The Interplay Between Solidarity and Agency in the New Pact on Migration and Asylum

This thesis explores the persistent state of permacrisis in the EU migration management, where the Union has repeatedly failed to adapt its policies to the ever-changing patterns of migration flows targeting the continent. It is argued that the ineffectiveness of the Common European Asylum Policy (CEAS) stems from the lack of agency recognition provisions in the operationalisation of the principle of solidarity and fair sharing of responsibilities. The Dublin system is indeed plagued by systemic failures resulting from non-compliant attitudes by both Member States – who criticise the inherent imbalances in the system and the insufficient implementation of solidarity – and asylum seekers, who cannot choose the country where to seek and enjoy asylum once entered the EU. Both the EU legislators and the Court of Justice of the EU have introduced multiple measures to enhance the effectiveness of the CEAS. However, these approaches share a common flaw: they are rooted in a dogmatic view that frames solidarity and agency as mutually exclusive concepts. The thesis challenges the perceived irreconcilability of interstate solidarity and the recognition of asylum seekers' agency. It advances the normative argument that EU asylum law should incorporate agency in the operationalisation of solidarity within the CEAS. It is claimed that agency positively influences the enforcement of the EU asylum policy, fostering the compliance of asylum seekers to the rules and enhancing the overall effectiveness of the EU asylum policy in achieving its objectives. The case for agency recognition is grounded on the assessment of the weaknesses affecting the Dublin system and the inability of the New Pact on Migration and Asylum to properly address them. The reforms introduce new solidarity measures in both standard and emergency migration management: The Dublin system remains largely unchanged but is counterbalanced by the introduction of a permanent solidarity mechanism and a mix of solidarity and derogation measures available to Member States in crisis situations. However, asylum seekers remain excluded from the decision-making governing the new system: any attempt at onward movement is forbidden and harshly sanctioned, and their involvement in all phases of the asylum process – from the authorisation to enter EU territory to the selection of the applicable asylum procedure and access to remedies – is significantly restricted. The thesis maintains that the solutions identified under the New Pact are not the only way to operationalise solidarity, as demonstrated by the Ukrainian temporary protection scheme. Faced with the sudden arrival of millions of refugees escaping the Russian invasion, the EU activated the Temporary Protection Directive and equipped it with a free-choice responsibility-sharing approach: refugees’ intra-EU movements are allowed and encouraged as a medium of inter-state solidarity. By choosing where to obtain protection, beneficiaries of temporary protection implement a redistribution model among Member States without relying on overly complicated – and oftentimes unsuccessful – relocation plans. The Ukrainian temporary protection scheme has been successful in defusing the risk of a “migration crisis” through the active involvement of refugees in its governance. Nonetheless, the Union has opted for the codification of the instrumentalisation approach within its crisis control mechanism. This model empowers Member States to combat "hybrid threats," such as the inflow of asylum seekers facilitated by hostile actors, through derogations that exclude asylum seekers from both the legal and geographic territory of the Union. Despite the clear agency-denial direction taken by the EU in reforming its asylum policy, the thesis argues that the EU possesses the legislative and normative flexibility to operationalise solidarity through agency, making the CEAS more resilient and humane.