By Catherine Woollard

This week, Ursula von der Leyen was re-elected as President of the European Commission, following a strong showing by the EPP in the European Parliament elections last month. This completes the first and most important stages in the changeover of power taking place in Brussels: the inauguration of the Parliament and the confirmation of the “Big Four”, the positions of presidents of the Commission, Council and Parliament, and the High Representative for Foreign Affairs. For asylum and migration policy, there is not much good news –  but when is there ever? Key decisions largely but not solely in the hands of the EPP will now shape the next five years on asylum and migration.

What has already been determined?

While the media has presented von der Leyen’s return as a victory for the centre against the extremes, on the asylum issue, neither she nor the EPP – nor many of its component parts – are centrist. Already, the last Commission and the last Parliament demonstrated that in the post-Merkel era, the centre does not hold when it comes to refugee politics. The very hard-line content in the Pact (the reform of EU asylum law), is largely the work of the EPP, in and via the Commission, and in the Parliament, where the major change in the institution’s positioning after 2019 resulted from the radicalisation of the EPP and not from the increased presence of the extreme right.

Fifty shades of right

The new Parliament features right-wing groups of varying shades, along a spectrum starting with the EPP and ending in a very dark place. The big winner in the elections was the EPP, remaining the largest group with 188 seats, an increase of 14 (it should be noted that there are more seats overall in this mandate). The clearly extreme right groups, the Patriots and the Sovereigntists, have 109 seats, with the ECR, which by some measures is an extreme right grouping, at 84. That is a dangerous situation, but in the phrase that encapsulated the election results – it could have been worse.

The extreme right are spread across three political groups and it is not always the numbers per se that pose a problem, but rather the presence of certain individuals who know the system, and the positions they hold in the Parliament’s complex ecosystem. In this regard, the election of Fabrice Leggeri, former Executive Director of Frontex, who left amid accusations of financial malpractice and human rights violations, is someone to watch. He joined the Rassemblement National, which has just lost the election in France, meaning that he won’t go off to join the national government. Key committees should also be monitored, and notably the Budget Committee, given that one of the main jobs of this Parliament will be to negotiate the next seven-year budget and that it is chaired by the ECR (albeit by one of their more moderate members). Other extreme right figures will be loud, polluting the political debate with their toxicity, but not necessarily having an impact on policy outcomes.

The persistence of the term populist to describe these parties and politicians is misleading and obfuscating. Some of them use populist methods; some do not. All are strongly nationalist, identarian, socially conservative, and at heart anti-EU. The anti-migration stance is also a common feature, but there are nuances within these groupings. Some are virulently opposed to all migration; others accept some forms of migration, even if only out of perceived economic necessity, and with scant regard for the rights of immigrants. For instance, even a politician like Georgia Meloni appears to see the economic reality that migration is necessary. Moving further right, most of the parties within the sovereigntist block are opposed to all forms of migration, and express more openly the racism and Islamophobia that underlie the views of all extreme right parties.

While views on migration may vary slightly, all these parties are anti-refugee, and strongly hostile to Europe offering international protection through a functioning asylum system. Hungary’s Fidesz typifies this approach. Victor Orbán has found his natural home in a new extreme right group, the Patriots, after finally – rightly – being kicked out of the EPP. Domestically, some migration into Hungary is allowed but the asylum system has been totally dismantled.

For the progressive groups, the election was not good, but nor was it a disaster. The centre left S and D group lost four seats but remains the second largest with 136 MEPs. Within it, there are many strong voices on this issue, but also too many compromisers. The Greens lost significantly but the party line, heard from Greens across the continent, is that they are back to their “normal” level after atypically good results in 2019. The hard left remains small but stable.

For the Liberals, their seats have fallen to 77, a pattern which is reflected at national level, where the centre also does not hold, only one government in the EU is now led by a party in the liberal family. In the increasingly fragmented political systems in Europe, centrist liberals have been able to act as power brokers, throwing their support behind the ever-diminishing centre-right or centre-left parties. They have also served as compromise candidates in the complex coalitions needed to build a majority at national level. In the European Parliament, they will still be by the EPP when it seeks to build a majority without relying on the extreme right.

On some issues, the EPP will seek to build a coalition with the centre-left, liberals and Greens, as has just happened on the re-election of von der Leyen. On other issues, they may at least toy with building a more right-wing coalition and are certainly not averse to working with the ECR and possibly even the Patriots, despite von der Leyen criticising Orbán’s recent antics.

Thus, on asylum and migration, as for other issues, what happens in the next five years, will depend to a large extent on decisions where the EPP is central, even if other political players can have an influence. In the immediacy, there are five important questions.

1. Who will be “our” Commissioner?

The appointment of the big four positions was relatively smooth. Apart from von der Leyen herself, they are not bad news for asylum and migration policy. António Costa has a progressive approach; Roberta Metsola is at the softer and more sensible end of the EPP; Kaja Kallas is concerned above all about the threat of Russia, and management of displacement from Ukraine is a major part of the EU’s response.

