Blog by Berfin Nur Osso, a doctoral candidate at the Faculty of Law, University of Helsinki.*
On 4 April 2023, the European Court of Human Rights (ECtHR) communicated a case concerning the conditions of the ‘hotspot’ facility in the Greek island of Samos, officially known as Reception and Identification Centre, and the treatment of a pregnant refugee woman in the center. The Court unanimously found that the Greek authorities violated Article 3 (prohibition of torture) of the European Convention of Human Rights (ECHR) given the undignified, ‘precarious and unhygienic conditions’ where certain refugee populations were forced to endure (paras. 15 and 19). The A.D. v. Greece judgment is not the first time Greece was found to be in violation of Article 3 ECHR given the precarity of its reception conditions, hosting thousands of refugees in cramped spaces like in Samos (see e.g., the M.S.S case).
Instead of ameliorating the infamous hotspots, with full financial and operational support by the EU, Greece constructed new Closed Controlled Access Centres (CCACs) on the five Greek islands and inaugurated three of them in 2021. In these new camps, refugees are kept in ‘de facto detention’; thus, they are literally ‘closed and controlled’. They are ‘contained in prison-like facilities’, unable to move freely or build a life of their own in their own right, continuously watched through various technologies, private security, and the police. According to the Council Conclusions adopted in June 2018, the new centers would simply distinguish ‘irregular migrants who will be returned’ and ‘those in need of international protection’. This is indeed a discourse that the EU and member states have been uttering since the early 1990s, but most particularly after the ‘migration crisis’ in 2015-2016. In stark contrast to how some ‘deserving’ refugees, such as Ukrainians fleeing the Russian invasion, were warmly welcomed since February 2022, exclusionary, horrid, and carceral spaces like hotspots are reserved for the ‘undeserving’, people coming mainly from countries in the Middle East, Africa, and Asia. It is within the hotspots located at the EU’s external borders, member states such as Italy and Greece categorize certain refugee populations as ‘irregular migrants’ and spatially segregate them in the ‘spaces of exception’.
In what follows, I discuss how the EU and member states, particularly Greece, manage certain refugee populations spatially (in expanded spaces, both within and outside the EU territory) and temporally (with measures extended in time) using ‘volatile borders’. Especially following the so-called ‘migration crisis’ in 2015, in addition to externalization that manages refugee mobility outside the EU territory and jurisdiction, internalization measures are also increasingly enforced within this territory. Dissecting externalization and internalization measures with reference to the theories of bordering helps us better understand how states enforce various structures, such as their laws and policies (legal borders) and anti-immigrant discourses (social borders) alongside border walls and fences (physical borders). In this sense, I claim that we need to consider internalization and externalization as a holistic ‘bordering process’. This necessitates us to examine the enforcement of these measures not as single rules, regulations, or court decisions but as practices and processes enforced at different levels and by different legal/political actors. Together with externalization, internalization manages refugees’ im/mobility, their access to protection and rights, and their life trajectories at an immense scale. I argue that state attempts aimed at monitoring and controlling the mobility of certain refugee populations whenever and wherever they are located through physical and legal borders often arise from the othering of these refugees through social borders.
Unpacking the Physical, Legal, Social Borders in the EU’s External Frontiers
The transformation of Greek islands into hotspots and now into closed and controlled centers is only the tip of the iceberg regarding what has been ongoing particularly since the 2015 migration phenomenon and the subsequent launch of the EU-Turkey Statement of 18 March 2016. The arrival of over a million refugees at the EU’s external maritime borders alarmed the EU and member states, resulting in even stricter measures in the coming years vis-à-vis potential refugees coming from certain regions of the world. Since then, Greece constructed 35 kilometers of five-meter-high steel fence along its Turkish land border at the Evros River. It now plans to double the height of this fence and expand its length up to 192 kilometers. Moreover, Greek authorities, the police, and coast guards have been accused of severe cases of ‘pushbacks’ at the Greek-Turkish land and maritime borders, using violent and disproportionate force to expel protection seekers towards the Turkish territory without giving them the opportunity to request asylum.
