Explanatory Memorandum to COM(2020)610 - Asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund]

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dossier COM(2020)610 - Asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX ...
source COM(2020)610 EN
date 23-09-2020


1. CONTEXTOFTHE PROPOSAL

1.1. Reasons for and objectives of the proposal

In the Political Guidelines of the Commission, President Ursula von der Leyen announced a New Pact on Migration and Asylum, involving a comprehensive approach to external borders, asylum and return systems, the Schengen area of free movement and the external dimension.

The New Pact on Migration and Asylum, presented together with this proposal for a new Regulation on Asylum and Migration Management1, represents a fresh start on migration based on a comprehensive approach to migration management. This proposal puts in place a common framework for asylum and migration management at EU level as a key contribution to the comprehensive approach and seeks to promote mutual trust between the Member States. Based on the overarching principles of solidarity and a fair sharing of responsibility, the New Pact advocates integrated policy-making bringing together policies in the areas of asylum, migration, return, external border protection, the fight against migrants’ smuggling and relations with key third countries reflecting a whole of government approach. It recognises that a comprehensive approach also means a stronger, more sustainable and tangible expression of the principle of solidarity and fair sharing of responsibility, which finds its balance in a broader context, widening the focus beyond the issue of which Member State is responsible for examining an application for international protection. These principles should therefore be applied to the whole of migration management, ranging from ensuring access to international protection to tackling irregular migration and unauthorised movements.

The challenges of migration management, ranging from ensuring a balance of efforts in dealing with asylum applications to ensuring a quick identification of those in need of international protection or effective return of those who are not in need of protection, should not have to be dealt with by individual Member States alone, but by the EU as a whole. In addition, the strain on Member States' asylum systems continues to put a heavy burden on Member States of first arrival as well as on the asylum systems of other Member States through unauthorised movements. The current migration system is insufficient in addressing these realities. In particular, there is currently no effective solidarity mechanism in place and no efficient rules on responsibility. A European framework that can manage the interdependence between Member States’ policies and decisions is therefore required. This framework must take into account the ever-changing realities of migration, which have meant increased complexity and an intensified need for coordination.

This proposal for a new Regulation on Asylum and Migration Management aims at replacing the current Dublin Regulation and relaunches the reform of the Common European Asylum System (CEAS) through the establishment of a common framework that contributes to the comprehensive approach to migration management through integrated policy-making in the field of asylum and migration management, including both its internal and external components. This new approach anchors the existing system in a wider framework that is able to reflect the whole of government approach and ensure coherence and effectiveness of the actions and measures taken by the Union and its Member States. This approach also includes a new and more comprehensive mechanism for solidarity to ensure the normal functioning of

OJ L […], […], p. […].

the migration system, as well as streamlined criteria and more efficient mechanisms for determining the Member State responsible for examining an application for international protection.

This proposal provides for a new solidarity mechanism that is flexible and responsive in design in order to be adjustable to the different situations presented by the different migratory challenges faced by the Member States, by setting solidarity measures from among which Member States can choose to contribute. This new approach to solidarity provides continuous and diverse support to Member States under pressure or risk of pressure and includes a specific process to address the specificities of disembarkations following search and rescue (SAR) operations. In addition, Member States will be able to offer voluntary contributions at any time. The Commission will ensure the coordination of such measures at all times.

This proposal also includes provisions to strengthen the return of irregular migrants. For this purpose, it introduces a mechanism to facilitate cooperation with third countries on return and readmission and which complements the mechanism established by Article 25a of the Visa Code Regulation (EU) 810/20192. This new mechanism empowers the Commission to present to the Council a report identifying effective measures to incentivise and improve the cooperation with third countries to facilitate return and readmission, as well as cooperation among Member States for the same aim, while taking into due consideration the overall interests and relations with the third countries concerned. The Commission will rely on input of the European External Action Service and EU Delegations. The Commission and the Council will then consider any appropriate further actions to be implemented in that respect, within the limits of their respective competencies. This mechanism and the new EU Return Coordinator, supported by a network of high-level representatives, announced in the New Pact on Migration and Asylum, will contribute to a common strategic and coordinated approach on return and readmission among the Member States, the Commission and Union agencies.

Furthermore, the solidarity measures will also include new possibilities for Member States to provide assistance to each other in carrying out returns, in the form of return sponsorship. Under this new form of solidarity measure, Member States would commit to return irregular migrants on behalf of another Member State, carrying out all the activities necessary for this purpose directly from the territory of the benefitting Member State (e.g. return counselling, leading policy dialogue with third countries, providing support for assisted voluntary return and reintegration). Such activities are additional to the ones carried out by the European Border and Coast Guard Agency (EBCGA) by virtue of its mandate and notably include measures that the Agency cannot implement (e.g. offering diplomatic support to the benefitting Member State in relations with third countries). However, when return will not have been finalised within 8 months, the irregular migrants would be transferred to the territory of the Member State providing sponsorship with a view to continuing from there the efforts to enforce the return decisions.

The new approach to migration management also includes improving the rules on responsibility for examining an application for international protection, in order to contribute to reducing unauthorised movements in a proportionate and reasonable manner.

Regulation (EU) 2019/1155 of the European Parliament and of the Council of 20 June 2019 amending Regulation (EC) No 810/2009 establishing a Community Code on Visas (Visa Code), OJ L 188, 12.7.2019, p. 25.

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This proposal further establishes a governance framework built on national strategies of the Member States, which 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 implementation of asylum, migration, and return policies in accordance with the comprehensive approach.

Reform of the Common European Asylum System (CEAS)

The Pact builds on the Commission proposals to reform the CEAS from 2016 and 2018 and introduces additional new elements to ensure the balance needed for a common framework bringing together all aspects of asylum and migration policy. The proposed 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 Asylum10.

Whereas significant progress was made on a number of these proposals, and provisional political agreements were reached between the co-legislators on the proposals for 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 proposals for the Dublin Regulation and the Asylum Procedure Regulation, mainly due to diverging views in the Council. There was also not sufficient support for agreeing on only some of the asylum reform proposals ahead of an agreement on the full reform.

Together with this proposal, the Commission is presenting a proposal amending the 2016 proposal for an Asylum Procedure Regulation11 and the proposal for a Regulation introducing a screening12 of third-country nationals and stateless persons at the external borders, which establish a seamless link between all stages of the migration procedure, including a new pre-entry phase as well as a quicker return of third-country nationals without a right to remain in the Union.

In addition, the Commission is presenting a proposal amending the 2016 proposal for recast Eurodac Regulation13 to put in place a clear and consistent link between specific individuals and the procedures they are subjected to in order to better assist with the control of irregular migration and the detection of unauthorised movements and to support the implementation of the new solidarity mechanism.

COM(2016) 270 final. COM(2016) 194 final. COM(2016) 271 final. COM(2016) 467 final. COM(2016) 466 final. COM(2016) 465 final. COM(2016) 468 final. COM(2018) 633 final. OJ L [...], [...], p. [...]. OJ L [...], [...], p. [...]. OJ L [...], [...], p. [...].

