The Missing Piece in the European Agenda on Migration: the Temporary Protection Directive

Meltem Ineli-Ciger, PhD Candidate, University of Bristol Law School[1]

The EU’s Temporary Protection Directive entered in force in 2001 and was the first EU directive on international protection adopted after the Treaty of Amsterdam entered into force in 1999. The Temporary Protection Directive has introduced a practical and efficient framework to deal with mass influx situations by formalising and harmonising the protection standards to be introduced in mass influx situations. Yet, the Directive has so far never been implemented; the Council considered activating it when the number of asylum-seekers from Iraq and Afghanistan rose in the beginning of 2000s but no decision finally ensued (see Klug, in Further Reading). Similarly, the Directive was not implemented following the substantial influx of asylum-seekers fleeing the Arab Spring conflicts which overwhelmed the asylum capacities of the Member States at the external borders of EU (see Nascimbene and Di Pascale, in Rurther Reading). As for the recent migrant crisis in the Mediterranean, there is no mention of the Temporary protection directive in the European Agenda on Migration. This post argues that the Temporary protection directive could have been, and still can be, implemented as part of a more effective response to cope with the irregular arrival of mixed flows through Mediterranean and it should be incorporated to the EU Agenda on Migration (for the latest on that Agenda, see here).

Lack of implementation of the Directive in the past 14 years

The Temporary Protection Directive has an activation mechanism; for the Directive to be activated, in other words, for it to be implemented, the existence of a mass influx situation has to be established by Council decision adopted with a qualified majority (Art 5(1) of the Directive). The activation process of the Directive can be triggered by a Member state. Upon a State’s request, the Commission can propose activating the Directive. Nonetheless, such a proposal has to be discussed and adopted by the Council with a qualified majority vote (recital 14 and Art 5 of the Directrive). While the European Commission is the only EU organ that can submit such a proposal, and is the only organ that has the right to propose specific groups that will receive temporary protection, the Council has the exclusive authority to determine these groups (see Arenas, in Further Reading).

The Directive defines such a mass influx situation as the “arrival in the community of a large number of displaced persons, who came from a specific country or geographical area, whether the arrival in the Community was spontaneous or aided, for example through an evacuation programme” (Art 2(d)). Although the existence of a mass influx is the key for the activation of the Directive, the term ‘arrival of large number of displaced persons’, formulated to indicate the existence of mass influx, is very vague (as Arenas notes). However, the Commission proposal can be explored in order to clarify the meaning of the term ‘mass influx’. This notes:

Influx must be from the same country or geographical area […] the number of people must be substantial[…]the gradual arrival of asylum-seekers, refugees or displaced persons from a single country or region of origin cannot in itself justify the introduction of such temporary protection. However, a point may come at which the movement of people, gradual at the outset, intensifies in such a way that it becomes massive and the normal asylum system is unable to absorb the flow.

In view of this statement and taking into account that one of the initial purposes for drafting the Directive was “avoiding a total bottleneck in national asylum systems”, the inability of the national asylum system to cope with large groups of people seeking refuge is an important indicator of the existence of a mass influx situation. As seen from the Proposal, the possibility of cumulative influx is not disregarded by the Commission. Thus, the gradual arrival of persons seeking refuge to the member states when it disrupts the operation of national asylum systems can indicate the existence of a mass influx situation.

Although these conclusions can be drawn in view of Article 2 of the Directive and the Commission proposal, it should be noted that, until now, the Directive has not been activated when the asylum capacities of Greece, Italy and Malta have been overwhelmed by the arrival of asylum seekers from Iraq, Syria and North African states (see Nascimbene and Di Pascale). I believe two reasons can, so far, be identified for the non-implementation of the Directive.  The first is the difficulty in securing a qualified majority vote in the Council in the face of an influx situation which only seriously affects a limited number of Member States. A qualified majority decision is not easy to achieve when a situation seriously affects only a limited number of Member States. The second is the belief shared by many Member States that activation of the Directive may create a ‘pull factor’ for migrants seeking entry to the EU (see Klug and Ineli-Ciger). Having said that, non-implementation of the Directive so far shows that the activation of the Directive is, more than anything, a political process which depends on the agreement of the majority of the Member States.

Can the Temporary protection directive be implemented to cope with mixed flows?

