On 19 November 2021, NEXTEUK project together with the RE-CON Jean Monnet chair from Northumbria University organised a high-level policy roundtable gathering leading academics and think-tanks to discuss the future of the Area of Freedom, Security and Justice (AFSJ) post-Brexit. This blogpost summarizes and updates the roundtable discussion and is structured around three themes: 1) the emergence of new priorities for the AFSJ as it moves beyond Brexit; 2) the remaining issues and problems faced within this policy field; and 3) the prospects for the AFSJ.
Written by Agathe Piquet, co-manager of the NEXTEUK project, Helena Farrand Carrapico, RE-CON Jean Monnet chair, and Sarah Wolff, Principal Investigator of NEXTEUK.
On 19 November 2021, NEXTEUK project together with the RE-CON Jean Monnet chair from Northumbria University organised a high-level policy roundtable gathering leading academics and think-tanks to discuss the future of the Area of Freedom, Security and Justice (AFSJ) post-Brexit. If the departure of the United Kingdom (UK) from the European Union (EU) has strongly impacted this policy field, this is because the UK has played a critical role in the development of the AFSJ as a member state: it supported the establishment of European actors (e.g. Europol, Eurojust), shaped EU strategies and approaches by sharing its own successful models and expertise (particularly in law enforcement and cybersecurity), and contributed large amounts of data to European databases. This blogpost summarizes and updates the roundtable discussion and is structured around three themes: 1) the emergence of new priorities for the AFSJ as it moves beyond Brexit; 2) the remaining issues and problems faced within this policy field; and 3) the prospects for the AFSJ.
Moving forward: new projects for the AFSJ
Two years after Brexit, the UK’s withdrawal no longer features as a priority concern for the EU and the AFSJ. The feeling in Brussels seems to be that Brexit is now done and that cooperation with the UK is taking place through the Trade and Cooperation Agreement, even though it could be improved upon at some point. The EU and the AFSJ have been continuing their own path with the launch of major initiatives and reforms over the past couple of years.
One of these initiatives is the new Pact on Migration and Asylum. This instrument was proposed by the European Commission in September 2020 to replace the failed reform of the asylum system, following the so-called 2015-2016 migration crisis, as well as to render the migration and asylum system more crisis-resilient through three innovations. Firstly, bearing in mind the opposition of some Central and Eastern European Member States to the principle of mandatory relocation, the new Pact proposes a flexible but mandatory form of solidarity: if a Member State is not available to host relocated asylum seekers, it can contribute to the Pact by focusing its efforts on the return of irregular migrants or on operational support. Secondly, greater focus is being exercised directly at the external borders, namely through the expansion of FRONTEX’s remit, enhanced cooperation between FRONTEX and other EU agencies, and further engagement with third countries. Thirdly, to avoid informal, undocumented secondary movements within the EU, and to help Member States under migratory pressure, the European Commission has suggested setting up a “return sponsorship”. Member States may become “return sponsors” for third-country nationals living in other Member States. They would have 8 months to provide assistance to those member States in returning migrants to their country of origin. If the return were not to be successful, after 8 months, the migrants would move from the Member State where they were residing to the sponsoring Member State (the period could potentially be reduced to 4 months in case of massive afflux).
The return sponsorship proposal is still under discussion but has already led to some deliverables. One of them is the new EU agency for Asylum (EUAA), which replaced the European Asylum Support Office in January 2022. The EUAA will help Member States to harmonize their decision-making in the field of asylum, offer more assistance to Member States based its increased access to expertise, and upgrade the efficiency of asylum systems through training, exchange of information and guidelines. New developments have also been observed in this policy field following the invasion of Ukraine. Namely, for the first time in 21 years Member States have agreed to activate the Temporary Protection Directivewhich offers displaced persons residence permits, access to schools, access to employment, social welfare for one year and up to three.
Other initiatives are also currently being discussed in the field of criminal justice and are indicative of how dynamic the AFSJ has been, even after Brexit. Among them, there is the reform of Europol’s mandate aimed at strengthening its cooperation with private actors and with the European Public Prosecutor’s Office, at enlarging its capacity to enter data and alerts into the Schengen Information System, and at allowing it to process large datasets. This initiative of the European Commission echoes its new 5-year strategy for boosting cooperation across the EU and for making better use of digital tools for investigations, where it announced a number of new initiatives including the modernization and expansion of the EMPACT policy cycles, the upgrade of the Prüm framework, and the ambition to draft a European police cooperation code. Additional initiatives have also been launched regarding the external dimension of the AFSJ.