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Finally, the Commission is also presenting a proposal for a Regulation on the management of crisis situations in order to set out the tools necessary to deal with crisis situations and force majeure. This instrument aims at addressing exceptional situations of mass influx of third-country nationals or stateless persons arriving irregularly in a Member State, or an imminent

risk of such arrivals, being of such a scale and nature that it renders the Member State’s

asylum, reception or return system non-functional, and which 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, as well as providing for derogatory rules in situations of force majeure.

1.2. Objectives of the proposal

A comprehensive approach to migration management is required to build mutual trust between Member States, to ensure the consistency of the EU approach on asylum, migration management, external border protection and relations with relevant third countries, whilst recognising that the effectiveness of the overall approach depends on all components being jointly addressed and in an inte grated manner. It also takes account of the recent judgments by the Court of Justice in joined cases C- 715/17, C-718/17 and C-719/17, where the Court foun d

that “the burdens […] must, in principle, be divided between all the other Member States, in

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accordance with the principle of solidarity and fair sharing of responsibility between the Member States, since, in accordance with Article 80 TFEU, that principle governs the


Union’s asylum policy”.

The Commission proposed in 2016 a system where, when on the basis of the hierarchy of the responsibility criteria, a Member State was determined to be responsible for examining an application for international protection, that Member State would remain permanently responsible for examining any further applications or representations made by the same applicant. The system was supplemented with a compulsory and automatic corrective allocation mechanism that, based on a reference key, was triggered when a Member State was faced with disproportionate pressure, ensuring a clear and binding system of responsibility sharing between Member States. The European Parliament adopted its negotiation mandate on 16 November 2017, which included a proposal to replace the criterion of first entry and the default criterion of first application with an allocation system where the applicant would be able to choose to be allocated to one of the four Member States with the fewest applications. On the side of the Council, the Member States were unable to agree on a common approach and the negotiations stalled.

With a view to overcome the current deadlock and provide a wider and solid framework for the migration and asylum policies, the Commission intends to withdraw the 2016 proposal. This proposal repeals and replaces Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determi ning 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 ( the Dublin III Regulation").

In particular, this proposal aims to:

• establish a common framework that contributes to the comprehensive approach to asylum and migration management based on the principles of integrated policy-making and of solidarity and fair sharing of responsibility;

• ensure sharing of responsibility through a new solidarity mechanism by putt ing in place a system to deliver solidarity on a continued basis in normal times and assist Member States with effective measures (relocation or return sponsorship and other contributions aimed at strengthening the capacity of Member States in the field of asylum, reception and return and in the external dimension) to manage migration in practice where they are faced with migratory pressure. This approach also includes a specific process for solidarity to be applied to arrivals following search and rescue operations;

• enhance the system s capacity to determine efficiently and effectively a single Member State responsible for examining an application for international protection. In particular, it would limit the cessation of responsibility clauses as well as the possibilities for shift of responsibility between Member States due to the actions of the applicant, and significantly shorten the time limits for sending requests and receiving replies, so as to ensure that applicants will have a quicker determination of the Member State responsible and hence a quicker access to the procedures for granting international protection;

• discourage abuses and prevent unauthorised movements of the applicants within the EU, in particular by including clear obligations for applicants to apply in the Member State of first entry or legal stay and remain in the Member State determined as responsible. This also requires proportionate material consequences in case of noncompliance with their obligations.

1.3. Consistency with existing policy provisions in the policy area

The system for determining which Member State is responsible for examining an application for international protection is the cornerstone of the Common European Asylum System. It is fully linked with the legal and policy instruments in the field of asylum, in particular asylum procedures, standards for the qualification for individuals for international protection, and reception conditions, as well as resettlement.

This proposal is also consistent with the rules concerning border control at the external borders as set out in the Schengen Borders Code and contributes to the objective of effective external border management as a necessary corollary to the free movement of persons within the Union. By widening the scope of the measures to address migratory challenges, the proposal further reduces the need to reintroduce border controls at the internal borders.

In addition, consistency is ensured with the effective European integrated border management at Union and national level as defined in the Regulation on the European Border and Coast Guard. European integrated border management is a necessary corollary to the free movement of persons within the Union and is a fundamental component of an area of freedom, security and justice. It is also central to this proposal and contributes to the implementation of the principle of integrated policy to improve the comprehensive approach to migration management foreseen in this proposal.

This proposal is fully consistent with the Communication on the New Pact on Migration and Asylum and the Roadmap of initiatives accompanying it, including the proposal for a targeted amendment of the Asylum Procedure Regulation and the Regulation introducing a screening, which ensure that migrants are subject to an identity, health and security screening and are channelled to either a return or an asylum procedure including, where relevant, the asylum or return border procedure set out in the amending proposal of the Asylum Procedure

Regulation. The proposal is also consistent with the proposal amending the 2016 proposal for recast Eurodac Regulation14.

This proposal is also fully consistent with the Migration Preparedness and Crisis Blueprint that provides an operational framework for monitoring and anticipation of migration flows and the migratory situation, building resilience as well as organising a coordinated response to a migration crisis. In particular, the proposal makes full use of the reports issued and the activities of the network set-up under the Blueprint.

The proposal further strengthens the EU return legal framework and policy, by reinforcing the capacity of the Union to act on cooperation with third countries through a mechanism empowering the Commission to consider and put forward measures to improve such cooperation, going beyond the measures already foreseen in the Visa Code.

Consistency is also ensured with the provisional political agreements already reached on the Qualification Regulation, the recast Reception Conditions Directive, the Union Resettlement Framework Regulation, and the Regulation establishing the European Union Agency for Asylum, which the Commission fully supports. Since the objectives underpinning these proposals remain valid today, an agreement on these proposals should be reached as soon as possible.

However, since no agreement could be found on the proposal for a Dublin Regulation published on 4 May 2016, and since this proposal includes a new structured solidarity mechanism and also takes into account other changes proposed in 2016 aimed primarily at making the procedures leading to a Dublin transfer more effective, such as take back notifications and limiting shift of responsibility, it is necessary to withdraw that proposal.

The Commission also proposed a crisis relocation mechanism in September 201515, in order to design a structural solution for dealing with crisis situations such as those in Greece and Italy that led to the two relocation decisions adopted by the Council in September 201516. Since the proposal for a Regulation on Asylum and Migration Management includes provisions to address the realities of migratory flows through relocation and return sponsorship in times of migratory pressure, and since the proposal for a Regulation addressing situations of crisis and force majeure in the field of migration and asylum also foresees specific rules for relocation and return sponsorship to structurally deal with situations of crisis, the Commission intends to withdraw the proposal for a crisis relocation mechanism of September 2015 and repeal the Temporary Protection Directive17.

1.4. Consistency with other Union policies

This proposal is consistent with the comprehensive, long-term approach to migration management set out in the New Pact on Migration and Asylum, involving putting migration policy at the heart of relations with third country partners; integrating the management of

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OJ L […], […], p. […].

COM (2015) 450 final.

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Council Decision 2015/1523 of 14 September 2015 and Council Decision (EU 2015/1601 of 22


September 2015.

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Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection


in the event of a mass influx of displaced persons and on measures promoting a balance of efforts

between Member States in receiving such persons and bearing the consequences thereof, OJ L 212,

7.8.2001, p. 12.