Under Article 2 of the Temporary protection directive, people fleeing armed conflict, violence, and systematic human right violations are among those intended to be protected within the Directive. In addition to this, the Commission proposal refers to the Directive as a document to deal with the large-scale influx of ‘asylum seekers’. Among mixed flows, there is a substantial number of persons who would fall under the category of Article 2 of the Temporary protection directive. Thus, as long as the Council determines that arrival of the discussed mixed flows constitutes a mass influx situation, I believe there is no obstacle for the Directive to be invoked to cope with mixed flows or to protect a smaller subcategory of persons such as those fleeing armed conflict, violence and systematic human rights violations.

Do the mixed flows arriving by sea in Europe constitute a mass influx situation?

Thousands die every year in the Mediterranean Sea trying to reach European shores. According to the UNHCR, “[i]n mid-April 2015, 800 people died in the largest refugee shipwreck on record, highlighting a staggering increase in refugees and migrants dying or missing at sea”, and [vii] the number of refugees and migrants arriving by sea in Europe was 219 000 in 2014 (137,000 as of June 2015). It is crucial that we acknowledge that these people are not mere economic migrants but many among those are fleeing war, violence and human rights violations. These numbers may seem insignificant compared to two million Syrians being protected in Turkey. Yet, we need to also take into account that reception and asylum capacities of Greece and Italy.

The collapse of the Greek asylum system and the consequences of this collapse are evident from the judgments in N.S  and M.S.S. v. Belgium and Greece. In one of its recent judgments (Tarakhel v. Switzerland, discussed here and here), the ECtHR decided that, although the situation in Italy is not the same as Greece, it raises serious doubts as to the current capacities of the Italian asylum system.[viii] As evident from these judgments, the lack of solidarity in the EU in addition to the unfair asylum distribution criteria provided in the Dublin Regulations have increased the asylum pressure on states including Greece, Italy and Malta and, as a result, the reception capacities and quality of protection offered in these states to asylum seekers have diminished.

States at the external borders of the Union are under constant pressure and have been seeking assistance from the EU to find solutions to these arrivals. So far, the EU has, however, not been able to formulate and implement a comprehensive plan to secure the safety of irregular migrants and refugees arriving by boat and some Member States cannot provide persons seeking refuge adequate reception conditions as prescribed by EU Law. Considering the high number of persons arriving at the shores of Italy and Greece irregularly by sea to seek refuge each month and the inadequate reception and asylum capacity of these states, can we still say there is no mass influx situation? No we cannot. In light of these points, it is possible define the ‘mixed flows’ arriving by sea in Europe as a mass influx situation.
         

The added value of implementing the Temporary protection directive to cope with the mixed flows arriving by sea in Europe

The added value of implementing the Temporary Protection Directive to cope with the irregular arrival of ‘mixed flows’ lies within its flexible eligibility criteria and its broad personal scope; its fine harmonization and formalization of the protection standards to be offered to temporarily protected persons, as well as its burden sharing mechanism.

Given the categories of persons who may fall within the scope of the Directive – i.e., refugees and persons fleeing armed conflict, violence, and human rights violations – it can be concluded that the Directive has the potential to protect a broad range of individuals coming to the EU when a mass influx situation occurs. Therefore, if the Temporary protection Directive is activated, refugees and persons fleeing armed conflict, violence and human rights violations can be protected within the Directive’s framework as a group for up to three years.

The Directive provides a temporary protection status that confers temporary residence permits, emergency health care, shelter, social benefits, education for minors as well as limited access to the labour market and a limited right to family reunification. And these entitlements suggest better protection standards compared to what asylum seekers and migrants receive at present in Greece and Italy (see MSS and Tarakhel). A substantial number of the Member States, instead of implementing temporary protection under a formalized regime, have so far opted to introduce national temporary protection statuses. A European Migration Network (EMN) Study indicates that, Austria, Belgium, Greece, Ireland, Italy, Poland and Spain grant temporary protection under national statuses. Under these national statuses, there are many discrepancies, especially in the level of rights provided to the status holders. The EMN Study also notes that, the standard of protection provided under these national temporary protection statuses has been lower than the ones prescribed by the Temporary protection directive. In the light of this, implementation of the Temporary protection Directive can improve protection that is afforded to persons fleeing armed conflict, violence and human rights violations in Europe.

