The EU Pact on Migration and Asylum: How Does It Impact Queer Asylum Seekers?

© Anastasia Iampolskaia

The new Pact on Migration and Asylum of 2024 is the latest effort by the European Union to regulate migration to the continent. It claims to promote procedural fairness and speed for all involved parties in migration management. However, it prioritises every actor over the migrants and is highly generalising, selective, and restricting in terms of who can exercise agency, where, and when. This reformed policy normalises procedures that can have extensive consequences on the individuals’ agency, personhood, and dignity. Furthermore, it affects queer migrants and asylum seekers on a whole different level. 

The 2015 “wave of refugees” dominated the media and sparked a heated and hateful public discourse. While humanitarian groups were calling for solidarity and support, the migration policies reflected the xenophobic and Islamophobic rhetorics employed by right-wing populist movements.

The so-called “refugee crisis” of 2015 was a turning point for the EU’s increasingly restrictive migration policies. One example is the 2016 EU-Turkey Agreement, in which Turkey agreed to slow the flow of migrants towards the Greek islands by any measures necessary in exchange for 6 billion euros and visa-free travel for Turkish nationals. As expected, this agreement came at a significant cost to people seeking protection and safety who found themselves trapped in atrocious conditions. The EU aims to expand those deals to Libya, Egypt and Tunisia. One could summarise this migration strategy as: throwing money at the problem while turning a blind eye to the suffering of thousands.

The overall situation has not improved. The death toll on the Mediterranean routes has been increasing since 2017 with 4110 people registered dead or missing by UNHCR in 2023. As of this year, the EU has introduced yet another band-aid solution to the so-called “border crisis”, while most people see it for what it is: a humanitarian crisis.

It took nine years of back and forth between the European Parliament, the Commission and the Council of the EU to adopt ten legislative texts to reform the EU’s migration and asylum policy.

The reformed migration and asylum policy includes: 

• • The Asylum and Migration Management Regulation, which will replace the current Dublin Regulation
  • The Asylum Procedure Regulation and Return Border Procedure Regulation
  • A new Screening Regulation
  • Reform of the Eurodac Regulation, which is an EU database that stores the biometric data (fingerprints and facial images) of asylum applicants or people who have crossed a border illegally.

According to the European Commission, the new Pact on Migration and Asylum “is a set of new rules managing migration and establishing a common asylum system at the EU level that delivers results while remaining grounded in our European values.” I apparently have missed the memo where human dignity and human rights were scrapped from these so-called European values.
The new rules have devastating implications. They normalise the expansion of detention —including of children and families— increase racial profiling during the screening process, and push more crisis procedures that undermine human rights.

According to ILGA Europe, a significant number of asylum seekers arriving in an EU Member state are LGBTIQ+ individuals fleeing persecution due to their sexual orientation, gender identity or expression, and sex characteristics (SOGIESC). LGBTIQ+ asylum seekers face additional risks on their journey and upon arrival because of their queerness.

While numerous issues impact queer migrants and asylum seekers, I want to focus on two aspects of the policy: accelerated screening and deportation mechanisms or processes.

The screening process poses greater risks for LGBTIQ+ people. The Pact states that the process needs to be carried out within seven days and includes various aspects: identity and origin check, health and vulnerability check, registration in the Eurodac database, and national security check. It also states that AI-based decision-making will be introduced, which is highly controversial, as it promotes an automated profiling system.

How does one accurately assess sexual orientation, gender identity, and gender expression or how does one convey these deeply personal details or aspects of themselves to a person searching for any reason to deny their asylum request? For most people, love, sex, and gender identity are deeply personal and carry a lot of shame, especially for those fleeing persecution because of it. Being scrutinised by someone who can deny or give you access to a presumed better life makes that conversation extremely uncomfortable for anyone. Historically, asylum seekers were submitted to highly invasive physical and psychological examinations (including phallometry, vaginal photoplethysmography, and pornographic evidence) to prove their sexual orientation. Such dehumanising and traumatising medical exams have since been banned by the European Court of Justice. Nonetheless, the officer conducting the screening is likely to project damaging stereotypes that further jeopardise the chances of asylum seekers.

The Pact heavily focuses on deportation, or how the Pact puts it “accelerated procedures” based on lists of safe third countries. It allows Member States to deport asylum seekers based on the EU’s perceived safety of their country of origin or their connection to a “safe” country. Some examples of countries on that list include Ghana, Georgia, and Morocco, all of which have anti-LGBTIQ+ laws. Sadly, no country is fully safe for an LGBTIQ+ individual, not even within the EU, but at least asylum seekers should expect protection from government persecution.

Individuals who are denied international protection at the border may face detention, as ratified in the Return Border Procedure. The accelerated process produces sweeping generalisations and disregards the individual situations of asylum seekers. The time limit of seven days for the process makes access to legal representation nearly impossible. This process will lead to more people being held in prison-like detention centres, where in turn, LGBTIQ+ people face harassment and violence. The Pact places queer migrants and asylum seekers in life-threatening situations, having to prove their queerness in unsafe environments, which may result in denial of asylum and deportation.

The new policy will not reduce illegal immigration. People will travel and risk their lives as long as they face threats to their livelihoods. The only way Fortress Europe can reduce immigration is to fight the actual root causes of migration, many of which are the result of our capitalist, patriarchal, and neo-colonial system. The exploitation of people and their resources, combined with arms trading by EU Member States, has left many regions of the world unstable at best.

The EU has shown us that it has the capacity to show solidarity when welcoming Ukrainian refugees. But we all know this compassion depends on the assailant being portrayed as a big baddie in the neighbourhood and the victims being identified as white and Christian.

On average, there were some tight results, with some provisions passing by margins as slim as 30 votes 49% in favour, 43% against, and the rest abstaining or not voting at all. For example in the Asylum Procedure Regulation, the breakdown was 301 votes in favour, 269 against, 51 abstentions, 84 did not vote.

The Pact has been criticised by both left and right-wing parties. Although don’t get it twisted, the nonsensical horseshoe theory is not at play here. The main point of criticism by right-wing politicians, such as Viktor Orbán, is that the Pact is not going far enough to protect the EU from illegal immigration. The critics on the left spectrum say the Pact is a violation of human rights. This was also echoed by over 50 human rights organisations such as Oxfam, Amnesty International and Caritas Europe.

Only one out of our six MEPs voted against the Pact, and it was Tilly Metz (The Greens). Our other LGBTIQ+ MEP Marc Angel (LSAP), publicly stated on Twitter that he voted in favour despite having reservations. Hopefully, queer migrants and asylum seekers understand the doubts he had about the dehumanising procedures they will face before he voted in favour.