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The EU Pact on Migration and
Asylum in light of the United Nations
Global Compact on Refugees
International Experiences on Containment and
Mobility and their Impacts on Trust and Rights
Editors
Sergio Carrera and Andrew Geddes
© European University Institute, 2021
Editorial matter and selection © Sergio Carrera and Andrew Geddes, 2021
Chapters © authors individually 2021.
is text may be downloaded only for personal research purposes. Any additional
reproduction for other purposes, whether in hard copies or electronically,
requires the consent of the Robert Schuman Centre for Advanced Studies. If cited
or quoted, reference should be made to the full name of the author(s), editor(s),
the title, the year and the publisher.
Views expressed in this publication reect the opinion of individual authors and
not those of the European University Institute.
Published by
European University Institute (EUI)
Via dei Roccettini 9, I-50014
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ISBN:978-92-9084-999-5
doi:10.2870/541854
is Book falls within the scope of the ASILE Project. ASILE stud-
ies the interactions between emerging international protection
systems and the United Nations Global Compact for Refugees
(UN GCR), with particular focus on the EU’s role. It examines
the characteristics of international and country-specic asylum
governance instruments and arrangements, and their compatibility with international
and regional human rights and refugee laws. For more information about the project see:
www.asileproject.eu
e ASILE project has received funding from the European Union’s Hori-
zon 2020 research and innovation programme under grant agreement nº
870787.
The EU Pact on Migration and
Asylum in light of the United
Nations Global Compact on
Refugees
International Experiences on Containment
and Mobility and their Impacts on Trust and
Rights
Editors
Sergio Carrera and Andrew Geddes
Contents
PREFACE i
1. Whose Pact? e Cognitive Dimensions of the EU Pact on
Migration and Asylum
Sergio Carrera 1
2. e Pact and Refugee Resettlement:
Lessons From Australia and Canada
Adèle Garnier 25
3. e New Pact 0n Migration and Asylum and
e Global Compact on Refugees and Solutions
Geo Gilbert 37
4. e Impact of the New EU Pact on Europe’s External Borders:
e Case of Greece
Eleni Karageorgiou 47
5. ‘I Wish ere Was a Treaty We Could Sign’
omas Spijkerboer 61
6. Community Sponsorship, e Pact and e Compact:
Towards Protection Principles
Nikolas Feith Tan 71
7. Internal Solidarity, External Migration Management:
e EU Pact and Migration Policy Towards Jordan
Lewis Turner 81
8. e Spanish Borders on e Cusp of e New European
Pact on Migration And Asylum
Iker Barbero and Ana López-Sala 91
9. Migration Management:
e Antithesis of Refugee Protection – e Case of South Africa
Fatima Khan and Nandi Rayner 101
10. A Short Sighted and One Side Deal: Why e EU-Turkey
Statement Should Never Serve As a Blueprint
Meltem Ineli-Ciger and Orçun Ulusoy 111
11. e Global Compact on Refugees and the EU’s New Pact
on Migration And Asylum: e Ripples of Responsibility-Sharing
Evan Easton-Calabria 125
12. South American De Jure and De Facto Refugee Protection:
Lessons From e South
Leiza Brumat and Luisa Feline Freier 134
13. Building Resilience in Strained Refugee-Hosting States?
e EU in e Face of Lebanon’s Cumulative Crises
Tamirace Fakhoury 144
14. South America and e Cartagena Regime: A Comprehensive
Approach to Forced Migration Responses
Gilberto M. A. Rodrigues 157
15. Admissibility, Border Procedures and Safe Country Notions
Jens Vedsted-Hansen 170
16. Setting e Right Priorities: Is the New Pact on
Migration and Asylum Addressing e Issue of Pushbacks
at EU External Borders?
Marco Stefan and Roberto Cortinovis 180
17. e EU Pact on Migration and Asylum and the
Dangerous Multiplication of ‘Anomalous Zones’
For Migration Management
Giuseppe Campesi 195
18. e New EU Pact on Migration and Asylum and the
Rohingya Refugee Situation
M Sanjeeb Hossain 205
19. e New Pact’s Focus on
Migrant Returns reatens Africa-EU Partnership
Tsion Tadesse Abebe andAimée-Noël Mbiyozo 219
20. Trends In Brazil’s Practices of Refugee Protection:
Promising Inspirations For the EU?
Liliana Lyra Jubilut and João Carlos Jarochinski Silva 230
21. Redistributing EU ‘Burdens’:
e Tunisian Perspective on e New Pact on Migration
and Asylum
Betty Rouland 240
22. Fresh Start Or False Start? e New Pact on
Migration and Asylum
Petra Bendel 251
23. EU External Migration Management Policies in West Africa:
How Migration Policies and Practices in Nigeria Are Changing
Amanda Bisong
262
24. Containment Development and Africa’s Time-Space Trap
Loren B Landau and Iriann Freemantle 274
25. e New Pact on Migration and Asylum and
African-European Migration Diplomacy
Andrew Geddes and Mehari Taddele Maru 282
26. When Principles Are Compromised:
EU Return Sponsorship in Light of the Un Global Compacts
Lina Vosyliūtė 291
AUTHORS LIST 314
h
i
PREFACE
In September 2020, the European Commission published what it
described as a New Pact on Migration and Asylum (emphasis added) that
lays down a multi-annual policy agenda on issues that have been central
to debate about the future of European integration. is book critically
examines the new Pact as part of a Forum organized by the Horizon 2020
project ASILE – Global Asylum Governance and the EU’s Role.
ASILE studies interactions between emerging international protec-
tion systems and the United Nations Global Compact for Refugees (UN
GCR), with particular focus on the European Union’s role and the UN
GCR’s implementation dynamics. It brings together a new international
network of scholars from 13 institutions examining the characteristics of
international and country specic asylum governance instruments and
arrangements applicable to people seeking international protection. It
studies the compatibility of these governance instruments’ with interna-
tional protection and human rights, and the UN GCR’s call for global
solidarity and responsibility sharing.
ASILE facilitates groundbreaking insights into the role and impacts
of legal and policy responses – instruments – on refugee protection and
sharing of responsibility from the perspective of their eectiveness,
fairness and consistency with refugee protection and human rights. It
does so through an examination and mapping of UN GCR actors – and
their legal responsibilities and accountability – that have varying roles in
the design and implementation of mobility and containment instruments
applied to people in search of international protection across various
world regions. e project studies the impacts of vulnerability and status
recognition assessments – which oen nd expression in these same
instruments and actors – on individuals’ rights and refugees’ agency.
ASILE also aims at identifying lessons learned and ‘promising practices’
on refugee protection.
ii Preface
e Chapters that follow assess the new components and policy pri-
orities laid down in the EU Pact on Migration and Asylum from dierent
multidisciplinary perspectives and world regions experiences. ey
explore the rights and international protection implications, enshrined
both in the foundations of the UN GCR and the EU Treaties as well as
policy and governance arrangements both domestically and interna-
tionally. ey address the implications of these policy and governance
approaches for the geopolitics of international law, paying attention to the
relations that the Pact seeks to promote between states and other relevant
international and regional actors, and also how its proposed policy
roadmap can be expected to transform or recongure these relations.
In light of the ASILE project objectives, the Chapters pay particular
attention to the scope of the mobility and containment components of
asylum governance instruments and their implementing actors in Europe
and other world regions, as well as their inclusionary or exclusionary
eects on individuals’ rights and international protection.
We would like rst to express our gratitude to all the contributors of
this volume for their most insightful Chapters and their excellent cooper-
ation during the implementation of the Forum and the production of this
Book. Special thanks go to Professors Gregor Noll, Jens Vedsted-Hansen
and omas Spijkerboer for their key roles in the original idea, design
and launch of the rst ASILE Forum on the EU Pact on Migration and
Asylum, as well as their most helpful comments and invaluable advice
during the draing of the kick-o Essay included in Chapter 1 of the
Book. We are very grateful for all the substantial contributions and inputs
by Heidi Betts, who has played a key role in the professional editing of
all the Chapters and the Forum, and by Miriam Mir (Project Manager
at CEPS), who played an equally central role in the daily running and
successful completion of the rst ASILE Forum. Finally, we would like to
thank Andrew Fallone for his great assistance and inputs in completing
the editing and formatting of the Book.
1
1. Whose Pact? The Cognitive
Dimensions of the EU Pact on
Migration and Asylum
Sergio Carrera
1.1 Introduction
is Chapter examines the EU Pact on Migration and Asylum (herein-
aer the Pact), published on 23 September 2020 (European Commis-
sion, 2020a), as conditioned by the United Nations Global Compact on
Refugees (UN GCR) and the EU Treaties. It is the kick-o contribution
opening the rst Forum organised in the scope of the H2020 Project
ASILE (Global Asylum Governance and the EU’s Role). e analysis pays
attention to the cognitive dimensions of the Pact, and how they aect
trust and legitimation of EU migration and asylum policies. By ‘cognitive
dimensions’ this Chapter means the ensemble of cognitive work that
needs to be done to put into eect the core priority underlying the
Pact. is comprises “establishing status swily on arrival” at Schengen
external borders and categorising individuals either as “non-returnable
refugees and other beneciaries of international protection”, or as “expel-
lable irregular immigrants”. Accordingly, individuals would be either
immediately refused entry or transferred to asylum or return procedures.
2 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
1.2 Whose Pact? Intergovernmentalising EU asylum and
migration policies
e idea of a ‘European Pact’, as originally advanced by Commission
President von der Leyen at her Opening Statement in July 2019, not new
(von der Leyen, 2019). It originated in a 2008 proposal advanced by the
French Presidency of the EU for a European Pact on Immigration and
Asylum (European Council, 2008). is earlier ‘Pact’ was criticised as
a failed attempt by one Member State to ‘renationalise’ policies falling
under clear EU competence and scrutiny under the Treaties, and catapult
some domestically contested priorities into common EU policy agendas
through an intergovernmental arrangement (Guild and Carrera, 2008).
A prior question that can be asked is what exactly is a pact, and
between whom is it concluded? A pact implies an agreement or an ocial
promise (or engagement) between two or several parties. It does not
always qualify as a treaty or international agreement. e terminology of
a pact may therefore lead to confusion, and it is not entirely clear to whom
the new Pact in question actually belongs, and between whom it has been
concluded or agreed upon. e Pact on Migration and Asylum does not,
in fact, qualify as a pact.
To be clear, the Pact envisages the European Commission policy
agenda aimed at setting up a “Common European Framework for
Migration and Asylum Management” during the (current) 9th EU legisla-
ture. e Commission alone is the owner of this Pact. Moreover, while the
Commission has carried out long consultations and informal exchanges
with EU Member States and other actors, this does not formally mean
that the Pact has been concluded or agreed in any way or form by any of
these national governments (Euractiv, 2020) or the European Parliament.
In fact, one may wonder if the EU actually needs a Pac t at this advanced
stage of European integration. e EU Treaties are clear about the fact
that inter-institutional decision-making rules among EU Member States
and the European Parliament come into eect once the Commission o-
cially presents or publishes any new legal acts. is also applies in full to
migration, asylum and border policies.
One of the expressly stated objectives of the Pact is promoting and
reinforcing “mutual trust” through asylum policies “acceptable to all EU
Member States”. It says that it has been “shaped by collective learning”
3
Sergio Carrera
from the inter-institutional debates during the previous Juncker Com-
mission, particularly the failing Commission’s 2016 proposals to reform
the Common European Asylum System (CEAS) and the EU Dublin
Regulation (European Parliament and Council, 2013). However, if there
is any lesson to be learned from the outputs of inter-institutional nego-
tiations over the Commission’s package of 2016 legislative proposals to
reform the EU Dublin Regulation, it is that allowing a decision-making
logic of consensus or de facto unanimity among EU Member States does
not work at all.
Previous CEPS research has shown that the 8th legislature corre-
sponding with the Juncker Commission was characterised by intergov-
ernmental and nationalistic logics “in the name of the 2015 European
refugee crisis” (Carrera, 2018). e European Council and EU Member
States’ ministries of interior – some of which were in the hands of radical
right-wing parties – played a central role in re-injecting intergovernmen-
talism and ‘exible’ patterns of cooperation in communitarised policies.
ey were the ones responsible for blocking the 2016 Commission CEAS
reform by insisting on negotiating all the legislative les as a ‘package’
dependent on the Dublin regulation’s revision.
is was despite the existence of a broad understanding and over-
whelming amount of evidence that the rst irregular entry rule for dis-
tributing responsibility for assessing asylum application carried profound
decits and should be abandoned, and the European Parliament calling
for much-needed asylum reform based on equal solidarity (European
Parliament, 2016). is intergovernmental logic was in clear violation
of the Treaties and the QMV – and not the unanimity – rule applicable
under the ordinary legislative procedure to migration and asylum policies
(Carrera et al., 2020).
e Pact runs the risk of resurrecting the articial need to build
consensus among EU Member States – even in advance of the presenta-
tion of the actual legislative proposals. is is both risky and counter-
productive in policy domains where one could expect the Commission
to pursue a genuine Migration and Asylum Union (Carrera and Lannoo,
2018).
e 2009 Lisbon Treaty aimed quite deliberately to change previous
intergovernmental and nationalistic modes of cooperation in Justice and
Home Aairs (JHA). As a key condition for ‘merited or deserving trust’,
4 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
the Treaties require that common EU policies on borders, asylum and
migration must be negotiated among all European institutions, not only
among Member States. e ‘Lisbonisation’ of JHA meant recognising the
European Parliament as a full co-legislator and co-owner in these policy
areas, and unlocking judicial control held by the Luxembourg Court.
A consensus-building strategy among EU Member States makes no
sense in light of EU Treaties. Intergovernmentalising EU policy-making
in these domains is illegal and at odds with the inter-institutional balance
and loyal cooperation foreseen in the Treaties. Furthermore, the method-
ology applied in the Pact has resulted in a number of ‘early concessions’ to
some EU ministries of interior before the actual publication and start of
inter-institutional negotiations of the accompanying legislative proposals.
e risk here is that currently applicable and debatable national policies
and practices – some of which have been found unlawful by European
Courts and human rights bodies – will be reshaped into ‘EU’ ones.
A case in point is the priority given to fast screening procedures at
EU external borders, or the call for mandatory border procedures and
safe-country notions. Some EU governments like the one of Germany
advocated these ideas, which were openly stated in the Programme for
Germany’s Presidency of the Council of the European Union (German
Government, 2019; Council of the EU, 2020). One of the key problematic
features of the Pact has been for some Member States to ‘transplant’ some
of their own national priorities to the EU level, and in the Commission’s
most important policy agenda document for the years to come in these
areas. Little consideration has been given to the actual transferability of
such restrictive ‘models’ to EU external land and sea borders in southern
and central-east EU Member States in the Schengen Area. In particular,
what is considered by some as a ‘best practice’ in some northern European
countries may well become a ‘worst practice’ when travelling to other EU
Member States and facing their local dynamics.
e current picture in the EU is that several governments are already
implementing containment policies that are incompatible with existing
EU asylum and migration law, the EU Charter of Fundamental Rights
and the UN Global Compact on Refugees. ese include for instance
expedited expulsions or hot returns, accelerated determination proce-
dures, expansive uses of detention and not rescuing people at sea and dis-
embarking boats in their territories. Some Member States’ governments
5
Sergio Carrera
may see this Pact as indirectly bringing supranational legitimacy to some
of their national policies that have been widely criticised by international
and regional human rights bodies for leading to rule of law and human
violations running contrary to EU’s constitutional principles. is could
enable them to trump eective access to justice and violate the right to
seek asylum and the prohibition of collective expulsions in the EU.
e Pact’s proposal to set up a joint pilot project on a ‘migration
management centre’ at the EU hotspot in Moria, Lesvos (Greece) is one
example (Politico, 2020). is was recently burned down aer protests in
the camp (BBC, 2020). e Council of Europe Commissioner for Human
Rights stated that the response to the protests should not lead to “more
and longer detention” of the people (Commissioner for Human Rights,
2019). However, the joint pilot project (Task Force) runs a sound risk of
legitimating the Greek government’s policy on detentions and unlawful
expulsions (European Commission, 2020j). It could set a worrying
precedent of European Commission’s support of detention camps inside
the EU.
1.3 Localisation, speed and de-territorialisation
e Pact emphasises the external borders of southern and central/eastern
EU Member States. It states that “e external border is where the EU
needs to close the gaps between external border controls and return pro-
cedures”. It pursues the idea of mandatory pre-border screening so that
“entry is not authorised to third-country nationals unless they are explic-
itly authorised entry”, and therefore that an application for asylum does
not unlock “an automatic right to enter the EU” (European Commission,
2020d).
e Pact advocates a model that emphasises an accelerated decision
as to whether an individual has access to the right to seek asylum at
specic border crossing points identied by EU Member States. It pays
special attention to third-country nationals who cross Schengen external
borders at specic border crossing points designated by EU Member
States, those entering in unauthorised ways - not fullling entry condi-
tions in the Schengen Borders Code (European Parliament and Council,
2016), as well as those who are disembarked aer search and rescue
(SAR) operations at sea.
6 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
is model nds expression in the newly amended Proposal for
an Asylum Procedures Regulation COM(2020) 611 nal (European
Commission, 2020c) – which applies to both asylum and return rules
on border procedures, and the Proposal for a Regulation on screening
at the external borders COM(2020) 612 nal (European Commission,
2020d). During the envisaged ‘screening’ process, which is expected to
be concluded within ve days from apprehension in the external border
area, disembarkation or presentation at border crossing points, indi-
viduals concerned are deemed as non-authorised to enter the Member
State’s territory.
During this time, third-country nationals are obliged to remain in
“the designated facilities during the screening”, which according to these
proposals should be in principle at or in proximity to the external borders
or transit zones. is therefore entails detention as a clear scenario.
Moreover, this period can be extended to 12 weeks in cases where indi-
viduals appeal against a decision rejecting an application for interna-
tional protection. It can further extended depending on the time needed
to prepare return or implement the expulsion process envisaged in the
EU Returns Directive, which has been under inter-institutional negotia-
tions since 2018 (European Commission, 2018).
In light of the ‘cognitive dimensions’ of these two proposals, aer
mandatory pre-border screening procedures, individuals are expected
to be either immediately refused entry into EU territory or be chan-
nelled into asylum or return procedures. e screening is supposed to
cover identication, security checks - against EU databases such as the
Schengen Information System II and their Interoperability (European
Parliament and Council, 2019) - as well as registration of biometric data
(ngerprints and facial recognition) in a new version of the Eurodac
database allowing for an increased accessibility to asylum seekers data by
the European Asylum Support Oce (EASO) (European Commission,
2020f). It also includes health checks consisting of a preliminary medical
examination “with a view to identifying any needs for immediate care or
isolation on public health grounds”.
e Pact places EU agencies such as Frontex (European Border and
Coast Guard) and EASO in the crucial role of operationally assisting
Member States in the practical implementation of these initiatives. In the
case of EASO this goes against its current legal mandate that at present
7
Sergio Carrera
does not even foresee any procedure for withdrawing its operations in
EU Member States not complying with EU law or fundamental rights.
e increasing involvement of these EU agencies on the ground and their
inputs in border procedures, however, raises a number of unresolved
legal dilemmas related to their weak legal accountability and the lack of
an independent monitoring mechanism of their activities and decisions
(Carrera and Stefan, 2020).
To function, the pre-entry screening procedures would presuppose
that the cognitive resources of the territorially distributed system are
moved to the EU external borders. It is concerning, though, that EU
Member States’ border-crossing points are oen framed as ‘transit zones’
or even as ‘non-territory’ in an unsuccessful attempt or legal ction to
reduce or limit their legal responsibilities and side-line constitutional and
international rule of law.
is provokes the question as to whether a person in a liminal
situation with a dearth of resources and reduced oversight is owed inter-
national protection and access to justice. e Pact’s model – and its
suggested ‘principle of integrated policymaking’ – risks blurring the lines
between international protection and migration management by giving
preference to the latter and engaging in the securitisation and criminali-
sation of refugees and people seeking international protection.
Speed is prioritised along with localisation, and comprises and calls
for swi pre-entry screening of individuals who irregularly cross the
external border outside designated border points and do not full the con-
ditions of entry. Crucially, pending the results of screening procedures,
the person is presumed not to have legally entered into Member States’
territory. In this way, the proposed policies can be expected to encourage
de-territorialisation, i.e. EU Member States unlawfully reframing specic
parts of their borders as ‘non-territory’ in an attempt to escape accounta-
bility and liability in cases of fundamental rights violations.
According to the Pact, “the particular needs of the vulnerable require
special arrangements, and the border procedure would only apply where
this is the case.” e Proposal for a Regulation on screening at the external
borders COM(2020) 612 nal (Article 9) foresees the application of “vul-
nerability assessments” and highlights that those considered as vulner-
able “shall receive timely and adequate support in view of their physical
and mental health. is, however, allows potential for the foreseen
8 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
screening procedures to impact individuals’ rights and agency. Little or
no consideration is given to how these very policies, and the blurring
between asylum and expulsions, actually co-create or are co-constitutive
of the irregularity of entries and onward mobilities that its proposals seek
to address (Carrera et al., 2019d).
Despite formalistic statements that these proposals generally comply
with fundamental rights, border procedures are unquestionably charac-
terised by reduced procedural safeguards leading to arbitrariness and dis-
crimination (ECRE, 2019). ey can also be expected to justify the illicit
use of systematic deprivation of liberty of individuals at the borders or
in-territory detention facilities.
Another problematic aspect is that the newly envisaged border
procedure will deem an asylum claim inadmissible when the applicants
come from countries with a low recognition rate (20% or lower according
to a Union-wide average based on Eurostat data) – according to a new
Article 40 of the Asylum Procedures Regulation. is is in violation
of the inherently individual nature of any application for international
protection. It also disregards the persistent major dierences among EU
Member States regarding recognition rates.
e newly amended Proposal for an Asylum Procedures Regulation
COM(2020) 611 nal builds on the results of inter-institutional negotia-
tions on a previously recast Proposal published in 2016 (European Com-
mission, 2016), which aimed to harmonise Member States’ rules on the
use of controversial safe country notions. While the harmonisation of this
notion has been abandoned by the Pact, the new proposal still pursues the
problematic idea to use ‘safe third country’ notions that would require
Member States to expel legitimate asylum seekers to countries outside the
EU where their safety and dignied treatment are not guaranteed. A joint
letter issued by several NGOs on the Pact states that safe-country notions
carry inherent risks for eective access to international protection and
“contribute to containment of refugees in other regions and jeopardise
eorts for a more balanced sharing of responsibility for people who are
displaced globally” (ECRE, 2020).
e Pact’s focus on localisation, speed and de-territorialisation seems
to be inspired by current policies and ideas pursued or implemented by
some EU governments. A key question is the extent to which these ideas
can realistically be expected to be so easily transferred to Member States
9
Sergio Carrera
holding the EU external land and sea borders in southern and central/
eastern Europe. is is crucial in light of the increasing body of evidence
of human rights and rule of law violations from governments’ policies
on pushbacks, hot returns, detention and expedited expulsions (Carrera,
2020; Carrera and Stefan, 2020)
1.4 A European asylum system à la carte: asymmetric
solidarity
e word ‘exibility’ appears in several passages of the Pact. It relates
to the reform of the EU Dublin Regulation, which currently outlines
the rules for the sharing of responsibilities between EU Member States
in assessing asylum applications in the Schengen area. While the Pact
states that “solidarity is not optional”, it advances a package of proposals
implementing the concept of ‘mandatory exible solidarity’ among EU
Member States in the eld of asylum and returns. It proposes reforming
the EU Dublin Regulation in the shape of a new Asylum and Migration
Management Regulation COM(2020) 610 nal, which introduces a new
‘solidarity mechanism’ (European Commission, 2020f).
During the 2020 State of the Union debate President von der Leyen
expressly stated that “We will abolish the Dublin System” (von der Leyen,
2020). However, the devil is in the details. e reform still keeps as a
rule the much-debated rst irregular entry criterion for determining
responsibility among EU Member States, which will now also include
people subject to SAR at sea. Among the envisaged set of criteria for
determining the Member State responsible for examining an asylum
application (which includes family links and specic provisions for unac-
companied minors), Article 21 still envisages the irregular entry rule.
is means that the old ‘Dublin rationale’ for distributing responsibility
remains under the new system.
As Graph 1 below illustrates, the proposed ‘Common Framework’
includes a two-layered interstate solidarity model ranging from what the
Pact calls ‘situations of migration pressures’ to those labelled as ‘crisis sit-
uations’. Both concepts – “migration pressures” and “crisis” - leave ample
discretion in the hands of the Commission and EU Agencies.
10 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
Graph 1. Two-layered interstate solidarity
Source: Author’s own elaboration.
In situations characterised as “migration pressures” or subject to disem-
barkations at sea, the foreseen solidarity mechanism in Article 45 of the
Proposal obliges all Member States to participate in ‘solidarity contribu-
tions’. However, Member States are given the choice of how they do this.
ey may freely decide to participate in relocations of applicants for inter-
national protection. ese Member States would contribute according
to a share based on pre-identied criteria (chiey 50% population and
50% GDP) as stipulated in Article 54 and Annex III of the Proposal. e
Proposal also envisages specic provisions related to the setting up of
‘solidarity pools’ in the context of SAR operations (Article 49).
e Member State could instead decide to contribute with ‘other
measures to facilitate returns’ of irregular immigrants. ese are called
“return sponsorships” in Article 55 of the Proposal. is would include
supporting the EU Member State facing ‘migration pressures’ on policy
dialogues with relevant non-EU governments in the verication of indi-
viduals’ identity and their readmission. e Pact envisages that those
Member States committing to provide return sponsorships will be
obliged to relocate individuals concerned to their territories if they are
not expelled within a period of eight months. Article 56 of the proposal
11
Sergio Carrera
oers a third option for Member States to refuse relocation or return
sponsorships, but contribute instead through capacity building and oper-
ational support.
e second type of interstate solidarity model corresponds with cases
labelled as “crisis situations”, as outlined in the Proposal for a Regulation
addressing situations of crisis and force majeure in the eld of migration
and asylum COM(2020) 613 nal (European Commission, 2020e), which
accompanies a Recommendation on an EU mechanism for Preparedness
and Management of Crises related to Migration (Migration Prepared-
ness and Crisis Blueprint) (European Commission, 2020i). Here the Pact
envisages mandatory relocation of applicants under international protec-
tion or return sponsorships. In such cases, Member States would not be
allowed to participate through capacity building and operational support.