In addition to the reinforcement of border barriers and pushbacks, the Greek authorities also adopted and implemented a series of restrictive legislation (or, legal borders). First, the EU-Turkey Statement implied that Turkey is a safe third country (STC) for Syrian refugees transiting through Turkish territory into the Greek islands. With that, partly under the EU’s pressure, Greek authorities started to examine asylum applications lodged in the hotspot islands in admissibility procedures. Second, the Greek authorities started to impose a ‘fast-track’ border procedure alongside a geographical restriction barring refugees from departing to the Greek mainland. In other words, asylum applications lodged in the islands are swiftly assessed outside regular procedures and without regard to the substance of claims, hence nearly automatically declared ‘inadmissible’. Additionally, in July 2021, the Greek Ministries of Migration and Asylum (MoMA) and Foreign Affairs adopted a joint decision that formally declared Turkey as a STC, extending its scope from Syrian refugees to the refugees of four additional nationalities, Afghan, Bangladeshi, Pakistani, and Somali. Although Turkey stopped the readmission of third-country nationals from Greece in March 2020, Greece has been declaring asylum cases lodged by these refugees as inadmissible under the STC concept. Consequently, many refugees in Greece become protracted for many years awaiting their asylum decisions despite ‘accelerated’ procedures or without legal recognition as refugees and outside the Greek asylum system. In any case, they remain in ‘legal limbo’ with the goal of the authorities to expel them from the Greek territory towards Turkey or their countries of origin.
What is more perplexing, the reinforcement of the territorial borders of states with physical border barriers and their expansion through the use of legal borders are the result of global mobility inequalities emanating from another set of legal borders. In the first place, ‘remote control’ practices or ‘pre-borders’, such as visa regimes, carrier sanctions, readmission agreements, the deployment of immigration liaison officers, enforced in the territories of third states distinguish between ‘deserving’ refugees and others. In this case, ‘others’ are subjected to comprehensive visa policies, as part of EU’s common list of countries whose citizens must obtain visas. When they are denied visas or entry before they arrive at the EU territory or returned to third countries under readmission agreements after they have arrived, they become compelled to seek perilous journeys through smugglers to reach (again) the EU territory for safety and protection. In return, they are labelled as ‘irregular migrants’ merely because they have no other choice but to travel to the EU outside safe and legal passages that they were denied by the EU member state authorities. After they arrive at the EU’s external maritime borders from countries in the Middle East, Asia, and Africa due to violence or conflict, as in the case of Greece, they are automatically confined and contained in the hotspot camps despite having valid claims for their legal recognition as refugees. Similarly, those who travel by land and arrive at the Greek-Turkish land border face incommunicado detention (whereby they are unable to communicate with others) in inhuman and degrading conditions or summarily and violently expelled by the police.
Not only that, though, this set of exclusionary, crisis-driven measures is deeply rooted in discourses contained in legal and policy documents, as well as often enunciated by European and Greek law- and policymakers. As a domino effect amid the 2015 migration crisis and with the change of government in Greece in 2019, anti-immigrant discourses among state officials in the EU and Greece have been on the rise, enacting symbolic, social borders. Social borders often exacerbate the plight of certain refugees as containable and ‘deportable’ masses with racial and discriminatory undertones that distinguish white refugees, such as Ukrainians, and ‘others’. After the Russian invasion in Ukraine, for instance, the MoMA Minister Notis Mitarachi stated in the Greek Parliament that Ukrainians are ‘real refugees’ while Syrians and Afghans are ‘irregular migrants’. This statement appeared to be in line with what Mitarachi expressed earlier regarding the Afghans fleeing the Taliban takeover in 2021: ‘Greece [will not] accept being the “gateway for irregular flows into the EU,” and … considers Turkey to be a safe place for Afghans’ (emphasis added). Besides, certain refugee populations who are categorized as ‘irregular migrants’ are often otherized through their differentiation that hinges on ‘us/them’ dichotomy. Similarly on the Afghanistan situation, French President Emmanuel Macron highlighted that ‘Europe alone cannot shoulder the consequences” of the situation in Afghanistan and ‘must anticipate and protect ourselves against significant irregular migratory flows’ (emphasis added).
