Europe’s New Pact on Migration and Asylum:
More deadly border politics
by Niamh Ní Bhriain
Recent years have seen the consolidation and expansion of Fortress Europe, a set of policies and practices designed to keep refugees out of the EU at any cost. Niamh Ní Bhriain explains how the European Commission’s New Pact on Migration and Asylum, introduced under the cover of COVID, is set to exacerbate what is already a humanitarian catastrophe.
On 23 September the European Commission published its New Pact on Migration and Asylum, which it claims will offer “a fresh start on migration” and bring a “striking new balance between responsibility and solidarity”. Although this Pact had been in the pipeline since 2019, its publication comes only weeks after Moria Refugee Camp, on the Greek island of Lesbos, was burned to the ground leaving over 12,000 people without shelter. Moria – not so much a camp but a squalid, overcrowded, open air prison – is one of the many tangible examples of how deeply inhumane European border and migration policies have become.
Far from offering a fresh start by addressing the most problematic aspects of Europe’s approach to migration, this Pact entrenches those very policies. Its focus on containment and deterrence will likely lead to more inhumane camps, force those on the move to take even more treacherous migration routes, and ultimately lead to more deaths at the hands of European policy makers.
Expanding the Fortress
Although following the fall of the Berlin Wall, the EU began unrestricted movement within its borders under the terms of the Schengen Agreement, externally it developed policies that focused on controlling external migration routes, expanding sophisticated surveillance technology, and increasing deportations and pushbacks.
Since 1992, and more aggressively since 2005, the EU, and its member states have pursued policies that externalise European border control as far South as Senegal and as far East as Azerbaijan. Border externalisation aims to prevent forcibly displaced people from ever reaching Europe’s shores. It is a policy whereby people on the move are contained, often in unsafe third countries, where they are not afforded international protection and are frequently subjected to torture. They cannot advance to safety but equally they cannot go home – they are stuck.
The Global Approach to Migration and Mobility published in November 2011, cited the Arab Spring uprisings and unrest in the Southern Mediterranean as the impetus for the EU to engage third countries in developing securitised border policies. Migration was framed as a threat to the stability of Europe and cooperation agreements were put in place with countries of origin and transit to stop people advancing towards Europe. In effect, these third countries became Europe’s border guards.
Both the 2015 Valletta Summit on Migration, which brought together European and African heads of state, and the 2016 European Commission’s Partnership Framework on Migration, deployed a carrot and stick approach, offering “positive” incentives in the form of military funding, training and equipment, but equally threatening negative consequences should third countries choose not to play ball. Those in Europe’s corridors of power carved out agreements where they called the shots on border control in third countries, significantly undermining the sovereignty of those nation states, prolonging colonial dynamics, and reinforcing an uneven and oppressive system of power. Under a myriad of bilateral and multilateral agreements, security forces representing various European nations, as well as Europe’s Borders and Coast Guard Agency, Frontex, were deployed to third countries to patrol their borders and train and equip their border guards.
Europe has built a fortress around itself and in so doing, has simultaneously propped up authoritarian governments and militia groups in the Middle East and North Africa, undermining democracy, and provoking unrest and mass displacement. The ongoing instability in Libya offers a case in point.
Forced returns and pushbacks
As well as building up Fortress Europe, much effort has gone in to increasing returns, often considered the magic bullet to forcibly remove from Europe those who have managed to penetrate its complex external border apparatus. Under the Asylum, Migration and Integration Fund 2014-20, EU member states were allocated in excess of €800 million for return operations.
Europe’s obsession with keeping people out at all costs is perhaps most clearly observed in its pushback of boats arriving to its shores. The EU and its member states have unashamedly withdrawn search and rescue missions from the Mediterranean in recent years while simultaneously criminalising civil society initiatives to save lives at sea.
Since the beginning of 2020, video footage has emerged of the Greek coastguard deliberately sabotaging overcrowded boats in distress, colliding with them, shooting towards them, and literally prodding them with sticks to push them back to Turkish waters. In the central Mediterranean, the EU and its member states provide funding, training and equipment to the Libyan coastguard to tow people back to Libya where they will be arbitrarily detained in squalid facilities notorious for torture.
The onset of COVID-19 saw European governments double down on border securitisation policies making borders even deadlier than before. Italy and Malta closed their ports and knowingly left boats adrift allowing people to die at sea. In one case, a rubber dinghy carrying 63 people was left adrift for a week. Twelve people died of dehydration and drowning and those who survived were forcibly towed back to Libya and placed in a detention centre in Tripoli. Various European national coastguards and Frontex were alerted to the boat in distress but failed to intervene.
Although European Commission President, Ursula von der Leyen, speaks of taking “a human and humane approach” stating that “saving lives at sea is not optional”, such words ring hollow when so many thousands of lives have been lost in the Mediterranean Sea. At least six people die each day trying to cross the Mediterranean, although there are likely many more unknown deaths – a reality that is all the more harrowing when you consider that in 2019 Frontex carried out 592 maritime aerial surveillance flights. The Mediterranean is clearly being surveilled although not with the objective of saving lives, but rather to force those fleeing violence and armed conflict back to unsafe third countries, or failing that, leaving them to drown.
There is a sustained and concerted effort by European leaders to keep people from exercising their legitimate right to seek asylum at any cost, and far too often they pay the ultimate price with their lives. European leaders have blood on their hands but have yet to be held to account for putting in place policies that knowingly cause people to die at sea.
