Balance between solidarity and responsibility under the Pact on Migration and Asylum - Discussion paper
Council of the
European Union
Brussels, 2 June 2023
(OR. en)
10065/23
Interinstitutional Files:
2016/0224(COD)
2020/0279(COD) LIMITE
MIGR 188
ASILE 64
FRONT 192
CADREFIN 75
NOTE
From: Presidency
To: Permanent Representatives Committee
No. prev. doc.: 9712/23
Subject: Balance between solidarity and responsibility under the Pact on Migration
and Asylum
- Discussion paper
The Swedish Presidency compromise text for the AMMR was discussed at the meetings of the
Asylum Working Party on 18-19 January, 10 February, and 28 February to 1 March, as well as at
the meetings of the JHA Counsellors on 27-28 March, 18 April, 10,15 and 30 May 2023. Regarding
the APR, the Presidency proposed key elements at the SCIFA meeting on 16 February 2023. The
outcomes of that discussion were translated into a legislative text for the APR, which was discussed
on 15 March at JHA Counsellors level. New compromise texts were discussed at the JHA
Counsellors meetings on 5 and 27 April, 23 May and 1 June 2023.
Following the policy debates in COREPER on 3, 17 and 31 May on the essential building blocks of
AMMR and APR, the Presidency is presenting some further revisions of the draft texts of AMMR
and APR, set out in documents 9711/1/23 REV 1 and 9710/1/23 REV 1.
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Following the COREPER debates on 3, 17 and 31 May 2023, the Presidency has taken good note of
the generally expressed need for a sustainable, predictable and practicable system of flexible
responsibility and solidarity. Based on the reactions from delegations, the Presidency is confident
that the refined texts that it is putting forward form a good basis for a balance between solidarity
and responsibility and should pave the way towards reaching a general approach on both the
AMMR and the APR at the 8-9 June JHA Council meeting. The Presidency is also determined to
make quick progress on the Crisis and force majeure Regulation, including the Instrumentalisation
Regulation proposal, which is also part of the overall equation.
On the clear understanding that nothing is agreed until everything is agreed, the Presidency presents
the following elements as the basis for a broad compromise.
For the border procedure in the APR:
x The adequate capacity at national level will be calculated on the basis of the formula
set out in the APR and will be stable for three years.
x The definition of adequate capacity to examine applications in the border procedure ‘at
any given moment’ is combined with an annual cap.
x The extent of the obligation of the Member State to set up the adequate capacity should
take appropriate account of Member States’ concerns regarding national security and
public order.
x A Member State should always be able, within the border procedure, to prioritise cases
with a high probability of prompt return.
x While the border procedure shall be carried out at the border as a general rule, the
Member States will have the possibility to designate facilities dedicated to the border
procedure at other locations within the territory (i.e. not at or in the proximity of the
border) in a similar way as in the negotiation mandate on the Screening Regulation.
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x A single substantiated notification to the Commission to allow a Member State to
temporarily not apply the border procedure beyond the adequate capacity is provided,
along with an increased monitoring role of the Commission. Further details on the
reporting obligations have been provided in the latest APR text.
x Families with children of 12 years of age or younger should not be automatically
exempted from the border procedure. The APR text is aligned with the RCD text
regarding the reception conditions applicable to applicants, including the fact that
detention of minors may only be imposed under the conditions and guarantees for
detention as set out in the RCD.
x In applying the APR, in particular the setting up of adequate capacity, Member States
will be able to benefit from existing financial resources, in particular through the
Asylum, Migration and Integration Fund (AMIF), the Integrated Border Management
Fund including, where applicable, additional support under the Thematic Facilities.
For the AMMR:
x Take-back notifications will replace the current take back requests in cases where
responsibility has already been established, with a possibility for the notified Member
States to object in a clearly defined and limited number of cases. There will be no shift
of responsibility in the event that the notifying Member State does not comply with the
time limit to send the take-back notification.
x There will be no extension of the definition of family members to cover siblings, and
no new criterion on diplomas and other qualifications. This will, however, be subject to
a review by the Commission three years after the entry into application of the AMMR.
x Regarding beneficiaries of international protection, the current acquis, according to
which beneficiaries of international protection are excluded from the take-back
procedure, will be retained. Resettled persons will be included, as in the Commission
proposal.