On a positive note, the Temporary protection directive has its own burden sharing mechanism. Article 25 of the Directive allows for the transfer of protection beneficiaries between Member States following a voluntary offer from one of them and provided the transferees give their consent to such a transfer. Under Article 25 of the Directive, in cases when the declared capacity of a State is exceeded because of the number of persons who have arrived on its territory, the Council can take appropriate action and provide additional support to those Member States that are affected more than others. The Council is, in this respect, free to introduce any measure with regard to burden sharing. The efficiency and success of the burden sharing mechanism established under the Directive will, therefore, greatly depend on the measures that the Council adopts and how well these measures are executed by Member States. Yet, if the Council adopts measures necessary to ensure equitable burden sharing, the burden sharing mechanism of the Directive may offer a more equitable and efficient system than the Dublin system. Thus, Temporary protection directive can lead to more effective burden sharing between member states.

Conclusion

Many authors acknowledge that implementation of the Temporary protection directive could have improved and still can improve the response of the European States as well as the EU to the refugee crisis in Iraq and Syria, and implementation of the Directive could also provide better protection for Iraqis and Syrians fleeing war and violence (see Akram et al and Orchard et al). Agreeing with their view and advancing this idea,  I argue that implementation of the Temporary protection directive can help member states to more effectively cope with the ‘mixed flows’ and provide better protection for persons in need of international protection among mixed flows arriving by sea in Europe. Having said that, the Directive alone will not be able to solve all the problems related to mixed flows. However; it can be a part of the solution and provide important benefits to persons seeking refuge in the EU.

In the light of this added value of implementing the Temporary Protection Directive to cope with the mixed flows arriving by sea in Europe, I argue that the Temporary protection directive should be part of the EU Agenda on Migration.

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[1] This post builds on M. Ineli-Ciger, ‘Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and its Lack of Implementation in View of the Recent Asylum Crisis in the Mediterranean’ in C. Bauloz, M. Ineli-Ciger, S. Singer, V. Stayanova (eds), Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common Asylum System (Brill/ Martinus Nijhoff Publishers 2015) 225.

Further Reading 

A. Klug, ‘Regional developments: Europe’ in A. Zimmermann (ed) the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (OUP 2011)133.

B. Nascimbene, A. Di Pascale, ‘The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in North Italy from North Africa’ (2011) 13 EJML 346, 347.

N. Arenas, ‘the Concept of ‘Mass Influx of Displaced Persons’ in the European Directive Establishing the Temporary Protection System’ (2005) 7 EJIL 447.

Barnard & Peers: chapter 26
Photo credit: IOM

Fact-checking Nigel Farage: Will the EU’s asylum policies admit half a million terrorists?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party, argued that the EU’s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ‘Islamic State’ (Daesh) terrorists to send such killers to the EU via means of smuggling routes, and demanded that David Cameron veto the EU plans.

Do these claims make sense? Not in the slightest. First of all, the EU policy, as I discussed last week, is essentially to reaffirm the status quo.  The current limited maritime surveillance missions will be expanded, although it is not clear if they will amount to fully-fledged rescue missions. This probably means that more people will reach the EU, but this will only be for the reason that fewer of them will drown en route.

Once in the EU, they will be able to make claims for asylum – but that is no different to the current law. The EU’s plan does not involve any changes to EU asylum legislation; it simply calls on Member States to apply those laws.  The EU did commit to some form of direct resettlement of refugees from third countries – but EU leaders could not even agree on the tiny number of 5,000 refugees to be settled next year.

Farage would prefer a policy of returning people to the countries they left. In fact, asylum-seekers can already be returned to their countries of origin or transit, if it is clear when examining their application that those countries are safe. But in accordance with the UN (Geneva) Refugee Convention – which UKIP purports to support – they cannot be returned to an unsafe country. Libya, for instance, is clearly unsafe: there are widespread whippings, beatings, electric shocks and hangings of migrants. In any event, asylum-seekers who prove to be terrorists must be denied refugee status or other forms of protection status, as the CJEU has confirmed.

Farage demands that David Cameron veto the EU’s plans, but that simply isn’t possible, because the UK has an opt-out from EU asylum and immigration law. We can choose not to participate, and indeed the UK has already chosen not to participate in any of the second phase EU asylum measures, except for those which transfer asylum-seekers from the UK to other Member States. We can choose not to participate in any future measures too – although as noted already, the EU is not even planning any new asylum laws in response to the deaths. Since the UK has an opt-out, it does not have a veto. But in fact, no Member State has a veto on EU asylum policy. Most EU immigration and asylum law has in fact been subject to qualified majority voting since 2005. (Laws on legal migration were subject to unanimous voting until 2009; but the EU’s plan does not address legal migration issues).