According to the Pact a crisis would not only include “mass arrivals of
irregular migrants, but also a political crisis or a crisis sparked by force
majeure such as the pandemic”. It would also include cases where there is
“an imminent risk of such a situation” (Article 1.2 of the Proposal). One is
rst le to wonder what a “political crisis” actually is, and how “the risk”
could be objectively examined.
In cases labelled as “crisis situations” the Commission is proposing
a “crisis migration management procedure covering both asylum and
return”, which leaves EU Member States too much room for manoeuvre
for lowering down or derogating basic international protection and
human rights standards as follows: rst, taking decisions on the merits of
the application during border procedures; second, extending the length
of pre-entry border screening and the presumption of non-entry into
territory (Article 4 of the Proposal); third, further expanding the use of
detention; fourth, applying a non-automatic suspensive eect of appeals
of returns; and h, carrying out expulsions “to any third country where
the person has transited, departed or has any other particular tie”.
e proposal also allows Member States to grant immediate protec-
tion status without the need for examining international protection appli-
cations in Article 10. is provision would apply to “displaced persons
from third countries who are facing a high degree of risk of being subject
to indiscriminate violence, in exceptional situations of armed conict,
and who are unable to return to their country of origin”, who would be
granted subsidiary protection.
12 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
In the above-mentioned 2020 State of the Union address, President
von der Leyen underlined the Commission’s expectation that all Member
States would step up to their common responsibilities. As explained
above, however, the Pact promotes dierentiation. It pursues a notion of
solidarity that allows Member States’ ministries of interior to free-ride
or ‘opt out’ of delivering the fundamental right to seek asylum in the EU.
Yet, why should it be acceptable that only a handful of Member States
take responsibility for relocation and the EU Charter of Fundamental
Rights, when others don’t? And why give that option to some EU govern-
ments, such as Hungary and Poland, which are currently under Article
7 TEU procedures for engaging in systematic threats to the rule of law
and institutionalised forms of discrimination and xenophobia towards
refugees and migrants?
e Pact’s inclusion of expulsions within the EU notion of solidarity
reveals an interstate or intergovernmental understanding of EU respon-
sibility sharing in the CEAS, where the individual’s protections, rights
and agency are le at the periphery. It also problematically expands the
scope of the Lisbon Treaty principle of solidarity and the fair sharing of
responsibility for expulsions, including third-country cooperation and
readmission policy (See Section 4 below).
e Pact’s notion of solidarity pays no attention to solidarity towards
individuals, including undocumented migrants and applicants for and
beneciaries of international protection. It is regrettable that the individ-
uals’ own legitimate reasons to stay or go are not taken into consideration
in the context of relocation or return sponsorships. is is particularly
worrying in the context of return sponsorships, where individuals could
be caught in a game of ‘ping-pong’ and be forced to relocate or involun-
tarily travel to Member States where they don’t want to go. Moreover, the
Pact should have made it clear that Member States are not free to choose
or select applicants based on criteria such as nationality, ethnic origin or
religion, ‘integration potential’ or even recognition rates, as these clearly
amount to discrimination prohibited under EU law and international
refugee law (Carrera et al., 2019d).
Flexibility is clearly not a panacea. ere are several lessons to be
learned from the recent experiences of relocation and disembarkation
arrangements implemented in the Mediterranean during 2018 and
2019 (Carrera and Cortinovis, 2019b). ey have le too much room
13
Sergio Carrera
for manoeuvre in the hands of EU Member States, putting the Commis-
sion in a weak coordination and dubious diplomatic role that goes well
beyond its competences as ‘guarantor of the Treaties’. ey also lack any
meaningful tools to ensure their enforcement and the full compliance
with existing EU asylum and border legal standards in the various phases
that comprise their practical implementation, including the involvement
of Frontex and EASO.
Flexible solidarity is one expression of intergovernmentalism
(Carrera and Cortinovis, 2019c). It leads to fragmentation in European
cooperation on an issue that lies at the very core of the EU’s foundations,
and where common action is essential. e enjoyment of equal rights and
benets stemming from membership in the EU carry similarly equal
responsibilities for Member States governments. Flexibility can be seen as
‘less EU’ and it weakens the possibilities for the EU to fully accomplish a
harmonised immigration and asylum policy that is consistent, ‘common’
and integrated.
e Luxembourg Court has provided few hints as to the scope of the
EU principle of solidarity in asylum policy. In its judgment of 2 April
2020 (Cases C 715/17, C718/17 and C719/17) European Commission v
Poland, Hungary and Czech Republic, the Court found that these gov-
ernments had violated their obligations to implement and participate in
the Relocation Decisions 2015/1523 and 2015/1601. It also held that any
practical issues must be resolved in the spirit of cooperation and mutual
trust between the authorities of the Member States that are beneciaries
of relocation and those of the Member State of relocation. e Court
concluded that the responsibility towards Italy and Greece “…must, in
principle, be divided between all the other Member States, in accordance
with the principle of solidarity and fair sharing of responsibility between
the Member States, which in accordance with Article 80 TFEU, governs
the Union’s asylum policy.”
1.5 Externalisation
When it comes to prioritising expulsions orders, the Pact relies heavily
on international cooperation instruments focused on ‘externalisation’, i.e.
placing migration management at the heart of the EU’s external relations.
ese instruments take the shape of what the Pact calls ‘Migration
Partnerships’, which are non-legally binding arrangements or ‘deals’
14 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
(not qualifying as international agreements) with non-EU countries.
Examples are the EU-Turkey Statement or third country readmission
arrangements with African countries such as Ethiopia, Ghana, Niger or
Nigeria (Carrera et al., 2019a; Carrera et al., 2019b). ey oen come
along with crisis-led funding instruments (e.g. EU trust funds), and give
clear priority to expulsions, border management, countering human
smuggling, and the facilitation of readmissions and returns.
Despite the many legal and practical challenges characterising the
implementation of EU Readmission Agreements (Carrera, 2016), the
Pact continues with the long-standing EU policy position that “readmis-
sion must be an indispensable element of international partnerships”.
e importance given to readmission in the Pact is also reected in
Article 7 of the Proposal for a new Asylum and Migration Management
Regulation COM(2020) 610. e focus on readmission means that EU
Migration Partnerships can be better understood as Insecurity Part-
nerships (Carrera and Hernández i Sagrera, 2009). ese are premised
on the Pact’s readmission priority, which is closely interrelated to visa
facilitation/liberalisation-conditionality, development cooperation, trade
policies and investments. e Pact expressly foresees the possibility of
applying restrictive visa measures to nationals of countries not cooper-
ating on readmission.
e Pact conrms the EU’s commitment at the UN Global Refugee
Forum of December 2019 “to providing life-saving support to millions
of refugees and displaced people, as well as fostering sustainable develop-
ment-oriented solutions”. However, it then emphasises that development
cooperation “will continue to be a key feature in EU engagement with
countries, including on migration issues”. Such an EU-centric approach
contradicts the UN GCR objective for development assistance to ensure
a true “spirit of partnership, the primacy of country leadership and
ownership”.
Furthermore, and based on examples such as the EU-Jordan Compact
(Panizzon, 2019), the Pact pursues a ‘root causes approach’ aimed at
misusing trade and investment policies at the service of containment, or
as deterrence tools for preventing refugees from reaching the EU. More
attention needs to be paid to how these initiatives aect or change the dis-
tribution of the overall workload or the tasks involved in implementing
the cognitive dimensions of the Pact by third countries while upholding
15
Sergio Carrera
human rights, international labour standards and the rule of law in inter-
national relations.
All this reveals a thematic intersectionality in EU external migration
policies and a continued focus on migration management as insecurity.
e Pact gives no consideration to the lessons learned from the inef-
fectiveness of past so-called ‘Partnerships’. It pays no attention to their
negative impacts on African countries’ regional integration processes
on free movement and regional human rights’ systems. e attempt to
transfer and implement EU migration management and crime-control
concepts and projects oen do not match up to local socio-economic
realities in relevant non-EU countries. ey generally lead to harmful
eects, including the nurturing of insecurity, illiberal agendas, and
economic inequalities and human rights’ violations.
e Pact explicitly refers to the UN Global Compact on Refugees
in its Recommendation on legal pathways to protection in the EU:
promoting resettlement, humanitarian admission and other comple-
mentary pathways C(2020) 6467 (European Commission, 2020h), which
names the Global Refugee Forum and UNHCR’s three-year strategy
(2019-2021) on resettlement and complementary pathways. It calls on
EU Member States to “take a global leadership role on resettlement” and
“counter the current trend of a decreasing number of resettling countries
globally and a sharp drop in resettlement pledges” (UNHCR, 2020). It
also calls on Member States to participate in the EASO Resettlement and
Humanitarian Admission Network, which blurs its relationship with the
global and international protection-based role played by UNHCR in this
same domain.
In addition to resettlement, the Recommendation includes a call to
develop “other forms of legal pathways to Europe for vulnerable people
in need of international protection”, such as “humanitarian admission
models” (including through study and work-related schemes), “Talent
Partnerships” and community and private sponsorships. While all these
instruments are ocially presented in the context of ‘mobility’, some of
these constitute examples of a ‘contained mobility approach’ (Carrera and
Cortinovis, 2019a). ese combine containment aspects, e.g. non-ad-
mission and non-arrival policies, with others on mobility that present
selective, discriminatory, exclusionary and restrictive features.
16 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
By way of illustration, key challenges in the design and implemen-
tation of resettlement and other humanitarian admission programmes
include the obligation to ensure the integrity, certainty and non-discrim-
inatory nature of their selection and eligibility procedures, as well as their
additionality to access to asylum. According to UNHCR, resettlement is
“a tool to provide protection and a durable solution to refugees rather than
a migration management tool”, and it is not “an alternative to providing
access to territory to asylum seekers” (UNHCR, 2016). However, the
2016 Commission proposal on a Union Resettlement Framework has
been criticised for including (among the factors for choosing priority
countries for resettlement) their cooperation on readmission and their
use of safe-country notions (Carrera and Cortinovis, 2019a).
1.6 Refugee protection, human rights and the rule of law
e UN GCR is “grounded on the international refugee protection
regime” and “is guided by relevant international human rights instru-
ments”. e dual understanding of individuals as either ‘non-returnable
refugees’ or ‘expellable irregular immigrants’ carries major implications
for refugee protection and human rights more generally. It articially and
wrongly relabels people with legitimate claims of international protection
as irregular immigrants or expellable asylum seekers. e Pact’s prior-
ities of localisation, speed and externalisation lay bare central questions
of legal responsibility and accountability by state authorities and other
implementing actors (including EU Agencies like Frontex and EASO) in
cases of human rights’ violations and/or non-compliance with EU law.
Flexibility does not apply with respect to safeguarding international
refugee law and human rights. All Member States abide by a commitment
to eectively respect and protect the fundamental rights of all immi-
grants, irrespective of their administrative status and means of arrival
(Carrera, Lannoo, Stefan and Vosyliute, 2018). Similarly, non-EU gov-
ernments are subject to the scrutiny of international and regional human
rights systems and monitoring bodies and courts. e dualistic framing
of people pursued by the Pact poses challenges to the very essence of
the rule of law, including the unnegotiable duty to avoid arbitrariness by
state authorities, and to ensure human dignity and access to justice for
everyone (Carrera, 2020).
Moreover, contrary to the de-territorialisation strategy characterising
17
Sergio Carrera
the Pact’s pre-border screening and border procedures, the obligation to
comply with international refugee law and human rights and EU law is
not limited to what is legally framed by states as ‘territory’. Responsibility
and liability for rights violations actually follow any actions or inactions
by Member States and EU Agencies irrespective of where they happen as
they are captured by de facto or de jure control notions, and fall within
the scope of EU legislation or autonomous concepts of EU law such as
‘detention’ (Carrera et al., 2018).
e Pact’s Proposal for a Regulation on screening at the external
borders COM(2020) 612 nal, in Article 7, provides for the obligation
by EU Member States to set up “an independent monitoring mechanism”.
is mechanism aims to safeguard fundamental rights “in relation to the
screening, as well as the respect of the applicable national rules in the case
of detention and compliance with the principle of non-refoulement”. e
Proposal calls on Member States to ensure that individual complaints are
dealt with “eectively and without undue delay.”
e proposal for a fundamental rights’ mechanism is most welcome
in light of the many barriers to eective remedies and justice that individ-
uals face in the context of border management procedures. However, any
such complaint mechanism can only be meaningful if its eectiveness
and independence from national authorities and relevant EU agencies
(e.g. Frontex) is fully guaranteed (Carrera and Stefan, 2018), and if it
covers the entire range of border procedures, including – and especially
– in relation to those foreseen in what the Pact calls “crisis situations”.
e proposal correctly emphasises the need to guarantee the inde-
pendence of such a mechanism, and to ensure a key role by the EU
Fundamental Rights Agency (FRA) to support and provide guidance to
Member States in its establishment. To this end, such a ‘Border Monitor’
should envisage a key role for the European Ombudsman, and its network
of national ombudspersons as well as national Data Protection Author-
ities (DPAs). It should also make sure that individuals have eective
access to procedures, chiey legal aid and civil society actors and human
rights defenders, which should not be criminalised or policed in any way
or form in their independent provision of humanitarian assistance and
SAR activities (European Commission, 2020g), as well as in their role as
fundamental rights watchdogs and key sources of social trust in demo-
cratic societies (Carrera et al., 2019c).
18 1. Whose Pact? The Cognitive Dimensions of the EU Pact on Migration and Asylum
1.7 Conclusions
e new Pact on Migration and Asylum ‘sets the tone’ of the European
Commission’s policy priorities on migration, borders and asylum during
the EU’s 9th legislature. e Pact gives priority to Member States’ agendas
in an area where the EU already benets from legal competence under
the EU Treaties, where there are solid common EU legal standards,
and where QMV and the co-legislator role by the European Parliament
strictly applies.
e Pact does not pursue a genuine Migration and Asylum Union.
It runs the risk of pursuing intergovernmentalism, of establishing a
European asylum system of asymmetric interstate solidarity and legiti-
mising Member States’ policies focused on speed, localisation and exter-
nalisation. EU Member States should be held accountable to their legal
responsibilities, including under current CEAS and Schengen Borders
Code standards. Solidarity towards individuals and the upholding of
everyone’s rights and dignity needs to be placed at the heart of EU policies.
Inter-institutional negotiations will follow the legislative proposals
that the Pact comprises. ese should focus on initiatives that prioritise
eective access to eective remedies, independent monitoring and eval-
uation of Member States and EU agencies’ compliance with international
and EU human rights and rule of law standards, in full compliance with
the EU Treaties and the UN GCR. ese are the essential preconditions
for the mutual trust principle to stand in EU migration, borders and
asylum policies.
19
Sergio Carrera
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25
2. The Pact and Refugee Resettlement:
Lessons From Australia and Canada
Adèle Garnier
2.1 Introduction
Most refugees in the European Union (EU) are granted protection
following an asylum claim on EU territory. Yet the new EU Migration
and Asylum Pact strongly supports the expansion of refugee resettle-
ment. is Chapter explores whether there are lessons to be learned from
two countries in which most refugees are admitted through refugee reset-
tlement: Australia and Canada.
e Australian and Canadian experiences show that refugee resettle-
ment is strengthened by inclusive politics and civil society involvement
in resettlement policies. Still, resettlement remains a marginal contribu-
tion to international protection. Hence, the contribution recommends
that the EU strongly support inclusive resettlement politics and policies
while strengthening access to asylum, which should remain the main
instrument of humanitarian protection in the EU.
2.2 Expansion and increased advocacy for resettlement
in the EU
Refugee resettlement is the voluntary admission by states of refugees
from countries in which it is not sustainable for them to stay (Garnier
et al., 2018). Contrary to asylum, resettlement is not codied in interna-
tional law.
In the last decade, refugee resettlement to European Union (EU)
26 2. The Pact and Refugee Resettlement: Lessons From Australia and Canada
Member States has signicantly increased, from 4,050 resettled refugees
in 2011 to 24,815 in 2018 (European Commission, 2019). Between
October 2017 and October 2019, EU Member States pledged to resettle
50,000 refugees, yet resettled 37,520 over this period (Wills, 2019). 14
Member States (including the United Kingdom) have pledged to resettle
almost 30,000 refugees in 2020 (European Commission, 2020a). In the
EU Migration and Asylum Pact, this pledge was made to cover 2020
and 2021 (European Commission, 2020b: 22) to account for resettle-
ment delays caused by travel bans adopted in response to the COVID-19
pandemic (Garnier, 2020).
e development of an EU-wide resettlement framework has been
promoted by the European Commission since 2000 (Garnier 2014).
EU funding has been made available to support resettlement places in
Member States as well as multi-stakeholders initiatives promoting reset-
tlement, such as the European resettlement network (European Reset-
tlement Network, n.d). A dra directive aiming to establish an EU joint
Resettlement Framework has been in the legislative pipeline since 2016,
yet negotiations between the European Parliament and the Council have
not progressed since 2018 (European Parliament 2021).
In 2017, then EU Migration Commissioner Dimitris Avramopoulos
stated that refugee resettlement ‘should become the preferred way for
refugees to receive protection’ (European Commission, 2017). e EU
Migration and Asylum Pact unveiled on 23 September 2020 (European
Commission, 2020b) demanded that the EU resettlement eorts be
‘scaled up’, with the recommendation to adopt a Framework Regulation
on Resettlement and Humanitarian Admission (European Commission,
2020c).
Yet EU Member States admit far more refugees following an asylum
claim on EU territory. In 2019, 109,000 persons were granted refugee
status in the EU (Eurostat, 2021). A further 52,000 were granted sub-
sidiary protection and 45,100 the authorisation to stay for humanitarian
reasons. e EU Commission argues that refugee resettlement ‘helps
save lives, reduce irregular migration and counter the business model of
smuggling networks’ (European Commission, 2020c: 2). e Commis-
sion thus presents resettlement as an alternative to seeking asylum aer
an irregular migration journey.
What about refugee resettlement in countries in which most refugees
27
Adèle Garnier
are admitted through resettlement? Are there lessons to be learned? e
following highlights Canada’s and Australia’s refugee resettlement expe-
rience with a focus on relations between resettlement and asylum; on
the role of civil society in resettlement policies; and on contributions to
international protection, to draw lessons for the EU.
2.3 Canada’s and Australia’s refugee resettlement
2.3.1 Resettlement vs asylum?
Given that refugee resettlement is not based on international law, politics
can play a considerable role in expanding or contracting refugee resettle-
ment. Most strikingly, the United States of America (US), the traditional
resettlement leader, have drastically reduced resettlement admissions
under the former Trump administration (Krogstad, 2019) as part of a
broader anti-immigration agenda (Pierce and Bolter, 2020).
Canada and Australia have long been in the top 3 of countries reset-
tling the most refugees and in the last decade experienced resettlement
increases (Cellini, 2018). Yet in Canada, contrary to Australia, resettle-
ment was not framed as an alternative to asylum.
In Canada, the death by drowning of Syrian boy Alan Kurdi in Turkey
contributed to a strong pro-resettlement mobilisation in the wake of the
2015 federal election campaign (Parry, 2015). Justin Trudeau’s centre-le
Liberal Party promised to resettle 25,000 Syrian refugees within three
months if the Liberals won the 2015 federal election. Once on power,
the Trudeau government delivered on its promise (Associated Press,
2016), though this timeline was judged too ambitious at the time by some
immigrant settlement organisations (CBC News, 2015). Canada has since
slightly increased the country’s annual resettlement intake compared to
before 2015 and is now the world’s resettlement leader (Radford and
Connor, 2019). Canada resettled 28,076 refugees in 2018 (Immigration,
Refugees and Citizenship Canada, 2019).
Canada’s resettlement increase was not related to an increase of
asylum claims on Canadian territory. Still, asylum claims in Canada have
considerably increased since 2015. Canada’s political rhetoric on asylum
is warier than political discourse on resettlement (Canadian Press, 2018),
28 2. The Pact and Refugee Resettlement: Lessons From Australia and Canada
yet Trudeau has stressed the legitimate nature of asylum claims made
at its borders, and has increased resources to be able to deal with up to
50,000 asylum claims by 2021 (Immigration, Refugees and Citizenship
Canada, 2019).
Australia experienced two resettlement increases in the 2010s, one of
which was tied to increased restrictiveness towards asylum-seekers. In
2012, Australia’s resettlement intake increased by 40% to 20,000 places
under the centre-le Labor government of Julia Gillard (Gillard, 2012).
Such increase had for years been promoted by refugee advocates (Refugee
Council of Australia, 2012). Yet it occurred in the context of a very sig-
nicant increase of asylum claims made by people who had arrived in
Australia by boat (dubbed ‘irregular maritime arrivals’, IMAs). However,
the resettlement increase, according to the Prime Minister, targeted
‘those in most need: those vulnerable people oshore, not those getting
on boats’. IMAs would get ‘no advantage’ in gaining access to humani-
tarian protection in Australia (Gillard, 2012). In fact, at the same time of
the resettlement increase, Australia reintroduced its earlier policy of pro-
cessing IMAs’ asylum claims in other countries in its region, the so-called
Pacic Solution (Davidson, 2016).
e centre-le Labor government of Kevin Rudd, in 2013, introduced
a ban on the grant of permanent protection in Australia to IMAs (Rudd,
2013). Yet Labor lost the 2013 federal election to the centre-right Liberal/
National Coalition of Tony Abbott. Abbott’s main campaign slogan had
been ‘stop the boats’ (Rourke, 2013). His government returned the reset-
tlement intake to its pre-2012 level of 13,750, until it was pressured by
civil society and state governments to increase resettlement in response
to the Syrian crisis (Yaxley, 2015). is led to the one-o resettlement
of 12,000 Syrian and Iraqi refugees between 2015 and 2017 (Woodley,
2015), followed by an increase of the country’s annual resettlement intake
to 18,750. Australia’s refugee politics demonise asylum-seekers. A recent
government-sponsored review argued such rhetoric had a nefarious
impact on refugees at large (Shergold et al., 2019). e Australian govern-
ment delayed the release of its ndings by several months (Stayner, 2019).
29
Adèle Garnier
2.3.2 Civil society involvement in resettlement policies
In Australia and Canada, civil society mobilisation played a key role
in increasing resettlement. is role is, overall, more institutionally
entrenched, and more incentivised, in Canada.
One policy step at which Australian civil society appears to play a
greater role is in consultations ahead of the government’s announcement
of the annual resettlement intake. e Refugee Council of Australia, the
peak body representing Australian refugee advocates, releases an annual
report presenting community views on the country’s refugee intake (see,
for instance, Refugee Council of Australia, 2018). ese views are taken
in consideration in policy design (UNHCR, 2018: 4). ough dialogue
between its Canadian equivalent, the Canadian Council for Refugees,
and the immigration bureaucracy, is sustained, there is no such annual
report in Canada. Australia’s consultative process is laudable. Yet it is no
guarantee the government will listen.
Canadian civil society is essential to the country’s private refugee
sponsorship program (Immigration, Refugees and Citizenship Canada,
2020). Groups of at least ve Canadians, as well as larger organisations,
can enter agreements with the Canadian government to nancially
support the arrival and settlement of people in refugee and refugee-like
situations. Private refugee sponsorship was formally established in the
1970s in the context of the Indo-Chinese refugee crisis and legal scholar
Audrey Macklin has called it a ‘permanent component of immigration
policy’ (Macklin, 2018). Today, most resettled refugees in Canada are
privately sponsored rather than assisted by the government of Canada. In
2018, 18,156 resettled refugees were privately sponsored and 8,156 were
government-assisted (Immigration, Refugees and Citizenship Canada,
2019).
In 2015, when Trudeau announced its electoral promise to resettle
25,000 Syrian refugees within 3 months, hundreds of local groups
signalled they were ready to sponsor (CBC News, 2015). e Trudeau
government supports the Global Refugee Sponsorship Initiative, through
which Canada public authorities, private organisations and the United
Nations’ High Commissioner for Refugees (UNHCR) foster the estab-
lishment of refugee sponsorship programs overseas (Global Refugee
Sponsorship Initiative, n.d.).
30 2. The Pact and Refugee Resettlement: Lessons From Australia and Canada
For decades, Australia has also allowed private individuals to sponsor
the resettlement of refugees and people in refugee-like situation, yet
without encouraging sponsors’ direct involvement in refugee settlement
once in Australia.
Following strong civil society demands for a scheme akin to Canada’s
private sponsorship, a community sponsorship program was eventually
piloted in 2013 (Department of Home Aairs, 2018). Its capacity is 1,000
places yet this quota has never been lled. In 2018/2019, 563 refugees
were resettled as part of this stream, in contrast to 7,098 whose admission
was supported by individuals, and 9,451 government-assisted refugees
(Department of Home Aairs, 2020). Refugee advocacy groups (Refugee
Council of Australia, 2019) and scholars (Hirsch et al., 2019) have been
highly critical of the community sponsorship program’s narrow eligibility
criteria, such as evidence of an employment oer and English prociency,
as well as its exorbitant cost. Notably, Australia does not participate in the
Global Refugee Sponsorship Initiative.
2.3.3 Contribution to international protection
Canadian and Australian politicians (Glavin, 2019; ABC News Factcheck,
2018) insist on their countries’ generosity through their substantial con-
tribution to global refugee resettlement. Yet less than 1% of the world’s
refugees are resettled each year, whereas more than 80% of the world’s
26 million refugees reside in developing countries, mostly close to their
countries of origin (UNHCR, 2020).
For this reason, even resettlement advocates acknowledge that the
‘protection dividends’ of investments in resettlement programs are con-
siderably smaller than support to refugees in regions of origin, while
some populations, such as Syrians, have in recent years far more strongly
benetted from resettlement than others, particularly African refugees
(Macklin, 2018).
Strong emphasis on the vulnerability of resettled refugees has
its ambivalences as it can devaluate refugee agency (Neikirk, 2017).
Resettled refugees may be perceived as victims who contribute less to
their countries of admission than other categories of immigrants, rather
than people able to advocate for themselves through long and complex
resettlement procedures (Sandvik, 2011) and dealing with considerable
structural disadvantages in host societies (Jenkinson et al., 2016).
31
Adèle Garnier
2.4 Which lessons for the EU?
In contrast with EU Member States, Canada and Australia admit most
refugees through resettlement rather than following an asylum claim.
is Chapter recommends against the adoption of resettlement as the
main mode of refugee admission to the EU because resettlement is not
based on international law and is highly sensitive to domestic politics.
