  in  situations  of  mass 
influx all contribute to alleviate pressure on Member States that would otherwise be facing non-
functional asylum, reception or return systems.  

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5.5 A fairer and more effective system to reinforce migrants and asylum seekers’ rights  
The  changes  proposed  by  the  legislative  proposals  aim  to  build  a  well-functioning 
Common European Asylum System that fully respects the fundamental rights of migrants and 
asylum  seekers,  by  improving  access  to  swift  and  clearer  procedures,  reinforcing  family 
reunification, better defining the principle of best interests of the child, and ensuring respect 
of  relevant  safeguards.  To  do  so,  the  Commission  proposes  to  strengthen  and  clarify  a 
number of rights through the different proposals.    

-  Right to family reunification.  The measures proposed by the Commission  in  the proposal 
for  a  Regulation  establishing  a  common  framework  for  the  European  Union’s  asylum  and 
migration management reinforce the right to family reunification by taking into account the 
current  realities  of  many  families,  in  particular  by  enlarging  the  scope  of  the  Regulation  to 
include siblings as well as families formed in transit countries. 

-  Best interest of the child. The changes also strengthen the rights of unaccompanied minors 
through better defining the principle of the  best  interests of the child  and by setting out  a 
mechanism  for  making  the  best  interests  of  the  child-determination  in  all  circumstances 
implying the transfer of a minor. In addition, before transferring an unaccompanied minor to 
another Member State, the transferring Member State shall make sure that that Member State 
will  take  the  necessary  measures  under  the  Asylum  Procedures  Regulation  and  Reception 
Conditions  Directive,  without  delay.  These  changes  will  ensure  that  the  unaccompanied 
minor  experiences  as  few  obstacles  as  possible  due  to  the  transfer,  and  can  be  quickly 
prioritised in the asylum procedure in the Member State responsible after the transfer. 

-  Prioritisation  of  unaccompanied  minors.  The  priority  for  relocation  will  be  given  to 
unaccompanied  minors.    The  Commission  shall,  in  its  recommendation  for  solidarity 
measures,  give  priority  to  the  relocation  of  minors  and  in  addition  provide  for  a  financial 
lump  sum)  for  Member  States  undertaking  relocation  of 
incentive  (EUR  12,000 
unaccompanied minors.  

-  Possibility  for  quicker  long-term  resident  status.  The  proposal  also  includes  an 
amendment to the Long Term Residence Directive (2003/109/EC). For those who are in need 
of protection, the prospect of obtaining long-term resident status in a shorter period of time 
will  be  an  important  contribution  towards  facilitating  the  full  and  quick  integration  of 
beneficiaries  of  international  protection  in  the  Member  State  of  residence.  Beneficiaries  of 
international  protection  should  be  able  to  obtain  long-term  resident  status  in  the  Member 
State which  granted them  international  protection after three  years (instead of the  current  5 
years) of legal and continuous residence in that Member State, while ensuring that for other 
conditions to obtain the status, beneficiaries of international protection will be subject to the 
same conditions as other third-country nationals. 

A number of rights will be better defined, and in certain cases limited, in order to harmonise 
and  speed  up  the  different  procedures.  All  changes  fully  take  into  account  the  necessary 
safeguards,  are  proportionate  to  the  scope  and  in  line  with  international  legislation  and  the 
European Charter of Fundamental Rights. 

-  Right to an effective remedy. As in the 2016 Proposal, the scope of the right to an effective 
remedy  is  limited  to  an  assessment  of  whether  the  family  criteria  have  been  correctly 

84 

 
 
 
 
 
applied,  or  whether  the  transfer  represents  a  risk  of  inhuman  or  degrading  treatment  as 
prohibited by Article 4 of the Charter. Limiting the scope of the right to an effective remedy 
appeal  process. 
is 

and  harmonise 

considerably 

speed  up 

expected 

the 

to 

-  Right  to  material  reception  conditions.  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.  The  limitations  would  be  proportionate  because  all 
Member  States  would  have  to  ensure  a  standard  of  living  in  accordance  with  Union  law, 
including the EU Charter, and international obligations. 

-  Suspensive  effect  of  appeals.  The  changes  proposed  by  the  Commission  in  the  amended 
Proposal for a Regulation on establishing a common procedure for international protection in 
the  Union  concentrate  on  the  wider,  and  in  some  cases  obligatory  use  of  the  border 
procedure.  Limitations  to  the  right  to  remain  are  foreseen,  in  particular  as  regards  the 
suspensive  effect  of  appeals  on  subsequent  applications,  and  those  which  clearly  frustrate 
return. As regards the use of the border procedure, it implies that the appeal upon an eventual 
rejection  of  the  asylum  claim  would  not  have  an  automatic  suspensive  effect,  hence  the 
person, if the Court does not grant the right to remain, can return. This means that applicants 
cannot wait for the decision of the court on their claim. Also, if an asylum applicant is in a 
border  procedure,  they  are  not  granted  entry  to  the  territory  of  the  Member  State.  These 
proposed amendments do have an impact on the right to liberty and the right to an effective 
remedy.  These  amendments  are,  however,  necessary  to  discourage  applicants  with  abusive 
claims to enter the Union without a valid reason. It is also important to note that the border 
procedure  would  be  obligatory  only  in  limited  cases  where  applications  are  likely  to  be 
unfounded or abusive.  

-  Procedural  safeguards.  The  assessment  in  the  context  of  the  border  procedure  should 
remain individual and essential guarantees, such as the provision of legal assistance and the 
right to an effective remedy, should be respected. Border procedures shall not be applied to 
unaccompanied minors and a proper monitoring of the compliance with the right to asylum, 
the  respect  of  the  principle  of  non-refoulement  and  fundamental  rights  should  be  put  in 
place.  As  a  complementary  guarantee,  the  monitoring  mechanism  of  the  EUAA  should 
certainly  cover  the  application  of  the  border  procedure,  but  Member  States  should  equally 
have their proper national mechanism in place in this regard.  

-  Detention. Irregular migrants in a return border procedure would not be subject to detention 
as  a  rule.  However,  when  it  is  necessary  to  prevent  irregular  entry,  or  there  is  a  risk  of 
absconding, of hampering return, or a threat to public order or national security, they may be 
subject to detention. To ensure that such detention complies with Article 6 of the Charter on 
the  right  to  liberty,  detention  could  be  used  only  in  individual  cases,  as  a  last  resort  (no 
effective  alternatives  available),  for  the  shortest  possible  period  of  time  and  provided  that 
procedures  by  national  authorities  are  conducted  with  due  diligence,  and  in  any  case  not 
exceeding  the  maximum  duration  of  the  border  procedure  (12  weeks  for  asylum,  12  weeks 
for return). Such maximum duration has been determined taking into account the duration of 
national  administrative  procedures  of  the  Member  States  and  those  carried  out  by  third 
countries (e.g. for consular interviews, identification, re-documentation). At the same time, to 

85 

 
 
 
 
 
 
ensure  that  the  border  procedure  is  applied  proportionally,  only  irregular  migrants  with  a 
reasonable prospect of return105 would be subject to such a procedure. This determination is 
based  on  the  level  of  cooperation  of  third  countries,  using  the  mechanism  established  by 
Article 25a of Regulation (EU) 2019/1155 (Visa Code).  

In addition, the proposed Regulation introducing a screening takes into account the respect of 
fundamental rights as enshrined in the European Charter of Fundamental Rights.  

The screening must be  therefore carried out  in  full  respect  of fundamental rights,  including 
the right to human dignity (Article 1), prohibition of torture and inhuman or degrading 
treatment or punishment (Article 4), the right to asylum (Article 18), the protection from 
collective  expulsion  and  refoulement  (Article  19),  non-discrimination  (Article  21),  the 
rights related to the health case requiring to ensure the high level of human health protection 
(Article  35).  This  proposal  fully  takes  into  account  the  rights  of  the  child  and  the  special 
needs of vulnerable persons. 