As regards border control operations in particular, the UK doesn’t participate fully in the EU’s border control agency, Frontex. In fact, according to the EU Court of Justice, legally we can’t participate in Frontex, since we don’t participate in the full Schengen system of abolishing internal border controls. Instead we have an informal arrangement, for instance supplying some hardware to assist with the expanded surveillance operations. But even that sort of informal arrangement is under challenge in a case pending before the CJEU.

In some ways, Farage’s own policy runs its own risks. He has argued that Christians in particular should be admitted as refugees into the EU. As I have pointed out, this again violates the Geneva Convention that UKIP purport to support, since that Convention requires non-discriminatory application on grounds of religion, and it would also be unfeasible to distinguish between Christians and Muslims during rescue at sea. But if Christians are being resettled directly from areas afflicted by Daesh, the UKIP policy would provide the perfect opportunity for ISIS fighters to pretend to be Christian as a way to ensure entry into the EU.

As an assessment of terrorist methodology, Farage’s claims are also suspect. The bulk of Daesh atrocities have not been carried out in the EU, but in Syria and Iraq, as well as by affiliated groups in Libya and Nigeria.  Most of the people who have been linked to Daesh in Europe have been EU citizens who travelled to parts of the Middle East to participate in atrocities. Any migrants who were rescued from boats or who were resettled directly from conflict areas would presumably be disarmed of any weapons they were carrying en route. Of course, they might obtain weapons once they reached the EU; but since Farage is an outspoken critic of gun control, he is part of the problem, not of the solution, to that issue. As for the figure of half a million Daesh fighters coming to the EU, that's 20 or 30 times the CIA's estimate of the total number of all Daesh fighters.

Finally, Farage argues that the EU has cynically used the migrant deaths crisis to develop a comprehensive immigration and asylum policy. If only it had: in fact, the EU’s response is largely marginal and ineffectual. Indeed, Farage is throwing some huge stones inside this glass house. It is Farage who is trying to ‘weaponise’ the tragic deaths of hundreds of people, taking this opportunity to make an inaccurate and incoherent rant in the midst of an election campaign.

Don’t Rock the Boat: EU leaders do as little as possible to address the migrant crisis

 

Steve Peers

 

Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.

 

 

Detailed comments

 

At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.

 

It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.

 

The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).

 

As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.

 

There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.

 

As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option - discussed further here - in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.

 

There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.

 

Conclusions

 

Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.

 

On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.

 

 

Photo credit: Kenneth Roth

 

Barnard & Peers: chapter 26

 

 

Annex

 

Special meeting of the European Council, 23 April 2015 - statement

 

[note: changes from the earlier draft are noted by underling for additions of text, and strike-out for removals of text] 

 

1. The situation in the Mediterranean is a tragedy. The European Union will mobilise all efforts at its disposal to prevent further loss of life at sea and to tackle the root causes of the human emergency that we face, in cooperation with the countries of origin and transit. Our immediate priority is to prevent more people from dying at sea.

 

2. We have therefore decided to strengthen our presence at sea, to fight the traffickers, to prevent illegal migration flows and to reinforce internal solidarity and responsibility. Given that instability in Libya creates an ideal environment for the criminal activities of traffickers, we will actively support all UN-led efforts towards re-establishing government authority in Libya. We will also step up efforts to address conflict and instability as key push factors of migration, including in Syria.

 

3. We today commit to:

 

Strengthening our presence at sea

 

a) rapidly reinforce EU Operations Triton and Poseidon by at least doubling tripling the financial resources for this purpose in 2015 and 2016 and reinforcing the number of assets, thus allowing to increase the search and rescue possibilities within the mandate of FRONTEX. We welcome the commitments already made by Member States which will allow to reach this objective in the coming weeks;

 

Fighting traffickers in accordance with international law

 

b) disrupt trafficking networks, bring the perpetrators to justice and seize their assets, through swift action by Member State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum Support Office (EASO) and EUROJUST, as well as through increased intelligence and police-cooperation with third countries;

 

c) undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers;

