ORIGINAL PUBLISHED ON EU LAW ANALYSIS Wednesday, 22 April 2015
by Steve Peers
On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13th. But for now, I want to examine the initial plan.
Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.
Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU’s Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.
Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;
This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase.
A systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean;
The ‘Atalanta’ operation concerns an EU military operation against pirates in the Indian Ocean. It’s clear from press briefings that the intention is to have another military operation regarding the smugglers. This will obviously entail significant costs and raises legal questions about the jurisdiction which the EU Member States have to destroy boats in the waters of third States or the high seas.
EUROPOL, FRONTEX, EASO and EUROJUST will meet regularly and work closely to gather information on smugglers modus operandi, to trace their funds and to assist in their investigation;
These bodies are respectively the EU police cooperation agency, the EU border control agency, the EU asylum support agency and the EU prosecutors’ agency. The asylum support agency has traditionally had little or nothing to do with this issue, and there is a risk that some of its funding is diverted. There is no express commitment to give it extra funds.
EASO to deploy teams in Italy and Greece for joint processing of asylum applications;
This will defray the cost of processing for those Member States and speed up processing times for overburdened administrations. It’s not clear whether this will simply be an application of existing rules which allow EASO to simply support national administrations, or whether there will be a shift to genuine ‘joint processing’ by a group of Member States or the agency as such. That would require fresh legislation.
Member States to ensure fingerprinting of all migrants;
EU legislation already requires fingerprinting of all short-term visa applicants (once the EU’s Visa Information System is fully applied, in the next year or so), residence permit holders, asylum applicants and persons crossing borders without authorisation. All holders of EU passports (ie EU citizens) must also be fingerprinted. The only gaps here are non-visa nationals coming for short-term visits (ie citizens of countries like the USA and Canada) and irregular migrants who have ‘overstayed’ after a legal entry. However, after the EU’s Visa Information System is fully applied, the second group (overstayers) will simply be a sub-category of the first group (non-visa nationals), since everyone needing a visa will already have been fingerprinted. And proposed legislation establishing an entry-exit system will require the non-visa nationals to be fingerprinted too, although it will take a number of years for that legislation to be agreed and made operational. These various categories of people are subject to different rules as regards how the fingerprint information is stored and used; it’s not clear if the intention is to change those rules.
The very odd thing here is what fingerprinting of ‘all migrants’ has to do with the issue of migrants drowning at sea in an attempt to reach the EU. It would perhaps make sense to reiterate the requirement to fingerprint all those who apply for asylum or attempt to cross the border without authorisation (as all those migrants who attempt to cross the Mediterranean are doing), but the plan clearly refers to ‘all migrants’. So we can only conclude that this is a blatant attempt at policy laundering.
Consider options for an emergency relocation mechanism;
The concept of ‘relocation’ entails moving asylum-seekers and/or recognised refugees from the Member States which have an obligation to consider their claim, or which have recognised their refugee status, to other Member States. It would obviously reduce the pressure on the Member States which receive a significant number of refugee claims from migrants crossing the Mediterranean – most notably Malta, Italy (the island of Lampedusa) and Greece. However, it would entail either suspending the EU’s Dublin rules on asylum responsibility in part (requiring a legislative amendment) or encouraging voluntary offers from Member States which are not responsible under the rules. Both options have been discussed many times over the years with no success (Dublin amendments) or very little success (voluntary offers). The wording used here (‘consider options’) is so underwhelming that little can be expected.
A EU wide voluntary pilot project on resettlement, offering a number of places to persons in need of protection;
‘Resettlement’ is the process of taking some of the people in other (non-EU) countries who need international protection and moving them to the EU. This is the only one of the ten points which offers ‘safe passage’, ie a way for would-be asylum-seekers to enter the EU without running the risk of drowning when crossing the Mediterranean. The ‘number of places’ is not specified, and it should be noted that under EU financial law, a ‘pilot project’ is a short-term programme using only a small amount of money. Furthermore, the project is expressly ‘voluntary’. Overall, it seems that this one form of ‘safe passage’ being offered by the EU is very narrow indeed.
Establish a new return programme for rapid return of irregular migrants coordinated by Frontex from frontline Member States;
EU law specifies that asylum-seekers cannot normally be removed until a final negative decision has been taken upon their application. So this refers to people whose asylum application has definitively failed, or who never made such an application and have no other ground to stay. There are procedural rights in the EU’s Returns Directive for irregular migrants, but there is no mention of them (or the asylum laws) here. Frontex already has a role coordinating joint return flights; the intention is to devote more effort (and presumably resources) to removing people from the EU’s Mediterranean Member States.
Engagement with countries surrounding Libya through a joined effort between the Commission and the EEAS; initiatives in Niger have to be stepped up.
This is the only part of the 10-point plan that hints that the EU’s relations with third countries have a role to play. It isn’t clear what this ‘engagement’ will concern. Will it focus on the conditions in the countries of origin and transit, thereby ensuring that fewer people want to head to the EU in the first place? Or is the EU only concerned with the repressive aspects, such as tracking down smugglers and traffickers?
Deploy Immigration Liaison Officers (ILO) in key third countries, to gather intelligence on migratory flows and strengthen the role of the EU Delegations.
