EU cooperation on migration with third countries: Time to address the genealogy of informal agreements in EU migration law

 

Dr Céline Hocquet, Teaching Fellow, Birmingham Law School, University of Birmingham

Photo credit: Issam Barhoumi, via Wikimedia Commons 

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.