As European Union (EU) Member States prepare to go to the polls shortly, to renew the 751-member European Parliament (EP), what has long been dubbed the refugee and migration crisis continues to feature among top news items on various media outlets across Member States of the Union (EUMS). Although the number of people entering the EU irregularly by sea dropped drastically in 2018 by 92% compared to 2015, the peak year of irregular border crossings, the issue of asylum-seeking and migration to the EU continues to dominate public political debate.

This has been partly due to the use of the topic by right-wing populist and anti-establishment parties as a key element for building political consensus in the ongoing campaign for EP elections. A second reason for the high profile presence of the issue in public debate is that EU institutions, in particular, the European Council (a body of heads of States/Governments) and the European Commission (manages day-to-day business of the Union), are yet to find a shared and effective policy response to the crisis. The central focus of all policy measures put in place so far with regard to the crisis has been the externalization of migration and refugee control and management, accompanied by the claim of “disrupting the business model of human smugglers and traffickers.”

Policies That Contributed to the Crisis

The history of irregular migration to the EU by sea through its southern borders dates further back than most current reports on the crisis suggest. Some external events, such as the conflicts in Libya and Syria in 2012, certainly led to sharp increases in the number of people trying to enter Europe by crossing the Aegean and Mediterranean Seas. Before then, people fleeing from the long-standing wars in Afghanistan, Iraq, Southern Sudan and Somalia and seeking protection in the EU had been using the same migratory routes to enter the EU. It is interesting to note here that recourse to such deadly sea routes began in the late ‘90s, following the introduction of strict visa requirements for people coming from African, Asian and Middle Eastern countries. The situation worsened with externalization (and privatization) of migration control measures through the Carriers’ Sanctions Directive adopted in 2001.

This policy measure provides that air, land and sea carriers that bring third-country nationals without adequate authorization, are subject to fines of a minimum amount of no less than 3,000 and a maximum of no more than 5,000 Euros for each person transported. Besides returning an unwelcome third-country national to the country of departure, carriers have also to bear any expenses for accommodation that may be necessary while they wait for repatriation. Other penalties such as immobilization, seizure and confiscation of the means of transport, or temporary suspension or withdrawal of the operating license, can be applied in addition, in particularly serious cases. A direct consequence of this policy is that airlines, shipping companies and coaches, all private entities, take on the function of immigration officials in the country of departure. Before the introduction of this measure, people seeking protection from persecution or conflict could arrive by air, land or sea at EU borders without authorization and apply for protection there and most irregular migrants entered on short-term visas and later overstayed.

Other measures such as visa policies, Immigration Liaison Officers posted in third countries who cooperate with carriers’ personnel, the policing of the external land, sea and air borders, maritime interception, cooperation agreements with third countries and organizations, have all contributed to restrict opportunities of legal travel to the EU. This, in turn, has fueled the business of smugglers who provide transportation that is otherwise not available across countries and the Aegean and Mediterranean Seas. These policies have remained in place and further tightened for some third countries, despite the general consensus among scholars that carrier sanctions have raised the barriers asylum seekers encounter when seeking protection in the EU, restricting their rights while violating the fundamental principle of “non refoulement,” a tenet of international law on the protection of refugees.

Irregular entry into the EU through land and sea routes increased sharply following the outbreak of the Libyan civil war in 2012, which forced many people from Africa, Asia and the Middle East, who until then had been living and working in the country as immigrants, to leave. While most of those displaced by this conflict returned to their countries of origin, others sought new destinations in Europe, joining those displaced by other conflicts in Asia, the Middle East and Africa who had been using different North African countries and Turkey as points of departure on the perilous sea journey to Europe.

The huge influx of refugees and migrants into the EU that followed, beginning from 2013 and peaked in 2015 and 2016, led to more than 3,500 dead or missing persons in the Mediterranean in 2014, 3,771 in 2015 and 5,022 in 2016, according to the United Nations High Commissioner for Refugees (UNHCR), making the Mediterranean the deadliest migratory route. In the same years, according to Eurostat, 526,700 first time asylum-seekers applied for international protection in the EU in 2014, 1,257,000 in 2015 and 1,204,300 in 2016. Faced with such numbers, the Common European Asylum system (CEAS) cracked, leading to a crisis in the reception and management of asylum seekers throughout the Union.