The New Pact: More deadly border politics
The European Commission is proposing pre-entry screening for all “irregular arrivals” whereby they will be held for five days in an external facility, undergo health and security checks and their personal data, including fingerprints, will be registered in the EURODAC database. The screening aims to “accelerate the process of determining the status of a person and what type of procedure should apply”: an asylum procedure or a swift return. Pre-entry screening aims to filter out “asylum claims with low chances of being accepted … presented by applicants misleading the authorities, originating from countries with low recognition rates likely not to be in need of protection, or posing a threat to national security”.
The screening process raises a number of concerns. People are deprived of their liberty, placed in external facilities operated by an EU member state, but have not been admitted to the EU – so which jurisdiction are they in and which legal code applies? This is not clear. There is no envisaged judicial review of the decision taken following pre-entry screening, nor is it clear whether those in screening facilities will have access to independent legal advice or representation.
Furthermore, “Member States will also need to carry out the screening if a person eludes border controls but is later identified within the territory of a Member State”. In theory then, could someone who is living undocumented in the EU for many years be referred for screening and deported within five days if they fail to meet the threshold of having a “well-founded” asylum claim?
Seeking international protection is nuanced and hugely complex. Those displaced by violence or armed conflict arriving at Europe’s external borders are often deeply traumatised and disorientated and in urgent need of humanitarian assistance. They need independent legal advice to best engage with the asylum process and articulate their reasons for fleeing. How likely is it that someone fleeing violence will adequately articulate their reasons for seeking asylum within this five-day period and without legal accompaniment?
Pre-entry screening seems not so concerned with providing vital humanitarian assistance or avenues to seek asylum, but rather with sifting through those arriving as quickly as possible to fast-track return as many asylum applicants as possible. Considering Europe’s track record in pushing back and forcibly returning migrants – many of whom have strong cases – the implementation of pre-entry screening suggests that even more applicants will likely be kept out. This system will force those on the move to take even more dangerous migration routes than before to circumvent being filtered out, but will do nothing to address the root causes of why they are fleeing in the first place.
As part of the “common framework for solidarity and responsibility sharing”, which will “primarily focus on relocation or return sponsorship”, EU member states will be able to choose whether they want to receive those who have been permitted entry or to financially support the return of those who are to be removed. EU member states have been given a green light to forego their collective obligation to uphold the right to seek asylum and partake in deportations as an alternative. If a state doesn’t want to welcome people, it can pay to expel them instead – writing this into policy is a new low for Europe. Should all or the majority of member states decide to shirk their responsibility in receiving asylum applicants and opt for the “return sponsorship” mechanism, we will likely end up with an asylum procedure that looks exactly the same as what we’ve already got, only with a greater number of forced returns. Although EU Commissioner Johansson said there would be “no more Morias”, under this New Pact, it’s difficult to see how we won’t end up with multiple Morias dotted around Europe’s external borders where would-be asylum seekers will be treated as criminals and forcibly removed.
The New Pact tasks Frontex with playing “a leading role in the common EU system for returns”. Since its formation, Frontex has repeatedly seen its mandate expand and its budget increase. In 2019 Frontex was involved in returning 15,850 people from Europe. This year has seen the transformation of Frontex into the EU’s first uniformed service, with a recruitment drive for an armed standing corps, mandated to take executive decisions regarding Europe’s external borders. Does the unabated expanse of Frontex in to an armed, uniformed force, deployed to Europe’s external borders and third countries, with an autonomous mandate and executive powers, not make it a European army in all but name?
Border policies will continue to be militarised and the border security industry will continue to reap the benefits of a global market worth in excess of US$17 billion. This for-profit model will continue to drive the narrative that migration is a security threat and requires a securitized solution. The Pact will serve as a policy anchor for the EU’s Multi-annual Financial Framework 2021-2027 adopted last July, which included an expanded budget for Frontex, an Integrated Border Management Fund, and an Asylum and Migration Fund.
The Pact promises that the “EU will strengthen cooperation with countries of origin and transit to prevent dangerous journeys and irregular crossings”. In essence, this is an entrenchment of externalisation policies that have thus far done nothing to stem the flow of migration, but rather forced those on the move to embark on ever more treacherous routes or ensure that they get stuck along the way.
Although the Pact recognises the need for independent monitors and discourages the criminalisation of migrant solidarity, such measures are a drop in the ocean when held up against all the is so fundamentally wrong with Europe’s border and migration policies.
Containment and deterrence
European border policies do not work. They do not work for EU member states, particularly those on Europe’s external borders; they do not work for countries of origin and transit which have been consistently destabilised by European intervention; and they do not work for those on the receiving end of these policies who are subjected to torture, disappeared or killed. European policies focus on containment and deterrence. They reduce accountability for the EU and its member states, shift responsibility to third countries, and outsource border guards, procedures and controls to a border security industry profiting from a political and humanitarian crisis. They completely miss the point about why people are on the move in the first place. People move to survive – you cannot contain or deter survival and European attempts to do so thus far have had devastating consequences. This New Pact shows just how deeply at odds European thinking really is with what is actually needed to alleviate the ongoing humanitarian catastrophe at Europe’s borders. Under this Pact that situation can only get worse.
Niamh Ní Bhriain coordinates the Transnational Institute (TNI)’s War and Pacification Programme, which focuses on the permanent state of war and pacification of resistance. Twitter: @DondeNiamh. Read more about the expansion of Fortress Europe in this TNI report.