STUDY: EU COOPERATION WITH THIRD COUNTRIES IN THE FIELD OF MIGRATION

FULL TEXT OF THE STUDY FOR THE EUROPEAN PARLIAMENT CIVIL LIBERTIES COMMITTEE (LIBE) IS ACCESSIBLE HERE (148 PAGES)

AUTHORS: Dr. Paula GARCÍA ANDRADE, Universidad Pontificia Comillas, Madrid, Prof. Iván MARTÍN, Migration Policy Centre, European University Institute, Florence. SUPERVISION Prof. Philippe DE BRUYCKER, Université libre de Bruxelles (ULB) Prof. Cristina GORTÁZAR ROTAECHE, Universidad Pontificia Comillas, Madrid.

EXECUTIVE SUMMARY 

EU immigration and asylum policies have to face two major challenges: on the one hand the impending demographic crisis in Europe and on the other hand the migration pressures coming from outside its borders, as the current migration and refugee crises in the Southern Mediterranean and the Middle East exemplify. This makes it indispensable to develop a strong EU external action able to combat smuggling of migrants and trafficking of human beings, promote mobility and facilitate legal migration opportunities to third-country nationals, maximise synergies between migration and development of countries of origin, and enhance protection capacities towards persons in need of international protection, in line with the pillars of the Global Approach to Migration and Mobility (GAMM).

This study aimed at examining the overall strategy of EU cooperation with third countries in the field of immigration and asylum and evaluating its contours and outcomes, proceeds in three sections. Section 1 reviews the main forms of international cooperation adopted by the EU to tackle the multiple dimensions of the migration phenomenon, focusing on those covering enlargement and Eastern Partnership countries, Southern Mediterranean and Sub-Saharan countries, as well as the Greater Middle East. The analysis includes a mapping of the diverse funding sources for EU cooperation with third countries of origin and transit of migratory flows and a brief survey of the main modalities of Member States’ own external cooperation in this field. Section 2 attempts to undertake an assessment of the outcomes and impact of the instruments of EU external cooperation on migration, from a triple perspective: the objectives pursued (substantive dimension), the consequences of the nature of the instruments used (functional dimension), and the challenges of coordination regarding their adoption and implementation (institutional dimension). Case studies on Moldova, Morocco and Tunisia seek to provide empirical insight into the topics examined. Finally, section 3 formulates conclusions contributing to the debate on the configuration and impact of EU cooperation with third countries in the field of migration, and proposes a set of concrete recommendations for further action.

1. The toolbox of EU external cooperation with third countries in the field of immigration and asylum

The EU has at its disposal a wide array of instruments devised to enable a comprehensive cooperation with third countries of origin and transit of migratory flows. Migration dialogues (both regional and bilateral), Mobility Partnerships (MPs), Common Agendas on Migration and Mobility (CAMMs), EU Readmission Agreements (EURAs), Visa Facilitation Agreements (VFAs), migration clauses in association and cooperation agreements, Regional Protection Programmes (RPPs) and Regional Development and Protection Programmes (RDPPs), as well as Frontex and EASO’s external tools have been progressively conceived to achieve the objectives embodied in the GAMM, the overarching political framework inspiring EU external action in this field.

However, an analysis of the features, priorities, institutional framing and geographical scope of all these instruments reveals a scattered and sometimes incoherent picture. Although the GAMM instruments – at least the comprehensive ones such as migration dialogues, MPs and CAMMs – seem to be quite balanced in their initially stated priorities, their concretisation shows that the different pillars of this approach are not receiving equivalent degrees of attention. The second pillar of the GAMM related to fighting irregular immigration, strengthening border controls and ensuring readmission is the most developed priority through global instruments, EURAs, and Frontex cooperation, while EU action is still limited and inconsistent with regard to maximising migration and development links, and promoting international protection (among non-comprehensive instruments, only RDPPs pursue these objectives, the EASO external action being still underdeveloped). On legal migration, the added value of EU intervention is questionable as no instrument of EU cooperation currently includes significant facilitations on the admission of migrants at EU level, while association and cooperation agreements are only being used to strengthen the integration of legal migrants originating from partner countries.

The intricate distribution of external competences applicable to the field of migration explains that most EU cooperation instruments with third countries ensure the participation of both the Union and its Member States. However, a lack of sufficient involvement of the latter is perceived in the follow-up and implementation phases of tools such as migration dialogues, MPs and RPPs, usually due to particular interests of certain Member States and the unavailability of funds to facilitate regular participation. Significant similarities in the content of each instrument concerning different countries also question the negotiated and “partnership” nature of these tools. In sum, although the GAMM has been conceptually taken on board in the discourse of EU institutions and Member States, there is still a significant margin for improvement in ensuring a balanced, coordinated and coherent implementation of each of its elements.