The situation was further compounded by the so-called Dublin Regulation, a system designed to assign responsibility for processing an asylum application to a single Member State. Though the Dublin system provides for use of a hierarchy of criteria to determine which country should examine an asylum application, the most frequently applied criterion is that which assigns responsibility to the Member State through which the asylum seeker first entered the EU. Applying this system to the influx described above meant that countries in Southern Europe that border on the Aegean and Mediterranean Seas had to bear the burden of reception of those arriving by sea and this meant essentially Greece, Italy and the small island of Malta. Hence, the policy and humanitarian crisis that has continued to date even though arrivals have drastically decreased. Efforts to reform both the CEAS and the Dublin system have so far failed as many Member States refuse to share responsibility for the reception of asylum seekers through relocation and resettlement.

Reinforced Externalization of Migration and Refugee Management

Failing to agree on how to share the responsibility deriving from having a common border, the EU chose as priority in the migration and refugee crisis the defense of its external borders, without much regard for the protection of life, despite a deafening rhetoric to the contrary. All efforts, policy and resources wise, have been geared towards keeping migrants and asylum seekers outside the Union’s borders. This focus on border protection partly explains why its border and coast guard agency, FRONTEX, has been at the forefront of attacks against search and rescue operations in the Mediterranean Sea, claiming that such activities exerted a “pull” effect on departures from North Africa.

The border agency first used this argument right at the time the Italian government launched the Mare Nostrum search and rescue mission in November 2013, following one of the second-worst shipwrecks in the Mediterranean that claimed 366 lives, in October of the same year. After the Italian government mission was terminated at the end of October 2014, the EU replaced it with a FRONTEX-led mission named Triton, with the limited mandate of patrolling the southern borders, especially in the East and Central Mediterranean areas, without a search and rescue mandate. By March 2015, the Mediterranean witnessed the worst shipwreck ever with about 800 people dead or missing.

The decision by EU Member States to turn their back on the human tragedy that was going on (and still continues) along its’ Central and Western Mediterranean border, in spite of all public declarations to the contrary, forced some non-governmental organizations (NGOs) to undertake search and rescue (SAR) activities to save people in distress at sea. The reaction to these humanitarian initiatives by some EU governments and right-wing populist parties and movements, has been to criminalize SAR operations, accusing NGOs of collusion with human smugglers and traffickers and stalling their work by refusing them permission to disembark those saved at sea.

A cornerstone of the “not in my backyard” approach to migration management by the EU has been the undeterred pursuit of agreements with third countries aimed at getting them to block migrants and asylum seekers before they reach European borders. Worthy of note is the unprecedented pressure put on some third countries to accept detention centers for migrants and asylum seekers in their territories.

The Agenda on migration, adopted by the European Council at the peak of the crisis in 2015, clearly outlines this policy. The basic idea is that the EU should get some third countries to accept hosting in their territories holding structures (detention centers) where irregular migrants already in the EU could be moved to, together with those intercepted while trying to enter the Union. People held in such centers will then apply for asylum in the EU from there and those whose applications are accepted will be allowed entry into the EU while the others will have to be repatriated to their countries of origin.

In order to achieve this policy, the EU sets out the buying of target countries with economic aid or bending their will using political pressure, including trade disincentives. The Agenda on Migration explicitly identified Niger and Mali in West Africa as targets of this approach. It stated that “a pilot multi-purpose center will be opened in Niger before the end of the year. The center will combine the provision of information, local protection and resettlement opportunities for those in need. Such centers in countries of origin or transit will help to provide a realistic picture of the likely success of migrants' journeys, and offer assisted voluntary return options for irregular migrants.”

The economic incentive model was successfully implemented with Turkey, in a €6 billion Euros worth arrangement known as the EU-Turkey Statement of March 2016, under which Turkey agreed to seal off its borders with the EU stopping mainly Syrian, Afghan and Iraq refugees from crossing while receiving those repatriated who had previously entered the EU irregularly passing through its territory. In exchange, the EU undertook to disburse €6 billion Euros to enable Turkey to manage the arrangement, which is formerly an agreement between Germany and Turkey.

Interestingly, identifying it for what it was, an agreement between the EU and Turkey on keeping asylum seekers out of the EU and mass expulsions of those who had already entered by a cut-off date, would have required the approval of the European Parliament in order for it to become binding on the EU. Besides, any such agreement between the EU and a third country would be subject to the jurisdiction of the European Court of Justice (ECJ) and in the case of an appeal against it, the ECJ would almost certainly rule that it violates European and international laws on the protection of refugees.