While not entailing the collection or storage of any new personal data, the consultation by the 
screening  authorities  of  the  European  databases  for  the  purpose  of  identifying  persons  or 
verifying their security background should be done while respecting the fundamental rights of 
individuals, in particular the right to protection of personal data (Article 8). The sharing of 
the information collected during the screening 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 concerning 
the migrants. 

Furthermore,  the  proposal  for  a  Regulation  establishing  procedures  and  mechanisms 
addressing situations of crisis and force majeure in the field of migration and asylum is also 
fully  compatible  with  fundamental  rights  and  general  principles  of  Union,  as  well  as 
international law. 

In  particular,  since  the  relocation  procedure  foreseen  in  this  proposal  relate  to  the  rules 
established  in  the  proposed  Regulation  on  Asylum  and  Migration  Management,  better 
informing  asylum-seekers  about  the  procedure  of  relocation  and  their  rights  and 
obligations within it will on the one hand enable them to better defend their rights and on the 
other  hand  will  contribute  to  diminish  the  level  of  unauthorised  movements  as  asylum-
seekers will be better inclined to comply with the system.  

The principle of non-refoulement enshrined in Article 33 of the 1951 Refugee Convention 
and Article 19 of the Charter of Fundamental Rights of the European Union is respected, as 

105 In the judgment on case C-357/09, Kadzoev (paragraph 67), in relation to the concept of “reasonable prospect 
of  removal”  (i.e.  of  enforced  return),  the  Court  of  Justice  of  the  European  Union  provided  the  following 
interpretation: "Only a real prospect that removal can be carried out successfully, having regard to the periods 
laid down in Article 15(5) and (6), corresponds to a reasonable prospect of removal. That reasonable prospect 
does not exist where it appears unlikely that the person concerned will be admitted to a third country,  having 
regard to those periods". 
In the Return Handbook C(2017) 6505, the Commission also stated that a "reasonable prospect" is not the same 
as  "impossibility  to  enforce":  the  latter  is  a  more  categorical  assertion  and  more  difficult  to  demonstrate  than 
absence of “reasonable prospect", which refers to certain degree of likeliness only. 
The  approach  described  above  should  be  valid,  mutatis  mutandis,  also  in  relation  to  “reasonable  prospect  of 
return”. 

86 

 
 
 
                                                           
the  proposal  explicitly  requires  Member  States  to  always  observe  this  principle,  including 
through the application of the provisions of the Return Directive.  

As regards the procedural parts regarding access to the asylum procedure, the proposal refers 
to  the  guarantees  provided  by  the  proposed  Screening  Regulation,  including  as  regards  the 
obligation  for  Member  States  to  provide  for  an  independent  and  effective  mechanism  of 
monitoring to ensure that fundamental rights are upheld.106 

 5.6 Other initiatives and measures under the New Pact on Migration and Asylum 

5.6.1 Resettlement Recommendation 

The  Recommendation  invites  Member  States  to  promote  resettlement  through  effective 
implementation of the 2020 pledge and ensure continuity of resettlement efforts in the years 
to  come.  It  also  calls  on  Member  States  to  provide  more  places  for  people  in  need  of 
protection,  notably  through  humanitarian  admission  schemes  and  other  complementary 
pathways,  such  as  for  study  or  work.  The  Recommendation  encourages  Member  States  to 
promote  community  sponsorship  schemes  to  involve  individuals,  civil  society  and  NGOs 
more in the reception and integration of people in need of international protection. 

5.6.2 A comprehensive operational tool to improve case management in return, readmission 
and reintegration procedures  

To  increase  operational  efficiency  in  dealing  with  return,  readmission  and  reintegration 
processes,  and  relieve  Member  States’  administrations  of  some  of  their  current  caseload 
pressure, the Commission proposes to  gradually  work towards a fully integrated  smart  case 
management system.  

As a first and immediate step, Member States should be implementing and making full use of 
all existing EU tools, including SIS return, readmission case management systems with third 
countries,  liaison  officers  deployed  to  third  countries,  and  the  EBCGA’s  integrated  return 
management platform, connected with the existing national IT systems. In this initial phase, 
the EBCGA’s assistance to Member State authorities in operational data management would 
alleviate the administrative burden.  

In  the  second  phase,  all  existing  and  newly  created  tools  and  resources  should  be  brought 
together into an EU-wide integrated smart case management system, to ensure a continuous 
and efficient workflow between authorities competent for different migration processes, from 
registration,  through  asylum  and  return  procedures,  to  reintegration  of  migrants  in  their 
country  of  origin.  The  Commission  will  put  forward  a  proposal  for  such  a  system  in  due 
course. 

5.6.3 A Sustainable Return and Reintegration Strategy   

The  voluntary  return  of  irregular  migrants  to  their  home  countries  remains  the  preferred 
option, whenever possible. Existing assisted voluntary return and reintegration schemes, for 

106 Such monitoring mechanism should also ensure that the right to asylum is upheld and the non-refoulement 
principle is respected.  

87 

 
 
 
 
 
 
                                                           
which  significant  resources  have  been  mobilised  by  both  the  EU  and  Member  States,  have 
shown  great  potential  for  improving  return,  and  have  become  an  important  part  of 
partnerships with third countries. To improve the number of voluntary departures, as well as 
the coherence, complementarity, monitoring and effectiveness of various types of assistance 
offered  to  returnees,  the  Commission  will  put  forward  in  2020  a  Sustainable  Return  and 
Reintegration  Strategy,  accompanied  by  an  EU  Assisted  Voluntary  Return  Programme 
implemented by Frontex, complementing and enabling the efficiency of national schemes.  

This will include a set of concrete tools, such as EU return counselling guidelines and an EU-
wide platform facilitating the referral of returning migrants to suitable reintegration activities 
in  the  countries  of  return.  Regarding  the  latter,  the  strategy  will  also  look  into  new 
approaches  to  EU-funded  reintegration  actions  in  third  countries,  and  better  linkages  with 
other development initiatives and national strategies, aiming to build third countries’ capacity 
and ownership.  

This more strategic, all-encompassing and better monitored reintegration projects could also 
provide  the  EU  with  the  only  realistic  and  legitimate  way  of  monitoring  the  situation  of 
returnees once back in their country of origin, to the extent that individuals will agree to keep 
in contact with reintegration service providers throughout their reintegration scheme.      

5.6.4 Engaging with third countries willing to cooperate on readmission 

Following  the  repeated  call  by  the  European  Council107,  the  New  Pact  proposes  that  all 
relevant  EU policies are activated and made adaptable to  changes in  cooperation with  third 
countries,  starting  with  the  effective  implementation  of  the  link  between  readmission 
cooperation and visa policy, as enshrined in the new Visa Code.  

5.6.5 Structured high-level cooperation on return and readmission 

To  improve  coordination  on  readmission,  the  Commission  will  work  closely  with  Member 
States  to  monitor  progress  in  this  area,  identify  obstacles,  and  establish  and  implement 
necessary measures to overcome them. To this end, a structured, dedicated dialogue among 
relevant  institutions  will  be  established,  which  will  also  promote  Member  States’ 
coordination on cooperation with third countries. This will build on the yearly assessment of 
readmission  cooperation  by  third-country,  conducted  under  the  Visa  Code,  and  lead  to 

107 EUCO conclusions of 22-23 June 2017: Further efforts shall also be made to achieve real progress in return 
and  readmission  policy.  Building  on  the  Renewed  Action  Plan  on  Return,  well-functioning  readmission 
agreements  and  pragmatic  arrangements  with  third  countries  shall  be  put  in  place  at  EU  level  without  any 
further  delay  by  using  all  possible  levers,  including  by  reassessing  visa  policy  towards  third  countries,  as 
needed.  Bilateral arrangements of Member States with third countries also contribute to this objective. 
 and 19 Oct 2017: {…] To consolidate and deepen this approach on all migration routes, the European Council 
further  calls  for  the  following:  […]    creating  and  applying  the  necessary  leverage,  by  using  all  relevant  EU 
policies, instruments and tools, including development, trade and visa, to achieve measurable results in terms of 
preventing illegal migration and returning irregular migrants 
 18 October 2018: More should be done to facilitate effective returns. Existing readmission agreements should 
be  better  implemented,  in  a  non-discriminatory  way  towards  all  Member  States,  and  new  agreements  and 
arrangements concluded, while creating and applying the necessary leverage by using all relevant EU policies, 
instruments and tools, including development, trade and visa. 

