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A Potential Turning Point for the E.U. on External Migration

E.U. agreements with third countries to stem migration are not new, argues Anja Palm from the Italian Institute of Foreign Affairs. But we could look back on 2016 as a positive change of direction if the E.U. can solve its solidarity problem.

Written by Anja Palm Published on Read time Approx. 5 minutes
Federica Mogherini, E.U. high representative for foreign affairs, at the announcement of the European Union's controversial plan to stem the flow of refugees. Wiktor Dabkowski/picture-alliance/dpa/AP Images

This year has been sold by the European Union as the year of innovative migration policies. It has seen the conclusion of series of deals with countries outside the E.U. aimed at stemming migration flows. The rhetoric, meanwhile, has continued to refer to the rights of refugees and migrants to protection. To understand how innovative 2016 really was, it is first necessary to look at the longer-term trends.

The first steps towards a concerted E.U. approach to migration were made with the Amsterdam Treaty which came into force in 1999, then reinforced through the Lisbon Treaty that followed eight years later.

Migration has become steadily more central to the legal agreements and broader relations between the E.U. and third countries. There have been four discernible pillars to this process: the externalization of migration control; conditionality in relations with third countries; focus on securitization of borders; and the absence of legal routes for asylum seekers.

The nexus between migration and other priorities – particularly foreign and development policy – appears to have boiled down to support for initiatives that seek to prevent emigration or stop it before it reaches the E.U.’s shores. Development aid has been made instrumental to this priority.

Over time, the E.U. has increasingly outsourced tools of migration control to third countries creating a “buffer zone” and integrating third states into the E.U. border control apparatus.

The “local approach” rhetoric, which prioritizes humanitarian assistance and enhances protection in the region of origin and transit, has usually been employed to justify this logic.

Contrary to this rhetoric, recent agreements have nevertheless focused mainly on the enhancement of migration control instruments through funding and capacity building of the border control ability of countries of origin and transit. Another focus has been on readmission agreements, to ensure the return of any irregular migrant through accelerated procedures and presumptions, often at the cost of asylum and human rights protections.

In order to incentivize third states to enter such agreements, the principle of conditionality has been shaping the E.U.’s external relations since the early 2000s. As Canan Ezel Tabur, from the University of Aberdeen has argued: “cooperation on irregular migration has become a precondition for an intensified partnership for third countries,” requesting border management and cooperation in stemming migratory flows to the E.U. as a condition for financial and development support.

This approach presents a number of issues, of which the greatest concern is the lack of a long-term perspective on tackling migration. Indeed, the E.U.’s external approach addresses symptoms instead of causes: the focus on stemming numbers and shifting the burden elsewhere demonstrates a lack of permanent strategies. Further, the outsourcing of migration control not only neglects the special needs of people demanding international protection, not guaranteeing a due distinction according to international refugee law, but also determines a legally restricted or practically impossible recourse to E.U. human rights mechanisms for all individuals concerned. In addition to challenging moral and legal boundaries, the externalization of migration control has not even proven to be successful in deterring irregular migration: it seems merely to lead to the opening of other routes or temporary declines in numbers and may even be counterproductive.

While at the rhetorical level the E.U.’s external action is envisaged as approaching the migratory challenge from a multitude of angles, the reality is strikingly different. The focus has always been on strengthening external borders and combating irregular migration. An approach which reflects the security concerns of the member states.

Harmonization of migration policy at the E.U. level has indeed long concentrated on locking down the Schengen Area and intensifying migration and border control, without counterbalancing with adequate human rights protections.

According to international human rights organizations, the closing of the E.U.’s external borders, in combination with the requirement to be in E.U. territory to access international protection, has contributed to the increase of irregular migration, trafficking and smuggling and deaths at sea.

The combination of policies that govern the Schengen system, such as the visa regime, requiring visas for countries “perceived at risk of illegal immigration,” and carrier sanctions, give those in search of international protection virtually no other choice than to enter the territory irregularly.

This broadens the substantial gap between political statements and practice: indeed, whilst protection concerns are repeatedly mentioned in the objectives and in legislation, existing policies demonstrate that they have clearly not been taken into consideration in the elaboration of, for example, the list of countries for which visas are required.

While at a theoretical level it might be lawful to limit access to only those who do not come from or have not crossed a safe country, there is currently no instrument for the E.U. to make such an assessment before individuals access its territory. As a response to this challenge the E.U. appears to have chosen the easier policy of hampering access for all, instead of elaborating proposals which enable such differentiation beforehand.

After decades of national restraint, in 2015 the discussion on the external dimension of migration policies has increasingly been raised to the supranational level. This has mainly been due to a peak in flows through the Western Balkan route into northern European countries previously protected through the Italian-Greek “buffer zone” and the breakdown of the Dublin Regulation. As a consequence of this boosted dialogue, a range of proposals has been brought forward, concerning both internal burden sharing and an increased common response at the external level. Due to the dramatic failure of the former, there has been an increased focus on the latter, putting cooperation with third countries to stop the flows high on the agenda, with a particular focus on Turkey.

Ankara has been identified as the main partner for immediate action due to the extremely high flows into Greece from its shores, and its geographical position which makes it one of the main entry points to Europe. Consequently, 2016 has seen the external dimension of migration policies as a top priority on the European agenda: the completion of the EU-Turkey dialogue through the deal concluded on March 18 and the Commission’s New Partnership Framework can be identified as the cornerstones of this approach. But there are some doubts as to how innovative these instruments actually are.

Europe’s external policies on migration can be summarized with four key concepts (externalization, conditionality, securitization and absence of legal access ways), which have undoubtedly negatively impacted the international protection guarantees.

In 2016, this status quo has partially been challenged: the conclusion of a broad agreement with a third state on migration cooperation seems at first sight a positive step forward, even if, when looked at more closely, the latter reveals to be mainly a reflection of the above mentioned key concepts.

The recent New Partnership Framework nevertheless appears to have the potential to challenge the current setting: it aims on the one hand to create a single framework for agreements with third states to enhance coordination and avoid segmentation and, on the other hand, to take a more multi-focal viewpoint representing also the interests of third states. If these aspects are reinforced in the future, 2016 could really represent a turning point. But in order for it to be so, the E.U.’s solidarity impasse, demonstrated both by the lack of agreement on relocation and the absence of any discourse on opening regular access channels, needs to be overcome.

Sadly, at present, it looks like the E.U. will continue on its path of turning to third countries in order to distract from its internal divisions.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Refugees Deeply.

A full version of this working paper can be found here: Did 2016 Mark a New Start for E.U. External Migration Policy, or Was It Business as Usual?

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