By April 2016, the EU-Turkey Statement had effectively sealed off Turkey’s maritime and land borders with the EU and it soon became a model policy to be applied to stem the flow of refugees from the North African coast to Europe. Due to the conflict in Libya and the widespread violations of migrants and refugees’ rights there, the EU could not enter into an agreement with Libya albeit in the ambiguous form of a joint Statement. Recalling a “Treaty of friendship, partnership and cooperation” signed by Italy and Libya in 2008, the Italian Government and the Libyan Government of National Accord negotiated and signed early in 2017, a “Memorandum of Understanding on cooperation in the fields of development, the fight against illegal immigration, human trafficking and fuel smuggling …” The agreement states clearly that recourse will be made to funds made available to Italy by the EU, to finance its provisions.

Ignoring that there is no unitary government in Libya, which lies at the heart of the continued civil war in the country, the MoU “reaffirms the resolute determination to cooperate in identifying urgent solutions to the issue of clandestine migrants crossing Libya to reach Europe by sea.” It provides for “temporary reception camps in Libya under the exclusive control of the Libyan Ministry of Home Affairs, pending voluntary or forced return to the country of origin.”

This is the backdrop to the sharp reduction in the number of people arriving in Europe across the Mediterranean in 2018 mentioned above. Most of all, these policies of outsourcing of migration and refugee control have contributed significantly to the deplorable violations including forced labor, torture and sexual abuse African migrants and refugees face in Libya to date. The human cost of similar policies cannot be tolerated further.

Attempt by the EU to force a similar memorandum on Niger Republic backfired when the Nigerien diaspora in Europe effectively mobilized against it, linking up with rights’ groups in various countries. After the European Council announced, during the visit of Nigerien President to the EU, that the parties were about signing a statement on the Turkish model, protests broke out in various European capitals and back in the Niger, forcing the Nigerien President to publicly declare that he had not signed any such accord and did not intend to sign one.

This notwithstanding, a multi-purpose center, first envisioned in the European Agenda on Migration, has been operating in Niger since 2016, financed by the EU and managed by the International Organization for Migration (IOM). Some migrants from West Africa, stranded on their way to the North African coast, seem to use the center of their own will and leave when they want. Beginning from early 2018, migrants and asylum seekers from Sudan, Eritrea, Sri Lanka, Pakistan and the Middle East began arriving at the center because the EU had circulated information that those using it could apply there for international protection in the EU and their applications would be vetted in collaboration with the UNHCR and IOM for relocation to the EU. There have not yet been reports of violations of rights in the center, but material conditions are described as fragile and poor, raising the prospect that conditions of stay may rapidly deteriorate should people be channeled to such place.

Further political pressure on Niger, in particular, has included the posting of EU Immigration Liaison Officers (ILOs) to some of the country’s border posts, training of border guards, deployment of military contingents under the pretext of fighting terrorism and human trafficking, the setting up and operation of the Africa-FRONTEX Intelligence Community (AFIC) that focuses on fighting irregular migration. A less visible but potentially more insidious pressure is being exerted on Chad, Mali and Niger to restrict the use of their territories as transit towards North Africa by people from further south of the Sahara.

At a time when the African Union is striving to improve mobility for Africans within Africa, by encouraging its members to adopt an AU passport and waive visa requirements between them, the EU is pressuring some North and West Africa countries, to go back on existing enhanced mobility agreements. The free movement enjoyed by citizens within member states of the Economic Community of West African States (ECOWAS) is to be sacrificed on the altar of EU migration control.

Yet, the same European Union cherishes freedom of movement for its own citizens so much that it prefers to lose a member State (the UK and Brexit) rather than restrict this fundamental freedom enjoyed by its citizens. The politics of externalization and privatization of migration control by the EU is not only contributing to the sufferings and violations of poor prospective migrants and asylum seekers from Africa encountered while trying to enter Europe. It is also bringing back old memories of a condescending relationship between Europe and many African countries.

A good question is how are African governments responding to this mobility crisis that has claimed the lives of thousands of their citizens and the way the EU approaches the problem? This will have to be the topic of another post.

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Udo C. Enwereuzor

Pisa, Italy

Udo C. Enwereuzor is an independent Senior Consultant on Migration, Minorities and Rights of Citizenship based in Italy. He has been engaged in the promotion and protection of rights and social justice for migrants, refugees and national minorities in the EU since 1990. He is a founding member of the Italian chapter of SOS Mediterranee, a European humanitarian organization that works to save lives of migrants in distress at sea through search and rescue operations in the Mediterranean.

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Caption: African refugees disembark from a tanker in an Italian harbor

credit: UNHCR