The same dichotomous discourse, namely the distinction of ‘us’ versus ‘them’ and of ‘genuine refugees’ and ‘irregular’ or ‘economic migrants’, has been enunciated also in the EU legal and policy documents since the 1990s. From London Resolution on Manifestly Unfounded Applications in 1992 to the above-cited Council Conclusions adopted in June 2018 and the New Pact on Migration and Asylum (NPMA) in 2020, EU legal and policy discourse has been revolving around ‘irregular migrants’ embodied as victims or villains. While the ‘victim’ subjectivity ensures the enforcement of policies aimed at saving lives and choking refugees ‘without letting die’ in the camps or letting some others die through pushbacks, the ‘villain’ personification is used to target certain refugee populations as scapegoats, criminals, or terrorists vis-à-vis European security and identity. Perhaps too predictable, these discourses otherize refugees coming from the developing world by categorizing them as invaders or ‘pawns’ who are ‘flowing irregularly’ toward the EU’s ‘gates’, or toward the so-called ‘Fortress Europe’, and deportable to a country which is not safe at all for refugees. In this sense, European officials prima facie label by their discourses that these refugees are undeserving of protection in the EU territory. The outcome of social borders othering certain refugee populations is manifested in the physical borders constructed and the legal borders enforced against these refugees. In this sense, restrictive legislation and practices targeting specific refugees in the EU, which result in their containment at the hotspots, their expulsion from the EU asylum system and its territory, represent the pervasive agonism between ‘us’ and ‘them’ and the so-called combat against ‘irregular flows’.
‘Volatile Borders’: Situating B/ordering in Internalization and Externalization
Seen in this manner, borders in the EU context appear to be multifaceted, ubiquitous, and volatile, targeting protection seekers whenever and wherever they are located. Using externalized measures, including visa regimes and readmission agreements, and internalized measures, such as the STC concept, border procedures, and hotspots, the EU and member states seek to target only certain refugees, not Ukrainians, both within and outside the EU territory. Additionally, refugees categorized as ‘irregular migrants’ are under continuous watch: the denial of their visas, their irregular entry or stay in the EU territory, or whether they applied for asylum in an EU Member State are registered through digital technologies, such as Visa Information Sytem (VIS), Schengen Information System (SIS II), and Eurodac fingerprinting database. They are also constantly monitored through surveillance technologies integrated into border fences, hotspots, and the new CCACs. This proactive and differentiated implementation of migration management measures that target different refugee populations in different geographies necessitates us to conceptualize borders as performative and transformative processes. These processes, as van Houtum and van Naerssen discuss in their work in 2002, manage the im/mobility of certain refugees through, what they call, ‘bordering’ and ordering. By these concepts, they understand ‘borders’ as ‘a social practice of spatial differentiation’ as opposed to fixed demarcation lines in space and time (p. 126). With the practices of (b)ordering, they argue, states attempt to govern (order) human mobility and immobility in ‘governable spatial units’, such as in third states or refugee camps (p. 128).
Following on the concept of b/ordering, the phenomenon of borders ‘on the move’ has been picked up by several scholars in the past two decades. Amilhat-Szary and Giraut, for instance, use the concept of ‘mobile borders’ and ‘borderities’ to define how borders are enforced to block access to the state territory through ‘the extreme differentiation of personal crossing regimes’. By coining the concept of ‘shifting border’, Ayelet Shachar argues how the law itself is instrumentalized by the state authorities to manage refugee im/mobility both within and beyond the physical borders of states. When used within a state’s territory, the shifting border creates a ‘legal fiction’ where protection seekers are considered not to have entered that territory, such as through EU border procedures as Vasiliki Apatzidou discussed earlier in this blog.
Building on these relevant and illuminating insights, my understanding of b/ordering goes beyond these approaches. As I exemplified above by illustrating the uses of physical, legal, and social borders in the Greek context, I use the term ‘volatile borders’ that in/visibly float in time and space. In this sense, I understand borders not only as physical barriers, such as border walls, fences, or pushbacks, that target the act of border crossing or as measures creating ‘legal fictions’. I use this term also, first, in conceptualizing migration management measures which indeed create exceptional legal spaces in their physical sense through legal borders, such as the hotspots and CCACs and the use of concepts such as STC in these spaces. These spaces are indeed enacted through the enforcement of law, spatially segregating certain refugee populations and excluding them from their fundamental rights. In such spaces, state authorities implement different laws to target different refugee populations through their legal categorization, such as ‘irregular migrants’, and locate these populations to different geographies for the implementation of these laws, such as enforcing the STC concept and fast-track border procedures in the Greek hotspots. Second, I use this term also when dissecting the social borders that otherize certain refugees and underlie both the enaction of physical borders and the use of legal borders (see also the works by van Houtum and van Naerssen and by van Houtum on othering). Understanding borders as volatile processes helps us dissect migration management as expanding in space (internally and externally) and extending in time with reference to migration ‘crises’.