In terms of geographical priorities, the GAMM instruments have been clearly focused on the Western Balkans, Eastern Europe and South Caucasus countries, deeply involved on cooperating with the EU on migration issues. In recent years, however, cooperation with Southern Mediterranean countries is intensifying and attention is also beginning to turn to Sub-Saharan and Eastern African countries.

For the adequate enforcement of these forms of international cooperation, the EU has mobilised numerous financial instruments of diverse nature and origin.

EU external cooperation on immigration and asylum is the result of a long process of accumulation in the framework of different EU policies (migration and asylum, development cooperation, external relations, neighborhood policy and humanitarian aid).

Overall, between 2004 and 2014 the EU spent more than EUR 1 billion on more than 400 projects worldwide. There is a clear growth trend in EU development cooperation funds allocated to migration, which have stabilised at around EUR 100 million per year jointly considering the thematic funds and the geographical funds, all of which include immigration and asylum among their priorities. As a consequence of this unplanned pattern, the implementation and the funding sources are institutionally scattered among DG DEVCO, DG HOME, DG NEAR in the Commission as well as the EEAS, with very different objectives and intervention formats. These funds do not always complement internal funds for migration and asylum related programmes, which for 2007-2013 amounted to EUR 4 billion.

Through international treaties or informal arrangements, Member States, for their part, continue to develop a rather intense external action at the bilateral level in those fields in which they preserve exclusive or concurrent powers with regard to the EU. Migration cooperation agreements concluded by Spain and France with African countries illustrate how the migration phenomenon can be comprehensively approached at the national level, albeit they also evidence that the reluctance to offer legal migration opportunities is not restricted to EU frameworks of cooperation. Concerning specific projects of external cooperation, those involving several Member States, with EU funding support, and in collaboration with EU agencies seems to be the most promising way to optimise resources, ensure added value, and pave the way for increasing Union action.

2. Impact of EU cooperation instruments in the field of immigration and asylum

The impact and even output assessment of EU external cooperation in the field of immigration and asylum is complicated by the lack of available relevant information. In relation to the strategic objectives of the GAMM, legal migration and mobility, despite being one of the four key dimensions of external cooperation in the field of migration, have been subordinated in policy terms, in particular in relation to the control of irregular migration. Evidence shows that whereas VFAs and, even more, visa exemptions boost mobility, MPs as such do not. Legal migration within EU external cooperation, in turn, seems blocked for the time being. Paradoxically, whereas the EU is investing heavily in institutional capacity building for better labor migration management in developing third countries, the credibility of those efforts is often undermined by the limited legal migration opportunities offered by EU Member States.

At first sight, the value of cooperation with third countries can seem more obvious in the field of irregular migration, having a direct impact on the number of irregular border crossings detected from partner countries, for instance. Return and reintegration support continues to be a major priority for EU development funding in the field of migration. However, projects in this field often overlap in the same country of origin, sustainability of initiatives seems to be in question, and return and reintegration programmes tend to promote the creation of parallel training, funding or business creation tracks instead of reinforcing public schemes already at work at national level. Their cost-efficiency also seems to be low.

In relation to migration and development, a recent evaluation concluded that there is a gap between the support provided to institutions and the concrete outcomes for the migrants themselves, i.e., the focus on capacity building and institutional strengthening may ultimately not translate into direct benefits for migrants. The sub-topic of remittances has been the most successful area for external cooperation in this field.

A major challenge in the near future for EU external cooperation in the field of migration, and more generally of EU development cooperation over the next years, is a growing confusion of development assistance objectives and migration policy (home affairs) objectives, including for instance return and readmission of irregular migrants, and the eventual subordination of the former to the latter through some form of conditionality. This might further undermine EU credibility in this field.

The diverse nature and the multiplicity of the instruments employed to develop the EU external action on migration has evident implications for their impact and effectiveness. On the one hand, while they entail cumbersome and lengthy procedures for their adoption, legal instruments constitute the appropriate tool to regulate migrants’ rights related to social security entitlements, admission and integration, visa facilitations and exemptions, or safeguards applicable to return or interception, allowing for legal certainty, increased democratic legitimacy and judicial monitoring. On the other hand, political instruments, responding more easily to flexibility and sensitive public opinions in third countries opposing migration cooperation with the EU, fail to secure a complete and coordinated EU offer to partner countries, hinder monitoring of compliance with international human rights law and hamper the effective enforcement of commitments and safeguards, among other disadvantages derived from the non-binding nature of these instruments.

