Blog post by Samantha Velluti (LL.B., LL.M, Ph.D), Reader in Law at Sussex Law School, UK, where she also convenes the European Law and Policy research group (ELPRG). Dr Velluti’s research focuses on legislative developments in EU asylum law and the judicial activism of the European Courts from a human rights perspective.*

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The anti-migration deal between Italy and Libya

On 2 November, the 2017 Memorandum of Understanding (MoU) between Italy and Libya on development cooperation, illegal immigration, human trafficking, fuel smuggling and reinforcement of border security (English version), signed with the United Nations (UN)-recognised Libyan Government of National Accord (GNA) led by Fayez al-Sarraj, was automatically renewed in spite of calls from human rights groups to revoke it. The MoU was signed to ‘cut off’ the Mediterranean route for migrants coming from Africa, via Libya, in order to prevent them from reaching the shores of Italy and subsequently entering the European Union (EU). Its adoption resulted in the creation of several detention centres for refugees and migrants on Libyan territory, which are financed by the Italian government and run by Libyans. Conditions in these centres were described by a 2019 Human Rights Watch (HRW) report as inhumane. Under this agreement Italy provides training and resources to the Libyan coastguard and finances migrant centres, together with the EU. It is estimated that about 4,500 people are held in detention. However, many more are held in unofficial detention centres under the control of armed groups, where according to a 2018 UN Human Rights Agency (OHCHR) report they suffer ‘unimaginable horrors’ from the moment they enter the country. The UN Refugee Agency (UNHCR) has calculated that around 36,000 people have been intercepted by the Libyan coastguard and returned to Libya since the agreement was signed. At the end of October, Italy’s Foreign Affairs Minister, Luigi di Maio, promised to improve the agreement, which can be modified at any time, with special attention to migrant centres and conditions. In particular, the government pledged to increase ‘humanitarian corridors’ for vulnerable people out of Libya and improve the presence of the UNHCR, which at present only has limited access to detention centres. Di Maio also said that Italy will ensure ‘voluntary’ returns and open hotspots in Libya to identify, register and fingerprint asylum claimants even though Libya is not a signature of the 1951 Refugee Convention and is clearly not a place of safety. In addition, there is little guarantee that hotspots lead to an improvement in asylum claimants’ and migrants’ human rights conditions.

The 2017 Italy-Libya MoU was renewed only a month after an Italian newspaper, L’Avvenire, revealed that the Italian government was working closely with the head of Libya’s infamous Zawiyah coastguard, Abd al-Rahman ‘Bija’ Milad, to stop the flow of refugees arriving from the Libyan coast. In a 2017 United Nations (UN) Security Council report Bija was identified as a person being consistently linked with other human smugglers and violence against migrants. It appears that Bija’s illegal exploits were already well-known to Italy as confirmed by a report of the Italian Defence Ministry of the same year according to which Bija had been controlling the smuggling business from the west of Tripoli to the border with Tunisia since 2015. And yet, immediately after the publication of the report, Bija took part in the discussions that followed the signing of the MoU. This would suggest Italy’s possible complicity for Libya’s violations under international law. 

The Salvini Decree-Laws and their legacy

What does this tell us about Italy’s former Interior Minister’s, Matteo Salvini, legacy in relation to its draconian immigration policies? This is a pivotal question considering that in his acceptance speech as Italy’s reconfirmed Prime Minister, Giuseppe Conte spoke about breaking from the past, highlighting the government’s new approach towards migrants and stressing the need for more compassion and humanity. 

Since then, the new government’s purported aim has been to tone down heated discussions on immigration, moving away from a political and mediatic discourse based on a simplistic dichotomic opposition – open arms versus closed ports- and instead present it as a matter of routine administration. 

In the past, Italian migration policies have focused largely on deterrence measures with the objective of preventing the arrivals of migrants by sea. The incidents concerning search and rescue (SAR) operations undertaken by certain non-governmental organisations (NGOs) at the EU Central Mediterranean border throughout 2018 and 2019 are a case in point. Italy’s refusal to take in SAR vessels carrying many migrants at sea, mainly arriving from the coasts of Libya, and the criminalisation of NGOs undertaking such SAR operations, most vividly exemplified by the arrest in June 2019 of the captain of the rescue ship Sea Watch 3, Carola Rackete, has further shone a light on the lack of EU solidarity and flaws in the EU’s Common European Asylum System (CEAS). 