88 

 
 
 
 
                                                           
consider incentivising measures in other policy areas, to allow for a tailor-made approach for 
relations with third countries.  

In addition, the New Pact proposes a new Network on return and readmission, chaired by a 
high-level  Commission  representative,  which  will  bring  together  relevant  Member  States’ 
representatives  and  the  Frontex  Deputy  Executive  Director  responsible  for  returns.  The 
Group will help to coordinate the identification and effective use of available measures at EU 
and  Member  States  level,  with  potential  to  improve  readmission  dialogue  and  increase 
readmission management capacity in third countries and Member States. 

Reinforcing  the  capacity  to  return  irregular  migrants  also  requires  stronger  and  better 
coordination  of  the  EU  and  national  measures.  The  Commission  is  therefore  proposing  to 
appoint  an  EU  Return  Coordinator,  supported  by  a  High-Level  Network  on  return  and 
readmission, putting together high-level representatives of the Member States and Frontex; as 
well  as  observers  from  Schengen  associated  countries  and  other  relevant  EU  agencies, 
ensuring a common strategic and coordinated approach on return and readmission among the 
Member  States,  the  Commission  and  Union  agencies.  It  will  also  serve  as  a  forum  for  the 
exchange  of  views  and  information  on  matters  of  common  interests  related  to  return  and 
readmission. 

6. MONITORING AND EVALUATION 

In  line  with  the  current  requirements  of  Better  Regulation  requirements  and  the  Inter-
institutional  Agreement  on  Better  Law-Making,  the  proposed  legislative  instruments  will 
include,  where  appropriate,  specific  monitoring  and  evaluation  clauses  regarding  how  the 
changes linked to the specific interventions will be monitored and how the legislation will be 
evaluated.   

The  aim  of  evaluation  and  monitoring  clauses  is  to  ensure that appropriate arrangements 
are put in place early on to track progress and evaluate the performance of EU interventions 
as  well  as  define  who  is  to  collect  the  necessary  information,  how  and  when  it  is  to  be 
collected and, on that basis, when to produce  the  evaluation of the intervention.  

Monitoring  of  the  legislation  would  entail  a  continuous  and  systematic  process  of  data   
collection  about  interventions  which  will  generate  the  factual  information  for  future   
evaluation and will help to identify actual implementation problems. 

The proposals will ensure that the new data collection requirements will be proportionate to   
the scope and objectives of the intervention and only relevant data and information, which is 
strictly  necessary  for  the  assessment  of  the  intervention,  will  be  collected.  Existing    
monitoring and reporting arrangements need to be checked, including those relating to other 
legislative acts in the same policy area. 

A number of indicators will be defined for each initiative allowing the appropriate following 
of the implementation and the reporting to the European Parliament and the Council.  

6.1 Proposal for a Regulation on Asylum and Migration Management 

The New Pact provides for a governance and monitoring structure based on Member States’ 
reports on the implementation of the common framework. This will allow a comprehensive 

89 

 
 
 
 
view of the EU situation and an early identification of gaps to be addressed by Member States 
or EU Agencies.  

The  Commission  will  adopt  a  European  Asylum  and  Migration  Management  Strategy  18 
months  after  the  adoption  of  the  Regulation  setting  out  the  strategic  approach  to  managing 
asylum  and  migration  at  Union  level  and  on  the  implementation  of  asylum  and  migration 
management  policies.  This  will  allow  for  an  overarching  framework  to  build  responses  to 
ongoing and future challenges for which the Union has to be prepared, and to identify both 
opportunities and challenges presented by migration. 

This  strategy  will  be  built  on  the  national  strategies  of  Member  States.  The  aim  of  these 
strategies is  to  ensure that  there is  sufficient  capacity in  place for the implementation  of an 
effective asylum and migration system in line with the principles of integrated policy making 
and  the  principles  of  solidarity  and  fair  sharing  of  responsibility.  By  means  of  these 
strategies, Member States will also inform on their contingency planning at national level and 
on how they are implementing the legal obligations stemming from the common framework 
on asylum and migration management.   

At the same time, in order to ensure that an EU framework is in place to manage the realities 
and  challenges  of  migration  the  Commission  will,  on  an  annual  basis,  adopt  a  Migration 
Management Report setting out  the  anticipated  evolution  of the migratory  situation and the 
preparedness of the Union and the Member States. This will allow for the early identification 
of gaps that need to be addressed and implemented. This report will also include the results of 
monitoring  undertaken  by  the  Member  States  in  the  context  of  screening  and  propose 
improvements  where  necessary  and  relevant.  Finally,  the  Commission  will  monitor  and 
provide information on the migratory situation through regular situational reports and based 
notably  on  information  gathered  within  the  framework  of  the  Migration  Preparedness  and 
Crisis Blueprint and its Network. 

The  proposed  Regulation  proposes  a  solidarity  mechanism  which  contains  an  in-built 
mechanism  of  assessment  both  in  terms  of  the  migratory  situation  in  cases  of  pressure  or 
where there are arrivals of SAR operations and also for the solidarity contributions given by 
Member States in line with the provisions of the Regulation.   

The  Commission  would  be  empowered  propose  an  implementing  act  on  the  basis  of  the 
measures  chosen  by  Member  States  from  among  the  measures  of  relocation  or  return 
sponsorship.  The assessments of the situation will be undertaken on the basis of:  

1. 

2. 

3. 

information presented by the Member State under pressure  

the  level  of  cooperation  on  migration  with  third countries  of  origin  and  transit,  first 
countries  of  asylum,  and  safe  third  countries  as  defined  in  Regulation  (EU) 
XXX/XXX (Asylum Procedures Regulation); 

the  geopolitical  situation  in  relevant  third  countries  that  may  affect  migratory 
movements; 

90 

 
 
4. 

5. 

6. 

7. 

8. 

9. 

the relevant Recommendations provided for in Article 15 of Council Regulation (EU) 
No 1053/2013108,  Article  13,  14  and  22  of  Regulation  (EU)  No  XXX/XXX  (EU 
Asylum Agency)  and Article 32(7) of Regulation (EU) 2019/1896;  

information gathered by the Commission pursuant to the Migration Preparedness and 
Crisis Blueprint;  

the Migration Management Report referred to in Article 6(5);  

the  Integrated  Situational  Awareness  and  Analysis  (ISAA)  reports  under  Integrated 
Political Crisis Response (IPCR) arrangements, provided that IPCR is activated or the 
Migration Situational Awareness and Analysis (MISAA) report issued under the first 
stage of the Migration Preparedness and Crisis Blueprint, when IPCR is not activated; 

information  from  the  visa  liberalisation  reporting  process  and  dialogues  with  third 
countries; 

quarterly bulletins on migration, and other reports, of the European Union Agency for 
Fundamental Rights. 

10. 

the support provided by Union Agencies to the benefitting Member State; 

This will allow for a comprehensive and up to date situational analysis and allow for a 
constant monitoring of the situation. 