From an operational perspective, a lack of balance between the different components of the GAMM is also perceptible in favour of the control of irregular migration, including integrated border management programmes and return and reintegration. A second major issue concerns the dispersion of funds and funding instruments, which translates into a lack of visibility for partner countries and implementers, a frequent lack of coordination and coherence between interventions in the same area as well as overlapping and duplication of efforts and resources. In terms of implementation, EU Delegations often lack the specialised staff required to plan, implement and monitor those projects. Besides that, programming processes are often slow, and administrative procedures for the selection of service providers, project funding and implementation are often too burdensome to be effective, limiting to a large extent the flexibility of EU cooperation to respond to new developments or contextual changes. Finally, information on project implementation should be more systematically compiled and disseminated.

From an institutional perspective, strengthened coordination at different levels is one of the most pressing challenges that must be tackled for the development of an efficient EU external action on migration. Firstly, concerning EU-Member States coordination, a systematic exchange of bilateral practices and instruments of cooperation is lacking, despite the existence of institutional mechanisms and legal obligations in force to that effect. Increased coordination between the supranational and national levels could avoid, for instance, difficulties in EU negotiations with its partners, overlaps in the cooperation initiatives offered to them or the use of EU instruments as mere umbrellas for pursuing national agendas. Among EU institutions involved in the external dimension of immigration and asylum policies, the difference in perspectives and priorities of the Commission and the EEAS is evident. An increasing degree of the latter’s involvement in this field should be matched with an increment of capacities, human resources and technical expertise, starting with the secondment of EU migration liaison officers to EU delegations abroad.

Also, the increasingly meaningful place occupied by political instruments permits only very limited involvement of the European Parliament in the scrutiny of the design and implementation of the GAMM, a shortcoming in need of prompt responses. The same holds true as regards the tasks undertaken by EU agencies such as Frontex or EASO. The external aspects of their mandates and responsibilities should be clarified too. As far as the intra-institutional dimension is concerned, coordination and rapprochement of priorities among the different European Commission DGs involved is indispensable. If their variety of perspectives can contribute to a more balanced EU external action on migration, the lack of coordination should not hinder its effectiveness. In this regard, the role of the HR/VP in ensuring internal coherence is of utmost importance, a responsibility that is starting to be put into practice. Similarly within the Council, coordination should be ensured not only between the JHA and FAC formations, but especially among the myriad working parties and structures charged with tasks related to the external dimension of EU immigration and asylum policies.

3.Summary of policy recommendations

On the basis of the findings and conclusions emerging from the analysis in the study and the case studies included in the annexes, it is possible to formulate the following policy recommendations:

More balance between the different components of the GAMM:

–   A   strengthened   EU   external   action   on   legal   migration,   that   includes facilitations   of   legal   admission   of   migrants,   recognition   of   diplomas   and qualifications as well as portability of social rights, is needed. As a way of increasing the balance of priorities contained therein, MPs should include additional possibilities for legal migration. Advancing as much as possible in the internal harmonisation of EU rules in these fields will help to achieve those objectives. The possibility to present to partner countries a coordinated EU offer on labour migration opportunities should be explored.

The GAMM pillar on international protection is still insufficiently developed. Capacity-building efforts and resettlement commitments, main components of RPPs/RDPPS, should be stepped up and carried out in real dialogue with countries hosting large refugee populations.

The external activities of the EASO that are underdeveloped probably due to budget limitations and lack of political will, should be reinforced.

Further and more specific resources should be mobilised to attain the GAMM objectives, a challenge that the upcoming MP Facility could face.

Focus should be put on facilitating the progress assessment of the GAMM.

Reinforce the partnership approach:

• A greater involvement of third partner countries in the design and negotiation of GAMM instruments should be secured so as to respond to the partnership nature of these instruments, enhancing their local ownership and efficiency.
• VFAs should include a higher degree of actual visa facilitations and be
  concluded in view of an autonomous objective of promoting mobility from partner countries. Mobility-related incentives in the field of trade in services could be offered to EU partners once a visa-free regime has been granted in order to ensure sustainability of reforms undertaken within a VLD.

–   The EU should direct its readmission policy towards countries of origin and include obligations on third-country nationals only in EURAs with important neighbour countries of transit as well as strive to look for additional incentives within other EU policies.

Rationalisation and increased coordination:

