In the first of a series of research articles focused on immigration phenomenons, practices and policies, we take a look at current EU asylum and immigration outsourcing policies and ask ourselves, is this legal, practical or ethical!??
As a side effect of conflicts, rising economic inequalities, global warming, and development policies based on free trade and privatisation, immigration is and will become, one of the biggest challenges of the coming years. It’s a complex undertaking to obtain a clear understanding of the European Union’s agenda in this field. However, there is no longer any doubt that the implementation of a responsible, ethical and forward-looking European immigration and asylum policy has, so far, not been achieved. In fact, their current asylum and immigration policy has harmfully affected many human lives around the globe.
Besides analysing the disastrous consequences that the continuation of current European migration policies would have, we will also take a closer look at the external mechanisms implemented, reinforced and promoted by the EU to deal internationally with immigration - gathered under the term “ outsourcing “.
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We are easily tempted to point out the harsh migration policies implemented by some European governments, such as in Italy, Austria or Hungary, which have contributed to the failure of the E.U. to build a fair, functioning and consistent asylum policy throughout Europe. This patchwork of irreconcilable national interests among European country members, added to the failure of the Dublin regulation, compelled the EU to face its own contradictions regarding the effective functioning of its Schengen area.
In reaction to the peak of migrants and refugees arriving in 2015, reaching over one million people by the end of that year, Europe began to gradually close and reinforce its national borders across the Balkans and Eastern European countries - followed by increasingly strict and sometimes violent anti-refugee policies. More recently, Italy and Salvini’s government re-opened the wound by shutting ports to migrant rescue ships. These forceful measures occurred, in part, because Italy and Greece are both gateways to the rest of Europe. This means they are impacted the most by the lack of any unified mechanisms that could facilitate a fair allocation of asylum seekers across European countries. More recently, Viktor Orbàn, the Hungarian Prime Minister, joined his Italian counterpart in declaring his opposition to what he called ‘’pro-migrant policies‘’. His hard-line policy caused a fresh outcry among the European Parliament’s body members, who accused Hungary of serious rule-of-law violations, opening the door to trigger Article 7 sanctions against the country.
These reactions are regrettable but not so surprising, considering the general paradigm fueling Europe’s immigration policy, which describes immigration as an external and global threat for its internal security and stability. Therefore, migration flow becomes an entity to prevent and control. This general stance is reflected in the conclusions of the latest European Council, on June 29th. The final agreement emphasizes the need to tackle immigration through the enforcement of transboundary policies with a focus on the Central and Eastern Mediterranean Route. These regions are of utmost importance to Europe’s general migration management strategy, as they are intersected by the main migratory routes into Europe.
Overall, the European Union plays an ambiguous game with regards to immigration. Whilst the community advocates for the reinforcement of a Common European Asylum System (CEAS) based on a multilateral approach to guarantee high standards of protection for refugees within the EU, the strategies implemented at its external borders, combined with third country agreements with non-EU countries, aims to keep asylum seekers at bay rather than ensure them fair and safe access to the European Asylum System.
The migratory global threat - a tenacious paradigm
From the very beginning of the formation of the European community, we see that immigration was assumed as an inter-sectional issue of international security. The fight against illegal immigration was set as the main priority, requiring global instruments to deal with it. However - why did such a security-oriented vision of immigration spread within European institutions? A short historic overview should help us to point out some significant facts:
The signing of the Schengen Agreement in 1985 and its enforcement in 1995, removed border controls from EU country members and shifted the attention towards the surveillance and management of the external borders of Europe. It became harder for the European Union to police border crossings, which partially explains why the progressive europeanisation of asylum and immigration issues has been accompanied by a reinforcement of police, judicial and customs cooperation at its external borders. This allows the EU to strictly define the conditions of entry and residency for nationals of third countries while holding back immigration.
Through the progressive implementation of Schengen, the Home-Affairs ministers involved in its realisation disseminated a specific understanding of immigration, interpreted as a risk, and pushed for the establishment of “police solutions”. According to the CNRS’s researcher and specialist of European immigration policy, Virginie Guiraudon, these ministers would have made out of Schengen “not a laboratory to open borders but to strengthen them”. Beyond the texts and legislative programs of Europe, we also notice this trend in the arbitrary juridical distinction made between "economic migrants" and "refugee". One being less desirable than the other.
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Most recently, the cooperation with so-called “countries of origins and transits” has emerged as the appropriate response to prevent irregular immigration as well as to keep potential asylum seekers far away. As a consequence, discussions and partnerships with third countries became gradually the central features of the European Union's immigration and asylum management policy. Two strategic strands were implemented: 1) ''internal '' - intending to set up a balanced regime for the reception of migrants and refugees within Europe, and 2) ''external” - focusing on relations with third countries and striving to establish a coherent management of ''migratory flows'' , which mainly focuses on the prevention of illegal immigration directly at the source.
As early as 1999, it was decided during the Tampere Council that the fight against illegal immigration should be one of the core elements of all cooperation agreements concluded by the European Union with its partners. At the Seville Summit in 2002, EU Member States requested that in any future cooperation agreements, association agreements or equivalent agreements that European Union will conclude with third countries, a clause prescribing the joint management of migratory flows and the compulsory readmission of illegal immigrants would be inserted. The Hague Program, adopted in 2005, goes even further, proposing to assess the benefits and feasibility of a common treatment of asylum applications outside the EU.
