Circumventing Non-Refoulement or Fighting “Illegal Migration”?
This piece is by Nula Frei, PhD, Senior Researcher, Institute of European Law, University of Fribourg & Constantin Hruschka, Max Planck Institute for Social Law and Social Policy, Munich. This blog post was originally posted in the EU Immigration and Asylum Law and Policy blog on 23 March 2018. The Odysseus Network has granted us permission to reprint the post here. We have only published the first half of the blog post here because of spatial restrictions. The entire blog post can be found here.
As a reaction to the “unprecedented migratory flows”, the EU Commission issued a Communication on establishing a new Partnership Framework with third countries under the European Agenda on Migration on 7 June 2016. The EU Partnership Framework essentially unites all actions of the EU Member States (individually and collectively) to combat smuggling and trafficking, to address “the fate of migrants and refugees” as well as to manage migration “in a sustainable way” and to fight against deaths at sea.
As part of the actions under the new Partnership Framework, measures to prevent irregular migration and irregular entries play a primary role (alongside “fast and operational returns” and “specific and measurable increases in the number and rate of return and readmission”). These measures always take place in a legal grey zone, threatening to conflict with the obligations arising from international and European law and especially the prohibition of refoulement. While the European Court of Human Rights (ECtHR) has already provided a legal compass for measures at the borders and under the control of European states (see following paragraph), such guidance lacks for cooperation with third countries. The following article aims to provide such legal orientation, using the example of the central Mediterranean route.
On 3 October 2017, the ECtHR, in its ruling N.D. and N.T. v. Spain once more emphasized that border control and expulsion measures involving a return to another country are prohibited under the European Convention on Human Rights (ECHR). The Court found that Spain – by returning N.D. and N.T. from Melilla to Morocco (regardless of the question where exactly the measure took place) had violated the prohibition of mass expulsion (Art. 4 of Protocol No. 4 to the ECHR) and the right to an effective remedy (Article 13 ECHR). The ECtHR thereby confirmed its practice that it had developed in the judgments Hirsi Jamaa and Others v. Italy in February 2012 (repatriation to Libya by the Italian Coast Guard ) and Sharifi and others v. Italy and Greece in October 2014 (repatriation from Italy to Greece), where it characterized the obligation of Member States to register persons arriving irregularly and to inform them of their situation and their rights as an important procedural aspect of the prohibition of refoulement. The case has generated a lot of reactions (also on this blog) and has been referred to the Grand Chamber on 29 January 2018. The oral hearing of the case is scheduled for 4 July 2018.
At the same time, the actions under the new Partnership framework continue and the “fight against smugglers, terrorism and irregular migration” remains an important aim of European (migration) policy. Mechanisms supporting this aim comprise inter alia the 2015 Valletta Declaration, the establishing of a Central Mediterranean Contact Group as well as partnership programs under the European Migration Agenda. On 28 August 2017, the Heads of States of France, Germany, Italy, Spain, Chad, Niger and Libya’s “transitional government” as well as the High Representative of the European Union for Foreign Affairs and Security Policy met for a “refugee summit” in Paris and agreed on further steps to be taken. The fourth progress reports on the European Agenda for Migration released on 6 September 2017 describes these measures as a success measured against the significant drop of deaths and arrivals in the Mediterranean). Taking up these developments, the consolidated Progress Report on the European Agenda on Migration of 15 November 2017 prepared in preparation of the December 2017 Council meeting highlighted that “each and every workstream [under the Agenda on Migration] contributes to the overall effectiveness of the EU response”. Consequently, the EU Commission proposed a roadmap to a deal by June 2018 on the comprehensive migration package on 7 December 2017. The subsequent Council conclusions contain a Leaders’ agenda note on migration that mainly shows a high degree of agreement on the external dimension including border controls and partnerships with third countries in order to stem illegal migration and enhance returns, whereas the internal dimension as well as agreements on resettlement and other legal pathways are much less solid.
The situation on the Central Mediterranean route has therefore continued to attract a lot of attention including reports on the situation that showed (as Achilles Skordas highlighted on this blog and as was also much debated at the Odysseus Annual Conference including a workshop on externalization) an appalling situation for refugees and migrants including slave auctions revealed by reports of Amnesty International, among others. In February 2018, after two years of reporting, the EU Fundamental Rights Agency named “strict border management” as one of the five migration issues that need urgent action. The LIBE Committee of the European Parliament conducted a Joint debate with the Committee Foreign Affairs and with the Delegation for relations with Maghreb countries (DMAG) including a debriefing by the UNHCR on their work in Libya on 5 March 2018 with a strong focus on the situation of refugees and migrants.