 

d) at the same time, the High Representative is invited to immediately begin preparations for a possible CSDP operation to this effect, in accordance with international law;

 

e) use EUROPOL to detect and request removal of internet content used by traffickers to attract migrants and refugees, in accordance with national constitutions;

 

Preventing illegal migration flows

 

f) increase support to Tunisia, Egypt, Sudan, Mali and Niger among others, to monitor and control the land borders and routes in order to prevent potential migrants from gaining access to Mediterranean shores, building on current CSDP operations in the region, as well as on regional cooperation frameworks (Rabat and Khartoum processes); step up dialogue with the African Union at all levels on all these issues;

 

g) reinforce our political cooperation with African partners at all levels in order to tackle the cause of illegal migration and combat the smuggling and trafficking of human beings. The EU will raise these issues with the African Union and the key countries concerned, with whom it will propose the holding of a summit in Malta in the coming months;

 

h) step up cooperation with Turkey in view of the situation in Syria and Iraq;

 

i) deploy European migration liaison officers in key countries to gather information on migratory flows, co-ordinate with national liaison officers, and co-operate directly with the local authorities;

 

j) work with regional partners in building capacity for maritime border management and search and rescue operations;

 

k) launch Regional Development and Protection programmes for North Africa and the Horn of Africa;

 

l) invite the Commission and the High Representative to mobilise all tools, including through development cooperation and the implementation of EU and national readmission agreements with third countries, to promote readmission of unauthorised economic migrants to countries of origin and transit, working closely with the International Organisation for Migration;

 

m) while respecting the right to seek asylum, set up a new return programme for the rapid return of illegal migrants from frontline Member States, coordinated by FRONTEX;

 

Reinforcing internal solidarity and responsibility

 

n) rapid and full transposition and effective implementation of the Common European Asylum System by all participating Member States, thereby ensuring common European standards under existing legislation;

 

o) increase emergency aid to frontline Member States and consider options for organising emergency relocation between all Member States on a voluntary basis;

 

p) deploy EASO teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing;

 

q) set up a first voluntary pilot project on resettlement across the EU, offering at least 5,000 places to persons qualifying for protection.

 

4. The EU institutions and the Member States will work immediately on the full implementation of these orientations. The Presidency and the Commission will present next week a roadmap setting out work up to June.

 

5. The European Council looks forward to the Commission Communication on a European Agenda for Migration, in order to develop a more systemic and geographically comprehensive approach to migration. The European Council will remain seized of the situation and will closely monitor the implementation of these orientations. The Council and the Commission will report to the European Council in June.

The EU response to migrant deaths: protection and prevention – or policy laundering?

Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13^th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU's Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase.

A systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean;

The ‘Atalanta’ operation concerns an EU military operation against pirates in the Indian Ocean. It’s clear from press briefings that the intention is to have another military operation regarding the smugglers. This will obviously entail significant costs and raises legal questions about the jurisdiction which the EU Member States have to destroy boats in the waters of third States or the high seas.

EUROPOL, FRONTEX, EASO and EUROJUST will meet regularly and work closely to gather information on smugglers modus operandi, to trace their funds and to assist in their investigation;

These bodies are respectively the EU police cooperation agency, the EU border control agency, the EU asylum support agency and the EU prosecutors’ agency. The asylum support agency has traditionally had little or nothing to do with this issue, and there is a risk that some of its funding is diverted. There is no express commitment to give it extra funds.

EASO to deploy teams in Italy and Greece for joint processing of asylum applications;

This will defray the cost of processing for those Member States and speed up processing times for overburdened administrations. It’s not clear whether this will simply be an application of existing rules which allow EASO to simply support national administrations, or whether there will be a shift to genuine ‘joint processing’ by a group of Member States or the agency as such. That would require fresh legislation.  

Member States to ensure fingerprinting of all migrants;

EU legislation already requires fingerprinting of all short-term visa applicants (once the EU’s Visa Information System is fully applied, in the next year or so), residence permit holders, asylum applicants and persons crossing borders without authorisation. All holders of EU passports (ie EU citizens) must also be fingerprinted. The only gaps here are non-visa nationals coming for short-term visits (ie citizens of countries like the USA and Canada) and irregular migrants who have ‘overstayed’ after a legal entry. However, after the EU’s Visa Information System is fully applied, the second group (overstayers) will simply be a sub-category of the first group (non-visa nationals), since everyone needing a visa will already have been fingerprinted. And proposed legislation establishing an entry-exit system will require the non-visa nationals to be fingerprinted too, although it will take a number of years for that legislation to be agreed and made operational. These various categories of people are subject to different rules as regards how the fingerprint information is stored and used; it’s not clear if the intention is to change those rules.