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external borders into the wider EU’s migration management policy; building seamless, fair and efficient procedures for asylum and return and reinforcing the Schengen area of free movement based on trust between Member States. A key part of this approach is promoting legal pathways to the EU to attract talents for the EU labour market and providing protection to those in need through resettlement and other complementary pathways to protection and developing dedicated policies to help the integration of third-country nationals into European societies.

By putting in place a framework that addresses the whole of route approach to migration management through building partnerships with third countries, this Regulation contributes to the EU’s objectives of an ambitious and broad-ranging external policy based on partnership with third countries. This also ensures consistency with the Unions humanitarian goals expressed through support for refugees in third countries.

This proposal is consistent with the proposal for screening and in particular contributes to the strong safeguards for the fundamental rights through the monitoring mechanism provided for therein. In the proposal of the regulation establishing the obligation of screening at the external borders of third-country nationals who, in principle, do not fulfil entry conditions - a new monitoring mechanism is proposed to ensure that fundamental rights are observed throughout the screening and that any allegations of the breach of fundamental rights are properly investigated. This monitoring is part of the governance provisions of the proposed Regulation, which set out that Member States should integrate the results of their national monitoring mechanism under the Screening Regulation in their national strategies provided for in this proposed Regulation. In addition, the annual Migration Management Report will also include the results of the reporting on monitoring and propose improvements where appropriate.

In order to support solidarity measures focused on relocation and the subsequent transfers, in addition to the transfers covered by the procedures for determination of responsibility of Member States, this proposal foresees lump sums to be paid to Member States and is fully consistent with the EU budget to incentivise such measures and the efficient application of the Regulation.

This proposal further strengthens policies in the field of security. Through specific rules set out in this Regulation, responsibility for examining an application for international protection will be quickly established where the person presents a risk to national security and public order, and will prevent any further transfers of such persons to other Member States. Therefore, the proposal also reinforces the security objective provided for in the proposal for a Screening Regulation, under which such a security check will be mandatory.

2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY

2.1. Legal basis

This proposal repeals and replaces Regulation (EU) No 604/2013 and widens the scope to include a common framework that contributes to the comprehensive approach to migration management, in addition to introducing a broader approach to solidarity, and should therefore be adopted on the appropriate legal basis, namely Article 78, second paragraph, point (e) and Article 79, second paragraph, point (c) of the Treaty on the Functioning of the European Union (TFEU), in accordance with the ordinary legislative procedure.

2.2. Variable geometry

Ireland is bound by Regulation (EU) No 604/2013, following the notification of their wish to take part in the adoption and application of that Regulation based on the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union (TEU) and to the TFEU18.

In accordance with the above-mentioned Protocol, Ireland may decide to take part in the adoption of this proposal. They also have this option after adoption of the proposal.

Under the Protocol on the position of Denmark, annexed to the TEU and the TFEU, Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (with the exception of 'measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas'). However, given that Denmark applies the current Dublin Regulation, on the basis of an international agreement that it concluded with the EC in 200619, it shall, in accordance with Article 3 of that Agreement, notify the Commission of its decision whether or not to implement Parts III, V and VII of the amended Regulation.

2.3. Impact of the proposal on non EU Member States associated to the Dublin system

In parallel to the association of several non-EU Member States to the Schengen acquis, the Union has concluded several agreements associating these countries also to the Dublin/Eurodac acquis:

– the agreement associating Iceland and Norway, concluded in 2001;

– the agreement associating Switzerland, concluded on 28 February 2008;

– the protocol associating Liechtenstein, concluded on 7 March 2011.

In order to create rights and obligations between Denmark – which as explained above has been associated to the Dublin/Eurodac acquis via an international agreement – and the associated countries mentioned above, two other instruments have been concluded between the Union and the associated countries20.

In accordance with the three above-cited agreements, the associated countries shall accept the Dublin/Eurodac acquis and its development without exception. They do not take part in the adoption of any acts amending or building upon the Dublin acquis (including therefore this proposal) but have to notify to the Commission within a given time-frame of their decision

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The same applies to the United Kingdom during the transition period under the Withdrawal Agreement. Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention, OJ L66, 8.3.2006, p. 38.

Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (concluded on 24.10.2008, OJ L 161, 24.06.2009, p.

8) and Protocol to the Agreement between the Community, Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State, Iceland and Norway, OJ L 93, 3.4.2001.

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whether or not to accept the content of that act, once approved by the European Parliament and the Council. In case Norway, Iceland, Switzerland or Liechtenstein do not accept an act amending or building upon the Dublin/Eurodac acquis, the respective agreements will be terminated, unless the Joint/Mixed Committee established by the agreements decides otherwise, by unanimity.

The proposed Regulation has a wider scope beyond the subject matter of the above-cited agreements, setting out a comprehensive approach based on a common framework for migration management whilst preserving the core provisions relating to the determination of responsibility for examining an application for international protection, which remain a key part of the Regulation. In order to ensure that the agreements with Denmark and the Associated Countries regulating their participation in the Dublin system are preserved, Denmark, Norway, Iceland, Switzerland and Liechtenstein will, should this act be accepted, only be bound by Parts III, V and VII of this Regulation.

2.4. Subsidiarity

Title V of the TFEU on the Area of Freedom, Security and Justice confers certain powers on these matters to the European Union. These powers must be exercised in accordance with Article 5 of the Treaty on the European Union, i.e. if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale or effects of the proposed action, be better achieved by the European Union.

This proposal streamlines the current rules set out in Regulation (EU) No 604/2013 and aims at ensuring the correct application of these rules which will limit unauthorised movements of third-country nationals between Member States, issues which are cross-border by nature. These rules are complemented with a new solidarity mechanism to put in place a system to address situations where Member States are faced with migratory pressure. This approach also foresees the inclusion of solidarity measures applied to arrivals following search and rescue operations in order to provide support to Member States dealing with the challenges of such arrivals.

Achievement of these objectives requires action at the EU level since they are cross-border by nature. It is clear that actions taken by individual Member States cannot satisfactorily reply to the need for a common EU approach to a common problem.

2.5. Proportionality

In accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve its objectives.

As regards the comprehensive approach based on a common framework, this Regulation establishes the key principles of such an approach underpinned by a monitoring and governance structure necessary to ensure its implementation. Through the principles of integrated policy-making and those relating to solidarity and fair sharing of responsibility, Member States have a shared interest to ensure the coherent implementation of migration management at EU level. These provisions do not go beyond what is necessary to achieve the objective of addressing the situation effectively.

As regards the streamlining of the rules for determining the Member State responsible for examining an application for international protection, the changes proposed are limited to what is necessary to enable an effective operation of the system, both in relation to the swifter access of applicants to the procedure for granting international protection and to the capacity of Member States' administrations to apply the system.

As regards the introduction of a new solidarity mechanism, Regulation (EU) No 604/2013 does not provide, in its current form, for tools to address situations where Member States are faced with migratory pressure. In addition, the current Regulation does not address the specific situation presented by arrivals following search and rescue operations. The provisions on solidarity that the proposal introduces seek to address this gap. These provisions do not go beyond what is necessary to achieve the objective of addressing the situation effectively.