This situation has led to first emergency resettlement efforts from Libya (via Niger) by UNHCR as well as to returns of migrants administered by UNHCR and IOM mainly also from Niger. France has deployed a small scale external asylum “unit” of the Office de protection des réfugiés et apatrides to Niger and has admitted some refugees to its territory as a result of asylum interviews conducted in Niamey. However, numbers remain very low.
Shifting migration control further upstream – once more
Involving third countries into the EU’s migration control policy has started as early as 2004 with the Hague Program. By this, the EU and its Member States aim at shifting the border controls far beyond the gates of Europe. The logic behind this strategy is: the closer the migration controls can be placed to the “source” of the migration movements, the less likely it is that migrants actually reach European territory and legal consequences kick in. However, this motivation of States to deter migrants from arriving at their territory, in order to avoid legal consequences often remains unexpressed. European policymakers and European Commission more often prefer to point out the humanitarian rationale behind this strategy. According to Angela Merkel at the Paris summit, “there is a clear correlation between the number of persons who hit the road to Europe and the number of deaths on the road”. Similarly, the Council Conclusions of October 2017 highlight that “overall, migratory flows are being significantly reduced and the number of deaths at sea has decreased.” It is worth noting that, from a legal point of view, this line of argumentation rests on shaky ground, since it is at least doubtful that the positive duty of States to protect the right to life of migrants would entail a duty to completely suppress migration. Be that as it may, we can at least conclude that the strategic goals that European policy-makers aim to achieve by extra-territorializing migration control are mixed. That the aim of control and externalization is the priority of these migratory policies has been made clear in the statement by Donald Tusk, President of the European Council, following the December 2017 Council Meeting: “Yesterday’s discussion on migration confirmed the hierarchy of our aims, where protecting our territory, protecting our external borders as well as stemming illegal migration come first.”
In this context, the measures to hinder migration are a priority and EU support in different forms is placed at different stations along the Central Mediterranean Route: A first point is found in the transit countries Niger and Chad, where asylum applications should be assessed in big camps run by UNHCR. This measure is advertised as a mean to prevent migrants starting the dangerous journey through the Saharan desert. As mentioned above, such an operation is already up and running with the special support of the French government on a small scale.
The next step on the route is the travel through Libya. Starting with the Italian-Libyan Memorandum of Understanding (English Version here) of February 2017, the EU and its Member States, especially Italy, have supported the strengthening of the southern border of Libya as well as “integrated border management” in Libya as further points of control. Furthermore, persons who make it to Libya despite the foregoing migration control measures, should – according to the will of European Member States expressed at the Paris summit – apply for asylum in a “hotspot” managed by UNHCR.
Finally, the last stage of the route, the crossing over the Mediterranean, is (again) made increasingly difficult. The Libyan “Coast Guard” (which is partly formed by the Libyan Central Government, partly by armed militia) is behaving increasingly aggressive towards refugee boats but also towards private rescue vessels. Italy as well has topped up its opposition towards those private rescue operations. The support for this rather dubious “Coast Guard” is part of the overall approach of the EU to curb migration towards Europe. In the November 2017 Commission Progress Report this support is labelled as “support Libyans to take ownership of securing their territorial waters, and to enhance protection of and respect for human rights,” without mentioning the obvious human rights and international public law concerns of such a cooperation.
Enhanced resettlement as a compensation mechanism?
Overall, at all relevant stations along the central Mediterranean route, attempts are made to prevent people from continuing their journey. As a “compensation” for these interception measures, the European States propose to offer resettlement for more persons.
Resettlement means the possibility to travel legally as a refugee to Europe after an asylum procedure has been carried out outside Europe (mostly by UNHCR). An intensification of this possibility to travel further is now planned and implemented on a small scale for persons stuck in Libya through an Emergency Transit Mechanism (ETM) in Niger (or to Italy directly) in return for the cooperation in migration control. In other words, anyone recognized as vulnerable in one of UNHCR’s planned “hotspots” can hope to be taken over by Europe as a resettlement refugee.
For resettlement to function, European states would have to actively receive people. Otherwise, responsibility for protecting these individuals remains with UNHCR and/or the receiving countries, as is currently the case in most refugee situations. Perhaps the most striking example in this regard is Turkey: between July 2015 and September 2017, only slightly more than 17,000 people were able to enter the EU legally from Turkey under the July 2015 EU resettlement scheme while Turkey welcomes more than 3.5 million registered Syrian refugees.
In any case, only a serious resettlement policy may be able to convince migrating persons to voluntarily enter a “center” somewhere in the Nigerien desert, Chad or even Libya, in order to queue for an entry permit to Europe. In addition, it is clear that even if, as is currently far from being the case, the chances of getting off a boat alive in Italy would be lower than the chance of being resettled from a “center” to Europe, there would always be people who escape the European desire for absolute migration control and embark the journey to Europe on their own.
Please continue reading the rest of the blog post here.