Rather, the Chapter recommends emphasising additionality between
refugee resettlement and asylum and stressing that far more solidarity is
needed with developing countries, as developing countries host most of
the world’s refugees.
In the context of an increased focus on global solidarity, the Canadian
resettlement experience can be a model for EU Member States in terms of
inclusive politics and civil society involvement. In this respect, the Pact’s
incentivisation of community sponsorship (Tan, 2020; see Chapter 6) is
a step in the right direction. More EU Member States should be encour-
aged to take part in the Global Refugee Sponsorship Initiative supported
by Canada.
By contrast, the Australian experience shows that pitching reset-
tlement against asylum not only demonises asylum-seekers, but also
worsens the settlement experience of all refugees. It is to hope that the
EU will in the future refrain from framing resettlement as an alternative
to asylum. is framing risks further shrinking EU citizens’ willingness
to welcome any refugee in addition to reducing the availability of human-
itarian protection.
32 2. The Pact and Refugee Resettlement: Lessons From Australia and Canada
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Adèle Garnier
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36 2. The Pact and Refugee Resettlement: Lessons From Australia and Canada
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to-accepting-more-than-10,000-syrian-refugees/6756744).
37
3. The New Pact 0n Migration and
Asylum and The Global Compact on
Refugees and Solutions
Geoff Gilbert
e United Nations Global Compact on Refugees (GCR) of 2018 is a
document that tries to embrace all aspects of forcible displacement across
international borders in the 21st century (UNGA, 2018). is Chapter’s
review of the new EU Pact will focus principally on how it might facilitate
solutions for displacement in relation to the GCR, but necessarily there
rst has to be some more general analysis.
3.1 The GCR as framing the argument
e GCR may not be binding in international law (UNGA, 2018:
paragraph 4), but it still gives rise to commitments for the international
community as a whole. Its two principal elements pertinent to this dis-
cussion relate to burden- and responsibility-sharing and its focus on
solutions.
e 1951 Convention relating to the Status of Refugees and its 1967
Protocol, and the 1950 Statute of the United Nations High Commissioner
for Refugees (UNHCR) are directed towards protection of refugees in the
country of asylum, not so much on the inevitable burden that providing
protection entails, nor the ultimate protection, a durable and sustainable
solution to their displacement (UNGA, 1950; UNHCR, 1951; UNHCR
1967). Paragraph 4 of the Preamble to the 1951 Convention did call for
international co-operation:
CONSIDERING that the grant of asylum may place unduly heavy
burdens on certain countries, and that a satisfactory solution of
38 3. The New Pact on Migration and Asylum and The Global Compact on Refugees and Solutions
a problem of which the United Nations has recognized the inter-
national scope and nature cannot therefore be achieved without
international co-operation.
Nevertheless, it took until the GCR in 2018 to put “esh” on those
bare bones. As UNHCR gures show, there are 79.5 million displaced
persons of concern to UNHCR, of whom 20.4 million are refugees and
4.2 million are asylum seekers; 73% live in neighbouring countries to
those that they have ed, oen alongside the 45.7 million internally
displaced persons (IDPs) who are also of concern to the organisation.1
Of the top ve hosting states, only Germany is in the global north: 80%
of displaced persons of concern to UNHCR live in states where there is
acute food insecurity and malnutrition.
In these circumstances, where the modal average length of a situation
of displacement is around eighteen years, it is little wonder that the devel-
opment actors play such an important role in the GCR, while UNHCR
maintains its unique protection mandate for all refugees, including
asylum seekers and returnees without a durable and sustainable solution.
Some aspects of the new EU Pact have a direct impact on how the
GCR’s guiding principles and objectives (UNGA, 2018: paragraphs 5
and 7) are to be achieved – as the new Communication on the new Pact
(European Commission, 2020a: 18) states, the EU is the “the world’s
major development donor”.
As regards durable and sustainable solutions, the traditional three are
voluntary repatriation, resettlement or local integration. e GCR rec-
ognised a fourth means for responding to displacement, complementary
pathways for admission to third countries (UNGA, 2018: paragraphs
94-96). ere is, however, language in those paragraphs that indicates
that complementary pathways are not durable and sustainable, with ref-
erences to student scholarships and labour mobility. If the objective is to
provide the refugee with the sustainable international protection of a state
rather than that upheld by UNHCR under its mandate, then studentships
and labour mobility schemes do not oer that guarantee, at least in the
rst instance, although they may facilitate one of the traditional durable
solutions and provide the refugee with the capacity to resolve their own
situation.
1 is year’s gures include 3.6 million Venezuelans displaced abroad, alongside the
93,300 refugees and 794,500 asylum seekers – 4.5 million Venezuelans in total.
39
Geoff Gilbert
3.2 The new EU Pact and the GCR
It is always worth mentioning that the EU’s approach of joining asylum
with migration is fundamentally awed, regardless of how long they have
persisted with it. Asylum is about protection and immigration is about
controlling borders (Gilbert, 2004; Carrera, 2020).
e idea that the new EU Pact’s focus should be “a common
framework for asylum and migration management at EU level as a key
contribution to the comprehensive approach and seeks to promote mutual
trust between the Member States” does undermine the primacy of refugee
protection as set out in the EU Proposal for a Regulation (European
Commission, 2020b: 2).
Nevertheless, in the context of solutions, some aspects of the new
Pact may be facilitative (see European Commission, 2020c: paragraphs 3
and 6). Equally, those elements relating to prevention, development aid
and migration as a way to end refugee status and protect the dignity of
refugees could be helpful (see European Commission, 2020a: §§6.2, 6.3,
6.5).
3.2.1 Prevention
e cynical view within the 1990s was that there was no such thing as
post-conict, just a pause before it was pre-conict again. Nevertheless,
the link between development assistance and prevention is well estab-
lished and is even built into the Responsibility to Protect (UNGA, 2005:
paragraph 139; Gilbert, 1998):
139 … We stress the need for the General Assembly to continue
consideration of the responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against
humanity and its implications, bearing in mind the principles
of the Charter and international law. We also intend to commit
ourselves, as necessary and appropriate, to helping States build
capacity to protect their populations from genocide, war crimes,
ethnic cleansing and crimes against humanity and to assisting
those which are under stress before crises and conicts break out.
40 3. The New Pact on Migration and Asylum and The Global Compact on Refugees and Solutions
e new EU Pact takes this further and should be read with para-
graphs 8 and 9 of the GCR (UNGA, 2018):
8 … In the rst instance, addressing root causes is the responsi-
bility of countries at the origin of refugee movements. However,
averting and resolving large refugee situations are also matters
of serious concern to the international community as a whole,
requiring early eorts to address their drivers and triggers, as well
as improved cooperation among political, humanitarian, develop-
ment and peace actors.
In line with the Sustainable Development Goals, the international
community, including the EU, should provide development assistance
(UNGA, 2015). e new EU Pact takes a similar line in §6.3 when it
asserts that (European Commission, 2020a):
Conict prevention and resolution, as well as peace, security and
governance, are oen the cornerstone of these eorts. Trade and
investment policies already contribute to addressing root causes
by creating jobs and perspectives for millions of workers and
farmers worldwide. Boosting investment through vehicles such as
the External Investment Plan can make a signicant contribution
to economic development, growth and employment.
On the other hand, while the new Pact has some useful language
regarding long-term prevention through addressing root causes, there are
other references that indicate an EU-centric attitude that will not aect
global fairness and reduced displacement. In the new EU Pact, §2.4 of the
document talks about how “[the] new Asylum and Migration Manage-
ment Regulation will … improve planning, preparedness and monitoring
at both national and EU level”, rather than solidarity with the states in
low- or middle-income countries who host 83% of the world’s refugees
according to UNHCR (European Commission, 2020a: §2.4; UNHCR,
2019: 25); as such, the focus once again seems to be on averting another
2015 European asylum crisis that never was a crisis given the wealth
of EU Member States and the very limited numbers they were dealing
with by comparison with many other low- or middle-income countries
(UNHCR, 2019: 25, Fig.2).
41
Geoff Gilbert
3.2.2 Burden- and responsibility-sharing and local integration
Predictable and equitable burden- and responsibility-sharing is funda-
mental to all of the GCR (UNGA, 2018: paragraph 3). In this particular
context, given the protracted nature of most displacement crises and that
most displaced persons only cross one border according to the World
Bank (2017: 23), supporting the low- or middle-income countries who
host most refugees is part of the solution to the crisis. Solutions start from
the moment of protection, as human rights and the rule of law protect
refugees in the country of asylum.
e traditional durable and sustainable solutions are the endpoint
of an international protection framework that is based on resolving the
issues to which displacement gives rise: denial of access to education,
employment and healthcare, interference with the guarantees the rule of
law should oer, and the upholding of human rights. Some of the new
Pact targets these problems refugees face during their situations of dis-
placement. e new EU Pact states at §6.2 that (European Commission,
2020a: §6.2):
… [e] EU is determined to maintain its strong commitment to
providing life-saving support to millions of refugees and displaced
people, as well as fostering sustainable development-oriented
solutions.
Nevertheless, this is a perfect example of why the new Pact might
be evidence of hope triumphing over expectation. Niger has provided
incredible support to forcibly displaced persons for years,2 but according
to the UNDP Human Development Index for 2020 (UNDP, 2020), Niger
came 189th out of 189 countries. e EU should not be ‘solving’ forced
displacement and providing protection through transfer to one of the
poorest countries on the planet.
What is also true, however, is that whether formally or not, lots of
forcibly displaced persons remain for protracted periods in the country
of asylum and settle there. As will be seen, where voluntary repatriation
is not possible, refugees have few options other than to make a new life
in the country giving protection. e generosity of many countries of
asylum in this regard, though, cannot be abused by the international
2 For further discussion, see Gilbert and Rüsch, ‘Rule of Law and UN Interoperability’,
30, International Journal of Refugee Law, 31 at 35 and fn.136, (2018).
42 3. The New Pact on Migration and Asylum and The Global Compact on Refugees and Solutions
community and, thus, EU initiatives with respect to development, also
indicated in the new Pact, will inevitably play a large part in solutions.
According to the new EU Pact §6.3 (European Commission, 2020a: §6.3):
e EU is the world’s largest provider of development assistance.
is will continue to be a key feature in EU engagement with
countries, including on migration issues. Work to build stable and
cohesive societies, to reduce poverty and inequality and promote
human development, jobs and economic opportunity, to promote
democracy, good governance, peace and security, and to address
the challenges of climate change can all help people feel that their
future lies at home.
It may not be what low- or middle-income countries hoped for during
the Formal Consultations on the GCR, but without robust engagement
with the source states, which have predominantly remained the same
since the 1990s (World Bank, 2017: 23), voluntary repatriation will not
resolve displacement crises.
3.2.3 Resettlement and complementary pathways
Resettlement is one of the classic durable and sustainable solutions, but
it is less and less available, such that only for the most vulnerable will it
provide a means of ending refugeehood. e Commission Recommen-
dation on legal pathways to protection in the EU supports the expansion
of resettlement programmes within the EU. But even so its impact on
low- or middle-income countries that host so many refugees would still
be minimal because the base gure is so low – 107,800 in a mere 26
countries worldwide in 2019 according to UNHCR gures.
e proposed Commission Recommendation on legal pathways to
protection in the EU is a positive move by the EU, although the role of the
European Asylum Support Oce (EASO) alongside UNHCR needs to be
further developed. Complementary Pathways are an additional solution
listed in the GCR (UNGA, 2018: paragraphs 94-96), but whether they
will always be durable and sustainable like the traditional ones is open to
question. e EU Pact deals with one very specic aspect of this in §6.6,
the migration control eected through visa requirements for short-term
mobility.
43
Geoff Gilbert
e remaining aspects of the proposed Commission Recommenda-
tion on legal pathways to protection in the EU apply equally to reset-
tlement and complementary pathways. e aim of trying to ensure that
forcibly displaced persons do not have to resort to irregular migration
or even people smugglers is to be commended (European Commission,
2020a: §6.6), but unless that reects eective access rather than simply
top slicing particular refugees based on limited skill sets that only suit
EU Member States (European Commission, 2020c: paragraphs 19 and
21), then no noticeable change will take place. It will also reduce the skill-
base in the country of nationality for when transition towards peace and
stability can commence.
To start, resettlement is a humanitarian response that benets
refugees and the countries of rst asylum, usually low- or middle-income
countries, it is not a means by which to “match people, skills and labour
market needs through legal migration” (§6.6, EU Pact). at might be
applicable to complementary pathways, but not resettlement as is clear
from the Pact’s own description of the Union Resettlement and Human-
itarian Admission Framework Regulation. e Pact also encourages
broader community engagement with resettlement programmes that
again reects positive aspects of the GCR (UNGA, 2018: see paragraph
91 read in the light of paragraphs 33-44).
3.2.4 Voluntary repatriation
Oen spoken of as the most desired solution by refugees and countries
of asylum, voluntary repatriation relies on restoration of human rights
and rule of law in the country of nationality, along with substantial devel-
opment initiatives. UNHCR can ensure that voluntary repatriation does
lead to durable and sustainable solutions for returning refugees through
monitoring, but the international community as a whole will provide the
framework.
e EU has a major role to play in peace building and conict reso-
lution, not only as regards addressing the root causes, not just vis-à-vis
prevention, but also to encourage voluntary repatriation (European
Commission, 2020a: §6.3). While there is much in the new Pact on the
economic initiatives and on return programmes where people do not
require protection, more on restoring human rights, rule of law and good
governance would have been welcome.
44 3. The New Pact on Migration and Asylum and The Global Compact on Refugees and Solutions
Conclusion
e Pact on Migration and Asylum has once again missed the oppor-
tunity to put the EU at the forefront of resolving the global displace-
ment crisis. It focuses on internal EU concerns and aims at pushing the
problem away, oen with a cynical reference to how that will protect
so many from the dangers they might face in trying to reach Europe.
When only 17% of persons of concern to UNHCR were in high-income
countries in 2019, the need to support low- or middle-income countries
and to oer enhanced protection and assistance to refugees should have
been the outward-looking drivers for this review. International protec-
tion standards have been sacriced in the (vain?) hope of achieving a
compromise within the EU.
45
Geoff Gilbert
References
Carrera S. 2020 – ‘Whose Pact? e Cognitive Dimensions of the New
EU Pact on Migration and Asylum’, Policy Insight Kick-o Contribu-
tion to the ASILE Forum.
European Commission (2020a), Communication from the Commission
to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions on a New Pact
on Migration and Asylum, COM(2020) 609 nal, Brussels, 23.9.2020.
European Commission (2020b), Proposal for a Regulation of the
European Parliament and of the Council on asylum and migration
management and amending Council Directive (EC) 2003/109 and the
proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund]
(Text with EEA relevance), COM(2020) 610 nal, 2020/0279 (COD),
Brussels, 23.9.2020.
European Commission (2020c), Commission Recommendation of
23.9.2020 on legal pathways to protection in the EU: promoting
resettlement, humanitarian admission and other complementary
pathways, C(2020) 6467 nal, Brussels, 23.9.2020.
United Nations General Assembly (UNGA) (2018), Global Compact on
Refugees, UNGA res 73/151, Part II.
Gilbert G. 1998 – ‘Rights, Legitimate Expectations, Needs and Responsi-
bilities: UNHCR and the New World Order’, 10 International Journal
of Refugee Law 349 (1998), fn.1.
Gilbert G. 2004 – ‘Is Europe Living Up to Its Obligations to Refugees?’ 15
European Journal of International Law 963 at 968 (2004).
United Nations General Assembly (UNGA) (2005), UN World Summit,
Responsibility to Protect, UNGA res. 60/1.
United Nations General Assembly (UNGA) (2015), Transforming our
world: the 2030 Agenda for Sustainable Development, UNGA res.
70/1.
UNDP 2020 – Human Development Index (http://hdr.undp.org/en/
content/table-1-human-development-index-and-its-components-1).
UNHCR 2019 - Global Trends 2019 (www.unhcr.org/globaltrends2019/)
UNHCR gures – Figures at a Glance, (www.unhcr.org/uk/gures-at-a-
glance.html).
46 3. The New Pact on Migration and Asylum and The Global Compact on Refugees and Solutions
United Nations General Assembly (UNGA) (1950), Statute of the United
Nations High Commissioner for Refugees, UNGA res.428 (V).
United Nations High Commissioner for Refugees (UNHCR) (1951),
Convention relating to the Status of Refugees, 189 UNTS 137.
United Nations High Commissioner for Refugees (UNHCR) (1967),
Protocol to the 1951 Convention, 606 UNTS 265.
World Bank 2017 – World Bank, Forcibly Displaced, 2017, (https://open-
knowledge.worldbank.org/handle/10986/25016).
47
4. The Impact of the New EU Pact on
Europe’s External Borders: The Case of
Greece
Eleni Karageorgiou
4.1 Introduction
One of Europe’s major gateways since the early 2000s, Greece is, arguably,
the European Union’s asylum policy laboratory. It has long served as a
stark reminder of the limits of European asylum solidarity (Karageor-
giou, 2018) and of the shortcomings (den Heijer et al., 2016) of the
so-called Common European Asylum System (CEAS) as reected in the
narrowness (Carrera and Guild, 2010) of the logic of its cornerstone, i.e.
the Dublin system. is Chapter provides an analysis of the implications
of the new EU Pact on Migration and Asylum (European Commission,
2020e), hereinaer ‘the Pact’, on countries located at the external borders
of the EU, with focus on Greece.
e analysis highlights the extent to which measures on procedures,
detention and expulsions proposed in the Pact, essentially, institution-
alize a number of formal and ad hoc informal measures already carried
out by Greece, which have made it hard for refugees to access asylum,
have their claims examined in substance and rely on eective remedies.
e transformation of these measures, from national practices within
the context of an alleged temporary emergency situation into mandatory
rules applicable throughout the EU, raise a number of questions con-
cerning the self-proclaimed role of the EU as human rights guarantor in
the region, the compatibility of EU law with international standards, and
the fate of EU refugee policy.
48 4. The Impact of the New EU Pact on Europe’s External Borders: The Case of Greece
e analysis proceeds in two parts: the rst part provides a brief
overview of the evolution of asylum policy in Greece. It discusses the
ways in which the CEAS instruments have informed Greek law and
policy, and the extent to which Greek policy itself has inuenced devel-
opments at EU level (Section 4.2). e second part looks more speci-
cally at the CEAS reforms suggested in the Pact in relation to procedures,
detention, and expulsions and what these reforms imply for Greece and
the EU’s periphery more broadly (Section 4.3).
4.2 Greece and the constant state of ‘crisis’
4.2.1 Phase one: The ‘exceptionality’ of the Greek case
e asylum situation in Greece has been treated as being at a constant
state of ‘crisis’ since 2010 (UNHCR, 2010). Scarcity of resources and frus-
tration against the inequality of the EU Dublin system has le Greece
with little incentives to improve its piecemeal approach to asylum. Aer
a series of infringement proceedings initiated against it in 2009 and
2010 concerning the implementation of the EU asylum acquis, Greece
committed to reform its asylum and migration policy based on a national
Action Plan (Progress Report Greek Action Plan, 2013).
Although progress has been made especially aer the establishment
of the new Asylum Service, access to asylum and reception conditions for
international protection seekers remained challenging. European Courts
have repeatedly condemned Greece for failing to respect the fundamental
rights of migrants and applicants for international protection: inhumane
detention conditions (Council of Europe, 2009b), asylum seekers’ des-
titution (Council of Europe, 2011), and lack of procedural guarantees
(Council of Europe, 2013) during refugee status determination (CJEU,
2011) and expulsion (Council of Europe, 2016) processes, as reported by
the Council of Europe (Commissioner for Human Rights Report, 2009),
the UN (UNHCR, 2010), NGOs (HRW, 2009), and civil society (Greek
Council for Refugees, 2013).
49
Eleni Karageorgiou
4.2.2 Phase two: Syrian refugees and the 2015/2016 EU reception
and solidarity crisis
As a response to increased asylum demands in peripheral EU countries
in 2015, the EU adopted in the context of its Agenda on Migration
(European Commission, 2015a) two solidarity measures: the 2015
emergency relocation decisions (Council of the EU, 2015a; Council of
the EU, 2015b) and the 2016 EU-Turkey statement (European Council,
2016). Arguably, both measures have proved to be inadequate to relieve
Greece from excessive administrative, procedural, and substantive
burdens it faced following the arrival of a substantial number of refugees
on its territory (on relocation, see Guild et al., 2017). Instead, as I have
argued elsewhere (Karageorgiou, 2020), they have made sure that a new
set of obligations is imposed on those states within the context of the
“hotspots approach”.
e amendments introduced by the Greek government to domestic
legislation in order to render those EU measures immediately oper-
ational have raised serious concerns for access to asylum and human
rights (ECRE, 2016a). e Greek Law 4375/2016 enabled national
authorities to adopt exceptional measures at the borders in line with the
“hotspot approach”, considerably restricting the procedural guarantees
available to asylum-seekers subject to border procedures contrary to
European Courts case law (Council of Europe, 2015) and to the recast
Asylum Procedures (e.g. Art. 35, 43) and Reception Conditions Directive
(Art. 8). e processing of asylum applications on the Greek islands was
designed to facilitate the return to Turkey of all “irregular” migrants
and asylum-seekers arriving from there, broadening the possibilities
for declaring an asylum application inadmissible, as envisioned in the
EU-Turkey statement.
4.2.3 Phase three: Dealing with the consequences of the 2015/2016
crisis
In the aermath of 2015, Greece remained with thousands of people
stranded in overcrowded facilities on the Greek islands and in the
mainland, following the reintroduction of temporary border controls
applied by other EU Member States (Guild et al., 2015). At the end of
2019, Greece hosted approximately 186,200 (UNHCR, 2020a) refugees
50 4. The Impact of the New EU Pact on Europe’s External Borders: The Case of Greece
and asylum-seekers, receiving more asylum applications in 2019 (EASO,
2020) than during the 2015/2016 crisis. Based on recent statistics, Greece
has currently a backlog of nearly 100,000 asylum applications (Ansa,
2020).
Containment of refugees and asylum-seekers on the Greek islands
has been the norm since 2015 (Costello, 2020), despite a ruling by the
Greek Council of State in the opposite direction (ECRE, 2018). e newly
introduced Law 4636/2019 on ‘international protection and other provi-
sions’, essentially, crystallizes and advances already existing connement
and deterrence practices. Some of the major reforms introduced by the
new Law have included increasing of the maximum detention time for
rejected asylum-seekers, speeding up of refugee status determination
procedures involving one judge, narrowing the denition of vulnerable
groups by excluding persons suering from PTSD and lowering the
standard of protection a third country would have to provide to render an
asylum seeker’s claim inadmissible in Greece. ese have been criticized
as limiting protection contrary to European and international standards
(Greek Council for Refugees and OXFAM brieng, 2020).
4.2.4 Current phase: The containment crisis
It is against the background described above that a number of human-
itarian emergencies have been unfolding lately at the Greek-Turkish
border and on the Greek islands. Following bombings in Idlib, Syria in
February 2020, Greece violently (Αmnesty Ιnternational, 2020) refused
entry to Syrians arriving at the Evros land border, following Turkey’s
decision to open the doors for asylum-seekers and refugees to leave its
territory for Europe. e measures taken by Greece as a way to avert what
according to the Greek government spokesman was “an organized, mass,
illegal attack of violation of its borders” have been fully endorsed by the
Council of the EU (Council of the EU, 2020).
From being the irresponsible gatekeeper and defector in earlier
instances, Greece was now praised by the European Commission
President for being Europe’s aspida (shield) in deterring migrants and
refugees from entering Europe (Rankin, 2020). On top of that, invoking
an emergency situation, the Greek government passed a legislative act
suspending the right to claim asylum for a month (ΦΕΚ Α’45, 2020),
despite UNHCR’s concerns about possible breaches of international
51
Eleni Karageorgiou
refugee law (UNHCR, March 2020). At the same time, criminal charges
for those who did manage to enter Greece irregularly (HIAS Greece,
2020), and cases of extrajudicial detention (Stevis-Gridne et al., 2020),
were reported. In the same non-entre mind-set, Greece has been lately
accused for engaging in clandestine expulsion practices whereby refugees
conned in camps on Greek islands were forcibly sailed on international
waters and then abandoned in inatable life ras (Human Rights Watch
et al., 2020).
As regards the reception conditions on the hotspots, the EU hotspot
in Moria, Lesvos has been described by the head of the EU's Funda-
mental Rights Agency, as “the single most worrying fundamental rights
issue that we are confronting anywhere in the European Union’ (Nielsen,
2019). With Covid-19 cases rising on the island, approximately 9,000
people moved from the burnt down Moria to a newly improvised tent
camp in Kara Tepe, where living conditions are equally poor (ECRE,
2020). Despite the Council of Europe’s Commissioner for Human Rights
call to urgently move asylum-seekers out of the camps on the Aegean
islands (Council of Europe, 2019), the Greek government has insisted
on its earlier plans, to eventually move asylum-seekers into close pre-re-
moval detention centers (Fallon, 2020).
4.3 The new EU Pact and its implications on Greek law
and policy
e above short chronicle of the extent to which Greece has absorbed
EU norms on migration and of the way it has unilaterally responded
to immediate asylum demands illustrates the following point: mere
nancial assistance, ad hoc relocation, and support from EU agencies in
controlling borders have proved inadequate to ensure a EU migration
policy that is ‘fair towards third country nationals’ (Art. 67 TFEU), and a
truly common EU asylum system based on solidarity (Art. 78-80 TFEU).
In the following, the European Commission’s suggestions for CEAS
reforms on procedures and detention are analysed. Does the EU Pact
include measures designed to remedy the shortcomings of the CEAS as
exemplied by the Greek case and to address the persisting challenges for
solidarity and human rights?
52 4. The Impact of the New EU Pact on Europe’s External Borders: The Case of Greece
4.3.1 Procedures
e proposal for a Regulation on external border screening combined
with the new amendments to the 2016 proposal for an Asylum Procedure
Regulation, appear to advance an intensication of the “hotspot
approach” originally meant to facilitate the emergency relocation system.
is means that Greece is no longer under the provisional obligation to
accommodate hotspots for as long as it is under particular migratory
pressure. Rather, it is required to introduce pre-entry procedures con-
sisting of screening and mandatory RSD for certain categories of appli-
cants at designated crossing points.