The previous Italian government, under its former Interior Minister Matteo Salvini, adopted rules leading to the closure of Italian ports to NGO rescue vessels with the imposition of fines of up to €50,000 and the impounding of the vessel. It also set up a fund for facilitating the return of irregular migrants and abolishing humanitarian protection status. In practice, by preventing migrants at sea from reaching Italy’s shores, these rules made it extremely difficult for potential asylum claimants to access Italian territory and thus apply for asylum. Moreover, the first Security Decree-Law has created new residence permits that can only be granted in restricted ‘special cases’. Even more problematic is the fact that the duration of stay for third-country nationals (TCNs) falling within the remit of these ‘special cases’has also been reduced. Taken as a whole, the Decree-Law reduces the level of protection and the number of potential beneficiaries.

The implementation of the Decree-Law has made it significantly harder for those persons who are already beneficiaries of humanitarian protection to retain a regular status, as their residence permits are no longer renewable on humanitarian grounds, even when the circumstances for which the residence permit was initially granted subsist. The risk is that unless these persons are able to convert their humanitarian permit into a work or study permit or, alternatively, fall under one of the new special cases, they will become irregular migrants and face repatriation. 

These changes, therefore, are particularly disquieting: humanitarian protection provided an important legal instrument that ensured the protection of TCNs who do not qualify for refugee status or are eligible for subsidiary protection, and regularised their legal status, especially of those who could not be returned to a third country. Consequently, rather than ‘solving the migration problem’ the outcome of these changes is likely to be an increase in the number of irregular migrants in Italy. The replacement of humanitarian protection with a restricted list of ‘special cases’ of residence permits undermines the right to asylum guaranteed by Article 10(3) of the Italian Constitution and raise constitutional legitimacy concerns also in relation to Italy’s human rights’ protection obligation under Article 2 of the Italian Constitution thus breaching various International human rights instruments. In a landmark ruling of 13 November 2019 rejecting the retroactive effects of the Salvini Decree-Law and requiring a comparative evaluation of the objective and subjective conditions of the asylum claimant prior to his or her arrival in Italy with his/her integration in the country, the Joint Sections (Civil Law Division) of the Italian Supreme Court of Cassation have de facto rejected the interpretation and spirit of the reform pursued by the former Minister of the Interior.  

The second Security Decree-Law also introduced rules for strengthening return procedures and facilitating the return of TCNs in an irregular situation. The first set of measures had already extended the maximum duration of TCNs’ detention in return centres from 90 to 180 days and expanded the grounds for detention in hotspots. This means that detention is being used with the purpose of determining the identity and nationality of TCNs who are in an irregular position or who have been rescued in SAR operations. These rules are nothing new. Italy’s attempts to outsource border control to Libya go back to the time of Muammar Gaddafi, former President of Libya. In August 2008, the Italian government signed a friendship treaty with Libya, granting it $5 billion to stem migrant boats from leaving Libya. Further securitisation measures were adopted between 2016-2018 by the then Interior Minister Marco Minniti who approved rules to facilitate the return to Libya of many migrants.  

Concretely, Conte has promised only minor changes to Salvini’s immigration rules included in the Security Decree-Laws, saying that the original formulation of the Security Decree-Law would be brought back into place. However, the first Decree-Law, as shown above, already provided for the imposition of fines on those rescuing people at sea and allowed the Interior Minister to prohibit the entry of humanitarian ships into Italian waters. Since the inauguration speech in early September, the new government has not significantly amended or reformulated the rules on immigration introduced by Salvini. Rather, the aim has clearly been to re-establish stronger ties with the EU. 

Italy, Europe and the externalisation of asylum and migration

At the mini migration summit on 23 September in Birgu (Malta), the Interior Minister of Italy met with those of France, Germany and Malta and agreed on a temporary redistribution system of migrants rescued in the Central Mediterranean Sea, until the Dublin system for determining the member state responsible for an asylum claim is reformed. The Malta Declaration, discussed further at the Justice and Home Affairs Council in Luxembourg on 8 October, envisages a voluntary rotation system of ports for the disembarkation of migrants and a mandatory relocation of all migrants and asylum claimants on the basis of a quota system, with a swift relocation of migrants (within a four-week time-frame). Interior ministers have agreed that once the set quota of migrants has been established, the migrants’ details will be directly inserted into the database of the country of destination, which will be responsible for any repatriation. 