The very odd thing here is what fingerprinting of ‘all migrants’ has to do with the issue of migrants drowning at sea in an attempt to reach the EU. It would perhaps make sense to reiterate the requirement to fingerprint all those who apply for asylum or attempt to cross the border without authorisation (as all those migrants who attempt to cross the Mediterranean are doing), but the plan clearly refers to ‘all migrants’. So we can only conclude that this is a blatant attempt at policy laundering.

Consider options for an emergency relocation mechanism;

The concept of ‘relocation’ entails moving asylum-seekers and/or recognised refugees from the Member States which have an obligation to consider their claim, or which have recognised their refugee status, to other Member States. It would obviously reduce the pressure on the Member States which receive a significant number of refugee claims from migrants crossing the Mediterranean – most notably Malta, Italy (the island of Lampedusa) and Greece. However, it would entail either suspending the EU’s Dublin rules on asylum responsibility in part (requiring a legislative amendment) or encouraging voluntary offers from Member States which are not responsible under the rules. Both options have been discussed many times over the years with no success (Dublin amendments) or very little success (voluntary offers). The wording used here (‘consider options’) is so underwhelming that little can be expected.

A EU wide voluntary pilot project on resettlement, offering a number of places to persons in need of protection;

‘Resettlement’ is the process of taking some of the people in other (non-EU) countries who need international protection and moving them to the EU. This is the only one of the ten points which offers ‘safe passage’, ie a way for would-be asylum-seekers to enter the EU without running the risk of drowning when crossing the Mediterranean. The ‘number of places’ is not specified, and it should be noted that under EU financial law, a ‘pilot project’ is a short-term programme using only a small amount of money. Furthermore, the project is expressly ‘voluntary’. Overall, it seems that this one form of ‘safe passage’ being offered by the EU is very narrow indeed.

Establish a new return programme for rapid return of irregular migrants coordinated by Frontex from frontline Member States;

EU law specifies that asylum-seekers cannot normally be removed until a final negative decision has been taken upon their application. So this refers to people whose asylum application has definitively failed, or who never made such an application and have no other ground to stay. There are procedural rights in the EU’s Returns Directive for irregular migrants, but there is no mention of them (or the asylum laws) here. Frontex already has a role coordinating joint return flights; the intention is to devote more effort (and presumably resources) to removing people from the EU’s Mediterranean Member States.

Engagement with countries surrounding Libya through a joined effort between the Commission and the EEAS; initiatives in Niger have to be stepped up.

This is the only part of the 10-point plan that hints that the EU’s relations with third countries have a role to play. It isn’t clear what this ‘engagement’ will concern. Will it focus on the conditions in the countries of origin and transit, thereby ensuring that fewer people want to head to the EU in the first place? Or is the EU only concerned with the repressive aspects, such as tracking down smugglers and traffickers?

Deploy Immigration Liaison Officers (ILO) in key third countries, to gather intelligence on migratory flows and strengthen the role of the EU Delegations.

The intention here is to obtain more intelligence on migration flows, although it’s not clear what will be done with that intelligence once it’s obtained. There will be a cost for the EU and/or Member State budgets here.

The Australian solution?

Some have suggested that the EU adopt the supposed ‘Australian solution’, of sending boats to stop the migrants reaching the territory of the EU. In fact this is a highly simplistic understanding of Australian asylum policy. The Australians do not intercept most migrants just outside their country of origin or otherwise return them there directly. Rather the policy is to send asylum-seekers to various Pacific islands for processing and to live permanently if a claim is successful. Australia gives the countries concerned significant cash in return. Moreover, Australia has a very active resettlement policy, recently increasing the numbers of permits granted from about 13,000 to about 20,000.  So the asylum policy is justified by Australia as a means to stop people ‘jumping the queue’. Also, the policy is underpinned by indefinite detention of anyone who does make it to Australian shores without authorisation.