In practice, this does not alter much for Greece, but rather replicates
the alarming situation currently witnessed on the Greek islands. Provi-
sions covering asylum procedures at the borders, targeting particularly
individuals who have transited through third countries, raise important
questions in relation to access to asylum, discrimination, and availability
of eective remedial mechanisms to protection seekers in countries
located at the external borders.
4.3.2 Detention
e Pact envisages the possibility whereby screening procedures might
require detention of the person in question, in which case the modalities
of how this is to be applied, are le to domestic law. Given that indi-
viduals undergoing screening procedures are not presumed – according
to the Pact – to have been authorized entry, detention of refugees who,
in principle, do not full entry conditions is legitimized. is adminis-
tratively convenient – but highly questionable from an international law
perspective, presumption of ‘irregularity’ is expected to aect the rights
of the majority of asylum-seekers and refugees who reach the borders of
the EU (see Malichudis et al., 2020).
Containment of asylum applicants at border zones is also made
possible in cases where an application qualies for an asylum border
procedure instead of a regular procedure within the Member State’s
territory. Along the same lines, the right to prolong the screening and
border procedures is recognized for states confronted with a ‘crisis’. Such
an approach, allows room for excessive restrictions of movement, nor-
malizing existing practices of detention en masse on the Greek islands
and close to land borders.
53
Eleni Karageorgiou
4.3.3 Expulsions
As stressed in Chapter 1 of this book, the EU Pact blurs protection and
return. is curtails procedural safeguards such as the issuance of separate
asylum and return decisions as well as the automatic suspensive eect of
appeals. Moreover, it allows for blanket application of third country rules
to “any country where the person has transited departed or has other par-
ticular tie”. is is likely to reinforce recent Greek practice – conducted
with the support of EU agencies such as the EASO - of summary returns
to Turkey based on xated decisions (see ECCHR, 2019). It might mean,
for instance, that asylum applications by beneciaries of temporary pro-
tection in a third country can be dismissed as inadmissible even if the
country does not satisfy the existing criteria of a “safe third country”.
With regard to crisis management, the following remarks are due:
rst, the Pact proposal for a Regulation addressing situations of crisis
permits Member States under pressure to introduce a number of dero-
gations form the CEAS rules applicable in normal times. For example,
access to territory and to asylum procedures may be denied for persons
apprehended in direct connection with irregular border crossings. Also,
Member States may invoke capacity constraints to limit access to asylum
at border crossing points for irregular entrants. is seems to legitimize
measures taken recently by the Greek government, such as the suspen-
sion of the right to lodge an asylum application followed by an immediate
expulsion decision, or the initiation of criminal action against refugees
who have irregularly entered the territory.
Member States faced with a ‘crisis’ situation may also derogate from
regular asylum procedures and grant ‘immediate protection’ status to
persons who risk being subject to indiscriminate violence in a situation
of armed conict upon return. Although this may temporarily prevent
removals, relocation or responsibility transfers under the new Asylum
and Migration Management Regulation will still be applicable and should
be scrutinized. In terms of the content of protection, past experience has
revealed states’ tendencies to use ‘temporary protection’ as a substitute to
formal refugee status in order to deter arrivals.
Finally, ‘exibility’ in the way states shall cope with crisis situations,
promoted in the Pact, is highly questionable. It seems that wide dis-
cretion is le on national authorities which is why strong monitoring
54 4. The Impact of the New EU Pact on Europe’s External Borders: The Case of Greece
mechanisms need to be established to ensure human rights compliance.
For example, short time limits for lodging an application or an appeal
may considerably restrict the procedural guarantees available to asy-
lum-seekers subject to border procedures, increasing the likelihood of
expulsion (Jones et al., 2020). is exibility approach might very well be
seen as the Commissioners’ response to a demand by Greece, Cyprus and
Bulgaria asking for ‘an emergency and exibility clause’ to be integrated
into the new Pact to ‘reinforce the frontline states’ capacity to eectively
tackle exceptional migration circumstances’ (Cyprus News Agency,
2020). Does this oset the maintenance and expansion of the rst entry
criterion in the new Asylum and Migration Management (Dublin) Reg-
ulation?
4.4 By way of conclusion
e provisions of the new EU Pact for the processing of asylum applica-
tions at the borders broaden the possibilities for declaring an application
inadmissible or for rejecting it on the merits in the absence of proper
individualized fair and eective procedures. Pre-screening procedures
curtail procedural rights and guarantees enshrined in EU and Council of
Europe law and may thus result in cases of refoulement, taking the form
of mass expulsions and readmission.
e Greek case conrms that an approach to migration and asylum
with a continued focus on borders and externalization is not sustainable.
e fragility of safe third country arrangements was very well illustrated
in February 2020 when the Turkish president deliberately ignored the
EU-Turkey statement and let migrants and refugees reach the Greek
border. Connement in border regions has led to unnecessary human
suering contrary to international and European standards and has
hindered condence of local populations towards European and national
institutions to maintain social cohesion. e continuation and normal-
ization of such practices risk undermining the values and principles the
CEAS is grounded on.
As pointed out by Beirens (2020), the EU Pact is a crash test for the
fate of refugee protection in the region. Restoring mutual trust between
EU states requires restoring faith to institutions. Attendance to national
reception conditions and asylum procedures and addressing the funda-
mental inequalities permeating the European asylum system remain the
main challenges for the years to come.
55
Eleni Karageorgiou
References
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latest/news/2020/04/greece-turkey-asylum-seekers-and-migrants-
killed-and-abused-at-borders/)
Ansa (2020), “Close to 100,000 asylum applications still pending in
Greece”, Infomigrants, 8 November (www.infomigrants.net/en/
post/26556/close-to-100-000-asylum-applications-still-pending-in-
greece)
Beirens, H. (2020), “Greece’s Moria Tragedy: e Crash Test for the EU
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57
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to the European Parliament, the Council, the European Economic
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European Parliament and of the Council introducing a screening of
third country nationals at the external borders and amending Regula-
tions (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU)
2019/817, COM/2020/612 nal.
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procedure for international protection in the Union and repealing
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COM(2020) 610 nal.
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58 4. The Impact of the New EU Pact on Europe’s External Borders: The Case of Greece
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Transfers to Improvised Tent Camp has Begun, ousands Sleeping
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59
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Hellenic Parliament Calling for an Investigation into Border Abuses”,
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UNHCR (2020a), “2019 Year-End report Operation Greece”, 8 July.
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ΦΕΚ 169/Α/1-11-2019, Νόμος 4636/2019 Περί Διεθνούς Προστασίας
και άλλες διατάξεις.
61
5. ‘I Wish There Was a Treaty We Could
Sign’
"Leonard Cohen (2016)"
Thomas Spijkerboer
5.1 Introduction
Externalization is a core element of the Pact on Migration and Asylum
proposed by the European Commission on 23 September 2020, and has
been key to European policies since 1990. As 2015 has shown, even sus-
taining a limited number of asylum seekers and refugees when compared
to more seriously aected parts of the world leads to an experienced
crisis.
Consequently, the Pact focuses on preventing irregular migration,
and seeking asylum is considered as a subset of irregular migration. In
addition to proposing reforms of the Common European Asylum System
(CEAS) aiming at making it more stress resistant, the Pact extensively
repeats the idea that measures in third countries will prevent refugees
and migrants from reaching external borders.
e main concepts in this discourse are root causes (especially for
forced migration); return and readmission; and legal pathways. e Pact
uses the language of partnership and multilateralism, including funding
instruments, to achieve externalisation. While the Commission acknowl-
edges that the EU and third countries have dierent interests, it states
that comprehensive, balanced and tailor-made partnerships can deliver
mutual benets (European Commission, 2020: 17). While this could
be read as a truly multilateral approach, other passages in the Commis-
62 5. ‘I Wish There Was a Treaty We Could Sign’
sion proposals show that the Commission, as before, proposes to use its
assumed superior position of political and economic power – so-called
issue linkage and conditionality (also known as carrots and sticks).
is essentially coercive approach to cooperation (focussing on the
question of how the EU can make other countries do what is in the
EU’s interest) ignores the reality that the EU and many third countries
have conicting interests and normative perspectives when it comes to
migration and mobility. is Chapter addresses that assumption.
e regulation of international migration and mobility is funda-
mentally unequal. While there are free movement zones on the global
South as well as in the global North (Czaika et al., 2018), the legal regime
between global North and South facilitates the mobility of citizens from
the global North while subjecting that of citizens from the global South
to severe restrictions (Mau et al. 2015).
is inequality is evident from a visualization of the Passport Index
(Figure 1 below), showing in white the nationalities which need an entry
visa for less than 100 countries, and in black those needing a visa for
more than 100 countries (Spijkerboer, 2018). e introduction of carrier
sanctions means that visa requirements are enforced within the black
countries on the map.
Figure 1 Yussef Al Tamimi on the basis of Passport Index (2017/2021)
63
Thomas Spijkerboer
5.2 Diverging interests
is global inequality resulting from the visa policies of the global
North is a dicult starting point for cooperation between, on the one
hand, Europe, and Africa and Asia on the other. African and Asian
countries perceive European external migration policies as an enterprise
to maintain and reinforce European privilege at the expense of their
citizens. e language of partnership and multilateralism used by the EU
sits uneasily with the EU having imposed total control over mobility of
people from the black countries on the map towards the EU to begin
with. is outlook does not seem any more promising when we look at
the three pillars of external migration policy which the Pact repeats: root
causes, returns and readmission and legal pathways.
5.2.1 Root causes
Root causes is a concept which was originally develop in relation
to refugees and forced migration. e core idea is that refugees and
forced migrants are best assisted by addressing those phenomena that
caused their ight to begin with. Consonant with earlier developments
linking refugees and irregular migration, the Pact refers to “root causes
of irregular migration”. Like before, the notion of root causes is related
primarily to economic development, even though the Commission refers
to the importance of conict prevention and peace (European Commis-
sion, 2020: 20).
As B.S. Chimni (2019) has pointed out: it is remarkable that Europe
as well as other actors in the global North remain silent about the root
cause that is arguably the largest single contribution to forced migration,
namely military interventions and proxy wars of the US and EU countries
such as those in Afghanistan, Iraq, Syria, Yemen, Libya and the subse-
quent destabilisation of the Sahel. Also, economic development initially
results in more migration, while in addition development policies have
notoriously little eect, partly because substantial amounts end up being
paid to European entities.
64 5. ‘I Wish There Was a Treaty We Could Sign’
5.2.2 Return and readmission
For decades, European countries have argued that eective return is
essential to their migration policies. e idea is that, if irregular migrants
know that they will be deported from Europe, they will realise it makes
no sense to undertake the trip and won’t come to begin with.
However, many citizens in countries of origin voice protests against
their governments cooperating with Europe in returning their friends
and relatives (as happened in Mali and Senegal, for example). Although
it is regular, and not irregular, migrants that send the most remittances,
the solidarity of citizens within countries of origin with their friends and
relatives abroad is an obstacle to cooperation. is is more so in countries
of origin with functioning electoral systems or with forms of free media
and civil society.
One of the innovations the Commission proposes in the Pact is to
codify the possibility to take “any measures” which could be taken against
a country that “is not cooperating suciently on the readmission of
illegally staying third-country nationals” (European Commission, 2020:
Article 7). A detail to note is that steps can be taken against countries
even if they refuse to readmit non-nationals who transited through their
territory, as is evident from the term ‘third-country nationals’ instead of
‘their nationals’.
5.2.3 Legal pathways
Directly linked to negotiations on readmission, the EU has said over the
past 15 years that it is open to discussing legal pathways for migration
(e.g. European Commission, 2007). e two are to be incorporated into
Mobility Partnerships and Common Agendas between the EU and third
countries.
However, in reality it turns out that these instruments promote the
externalisation of EU migration policy (Brocza and Paulhart, 2015).
Legal pathways fail to become a reality. e most blatant example of this
was the implementation of the EU-Turkey deal of March 2016. While
Turkey by and large abided by its obligations to prevent the movement of
refugees towards Europe, talks of visa-free travel to Europe for Turkish
nationals predictably got stuck in a way that, from the Turkish perspec-
65
Thomas Spijkerboer
tive, was a matter of European obstruction. In the Pact, passages on legal
migration mention extremely limited resettlement of refugees and high
skilled migration, and in addition remain nebulous and unspecic. Legal
migration as an alternative to irregular migration is not part of the dis-
cussion.
Of the three main pillars of European external migration policy,
the interests of the EU and of third countries do not run parallel. An
important element of EU policy is to try to inuence the interests of third
countries through issue linkage and conditionality: the EU will nance
things in third countries, give other advantages, or to the contrary take
punitive measures (including limiting the issuance of visas, or removing a
country from the list of visa-free countries; European Commission, 2020:
21-22), depending on whether the third country implements European
external migration policies. is sometimes works, but comes at a price:
that of supporting problematic regimes.
In order to implement European external migration policies, third
country governments need to repress domestic opposition to those
policies. And if the EU has brokered a migration agreement with the
government of a third country, it has an interest in preventing regime
change even if it is democratic, if the new government risks being more
critical of European migration policy. Supporting problematic regimes
is not merely an ethical issue. It also undermines a basic assumption of
European external migration policies: the idea that open and democratic
societies in third countries will be attractive to their citizenry and will
lead to less irregular migration.
5.3 Different normative perspectives
As we saw above, third country interests do not necessarily align with
European interests in the eld of migration policy. Partly in relation to
this, third countries may have dierent normative ideas about migration
and international law. By way of example, I will focus here on Africa,
which is a major target area of European policy.
66 5. ‘I Wish There Was a Treaty We Could Sign’
5.3.1 Non-reversal
Expressing the doctrine on which European state practice, legal doctrine,
academic writing and case law is based, the European Court of Human
Rights consistently begins its reasoning in migration-related judgments
by promulgating that “as a matter of well-established international law
and subject to its treaty obligations, a State has the right to control the
entry of non-nationals into its territory”.1
is construction of international law prioritises the right of states to
control migration over human rights, which has been labelled a “seden-
tarist” position by Daniel ym (2015), and the “Strasbourg reversal” by
Marie-Benedicte Dembour (2017).
Case law of the African Commission of Human and Peoples’ Rights
makes clear that African courts have not necessarily adopted the seden-
tarist legal doctrine of the European Court of Human Rights. e Com-
mission labels mass deportations as a violation not only of the prohibi-
tion of collective expulsion, but also of the right to property, to work,
to education, to family life as well as to an eective remedy, and as dis-
crimination based on origin. Only aer establishing this, it remarks that
the Commission does not call into question the right of states to take
legal action against illegal immigrants (African Commission of Human
and Peoples’ Rights, 1997a; 1997b). Similarly, the Kenyan High Court
prohibited the refoulement of Somalians and in doing so constructed
international law as well as the Kenyan Constitution broadly. It refers to
the number of refugees in Kenya to underline the importance of these
norms, instead of justifying a restrictive interpretation (High Court of
Kenya, 2017).
is non-inverted way of relating international law and migration can
also be seen in the work of African academics such as Abdoulaye Hamadou
(2018) and Edwin Odhiambo-Abyua (2006). Furthermore, core concepts
in international migration law (such as irregular migration and transit
migration, and the concrete meaning given to migrant smuggling) are
seen as an eect of the exclusion of migrants from human rights pro-
tection imposed on African policy makers by European pressure. In
1 See the foundational judgments on Article 8 ECHR (family reunion), European Court
of Human Rights 1985, at 67; on Article 3 ECHR (asylum), European Court of Human
Rights 1991, at 102; and on Article 5 ECHR (immigration detention), European Court
of Human Rights 2008, at 64.
67
Thomas Spijkerboer
their writing, many African authors do not distinguish strictly between
migration and mobility; they normalise mobility/migration; and see
free movement legislation as a codication of pre-existing fundamental
norms and practices characteristic of pre-colonial normality. African
social scientists relate this to the specic character of African states and
state borders, as well as to a tradition of mobility on the continent (see
among Abebe, 2017; Adepoju, 2002; Dicko, 2018; El Qadim, 2018).
In sum, there exists a distinctly African normative framework that
includes international legal norms, which sees migration control as
requiring justication, whereas the European normative perspective
a priori assumes its legitimacy as being inherent in state sovereignty. It
would be simplistic to claim that all African actors that are to play a role in
European external migration policy have the mobility-oriented normative
framework in mind that has been highlighted here. Many African state
actors relish the control tools that European external migration policy
provides (and funds). Nonetheless, this normative framework exists, and
may be shared by African interlocutors of European policy makers. In
any case it constitutes a reality in civil society and domestic politics of
many African countries.
5.3.2 Sovereignty
e European perspective views the right to control migration as inherent
in state sovereignty, and nd it obvious that other states are obliged to
respect that sovereignty. Such respect may imply that third states prevent
migration through their territory towards Europe. African states are also
quite concerned with their sovereignty, but in ways that may be at cross
purposes with European concerns. A rst form of this is the objection
that, if an African state is to cooperate with European external migration
policies, it is being instrumentalised by Europe. is has been argued
to be an infringement of state sovereignty in the Libyan litigation about
the Memorandum of Understanding with Italy (Achour and Spijkerboer,
2020). Similar concerns have been raised by Hamadou (2018) and Dicko
(2018) in relation to Niger and Mali respectively.
A second form which the concern with sovereignty can take is related
to return and readmission. In cases where the nationality of an indi-
vidual is unclear (as may happen in Africa, with its arbitrary borders
and incomplete civil registration), European states oen assert that a
68 5. ‘I Wish There Was a Treaty We Could Sign’
person is Moroccan or Ethiopian. However, establishing nationality is
the prerogative of the state acknowledging its nationality. Another state
asserting that a particular person has the nationality of a state that denies
this is the case does not sit easily with state sovereignty.
e same is true for the relation between a state and its nationals.
ere is an evident right of a national to return to their own state. e
international law foundation for an obligation of a state to readmit a
national while both the national and their state do not wish so is weak.
African states may nd that it is to that state, and not to a European state,
to decide how it will shape its relations with its nationals abroad. Addi-
tionally, African states may consider the idea that they are under an obli-
gation to admit non-nationals who purportedly transited through their
territory as an aront to their sovereignty.
5.4 A treaty to sign?
To a considerable extent, the European Commission’s Migration and
Asylum Pact relies on the success of its external migration policies,
which can be summarised as third countries keeping migrants away from
European borders. is requires cooperation of third countries.
However, third countries feel the starting position is unfair because
of the unequal global mobility regime. European and third countries
have diverging interests and normative outlooks. So far, EU policy has
tried to bridge the gap of interests and norms by externalising its political
economic power, by informal arrangements, and increasingly by nancial
instruments (which are then informalised on top of that, see Spijkerboer
and Steyger, 2019). ese arrangements are seen by many in the targeted
countries as being mildly or less mildly coercive, and as disrespectful of
African interests and perspectives.
Much is to be said for reconsidering the option of the classical inter-
national law instrument that was developed for bridging the divergent
interests and positions of states: the treaty. Treaty making allows for
involving parliaments and civil society, which may help in including
multiple interests and perspectives in the outcome. In the mid-long term,
the EU has an interest in cooperation with third countries that is con-
sidered as legitimate and benecial by the populations of all countries
involved.
69
Thomas Spijkerboer
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Rights & another v Attorney General & 3 others, Petition No. 227 of
2016.
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Have Evolved over Time”, Journal of Ethnic and Migration Studies,
Vol. 41, Issue 8, pp. 1192-1213.
Odhiambo-Abuya, E. (2006), “Revisiting Liberalism and Post-Colo-
nial eory in the Context of Asylum Applications”, Netherlands
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Spijkerboer, T. & E. Steyger (2019), “European External Migration Funds
and Public Procurement Law”, European Papers, Vol. 4, pp. 493-521.
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71
6. Community Sponsorship, The Pact
and The Compact: Towards Protection
Principles
Nikolas Feith Tan
6.1 Introduction
Community sponsorship is a current darling of the international protec-
tion regime as a potential solution to the dismal global refugee situation.
Following almost 40 years of operating essentially in isolation in Canada,
Germany, Ireland, Italy, Spain and the United Kingdom have piloted
or established community sponsorship models since 2015. At the rst
Global Refugee Forum held in December 2019, Brazil, Belgium, Malta
and Portugal pledged to explore pilot community sponsorship models
(UNHCR, 2020).
Beyond this quite remarkable recent uptake of community sponsor-
ship, there is signicant buzz around the concept at both UN and EU
level. As explored below, community sponsorship has no settled de-
nition, but inherent to the model is shared responsibility between civil
society and the state for the admission and/or integration of refugees
(Tan, 2021).
is Chapter rst seeks to dene the ‘umbrella’ concept of community
sponsorship, before outlining the role of community sponsorship in
the UN Global Compact on Refugees (GCR) and the New Asylum and
Migration Pact, respectively. Finally, I suggest that a number of principles
to maintain the protective promise of the community sponsorship as a
solution for refugees.
72 6. Community Sponsorship, The Pact and The Compact: Towards Protection Principles
6.2. Defining community sponsorship
Community sponsorship has recently been described by UNHCR
(2019a) as “programmes where individuals or groups of individuals come
together to provide nancial, emotional and practical support toward
reception and integration’ of refugees”. Indeed, community sponsor-
ship has been ‘rather ill-dened’ and is best understood as an umbrella
term encompassing several dierent modalities (European Commission,
2018).
ree strains of community sponsorship are currently operating.
First, community sponsorship has historically involved privately-led
admission and integration of refugees via an autonomous complementary
pathway. e original Canadian approach of private refugee sponsor-
ship matches this model. Such programmes are rmly separated from
state-run resettlement as an “initiative by private associations with rec-
ognized expertise in the eld to provide for an alternative, legal, and safe
pathway” (Ricci, 2020).
In its original form in Canada, community sponsorship involved the
‘naming’ of individual refugees by sponsors and the creation of a pathway
independent of other channels to admission (UNHCR, 2019a). More
recently, the Humanitarian Corridors model pioneered in Italy is a good
example of community sponsorship as complementary pathway.1
Second, more recently community sponsorship has emerged as a
sponsored resettlement, focused solely on integration support for resettled
refugees matched with civil society sponsors. Rather than creating a
pathway to admission, community sponsorship involves integration assis-
tance for resettled refugees. is model of community sponsorship uses
existing UNHCR and state resettlement channels (including selection,
referral, health checks etc.) to admit refugees. Civil society involvement
is largely limited to the provision of support aer arrival and focused on
the successful integration of refugees. Moreover, community sponsorship
as resettlement generally benets UNHCR-referred refugees, rather than
‘named’ individuals, although practice varies between jurisdictions.2
1 For more on the Humanitarian Corridors model, see: https://www.humanitariancorri-
dor.org/en/homepage/.
2 New Zealand’s community sponsorship pilot, for example, accepted both civil soci-
ety nominations and UNHCR referrals, though all sponsored refugees had to be rec-
ognised by UNHCR.
73
Nikolas Feith Tan
Community sponsorship as a resettlement is reected in community
sponsorship schemes in Ireland and the United Kingdom squarely
focused on the support of resettled refugees, beginning within the state
resettlement quota with the intention of becoming additional over time.3
Similarly, the recent German Neustart im Team (NesT) programme is a
clear example of community sponsorship as a resettlement tool.4
Finally, the most recent – and surely broadest – conception of
community sponsorship is as a ‘wrap-around’ tool for both resettlement
and any given complementary pathway “capable of supporting refugees
referred by UNHCR… as well as refugee students, workers and family
members arriving through other pathways” (Bond et al., 2020). is de-
nition does not focus on the pathway or legal status of refugees sponsored,
but rather on civic engagement embracing refugees.
While open or even competing denitions of community sponsor-
ship provide signicant exibility, it leaves the concept vague and even
open to co-option.
6.3 Community sponsorship in the Compact
e adoption of the GCR as a global responsibility sharing eort comes
against a backdrop of the “deterrence paradigm” in traditional asylum
countries, in which a broad array of measures prevent asylum seekers
accessing the territory or asylum procedures of destination states (Gam-
melto-Hansen and Tan, 2017). Over the past thirty years, lack of legal
access to asylum for refugees has emerged as “perhaps the single most
prominent topic in refugee studies” (Costello, 2019), with some authors
even predicting the end of the right to seek asylum in the Global North
(Ghezelbash, 2018).
Community sponsorship is closely linked to one of the four GCR
objectives focused on the expansion of third country solutions through
3 For more on the community sponsorship program, see: https://www.birmingham.
ac.uk/Documents/college-social-sciences/social-policy/Misc/CS-UK-IRiS-June-2019.
pdf.
4 For more on Neustart im Team (NesT), see: https://resettlement.de/en/current-admis-
sions/.
74 6. Community Sponsorship, The Pact and The Compact: Towards Protection Principles
“resettlement and complementary pathways”.5 More broadly, community
sponsorship is aligned to the GCR as an example of a whole-of-society
approach to refugee protection (UNHCR, 2019b).
Against this backdrop, the GCR’s focus on the expansion of third
country solutions suggests that resettlement and complementary
pathways should be the primary way to receive international protec-
tion in the Global North. Indeed, such controlled pathways are oen
the preferred modes of protection in destination countries, rather than
spontaneous asylum (Hashimoto, 2018). us, in 2016 the European
Commission stated that “resettlement should be the preferred avenue to
international protection in the territory of the Member States” (2016).
6.4 Community sponsorship in the Pact on Migration and
Asylum
As noted in Chapter 1 of this book, the Pact draws on the GCR in its Rec-
ommendation on legal pathways (European Commission, 2020), which
refers to the recent Global Refugee Forum and UNHCR’s strategy to scale
up resettlement and complementary pathways (UNHCR, 2019).
Community sponsorship plays a modest but potentially important
role in the new Pact. As a part of legal migration eorts, the European
Commission points out the commitment to support national community
sponsorship schemes “through funding, capacity building and knowl-
edge-sharing, in cooperation with civil society, with the aim of devel-
oping a European model of community sponsorship”.
e promise of technical assistance from the EU to Member States
is not new. Indeed, the Commission released a hey report on the feasi-
bility of community sponsorship in the EU in 20186 and a recent Asylum,
Migration and Integration Fund (AMIF) Action Grant funded projects
launching new or developing existing community sponsorship schemes.7
5 GCR paras 7 and 95. Complementary pathways identied in the Compact are family
reunication, private refugee sponsorship, humanitarian visas and labour and educa-
tional opportunities for refugees.
