Blog post by Dr Eleni Karageorgiou (Lund University) and Professor Thomas Spijkerboer (Vrije Universiteit Amsterdam).

It is not original to point out that the 2015 European refugee ‘crisis’ was not caused by numbers – Turkey hosted ten times as many Syrians per inhabitant as the EU, and Lebanon even 100 times more, while in addition Europe is much wealthier than these countries. It is also not original to point out that, instead of addressing the deficiencies of European asylum law, the EU has intensified its externalization policies, as evidenced by the March 2016 EU-Turkey deal and the EU Trust Fund for Africa. Thus, the dominant idea seems to be that in order to save free movement of persons in the Schengen zone, entry into Europe has been made ever more difficult. Although we do not want to quarrel with this (we can see perfectly well what this analysis is about), we do think it needs to be nuanced significantly. This is what we seek to do in our paper ‘The EU building borders: West Africa, Western Balkans and the Mediterranean’ that was recently presented at the RLI Fourth Annual Conference. We essentially ask how solidarity works between the Schengen countries and how this feeds into the externalization debate.

Free movement in the Schengen zone is being selectively restricted by the ‘temporary’ reintroduction of control at internal borders. Within this context, European law and policy is applied in a way that protects the European hinterland (North-West Europe) at the expense of peripheral countries such as Greece, Italy and Spain. This intra-European periphery is being surrounded by an extra-European periphery (Turkey, Libya), which is to be surrounded by a periphery three times removed (Niger, Sudan). Thus, under the guise of solidarity, the European hinterland instrumentalises peripheral EU countries and third countries, and incentivizes peripheral countries to participate in instrumentalising countries further down the line.

Looking at the migration ‘crises’ of 2006 (Canary Islands), 2011 (Lampedusa) and 2015 (the Greek Islands) it is evident that the Dublin system places the ‘burden’ increased movements of asylum seekers entail for local and national administrations, on the Southern European countries. Even in the exceptional circumstances of 2015, the Court of Justice of the EU has upheld this system and its patently unreasonable results. In particular, it invokes the notion of solidarity to justify why compliance with the ‘first entry criterion’ in the Dublin Regulation should not be disputed in times of ‘crisis’ (see C-646/16, Jafari & Jafari). It thus, fails to attend to the disproportionate allocation of responsibility between EU Member States and to the risk of human rights violations such compliance might pose, considerations, which led AG Sharpston to a diametrically different conclusion (see AG’s opinion to the case).

The Southern European countries had for decades developed strategies for frustrating the Dublin system. The two main versions were variations of waving migrants and refugees through (i.e. not registering them in Eurodac, making a successful Dublin claim by the states of the European hinterland unlikely), and having a sub-standard asylum system, which makes the return of asylum seekers to these countries a violation of human rights law (M.S.S., N.S./M.E., Tarakhel). As a response to the 2015 refugee movements, the European hinterland showed its solidarity with their Southern brethren. It did so by adopting the hotspot approach – at crucial locations, the EU set up centres for the initial processing of asylum claims, ensuring both that asylum applications were registered in the appropriate states (that is: not in the hinterland, but in the periphery), and that the asylum procedures met some minimal international law standards. The European Court of Human Rights did not find the detention conditions on Italian and Greek islands to constitute inhuman treatment (Khlaifia, J.R.). In fact, it used the relative character of the notion of inhuman treatment (which until then had essentially meant that individual circumstances as age, gender and state of health were factors in determining whether circumstances constituted inhuman treatment) to introduce a new factor, namely the existence of a migration emergency. In both cases, the fact that the emergency had been caused to a meaningful extent by state policies (preventing the transfer of migrants to the mainland, and locking the gates of open reception centres – J.R. para 138), was not addressed by the Court (Khlaifia para 181).

Equally, asylum seekers and refugees had their own incentives to frustrate the system. In 2015 they did make their way to the European hinterland – Germany and Sweden in particular. Despite the idea that the German Chancellor Merkel somehow ‘opened the borders’ in August 2015 – we would rather say, as a resolute pragmatist, she concluded that borders were open; that Dublin had failed; and that something had to – and could, hence wir schaffen das – be done about that (the ‘what Germany schaffte’ in the fall of 2015 went far beyond this seemingly solitary and humanitarian gesture). The ripple of border control that swept through Europe actually began in Germany. The German reintroduction of internal border controls on 13 September 2015 was one of the first, followed by Austria (16 September, preceded by border controls and fences on 14 September), Hungary (external border with Serbia, 15 September), Slovenia (17 September, internal border with Hungary), Croatia (17 September, external order with Serbia), Macedonia (18 November, external border with Greece). The Scandinavian and French internal border controls begin only in November 2015 (See Annex 1 based on European Commission data). The ‘temporary’ reintroductions of internal border controls of hinterland states have become permanent so far.