The agreement has been hailed as representing the start of a new common European approach. Moreover, the more lenient policy of the new Italian government has stirred hopes for an end to the criminalisation of SAR operations carried out by NGOs. Recent events seem to point in that direction. Earlier in September 2019 Italy’s government authorised the embarkation in Sicily of an NGO rescue boat, the Norwegian-flagged Ocean Viking, operated by the French charities SOS Méditerranée and Médecins Sans Frontières. Allowing migrants to disembark from an NGO rescue vessel for the first time in months seemingly marks a break from the era of hardline immigration measures pushed by the former Interior Minister, Matteo Salvini. 

However, the rules agreed in Malta are largely a window-dressing exercise. No EU-led SAR operations have been agreed. Moreover, even though the text of the agreement has not been made public, according to leaks the scheme provides that NGOs carrying out SAR operations are to follow the decisions of the Maritime Rescue Coordination Centre (MRCC) and equally they must not interfere with the decisions of the Libyan coastguard. Realistically, this raises the possibility that, in the event of rescuing migrants at sea, an NGO vessel might find itself forced to comply with a decision of the MRCC to hand over migrants rescued at sea to the Libyan coastguard, which is what has already happened to the vessel Open Arms of the NGO Proactiva Open Arms in 2018. The NGO in question would find itself in a difficult situation, i.e. whether to comply with the decision or refuse to do so in order to protect the life of migrants saved at sea. It is now well-known that in Libya’s detention centres migrants have been subject to torture, inhuman and degrading treatment. Once again, there is a real risk that NGOs will be criminalised for their refusal to hand over migrants rescued at sea.     

In addition, as mentioned above, the 2017 Italy-Libya MoU remains in place. Effectively, this is a ‘push-back’ agreement in breach of the principle of non-refoulement and the prohibition of collective expulsions as established in the Hirsi case, interestingly a case against Italy. The EU appears to have endorsed this informal approach towards agreements with third countries, some of which clearly cannot be considered as ‘safe countries’. The migration partnership with Sudan as exemplified by the EU-Horn of Africa Migration Route Initiative (‘Khartoum Process’) is a case in point. 

These are examples of an attempt to outsource the EU’s and its member states’ obligations to respect human rights and responsibility for border control to neighbouring regions.The central focus on the externalisation of migration policies, both at national and EU levels, confirms the fact that in practice there is little intention to move towards a more human rights-based approach and the protection and integration of migrants and refugees. Tensions and disagreements among member states on how to equitably share responsibility for asylum claimants trying to reach or entering Europe have made cooperation with third countries a crucial priority. These externalisation arrangements have the potential to jeopardise the international protection regime and dilute state accountability thereby denying migrants and refugees their human rights. 

Consequently, as the underlying narrative of CEAS continues to prioritise the fight against unauthorised entry, the task of interpreting existing legislation in a manner consistent with the 1951 Refugee Convention and the European Convention on Human Rights (ECHR) is left to lawyers and judges. The SS case against Italy, before the European Court of Human Rights (ECtHR), concerning a rescue operation by Sea Watch and coordinated by the Italian MRCC, will raise issues of cooperation with the Libyan coastguard.

The ‘refugee crisis’ that the EU has been dealing with to date is thus a ‘governance crisis’ that prioritises a politics of numbers over a human rights discourse. Further arrivals of asylum claimants and migrants merely confirm and exacerbate the limitations that are inherent in the conceptualisation of CEAS, including the lack of fair responsibility-sharing. This state of affairs is also reflected in the stalled reform process of CEAS. 

To gain legitimacy Italy should repeal its Security Decree-Laws and also annul its agreement with Libya. Equally, the EU and its member states should refrain from signing further agreements with third countries possessing dubious human rights records, which have the sole purpose of curbing migration and neglect the guarantees of a rule of law approach. 

* Samantha Velluti may be contacted by email at: smv25@sussex.ac.uk

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