Dr Céline Hocquet,
Teaching Fellow, Birmingham Law School, University of Birmingham
As the EU makes yet another proposal
to cooperate with a third country on containing migrants outside its territory,
it is urgent to engage with a critical analysis of the EU externalisation
policy and the use of informal cooperation informed by the historical, legal
and political context underpinning the EU external migration and asylum policy.
From the EU-Turkey to the EU-Tunisia deal?
On 11th June, the EU and Tunisia
issued a joint
statement agreeing to work together on a comprehensive partnership package.
This partnership would cover several cooperation areas, including economy,
energy, and migration. More specifically, the EU and Tunisia declared ‘the
fight against irregular migration’ and ‘the prevention of loss of life at sea’
as their ‘common priority’. As such, it addresses migrant smuggling and human
trafficking and bolster border controls and migrants’ registration and return. In
exchange for Tunisia’s cooperation, the EU offers 100
million euros for border management, search and rescue, anti-smuggling and
return operations in addition to a 1 billion euros investment plan for Tunisian
economic development, including projects in the digital and energy sectors.
To those familiar with EU
migration law and policy, this news will, no doubt, sound familiar.
Back in March 2016, the European
Council published a press release following a meeting with representatives from
the Turkish government. The EU-Turkey
Statement – widely known as the EU-Turkey deal – traded the containment and
return to Turkey of all irregular migrants arriving in Greece in exchange for 6
billion euros of EU funding.
At the time, arrivals of migrants
to Europe crossing the Mediterranean Sea were characterised by the EU as a
‘crisis’. Emphasis was put on the exceptional nature of migration flows, the
extraordinary numbers of migrants reaching European shores and the severe loss
of lives during sea crossings. In this way, the situation faced by the EU and
its member states was presented as critical and unprecedented. Its characterisation
as a ‘crisis’, highly questioned by researchers, highlighted potential threats
to the stability and security of the EU and/or its asylum system. Swift and
exceptional measures were, therefore, necessary to put an end to the ‘crisis’ situation
and its disruption. Such measures focused on further controlling irregular
migration and EU external borders notably by externalising controls to third
countries and third actors.
The EU-Turkey Statement was
rapidly considered a blueprint for future EU migration and asylum policy developments
by swiftly reducing migrant arrivals from Turkey to Greece. Despite criticisms
raised against the precedent set by its informal nature and the threats caused
to migrants and asylum seekers’ rights (see for instance on this blog here
and here),
similar non-binding and opaque partnerships, such as the 2017
Italy-Libya memorandum of understanding or the 2016
Afghanistan-EU Joint Way Forward, were signed between the EU or its member
states and third countries to facilitate the return and/or containment of
unwanted migrants.
Investigating the lineage of EU informal cooperation on migration
In my PhD thesis, I focus on
this development. Namely, the EU’s increasing use of informal cooperation
arrangements with third countries to control migration. More specifically, my
research focused on investigating the implications of characterising the
arrivals of migrants to Europe as a 'crisis' for the EU migration and asylum
law system. Rather than focusing on informal cooperation developed as a result
of the so-called ‘crisis’, I argue for the need to contextualise these
developments within the EU migration and asylum law system as a whole. Only by
doing so are we able to step away from crisis-driven considerations of
emergency and security and understand the genealogy of the EU’s use of informal
cooperation to externalise migration and border controls.
Using an iterative approach, I
looked at the emergence and early development of the EU migration and asylum
law system, especially some of its key measures. My analysis shows that
informal cooperation such as the EU-Turkey Statement, the Afghanistan-EU Joint
Way Forward, or the Italy-Libya Memorandum of Understanding, is far from being
the result of unprecedented circumstances specific to 2015-2016 requiring swift
and exceptional measures. Instead, they fit within the genealogy of the EU
external migration and asylum policy. In my analysis, I identified a number of
long-lasting tendencies that underpin the EU migration and asylum law system
throughout its evolution. One of these tendencies is the use of informal and
diversified cooperation frameworks and measures circumventing regular procedures
and fundamental rights guarantees.