But Europe’s solidarity in border management knows no boundaries. It extends to the Turkish and Libyan authorities, who are assisted with funding, training and equipment for migration policy makers, for migration policy implementers on the ground, and for coast guards. Thanks to these inspired actions, boat people are now rescued shortly after they have set sail, and brought back to Turkey and Libya. When graphic images of CNN pointed out what human rights reports had been documenting for years, namely that in the case of Libya this meant return to torture and enslavement, the EU extended its solidarity even further. IOM and UNHCR carry out ‘voluntary humanitarian returns” with support from the European Union Trust Fund and ‘humanitarian evacuations’. Both terms used, namely ‘voluntary’ and ‘humanitarian’ are interesting, considering that the alternative to ‘voluntary’ is torture and that the crime combat/humanitarian discourse has long been used to justify the EU’s border policies.

The European solidarity is even operational further upstream. The African Union has developed a Border Programme with ‘support‘ of the German development agency GIZ. GIZ also ‘supports’ the implementation of the AU Border Programme. The GIZ Support to the African Union Border Programme runs 2008-2018, and assists AU member states with border management; facilitates a regional network of border experts, and advises the African Union. One of the results is “the GIZ-supported AU Convention on Cross-Border Cooperation (the Niamey Convention)”. GIZ manages AUBP an implementation program in Niger. In addition, it runs a general police training programme, Police Programme Africa, part of which is “the construction and renovation of police and immigration service facilities such as police stations and border posts (…)”. There are national implementing projects in Mauritania, Cameroon, Nigeria, Chad, Niger, Côte d’Ivoire, and the DRC. This is just one example of European ‘solidarity’ with states of origin of irregular migrants. There are similar efforts for creating biometric digitalised civil registries (essential for managing populations) and for implementing the Migrant Smuggling Protocol which includes the introduction of carrier sanctions on domestic transport (see for instance Article 20 of Niger’s Law 2015-36).

What’s remarkable is, that by these forms of solidarity and support, the EU achieves -apart from responsibility shifting, a situation that the ECtHR had prohibited in its monumental M.S.S. and Hirsi Jamaa judgments. The return of asylum seekers to Greece was held to be in violation of Article 3 ECHR, whereas currently asylum seekers simply are not able to leave the Greek islands although their detention and reception conditions are arguably worse than those found unacceptable in M.S.S. In Hirsi Jamaa, the ECtHR found return to Libya unacceptable on account of the risk that asylum seekers would be refouled from Libya to other countries, and possibly their country of origin. Currently, in a two-step operation, exactly that is achieved. The EU funds, trains and equips the Libyan Coast Guard, which carries out pull-backs labelled as search and rescue operations. Subsequently, IOM and UNHCR rescues the former boat people from their rescuers through ‘humanitarian returns’ – which are also funded by the EU. Naturally, they claim to make the best out of a bad situation, and that would make sense if the Libyan search and rescue and the IOM/UNHCR humanitarian returns were not part of the same EU policy line.

Our claim is that the European law and policy on borders is characterized by a double message: it is purportedly based on solidarity (because that is what its legal basis in the Treaty of the Functioning of the EU requires), yet it takes the form of activities, practices and policies that are hard to square with that notion. The aim is to keep populations on the move away from the European heartland and immobilize them on their way there: in peripheral states (Croatia, Greece, Italy); in the periphery of peripheral states (the Greek and Italian islands); in neighbouring countries such as Turkey and Libya; or in countries neighbouring neighbouring countries such as Niger. When analysed in this perspective, the externalisation of EU migration policy is not a contrast with internal EU policies, but rather a continuation of burden-shifting away from the hinterland states. What our paper shows is that the intensification of bordering practices started in the core of Europe and was gradually rolled outward to peripheral EU countries, neighbouring countries, all the way to the Sahel.

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