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x The discussions on how long beneficiaries of international protection must be legally
resident in order to be able to opt for long-term residence will take place in the context
of the negotiations on the Long-Term Residence Directive recast.
x There will be a flexible solidarity mechanism in which the contributing Member State
has full discretion about the type of solidarity contribution – relocation, financial or
other measures where relevant – which are of equal value. No Member State will ever
be obliged to carry out relocations or contribute more than its fair share.
x Member States can pledge alternative solidarity measures even if the Commission
Recommendation does not provide for it, provided that the benefitting Member State
requests such measures (otherwise the pledge will become financial contributions).
x The time limit for the shift of responsibility for all cases of absconding will be set at
three years.
x Responsibility will cease when the applicant leaves the territory of the EU for at least
nine months during the examination of the application.
x Voluntary responsibility offsets can be made only when relocation pledges reach 50%
of the relocation figure set out in the Commission Recommendation.
x Mandatory responsibility offsets should be triggered when the relocation pledges do
not reach 60% of the total relocation needs identified in the Council implementing act or
are below the minimum threshold set out in the Regulation, whichever number is
higher. In any case, mandatory offsets will remain as the ultimate backstop also where,
during the year, due to full or partial reductions, the implementable pledges for
relocation fall below the minimum threshold or below 60% of the total relocation needs.
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x Safeguards will be in place as regards the mandatory responsibility offsets: on the one
hand, they shall not be triggered to the benefit of a Member State with regard to which
AMMR/Dublin transfers are effectively not taking place. On the other hand, mandatory
offsets shall be available to a benefitting Member State in case a contributing Member
State is not implementing its relocation pledges. The latest text also clarifies that the
responsibility offsets are counted as part of the Member States’ fair share.
An important element in the debate on the two texts are the numbers in APR and AMMR. Having
listened to the discussions in COREPER, the Presidency remains convinced that the numbers it
proposed strike a good balance between solidarity and responsibility:
x The XXX number proposed by the Presidency for the adequate capacity for
carrying out the border procedure at Union level is ambitious enough to significantly
enhance the efficient processing of asylum applications.
x The X number proposed by the Presidency for the annual cap, regarding the
maximum number of applications, takes due account of the duration of the border
procedure of a maximum of six months. There is a general support that applications of
applicants considered a danger to national security or public order of the Member States
should always be dealt with in the border procedure, regardless of whether the cap is
reached. However, the Presidency has removed the exemption from the cap for
applications of applicants with a high probability of return.
x The XXX minimum annual number proposed by the Presidency for relocation is
ambitious enough to relieve pressure on benefitting Member States and also takes into
consideration the operational challenges linked to the implementation of relocations.
x The XXX minimum annual amount proposed by the Presidency for financial
contributions is based on an objective and realistic assessment and is considered as
having an equivalent level of ambition to relocation.
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Whilst many delegations have stated their satisfaction with the progress that has been made in the
negotiations over the past weeks, there still is a need to further refine the balance between solidarity
and responsibility on a number of issues. The Presidency therefore submits the following amended
compromises on the main outstanding issues. The Presidency wants to limit the COREPER
discussion to the issues set out below.
For the APR:
x The connection criterion shall be mandatory for Member States to apply in relation to
the safe third country concept. This will ensure greater harmonisation and is in line with
the recent EUCO’s call on achieving a more coordinated approach on the use of the
concepts of safe third countries. A connection between the applicant and the safe third
country should also be considered established in case of a stay or a transit. The new
wording of the APR further clarifies the meaning of the connection requirement.
For the AMMR:
x The Presidency proposes to further reduce the period after which there will be a
cessation of responsibility of the Member State which rejected an application in the
border procedure, from 2 years to 18 months from the decision becoming final. In this
way the use of the border procedure will be further incentivised and the additional
efforts that are demanded from frontline Member States are duly taken into account by
this new ground of cessation of responsibility, which hitherto does not exist.
x The Presidency also suggests reducing the time limit for the responsibility of the
country of irregular entry from 3 to 2.5 years.
x The Presidency suggests extending the current review clause so that the Commission
will present a report three years following the entry into force of the AMMR in which it
will examine the overall functioning of the responsibility part of the AMMR, including
whether the definition of family members should be extended to include siblings.
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x The latest AMMR and APR texts also provide for a clear obligation for the Commission
to draw up a common implementation plan for the entry into application of both
legislative texts. Itwill also identify the financial and operational needs of Member
States and will obviously rely on the cooperation by Member States, which will have to
establish their own national implementation plans.
x The Presidency also suggests making it clear in the text that for a Member State that has
been identified in the Commission decision as being at risk of migratory pressure, the
Commission will take this into account in its assessment, if that risk materialises during
the year.
The Presidency invites COREPER to discuss the above package of amended compromise proposals
with a view to finding an agreement that can be the basis for a general approach on both the
AMMR and the APR.
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