The legacy of the intergovernmental era
The emergence of a common
approach to asylum and migration law at the then-EEC level shows the
significant role of informal cooperation between member states. Indeed, well
before the 2015 crisis member states developed cooperation informally among
themselves using intergovernmental cooperation. A particular example is the
cooperation developed within the Trevi Group. An ad hoc group of interior
ministers initiated by the 1975 European Council in Rome, the Trevi group
initially focused on member states’ cooperation regarding counter-terrorism
before its scope expanded to asylum and immigration in the 1980s. This informal
cooperation led to the adoption of several soft law measures in the field of
immigration and asylum with long-lasting impacts on the common migration and
asylum law system. The Dublin Convention and acts related to its
implementations were, for instance, originally agreed upon as part of this ad
hoc group before being incorporated into the acquis communautaire and
formalised by Maastricht. Still, this shows how fundamental informal and opaque
cooperation has been in shaping the common migration and asylum policy. The use
of informal cooperation circumventing existing frameworks is not uncommon in
the field of EU migration and asylum law. Informal cooperation agreements with
third countries are therefore not the result of exceptional circumstances in
2015-2016. Rather, they fit within the legacy of the common migration and
asylum policy and of how cooperation in these fields emerged in the first
place.
Tampere and the comprehensive approach to migration
Although the EU cooperation on
migration with third countries initially focused on entering into formal EU
readmission agreements, the use of informal and diversified tools is not
recent. Back in 1999, the Tampere European
Council called for a comprehensive approach to external migration policy.
This meant diversifying external measures related to migration by using other
tools of EU external action and by addressing ‘political, human rights and
development issues’ in third countries as means to reduce immigration to the EU.
Signed on 23 June 2000, the Cotonou
Agreement is considered the first example of the diversification of EU
externalised migration and border controls. This agreement was primarily focused
on EU development cooperation with African, Caribbean and Pacific states. Yet
it also included readmission clauses to facilitate the return of migrants
irregularly staying in the EU. It corresponds to the widening of EU
migration-related cooperation to other aspects of external action. The allocation
of 6 billion euros funding in exchange for Turkey’s cooperation on migration
containment is therefore not a practice unique to the crisis context at the
time of the EU-Turkey deal.
The EU’s Global Approach to Migration and Mobility and political
agreements
Following the adoption of the Global
Approach to Migration and Mobility (GAMM) in 2011, the EU introduced a new
tool to develop its cooperation with third countries on migration: mobility
partnerships. These political agreements are non-binding and aim at providing
‘tailor-made’ partnerships addressing shared concerns between the EU and its
partner. They provide significant flexibility in terms of how to conduct the
cooperation and the areas covered and contain little guarantees for fundamental
rights. Therefore, although informal and opaque cooperation with third
countries circumventing human rights and ordinary procedures was presented as a
shift in the EU external migration policy justified by the 2015 crisis, my
findings suggest otherwise. The EU’s use of non-binding and flexible tools to
develop cooperation on migration and border controls with third countries
pre-dated the crisis. The adoption of such informal agreements from 2015
onwards, therefore, constitutes a continuation of pre-existing practices.
Conclusion
This brief overview shows the
significance of genealogy when analysing developments in the field of EU
migration and asylum law. Crisis-focused analyses of these developments only
provide a limited understanding as they ignore the underpinnings and historical,
political, and social contexts in which these arrangements operate.
Contrastingly, contextualising informal cooperation with third countries (such
as the EU-Turkey deal or the emerging negotiations between the EU and Tunisia) within
the broader evolution of the EU migration and asylum policy enables us to
distance ourselves from the crisis or exceptional circumstances used to justify
such measures. In doing so, it reveals that far from being policy innovation
driven by emergency and security considerations, informal arrangements and
diversified tools to externalise EU migration and border controls are a
long-lasting legacy of earlier developments in the EU migration and asylum
policy.
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