6 e full report is accessible here: https://op.europa.eu/en/publication-detail/-/publica-
tion/1dbb0873-d349-11e8-9424-01aa75ed71a1.
7 For more on the Asylum, Migration and Integration Fund (AMIF) community spon-
sorship grant, see: https://ec.europa.eu/migrant-integration/news/amif-2019-funding-
call-integration-through-private-sponsorship-schemes.
75
Nikolas Feith Tan
e European Asylum Support Oce (EASO) has already been involved
in a pilot project promoting community sponsorship in interested EU
members states (EASO, 2018).
Nevertheless, the concept of a ‘European model’ of community spon-
sorship is novel, and supported by Commission Recommendation to the
same eect (European Commission, 2020). While implementation of
community sponsorship remains rmly in the policy – and not legal –
realm, the call for a European approach to sponsorship points to a sense
of ownership and uptake that moves beyond Canada (Tan, 2021).
6.5 Toward protection principles
e proliferation of new community sponsorship models since 2015
bring both risks and opportunities. On the one hand, the rapid growth of
community sponsorship means policymakers may quickly be informed
of the various models implemented in multiple jurisdictions. On the
other hand, the inherent exibility of the concept may leave it open to
co-option where, for example, governments use community sponsorship
to replace resettlement, or discriminate by protecting only particular
religious groups. To mitigate these risks, priority needs to be given to the
following six protective standards drawn from refugee and human rights
law and lessons from recent practice:
First, respecting the right to seek asylum
e introduction and expansion of community sponsorship models
should not be used by national governments to justify deterrence. In
other words, community sponsorship should not be instrumentalised to
distract from deterrence policies. While state resettlement has long been
used strategically in this way (van Selm, 2004), there is little evidence that
the strategic use of resettlement has actually driven down spontaneous
asylum (Durable Solutions Platform, 2020). Given its community-driven
nature, community sponsorship should be somewhat insulated from
government interests in this regard.
76 6. Community Sponsorship, The Pact and The Compact: Towards Protection Principles
Second, additionality
Additionality should remain at the forefront of discussions on community
sponsorship, to avoid the eective outsourcing of government responsi-
bilities. Of course, community sponsorship should not replace resettle-
ment (Hirsch et al., 2019).
However, the question of additionality is becoming increasingly
complex. While ideally community sponsorship schemes should be addi-
tional to existing resettlement programmes from the outset, pragmatic
considerations may require that initial community sponsorship models
take place within existing resettlement quotas. In such cases, a shi to
additionality in the short to medium-term must remain a focus – an
approach that may be termed ‘additionality in principle’.
Moreover, some government may seek to ‘reverse engineer’ addition-
ality when negotiating the state quota in relation to community sponsor-
ship. Finally, the establishment of community sponsorship schemes in
states with no existing resettlement programme raises further complex
questions of pragmatic or realistic approaches.
Third, non-discrimination and equal treatment
e principle of non-discrimination owing from international human
rights and refugee law should guide state practice on community spon-
sorship.8 As UNHCR (2019a) notes, community sponsorship should be
“non-discriminatory and not distinguish on the basis of nationality, race,
gender, religious belief, class or political opinion”.
Learning from previous practice in Eastern Europe, future community
sponsorship models should avoid discrimination in the selection of
refugees for sponsorship. Moreover, principles of equal treatment require
that sponsored refugees not be treated dierentially from govern-
ment-resettled refugees during integration, and vice versa. In particular,
in the case of relationship breakdown, the principle of equal treatment
requires that the state step in to protect the rights of a sponsored refugee.
Encouragingly, the Pact and the above-mentioned Commission’s Recom-
mendation on legal pathways calls for “transparent and non-discrimina-
8 For the full text of the 1951 Convention relating to the Status of Refugees, see: https://
www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfRefugees.aspx.
77
Nikolas Feith Tan
tory selection criteria” when designing community sponsorship schemes
(European Commission, 2020).
Member States and their partners should dene for those in need of
international protection. From the start of the programme, they should
ensure that the respective roles and responsibilities of civil society and
government are clearly dened in the pre-departure and post-arrival
phase. Member States remain responsible for the security checks and
admission procedures and need to guarantee that appropriate safeguards
and safety nets are in place.
Fourth, protection-focused
Notwithstanding its exibility community sponsorship should remain
rmly focused on refugee protection. is means, for example, learning
the lessons from Australia’s Community Support Programme, which
is as much centred on labour market integration as refugee protection.
Equally, the use of community sponsorship to facilitate family reuni-
cation should neither replace the state’s family reunication obligations,
nor place unreasonable burdens on sponsors.9
Fifth, clarity of legal status
Community sponsorship approaches must provide a clear legal status to
sponsored refugees. In general, refugees admitted under a community
sponsorship scheme should be entitled to the full set of rights aorded
other refugees in the country, in line with the principle of non-dis-
crimination and socio-economic rights set out in the 1951 UN Refugee
Convention (Articles 2-34). Community sponsorship as resettlement
carries the additional status of providing a durable solution, thus oen
amounting to permanent residence more rapidly than community spon-
sorship as complementary pathway.
Sixth, transparency and accountability
Finally, community sponsorship approaches should be supported by a
robust policy framework. In particular, any model involving a ‘naming’
element should include safeguards to ensure the integrity of the selection
9 For more on family reunication, see: https://www.unhcr.org/5a8c40ba1.pdf.
78 6. Community Sponsorship, The Pact and The Compact: Towards Protection Principles
process and, at a minimum, a requirement that the named individual
meet the denition of refugee contained in Article 1A(2) of the 1951 UN
Refugee Convention. Ultimate responsibility for refugees must clearly
remain with the state, not private actors, as reected in the Commission’s
Recommendation on legal pathways (European Commission, 2020).
Conclusions
In the coming years, we are likely to see the emergence of new community
sponsorship models that challenge the protective core of the concept.
is Chapter has started the work of setting out principles of general
application to help ensure that the rise of an EU approach to community
sponsorship – as outlined in the Pact on Migration and Asylum – does
not dilute its promise of providing protection for refugees and people
seeking international protection.
79
Nikolas Feith Tan
References
Bond, J., Di Blasi, G. and Kwadrans, A. (2020), “e future of community
sponsorship of refugees: Meeting COVID-19's challenges”, Kaldor
Centre for International Refugee Law (www.kaldorcentre.unsw.
edu.au/publication/future-community-sponsorship-refugees-meet-
ing-covid-19s-challenges).
Costello, C. (2018), “Refugees and (other) migrants: will the
global compacts ensure safe ight and onward mobility for
refugees?”,International Journal of Refugee Law, Vol.30, No. 4, pp.
643-649.
Durable Solutions Platform (2020), “e Strategic Use of Resettlement:
Lessons from the Syria Context”.
EASO (2018), “EASO-GRSI Workshop on Private Sponsorship Pro-
grammes, 19-20 April 2018, Malta” (www.easo.europa.eu/wrks-pri-
vate-sponsorship-programmes).
European Commission (2016), Proposal for a Regulation of the European
Parliament and of the Council establishing a Union Resettlement
Framework and amending Regulation (EU) No 516/2014 of the
European Parliament and the Council, 13.7.2016 COM(2016) 468
nal, Brussels.
European Commission (2018), “Study on the feasibility and added value
of sponsorship schemes as a possible pathway to safe channels for
admission to the EU, including resettlement”, Brussels, April.
European Commission (2020), Recommendation of 23.9.2020 on legal
pathways to protection in the EU: promoting resettlement, human-
itarian admission and other complementary pathways, 23.9.2020
C(2020) 6467 nal, Brussels.
European Resettlement Network (2016), “Private Sponsorship Feasibility
Study - Towards a Private Sponsorship Model in France”, Brussels,
April.
Gammelto-Hansen, T., and Tan, N. F. (2017), “e end of the deter-
rence paradigm? Future directions for global refugee policy”,Journal
on Migration and Human Security,Vol. 5, No. 1, pp. 28-56.
Ghezelbash, D. (2018),Refuge lost: Asylum law in an interdependent
world, Cambridge: Cambridge University Press.
Hashimoto, N. (2018), “Refugee Resettlement as an Alternative to
80 6. Community Sponsorship, The Pact and The Compact: Towards Protection Principles
Asylum.” Refugee Survey Quarterly, Vol. 37, No. 2, pp. 162-186.
Hirsch, Asher Lazarus, Khanh Hoang, and Anthea Vogl (2019), “Aus-
tralia’s Private Refugee Sponsorship Program: Creating Complemen-
tary Pathways or Privatising Humanitarianism?”, Refuge: Canada's
Journal on Refugees, Vol. 35, No. 2, pp. 109-22.
Ricci, C. (2020), “e Necessity for Alternative Legal Pathways: e Best
Practice of Humanitarian Corridors Opened by Private Sponsors in
Italy,” German Law Journal, Vol. 21, No. 2, pp. 265-283.
Tan, N. F. (2021), “Community Sponsorship in Europe: Taking Stock,
Policy Transfer and What the Future Might Hold.” Frontiers in
Human Dynamics: Refugees and Conict (forthcoming).
UNHCR (2019), “Complementary Pathways for Admission of Refugees
to ird Countries: Key Considerations”, Division of International
Protection (DIP), Geneva, April.
UNHCR (2019), “e ree-Year (2019-2021) Strategy on Resettlement
and Complementary Pathways”, Geneva, June.
UNHCR (2020), Pledges & Contributions Dashboard (https://global-
compactrefugees.org/channel/pledges-contributions).
Van Selm, J. (2004), “e strategic use of resettlement: Changing the face
of protection?”,Refuge: Canada's Journal on Refugees, Vol. 22, No. 1,
pp. 39-48.
81
7. Internal Solidarity, External
Migration Management: The EU Pact
and Migration Policy Towards Jordan
Lewis Turner
7.1 Introduction
What will the EU’s New Pact on Migration and Asylum oer asylum
seekers and refugees living outside of the Union? e answer, it would
seem, is ‘very little’. e Pact discusses the need for dialogue, coopera-
tion and mutual partnerships with relevant third countries. Yet it focuses
on solidarity among EU Member States, which comes at the expense of
meaningful solidarity with asylum seekers and refugees inside, outside,
and at the borders of the EU (see European Commission, 2020).
is Chapter argues that, at a time of unprecedented health and
economic crises, a new EU Pact should represent an opportunity to
break from the restrictive and destructive agendas that have long framed
European migration policy. Drawing on the situation in Jordan – one of
the EU’s key migration partner countries – the Chapter examines how
eorts to support refugees’ livelihoods where they currently live have
been a key element of the EU’s externalisation agenda. It explores the
successes and failures of these policies, and then the consequences of the
Covid-19 pandemic for livelihoods policies and programmes. It argues
that the events of 2020, which have threatened many refugees’ (already
deeply precarious) livelihoods, demonstrate that – now more than ever –
a new approach is needed.
82 7. Internal Solidarity, External Migration Management: The EU Pact and Migration Policy Towards Jordan
7.2 A Pact framed by ‘crisis’
e Pact is full of worrying signs from the perspective of asylum seekers’
and refugees’ rights. It discusses (see European Commission, 2020: 4,
14, 10) the need for a “swi return procedure” and “reinforced external
borders”, and it plans to “build on the hotspot approach”, which has led to
“fundamental rights challenges” where it has been implemented (Danish
Refugee Council, 2017:4). On all of these counts (and many more) the
EU ignores the very migration research it funds (Kalir and Cantat, 2020).
Beyond any individual policy, however, what is striking about the Pact
is the worldview it propagates. It is framed by discussions of crises (past,
present and future). e EU appears to see migration ‘crises’, or migratory
‘pressure’ that could lead to another ‘crisis’, around every corner. In par-
ticular, the so-called migration crisis of 2015-2016 looms large over the
new policy arrangements. It clearly and explicitly shapes the background
thinking to the Pact, which aims to reinforce Fortress Europe against
similar numbers of people arriving ‘irregularly’ in the future.
In assessing the new Pact, which aims to place migration even more
centrally in EU external relations, it is important to consider the range
of ways that the EU responded to this ‘crisis.’ A key piece in the jigsaw
through which the EU has attempted to stop asylum seekers and refugees
from reaching its borders is providing incentives for people to stay where
they are. e ‘solidarity’ that the Pact demands for EU members is just
one side of the coin; internal solidarity shares space on the same coin
with Europe’s external migration management (see Bisong, 2019).
7.3 Livelihoods and the externalization agenda
In the wake of the ‘migration crisis,’ the EU and other partners decided
that focusing on jobs and livelihoods was one way to reduce the number
of asylum seekers and refugees attempting to enter the Union. If people
can work where they are, they reasoned, they’ll have fewer reasons to
come to Europe. is is still central to the EU’s thinking. As the Pact
states, “economic opportunity, particularly for young people, is oen the
best way to reduce the pressure for irregular migration” (European Com-
mission, 2020: 18)
Leaving aside the accuracy - or otherwise (see Crawley, 2017) - of
the logic underpinning this idea, asylum seekers and refugees should of
83
Lewis Turner
course have the right to work where they live. ey should have opportu-
nities to access decent work, which means work that oers (among other
things) a fair income, security and safety in the workplace, and equality of
opportunity (see International Labour Organization, n.d.).
In the period during the ‘migration crisis,’ Jordan was at the centre
of these policy proposals. In February 2016, at the end of the London
Donors Conference for Syria and the Region, co-hosted by Germany,
Kuwait, Norway, the United Kingdom and the United Nations, a
document entitled ‘e Jordan Compact’ was released (Government
of Jordan, 2016). In it, the Government of Jordan declared that in the
coming years it would potentially allow as many as 200,000 Syrians to
obtain work permits in Jordan. It claimed to represent a “new paradigm”
for refugee responses, by bringing together development and humani-
tarian approaches.
e EU’s role in this Compact was central. It has been one of the main
donors supporting the implementation of the Compact, and it agreed to
renegotiate its ‘Rules of Origin’ arrangements with Jordan, in an attempt
to make it easier for Jordanian companies to export to the EU (Lenner
and Turner, 2019). All of the annual follow-up conferences on ‘Sup-
porting the Future of Syria and the Region’ have been held in Brussels,
with the 2018, 2019, and 2020 events co-chaired by the EU and the UN.
e success of the compact has been a subject of debate among
observers. As I have explored elsewhere together with Katharina Lenner
(Lenner and Turner, 2018), the Compact encountered numerous chal-
lenges because it failed to take into account the views of key stakeholders
- most glaringly, those of Syrians themselves. is resulted in a focus on
work in sectors where very few Syrians wanted to work.
Because the release of donor funds was tied to the number of work
permits that were being issued, the underlying goal of decent work for
Syrians appeared to fade into the background. Having a work permit
does not necessarily equate to having a job, let alone a decent job, but
work permits appeared to become a goal in themselves. As the Jordan
International NGO Forum and Jonaf argued (2020: 2), work permits
“have done little to strengthen decent work protections”.
Nevertheless, it is important to acknowledge what has been achieved
through the Jordan Compact, and the many schemes, reforms, and
projects that have spun o from it in the past ve years. Indeed, the
84 7. Internal Solidarity, External Migration Management: The EU Pact and Migration Policy Towards Jordan
Jordan Compact is notable for the extent to which it has actually been
implemented, in contrast to the EU’s deals in other contexts, for example
Lebanon (Fakhoury, 2019). From January 2016 to August 2020, slightly
over 200,000 work permits were issued to Syrians in Jordan (UNHCR,
2020a). Syrian unemployment has dropped radically, although to a
greater degree among men than among women (Tiltnes et al., 2019).
It is important to note, however, that these cumulative work permit
gures do not tell us how many Syrians hold a currently valid work
permit (most permits are valid for one year), or how many permits have
been given to the same people in dierent time periods. e gure for
how many permits are valid at any one time is harder to come by than
the cumulative total, but, for example, was quoted as around 45,000 in
mid-2019 (Gordon, 2019).
Furthermore, while many Syrians were already working without
permits in Jordan, many report that having a permit makes them feel
more secure in their legal status in Jordan, and less under threat of depor-
tation to Syria (International Labour Organization, 2017), which has
been a widespread practice (Human Rights Watch, 2017). Even with this
more secure legal status, however, “access to decent, well-paid employ-
ment that gives a feeling of job security is still a distant hope” for most
Syrians in Jordan (Tiltnes et al., 2019:135).
In an interesting recent research paper, Peter Seeberg (2020) explores,
through interviews with Jordanian ocials, how EU-Jordanian relations
are seen by actors within the Jordanian government. A running theme of
the analysis is that, while the EU is the largest donor to Jordan concerning
Syrian refugees and its largest trading partner, the money donated (by the
EU and overall) falls very far short of the funds required. In 2020, for
example, according to the Ministry of Planning and International Coop-
eration, the Jordan Response Plan received $781 million in funding, rep-
resenting only 34.7 percent of the amount required (Jordan Times, 2021).
e EU does not suciently recognise or take into account, Jordanian
ocials argue, the Jordanian context or the range of challenges that the
country is facing. e EU’s negotiating demands, therefore, are oen
inexible, and its approach can be counterproductive (Seeberg, 2020).
Meanwhile, even aer it was further revised in 2018 to attempt to
make it more accessible to Jordanian businesses, the much-hailed rene-
gotiated ‘Rules of Origin’ deal between the EU and Jordan appears to
85
Lewis Turner
have achieved relatively little (Al Nawas, 2019). is is especially the case
in terms of the number of jobs created and the number of rms exporting
under the deal.
Its positive eects notwithstanding, it is clear that the Compact has not
brought about the ‘paradigm shi’ its supporters envisaged. While many
of those involved in promoting the Jordan Compact hoped that it would
be the rst of many such compacts to provide jobs for refugees living in
the ‘Global South,’ this has not proved to be the case. To date, arguably
the only substantively similar ‘jobs compact’ that has been signed is in
Ethiopia. Implementation of this agreement has been slow - much slower
than in Jordan – and wages at the factories where refugees were expected
to work fell well below refugees’ expectations (Gordon, 2019).
7.4 Refugee livelihoods and Covid-19 in Jordan
While new EU arrangements on migration and asylum have long been
discussed, we cannot ignore the fact that the Pact is coming at a time of
a pandemic that has devastated so many lives and livelihoods across the
world. ese recent developments make the EU’s approach to migration
even more regrettable, and its strategies to achieve its restrictive goals
even less realistic.
e situation for refugee livelihoods in Jordan, for example, has con-
siderably worsened since the beginning of the pandemic. Enacting one of
the world’s strictest lockdowns in March 2020, Jordan initially managed
to keep the numbers of Covid-19 very low. A large proportion of the cases
that were recorded in Jordan were at its border crossings, or in quarantine
facilities (Ministry of Health, 2021). Yet from August 2020 onwards, case
numbers in Jordan increased signicantly. In early September 2020, the
rst known cases of Covid-19 were recorded in Syrian refugee camps in
Jordan, and by the end of January 2021, there had been over 1,200 cases
in Za‘tari Refugee Camp, which has a population of approximately 80,000
(UNHCR, 2021).
Jordan’s policies, while initially successful in keeping the number of
cases very low, came at a cost. Not only to the Jordanian government,
whose 2021 budget was described by Finance Minister Mohamad
Al-Ississ as “the most dicult for Jordan ever” (Omari, 2021). Not only to
the Jordanian economy overall, which contracted by approximately 3% in
86 7. Internal Solidarity, External Migration Management: The EU Pact and Migration Policy Towards Jordan
2020, representing the rst year of negative growth in 30 years (Al-Kha-
lidi, 2021). But the consequences of this economic decline, in Jordan as
across the world, have fallen most heavily on the shoulders of the most
marginalized sectors of the population, including asylum seekers and
refugees, and the impacts have also been highly gendered (UN Women,
2020).
As Reva Dhingra (2020) has detailed, most refugees in Jordan do not
primarily rely on international assistance for their income. ey gain
their principal income from working in sectors that could not switch
to remote working, such as agriculture, construction and retail. Syrians
living in camps faced rising prices in the shops when the lockdown
commenced in March, and the government has subjected the camp to
“stringent movement controls” (UNHCR, 2020b:2). Much of the work
oered by international organizations (through schemes such as ‘incen-
tive-based volunteering’) was also suspended, as many programmes were
temporarily shut down due to the lockdown.
According to UNICEF, the number of Syrian and Jordanian house-
holds with a monthly income of less than 100 Jordanian dinars (around
$140) had doubled by August, compared to prior to the pandemic
(UNICEF, 2020). e rate of unemployment in Jordan reached 23.9%
(21.2% among men and 33.6% among women) in the third quarter of
2020, up almost ve percentage points compared to the year before
(Jordan Times, 2020). e goal of refugee ‘self-reliance’, which is set to
continue to be central to the EU’s external refugee policies, has long
been critiqued (Easton-Calabria and Omata, 2018). But Covid-19 should
prompt a thorough re-evaluation of this goal’s plausibility, and indeed its
desirability (see Herson, 2012).
Beyond these consequences, the Covid-19 pandemic has placed a
huge burden on already overstretched humanitarian and governmental
budgets. Even before the pandemic, the funding for the Syria response
fell well short of what was needed (Ministry of Planning and Interna-
tional Cooperation, 2020: 1). Compounding these problems, a report
from the Durable Solutions Platform expressed the fear that “if donors
redirect their funding away from livelihoods” to focus on Covid-19, there
may be “further reductions in livelihoods interventions and funding in
the medium-term” (Durable Solutions Platform, 2020).
87
Lewis Turner
7.5 Conclusion
In this context, will the European Union be willing to contemplate
increasing its nancial contributions to (even close to) the necessary
levels? Will refugees living in the EU’s so-called migration partner
countries ever be high enough on its priority list to generate the kind of
support that is necessary?
e signs are not encouraging. e EU’s attempts to rejuvenate soli-
darity among its Member States through the new Pact are simultaneously
an entrenchment of the demonstrable lack of solidarity it has shown
with asylum seekers and refugees within, on, and outside its borders. In
the context of twin health and economic crises across the globe, a new
approach must be adopted. For once, solidarity with asylum seekers and
refugees must be the priority.
88 7. Internal Solidarity, External Migration Management: The EU Pact and Migration Policy Towards Jordan
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jordan-nance-minister-says-2-5-growth-in-2021-depends-on-con-
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Al Nawas, B. A. D. (2019), “Goods worth 42m euros exported aer rules
of origin amended”, Jordan Times, 7 November (www.jordantimes.
com/news/local/goods-worth-42m-euros-exported-aer-rules-ori-
gin-amended).
Bisong, A. (2019) “Craing the African Response to European External
Migration Policies”, ECDPM Blog, 30 September (https://ecdpm.org/
talking-points/craing-african-response-european-external-migra-
tion-policies/).
Crawley, H. (2017), “Migration: Refugee economics”, Nature, Vol. 544,
pp. 26-27.
Danish Refugee Council (2017), “Fundamental Rights and the EU
Hotspot Approach”, Danish Refugee Council, Copenhagen, October.
Dhingra, R. (2020), “Refugees at risk in Jordan’s response to COVID-19”,
Middle East Research and Information Project, 8 April (https://merip.
org/2020/04/refugees-at-risk-in-jordans-response-to-covid-19/).
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in Lebanon? Responding During Economic Crisis and COVID-
19”, Durable Solutions Platform, May (https://dsp-syria.org/sites/
default/files/2020-05/What%20Next%20for%20Livelihoods%20
Programs%20Lebanon.pdf).
Easton-Calabria, E. and N. Omata (2018), “Panacea for the refugee crisis?
Rethinking the promotion of ‘self-reliance’ for refugees”, ird World
Quarterly, Vol. 39, No. 8, pp. 1458-1474.
European Commission (2020), “Communication from the Commission
to the European Parliament, the Council, the European Economic
and the Committee of the Regions on a New Pact on Migration
and Asylum”, COM(2020) 609 nal, Brussels, September (https://
ec.europa.eu/info/sites/info/les/1_en_act_part1_v7_1.pdf).
Fakhoury, T. (2019), “e European Union and Arab Refugee Hosting
States: Frictional Encounters”, Working Paper No. 01/2019, Centre for
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European Integration Research, Vienna.
Gordon, J. (2019), “Refugees and Decent Work: Lessons Learned from
Recent Refugee Jobs Compacts”, Employment Working Paper No.
256, International Labour Organization, Geneva, December.
Government of Jordan (2016), “e Jordan Compact: A New Holistic
Approach between the Hashemite Kingdom of Jordan and the Inter-
national Community to Deal with the Syrian Refugee Crisis” (https://
reliefweb.int/report/jordan/jordan-compact-new-holistic-ap-
proach-between-hashemite-kingdom-jordan-and)
Herson, M. (2012), “In praise of dependency”, Humanitarian Policy
Network (https://odihpn.org/magazine/in-praise-of-dependency/).
Human Rights Watch (2017), “‘I Have No Idea Why ey Sent Us Back’
Jordanian Deportations and Expulsions of Syrian Refugees”, Human
Rights Watch, October (www.hrw.org/sites/default/les/report_pdf/
jordan1017_web.pdf)
International Labour Organization (2017), “Work Permits and Employ-
ment of Syrian Refugees in Jordan: Towards Formalising the Work of
Syrian Refugees”, International Labour Organization Regional Oce
for Arab States, Beirut.
International Labour Organization (n.d.), “Decent Work”, International
Labour Organization (www.ilo.org/global/topics/decent-work/
lang--en/index.htm).
Jordan INGO Forum and Jonaf (2020), “Walk the Talk for the Jordan
Compact”, Jordan INGO Forum and Jonaf, Amman, June (https://
data2.unhcr.org/en/documents/details/77504).
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quarter of 2020 – DoS”, Jordan Times, 1 December (www.jordan-
times.com/news/local/unemployment-rate-reaches-239-third-quar-
ter-2020-%E2%80%94-dos)
Jordan Times (2021), “JRP funding reached $781m in 2020 – Planning
Ministry”, Jordan Times, 4 January (http://jordantimes.com/news/
local/jrp-funding-reached-781m-2020-%E2%80%94-planning-min-
istry)
Kalir, B. and C. Cantat (2020), “Fund but disregard: e EU’s relationship
to academic research on mobility”, Crisis Magazine, 9 May (https://
crisismag.net/2020/05/09/fund-but-disregard-the-eus-relation-
ship-to-academic-research-on-mobility/).