• A high number of EU funding instruments apply to external cooperation on immigration and asylum, following at times conflicting approaches, and often leading to overlaps. The funding framework should be simplified, clearly distinguishing objectives and EU policies and the corresponding funding possibilities.
• The multiplication of regional dialogues on migration in which many countries take part simultaneously requires rationalisation efforts, while more attention should be given to increasing their practical value and action-oriented approach.
• Coherence and complementarities among different instruments of the GAMM directed to the same countries or regions or sharing similar priorities must be ensured.
• The existing legal and institutional framework should be reinforced to ensure a systematic exchange of information between the Commission and Member States on agreements and projects carried out or planned by the latter in the field of migration.
• Increasing Member States’ involvement in GAMM instruments should be explored as their contribution is indispensable due to the current distribution of competences.
• EEAS capacities and human resources should be stepped up if an increased involvement of the Service in the external dimension of migration appears desirable. The secondment of migration liaison officers to EU delegations abroad should start immediately.
• Modes of increasing coordination of priorities among DGs HOME, DEVCO and NEAR within the Commission should be envisaged.
• In the Council, creating a single unit in charge of coordinating the multiple existing working parties and structures involved in this external dimension or empowering the HLWG on Asylum and Migration with a strong coordinating role should also be explored.
• EU external action on migration should ensure added value with regard to Member States’ bilateral external activities. While the compatibility clauses included in EURAs, allowing for the application of bilateral readmission agreements, should be avoided, EU funding should only be granted, within MPs, to multilateral projects involving several Member States.
• Instruments of a political nature may be useful for initiating migration cooperation with third countries, but suffer from shortcomings arising out of their soft law nature. Migration cooperation should evolve towards greater recourse to hard law in order to ensure stability and legal certainty of engagements, specify further details of cooperation and safeguard migrants’

More transparency for better evaluation and scrutiny:

• Mandatory evaluations of implemented projects should not focus only on outputs and outcomes, but also on impact in relation to the strategic objectives of each project. More resources should be invested in follow-up and evaluation of impact after the finalisation of projects.
• Periodic and comprehensive evaluation efforts should be undertaken for each instrument of the GAMM, both cooperation tools and financial instruments.
• The production of a standard ex-post project fiche with data about the allocation of a budget across different components of the project and elements for assessment should be envisaged at least in the framework of large programmes.
• EU Member States should be compelled to provide accurate data on the implementation   of   EU    instruments   of   cooperation   in   order   to   allow   for comprehensive and detailed evaluation exercises.
• Assessment of the efficiency and of the human rights impact of Frontex’ external action should be reinforced.
• The European Parliament should search for ways of increasing its capacities of scrutiny and monitoring in the design and implementation of the GAMM, such as regular debates and consultations on the adoption and impact of MPs, CAMMs, RDPPs and EU agencies’ external activities. Mechanisms of regularly monitoring the implementation of formal agreements like EURAs and VFAs with the involvement of the European Parliament should also be established.

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INDEX : INTRODUCTION                                                                                           

• Scope and content of the study 15
• Global and migration policy challenges 16
• Institutional and legal setting 18
• THE TOOLBOX OF EU EXTERNAL COOPERATION IN THE FIELD OF MIGRATION AND ASYLUM 1.1.  An overview of forms of EU cooperation with third countries on migration and asylum
  1.1.1.     Instruments of the external dimension of EU policies of migration and asylum
  1.1.1.1.  Political instruments
• Regional dialogues
• Bilateral dialogues
• Mobility Partnerships
• Common Agendas for Migration and Mobility
• 1.1.1.2.  Legal instruments
• Migration clauses in “global agreements”
• Specific international agreements on migration
• 1.1.1.3.  Operational instruments
• Regional Protection Programmes and Regional Development and Protection Programmes
• Frontex working arrangements
• EASO cooperation with third countries
• 1.1.2.  Comparative analysis of EU instruments

  1.2.  Mapping of funding sources for EU cooperation with third countries on migration and asylum

  1.2.1.  Funding sources of EU external cooperation on migration and asylum

• DG DEVCO funds 52
• DG HOME funds 56
• DG NEAR funds 59
• EEAS funds 59
• 1.2.2.  Comparative analysis of EU funding sources                               60
  1.3. Main lessons and inspiring practices from Member States’ cooperation with third countries on migration and asylum

  2. IMPACT OF EU COOPERATION INSTRUMENTS IN THE FIELD OF MIGRATION AND ASYLUM 70
  2.1.  Evidence on the output and impact of different instruments of EU cooperation with third countries in the field of migration and asylum
  2.1.1.  Substantive dimension

• Mobility, legal migration and integration 73
• Irregular migration, border control and readmission 76
• Migration and development 78
• Asylum and human rights protection 80
• 2.1.2.  Functional dimension                                                                    83
• Legal instruments 83
• Political instruments 84
• Operational perspective 86
• 2.1.3.  Institutional dimension                                                                  88
• EU-Member States coordination 88
• Inter-institutional coordination 91
• Intra-institutional coordination 92
• 2.2.  Short case studies
• Moldova 95
• Morocco 97
• Tunisia 98
• 3. CONCLUSIONS AND RECOMMENDATIONS FOR FUTURE ACTION
• Regarding the toolbox of EU external cooperation in the field of immigration and asylum 100
• Regarding the impact of EU cooperation instruments in the field of immigration and asylum 102
• REFERENCES                                                                                     ANNEX I. Country case studies                                                                  118
  Moldova
  Morocco
  Tunisia                                                                                                ANNEX II. Inventory of existing agreements on migration between the
  EU and third Countries    
  ANNEX III. List of Interviews     144