Since then, the various programs, directives, or treaties bear the trademark of this particular approach, and the ‘’outsourcing’’ of European immigration and asylum policy to third countries has progressively been organized using very specific instruments. In this race against illegal migration, the contribution - some would say, “obedience” - of third countries, requires that they accept a large percentage of the "migration pressure". Eventually, outsourcing immigration and asylum policies by transferring the responsibility of asylum seekers and migrants reception to outside European borders evolved through the years to become the European Union’s most common method for dealing with migration.
Outsourcing - a questionable practice
Nowadays, outsourcing can be mostly observed through the resettlement of the controls outside EU external borders. The European Union push back its administrative borders by pushing controls beyond its geographical borders.
One of the most obvious symbols of offshoring is the European Agency for Cooperation at the External Borders, commonly referred to as '' Frontex '', whose operations are regularly coordinated in the territorial waters of third countries, notably through the signature of bilateral agreements with certain countries of departure. In 2004, in a similar vein, an Immigration Liaison Officer (ILO) body was also created. These officials from EU Member States are seconded by their governments to third States in order to establish and maintain contacts with the authorities for the purpose of contributing to the prevention of illegal immigration.
However, “readmission agreements” remain the EU’s favorite instruments - those which facilitate the readmission to a third country of their own nationals as well as the nationals of other countries who have passed through the territory of that State, and who have been found to be in an irregular situation in the territory of a Member State. In short, this type of agreement, involving a clear transfer or responsibility from the EU to non-EU countries, expressly encourages that country to carry out more effective checks at their borders in order to prevent immigration. Coupled with a restrictive visa policy for many countries with a potential "risk" of irregular immigration, according to the EU, readmission agreements are often a gateway to Europe for nationals of these states. The negotiations and implementation of these agreements are in fact often associated with the liberalization of Schengen visas as a bargaining chip. Thus, the economic aid, the number of visas granted and the legal immigration of their citizens depend on the willingness of these states to control their borders.
Outsourcing methods become a bit more problematic when it comes to asylum. Since 2000, the European Union has been trying to oversee the external management of asylum as close as possible to the asylum seeker’s regions of origin.
In 2003, the Commission published a Communication “towards more accessible, equitable and managed asylum systems” setting as a first objective “the orderly and managed arrival of persons in need of international protection in the EU from the region of origin”. Despite appearances, the core idea behind this seems to be the same : retain potential asylum seekers upstream. Later, in 2004, a proposal by German minister, Otto Schilly, put forward the idea of asylum camps in transit countries, where migrants would be taken after being intercepted by vessels before they enter territorial waters. The proposal was heavily criticised by the UNHCR, civil society and Member States as non-viable and likely to be rejected by third countries. The main question remained - how to make the extra territorialization of asylum procedures politically acceptable?
"On the one hand, the EU emphasize an alleged aim of protecting asylum seekers and refugees worldwide, on the other, every means are being employed to “contain the flow”, regardless of legislative and fundamental legal principles."
In November 2004, the Hague Program fixed the priorities for an area of freedom, justice and security for the next five years. The European Commission proposed to assess the feasibility of a treatment of asylum applications outside the territory of the EU through a “Regional Protection Program” (RPP). The stated purpose being to “enhance the protection capacity of the regions of origin and of transit, in order to diminish the need for refugees to search for protection elsewhere.” European Commission displays, a priori, the laudable goal of “enhancing the protection capacity of the regions involved and of the refugee population there by providing durable solutions”, such as repatriation, local integration and resettlement in a third country. However, we must question the efficacy of the RPP, especially considering the low resources allocated to the achievement of such ambitious objectives, coupled with the often weaker protection capacities of these countries.
It would also be a bit naive to believe that the European Commission suddenly changed its paradigm and would have unexpectedly opted for sustainable and long term solutions. On the one hand, the EU emphasize an alleged aim of protecting asylum seekers and refugees worldwide, on the other, every means are being employed to “contain the flow”, regardless of legislative and fundamental legal principles, such as the “principle of non-refoulement” that protects a refugee from being returned to a country where they have reason to fear any kind of persecution.
“ Out of sight, out of mind ”
We only need to look at the refugee agreement made with Turkey during the peak of refugee influx on March 2016 to confirm this statement. Amnesty described this deal as a ‘’shameful stain on the collective conscience of Europe‘’, and extremely revealing of European practices as far as migration is concerned. The equation was quite simple - every person arriving irregularly on Greek islands, including asylum-seekers, should be returned to Turkey. In exchange, Turkey would receive €6 billion to assist the vast refugee community hosted in the country and Turkish nationals would be granted visa-free travel to Europe. In addition, once the number of irregular arrivals dropped, a “voluntary” humanitarian scheme to transfer Syrians from Turkey to other European countries would be activated. The deal was based on the highly debatable premise that Turkey is a safe place for refugees. However, it generally appears that the respect of human rights in the countries with whom EU cooperates is not a necessary precondition to reach a deal.
Again, in 2016, the EU signed another agreement, this time with Afghanistan, allowing its member states to return an unlimited number of the country’s asylum seekers. This agreement completely denies the ongoing extreme instability of Afghanistan. In 2017, the so-called “Memorandum of understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling and on reinforcing the security of borders between the State of Libya and the Italian Republic” was concluded, where Italy agreed to work together with Libya’s military and border control forces “to stem the influx of illegal migrants”, thereby preventing migrants – as well as refugees – from reaching Europe. The Italian strategy was part of a broader European approach to “stabilise Libya’’ and provide assistance to the country’s regional