90 7. Internal Solidarity, External Migration Management: The EU Pact and Migration Policy Towards Jordan
Lenner, K. and L. Turner (2018), “Learning from the Jordan Compact”,
Forced Migration Review, Vol. 57, pp. 48-51.
Lenner, K. and L. Turner (2019), “Making Refugees Work? e Politics of
Integrating Syrian Refugees into the Labor Market in Jordan”, Middle
East Critique, Vol. 28, No. 1, pp. 65-95.
Ministry of Health (2021), “COVID19 Statistical Report – Jordan”,
Ministry of Health (https://corona.moh.gov.jo/en).
Ministry of Planning and International Cooperation (2020), “Jordan
Response Plan for the Syria Crisis 2020-2022” Ministry of Planning
and International Cooperation, Amman (https://reliefweb.int/sites/
reliefweb.int/les/resources/77262.pdf)
Omari, R. (2021), “Jordanian MPs pass kingdom’s ‘most dicult budget’”,
Arab News, 21 February (www.arabnews.com/node/1813476/mid-
dle-east)
Seeberg, P. (2020), “Syrian Refugees in Jordan and their integration into
the labour market: Jordanian migration diplomacy and EU incen-
tives”, Mediterranean Politics, online rst, pp. 1-20.
Tiltnes, Å. A., Zhang, H. and J. Pederson (2019), “e Living Conditions
of Syrian Refugees in Jordan: Results from the 2017-2018 Survey of
Syrian Refugees Inside and Outside Camps”, Fafo Report 2019:04,
Oslo.
UNHCR (2020a), “Syrian Refugee Unit Work Per mit Progress Report as of
24 Aug 2020” (https://data2.unhcr.org/en/documents/details/78645).
UNHCR (2020b), “COVID-19 Emergency Response Update #10”
UNHCR Regional Bureau for Middle East and North Africa, Amman,
July.
UNHCR (2021), “Refugee Response Coordination. Coronavirus – Update
January 2021” (https://data2.unhcr.org/en/documents/details/84778)
UNICEF (2020), “Socio-Economic Assessment of Children and Youth in
the Time of COVID-19 – Jordan”, UNICEF, Amman, August.
UN Women (2020), “COVID-19 and Women’s Economic Empowerment:
Policy Recommendations for Strengthening Jordan’s Recovery”, UN
Women, Amman, September.
91
8. The Spanish Borders on The Cusp of
The New European Pact on Migration
And Asylum1
Iker Barbero and Ana López-Sala
8.1 Hard times for asylum in Europe
On February 13, 2020, the European Court of Human Rights made public
its ruling on the case of N.D. and N.T. against Spain, by which it resolved
the appeal against the previous ruling of October 3, 2017, of the same
court. In contrast to the ruling handed down at rst instance, among
other relevant issues (such as the fact that, in view of the undened
concept of “operational border” (López-Sala, 2020)), the border fence
must already be considered Spanish territory and therefore subject to the
jurisdiction of the ECHR), the Grand Chamber ruled in favour of Spain,
that Article 4 of the Protocol to the Convention is not applicable to this
case (two African boys who were intercepted trying to jump the border
fence in Melilla and were immediately returned to Morocco without any
procedure for expulsion, much less the option of applying for asylum)
since it was the applicants themselves who placed themselves in an illegal
situation by not using the means of access established by law, such as
applying for asylum at an embassy or border post.
is ruling represents a regression in the defence of basic rights by
conditioning recognition of those rights of situations involving merely
administrative (non-criminal) conduct. It also reveals a paradigmatic
1 is text is the result of the work carried out within the UPV-EHU Research Project
entitled TRANSITEUS: e reception of migrants in transit in the Basque Country/Eus-
kadi: diagnosis and proposals from a guarantee perspective (US19/08) (www.transiteus.
eus).
92 8. The Spanish Borders on The Cusp of The New European Pact on Migration And Asylum
shi in Spanish and European approaches to border control and the fun-
damental rights of migrants and refugees.
Spain, like other countries on the southern border of Europe,
has been practicing this type of summary expulsion2 for years, in full
knowledge that Morocco is a country where the violation of the rights
of migrants is manifestly systematic. In addition, the fact remains that
certain people cannot materially obtain protection in a consular delega-
tion because Spain has not wanted to by-law develop the process.3 Even
worse, many report being prevented by Moroccan police from accessing
the international protection application oces in Ceuta and Melilla for
no other explainable reason than their origin or skin colour. Forced to
jump a deadly border fence or venture out on a dangerous sea crossing,
these acts of desperations are the result of the consolidation of a specic
model of border control and outsourcing policies. ese policies are in
line with what has been called “a contained mobility approach” (Carrera
and Cortinovis, 2019), in which an erosion of legal guarantees and the
protection of migrants and refugees can be observed.
Migration and Asylum policies in Europe are currently at a cross-
roads. How they will be developed will largely be determined by the
contents of the New Pact on Migration and Asylum.4 e content of the
New Pact reveals some of its fundamental principles:
Firstly, there is an emphasis on external borders as physical and pro-
cedural processing areas (including rapid identication and registration)
where deportable irregular immigrants would be distinguished from
refugees.
Secondly, there is a clear commitment to promote “eective” and
2 Spanish police regularly implement a “push-back” approach to expel migrants from
Spanish territory (oen referred to as devoluciones en caliente in Spanish). is consists
of immediately turning over people who have been intercepted trying to jump external
border fences to the Moroccan police or simply abandoning them on Moroccan soil.
Because the expulsion is immediate, the migrants have no possibility of applying for
protection or claiming any vulnerable situation, such as being a minor or a victim of
tracking. Since 2015, these practices have been regulated by Spain’s Public Safety Law,
pending the resolution of the Spanish Constitutional Court on the constitutionality of
these practices.
3 Currently, only the modalities of family extension and reunication are possible (Art.
38 Asylum Law), which represents 0.67% of the applications according to data provid-
ed by the OAR (Spanish Refugee Oce).
4 See https://ec.europa.eu/info/publications/migration-and-asylum-package_en. See
Chapter 1 of this Book by S. Carrera.
93
Iker Barbero and Ana López-Sala
“rapid” mechanisms at the border for the containment, identication and
return of migrants classied as irregular or those whose applications for
protection are rejected.
irdly (and linked to the previous one), there will be a focus on
strengthening the agreements with third countries through extended
and broad-ranging partnerships that incorporate readmission and return
procedures.
ese guidelines suggest that the “borderization” of asylum in the
EU, along with the widening of externalization, will be the cornerstones
of a policy whose objective of eective return will be a key element of
future management. Content aside, most troubling perhaps is that the
EU, or specically some of its Member States, seem to be obsessed with
controlling and immobilizing the “unauthorized secondary movements”.
ere is no doubt that this will guide the new European migration and
asylum management in future times.
From this starting position, is it possible to articulate the objectives of
the New Pact as safeguarding the fundamental rights and legal guaran-
tees of migrants in need of protection? Based on an analysis of the most
recent approaches to migration and asylum management in Spain – in
which many of the proposals provided for in the Pact are being imple-
mented – this Chapter examines whether contained mobility is already
the operative paradigm.
8.2 Migration flows and asylum seekers across the
border
Spain’s response to immigration and asylum has largely been shaped by
its status as the EU’s southwest border. According to ocial data, over
the last twenty years more than 360,000 people have arrived on the
Spanish coast and in the cities of Ceuta and Melilla, with historic highs in
2006 and 2018, when Spain became the main destination country. Since
2018, in addition to the arrival of a substantial number of migrants from
African countries including Guinea, the Ivory Coast, Senegal and Mali,
the most signicant increase has been observed in proportional terms
of nationals from Maghreb countries, with Moroccans being the most
numerous nationality in 2018 and 2019 and Algeria in the rst half of
2020. Nationals from Morocco, Algeria and Tunisia accounted for nearly
94 8. The Spanish Borders on The Cusp of The New European Pact on Migration And Asylum
30% of total arrivals in 2018, a percentage that rose to 59% in 2019 and
fell slightly, although it remained at this high level (54.4%), in the rst
half of 2020, a year during which arrivals held steady despite the health
crisis and border closures caused by Covid-19.
Moreover, the dynamics of asylum have manifested dierent patterns
in the Spanish case. Aer decades in which the number of applicants was
far below that of other European receiving countries (between 1998 and
2014 they did not exceed 1.5% of the EU total), during the last ve years
there has been a major increase, reaching a historic high in 2019 (with
118,264 applications, accounting for 19% of the European total). at
year, Spain was the receiving country with the third highest number of
applications5, behind only Germany and France.
In spite of the staging of actions to contain and deter migration on
the southern border, which Nicholas de Genova refers to as a “spectacle
border” (de Genova, 2015), what we have described as a “pattern of terri-
torial deviation of asylum” in the Spanish case is surprising (López-Sala
and Moreno-Amador, 2020). At present, most applications are submitted
by nationals of Venezuela, Colombia and Central American countries
who, aer arriving via international airports, make their applications
mostly within the territory (up to 97% of Venezuelans, Hondurans and
Nicaraguans and 98% of Colombians). In contrast, in 2019 only 6% of
asylum applications were made at border posts where Syria stands out as
the majority nationality. On the other hand, among the people arriving by
sea, generally clandestinely by boat, nationals of sub-Saharan countries
apply for asylum when they are already within Spanish territory, and to a
lesser extent at border posts. However, nationals of Morocco and Algeria,
are forced to apply for international protection when they are in contain-
ment and expulsion areas such as the Detention Centres (CIE), up to 44%
and 41% respectively in 2019. e explanation for this anomalous and
somewhat Kaaesque situation will be provided below.
8.3 The externalized border
Spain’s main (and indispensable) partners in the control of migratory
routes to its territory are Morocco, Senegal and Mauritania. In October
2018, Spain donated to Morocco, 108 vehicles and computer equipment
5 See https://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics
95
Iker Barbero and Ana López-Sala
worth 3.2 million euros. Between 2019 and 2020, Morocco received
30 million euros from Spain, to be paid from the General State Budget
(Council of Ministers of July 19th, 2019), which were included in the
147.7 million euros from the European Emergency Fund for Africa,
as well as 389 million Euros from new cooperation programs of the
European Commission (December 20th, 2019), to improve and upgrade
the eet of vehicles with which to reinforce its border control and thus
repress irregular migratory ows towards Europe.
In this sense, the control of the maritime border has undergone signif-
icant changes in recent years, especially aer the increase in ows in 2018
and the adoption of new collaboration agreements on migration control
between the two countries6 aer the Socialist party’s return to govern-
ment in June 2018. To begin with, the decrease in arrivals to coasts since
the beginning of 2019 has been the result of the increased surveillance of
departures carried out by Morocco on its coasts and in the camps near
Ceuta and Melilla, where according to reports by human rights organiza-
tions, no violence has been spared (see APDHA, 2020).
In addition, there have been important changes in search and rescue
(SAR) action protocols and, therefore, in Spanish rescue practices in
the Strait of Gibraltar and the Alboran Sea, which reveal the trend to
outsource rescue operations, with Spain providing maritime resources
to Morocco, including infrastructure and training. Unfortunately, in
practice this policy change has led to greater danger and even multiple
shipwrecks and numerous deaths. In short, it represents an abandonment
of the guarantee of rights such as international protection and others as
basic as the right to life.
irdly, while previously the management of maritime arrivals at
the Southern border was carried out by detaining all migrants in the
various detention centres (CIEs) dispersed throughout Spanish territory,
or in the Temporary Stay Centres for Immigrants (CETI) in Ceuta and
Melilla,7 there has been a collapse of these two types of centres. e high
number of arrivals and the bureaucracy and time involved in decreeing
6 See https://www.cear.es/wp-content/uploads/2020/03/Externalizaci%C3%B3n-fron-
teras-Espa%C3%B1a-Marruecos.pdf
7 e CETIs, created in 1999 (Melilla) and 2000 (Ceuta), are dependent on the Ministry
of Migration, Labor and Social Security. ey were conceived as mechanisms for ini-
tial provisional reception, to provide services and basic social benets to migrants and
applicants of international protection who arrived at these cities, while they were being
identied and provided medical care and before being transferred to the peninsula.
96 8. The Spanish Borders on The Cusp of The New European Pact on Migration And Asylum
internment in a CIE or alleviating the overcrowded CETIs has led to
the de facto creation, that is, without any specic legal regulation, of
new containment and rapid processing mechanisms called Centres for
the Temporary Assistance of Foreigners (CATE, in Spanish) in 2018
(Barbero, 2021).
As with the Hotspots created by the European Commission for Greece
and Italy, these centres are located in the ports where people rescued or
intercepted at sea are disembarked directly into fenced enclosures, con-
sisting of prefabricated modules that always show clear signs of being an
area of detention. ey are detained there for a period of 72 hours (the
maximum legally allowed time) while the Spanish National Police (and
FRONTEX) identify and register them (in EURODAC).
e “humanitarian border” ingredient is provided by certain organ-
izations that deliver a range of services such as medical care and rst
aid (Red Cross), information on international protection (UNHCR/
Spanish Commission for Refugees CEAR) and legal assistance (immigrant
legal aid services provided by the bar associations). As mentioned earlier
regarding these centres, it should be noted that the trend has been to
selectively process arrivals by nationality and to transfer those mainly
from sub-Saharan countries, while Moroccans and Algerians are either
expelled immediately or transferred directly from the rescue boat to a
CIE.
Similarly, with regard to the application for international protection,
the CATEs are not authorized to formalize the application; however,
aer advising their lawyer (when there is one) that they wish to apply,
the individual must formalize their application in the territory aer they
are released. is explains why migrants from sub-Saharan countries are
already applying for asylum in national territory while the Maghrebi are
forced to do so in the CIEs.
8.4 The reinstatement of internal borders
Although there has never ceased to be some kind of border control
among EU Member States, in recent years we have witnessed a wide-
spread and permanent reinstatement of police controls at internal borders
(Barbero, 2018). In the last ve years, the northern and central states of
the EU have invoked the mechanism for re-establishing internal border
97
Iker Barbero and Ana López-Sala
controls provided for in the Schengen Borders Code four times, more
than in all previous years since its inclusion in 2006. Leaving aside that
these movements have been intermittently aected by border closures
caused by the Covid-19 pandemic, the general argument for re-estab-
lishing internal border controls has been what is referred to as “secondary
movements” of migrants and refugees, with indirect references to security
and terrorist threats, as in the case of France (Barbero, 2020), although
recently these movements have also been aected by border closures
caused by the Covid-19 pandemic.
e fundamental element of this trend towards internal border closure
is reected in the interpretation and application of the EU Dublin Regu-
lation regarding the notion of the “rst country of entry” being respon-
sible for examining an asylum application. In this regard, it is essential
to refer not only to the 26,694 applications submitted to Spain mainly by
France and Germany in 2018 and 2019 (Spanish Ministry of the Interior),
but also to the bilateral agreements between Spain and France (2002) and
Germany (2018) for the immediate return (simplication of the proce-
dures and shortening of the time limits relating to transmission and the
examination of requests). In other words, without enough due process of
migrants and asylum seekers rstly registered in Spain and later caught
in transit in those countries, there are obvious implications for the rights
to individualized processes of international protection.
8.5 Spain’s position on the new Pact
All of the above helps explain why Spain, in contrast to the position
of Austria and the Visegrád group countries, while accepting certain
mechanisms of pre-screening border procedures for asylum seekers and
migrants, has insistently defended the principles of strong solidarity and
shared responsibility in European asylum policy and the establishment of
a mandatory system of relocation quotas.
In a joint letter with France, Italy and Germany8 addressed to the
Commission in April 2020, the Spanish government advocated for the
establishment of a Search and Rescue Solidarity Mechanism, which
would also elevate to EU level the distribution of arrivals aer sea rescue,
a decisive issue for migration management given the geography and the
8 https://www.statewatch.org/media/documents/news/2020/apr/eu-ceas-de-es-fr-it-let-
ter-to-com-4-20.pdf
98 8. The Spanish Borders on The Cusp of The New European Pact on Migration And Asylum
intensication, again, of arrivals to their coasts (in 2020 especially to the
coasts of the Canary Islands).
In the same letter, Spain, together with the other signatories,
also proposed implementing a mandatory pre-screening procedure
(including registration, identication and security and medical checks) at
the external borders and advocated the establishment of an updated and
extended catalogue of clauses for declaring the inadmissibility of applica-
tions. e use of mechanisms for rapid resolution of asylum applications
at the border has had a certain tradition in Spanish processing proce-
dures, as Spain employed an “inadmissibility procedure” during the rst
decade of this century.
Likewise, the most recent implementation of the above-mentioned
Centres for Temporary Assistance of Foreigners (CATE) in dierent
segments of the maritime border is an instrument aimed at establishing
infrastructure and procedures for rapid identication-processing and
channelling of itineraries. is letter also supported the strengthening of
agreements with third countries as part of the reformulation of asylum
policy (as alluded to above, Spain has a long tradition of outsourcing
migration control to third countries) and upheld the need to prevent
secondary movements as one of the objectives to be addressed. It is not
insignicant to mention that these secondary movements, with their
intensication since 2017, have aected the bilateral Spanish-French
migration agenda.
However, the letter also noted the necessity of creating a fair system
based on responsibility and solidarity where the disproportionate burden
of being a migration arrival country should be shared by all Member
States. It is here where the Pact has probably failed the needs of Spain, but
also Italy, Greece, Malta and Cyprus.
99
Iker Barbero and Ana López-Sala
8.6 Conclusion
In conclusion and in light of the facts and policies presented here, if the
Pact lumps refugees and irregular migrants together, and even equates
their restriction of mobility rights, we predict that the Spanish migrant
and asylum system will have no problem assuming and incorporating the
Pact, because it is precisely the model that has been implemented on the
Southern border for the last 20 years.
However, if exible solidarity means internal outsourcing, that is,
that Northern and Eastern countries may choose to participate in return
partnerships or capacity/operational support and not fully relocation,
while Southern countries necessarily have to take charge of the burden
of the registration and asylum procedures, there is a high risk that places
such as the Canary Islands or Andalusia (as Lampedusa or Lesbos) may
become ‘limbo-zones’ where people are contained, and rather inevitably,
their rights endangered.
100 9. Migration Management: The Antithesis of Refugee Protection – The Case of South Africa
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rights: analysis and consequences of the reintroduction of internal
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damental rights and migration control at the peripheral borders of
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101
Fatima Khan and Nandi Rayner
9. Migration Management:
The Antithesis of Refugee Protection
– The Case of South Africa1
Fatima Khan and Nandi Rayner
9.1 Introduction
Similarly to the European Union (EU), South Africa is on the verge of
forming a new deal on migration through its recently adopted White
Paper on International Migration (2017). e South African Govern-
ment is rmly repositioning its asylum governance system by focussing
on the security risks of migration through strengthening border controls
and restricting access to the country. South Africa is thus discounting
potential risks associated with the blurring of international protection
and migration management (Panizzon, 2019). e parallels between
South African policies and those proposed in the new EU Pact on
Migration and Asylum (2020) can provide practical and legal knowledge
concerning the potential eects of the Pact in the EU.
1 South Africa is a party to the 1951 UN Refugee Convention Relating to the Status of
Refugees (“1951 Refugee Convention”) and the 1969 OAU Convention Governing the
Specic Aspects of Refugee Problems in Africa (“1969 OAU Refugee Convention”),
both are ratied, with no reservations. ese Conventions have been domesticated in
terms of the Refugees Act 130 of 1998.
South Africa hosts the third-largest asylum and refugee population in southern Africa
aer the Democratic Republic of Congo and the United Republic of Tanzania. e
Department of Home Aairs records 186 210 documented asylum seekers and 88 694
documented refugees. Most documented asylum seekers are from Bangladesh, DRC,
Ethiopia, Pakistan, and Zimbabwe whereas documented refugees are from Burundi,
DRC, Ethiopia, Somalia, and Zimbabwe
102 9. Migration Management: The Antithesis of Refugee Protection – The Case of South Africa
9.2 The persistent narrative of “bogus” asylum claims
South Africa’s policy context has largely been informed by a narrative
that the asylum system is abused - and collapsing - from illegitimate
claimants with falsied protection needs who are merely seeking to reg-
ularise their stay (Amit, 2011). Crush and Chikanda (2014) note that
“the South African government has shown great interest in the notion
of ‘mixed migration’ for it perfectly buttresses its argument that the
country’s refugee system is being abused by non-refugees”.
e EU Pact (2020), in the context of solidarity and response, creates
the connection between the issues of mixed migration and the need for
solidarity between Member States to address the challenges of irregular
arrivals of migrants and asylum seekers. e Pact also introduces fast-
tracked asylum applications for applicants deemed to be misleading
authorities when from ‘safe countries’ and for persons who enter the
country irregularly. With fast-tracked applications, it concurrently intro-
duces ‘swi’ returns. is is justied in the EU Pact to prevent unauthor-
ised movements and a tool to discourage large amounts of asylum appli-
cants from countries with low rates of refugee recognition. Although not
as blatant as South Africa, the sentiment and connection has been made
between migrants using the asylum system to regularise their stay, which
has informed the EU Pact as seen by the emphasis on the need to manage
migration.
South Africa’s response to the overwhelmed system was the adoption
of the above-mentioned White Paper and the recent adoption of the
Refugees Amendment Act (2017) and the Border Management Act
(2020), both of which are overly procedural and severely hamper access
to asylum.
None of these changes are in line with the human rights ethos of the
UN Global Compact on Refugees (2018) and instead constitute a stark
shi from the progressive protection laws post-apartheid. e current
focus on border management in the form of pre-screening practices, the
establishment of asylum processing centres, as well as the prioritisation
of an asylum transit visa, have created new problems in asylum manage-
ment (Carciotto and Johnson, 2017). ere has been a growing consensus
that restrictive and exclusionary policies and practices have contributed
towards the creation of a mass population of hidden and undocumented
refugees and asylum seekers in South Africa (Khan and Lee, 2018).
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Fatima Khan and Nandi Rayner
9.3 Access denied – border management and
pre-screening
No matter whether an asylum seeker enters South Africa through a port
of entry or not, the instruments at play are the Refugees Act (1998),
Immigration Act (2002), and more recently the Border Management
Act (BMA), which creates the Border Enforcement Authority who
have the power to detain persons for illegal entry. e BMA introduces
a mandatory, accelerated border procedure that undermines fair and
eective adjudication of international protection claims. e Border
Enforcement Authority has wide discretion on whether to arrest and
detain an illegal foreigner or to deny their entry without referring to the
possibility of refugee protection.
It is unlikely that all refoulement risks could be properly assessed in
such a procedure by the Border Enforcement Authority. Refugees ought
to be protected by Section 2 of the Refugees Act which includes a general
prohibition of refusal of entry, expulsion, extradition, or return to other
countries, and it is extended to include not only persons who will face
serious harm but anyone whose life will be at risk of harm.
Such accelerated border processes envisaged by the BMA are likely to
violate the principle of non-refoulement and insofar as the BMA reduces
access to a fair and ecient asylum procedure it should be rejected.
Currently, Covid-19 has hampered the monitoring of border activities.
e presentation of border procedures through the BMA as the answer
to address all ailments of the current asylum system is deceptive; it will
instead exacerbate many aws in the implementation of the asylum
system.
Like the accelerated procedures in South Africa, the EU Pact proposes
the establishment of accelerated procedures at the border for non-EU
citizens crossing without authorisation. is accelerated procedure
consists of the determination of the applicable migration avenue, the
acceleration of status determinations of asylum seekers, and where
necessary, swi return. Although the Pact rearms the guarantee to
eective asylum procedures, refugees’ risk being incorrectly referred to
migration channels, not referred at all, and where referred, face acceler-
ated claims. In each case, the asylum seeker risks swi return and thus
a greater risk of refoulement. Furthermore, accelerated procedures lack
procedural safeguards and hamper access to the asylum system.
104 9. Migration Management: The Antithesis of Refugee Protection – The Case of South Africa
9.4 Out of sight, out of mind?: Processing centres
e most drastic repositioning of the asylum system in South Africa
has been the call to introduce asylum-seeking processing centres on the
northern borders, where asylum seekers will remain while having their
claims adjudicated (Immigration White Paper, 2017). From a govern-
ment perspective, asylum seekers will be out of the metropolitan areas
and unable to steal the jobs of South Africans. However, from a rule of law
perspective, it will create insurmountable legal and practical problems.
Wherever that ‘processing’ takes place, so does the obligation to
comply with the rule of law and fundamental human rights of people
seeking international protection. ese processing centres could easily
result in the creation of refugee ‘camps’ as it currently takes South Africa
between 5 and 15 years to adjudicate asylum claims (Amit, 2012). A far
more worrisome fact is the current backlog with the appeals authority
estimated to take more than 60 years to clear (Auditor General South
Africa, 2019).
e South African government’s belief that these processing centres
will be a more ecient asylum system than is currently in place is unreal-
istic. On the contrary, it will create new problems such as large numbers
of persons stuck in these centres for many years without the right to work
or freedom of movement, placing their life on hold and rendering them
powerless.
Although the EU already processes claims at the border, they similarly
believe that more must be done to manage the external borders in regard
to the processing of applications for asylum to prevent irregular entry
and movement in the country. e EU Pact indicates a belief that this will
create a more ecient asylum system.
In South Africa, not only are the obstacles to the rule of law evident
but asylum seekers are unable to support themselves and will become
entirely dependent on others for their survival. e responsibility of
taking care of these persons will fall squarely on the South African gov-
ernment, creating an additional burden on the state.
e establishment of such processing centres will also unnecessarily
create practical challenges for asylum adjudication. e ability to have
enough refugee reception ocers, refugee status determination ocers,
105
Fatima Khan and Nandi Rayner
and independent appeal and review bodies on-site to adjudicate claims
will be challenging to say the least. e areas earmarked for these pro-
cessing centres are in vast swathes of unpopulated land, far from any
major city (Parliamentary Monitoring Group, 2020). Furthermore, there
are no High Courts or legal assistance personnel near these centres.
is type of ‘out of sight’ processing envisaged will instead create
problems. It will be easily identiable by the international community
as centres (‘black spots’) that have failed those seeking international pro-
tection. South Africa is therefore strongly urged by South African and
international human rights NGOs as well as the UNHCR to abort the
asylum processing centres plan.