2.6. Choice of the instrument

Given that the existing Dublin mechanism was established by means of a Regulation, the same legal instrument is used to put in place a comprehensive approach based on a common framework for effective migration management, streamlining the Dublin mechanism and complementing it with a solidarity mechanism.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER

Contents

1.

CONSULTATIONS


ANDIMPACTASSESSMENTS

Collection of knowledge of implementation and application of existing legislation

3.1. Evidence-based policy-making

The Commission has conducted an analysis of the situation and its results are contained in more detail in the Staff Working Document that accompanies the New Pact on Migration and Asylum and its legislative and non-legislative proposals. It highlights the recent developments in the field of migration management and underlines that the relaunch of the reform of the system for determining the Member State responsible for examining an application for international protection and a new way of burden sharing are key elements to a fresh start.

The analysis highlights that, although the number of irregular arrivals to the Union has dropped dramatically by 92% since the height of the crisis in 2015, there are still a number of structural challenges that put Member States' asylum, reception and return systems under strain. These include an increasing proportion of applicants for international protection without genuine claims who are unlikely to receive protection in the EU with a resulting increased administrative burden and delays in granting protection for those in genuine need of protection as well as a persistent phenomenon of onward movement of migrants within the EU. Moreover, the challenges for Member States’ authorities in ensuring the safety of applicants and their staff when facing the COVID-19 crisis must also be acknowledged.

Whilst the number or irregular arrivals has decreased over time, the share of migrants arriving from countries with recognition rates lower than 20% has risen from 13% in 2015 to 55% in 2018. At the same time, there has also been an increasing share of complex cases, which are more resource consuming to process, as the arrival of third-country nationals with clear international protection needs in 2015-2016 has been partly replaced by mixed arrivals of persons of nationalities with more divergent recognition rates. Furthermore, notwithstanding the EU-wide decrease in irregular arrivals, the number of applications for international protection has continued to climb, reaching a fourfold difference to the number of arrivals.

This trend points towards applicants not applying in the first Member State of arrival, multiple applications for international protection within the EU, and the need for reform of the current Dublin system. Finally, the challenges posed by disembarkations following search and rescue operations persist. In 2019, half of all irregular arrivals by sea were disembarked following search and rescue operations putting a particular strain on certain Member States solely due to their geographical location.

The analysis further details that third-country nationals whose applications for international protection are rejected, representing around 370,000 persons in the EU every year21, 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 year22. The increasing proportion of applicants for international protection unlikely to receive such protection in the EU results in an increased burden to process not only the applications, but also the return of irregular migrants who never applied for international protection or whose applications have been rejected, including as manifestly unfounded or inadmissible. And it naturally affects the speed in granting the status to those who are in genuine need of international protection.

The analysis highlights that there are important structural weaknesses and shortcomings in the design and implementation of the European asylum and migration policy. Member States’ asylum and return systems remain largely not harmonised, thus creating differences in the protection standards, inefficiencies in the procedures and encouraging unauthorised movements of migrants across Europe to seek better reception conditions and prospects for their stay with unwanted effects for the Schengen area. 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 recognising how this affects the overall framework of migration management and how it fits into the comprehensive framework that is necessary to benefit from a well-managed system. Overall, the evidence paper acknowledges that there is a lack of integrated policy-making, which brings together the different policies into a coherent whole.

The evidence paper further highlights that the lack of a sustainable system which works for all Member States has consequences for the possibility to ensure immediate and real reactivity to external factors. Namely, there is no structured solidarity mechanism in the current Dublin system or in the CEAS in general, even though the pressure on individual Member States can vary greatly and shift suddenly and in an unpredictable way.

Furthermore, the lack of a coherent EU approach on the link between termination of legal stay due to a negative asylum decision and the beginning of return procedures including requesting readmission to third countries, decreases the effectiveness of the entire migration management system. In addition, there is insufficient or unreliable data, or the data sources are not efficiently exploited enough to give a complete picture. Quantitative data provided in January 2020 by Member States concerning the intensity of unauthorised movements observed in their country was scarce; contributions from nineteen Member States instead pointed to the number

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The average of negative asylum decisions by the determining authorities in 2015-2019 in the EU-27. The ratio between the average number of negative asylum decisions and the average number of return decisions issued in the period 2015-2019 (456,625) is 81.6% of the total number of return decisions issued.

of applications for international protection received, as well as in some cases to the number of incoming/outgoing Dublin transfer requests.

These challenges can only be addressed by making the European asylum and migration system more efficient, comprehensive and sustainable by viewing the EU’s migration management as a set of interlocking policies based on integrated policy-making and rules, where the effectiveness and shortcomings of each single part affect the system as a whole.

In addition, the analysis points to the fact that a wider solidarity concept is needed. This solidarity concept should be compulsory in nature in order to be able to respond predictably and effectively to the changing realities with an increasing share of mixed migration flows towards the Union, and to ensure fair sharing of responsibility in line with the Treaty. Support from one Member State to another is necessary not only in the form of relocation of applicants that are not in the border procedure but also in certain cases of other groups, such as applicants that are in the border procedure and also beneficiaries of international protection. In addition, Member States should have the possibility to benefit from solidarity in the field of return to be better able to manage the increasing share of mixed migration flows. The evidence further suggests that solidarity between Member States that have taken the form of contributions to capacity building and other areas of support have proved effective in assisting a Member State facing migratory pressure. Lessons learned from previous and ongoing solidarity schemes, highlight that solidarity should also be available on a constant basis in the context of disembarkations following SAR operations. The evidence paper also underlines that migratory pressure stems from different factors and should be 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 (holistic qualitative assessment).

In addition, in certain cases, support to the proper functioning of the asylum, reception and return systems as well as border management has also proved effective. Member States’ mutual support and support at EU level for improving and reinforcing the relations with certain third countries, in particular as regards readmission, could also be of real assistance to some Member States in certain cases.

Finally, the evidence paper highlights the need for simplified and more efficient rules for the procedure to determine the Member State responsible for examining an application for international protection. 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 were already proposed in 2016, and some are based on the current Dublin rules.

Member States’ responsibilities for migration also need to be adjusted to take account of the new situation and be fairly shared, in view of the wider framework for migration management. Common rules for how to handle mixed migratory flows, either at arrival or when third-country nationals who avoided the checks at external borders are apprehended inland, are needed to establish their identity, as well as to carry out health and security checks, building on the practices that have already been developed within the hotspot approach. Further and extensive support should come from the EU agencies and by means of EU funding both in helping Member States to provide the solidarity contributions they will have to provide and in managing their different responsibilities for migratory flows.

3.2. Ex-post evaluations/fitness checks of

existing legislation

Following its commitment announced in the European Agenda for Migration, the Commission commissioned external studies on the evaluation of the Dublin system in 2016.23 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.24 The evaluation included an in-depth study on the practical implementation of the Dublin III Regulation in the Member States.25 The main findings are summarised below, and set out in further detail in the Staff Working Document that accompanies the New Pact and its proposals. In addition, the European Parliament requested the European Council on Refugees and Exiles (ECRE) to carry out a study on ‘Dublin Regulation on international protection applications’26 in February 2020.

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.

The recent European Parliament 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

23

24

Evaluation and implementation reports available at: ec.europa.eu/dgs/home-affairs/what-wedo/policies.