Reporting obligations  

In addition, the Regulation provides that by 18 months after entry into force and from then on 
annually,  the  Commission  shall  review  the  functioning  of  the  measures  set  out  in  the 
solidarity Chapter of the Regulation.   

As regards the entirety  of the Regulation,  it is  proposed that by three  years after  entry into 
force,  the  Commission  shall  report  to  the  European  Parliament  and  to  the  Council  on  the 
application  of  the  Regulation  and,  where  appropriate,  shall  propose  the  necessary 
amendments.  In  order  to  make  this  possible,  Member  States  are  to  forward  to  the 
Commission  all  information  appropriate  for  the  preparation  of  that  report,  at  the  latest  six 
months before that time limit expires. 

Indicators for monitoring  

The Proposal for a Regulation on asylum and migration management sets out the solidarity 
measures  that  Member  States  must  contribute  to  as  regards  Member  States  that  are  under 
pressure,  or  where  there  are  arrivals  following  SAR  operations.    The  proposed  regulation 
establishes  a  pool  comprising  contributions  from  the  Member  States.  Member  States  will 
submit  SAR  Solidarity  Response  Plans  and  indicate  whether  they  will  contribute  through 
measures of relocation of applicants not in the border procedure or through capacity building 
in the field of asylum, reception or return, or operational support, or support measures in the 
external  dimension.    Where  such  contributions  are  insufficient  the  Commission  will  be 
empowered  to  adopt  an  implementing  act  setting  out  these  measures  according  to  a 

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring 

108  
mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive 
Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of 
Schengen (OJ L 295, 6.11.2013, p. 27) 

91 

 
 
 
 
 
                                                           
distribution  key  for  all  Member  States.  In  such  cases  Member  States  may  choose  to 
contribute through return sponsorship instead of relocation.  

In  situations  of  pressure,  the  Member  States  are  required  to  submit  their  contributions  via 
Solidarity  Response  Plans  indicating  whether  they  will  undertake  relocation  of  return 
sponsorship or a combination of the two contributions.  Such contributions will be calculated 
according to a key based on GDP and Population (50%/50%).   

The solidarity contributions set out in the Regulation comprise:  

a)  relocation of applicants who are not subject to the border procedure;  

b)  relocation of beneficiaries of international protection; 

c)  return sponsorship in relation to illegally staying third-country nationals.  

The  proposed  Regulation  on  Asylum  and  Migration  Management  foresees  that  a  Member 
State  may  at  any  time  respond  to  a  request  by  another  Member  State  and  make  voluntary 
solidarity contributions referred to above, or to other measures as follows: 

a)  relocation of applicants for international protection subject to the border procedure  

b)  relocation of illegally staying third-country nationals 

c)  persons  granted  immediate  protection  in  line  with  the  proposed  Regulation  (EU) 
XXX/XXX [Regulation establishing procedures and mechanisms addressing situations 
of crisis and force majeure in the field of migration and asylum].   

Member  States  which  have  contributed  or  plan  to  contribute  with  solidarity  measures  shall 
notify the Commission, by providing information in a Solidarity Support Plan. 

The  above  Solidarity  Response  Plans  and  Solidarity  Support  Plans  provide  the  means  to 
develop  concrete  indicators  on  the  number  of  relocations,  return  sponsorship  or  capacity 
building  measures  and  how  such  contributions  have  contributed  to  alleviate  the  migration 
pressure  on  a  Member  State  or  how  they  have  assisted  to  address  the  challenges  faced  by 
Member States disembarking migrants from search and rescue operations. This will allow the 
Commission  to  monitor  the  application  of  the  Regulation  in  particular  on  the  solidarity 
mechanism proposed therein. 

Expected impact  

It  is  expected  that  the  solidarity  mechanism  will  have  a  positive  impact  on  a  migration 
management system that relies on a wider set of measures and can respond to the realities of 
migration though new forms of solidarity.  The procedure for the solidarity  mechanism  will 
also allow Member States to better plan the execution of solidarity measures and allow for a 
better tracking of solidarity across the EU. 

6.2 The amended Proposal for a Regulation on establishing a common procedure for 
international protection in the Union (“Asylum procedures regulation”) 

Reporting obligations  

The Commission shall report on the application of the Asylum Procedure Regulation to the 
European Parliament and to the Council within two years from its entry into force and every 
five years after that. Member States shall be required to send relevant information for drafting 

92 

 
 
 
 
 
 
that report to the Commission and to the European Union Agency for Asylum. The Agency 
will  also  be  monitoring  compliance  with  the  Regulation  by  Member  States  through  the 
monitoring  mechanism,  which  the  Commission  proposed  to  establish  in  its  revision  of  the 
mandate of the Agency.109  

Expected impact  

The  expected  impact  of  the  proposed  new  changes  to  the  2016  proposal  for  an  Asylum 
Procedures  Regulation  are  the  streamlining  of  the  asylum  and  return  procedures,  the 
enhancement  of  their  effectiveness  which  strikes  the  right  balance  between  the  right  of 
applicants  to  an  effective  remedy  and  the  need  to  ensure  that  the  asylum  systems  of  the 
Member States are not abused by people who only aim at preventing their removal from the 
Union. 

6.3  The  amended  Proposal  for  a  Regulation  on  Proposal  for  a  Regulation  on  the 
establishment of 'Eurodac'  

Reporting obligations  

Article 42 foresees three types of reporting obligations as follows: 
-  Once  a  year,  eu-LISA  shall  submit  to  the  European  Parliament,  the  Council  the 
Commission and the EDPS a report on the activities of the Central System (on the basis 
of information provided by Member States); 

-  Seven years after adoption and every four years thereafter, the Commission shall produce 
an overall evaluation  of  Eurodac,  examining the  results achieved against objectives and 
the  impact  on  fundamental  rights  (on  the  basis  of  information  provided  by  eu-LISA, 
Member States and Europol); 

-  Every  two  years,  each  Member  State  and  Europol  shall  prepare  reports  on  the 
effectiveness of the comparison of biometric data with Eurodac data for law enforcement 
purposes.  These  reports  shall  be  transmitted  to  the  Commission  by  30  June  of  the 
subsequent year. Every two years, the Commission shall compile these reports in a report 
on  law  enforcement  access  to  Eurodac  which  will  be  transmitted  to  the  European 
Parliament,  the  Council  and  the  EDPS.  This  report  is  different  for  the  report  described 
under the previous point. 

Indicators for monitoring  

The yearly report that eu-LISA will have to prepare on the activities of the Central System, 
will include information on the management and performance of Eurodac against pre-defined 
quantitative indicators (eg total number of data sets and per category, number of hits, the way 
Member States implement the deadlines for transmitting biometric data to Eurodac, including 
delays etc). 

The  report  containing  the  overall  evaluation  of  Eurodac  that  the  Commission  will  need  to 
prepare will monitor the results achieved against the objectives set by the regulation and will 
measure  the  impact  on  fundamental  rights,  in  particular  data  protection  and  privacy  rights, 
including whether law enforcement access has led to indirect discrimination against persons 
covered by the Eurodac Regulation.   

109 COM (2016) 271 final.   

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The  reports  on  the  effectiveness  of  the  comparison  of  biometric  data  with  Eurodac  data 
prepared by Europol and each Member State will assess, among others, the exact purpose of 
the  comparison,  the  grounds  given  for  reasonable  suspicion,  the  number  and  type  of  cases 
which ended with a successful identification. 

Expected impact  

The expected outcome of the new legal provisions will be the production of statistics on the 
number of applicants and first-time applicants by eu-LISA, providing an accurate picture of 
how many third-country nationals and stateless persons request asylum in the EU.  