9.5 Asylum transit visas
e Refugees Amendment Act creates an exclusion for an asylum seeker
who is not in possession of an asylum transit visa on an application for
asylum and is unable to show just cause for not being in possession of
the visa. e asylum transit visa is issued in terms of the Immigration
Act when an asylum seeker states their intention to apply for asylum at a
designated port of entry and gives them ve days to report to a Refugee
Reception Oce. Asylum seekers who do not enter through a port of
entry are unable to obtain this visa. e exclusion thus seeks to penalise
illegal entry despite the right to non -penalisation in refugee law.
e EU Pact, with its introduction of accelerated procedures for
asylum and deportation for persons who enter without authorisation,
is analogous to South Africa’s procedures to penalise irregular entry of
asylum seekers and prioritise exclusion in these circumstances. It further
links the asylum management and migration authorities for a more
ecient system. Although the exact nature of the procedure, enabling
law or policy may dier between the EU Pact and South Africa, the eect
of the policies is inherently similar and has the potential to create similar
issues.
e Constitutional Court in South Africa in Ruta v the Minister of
Home Aairs (2018), already ruled on the issue of the interaction between
the Refugees Act and the Immigration Act holding that the Refugees
Act and the principle of non-refoulement apply to de facto and de jure
refugees and thus all asylum seekers are protected by the principle of
106 9. Migration Management: The Antithesis of Refugee Protection – The Case of South Africa
non-refoulement. Furthermore, it also ruled that such protection applies
as long as the claim to refugee status has not been nally rejected aer
the proper procedure in terms of the Refugees Act. Asylum seekers who
do not enter through ocial ports of entry are not explicitly covered by
either statute, though the Refugees Act covers them implicitly by the fun-
damental principle of non-refoulement. us, the Refugees Act is held to
prevail over the Immigration Act in the case of asylum seekers who have
not yet had their claim adjudicated.
e amendment goes against and attempts to circumvent the essence
of Ruta by tying the criminal act of illegal entry in terms of the Immi-
gration Act to the Refugees Act and piercing the ‘shield of non-refoule-
ment’ which may only be lied aer a proper determination has been
completed. e exclusion based on not having an asylum transit visa has
the eect of prioritizing the management of migration over protection
needs and is incongruent with human rights law in South Africa as it
prioritises exclusion over inclusion.
9.6 Creating humanitarian corridors
A positive aspect of the White Paper is that it encourages South Africa to
consider humanitarian assistance through special dispensation projects.
Currently, South Africa has the Zimbabwean Dispensation Program, the
Lesotho Dispensation Program, and is considering extending a dispen-
sation to Malawians.
ere are no specic laws which allow for a person to legally migrate
to South Africa for work unless they can assert a scarce or critical skill
(Immigration Act, 2002). Many low-skilled migrants from neighbouring
countries enter South Africa with the sole purpose of working; thus, the
creation of country-specic special dispensations to deal with economic
migrants was a step in the right direction. When South Africa created
the special dispensation for Zimbabweans, it provided much-needed
humanitarian assistance. At the time, Zimbabwe was experiencing both
political and economic instability and many Zimbabweans who came to
seek asylum in South Africa felt compelled to transfer on to the Zimba-
bwean Dispensation Program as the permits issued were valid for four
years as opposed to the asylum seeker permit that was valid for only
three to six months at a time (Khan and Schreier, 2014). Asylum seekers
that remained on their permits remained entitled to the full protection
aorded by the Refugees Act.
107
Fatima Khan and Nandi Rayner
e creation of this humanitarian corridor to protection was necessary
but it is recommended that it should not be used to relabel refugees with
ordinary migrants’ status. is cautionary statement is further applicable
to the EU Pact, which places a strong emphasis on the development of
legal pathways to Europe and thus should include precautions to prevent
the relabelling of refugees in other migration categories.
9.7 Key to making asylum work
e comparable policies between South Africa and those proposed in
the EU Pact allow the EU to gain practical and legal knowledge into
the eects of such policies. Consequently, the suggested key to making
asylum work in South Africa can provide insight into improving the
asylum system in the EU.
e key to making asylum work in South Africa is to increase compli-
ance with existing asylum law and management, rather than introducing
asylum processing centres which are strongly opposed by civil society and
the UNHCR. Prominent implementation gaps that need to be addressed
immediately include: inadequate reception provisions; barriers to regis-
tration; and lack of special procedural guarantees resulting from poor and
inconsistent decision-making. e UN GCR, in its operationalisation by
the government, should call on the assistance of stakeholders, including
the EU, to assist and x the system already in place. In December 2019
at the Global Refugee Forum in Geneva, South Africa pledged to step up
the documentation of refugees in South Africa.
9.8 Conclusions
It is apparent from the above that the border screenings, asylum pro-
cessing centres, and the exclusionary nature of the asylum transit visa is
not entirely in line with the rule of law and will likely face serious legal
challenges. It is therefore an inadequate solution to the asylum problem
in South Africa. In South African law, strong precedents have declared
unconstitutional anti-protectionist policies such as pre-screening –
108 9. Migration Management: The Antithesis of Refugee Protection – The Case of South Africa
whether at the border or the refugee reception oces.2 e reasoning of
these judgements has not only relied on the South African Bill of Rights
(modelled similarly to the International Covenant on Economic, Social,
and Cultural Rights), but has also been enriched by judgements from
international law and various judgements of the European Union.
is repositioning of asylum management is a threat to the rights of
refugees and asylum seekers. Much of the work done by civil society and
the judiciary in protecting the rights of refugees and asylum seekers has
been undone by the most recent amendments and regulations. Unlike
the human rights ethos that was overwhelmingly present in the approach
post-apartheid, the new amendments and regulations appear to be
informed by the widespread xenophobia in the country and the need to
secure borders and contain refugees (Human Rights Watch, 2020).
ese inconsistencies, in addition to broad discretion given to home
aairs ocials and restrictive regulations, call into question the law-
fulness of the amendments considering the South African democratic
system and international law. South Africa has moved from an open
policy of free movement to that of containment. Whether it will be able
to withstand the progressive approach of the Constitution will once again
be tested through our courts.
2 See case law against anti protectionist policies:
Abdi v Minister of Home Aairs (2011) ZASCA 2; Ersumo v Minister of Home Aairs
2012 (4) SA 581 (SCA); Kiliko v Minister of Home Aairs 2006 (4) SA 114 (C); Nbaya
and Others v Director General of Home Aairs and Others 6534/15; Ruta v Minister of
Home Aairs 2019 (2) SA 329 (CC); Tantoush V Refugee Appeal Board and Others 2008
(1) SA 232; Scalabrini v the Minister of Home Aairs 2018 (4) SA 125 (SCA); Tatira v
Ngozwana (12960/16) ZAGPHC 136 (TPD) 12 December 2006.
109
Fatima Khan and Nandi Rayner
References
Abdi v Minister of Home Aairs (2011) ZASCA 2
Amit, R. (2011), “No refuge: Flawed status determination and the failures
of South Africa’s refugee system to provide protection.” International
Journal of Refugee Law, Vol 23, No 3, pp 458-488
Amit, R. (2012), “All Roads Lead to Rejection: Persistent Bias and Inca-
pacity in South African Refugee Status Determination” African
Centre for Migration and Society Report.
Carciotto, S. and Johnson, C (2017) “e state of the asylum system in
South Africa ” In States, the Law and Access to Refugee Protection
edited by Maria O’Sullivan and Dallal Stevens, Hart Publishing.
Crush, J. and Chikanda, A (2014) “Forced Migration in Southern Africa.”
In the Oxford Handbook of Refugee and Forced Migration Studies
edited by Elena Fiddian-Qasmiyeh, Gil Loescher, Katy Long,
and Nando Sigona. 554 -569 Oxford University Press.
Department of Home Aairs, South Africa (2017), White paper on Inter-
national Migration for South Africa, Pretoria, July 2017.
European Commission (2020), New pact on migration and asylum,
COM(2020) 609 nal, Brussels, 23.9.2020
Ersumo v Minister of Home Aairs 2012 (4) SA 581 (SCA)
Human Rights Watch. 2020. “South Africa: Widespread xenophobia
violence”. (www.hrw.org/news/2020/09/17/south-africa-wide-
spread-xenophobic-violence)
Khan, F. (2014) “e Principle of non-refoulement” In Refugee Law in
South Africa edited by Fatima Khan and Tal Schreier. 153-170. Juta
Publishers.
Khan, F. and Lee, M. (2018) Policy Shis in the Asylum Process in South
Africa Resulting in Hidden Refugees and Asylum Seekers, African
Human Mobility Review, Vol. 4, No. 2.
Kiliko v Minister of Home Aairs 2006 (4) SA 114 (C)
Panizzon, M. and Van Riemsdijk, M. (2019) “Introduction to Special
issue: ‘migration governance in an era of large movements: a mul-
ti-level approach”, Journal of Ethnic and Migration Studies, vol 45,
No 8, pp 1225-1241.
110 9. Migration Management: The Antithesis of Refugee Protection – The Case of South Africa
Parliamentary Monitoring Group (2020), “Roll-out of one-stop border
post, refugee processing facility, liquidation of Lindela Repatriation
Facility and enhanced movement control systems; with Minister and
Deputy Minister” (https://pmg.org.za/committee-meeting/30925/)
Ruta v Minister of Home Aairs 2019 (2) SA 329 (CC)
South African Auditor General (2019) “Follow-up performance audit of
the immigration process for illegal immigrants at the Department of
Home Aairs” Report by the Auditor General.
South African Government, Refugees Amendment Act 11 of 2017
South African Government, Border Management Act 2 of 2020
South African Government, Immigration Act 13 of 2002
South African Government, Refugees Act 30 of 1998
Scalabrini v the Minister of Home Aairs 2018 (4) SA 125 (SCA)
Tantoush V Refugee Appeal Board and Others 2008 (1) SA 232
Tatira v Ngozwana (12960/16) ZAGPHC 136 (TPD) 12 December 2006
United Nations General Assembly (2018) “e Global Compact on
Refugees” Final Dra (https://bit.ly/2QBhGFj)
111
10. A Short Sighted and One Side
Deal: Why The EU-Turkey Statement
Should Never Serve As a Blueprint
Meltem Ineli-Ciger and Orçun Ulusoy1
10.1. Introduction
On 23 September 2020, the EU presented the new Pact on Migration and
Asylum seeking to overhaul a system no longer working and establish
a predictable and reliable migration management system. One of the
key elements presented in the Pact was the promotion of tailor-made
and mutually benecial partnerships with third countries in the area of
migration (European Commission, 2020a). Section 6 of the European
Commission Communication titled “Working With Our International
Partners” emphasises these mutually benecial partnerships though it
only mentions human rights of migrants and refugees once and makes
no reference at all to the Convention relating to the Status of Refugees
or the obligations of the EU or Member States towards refugees and
migrants under international law. In this Communication, the European
Commission notes “e 2016 EU-Turkey Statement reected a deeper
engagement and dialogue with Turkey, including helping its eorts to
host around 4 million refugees”. Importantly, the Communication or
any other document presented on 23 September 2020 by the Commis-
sion does not mention the legal problems that the EU-Turkey Statement
has posed or the serious hurdles it has created for refugees and migrants
accessing fundamental human rights.
Compatibility of the agreed measures under the EU-Turkey
1 e authors would like to thank Ozgenur Yigit for her assistance during the editing
process.
112 10. A Short Sighted and One Side Deal: Why The EU-Turkey Statement Should Never Serve As a Blueprint
Statement with international and European refugee law and human
rights law standards was widely questioned and criticized by academia
and civil society (Peers and Roman, 2016; Roman, Baird and Radclie,
2016; Amnesty International 2017; Ulusoy and Battjes, 2017; Tometten,
2018; Moreno-Lax and Giuré, 2019; Ineli-Ciger, 2019; Öztürk and
Soykan, 2019; Kaya, 2020). It seems there is a general consensus that the
EU-Turkey Statement is likely to serve as a blueprint for future European
cooperation arrangements with North African countries and the new
Pact does not say anything to the contrary (Tometten, 2018; Lehner,
2019; Carrera et al., 2019).
In view of these developments, this Chapter seeks to identify
problems with the Statement and its implementation and detail the
reasons why the EU-Turkey Statement should not serve as a model for
future EU-third country cooperation in the eld of migration. We argue
that the EU-Turkey Statement was a reactionary instrument to deal with
the “so-called” crisis framed by EU policymakers and it included a set of
short-sighted and one-sided actions in a region where the reality was sig-
nicantly dierent than the ideas put forward in Brussels. In this Chapter
we identify what these short-sighted and one-sided actions are and the
reasons the Statement should never be replicated.
10.2 A brief overview of the EU-Turkey Statement and its
implementation to date
e EU-Turkey Statement was a reactionary instrument to deal with a
complex situation namely, the arrival of nearly one million refugees and
migrants by sea in Europe in 2015 (UNHCR, 2020). In April 2015, aer
a series of tragedies, more than 800 migrants died in the Mediterranean
and Aegean Seas in just one week (UNHCR, 2020). As the news of the
deaths appeared on the front pages of newspapers across Europe, Donald
Tusk, President of the European Council, called the European Council to
an extraordinary meeting, while Home Aairs and Citizenship Commis-
sioner Avramopoulos was presenting a 10-point emergency action plan
with a press meeting. One of the points was establishing “a new return
programme for rapid return of irregular migrants from frontline EU
Member States [to third countries]” (Ten point action plan on migration,
2015).
113
Meltem Ineli-Ciger and Orçun Ulusoy
In October 2015, the European Commission reached an ad referenda
agreement with Turkey in the form of a Joint Action Plan. e plan
attempted to address the so called ‘European migration crisis’: “(a) by
addressing the root causes leading to the massive inux of Syrians, (b)
by supporting Syrians under temporary protection and their host com-
munities in Turkey and (c) by strengthening cooperation to prevent
irregular migration ows to the EU” (European Commission, 2015).
However, failing to address several crucial issues, such as not oering any
solutions for coming from countries other than Syria, the objective of the
Joint Action Plan to prevent irregular migration ows to the EU was not
achieved in March 2016 (Ineli-Ciger, 2019).
On 18 March 2016, in a renewed attempt to end irregular migration
from Turkey to the EU, parties adopted the EU-Turkey Statement. To this
end, the EU and Turkey agreed that “[a]ll new irregular migrants crossing
from Turkey into Greek islands as from 20 March 2016 will be returned
to Turkey”. According to the Statement, migrants who do apply for
asylum or whose applications have been determined unfounded or inad-
missible would be returned to Turkey. As of February 2021, the number
of persons readmitted by Turkey from Greece under the Statement was
2,139 (DGMM, 2021a).
e EU-Turkey Statement required Turkey to take any necessary
measures to prevent the opening of any new sea or land routes for illegal
migration from Turkey to the EU. Following adoption of the Statement,
Turkey initially increased its eorts to prevent irregular migration to the
EU although this drastically changed when in February 2020 Turkish
President Erdogan declared that he had opened his country’s borders
for migrants to cross into Europe. In return for Turkey’s eorts to stop
irregular migration, the EU agreed to allocate €3 (now €6) billion under
the EU Facility for Refugees in Turkey (NY Times, 2020). According to
the EU, as of March 2020, “all operational funds have been committed
– of the €6 billion, €4.7 billion is already contracted and €3.2 billion
disbursed” (EU Commission, 2020b).
In the Statement, the EU also agreed that “[f]or every Syrian being
returned to Turkey from Greek islands, another Syrian will be resettled
from Turkey to the EU taking into account the UN Vulnerability Criteria”.
e Statement noted that priority will be given to those who have not
previously entered or tried to enter the EU irregularly. is arrangement
114 10. A Short Sighted and One Side Deal: Why The EU-Turkey Statement Should Never Serve As a Blueprint
is sometimes referred to as ‘the 1:1 resettlement scheme’. According to the
Directorate General of Migration Management in Turkey (DGMM), as
of February 2020, 27,825 Syrians had been resettled to 20 Member States
under the 1:1 resettlement scheme (DGMM, 2021b).
ese gures illustrate that the number of readmitted migrants from
Greece to Turkey and resettled Syrians from Turkey to the EU were
strikingly low and may even be regarded as a failure of the Statement.
However, the real ‘success’ of the Statement can be identied as creating
a legal and political limbo that would be used as a deterrence tool as well
as a blueprint for future agreements.
10.3 EU-Turkey Statement. A one-sided instrument to
deal with a complex situation
Both the March 2016 Statement and the Joint Action plan preceding it
essentially follow the ‘externalisation’ policy of the EU and act as another
step in the direction of placing migration management at the heart of
EU’s external relations. Right from the start, the Statement does not take
the priorities of and diculties faced by Turkey and Greece in oering
protection to large number of asylum seekers into consideration (and
more crucially: migrants themselves) and establishes a plan to curb
irregular migration to western EU states while turning the Aegean region
to ‘borderlands’.
10.3.1 Whose Statement is it? The authorship problem
e legal nature and the authorship of the Statement has been much
contested (Peers and Roman, 2016; Carrera et al., 2017). e Court of
Justice of the EU (CJEU) dismissed the action seeking annulment of the
EU-Turkey Statement on the basis that authorship belongs to the Member
States and Turkey and it lacked jurisdiction to hear and determine the case
(Orders of the General Court in Cases T-192/16, T-193/16 and T-257/16
NF, NG and NM v European Council); whereas, the European Court
of Human Rights identied the Statement as an instrument concluded
between the Member States and Turkey in JR and Others v Greece.
One might present two perspectives regarding the authorship
problem. First, one might argue that the ambiguous authorship problem
115
Meltem Ineli-Ciger and Orçun Ulusoy
of the Statement arises from the nature of the deal, not from the partici-
pants or technical aspects of it. While the nal text of the Statement and
‘bargaining’ period were carried out by the participants of the deal, the
idea and framework behind the Statement were long before decided in
oces in Berlin (ESI, 2015), the Hague (Teer, 2016) and Brussels (EU
Commission, 2015). Turkey and Greece, the states that would be directly
aected by the implementation of the Statement (along with the other
participating states), were le to discuss the amount of money and some
minor (domestic) political gains. e author of the Statement was neither
an actor nor a state. e real authors were the bureaucrats and techni-
cians simply following the externalisation playbook and helping to create
ambiguity surrounding the responsibility regarding the consequences of
the Statement.
A second perspective might suggest that the Statement was indeed a
legal instrument concluded between Turkey and the EU. In view of the
fact that the Statement was published as a press release on the European
Council Website and the European Commission publishes progress
reports and fact sheets relating to the implementation of the Statement,
it is clear that one of the authors of the Statement was the EU. e EU
denying the authorship of the Statement and the European Courts con-
rming this denial has two implications: rst, that the Statement remains
outside of checks and balances applicable to EU Law; and second, that
the EU cannot be held responsible for the breaches of international law
and human rights principles arising from the implementation of the
Statement (Carrera et al., 2019).
Whichever perspective you choose, to date three questions remain
unanswered: it is still not clear whether the Statement is only a so law
instrument; who authored the Statement; and who can be held respon-
sible for the violations of human rights under the Statement arrange-
ments?
10.3.2 Ending the irregular migration from Turkey to the EU. Is this
objective realised?
In 2015, over one million refugees and migrants arrived irregularly in
Europe by sea whereas arrivals to Greece accounted for 80 per cent of this
one million (UNHCR, 2020). According to UNHCR, in 2015 799 persons
had died or gone missing at sea while trying to reach the Greek territo-
116 10. A Short Sighted and One Side Deal: Why The EU-Turkey Statement Should Never Serve As a Blueprint
ries. Whereas, this number was 174 and 70 in 2018 and 2019, respectively.
In 2019, 59,726 irregular land arrivals and 14,887 irregular sea arrivals
to Greece were recorded. UNHCR noted that between 1 January 2020
and 20 September 2020, there were 12,577 sea arrivals to Greece and 495
persons had died or gone missing in the Mediterranean. UNHCR gures
clearly suggest that both the number of irregular arrivals to Greece and
the lives that have been lost at sea (to a certain degree) have decreased
since the adoption of the EU-Turkey Statement.
Although it is clear that the Statement played a role in this, the extent
to which it has contributed to the decrease in the number of irregular
arrivals to Greece is not clear (Spijkerboer, 2016; Reitano and Micallef,
2016; Van Liempt et al., 2017; Reslow, 2019). For instance, it is argued
that changing migration routes, increased border controls on the
Western Balkan route, right to work given to Syrians in Turkey in 2016
and media campaigns also played a role in the diminishing number of
new sea arrivals to Greece (Spijkerboer, 2016; Adar et al., 2020; Yıldız,
2020). erefore, although one of the most celebrated outcomes of the
Statement by the European Commission is the decrease on the number
of irregular sea arrivals to Greece, there is no clear evidence or objective
study showing that this decrease is a direct result of EU-Turkey Statement.
On the other hand, it is clear that while the arrival of irregular migrants
to Greece (albeit with a signicant decrease) continues, the main benefac-
tors of this Statement were northern and western EU Member States. e
Statement did not only decrease the irregular migration to the western
EU members in 2016 but it also guaranteed that these states won’t expe-
rience a similar inux as long as Greece and Turkey continually act as
‘buer zones’.
10.3.3 A statement which leaves asylum seekers and migrants in
limbo
e EU-Turkey Statement foresaw the return of asylum seekers and
migrants who have arrived to Greece irregularly by sea. Implementation
of the EU-Turkey Statement together with the hotspot approach estab-
lished by the European Commission in 2015 led to the containment and
long-term detention of asylum seekers and migrants in the Greek Islands
in dire conditions.
117
Meltem Ineli-Ciger and Orçun Ulusoy
e poor reception and detention conditions in the Greek islands are
well documented and the absence of any measures to address COVID-19
in the camps makes it even worse (AIDA, 2020). Apart from solidarity
from the local Greek population and civil society, migrants stuck in the
islands are le alone without any option to go forward. e re in the
Moria camp in Lesvos once again highlighted the problem of “locked and
forgotten” people in the Greek islands who have no option to go back or
forward (Cosse, 2020). It is clear that long term detention of migrants
and asylum seekers in poor conditions in the Greek islands is incompat-
ible with Article 3 and Article 5 of the ECHR in addition to other human
rights guarantees (Ineli-Ciger, 2019).
However, Greece is not the only actor to be blamed for this: the EU
which established the hotspot approach and facilitated (if not authored)
the EU-Turkey Statement is also responsible - in addition to the Member
States that failed to share the responsibility of Greece and show real sol-
idarity. e new Migration Pact acknowledging this problem proposes
a new solidarity mechanism moreover, the Commission declared that
it would establish a dedicated taskforce to improve the situation on the
Greek islands beginning with Lesvos (EU Commission, 2020c). Yet,
although improving reception conditions in the Greek islands is on the
EU agenda, abolishing containment policies is not. On the contrary, the
new Pact and the proposed regulations expand the possibility to further
detain asylum seekers and migrants (Peers, 2020).
10.4 EU-Turkey Statement. A short-sighted reaction to a
complex situation
Draed and signed in ‘crisis’ mode, the reactionary nature of the
Statement is de facto short sighted. Primarily aimed at ending large scale
irregular arrivals of migrants and asylum seekers to the EU by sea, the
Statement did not include any meaningful supervision or accounta-
bility mechanism or any additional safeguards to ensure human rights
are respected. Moreover, the Statement which, among others, aimed to
improve the relationship between Turkey and the EU and was a step
towards energising the accession process of Turkey ended up eroding the
relationship between the EU and Turkey.
118 10. A Short Sighted and One Side Deal: Why The EU-Turkey Statement Should Never Serve As a Blueprint
10.4.1 Absence of a meaningful accountability and supervision
mechanism
One of the most problematic aspects of the Statement is that there
is very little data on how it is being implemented. So far the EU has
published seven reports on the progress made in the implementation of
the EU-Turkey Statement (e.g. European Commission, 2016; European
Commission, 2020b). ese progress reports were one-sided and had
a number of shortcomings (Ineli-Ciger, 2017). e last progress report
was published on 6 September 2017 and from that date on, no indi-
vidual progress report in relation to the EU-Turkey Statement has been
published by the European Commission. Since 2018, several Progress
reports on the Implementation of the European Agenda on Migration
and fact sheets oer fragmented data and information on the implemen-
tation of the Statement. Turkey does not publish any individual reports
on how the Statement is being implemented though the website of the
Turkish DGMM releases data on the number of returns from Greece to
Turkey and the number of persons resettled under the 1:1 resettlement
scheme.
e lack of data and confusing information on the implementation
are not a coincidence since any reporting or monitoring mechanism was
signicantly absent in the text of the Statement. Dening itself as “…a
temporary and extraordinary measure”, draers of the Statement avoided
any instrument that might challenge, slow down or assess the imple-
mentation. Due to the absence of any specic monitoring or supervi-
sion bodies or accountability mechanisms, shortcomings or misconduct
taking place during the implementation of the Statement cannot be iden-
tied. Furthermore, considering that the Statement has been aecting the
lives of thousands of migrants and asylum seekers for the last four years
- reliable and objective supervision and accountability mechanisms are
needed now more than ever to safeguard fundamental rights and human
dignity.
10.4.2 Readmission: From temporary and extraordinary to the new
normal
e EU-Turkey Statement underlined that readmissions from Greece
to Turkey “will be a temporary and extraordinary measure which is
119
Meltem Ineli-Ciger and Orçun Ulusoy
necessary to end the human suering and restore public order”. e
Statement which was agreed as a temporary measure is in its fourth
year and readmission of migrants and rejected asylum seekers became a
central theme in European policies to manage migration. e new Pact
on Migration and Asylum puts an emphasis on ‘return’ and even proposes
solidarity in returning people through return sponsorships.
e EU Commission identies the legal basis of irregular migrants
being returned from the Greek islands to Turkey as the bilateral readmis-
sion agreement between Greece and Turkey and notes that “from 1 June
2016, this will be succeeded by the EU-Turkey Readmission Agreement,
following the entry into force of the provisions on readmission of third
country nationals of this agreement.” (EU Commission Press Release,
2016). It is reported that Turkey unilaterally suspended its readmission
agreement with Greece in 2018 as a response to a Greek court decision
to release eight former Turkish soldiers who ed the country a day aer
the July 15, 2016 coup attempt (Hurriyet Daily News, 2018). Moreover,
Turkish Minister of Foreign Aairs Mevlüt Çavuşoğlu declared that
Turkey suspended the EU-Turkey Readmission Agreement in July 2019
due to the fact that the visa liberalisation process for Turkish citizens
had not been completed by the EU (Euractive, 2019). If these reports are
accurate, this means the return of persons from Greece to Turkey under
the Statement have no legal basis.