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.

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, 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. Evaluation report available at: www.europarl.europa.eu/RegData/etudes/STUD/2020(2020)642813_EN.pd">https://www.europarl.europa.eu/RegData/etudes/STUD/2020(2020)642813_EN.pd

25

26

f.

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 that 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. In addition, multiple applications for international protection remain a common problem in the EU. In 2019, 32% of the applicants had already launched previous applications in other Member States. This suggests that the Regulation has had little or no effect on reaching the objective of preventing applicants from pursuing multiple applications, thereby reducing unauthorised movements.

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

3.3. Stakeholder

consultations

The political profile of migration over recent years and the negotiations on the 2016 proposals mean that there has already been a rich and detailed debate on the issues covered by this Regulation. In addition, the Commission consulted the European Parliament, Member States, and stakeholders on a number of occasions to gather their views on the New Pact on Migration and Asylum.

Particular attention was focussed on engagement with the European Parliament that has repeatedly expressed the importance of a holistic approach to a sustainable asylum and migration policy. The need for a holistic approach to migration was also supported in the position papers presented by several political groups in the European Parliament and a general call was made for a swift conclusion on the proposals for migration and asylum. The European Parliament has expressed the view that a holistic approach to migration should take 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 support resettlements, legal pathways and integration measures.

The European Parliament also called for a system of compulsory solidarity that includes relocation and the need for long-term solutions and strong solidarity on asylum measures. This has also emerged in the context of the coronavirus pandemic, in order to avoid humanitarian crises.

Ahead of the launch of the New Pact on Migration and Asylum, the Commission has engaged in continuous discussions with all Member States and thereafter throughout the preparation of the Pact. Member States understood the need for progress in solving the weaknesses of the current system, the need for a new system of fair sharing of responsibility to which all Member States would be under the obligation to contribute, strong border protection, importance of the external dimension of migration, and improved returns. The Commission’s

intention of finding new forms of solidarity, for instance through return sponsorship, was generally welcomed during the consultation phase.

In parallel, the Romanian, Finnish, Croatian and German Presidencies have held both strategic and technical exchanges on the future of various aspects of migration policy that further emphasised these points.

In the framework of several Council fora organised under the Finnish Presidency, including the Tampere 2.0 conference held on 24-25 October 2019 in Helsinki and the Salzburg Forum held in Vienna on 6-7 November 2019, Member States welcomed the intention of the European Commission to relaunch the Dublin reform in order to find new forms of solidarity to which all Member States can make meaningful contributions. Member States underlined that solidarity measures should go hand in hand with measures of responsibility. Furthermore, they underlined the urgent need to combat unauthorised movements within the EU as well as to enforce returns for those who are not in need of international protection.

The Commission has also taken into consideration many recommendations of national and local authorities27, non-governmental and international organisations, such as UNHCR28, IOM29, as well as think tanks and academia, on how to envisage a fresh start and 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 mechanism of compulsory solidarity including for persons disembarked further to a SAR operation. Non-governmental organisations also advocate for a common understanding of responsibility among Member States and called for the revised Dublin rules to include a more

permanent relocation mechanism30.

The Commission has also taken into consideration the stakeholders’ views on the need to build a comprehensive approach to migration management through a holistic approach to migration and asylum. The stakeholders consulted have expressed their views on how to elaborate a new principle of solidarity and fair sharing of responsibility, and have generally welcomed the Commission’s intention to relaunch the reform of the Dublin Regulation in order to find new forms of solidarity.

Commissioner Johansson also held, on several occasions, targeted consultations with civil society organisations, relevant local non-governmental organisations in the Member States as well as social and economic partners. In this consultation process, specific recommendations focused on a common approach to child-specific standards following to the Communication of 2017 on Children in Migration31 and the need to build a system which is fair and ensures that fundamental rights will be protected.

8.

29 30


For example, Berlin Action Plan on a new European Asylum Policy, 25 November 2019, signed by 33

organisations and municipalities.

UNHCR Recommendations for the European Commission’s proposed Pact on Migration and Asylum,

January 2020.

IOM Recommendations for the new European Union Pact on Migration and Asylum, February 2020.

CEPS Project Report, Search and rescue, disembarkation and relocation arrangements in the

Mediterranean. Sailing Away from Responsibility?, June 2019.

9.

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.

27

28

3

The Commission also took into account the contributions and studies of the European Migration Network32, which have been launched at its initiative and which over the last years have produced several specialised studies and ad hoc queries.

3.4. Fundamental rights

This proposal is fully compatible with and respects fundamental rights and general principles of the Union as well as international law.

In particular, better informing asylum seekers about the application of this Regulation and their rights and obligations within it will on the one hand enable them to better defend their rights and on the other hand contribute to diminish the level of unauthorised movements as asylum seekers will be better inclined to comply with the system. The effectiveness of the right to judicial remedy will be increased, by specifying the scope of the appeal and setting out the objective for courts or tribunals to take decisions within a harmonised time limit. A request for suspensive effect must be decided within a harmonised time limit.

The right to liberty and freedom of movement will be reinforced by shortening the time limits under which a person may be detained in an exceptional case prescribed under the Regulation and only if it is in line with the principles of necessity and proportionality.

The respect for private and family life will be reinforced, in particular by enlarging the scope of the Regulation to include siblings as well as families formed in transit countries.

The rights of unaccompanied minors have also been strengthened through better defining the implementation of the principle of the best interests of the child and by setting out a mechanism for making a best interests of the child-determination in all circumstances implying the transfer of a minor. The time limit for sending a take charge request is also adapted to take into account the complexity of cases concerning family tracing and reunification. The rules relating to evidence have been streamlined in order to ensure quick determination of responsibility and to further strengthen the right to family unity. Equally, relocation of unaccompanied minors will always have to be given priority and Member States will receive a higher financial incentive in that respect in the form of a contribution.

In order to prevent unauthorised movements, the proposal limits the right to material reception conditions in the Member State where the applicant is required to be present, with the exception of the obligation for all Member States to ensure a standard of living in accordance with Union law, including the EU Charter, and international obligations.

4. BUDGETARYIMPLICATIONS

The total financial resources necessary to support the implementation of this proposal amount to EUR 1 113.500 million foreseen for the period 2021-2027. This would cover the operational costs including the transfer costs in the form of lump sums for transfers under this proposed Regulation and for transfers in connection with relocation in the context of the solidarity provisions, relating to relocation of applicants for international protection, beneficiaries of international protection and illegally staying third-country nationals. Higher financial incentives are foreseen for the relocation of unaccompanied minors.

32 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.

The financial needs are compatible with the current multiannual financial framework and also entail the use of special instruments as defined in the Council Regulation (EU, Euratom) No 1311/201333.

5. DETAILED EXPLANATION OF THE SPECIFIC PROVISIONS OF THE

PROPOSAL

This Regulation sets out a common framework that seeks to recognise that the challenge of irregular arrivals of migrants in the Union should not have to be assumed by individual Member States alone, but by the Union as a whole. The Regulation contributes to the comprehensive approach by promoting integrated policy-making within its field of application.