Furthermore, aggregating these data with other type of data, such as those regarding Dublin 
transfers, will supply the appropriate input for the right type of policy response in the area of 
secondary movements.  

The  cross-system  statistics  are  expected  to  have  a  similar  impact,  as  these  will  allow  us  to 
know  how  many  of  the  third-country  nationals  were  issued  a  short-stay  visa  by  a  given 
Member  State  or  in  a  given  third-country,  proceeded  to  enter  legally  (and  where)  and  then 
proceeded to apply for international protection (and where). 

Three years after adoption, eu-LISA will need to conduct a study on the technical feasibility 
of adding a facial recognition software to the Central System for the purposes of comparing 
facial images, including of minors. The study will evaluate the reliability and accuracy of the 
results produced from facial recognition software for the purposes of Eurodac and will make 
any necessary recommendations prior to the introduction of the facial recognition technology 
to the Central System. 

6.4 Proposal for a Regulation addressing situations of crisis and force majeure in the field of 
migration and asylum 

Reporting obligations  

The  proposal  puts  in  place  a  system  whereby,  in  a  situation  of  crisis,  a  constant 
communication  between  the  Commission  and  the  Member  States  is  ensured.  The  Member 
State’s  motivated  request(s)  to  apply  the  specific  rules  in  the  proposal  are  assessed  by  the 
Commission on the basis of substantiated information, in particular the information gathered 
by EASO pursuant to Regulation (EU) No 439/2010, the European Border and Coast Guard 
Agency  pursuant  to  Regulation  (EU)  2019/1896  and  the  Migration  Management  report 
referred to in the proposed Regulation on Asylum and Migration Management.   

Indicators for monitoring  

The  proposal  requires  Member  States  to  submit  motivated  requests  to  the  Commission  in 
situations of crisis, requesting the application of one or more derogations from the rules of the 
Regulation on Asylum and Migration Management, the Asylum Procedure Regulation or the 
Return  Directive.  The  primary  indicator  to  measure  situations  of  crisis  is  measuring  the 
activation  of  the  tools  laid  down  in  the  Regulation  and  the  extra  pressure  those  tools  are 
alleviating on the Member States that are facing a situation of crisis.  

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Expected impact  

The proposal aims at providing various ways for Member States to manage situations of crisis 
encompassing exceptional circumstances of mass influx of third-country nationals or stateless 
persons  arriving  irregularly.  It  aims  to  do  that  above  by  including  a  relocation  system  for 
applicants  in  clear  need  of  international  protection,  procedural  derogations  that  Member 
States can apply, as well as return sponsorship in situations of mass influx all contribute to 
alleviate pressure on Member States that would otherwise be facing non-functional asylum, 
reception or return systems.  

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  Procedures  Regulation  or  the  Return  Directive.  In  such  instances,  Member  States 
will  be  allowed  to  request  a  broader  application  of  the  border  procedure  or  have  a  longer 
deadline for registering applications for international protection. 

The  proposal  will  also  make  it  possible  for  Member  States  to  grant  a  new,  immediate 
protection  status  to  certain  third  country  nationals  coming  from  a  country  or  region  with  a 
high  degree  of  risk  of  being  subject  to  indiscriminate  violence,  in  exceptional  situations  of 
armed conflict, unable to return to their country of origin. This temporary status will replace 
the  one  laid  down  in  the  Temporary  Protection  Directive  (Council  Directive  2001/55/EC), 
which is proposed to be repealed for this reason. 

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 

The  proposal  creates  uniform  frames  for  the  identification,  security  and  health  checks  of 
third-country nationals and stateless persons eligible to the asylum or return procedures. Such 
screening should be compulsory at the external borders. The Member States should be also 
obliged to screening persons apprehended within the territory who are not overstayers. 

Reporting obligations  
The  proposal  provides  that  the  Commission  shall  report  on  the  implementation  of  the 
measures set out in this Regulation. No sooner than [five] years after the date of application 
of  this  Regulation,  and  every  five  years  thereafter,  the  Commission  shall  carry  out  an 
evaluation of this Regulation. The Commission shall present a Report on the main findings to 
the  European  Parliament,  the  Council  and  the  European  Economic  and  Social  Committee. 
Member States shall provide the Commission all information necessary for the preparation of 
that report, at the latest six months before the [five] years’ time limit expires.  
Furthermore, the screening at the external borders would be subject to Schengen Evaluations 
which in turn are subject to yearly reporting obligation to the EP. 

Indicators for monitoring  

At  the  external  borders,  all  third-country  nationals  concerned  should  be  submitted  to  the 
screening.  The  screening  should  not  exceed  5  days.  All  the  various  categories  of  persons 
should be subsequently transferred to relevant asylum or return procedures. 

95 

 
 
 
 
Expected impact 

The proposal is expected to positively impact the management of migration at external 
borders and thus it is expected to allow for achieving the objective of establishing a seamless 
migration management.  

The Screening Regulation will ensure fast identification of the correct procedure applicable to 
a  person  entering  the  EU  without  fulfilling  the  entry  conditions,  be  it  asylum  in  the  EU  or 
return to country of origin. It will also apply to those who, while not fulfilling the conditions 
for  entry  into  the  EU,  request  international  protection  during  border  checks  as  well  as  to 
people  brought  ashore  in  search  and  rescue  operations  at  sea.  It  will  also  apply  to  third-
country nationals apprehended within the territory, if they have eluded controls at the external 
borders in the first place.  

The effect of the proposed new screening rules will be monitored via the Schengen evaluation 
mechanism110.  

Fundamental rights monitoring mechanism 

The  proposal  provides  an  obligation  for  the  Member  States  to  set  up  the  independent 
monitoring mechanism in order to ensure that the Charter of Fundamental Rights and other 
EU and international obligations are complied with during the screening. 

The  monitoring  under  the  screening  would  be  subject  to  the  obligation  concerning  the 
governance and monitoring of the migratory situation, resulting from the new Regulation on 
Asylum and Migration Management (AMMR). Accordingly, Member States should integrate 
the results of their national monitoring mechanism established by the Screening Regulation in 
their national strategies foreseen by the AMMR. 

6.6 The role of the European Union Agency for Asylum 

The  new  monitoring  function  of  the  EU  Asylum  Agency  (EUAA)  on  the  practical 
functioning  of  the  Member  States’  asylum  systems  should  also  contribute  to  a  regular  and 
effective  monitoring  of  the  proposed  actions,  complementing  the  Commission’s  monitoring 
and evaluation of legislation. The Agency will improve the functioning of the CEAS through 
its task of regularly monitoring Member States’ operational and technical application of the 
CEAS to prevent or identify possible shortcomings and provide relevant support. 

In the proposal  for a Regulation  on the European Union Agency for Asylum  and repealing 
Regulation (EU) No 439/2010111, and the amended proposal112, which aims at strengthening 
the  role  of  EASO  and  develop  it  into  an  agency  which  facilitates  the  implementation  and 
improves the functioning of the CEAS, indicators for monitoring are specified113 and include: 

  Number  of  shortcoming  found  during  the  monitoring  and  assessment  of  the 

implementation of CEAS/year;  

110 Council Regulation 1053/2013. 
111 COM/2016/0271 final 
112 COM(2018) 633 final 
113 See section 1.4.4 of the legislative financial statement of the 2018 amended proposal  

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  Number of support (activities) for the CEAS implementation/year;  
  Number of support (activities) for Member State practical cooperation/year;  
  Number of operational standards, guidelines and best practices on asylum/year.  

Based on these, it will be possible to ensure that any shortcomings in the functioning of the 
CEAS  are  addressed  as  early  as  possible  so  as  to  ensure  an  orderly  management  of  the 
asylum and reception systems and also to ensure that Member States have the necessary tools 
in place to be able to address situations of disproportionate pressure adequately.   