Could this policy be applied to the EU? There are some big legal problems. The European Court of Human Rights has ruled that migrants cannot simply be intercepted and returned to third States unless those States are safe (see the Hirsi judgment); it should be noted that conditions in some of the States participating in the Australian policy have been strongly criticized by human rights groups. Also, the EU’s Returns Directive bans indefinite detention of irregular migrants. That Directive does not apply to asylum-seekers, but EU asylum legislation applicable from July this year sets many new conditions regulating such detention. It’s highly arguable that detention of asylum-seekers cannot be justified (at the latest) once the final decision on the application has been made, or after the new EU deadlines to decide on asylum claims have passed. After that point the time limits for detention in the Returns Directive will apply.

Even if these legal problems could be overcome, could the Australian solution be replicated by the EU? The EU would have to find third countries willing to house large numbers of refugees and asylum-seekers, and pay them to do it. The numbers of migrants involved in Mediterranean crossings (about 200,000 in 2014) is far higher than those covered by the Australian solution (25,000 in 2012-13). So, although accommodating asylum-seekers in transit States is likely to play an important part in any long-term solution, this is easier said than done; and it’s important to note that the EU’s 10-point plan makes no mention of this issue.

Furthermore, the advocates for the Australian solution simply ignore Australia’s resettlement policy, which is one of the most generous in the world. Its 20,000 permits a year, for a population of 23 million, scale up to about 50,000 resettlement permits for the UK, and 450,000 across the EU. When the advocates of the Australian solution start to talk about that scale of resettlement, we should take them seriously – but not before.

Christians

Some have suggested that the UK and/or EU should focus exclusively on admission of Christian asylum-seekers, on the basis that they have ‘no other place to go’. Does that policy make sense? It’s undoubtedly true that some Christians face persecution, but so do many non-Christians – and Article 3 of the UN (Geneva) Convention on Refugees bans discrimination on grounds of ‘race, religion or country of origin’. It isn’t correct to suggest that Christians can’t live safely anywhere in any Arab or Muslim state: many of those States maintain the centuries-old tradition of letting Christians live without persecution, and indeed there are a large number of Christians living in Lebanon in particular. And it’s hard to see how this policy will work. Will Christians alone be rescued from boats in the Mediterranean, leaving the Muslims on board to sink? And how would asylum-seekers’ claims to be Christians be examined: by making applicants sit a Religious Education A-level on the boat? Or simply checking (for men and boys) to see if they are circumcised (and therefore likely to be Muslim) or not?

Comments

The first striking thing about the EU policy is that it pays little attention to the human emergency that triggered it: the deaths of hundreds of people, which resulted from a collective EU decision to stop search and rescue in the Mediterranean. There’s no express mention of the deaths themselves in the plan, and the Commission President’s statement on Sunday merely expressed his ‘deep chagrin’ at the deaths – as if someone had guzzled his last bottle of cognac.

Furthermore, the intention to expand the existing missions fails to mention any search and rescue aspects, and there is a very limited reference to expanding one form of safe passage.  No part of the plan mentions dealing with the situation in countries of origin, or helping countries of transit manage the number of migrants on their territory. Instead, there is a strong emphasis on expulsion of migrants from the EU. Overall, this leaves the impression that the ministers aren’t shocked that migrants have died – but rather irritated that some of them didn’t.

Arguments about the costs of rescue, or of asylum-seekers reaching the EU, are undercut by the implicit plans to spend considerable sums of money on a military mission, fingerprinting of migrants, expulsion, and intelligence gathering. So the argument isn’t really about economic cost – but the social and political impact of migration.

As for the intention to crack down on trafficking and smuggling, few will have sympathy for the vultures that profit from others’ suffering and frequently jeopardise the lives of hundreds of people. But it seems odd to focus on them in this plan without also trying to address the broader situation of the migrants themselves – as if the means by which people make dangerous journeys to the EU are more important than the reasons why they do this. On this point, the plan resembles the decades-long US policy of military missions in Latin America, trying to destroy drug crops. Admittedly, it’s harder to build new boats than to grow more drugs – but then, the migrants aren’t exactly coming on cruise ships. The policy may well have the effect of lowering the (already low) quality of vessels used to cross the Mediterranean, and increasing the cost of migrants' journey. Unless it forms part of a broader policy which aims to deal with the root causes of migration and the position of migrants in transit countries, it could make them less (not more) safe.

 Art credit: Alex Falco Chang

Barnard & Peers: chapter 26