The Lawfare Podcast: Asylum-Seekers and the EU Migration Pact

Host: Natalie Orpet
Guest: Prof. Steve Meili, University of Minnesota Law School
Episode Date: Originally aired April 1, 2024; archived February 8, 2026

Overview

This episode explores the European Union’s (EU) newly approved but not yet enacted Migration Pact and what it means for the rights of migrants and asylum seekers. Host Natalie Orpet talks to international human rights law professor Steve Meili about how the EU pact fits into global trends—specifically increasing restrictionism, border externalization, and political manipulation of migration systems. The discussion places the EU’s developments in international context and examines the evolving landscape of asylum law, the legality and ethics of current migration policies, and the profound challenges ahead for global migration governance.

Key Discussion Points and Insights

1. The International and Legal Framework of Asylum

Timestamps: [04:26] – [12:09]

• The modern asylum and refugee system is rooted in the 1951 Refugee Convention, created after WWII, initially to address Europe’s displacement crisis.
• Most states, including the US, have incorporated the Convention’s definition of “refugee” into domestic law: someone persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.
• Refugees are individuals who have been formally recognized under these criteria, asylum seekers are those applying for this status after leaving their country, and migrants is a broader (and sometimes contentious) term that includes those moving for economic or other reasons.
  • Steve Meili: “One of the issues all along is because [the Convention] was so time specific and area specific, it has had difficulty in many ways adapting to changes in refugee flows.” [07:42]
• The focus on individual persecution has made asylum claims slower and more difficult to adjudicate.

2. The EU Migration Pact: Context and Content

Timestamps: [12:09] – [21:09]

• The pact’s origins go back to 2016, sparked by the overwhelming refugee influx from Syria, Afghanistan, and elsewhere.
• The legislation is seen as a direct response to political pressure, especially from the right, emphasizing border security and migration deterrence.
• New provisions:
  • Rules denying asylum assessments to people who traveled through designated “safe” third countries (e.g., Turkey, Tunisia, Egypt).
  • “Solidarity mechanism” that allows EU states to either accept refugees or pay other states to do so—essentially putting a price on accepting migrants.
  • Increased funding and cooperation with third countries (e.g., 200 million euros to Egypt) to “externalize” EU borders, preventing refugees from even reaching EU territory.
  • Expansion of rapid, often attorney-free screening at borders and new border detention camps where legal standards and benefits may not apply.

Steve Meili: “What countries have figured out is they do have these international obligations to afford people that right [to claim asylum]. But it only manifests itself if folks can get to the border and claim it. So, what we’re seeing... are these efforts by countries to keep folks from actually getting to the border.” [15:50]

3. Key Provisions and Rights Concerns

Timestamps: [17:17] – [26:34]

• “Safe third country” rule: Immediate return to transit countries, with no assessment in the EU—a method the US has mirrored.
• Rights to asylum are undermined by rapid assessments and a lack of legal aid; migrants can be detained and excluded from EU benefits if held in border centers, which the pact deems “not on EU soil.”
• The expedited procedures and lack of legal process are seen as violations of both refugee and broader human rights law.

Steve Meili: “To expect someone without access to legal assistance to be able to kind of make that case in a period of days or even weeks, frankly, is completely unrealistic and in my view, is a violation of their right to seek asylum.” [25:39]

4. Politicization, Crisis Clauses, and Instrumentalization

Timestamps: [30:39] – [37:46]

• The pact permits EU states to “deviate” from legal standards during a self-declared crisis, referencing loosely-defined scenarios, including “instrumentalization” (e.g., other states pushing migrants into the EU for political leverage, like Belarus in 2021).
• These exemptions are highly controversial and feared as loopholes for sweeping rights suspensions.
  • Natalie Orpet: “One other provision... relates to this provision allowing for EU states to deviate from EU legal standards when they've assessed that there is a crisis situation, which seems to be broadly, if at all, defined in the pact.” [32:47]
• Steve draws direct parallels to Texas’s legal arguments for immigration enforcement on “invasion” grounds.

Steve Meili: “You'll see a lot of countries claiming crises because of large numbers of... migrants for any particular reasons, and they'll use that to justify all kinds of draconian measures.” [34:28]

• Challenges to these crisis declarations are theoretically available in courts and treaty bodies but are slow, often after the damage is done.