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ANNEX: Data protection-relevant elements in Eurodac 

Data protection: introductory elements 

The  right  to  the  protection  of  personal  data  is  established  in  Article  8  of  the  Charter  and 
Article 16 of the Treaty  on the Functioning of the European Union,  and in  Article 8 of the 
European Convention on Human Rights. As underlined by the Court of Justice of the EU114, 
the right to the protection of personal data is not an absolute right, but must be considered in 
relation to its function in society115. 

The General  Data Protection Regulation116, with Regulation (EU) 2018/1725117, and, where 
relevant, Directive (EU) 2016/680118 apply to the processing of personal data carried out for 
the  purposes  of  Eurodac  by  the  Member  States  and  by  the  EU  institutions,  bodies  and 
agencies involved, respectively. 

According to the Commission Communication of July 2010 on information management in 
the area of freedom, security and justice119, data protection rules should be embedded in any 
new instruments relying on the use of information technology. This implies the inclusion of 
appropriate provisions limiting data processing to what is necessary for the specific purpose 
of that instrument and granting data access only to those entities that “need to know”. It also 
implies the choice of appropriate and limited data retention periods depending solely on the 
objectives  of  the  instrument  and  the  adoption  of  mechanisms  ensuring  an  accurate  risk 
management and effective protection of the rights of data subjects. 

In this respect, the Eurodac database is based on data protection by design and by default120 
which means that: 

  Data protection is embedded into the design and architecture of the Eurodac database 

and of the operations and procedures related to it; 

  Specified  purposes  are  clear,  limited  and  relevant  to  the  circumstances  (purpose 
specification);  the  collection  of  personal  information  is  limited  to  that  which  is 

114 Court of Justice of the EU, judgment of 9.11.2010, Joined Cases C-92/09 and C-93/09 Volker und Markus 
Schecke and Eifert [2010] ECR I-0000. 
115  In  line  with  Article  52(1)  of  the  Charter,  limitations  may  be  imposed  on  the  exercise  of  the  right  to  data 
protection as long as the limitations are provided for by law, respect the essence of the right and freedoms and, 
subject  to  the  principle  of  proportionality,  are  necessary  and  genuinely  meet  objectives  of  general  interest 
recognised by the European Union or the need to protect the rights and freedoms of others. 
116 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection 
of natural persons  with regard to the processing of personal data  and on the free movement of such data, and 
repealing Directive 95/46/EC (General Data Protection Regulation). 
117  Regulation  (EU)  2018/1725  of  the  European  Parliament  and  of  the  Council  of  23  October  2018  on  the 
protection of  natural persons  with regard to the processing of personal data  by the Union institutions, bodies, 
offices  and  agencies  and  on  the  free  movement  of  such  data,  and  repealing  Regulation  (EC)  No  45/2001  and 
Decision No 1247/2002/EC. 
118 Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection 
of natural persons with regard to the processing of personal data by competent authorities for the purposes of the 
prevention,  investigation, detection or prosecution of criminal offences or the execution of criminal penalties, 
and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA. 
119 COM(2010) 385 final. 
120 In the meaning of Article 25 of the General Data Protection Regulation.  

98 

 
 
 
                                                           
necessary  for  the  specified  purposes  and  is  kept  to  a  minimum  (data  minimisation); 
the  use,  retention,  and  disclosure  of  personal  information  is  limited  to  the  relevant 
purposes (use, retention and disclosure limitation); 

  The security of personal information is ensured; the applied security standards assure 
the confidentiality, integrity and availability of personal data throughout its life cycle 
including, inter alia, strong access control and logging methods. In this sense, the very 
detailed  provisions  on  data  security  set  extensive  obligations  for  the  Member  States 
and for eu-LISA in this area. 

According to the Eurodac 2018 annual report, “The protection of personal data related to the 
individuals  processed  by  the  Eurodac  central  system  is  monitored  by  the  EDPS  in  close 
cooperation with eu-LISA’s DPO, who was directly involved in finalising the implementation 
of EDPS’ inspection report recommendations, in accordance with the timeline established by 
the supervisory authority. In particular, from the DPO’s perspective, emphasis was put on the 
establishment of the policy on personal data breach and on the data breach register.”121 

The right to data protection is not an absolute right and hence limitations to it are possible. 
However,  in  order  to  be  lawful,  any  limitation  on  the  exercise  of  the  fundamental  rights 
protected  by  the  Charter,  including  the  right  to  data  protection,  must  comply  with  the 
following criteria, laid down in its Article 52(1):  

 
 
 

 
 

it must be provided for by law;  
it must respect the essence of the rights;  
it must genuinely meet objectives of general interest recognised by the Union or the 
need to protect the rights and freedoms of others;  
it must be necessary; and  
it must be proportional. 

Therefore, the new elements of the modified Eurodac proposal should be assessed against a 
three-fold test: 

  do they meet an objective of general interest? This objective provides the background 
against which the necessity of a  measure shall be assessed. The objective of general 
interest must be defined in sufficient detail so as to enable the assessment whether the 
measure is necessary;  

  are they necessary?  
 

if so, are they proportional? 

Context 

In 2016, the Commission put forward, as part of the package for a CEAS reform, a proposal 
amending  the  Eurodac  Regulation  and  widening  its  scope.  Among  others,  the  following 
changes have been introduced: the age for taking fingerprints has been lowered from 14 to 6 
years old, the storage period for CAT 2 data (persons crossing irregularly an external border) 
has been extended from 18 months to 5 years and an obligation was created to register and 
store for 5 years CAT 3 data (persons staying irregularly on the territory of a Member State). 
During negotiations, the co-legislators further expanded the scope of Eurodac by adding two 

121https://www.eulisa.europa.eu/Publications/Reports/2018%20Eurodac%20Annual%20Report.pd, page 10. 

99 

 
 
                                                           
more  categories  (persons  registered  for  the  purpose  of  conducting  an  admission  procedure 
under  the  Resettlement  Regulation  and  persons  resettled  in  accordance  with  a  national 
scheme)  whose  data  should  be  registered  and  stored  in  Eurodac  for  5  years.  They  also 
introduced  provisions  allowing  law  enforcement  authorities  to  search  Eurodac  by  using 
alphanumeric data. A provisional agreement exists between co-legislators on the majority of 
the provisions. 

Following the reflection process on the way forward for the CEAS reform, the Commission 
put forward a proposal amending the 2016 proposal. While the Commission supports all the 
elements  of  the  provisional  agreement  between  co-legislators  on  the  2016  proposal  for  a 
recast  Eurodac  Regulation,  the  amended  proposal  includes  from  that  provisional  agreement 
only the articles that undergo significant modifications.  

Several of the new elements introduced in the modified proposal for a Eurodac Regulation do 
not  need  to  be  assessed  from  a  data  protection  perspective  as  they  stem  from  adopted 
legislative acts (Interoperability Regulation122, ETIAS Regulation123) or from legislative acts 
currently under negotiation (VIS Regulation). This is the case for the technical consequential 
amendments stemming from the Interoperability Regulation (eg references to and definition 
of the common identity repository and of identity data or clarifications regarding the way the 
stored  data  will  be  split  between  the  common  identity  repository  and  the  Central  System). 
This is also the case for the consequential amendments stemming from the ETIAS Regulation 
and from the VIS Regulation which state that the ETIAS National Units and the competent 
visa authorities respectively should have access to Eurodac124. This needs to be done because 
the issue of access  rights  to  the various databases remains an aspect  to  be dealt with  in  the 
legislative act governing the respective databases and is not catered for by the Interoperability 
Regulation. 

The following elements will be assessed against the three-fold test explained above:  

 
 

 
 

the linking of all datasets belonging to one person in a sequence,  
the  creation  of  a  new  category  of  persons  in  Eurodac,  namely  persons  disembarked 
following a SAR operation, 
the addition of a new field for a security alert, and 
the  provision  regarding  the  cross-system  statistics  and  the  access  rights  to  such 
statistics. 