The proposal retains the link between responsibility in the field of asylum and the respect by Member States of their obligations to protect the external border, taking into account international obligations of carrying out search and rescue operations, subject to exceptions designed to protect family life and the best interests of the child. The current criteria for determining responsibility are essentially preserved, but targeted changes are proposed, notably to strengthen family unity by extending the definition of family member, clarifying a Member State’s responsibility following search and rescue operations, and introducing a new criterion relating to the possession of educational diplomas.

The main amendments made intend to, on the one hand, improve the efficiency of the system, notably by reinforcing the responsibility of a given Member State for examining an application for international protection, once that responsibility has been established. On the other hand, the amendments serve to limit unauthorised movements, in particular by deleting certain rules on cessation or shift of responsibility between Member States.

The system is supplemented with a new approach to solidarity, based on a framework that allows for real time assessment of the situation in the Member States and the EU. In addition, procedural rules are set out to facilitate relocation and return sponsorship as a means of solidarity.

5.1. Setting out a common framework based on the comprehensive approach to

migration management

In order to implement the common framework, the proposal sets out a number of principles that should guide the implementation of migration management including the need for integrated policy-making and ensuring the principle of solidarity and fair sharing of responsibility. A governance structure is set out, where Member States will have national strategies in place regarding the implementation of this framework, including on contingency planning to prevent the build-up of migratory pressure and also on monitoring of fundamental rights.

These strategies will contribute to a new European Strategy on the implementation of the different elements covering the comprehensive approach and will set out the strategic approach to migration management at Union level, enabling a forward looking perspective on the risks and opportunities present in migration management and how best to deal with them.

33 Council Regulation (EU, Euratom) No 1311/2013 of 2 December 2013 laying down the multiannual

financial framework for the years 2014-2020, OJ L 347, 20.12.2013, p. 884.

The Commission will annually publish a Migration Management report that will include a short-term projection of the evolution of the migratory situation and allow for a timely response to evolving trends in migration and responses to the results of the monitoring framework. This framework will be complemented by a system of regular monitoring of the migratory situation through situational reporting by the Commission. This work will be supported by the activities under the Migration Pre pa re dn ess a nd Crisis Blueprint, notably the monitoring and reporting activities provided therein.

5.2. Solidarity mechanism

• Solidarity measures Member States will be under the obligation to ensure in situations of migratory pressure

A new mechanism is put in place that is able to deliver solidarity capable of addressing migratory pressure. The solidarity mechanism is flexible in design so that it can be applied to situations with different migratory flows and realities. Solidarity contributions that Member States will be under the obligation to provide consist of either relocation or return sponsorship and there is also the possibility to contribute to measures aimed at stre n gte hning the capacity of Member States in the field of asylum, reception and return and in the external dimension. Member States will be under the obligation to contribute through a share calculated on the basis of a distribution key based on 50% GDP and 50% population. The share of the benefitting Member State shall be included in the distribution key so as to ensure that all Member States are giving effect to the principle of fair sharing of responsibility.

Relocation

The proposed scope of relocation includes applicants for international protection that are not subject to the border procedure pursuant to Regulation (EU) XXX/XXX [Asylum Procedure Regulation]. Any meaningful links between the person to be relocated and the relocating Member State is built in as a procedural element. In cases of migratory pressure, relocation will also include beneficiaries of international protection for up to three years from when such persons were granted international protection.

Return sponsorship

The proposed Regulation includes the possibility for Member States to choose to provide their solidarity contribution in the form of return sponsorship. Under return sponsorship, a Member State commits to support a Member State under migratory pressure by carrying out the necessary activities to return individually identified illegally staying third-country nationals from the territory of a Member State benefitting from a compulsory solidarity measure, in close coordination. For this purpose, the sponsoring Member State would for instance provide counselling on return and reintegration to illegally staying third-country nationals, assist the voluntary return and reintegration of irregular migrants using their programme and resources, lead or support the policy dialogue with third countries for facilitating readmission of irregular migrants present in the benefitting Member State and ensure the delivery of a valid travel document. However, if these efforts prove to be unsuccessful after 8 months, the

sponsoring Member State would transfer the persons concerned and continue its efforts to return them in accordance with the Return Directive 2008/115/EC34.

The activities covered by return sponsorship are additional to those carried out by the European Border and Coast Guard Agency and they notably include activities that the Agency cannot implement by virtue of its mandate (e.g. offering diplomatic support to the benefitting Member State in re lation s with thi rd countries). Where Member States in dicate that they will undertake return sponsorship, they shall also indicate the nationalities of the third countries for which they are willing to support the return: this is to ensure that sponsorship is used to return third-country nationals for which the Member States concerned can bring added value.

• Solidarity measures following disembarkations from search and rescue operations

T he annual Migration Management Report will set out the short-term projections anticipated on all routes for disembarkations following such operations and the solidarity response that would be required to contribute to the needs of the Member States of disembarkation relating to both relocation of applicants not in the border procedure or capacity needs of the concerned Member States. The report will also indicate the share of required solidarity measures for each Member State and specify the total number of thi rd - c ountry nationals covered by the solidarity measures. Other Member States shall then indicate which type of solidarity measure they intend to take either through relocation of applicants or measures in the field of strengthening capacities or the external dimension.

Where the contributions by the Member States are sufficient, the Commission shall adopt an implementing act, which shall establish a solidarity pool with the aim of providing support to the challenges faced by the Member State of disembarkation.

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 for relocation. Where Member States have indicated that they intend to take measures in the field of capacity or the external dimension the Commission will establish the measures in the implementing act. 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 such cases, Member States may also choose to contribute through return sponsorship.

Throughout the year as disembarkations take place, the Commission will use the pool and prepare lists to distribute the persons to be relocated to the contributing Member States from each disembarkation or group of disembarkations. 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, which should be capped to 50% of the amount set out in the implementing acts. 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

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24.12.2008, p. 98.

34

pressure is adopted. The pools of other Member States of disembarkation may also be 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 have particular challenges due to the presence on their territory of third-country nationals who are applicants for international protection and are vulnerable, regardless of how they crossed the external borders, the solidarity pool may also be used for the purpose of quickly relocating such persons.

Compulsory solidarity in situations of migratory pressure

Assessment of

migratory pressure and the solidarity response

Where a Member State has informed the Commission that it considers being under migratory pressure, including a risk of pressure as a result of a large number of arrivals, including where these arrivals stem from search and rescue operations, the Commission will make an assessment of the situation taking into account the particular situation prevailing in the Member State, on the basis of a number of criteria and the information available, including the information gathered under the Migration Preparedness and Crisis Blueprint. Where the assessment indicates that a Member State is under migratory pressure, it will identify the overall needs of the Member State and indicate the appropriate measures needed to address the situation and all other Member States shall contribute through measures of relocation or return sponsorship or a combination of such measures. Where a Member State is itself a benefitting Member State, it is not under the obligation to contribute to solidarity. Member States shall indicate the type of contributions they will provide in the Solidarity Response Plans, which are sent to the Commission.

In addition, where the report on migratory pressure indicates a need for other solidarity measures aimed at strengthening its capacity in the field of asylum, reception or return or measures in the area of the external dimension in order to address migratory flows, the contributing Member States may indicate such measures in their Solidarity Response Plans 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 the 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 the external dimension amount to over 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.