For example, in July 2021, a Council decision was adopted to open the negotiations for a new agreement between Interpol and the EU, including new provisions on the exchange of operational information.
Although some of these reforms are likely to succeed, the EU is nonetheless facing major difficulties, which have become more visible with the UK’s withdrawal and have not been solved since then.
Still a challenging cooperation
Given the cherry-picking behaviour of the UK and its capacity to prevent further integration within the AFSJ, many had hoped that, after Brexit, the EU would proceed with more ambitious plans or cooperation in this area. Yet, some of the issues that previously contributed to the UK’s withdrawal are continuing to hinder the development of the AFSJ.
The first one relates to the topic of national sovereignty. This is illustrated by the Polish Government and judges’ contestation of the supremacy of European law and institutions. The Polish Supreme Court issued its decision on 7 October 2021, following the European Court of Justice and the European Commission’s condemnation over national reforms that were infringing on the independence of domestic judges, and which were at odds with the rule of law. If these domestic reforms question the supremacy of EU law, they also challenge the functioning of the AFSJ, which rests on the protection of fundamental rights and freedoms. For instance, there are several cases regarding the future of the European Arrest Warrants issued by Poland, which are currently pending in light of the lack of judicial independence in the country.
Secondly, Member States and EU institutions are still struggling to reach a compromise on several topics. As mentioned above, strong divergences exist regarding the interpretation of national sovereignty and the appropriate and legitimate reaction to the rule of law infringement. Furthermore, it has also been difficult to find common ground in the field of migration policy. Indeed, the negotiations on the new Pact for Migration and Asylum have shed light on the discrepancies among member States’ understandings of solidarity. For example, progress has been slow on the return sponsorship. If on the one hand, some Member States perceive this instrument as a form of mandatory relocation through the backdoor, on the other hand, border states are asking for more solidarity, including the shortening of the 8-month period down to 3 months. Member States with EU external borders have already highlighted the risk that some countries will chose to sponsor some nationalities over others, refusing to take responsibility for the third-country nationals who might be harder to return to their origin country.
These disagreements have contributed to a lack of trust among member States. Yet, trust is vital for the AFSJ. It enables cooperation among domestic practitioners and administrations, and trust grants legitimacy and public support to this policy, as citizens do not support open borders and cooperation with countries they distrust.
Shedding light on the existing challenges raises many questions regarding the future of the AFSJ.
What’s next for the AFSJ post-Brexit?
The most plausible scenario for the AFSJ will be a form of multispeed cooperation with variations between sub-policy fields. Some areas, such as police cooperation, where Member States still have a shared understanding of the added value of new instruments, will be less impacted by the lack of trust. This is the case for Europol, which remains a European success story and a very valued agency. Europol’s success is also explained by the fact that EU instruments in this domain have existed for over 20 years and are based on direct cooperation between national authorities, which retain a certain level of independence. Other fields, particularly migration and asylum, are much more prone to being politicised and impacted by the growing EU internal dissensions. The mass influx of refugees into Eastern and Central European states, in particular Poland, however, has the potential to change the status quo as these countries might become much more supportive of EU instruments that can enable them to better manage that influx. Yet, the level of uncertainty remains high and the need for Member States to accept that AFSJ rights and obligations come hand in hand is more paramount than ever.
This blog offered to summarize the main results of the NEXTEUK – RE-CON policy roundtable and to provide some insights on the AFSJ post-Brexit. Interestingly, Brexit’s impact on this policy area has so far been quite limited, which can be partly explained by the EU’s focus on bigger concerns, namely with the rule of law crisis, the unsolved tensions regarding the management of the mass influx of third-country nationals, and the deterioration of trust relations among Member States. Despite this context, the AFSJ post-Brexit has proven to be resilient and dynamic with the discussion and adoption of many reforms and initiatives, especially in the field of criminal justice. Given the crisis-driven nature of this policy field, the future of the AFSJ is strongly dependent upon events, creating strong uncertainty regarding the nature and intensity of cooperation.
Photo credits: Freestocks.org/Pexels