Among  the  elements  above,  the  addition  of  a  new  field  for  a  security  alert  does  not  entail 
collecting personal data per se. However, a choice was made to justify it in this paper because 
of its potential impact on the fundamental rights of the person concerned in the processing of 
an asylum application. 

122 Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a 
framework for interoperability between EU information systems in the field of police and judicial cooperation, 
asylum de migration and amending Regulation (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816. 
123  Regulation  (EU)  2018/1240  of  the  European  Parliament  and  of  the  Council  of  12  September  2018 
establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) 
No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226. 
124 See for example Articles 7, 22 and 75 of the ETIAS Regulation.  

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A  final  general  remark  concerns  the  fact  that  these  changes  will  not  impact  EU  citizens  as 
Eurodac is a database containing data of third-country nationals and stateless persons. 

Assessment  

1.  Counting applicants (linking all datasets belonging to one person in a sequence) 

Objective of general interest 

Linking all datasets of a person in a sequence would allow the counting of applicants instead  
of applications providing an accurate picture of how many persons have applied for asylum 
within the EU (and how many of these have done so for the first time). It would also provide 
the  framework  for  an  accurate  mapping  of  secondary  movements.  These  two  elements  are 
essential  for  an  appropriate  policymaking  response  to  tackle  the  pressure  the  EU  asylum 
system might be under at a given moment or the phenomenon of secondary movements.  

Ultimately, this would allow the fulfilment of the new purpose of Eurodac introduced by the 
2016 proposal and confirmed by the provisional agreement: “assist with the control of illegal 
immigration to the Union and with the detection of secondary movements within the Union 
and  with  the  identification  of  illegally  staying  third-country  nationals  and  stateless  persons 
for determining the appropriate measures to be taken by Member States”.  

Necessity 

During the past  two  years, discussions in various fora (SCIFA, Council preparatory bodies, 
Advisory Groups) clearly pointed out a set of gaps in information gathering and analysis at 
EU level in the field of asylum. These gaps, as explained in detail in the previous chapters of 
this paper, relate to the fact that currently Eurodac, the EU asylum database, is designed to 
count applications and not applicants and the proposal put forward in 2016 had not modified 
this.  Therefore  at  present  there  is  no  possibility  of  knowing  how  many  persons  applied  for 
asylum (and how many of these are first time applicants) at EU level. Moreover, there is no 
possibility of accurately mapping secondary movements of asylum applicants within the EU.  

With respect to the latter, the various analysis attempts undertaken by different stakeholders 
at EU level125 rely on assessing proxy indicators such as Dublin decisions (namely decisions 
on  outgoing  Dublin  requests  and  decisions  to  apply  the  discretionary  clause),  withdrawn 
asylum  applications  (with  focus  on  implicit  withdrawals)  and  the  number  of  Eurodac  hits 
involving  asylum  applicants.  Because  such  data  concern  administrative  procedures  not 
persons  (applicants)  and  entail  a  certain  amount  of  uncertainty,  they  prompt  a  need  for 
caveats.  Such  caveats  concern  false  positives  (decisions  on  outgoing  take  charge  Dublin 
requests for family reasons), double counting or potential omissions of cases namely cases of 
expired  Dublin  responsibility  or  cases  of  applications  which  are  made  but  not  lodged. 
Consequently,  the  results  of  analysing  these  data  are  often  cautiously  formulated  avoiding 
references to quantitative indicators and exact numbers and they fail to provide a full picture 
of the situation. 

125  See  for  example  to  EASO’s  work  in  this  area,  namely  the  report  on  Secondary  Movements  of  Asylum 
Seekers in the EU+ in 2018 (not public). 

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The  recently  adopted  Interoperability  Regulation  will  not  provide  a  solution  for  the  above 
problems.  Despite the fact that the Common Identity Repository will contain a file for each 
person126 registered in the databases covered by the Interoperability Regulation, it will not be 
possible to count asylum applicants because: 

 

the  purposes  of  Article  17  of  the  Interoperability  Regulation  are  “facilitating  and 
assisting in  the correct  identification of persons  registered in  the EES,  VIS, ETIAS, 
Eurodac  and  ECRIS-TCN”,  “supporting  the  functioning  of  the  multiple-identity 
detector”  and  “facilitating  and  streamlining  access  by  designated  authorities  and 
Europol  to  the  EES,  VIS,  ETIAS  and  Eurodac,  where  necessary  for  the  prevention, 
detection or investigation of terrorist offences or other serious criminal offences”;   
  as  the  common  identity  repository  will  be  part  of  all  the  databases  covered  by  the 
Interoperability Regulation, the file for each person which will exist in this repository 
will contain information from all the databases where the person is registered not only 
form Eurodac (even if the data of each system will be stored separately); 
the  Interoperability  Regulation  contains  no  legal  basis  allowing  the  drawing  up  of 
statistics on the number of (first time) asylum applicants. 

 

Proportionality 

In order to keep the legal, technical and financial impact on Eurodac to a minimum, instead 
of  creating  a  file  per  person,  the  option  of  linking  all  datasets  belonging  to  one  person, 
regardless of their category, in a sequence through a unique ID number was preferred. This 
option  would  not  change  anything  in  the  way  data  are  currently  collected  and  registered  in 
Eurodac in relation to a specific individual. This means that no extra data would be collected, 
and  the  storage  periods  would  not  be  affected.  The  safeguards  foreseen  for  data  collection 
and  data  processing  would  continue  to  apply.  The  data  subject’s  rights  (right  of  access  to, 
rectification, completion, erasure and restriction  of the processing) would continue to  apply 
as detailed in the Regulation.  

Moreover,  this  option  would  avoid  potentially  challenging  issues  such  as  establishing  the 
criteria  for  identifying  the  owner  of  the  file  or  clarifying  the  various  scenarios  where 
ownership might shift from one Member State to another (eg depending on the oldest data set 
in  the  file).  The  chosen  option  would  mean  that  each  Member  State  of  origin  would  keep 
ownership of its own dataset in the sequence. It would also keep responsibility for ensuring 
data security according to the rules laid down in the Regulation.   

From a technical point of view, such a linking is feasible as it is already automatically done 
by the system in two situations: 

  when a search is made by the authorities of a Member State with respect to a certain 
person, the results include all datasets relating to that person that exist in the database 
(notwithstanding the limitations of the current legal framework127); 

126 In the meaning of Article 17 of the Interoperability Regulation. 
127 The current Regulation allows only the following comparisons: CAT 1 – CAT 1, CAT 1 - CAT 2, CAT 3 – 
CAT 1. CAT 3 data are not stored in Eurodac. 

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  when international protection is granted by a Member State and all datasets belonging 
to the person in question must be marked accordingly, a “chain” of all relevant data is 
created and one single broadcast message is sent.  

The technical modifications required to implement such a change would therefore be reduced 
to a minimum and so would the necessary costs.  

The appropriate safeguards would also be foreseen as the linking of datasets in the sequence 
would  be  done  only  when  the  hit  is  confirmed  by  Member  States  (with  verification  by  a 
fingerprint/facial image expert if necessary).  

Conclusion on linking all datasets belonging to one person 

Linking together all datasets belonging to one person is the crucial element that would allow 
the counting of applicants  instead of applications. This  would allow a more accurate input 
for  better  policymaking  and  appropriate  responses  in  the  area  of  asylum,  especially  with 
respect to  tackling secondary movements. Ultimately, this would lead to  attaining the new 
objective  of  Eurodac  in  relation  to  controlling  irregular  migration.  Such  a  linking  process 
would not have an impact from a data protection perspective as Member States would keep 
ownership  of  and  responsibility  for  the  data  and  all  rules  and  safeguards  foreseen  in  the 
Regulation  for data  collection and data processing, including with  respect to  data security, 
would  continue  to  apply.  The  data  subject’s  rights  of  access,  rectification,  completion, 
reassure and restriction of the processing will not be affected and will remain as laid down in 
the Regulation. 