The intention here is to obtain more intelligence on migration flows, although it’s not clear what will be done with that intelligence once it’s obtained. There will be a cost for the EU and/or Member State budgets here.
The Australian solution?
Some have suggested that the EU adopt the supposed ‘Australian solution’, of sending boats to stop the migrants reaching the territory of the EU. In fact this is a highly simplistic understanding of Australian asylum policy. The Australians do not intercept most migrants just outside their country of origin or otherwise return them there directly. Rather the policy is to send asylum-seekers to various Pacific islands for processing and to live permanently if a claim is successful. Australia gives the countries concerned significant cash in return. Moreover, Australia has a very active resettlement policy, recently increasing the numbers of permits granted from about 13,000 to about 20,000. So the asylum policy is justified by Australia as a means to stop people ‘jumping the queue’. Also, the policy is underpinned by indefinite detention of anyone who does make it to Australian shores without authorisation.
Could this policy be applied to the EU? There are some big legal problems. The European Court of Human Rights has ruled that migrants cannot simply be intercepted and returned to third States unless those States are safe (see the Hirsi judgment); it should be noted that conditions in some of the States participating in the Australian policy have been strongly criticized by human rights groups. Also, the EU’s Returns Directive bans indefinite detention of irregular migrants. That Directive does not apply to asylum-seekers, but EU asylum legislation applicable from July this year sets many new conditions regulating such detention. It’s highly arguable that detention of asylum-seekers cannot be justified (at the latest) once the final decision on the application has been made, or after the new EU deadlines to decide on asylum claims have passed. After that point the time limits for detention in the Returns Directive will apply.
Even if these legal problems could be overcome, could the Australian solution be replicated by the EU? The EU would have to find third countries willing to house large numbers of refugees and asylum-seekers, and pay them to do it. The numbers of migrants involved in Mediterranean crossings (about 200,000 in 2014) is far higher than those covered by the Australian solution (25,000 in 2012-13). So, although accommodating asylum-seekers in transit States is likely to play an important part in any long-term solution, this is easier said than done; and it’s important to note that the EU’s 10-point plan makes no mention of this issue.
Furthermore, the advocates for the Australian solution simply ignore Australia’sresettlement policy, which is one of the most generous in the world. Its 20,000 permits a year, for a population of 23 million, scale up to about 50,000 resettlement permits for the UK, and 450,000 across the EU. When the advocates of the Australian solution start to talk about that scale of resettlement, we should take them seriously – but not before.
Some have suggested that the UK and/or EU should focus exclusively on admission of Christian asylum-seekers, on the basis that they have ‘no other place to go’. Does that policy make sense? It’s undoubtedly true that some Christians face persecution, but so do many non-Christians – and Article 3 of the UN (Geneva) Convention on Refugees bans discrimination on grounds of ‘race, religion or country of origin’. It isn’t correct to suggest that Christians can’t live safely anywhere in any Arab or Muslim state: many of those States maintain the centuries-old tradition of letting Christians live without persecution, and indeed there are a large number of Christians living in Lebanon in particular. And it’s hard to see how this policy will work. Will Christians alone be rescued from boats in the Mediterranean, leaving the Muslims on board to sink? And how would asylum-seekers’ claims to be Christians be examined: by making applicants sit a Religious Education A-level on the boat? Or simply checking (for men and boys) to see if they are circumcised (and therefore likely to be Muslim) or not?
The first striking thing about the EU policy is that it pays little attention to the human emergency that triggered it: the deaths of hundreds of people, which resulted from a collective EU decision to stop search and rescue in the Mediterranean. There’s no express mention of the deaths themselves in the plan, and the Commission President’s statementon Sunday merely expressed his ‘deep chagrin’ at the deaths – as if someone had guzzled his last bottle of cognac.
Furthermore, the intention to expand the existing missions fails to mention any search and rescue aspects, and there is a very limited reference to expanding one form of safe passage. No part of the plan mentions dealing with the situation in countries of origin, or helping countries of transit manage the number of migrants on their territory. Instead, there is a strong emphasis on expulsion of migrants from the EU. Overall, this leaves the impression that the ministers aren’t shocked that migrants have died – but rather irritated that some of them didn’t.
Arguments about the costs of rescue, or of asylum-seekers reaching the EU, are undercut by the implicit plans to spend considerable sums of money on a military mission, fingerprinting of migrants, expulsion, and intelligence gathering. So the argument isn’t really about economic cost – but the social and political impact of migration.
As for the intention to crack down on trafficking and smuggling, few will have sympathy for the vultures that profit from others’ suffering and frequently jeopardise the lives of hundreds of people. But it seems odd to focus on them in this plan without also trying to address the broader situation of the migrants themselves – as if the means by which people make dangerous journeys to the EU are more important than the reasons why they do this. On this point, the plan resembles the decades-long US policy of military missions in Latin America, trying to destroy drug crops. Admittedly, it’s harder to build new boats than to grow more drugs – but then, the migrants aren’t exactly coming on cruise ships. The policy may well have the effect of lowering the (already low) quality of vessels used to cross the Mediterranean, and increasing the cost of migrants’ journey. Unless it forms part of a broader policy which aims to deal with the root causes of migration and the position of migrants in transit countries, it could make them less (not more) safe.