The next step is the appointment of the college of commissioners, including the selection of the JHA Commissioner, which has to be handled extremely carefully. The portfolio is not one of the most sought after but it needs to go to a serious, heavyweight candidate who is not going to take the job just to score political points. Regardless of political affiliation, a background in law and a strong commitment to the EU seem important, given the conflicts that may arise between the Commission and the Member States over implementation of the Pact. Given the conflicts that will certainly arise between the Member States, a Commissioner from a “neutral” country, not at the heart of these battles, could act as an honest broker. Toughness and willingness to stand up against the extreme right will also be required, not least in the chairing of the JHA Council.

This relates to the other areas for decisions.

2. Implementing or legislating?

After eight years, the EU asylum reform has been concluded. The Commission has been working flat out on plans for implementation. The question is will the next Commission focus on the implementation or bow to the pressure from extremist forces to introduce more legislation? While ECRE did not support the Pact, the conclusion of the reforms means that at least the question of compliance, long neglected, is central and longstanding implementation gaps can be addressed. In this context, opening up the legal framework again would be a disaster – in the current political environment, every reform reduces protection standards, but it renders the system ever more complex and detracts from the real business of simply making asylum systems function. For as long as refugees arrive in Europe – which will be forever – there will be pressure from states to change laws so that they do not have to provide international protection. This just has to be resisted – it has already gone too far.

3. Will rule of law prevail – consistently?

Another, again related, question is whether the EPP is committed to the rule of law without exception. While the Group’s Chair, Manfred Weber, and its manifesto for the elections underlined the importance of rule of law, there are reasons for concern. States tend to make exceptions for asylum policy, in the sense that it is considers acceptable to ignore EU law in this area, that the judgments of both European courts are often disregarded, and a flagrant lack of compliance is tolerated in a way that would be unacceptable in other areas. The Commission has been too deferential to the Member States in general and certainly in asylum matters. There is near impunity for states’ unlawful actions, while at the same time, NGOs, lawyers, emergency responders, journalists, and others, find their work restricted and even criminalised. The extreme right seeks and benefits from the absence of rule of law – but the centre right could do better at defending it.

4. How are crises prioritised?

The global political situation is unstable and beset with crises (although perhaps it was always the case for incoming Commissioners – since 2008 the crisis narrative is ubiquitous, and the 1990s were hardly stable in Europe). Chief among the challenges facing the incoming institutions will be the ongoing war with Russia, in which the EU is a conflict party; the imminent second term of the Trump criminal syndicate; the slow-burning crisis of climate change continue; the AI revolution which looks more of a threat than an opportunity; and so on.

Despite these manifest challenges, the extreme right will constantly try to stimulate new European migration crises for its own purposes, and those of its paymasters, including the one in the east. The leadership of the EU has to avoid falling into this trap and prioritise the real crises, which are also the concerns of the vast majority of European citizens. There is too much pandering to the vocal minority which obsesses over migration. The self-defeating strategy of agreeing that there is a “migration crisis” and trying to manage it by preventing all people from arriving in Europe just doesn’t work. The Ukraine displacement response provides a different model, one of crisis avoidance, with plenty of lessons that should be applied more generally.

5. Will they leave foreign policy alone?

It can be expected that the EPP/VDL-led Commission will continue the strategy of “externalisation”, meaning seeking to outsource responsibility for refugee protection to countries outside Europe. Multiple tools are used to do this, from the reform of asylum law to denial of access at the borders. One particularly counter-productive element is the use of EU external policies to support, pressure, bribe or threaten countries to prevent people from reaching Europe. The latest efforts include a new generation of migration deals and the attempt to apply a distorted version of the “route-based approach”.

Building up international protection systems in other countries is crucial, as is providing adequate funding to the world’s major refugee hosting countries, only two of which are in Europe. However, that is not the point of these “externalising” measures: with Europe’s consent and funding, the countries on the other side of the deals often engage in violations and push people further back, rather than developing protection systems. Similarly, the original concept of the route-based approach, meaning that humanitarian assistance should provided all along a route, because the static model of delivery doesn’t respond to the needs of displaced people, is long since lost. The new Eurocentric version is based on the idea that so long as support of some kind (ill-defined) can be found somewhere along a “route” then Europe’s denial of protection is justified.  Allocating resources based on the route rather than need is a further distortion of the humanitarian system.

All of these gimmicky efforts undermine the real potential for EU external policies to tackle the causes of displacement and also to building international protection where needed – the latter of which will never work unless Europe itself has a functioning international protection system. It also undermines the as yet unrealised potential for the EU to have a serious foreign policy, at a time when that would be quite helpful (see “global crises” above).

Thus, as always, there are events, and crises, and developments way beyond the control of Europe’s political leaders. But there are also decisions that can be taken, responsibilities assumed, and harm to be avoided – in order to have a positive influence in the fraught area of asylum and migration policy.