Using bordering practices, the EU and member states seek to manage refugee im/mobility spatially and temporally. As I noted above, spatial management of migration involves the shifting of borders outwards beyond the territory of refugees’ desired destinations through externalization and their ‘bleeding in’ inwards within that territory with internalization. In doing so, the EU and member states modulate the spaces where refugees can seek asylum, enjoy their rights, and integrate into host societies. Thus, in ‘the changing geographies of inclusion and exclusion’, the boundaries of asylum and rights also shift in contradiction with the obligations of states, including their obligation of non-refoulement.
Particularly in the European legal context, externalization has been widely researched by refugee law scholars since the early 1990s. However, a considerable share of bordering that takes place within the territorial borders of states with the rise of internalization has been overlooked. With regard to migration management in the EU, Thomas Spijkerboer signaled in 2018 about the increased uses of internalization measures alongside externalization. Using the term ‘proliferation’, he claimed that ‘policies are increasingly aimed at creating effects outside as well as inside the territorial borders of Europe’ (p. 217). In this sense, ‘the combined processes of externalization, internalization and reinforcement of border zones themselves can best be understood as forming part of an overarching process of proliferation’ (p. 217).
Together with externalization, internalization not only categorizes certain refugees and spatially manages their im/mobility, but also modulates their access to protection and rights and their life trajectories at an immense scale. With intra-EU transfers to the member states at the external borders under Dublin rules, transfers to the hotspots and from islands to mainland and vice versa under the EU-Turkey Statement, and now from hotspots to the CCACs, the im/mobility of certain refugees is constantly monitored and controlled until they are ultimately expelled to non-EU states. In this sense, undesired refugees are ‘excluded not merely from European territory, but also from European law’. Refugees shuttling between different legal spaces within and beyond the EU territory are also unable to build their lives in the countries that they consider ‘safe’, such as in EU member states, until they finally stop being ‘on the move’.
With reference to past crises, as in the case of the 2015 ‘migration crisis’, internalization and externalization measures manage certain refugee populations also in extended periods. For instance, the impact of the EU-Turkey Statement, adopted as ‘a temporary and extraordinary measure’ amid the 2015 crisis, is sustained in Greece with a set of legal and policy decisions made and enforced in the past years. Similarly, with the transformation of hotspots into the CCACs, EU’s hotspot approach that blossomed as ‘provisional measures’ in response to ‘crisis situation in the Mediterranean prompted …[by] the exceptional migratory flows’ has been transformed into a virtually permanent solution. By the same token, as hinted in the EU Home Affairs Council meeting on 9 June 2023, the NPMA, that cites the term ‘crisis’ 28 times, is now likely to be enacted as an EU-wide asylum and migration agreement. In this manner, exceptional measures othering particular refugee populations, targeting them with draconic and restrictive regulations and practices, and segregating them in exceptional spaces are justified and normalized in the EU context.
The border is ‘in the air’: it is volatile, both visible and invisible. Dissecting borders as mutable entities helps us understand the EU’s internalized and externalized migration management measures as a bordering process expanding in space and extending in time. It also enables us to see what this process may implicate for people who constantly try to cross or overcome the borders as sites of power, contestation, and control, and how the borders are continuously transformed in response to perceived migration crises.
In stark contradiction to the hospitality offered to Ukrainian refugees, the amplified hostility (or ‘hostipitality’ as Derrida called) towards undesirable refugees in the EU context, mainly since 2015, has resulted in the increased sophistication of volatile borders in the form of physical, legal, and social boundaries. Through volatile borders, the EU and member states otherize unwanted refugees in different legal and social categories and attempt to monitor and control every step of these refugees whenever and wherever they are located. Citing the Council of Europe Commissioner for Human Rights Mijatović’s words after her visit to Greece in 2019 as noted in the ECtHR’s A.D. v. Greece case, the plight of refugees coming to the EU’s borders ‘no longer has anything to do with the reception of asylum seekers. This has become a struggle for survival’ (para. 17). With volatile borders, refugees are not only immobilized in these exceptional and carceral spaces or within the so-called safe third states. Refugees’ resistance vis-à-vis EU’s borders is also debilitated, and their time and future aspirations are ‘stolen’ through their expulsion from the EU asylum system and its territory.
* Berfin Osso’s doctoral research investigates the interplay between migration management and the political agency of refugees with theoretical and empirical inquiries at the EU’s Greek-Turkish external border. She is also available on Twitter at @bossoloji.
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