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EU: Tracking the Pact: Compromise texts, member state comments, "balance between solidarity and responsibility"

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Country/Region

22 May 2023

Council documents detailing the state of play with the Asylum Procedure Regulation (including comments from the member states), the Asylum and Migration Management Regulation, and a Presidency discussion paper on the "balance between solidarity and responsibility".

Image: European Council, CC BY-NC-ND 2.0

Asylum Procedure Regulation (APR)

On 17 May a revised compromise text (pdf) was circulated:

"In view of the JHA Counsellors meeting on 23 May 2023, delegations will find in Annex a new compromise text of the Asylum Procedure Regulation, including its recitals. New changes since the last version of the text as set out in 8464/23 appear in bold underlined and grey shaded and newly deleted text is in bold underlined and strikethrough.

For the recitals, the changes since the last version of the recitals as set out in 15504/22 also appear in bold underlined and grey shaded and newly deleted text is in bold underlined and strikethrough."

This followed a previous version circulated on 15 May dealing with border procedures (pdf); on the same day, a document containing member states' comments (pdf) on a previous version of the text was also distributed within the Council.

Detaining children and families at the border

From the comments, it appears that a number of member states are enthusiastic about the Swedish Presidency's previous proposal to detain children and families subjected to the asylum "border procedure".

The logic, in some cases, appears to be that detaining children is either good for the children themselves, or good for preventing "abuse of the system."

The Dutch delegation states:

"...we welcome that families with children are not automatically exempted from the border procedure."

The Slovakian delegation notes that it:

"...supports the deletion of the reference to minors under the age of 12 and their family members. This is primarily due to our concern about possible misuse of children in the asylum process. Although we understand the opposition of some MS to the detention of families with young children, our understanding is that detention does not have to be mandatory, and alternatives may be implemented if necessary. This Article regulates obligatory border procedures, but not mandatory detentions."

The Hungarian delegation, meanwhile, states:

"We still believe that automatic exemptions for minors can lead to abuse of the system and exploitation of children. Consequently, we support the amendment to Article 41e, deleting the text relating to minors under 12 and their family members. However, we believe that the automatic exclusion of unaccompanied minors could still lead to serious abuses and therefore this text still needs to be revised."

This need to detain more children - specifically, unaccompanied minors - is also brought up by other delegations, such as the Dutch:

"...the exclusion of unaccompanied minors from the border procedure altogether... will significantly increase the risk that UAMs are sent ahead by their parents. Obviously, this is very much contrary to the best interest of the child. The current phrasing may encourage this practice of bringing children into hazardous situations of illegal border crossings, and sending minors ahead of the family."

Two states are explicitly opposed to the plans to increase detention of children and families, with the German delegation stating:

"DE supports the proposal of the COM to generally exempt unaccompanied minors from the asylum border procedure. In addition, DE rejects the deletion in the current proposal and advocates that the general exemption for families with children under 12 years foreseen by the COM be extended to families with children under 18 years (definition of family for the asylum border procedure: Families with a child under 18 should not be separated, so that adult siblings would also be exempt from the border procedure). People with identifiable disabilities are to be excluded from the border procedure."

While the Irish delegation states:

"We do not support the deletion of the text in the first para, which would mean that children under 12 and their family members would no longer be automatically excluded from the mandatory border procedure and would join with some other Member States in supporting an exemption for all children under 18 years of age and their family members."

Asylum and Migration Management Regulation (AMMR)

On 15 May a new compromise text (pdf) was circulated in the Council:

"Following the policy debate in COREPER on 3 May on the essential building blocks of AMMR and APR, the Presidency is presenting in the Annex to this document a revised compromise text on the Asylum and Migration Management Regulation.

Modifications as compared to the Commission proposal are indicated as follows:

– new text is in bold;
– deleted text is in […];
– new Presidency text since the last version ST 9006/23 is in bold underlined;
– new deleted Presidency text since the last version ST 9006/23 is in strikethrough."

Discussion paper

A Presidency discussion paper (pdf) argues that "there is a large support for the following compromises it submitted to COREPER on 3 May," covering:

• Asylum Procedure Regulation
  • Border procedures: adequacy capacity calculations; concerns regarding national security and public order; prioritising cases "with a high probability of prompt return"; no automatic exemption from the border children for families with children under 12.
• Asylum and Migration Management Regulation
  • Take-back notifications; the term "family members" will not cover siblings; beneficiaries of international protections excluded from take-back proceedings but resettled persons are not; member states have full discretion over what type of "solidarity" to provide under the "flexible solidarity mechanism".

However, the paper notes there is "still a need to further refine the balance between solidarity and responsibility," and goes on to detail areas for further discussion.

 Documentation

• Asylum Procedure Regulation
  • Full compromise text: Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (Council doc. 9384/23, LIMITE, 17 May 2023, pdf)
  • Presidency compromise text on border procedures (Council doc. 9242/23, LIMITE, 15 May 2023, pdf)
  • Compilation of replies by member states (Council doc. 9349/23, LIMITE, 15 May 2023, pdf)
• Asylum and Migration Management Regulation: Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management - Presidency compromise text (Council doc. 9238/23, LIMITE, 15 May 2023, pdf)
• Balance between solidarity and responsibility under the Pact on Migration and Asylum - Discussion paper (Council doc. 9192/23, LIMITE, 12 May 2023, pdf)

Further reading