Comm ission i m plementi ng acts on solidarity m easures

Within two weeks from the submission of the Solidarity Response Pl a ns, th e C omm iss ion wil l adopt an implementing act setting out the solidarity measures to be taken by Member States for the benefit of the Member State under migratory pressure.

The implementing act shall set out the total number of persons to be relocated and/or to be subject to return sponsorship, taking into account the capacity and needs of the benefitting Member State in the area of asylum and return identified in the assessment and specify the share of each Member State on the basis of a distribution key adjusted in line with the requests made by Member States who have demonstrated that they qualify for a deduction.It shall also specify the measures in the field of capacity building, operational support, or measures in the external dimension to be taken by a contributing Member State instead of relocation or return sponsorship.

The implementing act shall be adopted according to Article 8 of Regulation (EU) No 182/2011, whereby on d ul y justified imperative grounds of urgency due to the situation of migratory pressure in a benefitting Member States, the Commission is empowered to adopt immediately applicable implementing acts which remain in force for a period not exceeding 1 year.

• General provisions on Solidarity

Solidarity Forum

In situations of migratory pressure, where solidarity contributions indicated by Member States in the Solidarity Response Plans do not correspond to the needs identified in the assessment on migratory pressure, the Commission convenes the Solidarity Forum, which will provide an opportunity for Member States to adjust the category of their contributions in their Solidarity Response Plans.

Where projected solidarity contributions are not sufficient to ensure the efficient functioning of the solidarity support for disembarkations following SAR operations, the Commission will convene the Solidarity Forum before it adopts the additional implementing act foreseen in that Article.

Other forms of solidarity

A Member State may, at any time, request voluntary solidarity support from other Member States. Any Member State may make voluntary contributions for the benefit of that Member State, including by means of relocation of applicants for international protection subject to the border procedure in line with Regulation (EU) XXX/XXX [Asylum Procedure Regulation] or of illegally staying third-country nationals. In addition, Member States may on a volunatary basis make contributions aimed at strengthening the capacity of Member States in the field of asylum, reception and return and in the external dimension. Member States which have contributed or plan to contribute with solidarity measures shall inform the Commission through the submission of a Solidarity Support Plan annexed to this proposal. Where such voluntary contributions correspond to the measures set out in an implementing act on migratory pressure, the level of contributions by Member States will be deducted from the share indicated in the implementing act.

Relocation procedure

The proposed Regulation sets out the procedures to be followed before and after relocation and the obligations of both the benefitting Member State and the Member State of relocation.

The obligations of the benefitting Member State include provisions relating to the identification and registration of the persons concerned for the purpose of relocation and the obligation to ensure that the person concerned does not present a danger to national security of public order. Where the benefitting Member State concludes that the person concerned presents such security risk, that person shall not be relocated. Where the person to be relocated is an applicant, the benefitting Member State must also primarily assess that it cannot itself be determined as the Member State responsible pursuant to the criteria linked to family reunification or residence/visa before applying the relocation procedure, as these persons would have a strong link to the benefitting Member State and should not be relocated elsewhere. The obligations of the Member State of relocation include the obligation to relocate a person which is not a danger to national security or public order, and, where the person is an applicant, to carry out the procedure for determining the Member State responsible when this was not done in the benefitting Member State. Where the person is a beneficiary for international protection, the Member State of relocation must automatically grant the respective status granted by the benefitting Member State, in order to ensure that the beneficiary retains his or her status and corresponding rights even though he or she is relocated to a nother Me mber State .

Return sponsorsh ip procedure

A Member State that commits to provide return sponsorship has to engage and closely coordinate with the benefitting Member State in order to determine the specific support measures that are necessary for carrying out the return of individually identified illegally staying third-country nationals from the territory of the benefitting Member State. Based on the result of the coordination between the Member States concerned, the sponsoring Member State would take the necessary measures aimed at facilitating and successfully concluding return procedures, for instance by providing support for assisted voluntary return and reintegration, leading or supporting policy dialogue with specific third countries, ensuring the identification and delivery of valid travel documents or organising the practical arrangements for return operations such as charter or scheduled flights. At this stage, the benefitting Member State remains nonetheless responsible for carrying out return procedures (e.g. issuance of the return decision, appeals) in relation to the individuals concerned and shall apply the Return Directive.

The sponsoring Member States would implement the supporting measures during a predetermined period of time, set at 8 months. This period would start running from the day in which the Commission adopts an implementing act on solidarity in situations of migratory pressure. If the sponsored third-country nationals are not yet subject to a return decision when the implementing act is adopted, the period would be counted starting from when the return decisions are issued or, if the persons unsuccessfully applied for asylum and consequently received return decisions, from when the third-country nationals no longer have a right to remain and are not allowed to remain.

When despite the joint efforts by the Member States concerned returns have not been successfully carried out, at the expiry of the 8-month period, the third-country nationals would be transferred onto the territory of the sponsoring Member State. For this purpose, the procedure described in the previous section would apply mutatis mutandis.

• Financial support

10.

The proposal provides for financial incentives for relocation. A financial contribution of EUR 10,000 will be given per relocated person (including following return sponsorship if return


was not successful). The financial contribution will be EUR 12,000 when the relocated person is an unaccompanied minor. In addition, a financial contribution of EUR 500 will be given to cover the transfer costs of persons in connection with relocation and with the procedures set out in this Regulation.

Amendments to other

legislative instruments

The proposal includes an amendment to the Regulation (EU) XXX/XXX [Asylum and Migration Fund] to ntroduce the financia provisions underpinning this proposed Regulation.

The proposal also includes an amendment to Directive 2003/109/EC (Long-Term Residence Directive). 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 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.

5.3. Streamlining the procedure for determining responsibility and improving its

eff icien cy

With the aims of ensuring that the procedure for deter mining responsibility for examining an application for international protection operates smoothly and in a sustainable way, that it fulfils the aim of quick access to the examination procedure and to protection for those in need of it, and that unauthorised movements are discouraged, a number of improvements to the system are proposed, in particular:

• The obligation of an applicant to apply in the Member State either of first irregular entry or, in case of legal stay, in that Member State, as proposed in 2016. T he applicant is then required to be present in that Member State during the determination procedure, and in the Member State responsible following that deter mination. The aim is to ensure an orderly management of flows, to facilitate the determination of the Member State responsible, and hence quicker access to the procedure for granting international protection, and to prevent unauthorised movements. With this amendment, it is clarified that an applicant neither has the right to choose the Member State of application nor the Member State responsible for examining the application. In case of non-compliance with this obligation, an applicant will only be entitled to material reception rights where he or she is required to be present.

• Persons granted immediate protection pursuant to Regulation (EU) XXX/XXX [Regulation addressi ng situations of crisis and force majeure in the field of asylum and migration] are included in the definition of applicant to ensure that even though their applications are pending (suspended), the Member State that granted that protection status is not relieved of its obligation to determine the Member State responsible for examining the application and respect the criteria and mechanisms set out in this Regulation. Where another Member State is determined as the Member State responsible, the immediate protection should cease when the transfer is carried out. Should the persons concerned move to other Member States and apply for international protection there, the Member State responsible would also be obliged to take them back pursuant to the procedures set out in this Regulation.