5. Passage Prospects and the Shift in Political Climate

Timestamps: [38:58] – [43:52]

• The pact must be ratified by all 27 EU member states; opposition exists, e.g., Poland has expressed concerns.
• The politics are complex: border states may support it if it relieves pressure on them, while others may resist mandatory intake or resent pay-in-lieu mechanisms.
• Even if it fails, its near-adoption signals a continental shift toward restrictionism and border control over uniform, rights-centered asylum systems.
  • Disparities in asylum acceptance rates across the EU persist despite past reforms.

Steve Meili: “This plan… is much more about control of borders and numbers and ways to deflect the migration of large numbers of people, which is unprecedented around the world.” [42:21]

6. Wider Global Trends and Comparisons

Timestamps: [43:52] – [51:15]

• The EU’s moves parallel systems elsewhere:
  • US “safe third country” deals in Central America, much like the EU’s pact.
  • UK’s Rwanda policy proposal for offshore asylum processing.
  • Australia’s longstanding offshore resettlement practices.
• These represent a trend of “externalizing” borders to make it harder for asylum seekers to reach states of potential refuge.
• US immigration courts are massively backlogged, with cases taking years to complete.
• Despite Western focus, countries like Lebanon and Jordan bear much higher migration burdens, often outside formal legal frameworks.
  • International burden-sharing deals exist but are largely aspirational.

Steve Meili: “The countries who are bearing the largest burden of cross border migration are not in the EU and certainly not the US. ...But that's not where most of it is happening.” [42:58]

7. The Next Challenge: Climate Migration

Timestamps: [51:15] – [55:35]

• Climate displacement is poised to bring even greater migration flows, and current asylum models based on individual persecution may be insufficient.
• Innovative responses may include temporary protection or group-based relief.
• Uganda’s policy of blanket refugee status for South Sudanese is cited as a rare example of more flexible, mass-movement accommodation.
  • Steve: “We may have to think somewhat differently about what protection from harm means… more to a group based determination system.” [54:38]

8. Rethinking Refugee Law for the Future

Timestamps: [55:35] – [59:24]

• Some advocate using the principle of non-refoulement ("no forced return to danger") to justify temporary but renewable protections, as seen in Colombia’s response to Venezuelan migrants.
• Economic arguments for the benefit of migration (addressing aging populations, labor shortages) have so far been politically unpopular in Western countries.
  • Steve: “I think an enlightened governmental policy would recognize that … there are ways to abide by their international law obligations that can actually help them in a more self-interested and economic way. But the politicization of it makes that difficult.” [58:16]

Notable Quotes & Memorable Moments

• Steve Meili on the limits of current asylum standards:
  “The idea that this could be a one academic year experience is virtually impossible now… it takes years and years and that's just going to get worse as migration continues.” [53:27]

• On global perspective:
  “Migration to the US and the EU gets a lot of attention in the media, but that's not where most of it is happening.” [43:36]

• On the EU Pact's symbolic significance, regardless of passage:
  “The fact that it’s gotten this far, many of these draconian measures, is an illustration of how the landscape has changed.” [41:46]

Timestamps for Important Segments

• [04:26] – International asylum law framework defined (Refugee Convention, definitions)
• [13:49] – Origins and content of the EU Migration Pact
• [17:17] – “Safe third country” rule and financial “solidarity mechanism”
• [22:21] – Statistics: scope of challenge in EU vs the US
• [24:19] – Externalization and “legal fiction” of detention centers “not on EU soil”
• [30:39] – Crisis exemptions and “instrumentalization” provision
• [38:58] – Adoption prospects in the EU and national political climates
• [43:52] – US, UK, and Australia parallels (“externalization”)
• [51:15] – Climate-driven migration, need for new legal thinking
• [55:35] – Prospects for reform: non-refoulement, economic arguments, group status

Tone and Language

The discussion is rigorous yet accessible, featuring candid reflections on the ethical, legal, and political dilemmas of migration policy. Both speakers draw on personal casework experience and display clear frustration at rapid, restrictive developments they view as undermining human rights law.

Summary Takeaways

• The EU Migration Pact exemplifies a wider, global trend toward restrictionism and border externalization in migration policy.
• Fundamental concepts of asylum may need to change—moving beyond Cold War-era, individualized persecution to address contemporary, mass-movement causes, especially climate change.
• Western countries are not the main recipients of refugees globally, despite drawing most public attention and attempting to offload responsibilities to less wealthy neighbors.
• Political will is the main barrier to human-rights-centric policy adaptation, even in the face of mounting evidence of economic and social benefit from migration.

For further detail, listen to full segments at the provided timestamps.