2.  A new category of persons (persons disembarked following a search and rescue 

operation) 

Objective of general interest 

The  new  proposal  for  a  Regulation  on  Asylum  and  Migration  Management  provides  a 
responsibility  criterion  for  examining  an  application  for  international  protection  where  the 
application  was  registered  after  the  person  concerned  was  disembarked  following  a  search 
and  rescue  operation  (under  current  rules  such  persons  are  covered  by  the  irregular  entry 
criterion).    Therefore,  to  facilitate  the  application  of  the  relevant  provisions  in  the  proposal 
for a Regulation on Asylum and Migration Management, there is  a need to have a separate 
category  for these persons in  Eurodac instead of registering them  as persons who cross the 
border irregularly (as it is currently the case).  

Necessity 

SAR operations have been organised by Frontex and by Member States128, but also by NGOs 
as a result of the obligations stemming from the International Convention on Maritime Search 
and Rescue adopted in Hamburg, Germany on 27 April 1979. The aftermath of the fulfilment 
of  these  obligations  needs  to  be  framed  by  the  necessary  legal  provisions  in  the  area  of 

128 SAR is not direct task of the Agency but it comes as a consequence of the Agency’s performance of sea 
border surveillance operations 

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asylum acquis. 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.  Therefore,  such  persons  need  to  be  registered  separately  in  Eurodac.  
Moreover, this will also lead to a more accurate picture of the composition of migratory flows 
in the EU.  

Proportionality 

The data that should be collected for this new category however are identical to the data that 
should be collected for other categories in Eurodac (with the exception of data that are typical 
only  for  asylum  applicants  or  for  persons  registered  for  the  purpose  of  conducting  an 
admission procedure). No extra information needs to be collected and transmitted to Eurodac. 
Moreover,  all  the  safeguards  foreseen  in  the  Eurodac  Regulation  applicable  to  all  the  other 
categories would also apply to the persons disembarked following a SAR operation. 

Conclusion on  creating an new category of persons 

Creating  a  new  category  of  persons  in  Eurodac  would  not  have  an  impact  from  a  data 
protection perspective. The same data would be  collected as for the other categories.  If no 
separate category is created, such persons would in any case need to be registered in Eurodac 
under  the  category  of  persons  who  cross  the  external  border  irregularly.  The  new  separate 
category would give a more accurate image of the migratory flows and would facilitate the 
application  of  the  relevant  provisions  in  the  proposal  for  a  Regulation  on  Asylum  and 
Migration Management.  

3.  A new data field for a security alert 

Objective of general interest 

For the new data field that would contain a security alert following screening the objective is 
a  three-fold  one.  First,  it  is  crucial  to  ensure  the  security  of  EU  citizens  by  identifying  the 
third-country  nationals  and  stateless  persons  that  could  represent  a  security  threat  and 
restricting  their  access  to  the  EU.  Moreover,  under  the  new  proposal  for  a  Regulation  on 
Asylum and Migration Management, such persons are excluded from relocation. Finally, it is 
important to facilitate the processing of asylum applications as security related issues are an 
exclusion  or  a  rejection  ground  for  refugees  and  an  exclusion  ground  for  beneficiaries  of 
subsidiary protection. 

Necessity 

The aim of the screening foreseen in the XXX would be to distinguish between the various 
types  of  migrants  and  channel  them  towards  the  appropriate  procedure.  A  security  check 
would  be  an  important  part  of  this  procedure  for  attaining  the  objectives  described  above. 
Marking  in  Eurodac  the  fact  that  there  is  a  security  alert  would  signal  the  fact  that  a 

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procedural step has been fulfilled and would first facilitate the implementation of relocation 
provisions under the new proposal for a Regulation on Asylum and Migration Management 
as  persons  who  represent  a  security  threat  are  excluded  from  relocation.  Furthermore,  it 
would  speed  up  the  processing  of  asylum  applications.  In  this  sense,  for  the  applicants  for 
whom  a  security  problem  has  been  flagged  and  marked  in  Eurodac,  the  assessment  of  the 
application  could  focus  first  on  whether  this  is  serious  enough  to  amount  to  an 
exclusion/rejection  ground.  For  those  for  whom  such  a  problem  has  not  been  flagged  in 
Eurodac, such an assessment could be skipped or reduced to a minimum.  

Proportionality 

Such a field would be a box that would need to be checked if following verifications during 
the screening (eg in other databases such as SIS, Europol or Interpol databases) it becomes 
apparent the person could represent a security threat. No data would be recorded in Eurodac 
following such verifications. 

Conclusion on creating a new data field for a security alert 

Creating a new data field for a security alert would not have an impact from a data protection 
perspective as this would not entail the actual collection and registration of data in Eurodac. 
Such a field would merely mark the fact that a procedural step has been fulfilled and would 
be a facilitating  element for relocation and  a triggering factor for a  certain approach when 
processing the asylum application. In this sense, the existence of such an alert  could focus 
the  processing  of  the  application  first  on  whether  the  security  threat  amounts  to  an 
exclusion/rejection ground or not.  

4.  Cross-system statistics and related access rights  

Objective of general interest 

The  addition  of  a  new  provision  on  cross-system  statistics  in  Eurodac  would  build  on  the 
tools  provided  for  by  the  Interoperability  Regulations  and  would  allow  the  drawing  up  of 
statistics  that  would  provide  a  better  quality  input  for  the  purposes  of  analysis  and 
forecasting, to support evidence-based policy and decision-making at EU and Member States’ 
levels. 

Necessity 

While  the  Interoperability  Regulation  foresees  in  its  Article  39  the  creation  of  a  central 
repository for reporting and statistics (CRRS), the legal basis for producing such statistics and 
for  regulating  the  access  rights  to  such  statistics  needs  to  be  included  in  the  legal  act 
governing each of the databases in question. This allows for better assessing the necessity and 
proportionality of such cross-system statistics. The new provision in  Eurodac will therefore 
allow eu-LISA to draw up cross-system statistics using data from Eurodac, EES, ETIAS and 
VIS. The aim would be to know for example how many of the third-country nationals issued 
a  short-stay  visa  by  a  given  Member  State  or  in  a  given  third-country,  proceeded  to  enter 
legally  (and  where)  and  then  proceeded  to  apply  for  international  protection  (and  where). 
This  would  offer  the  necessary  background  information  for  assessing  such  phenomena  and 
for the appropriate policy response. The provision would also foresee that in addition to the 
Commission  and  the  Member  States,  EASO  and  Frontex  would  also  get  access  to  such 

105 

 
 
 
 
statistics  as  both  agencies,  in  the  framework  of  their  respective  mandate,  produce  valuable 
analysis in the area of migration and asylum.  

Proportionality 

Such  statistics  would  not  allow  for  the  identification  of  individuals  and  do  no  longer 
constitute personal data. Moreover, the exact content of cross-system statistics that could be 
produced  by  comparing  data  from  those  databases  would  be  defined  at  a  later  stage  via  an 
implementing act, in accordance with the appropriate procedures.  

Conclusion on cross-system statistics 

The  provision  allowing  eu-LISA  to  produce  cross-system  statistics  has  no  impact  on  data 
protection as such statistics would not allow the identification of individuals. Moreover, the 
access  rights  to  these  statistics  would  be  limited  and  their  content  would  be  precisely 
determined at a later stage. Hence, it would not be possible for eu-LISA to decide on what 
type of statistics to draw-up. 

106