• As proposed in 2016, before applying the criteria for determining the Member State responsible, the Regulation introduces an obligation for Member States to ensure that a


person is not a danger to national security or public order of a Member State before a transfer is carried out. This obligation applies to any person subject to the procedures set out in the Regulation, even though the person was not subject to screening or has for any other reason not been through a security check. It is for the first Member State in which the application was registered to assess whether there are reasonable grounds to consider the applicant a danger to national security or public order of a Member State before applying the responsibility criteria. If the assessment shows that the applicant presents a security risk, that Member State shall become the Member State responsible. In the situation that the person concerned presents a security risk after responsibility is already determined, the transfer may take place, provided that the specific provision referring to the exchange of security related information is respected. The requirement of the cooperation of applicants is enhanced with a view to ensure that the authorities have all information needed to determine the Member State responsible and whether the applicant qualifies for international protection, as well as to prevent the circumvention of the rules, notably absconding. The Regulation sets out proportionate obligations for applicants concerning the timely provision of all the elements and information relevant for determining the Member State responsible and also concerning cooperation with the competent authorities of the Member States. It is also explicitly stated that applicants have an obligation to be present and available for the authorities of the relevant Member State and respect the transfer decision. Non-fulfilment of the legal obligations set out in the Regulation will have proportionate procedural consequences for the applicant, such as preclusion of accepting information that was unjustifiably submitted too late.

The Regulation enlarges the scope of the information which must be provided to applicants. The personal interview serves to facilitate the process of determining the Member State responsible by helping in gathering all the necessary information. However, it should not result in delaying the procedure when the applicant has absconded or when sufficient information has already been provided.

The rule that the criteria shall be determined on the basis of the situation obtaining when the application was first registered with a Member State, applies to all criteria, including those regarding family members and minors. A clear cut-off deadline for providing relevant information will enable a quick assessment and decision. The Regulation maintains the extended definition of family members proposed in 2016 in two ways: by (1) including the sibling or siblings of an applicant and by (2) including family relations which were formed after leaving the country of origin but before arrival on the territory of the Member State. Siblings are a targeted but important category where the possibility to prove and check the family relation is relatively easy and thus the potential for abuse is low. The extension to cover families formed during transit reflects recent migratory phenomena such as longer stays outside the country of origin before reaching the EU, including in refugee camps. These targeted extensions of the family definition aim to provide for a meaningful link between the person concerned and the Member State responsible, taking into account also the wider implications for the families concerned; they are therefore also expected to reduce the risk of unauthorised movements or absconding for persons covered by the extended rules.

The rules on evidence necessary for establishing responsibility are made more flexible, in particular in order to facilitate efficient family reunification. The rules clarify that formal proof, such as original documentary evidence and DNA testing, should not be necessary in cases where the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish responsibility.


A number of modifications are proposed to streamline and strengthen the responsibility criteria set out in Articles 19, 21, and 22. In order to enhance the stability of the system, in Article 19 the criteria of responsibility regarding visas and residence documents have been clarified and their application extended to 3 years respectively. Equally, in Article 21 on irregular entry, the clause envisaging a cessation of responsibility after 12 months from irregular entry has been extended to 3 years, and the clause in relation to illegal stay has been deleted since this provision proved to be complicated to apply in practice because of the difficulty to provide the necessary proof. In relation to the criterion of visa waived entry, the exception concerning subsequent entries to a Member States for which the need for an entry visa is waived is also deleted, in line with the approach that the Member State of first entry should, as a rule, be responsible and in view of preventing unauthorised movements after entry. In addition, a new criterion related to the possession a diploma or qualification issued by an educational institution established by a Member State is added in order to ensure that an applicant can have his or her application examined by a Member State in which he or she has meaningful links. Such diploma or qualification should represent, as a minimum, secondary education equivalent to level 2 of the International Standard Classification of Education, operated by an education establishment or higher education institution defined in Directive (EU) 2016/801 of the European Parliament and of the Council35, in accordance with national law or administrative practice of the Member States.

The Regulation establishes shorter time limits for the different steps of the procedure, in order to speed up the determination procedure to grant swifter access of an applicant to the asylum procedure. This concerns time limits for submitting and replying to a take charge request, with the exception of unaccompanied minors, making a take back notification, and taking a transfer decision.

Expiry of deadlines will only in certain cases result in a shift of responsibility between Member States. Such shifts appear to have encouraged circumventing the rules and obstructing the procedure. The rules leading to shift of responsibility where the time limit for sending a take back notification has expired have therefore been deleted, as well as the rules leading to the cessation or shift of responsibility due to the applicant’s behaviour. If the applicant absconds from a Member State in order to evade a transfer to the Member State responsible, the transferring Member State will be able to use the remaining time of the 6-month time limit to carry out the transfer from the moment the applicant becomes available to the authorities again.

As proposed in 2016, take back requests have been transformed into simple take back notifications, given that the responsible Member State will be evident from the Eurodac hit. The notified Member State will now be given the opportunity to rapidly object to the notification on the grounds that the limited rules for shift and cessation of responsibility apply, i.e. where another Member State did not transfer the person to the Member State responsible in time, applied the discretionary clause, or the person concerned left the territory of the Member States in compliance with a return decision. This will be a significant tool to address unauthorised movements, considering the current prevalence of take back rather than take charge requests.

Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing, OJ L 132, 21.5.2016, p. 21.


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An obligation for the Member State responsible has been added to take back a beneficiary of international protection or a resettled person, who made an application or is irregularly present in another Member State. This obligation will give Member States the necessary legal tool to enforce transfers back, which is important to limit unauthorised movements.

The rules on remedies have been adapted in order to considerably speed up and harmonise the appeal process. In addition to clarifying the applicant’s right to request suspensive effect of a transfer decision during an appeal or review, the proposal establishes a specific, short time limit for the courts or tribunals to take such decisions. The conciliation procedure as a dispute resolution mechanism, which has not been formally used since it was foreseen in the 1990 Dublin Convention (albeit in a slightly different form), is amended in order to make it more operational and facilitate its use. The objectives of the existing early warning and preparedness mechanism will be taken over by the new European Union Agency for Asylum, as set out notably in Chapter 5 on monitoring and assessment and Chapter 6 on operational and technical assistance in the proposal on a European Union Agency for Asylum. The deletion of that mechanism proposed in 2016 has therefore been maintained in this Regulation.

A network of responsible units is set up and facilitated by the European Union Agency for Asylum to enhance practical cooperation and information sharing on all matters related to the application of this Regulation, including the development of practical tools and guidance.

In relation to unaccompanied minors, the proposal clarifies that the Member State where the minor first lodged his or her application for international protection will be responsible, unless it is demonstrated that this is not in the best interests of the minor. This rule will allow a quick determination of the Member State responsible and thus allow swift access to the procedure for this vulnerable group of applicants, also in view of the shortened time limits proposed.

The provision on guarantees for unaccompanied minors is adapted to make the best interests assessment more operational. Thus, 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 Procedure Regulation and the Reception Conditions Directive without delay. It is also stipulated that any decision to transfer an unaccompanied minor must be preceded by an assessment of his/her best interests, to be done swiftly by qualified staff.