10.5. Conclusion
e new Pact on Migration and Asylum includes the proposal of a Reg-
ulation addressing situations of crisis and force majeure in the eld of
migration and asylum which seeks to provide temporary and extraor-
dinary measures needed in the face of a crisis. It is striking that in
the Explanatory Memorandum section of the proposed Regulation,
the Greek-Turkish border crisis is mentioned as an example where
‘temporary and extraordinary measures’ can be applied due to situations
of force majeure. However, the very reason we witnessed the March 2020
Greek-Turkish border crisis is the Statement itself and its one-sided and
short-sighted policies.
ere are precious lessons to be learned from the EU-Turkey
Statement. Replicating the Statement with no amendments will harm the
rule of law, violate human rights and cause further human suering. At a
120 10. A Short Sighted and One Side Deal: Why The EU-Turkey Statement Should Never Serve As a Blueprint
minimum, all future EU-third country arrangements should observe the
following principles so as not to repeat the mistakes of the EU-Turkey
Statement. First, the EU-third country arrangements should not be in the
form of so law and the EU should own these future agreements and take
responsibility for the agreed measures. Second, objective and reliable
monitoring, supervision and accountability mechanisms should be intro-
duced to safeguard the fundamental rights of all persons who are subjects
of these arrangements. ird, readmission agreements, as shown in the
case of Turkey, can easily be denounced and persuading transit countries
or countries of origin to take people back is no easy task. Hence, placing
‘return’ at the centre of supranational migration and asylum laws and
policies is not viable and makes ‘refugees’ susceptible to be used as chips
in readmission negotiations. Finally, containment policies which leave
human beings in legal and actual limbo are not feasible ways to deal with
a migration situation, crisis or not.
121
Meltem Ineli-Ciger and Orçun Ulusoy
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125
11. The Global Compact on Refugees
and the EU’s New Pact on Migration
And Asylum: The Ripples of
Responsibility-Sharing
Evan Easton-Calabria
11.1 Introduction
What does ‘fair and equitable responsibility- and burden-sharing’ look
like today, in the midst of the Covid-19 pandemic, a global recession and
an ongoing climate crisis? One could argue that it has not yet manifested
as envisioned in the 2018 Global Compact on Refugees (GCR) (UN,
2018) and is certainly not what the New Pact on Migration and Asylum
appears to be.
Both the GCR and the new EU Pact have roots in the 2015-2016
so-called European refugee crisis, yet represent dierent aspirations
surrounding migration. e armation of the GCR in December 2018
demonstrated a powerful commitment to refugee protection and coop-
eration in refugee responses by the international community. While the
new EU Pact overall frames migration positively, it has been criticized as
being based on border containment (ECRE, 2020), with increased soli-
darity premised on increasing the returns of rejected asylum seekers.
Recent research on the impacts of Covid-19 on the GCR, commis-
sioned by the Danish Refugee Council (DRC), shows that the ways
Europe embraces the GCR - or doesn’t - pose real risks of negative
domino eects in terms of global responsibility-sharing (DRC, 2020).
e new EU Pact becomes embedded in this if it ends up promoting the
rejection rather than the redistribution of asylum seekers, and exercises
126 11. The Global Compact on Refugees and the EU’s New Pact on Migration And Asylum:
The Ripples of Responsibility-Sharing
‘exible solidarity’ rather than true solidarity. Migration management is
no substitute for international protection, which in turn should not be
framed through the lens of EU interests (Carrera, 2020; see Chapter 1).
When main donors such as the EU continue to reject asylum seekers and
instead present refugee-hosting as a task for others to undertake – oen
without providing the necessary resources for it to occur sustainably or
fairly – the GCR and indeed the entire refugee regime is undermined.
11.2 A false perception that the GCR is not ‘relevant’ for
the EU
Despite the fact that 27 out of the 28 EU Member States at the time
armed the GCR (only Hungary opposed it), many informants
expressed the reality that it is rarely discussed or implemented within the
EU. Many had the sense that for European States the GCR is an instru-
ment to ‘implement elsewhere’ or ‘out there’. A local government ocial
in Germany engaged in a national programme for the local integration
and empowerment of refugees (conceivably highly relevant to the GCR)
put it bluntly: “It is very easy to answer your question, because the Global
Compact on Refugees is not relevant for our work”.
Others referenced the binding legal standards embodied in the EU
legal order and the Convention regime, as well as at national levels, which
are preferred over the GCR when advocating for refugees’ rights and
States’ responsibilities. As an example, one head of a legal network on
refugees and asylum seekers explained, “Germany has lightly embraced
the Compact. eir approach will be to support other countries to
support standards in the Compact. We would argue that Germany should
implement all these elements of the Compact, as well”.
11.3 Protection risks in the EU
Limited asylum space and a related waning of interest in responsibili-
ty-sharing during the COVID-19 pandemic were main protection issues
raised in the research pertaining to the EU and beyond. Lack of political
will and leadership were discussed as key concerns driving these pro-
tection challenges. ese were seen as both short-term and longer-term
problems, with immediate impacts already apparent, such as asylum
127
Evan Easton-Calabria
seekers being refused entry into potential host countries. As one head
of a European legal NGO shared regarding protection issues caused by
Covid-19:
From our perspective [in Europe] the biggest challenge we have
is access to territory. is was a challenge before, and Covid-19
has exacerbated it. Using legal advocacy methods to try to stop
Covid accelerating is bolstering the EU’s tendency to prevent
people from actually accessing territory. Currently it is not even
a question of access to procedure (though that is also a challenge
but less complicated) - it’s actually physical legal access to territory
that we’re struggling to obtain.
One issue raised in the research regarding the EU and the GCR was
how the pandemic might accelerate the EU’s externalisation agenda and
in fact use the GCR to deect responsibilities. is fear appears to be
well-founded, as critics of the new EU Pact on Migration and Asylum
point out that it disregards the protection needs of arrivals (and the con-
sequences of doing so), as an ongoing EU strategy of preventing arrivals.
e focus on externalisation remains, along with borders, detention and
deportation.
11.4 The domino effect of restricted EU responsibility-
sharing
e limited uptake of the GCR in the EU and the limitations of the new
Pact on Migration and Asylum do not go unnoticed elsewhere in the
world. Instead, a lack of fair and equitable responsibility-sharing in the
European context – and in a context of current policies of externalising
protection responsibilities – undermines the viability of the GCR as a
whole.
Informants across sectors are concerned that the current dearth of
resettlement to EU and other Western countries and ongoing border
restrictions are setting a new norm of asylum that will have a problematic
ripple eect. ere is a risk of fatigue in hosting countries and an associ-
ated disinterest or disillusionment with the GCR process if GCR commit-
ments are not realized. As one member of the Comprehensive Refugee
Response Framework (CRRF) Secretariat in Uganda stated:
128 11. The Global Compact on Refugees and the EU’s New Pact on Migration And Asylum:
The Ripples of Responsibility-Sharing
Countries around the world are turning inwards but this is an
issue that must be looked at more holistically because we all know
that refugees are an international obligation – 1.5 million refugees
are not an obligation for Uganda. More refugees continue to come
from DRC and South Sudan, but the international community
has decided to keep quiet and say that Uganda has solutions for
refugees. But now we are saying that we are confronted with a
challenge. We are a poor country and it is time for the interna-
tional community to wake up…this is a puzzle for the global
community to think about.
A member of an INGO in East Africa further explained:
I don’t see these essentially Western constructed mechanisms or
protocols having any practical signicance to governments in
the region. Especially if they’re not funded. While countries have
signed on to the Compact, what we’re seeing is that at the end of
the day, they are reverting to focusing internally. I don’t think gov-
ernments in East Africa and the Horn will respond well to Western
countries telling them to do otherwise when the West itself isn’t…
if that continues, governments here will likely say: Don’t talk to us
about solidarity when you are not thinking globally yourselves.
11.5 Need for increased funding – and increased political
will
Reecting on the issue of European countries closing their borders
through oen violent means, one NGO informant stated that it is “not an
accident that this action is taking place now”, citing Covid-19 as providing
permission for restrictive measures to become even further ingrained. It
was noted by a researcher on asylum that in addition to combating such
blatant disregard for the principle of responsibility-sharing, the revitali-
zation of global commitments to serve and protect refugees (what is in
theory the GCR) must also reimagine how the Global North, including
the EU, uses the individual process of seeking and granting asylum.
is unequal employment of responsibility-sharing must be systemi-
cally addressed. It is hard to see how the EU New Pact on Migration and
Asylum makes great strides in this direction.
129
Evan Easton-Calabria
Not only does there appear to be limited uptake of the GCR tenets
and mechanisms within the EU, but the pandemic has also resulted in
signicant funding shortfalls to address both Covid-19-related and other
needs (ICVA, 2020) – thereby demonstrating that many donor states are
not upholding their end of the responsibility-sharing bargain. At the
time of writing, the 2020 humanitarian appeals are 33.5% funded, with
the Covid-19 Global Humanitarian Response Plan just 39.8% funded by
the end of 2020 (UNOCHA, 2021). Other long-term solutions-oriented
responses are markedly lower, such as a 95% shortfall in the funding
of the 2020 South Sudan Regional Refugee Response Plan. e lack of
funding allocated to refugee response plans (RRPs) hinders the progress
of the GCR as, “In the spirit of the GCR, the 2020 RRPs seek to integrate
a solutions approach placing greater emphasis on self-reliance and resil-
ience and aligning the refugee response with other humanitarian and
development country programmes”. Plans le unfunded also do nothing
to support those forcibly displaced people remaining in or returning
to their region of origin – arguably a key end goal of the new EU Pact
(Reidy, 2020).
11.6 Where does the GCR fit in?
While the EU Pact does make note of the 2019 Global Refugee Forum
(broadly seen as a key means to further the implementation of the GCR)
and calls on Member States to support the implementation of UNHCR’s
three-year strategy (2019-2021) on resettlement and complementary
pathways, as laid out in the GCR (para. 91), several informants voiced
the need for a clearer implementation of the GCR – including within the
EU. One member of an international humanitarian agency stated:
Of course we have more tools if it [the GCR] is binding, but most
important at this point is that the GCR gets anchored in what
countries do, in national legislation, inter-ministerial operations,
and internal UNHCR uptake. is work is the most critical: like
the SDGs [Sustainable Development Goals], how do we get it
mainstreamed at the country level…
Even in the lead-up to the armation of the GCR, the importance
of implementing it within the EU was recognised by the EU Parlia-
ment, which in April 2018 stated, “the need to reinforce the follow-up
130 11. The Global Compact on Refugees and the EU’s New Pact on Migration And Asylum:
The Ripples of Responsibility-Sharing
dimension of the implementation of both Global Compacts in the near
future, particularly on account of their non-binding nature, in order to
avoid à la carte approaches by the dierent states involved” (EU Par-
liament, 2018). Concrete suggestions included the establishment of
benchmarks and indicators to enable close monitoring of implementa-
tion, and the provision of resources to the UN and its relevant agencies
to enable the implementation and follow-up of both the GCR and the
Global Compact on Migration. However, even before the formal arma-
tion of the GCR there were fears that “the EU’s commitment to the GCR
is undermined by the dierent measures currently used or proposed to
shirk rather than share responsibility for refugees” (ECRE, 2018). Unfor-
tunately, this statement remains relevant today.
At the same time, some research informants saw value in invoking
the GCR in advocacy surrounding asylum seekers’ access to EU territory.
is is sorely needed today, particularly given that the EU Pact does not
present a roadmap for legal migration. One informant stated:
e GCR could be useful in this. In general what we need is a
strong statement and strong work from UNHCR and IOM, and
then also from the European Commission, the courts, anybody
with any power to not allow states to use Covid to limit access
to territory with impunity. To either insist, put pressure, use
whatever tool available to remove the barriers to access – and also
make it so problematic that States decide not to continue it.
Indeed, it could be argued that one of the most signicant contribu-
tions the EU could make to implementing, and indeed upholding, the
GCR is through expanding safe and legal routes to the EU. One of the
tensions apparent between the EU Pact and the GCR in this regard is that
‘migration management’ risks becoming a means to oer substitutes to
asylum through dangerous third country arrangements rather than truly
creating access to it.
While it has been posited that with the new EU Pact “Commission
ocials have put forward a bold strategy that responds to the political
demands and constraints of the present day” (Beirens, 2020), it is hard
to not also perceive the shi from the so-called harmonization of the
Bloc to the dierentiation of it as representing troubling advances in iso-
lationism that do not bode well for other international agreements such
as the GCR.
131
Evan Easton-Calabria
11.7 Conclusion
At the end of the day, an armation of the GCR should translate into a
commitment to and respect for the underlying principles of more pre-
dictable and equitable responsibility-sharing in policies and practices,
including those in the EU. It thus follows that the New Pact on Migration
and Asylum should uphold the tenets of global responsibility-sharing
and respect such fundamental rights enshrined in the EU Charter as the
right to asylum (Article 18) (EUFRA, 2007) – and the EU should also
remain deeply cognizant of the importance of its role within the global
protection regime.
Ultimately the GCR is one tool out of many to advocate for refugee
protection and responsibility-sharing, but not one that should be disre-
garded within the EU or within the EU’s New Pact on Migration and
Asylum. Today, in the face of rising border restrictions, disappointing
political outcomes and ongoing xenophobia, we need to make use of all
the tools we have.
132 11. The Global Compact on Refugees and the EU’s New Pact on Migration And Asylum:
The Ripples of Responsibility-Sharing
References
Beirens, H. (2020), “e EU Pact on Migration and Asylum—A Bold
Move to Avoid the Abyss?”, Commentaries, Migration Policy
Institute, Washington, D.C., October (www.migrationpolicy.org/
news/eu-pact-migration-asylum-bold-move-avoid-abyss).
Carrera, S. (2020), “Whose Pact? e Cognitive Dimensions of the New
EU Pact on Migration and Asylum”, CEPS Policy Insight, No 2020-22,
CEPS, Brussels, September.
DRC (Danish Refugee Council) (2020), “A restriction of responsi-
bility-sharing: Exploring the impact of COVID-19 on the Global
Compact on Refugees”, DRC, e Hague (https://reliefweb.int/report/
world/restriction-responsibility-sharing-exploring-impact-cov-
id-19-global-compact-refugees).
ECRE (2018), “Global Means Global: Europe and the Global Compact on
Refugees”. ECRE Policy Note #15, Brussels (www.ecre.org/wp-con-
tent/uploads/2018/11/Policy-Note-15.pdf).
ECRE (2020), “Editorial: e Pact on Migration and Asylum: it’s never
enough, never, never,” ECRE Weekly Bulletin, Brussels, September.
EU Parliament (2018), European Parliament resolution of 18 April 2018
on progress on the UN Global Compacts for Safe, Orderly and Regular
Migration and on Refugees (2018/2642(RSP)), Brussels (www.
europarl.europa.eu/doceo/document/TA-8-2018-0118_EN.html).
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18 – Right to Asylum. Vienna: European Union Agency for Funda-
mental Rights (https://fra.europa.eu/en/eu-charter/article/18-right-
asylum).
ICVA (2020), “NGO Statement COVID-ExCom Brieng”, ICVA, Geneva,
June.
Reidy, E. (2020), “‘No more Morias’: New EU migration policy met with
scepticism”. e New Humanitarian, 23 September (www.thenewhu-
manitarian.org/news/2020/09/23/EU-new-pact-migration-asylum-pol-
icy#:~:text=Border%20processing%20centres%20for%20asylum%20
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12. South American De Jure and De
Facto Refugee Protection: Lessons
From The South
Leiza Brumat and Luisa Feline Freier
12.1. Introduction
is Chapter discusses the characteristics of refugee protection in South
America, including de facto protection stemming from the region’s
mobility regime. In light of the recently released European Union (EU)
Pact on Migration and Asylum, which adopts a sharp distinction between
‘refugees’ and ‘irregular migrants,’ the former referring to individuals who
deserve protection and the latter to those who should be detained and
returned (Carrera, 2020; see Chapter 1), we suggest that South America
presents an interesting case of a dual regional regime for mobility and
refugee protection. is regime makes the distinction between irregular
entry and stay, on the one hand, and asylum seekers and refugees, on
the other, almost irrelevant in practice, as irregular migrants have access
to basic rights and legal residence, in many cases. e region further
combines this dual human rights-focused regime with an informal
regime based on policy practice, which allows people to move - and nd
protection - across borders.
More specically, we focus on Venezuelan forced displacement - the
largest displacement crisis the region has ever faced. We further ground
our analysis in South America, as the region has developed a human
mobility regime (Brumat, 2020) that, as we argue, oers an alternative
de facto form of protection. Since 2015, more than 5 million Venezuelans
have moved to neighbouring countries, and over 90% of them moved
within South America (Comité Español de ACNUR, 2020). In mid-2020,
135
Leiza Brumat and Luisa Feline Freier
close to 1.8 million Venezuelans were ocially living in Colombia;
830,000 in Peru; 455,000 in Chile; 365,000 in Ecuador; and 265,000 in
Brazil (UNHCR and IOM, 2020). Between 2017 and early 2020, before
the Covid-19 pandemic, 5,000 Venezuelans ed their country every day
(Watson, 2018) as the borders of South American countries remained
largely open.
ese numbers are far higher than the number of asylum seekers
most European countries received during the Mediterranean refugee
crisis. While the EU, with a total population of around 450 million
persons (World Bank Group, 2021), received 1.5 million Syrians at the
height of the crisis (Medecins Sans Frontiers, 2015), South American
countries, with a similar population (430 million, Statista, 2021), received
over 4.5 million Venezuelans in the last four years. Although the Vene-
zuelan exodus slowed down due to the pandemic, it never ceased and
experts expect the outow to signicantly increase once borders across
the region fully reopen (Luzes and Freier, 2020).
12.2. Latin America’s formal refugee protection regime
Freier (2015) identies ves phases of Latin American refugee policy lib-
eralization since the mid-20th century: (1) the ratication of the 1951
Convention in the 1960s; (2) the ratication of its 1961 Protocol in the
1970s; (3) the adoption of a constitutional right to asylum; (4) the incor-
poration of the Cartagena refugee denition since the 1980s; and (5)
reforms of domestic refugee laws since the 2000s.
e Cartagena Declaration is the agship instrument of this liberal-
ization of Latin American asylum governance. In 1984, state represent-
atives met in Cartagena, Colombia, to discuss workable solutions to the
contemporary Central American refugee crisis. e Cartagena refugee
denition, formulated as a result of that meeting, extended protection
to “persons who have ed their country because their lives, safety or
freedom have been threatened by generalized violence, foreign aggres-
sion, internal conicts, massive violation of human rights or other cir-
cumstances which have seriously disturbed public order”. Regional
action plans and declarations further supplemented these developments:
the 1994 San José Declaration on Refugees and Displaced Persons, the
2004 Mexico Plan of Action, and the 2010 Brasilia Declaration on the
Protection of Refugees and Stateless Persons in the Americas. To this day,
136 12. South American De Jure and De Facto Refugee Protection: Lessons From The South
most South American countries have included the expanded denition
of refugee from the Cartagena Declaration into their national laws (Mar-
cogliese, 2019), alongside a human rights-centred approach to refugee
protection.
Recently, Freier and Gauci (2020) have compared Latin American
refugee laws to EU protection standards, based on the legislative good
practices that the United Nations High Commissioner for Refugees
(UNHCR) identied in Latin America. ey found that six Latin
American countries - Argentina, Brazil, Costa Rica, Ecuador, Nicaragua,
and Mexico - surpass EU protection standards. Overall, Latin American
laws are especially progressive regarding the scope of protection and the
socio-economic integration of both asylum seekers and refugees. In South
America, Brazil and Argentina oer interesting cases, as the constitutions
of both countries include the right to asylum (Marcogliese, 2019). Brazil
was the rst South American country to adopt a ‘progressive’ approach to
refugee protection in 1997, via Law No. 9,474. Argentina approved Law
No. 26,165 in 2006.
Both of these laws not only adopt the ‘expanded’ refugee denition of
Cartagena, but also extend the same rights of nationals to refugees, except
the right to vote in national elections (Marcogliese, 2019). Furthermore,
the Argentinian law is exceptional (Freier and Gauci, 2020) in that it stip-
ulates a) that asylum-seekers are protected by the principle of non-re-
foulement from the moment they are subject to the country’s authority,
even outside its territory, b) group determination of refugee status in case
of a mass inux of asylum-seekers, and c) that authorities will take into
account the needs and the cultural values of the applicant when consid-
ering requests for family reunication. Both countries provide the possi-
bility to grant humanitarian visas, as well as pathways to legal status, for
victims of environmental disasters (Freier and Gauci, 2020). ey also
grant both refugees and asylum seekers the right to work, call for a swi
accreditation of foreign degrees, and oer full access to public healthcare
and education.
Freier and Gauci (2020) suggest that the EU should look to Latin
America regarding the expanded Cartagena denition of refugee, the
principle of non-refoulement, and strengthening socio-economic and
political integration of asylum seekers and refugees. In both regions,
recent ‘migration’ or ‘refugee’ crises have challenged each country’s
137
Leiza Brumat and Luisa Feline Freier
capacity to deal with larger inows of asylum seekers and migrants in
need of protection. Indeed, Venezuelan forced displacement has posed
the rst real test to Latin America’s progressive refugee legislation.
12.3.
De facto
protection through the regional mobility
regime
Since 2017, when emigration from Venezuela increased dramatically,
South American countries started to debate the adequacy of governance
tools to manage these ows. Two contentious issues emerged. e rst
was the question of whether Venezuelans should be considered migrants
or refugees, as there was no regional consensus on whether or not to
extend refugee status prima facie to them based on the Cartagena deni-
tion of refugee. Both academics and UNHCR called for the recognition
of the majority of Venezuelans as refugees (Freier, 2018; UNHCR, 2019),
and the applicability of Cartagena recognized by many policy-makers
in private conversations (Freier, 2018). us far, only Brazil and Mexico
have applied the Cartagena refugee denition to a signicant number of
Venezuelan asylum seekers (Blouin et al., 2020).
e second issue was that Venezuela was the only country that had
not ratied the Residence Agreement (RAM) of the Southern Common
Market (MERCOSUR) (Acuerdo Sobre Residencia Para Nacionales de Los
Estados Partes Del Mercosur, Bolivia y Chile, 2002), which could poten-
tially give legal migratory status to most Venezuelans living in other
South American countries. Even though the legal status of Venezue-
lans and the protection of their basic rights had been discussed in many
regional meetings since 2017 (Freier and Parent, 2019), South American
countries could not agree on the application of a common approach to
deal with this crisis. Most South American countries decided to adopt
diverse ad hoc measures, such as temporary visas and border mobility
cards (Acosta et al., 2019). Only Argentina and Uruguay decided to uni-
laterally apply the RAM to Venezuelans.
e RAM was signed in 2002 and entered into force in 2009. All
South American countries, except for Venezuela, have ratied it. e
RAM is regarded as a milestone in regional migration governance in
South America, as it is a central part of the regional regime that facili-
tates the movement of persons within South America, promoted by the
138 12. South American De Jure and De Facto Refugee Protection: Lessons From The South
two main regional organizations: the Andean Community (CAN) and
MERCOSUR (Brumat, 2020). e RAM creates a free residence regime
that focuses on equal treatment, socio-economic inclusion and regulari-
sation. e RAM provides the right of residence for up to two years, aer
which migrants can apply for permanent residence aer proving a ‘lawful
source of livelihood’ (Article 5 of the RAM), independent of the legal
status and economic situation of the person and whether migration was
‘voluntary’ or ‘forced.’ us, the regular vs. irregular status of migrants
is not paramount for migrants’ access to rights and regularisation. is
constitutes a fundamental dierence with the EU Pact, which is centred
on the ‘control’ and ‘return’ of irregular migrants (European Commis-
sion, 2020).
Both temporary and permanent residence permits guarantee a wide
set of rights that could work as de facto protection. ese rights include
treatment equal to that of nationals, civil rights equality, family reuni-
cation, the right to send remittances, and special rights for children born
in one of the Member States (including access to education) (Articles 7
and 9 of the RAM). is means that the RAM can be used for granting
residence rights to refugees as an alternative to formal refugee protection.
As the Argentine example shows, more than 200,000 Venezuelans have
already obtained the right to residence in Argentina though the RAM in
the last four years (UNHCR and IOM, 2020).
In addition, the human rights approach to migration adopted by the
South American Conference on Migration (SACM) needs to be high-
lighted. Countries across the region have committed themselves to
avoid deportations of nationals of other Member States (X Conferencia
Sudamericana Sobre Migraciones. “Avanzando Hacia Una Ciudadanía
Sudamericana”. Acta de Acuerdos y Compromisos Asumidos, 2010),
alongside relatively easily accessible bureaucratic procedures and docu-
mentation for obtaining legal residence (Brumat, 2020). e underlying
logic of this mobility regime is that, as migration is an ‘inevitable’ phe-
nomenon, people will keep crossing borders (Brumat and Acosta, 2019).
Consequently, the solution to irregularity is regularisation, not depor-
tation. While scholars have pointed out structural implementation gaps
between South American rights-based migration and refugee legislation
(Cantor et al., 2015), and protection gaps for extra-regional nationals
(Acosta and Freier, 2015), the mobility regime oers room for creative
alternative approaches to protection, and allows civil society across the
139
Leiza Brumat and Luisa Feline Freier
region to insist on its implementation and the protection for all.
12.4. Conclusion: Lessons from the South
South America presents an interesting case that could oer some lessons
for other world regions. Unlike Europe, its regional refugee regime does
not create ‘external borders’, so there is no need to enforce them, in sharp
contrast with the new EU Pact on Migration and Asylum. At the same
time, the South American intra-regional regime works in at least two
dierent, and sometimes contradictory, ways. On the one hand, legisla-
tion - the formal dual regime - is exceptionally progressive with a view
to the expanded refugee denition of Cartagena and the socio-economic
integration of both asylum-seekers and refugees, but also of intra-re-
gional migrants. For example, across the region, Venezuelans can work
as soon as they arrive in most host countries, regardless of their status
as economic migrants, asylum seekers or refugees (Freier, 2019). Given
the largely informal character of South American labour markets, even
irregular migrants start working as soon as they arrive in their destina-
tion country, and in some countries such as Argentina, their labour rights
are protected.
On the other hand, formal refugee legislation coexists with dierent
policy practices, some of which are restrictive and violate the interna-
tional obligations that these countries have, while others oer alternative
protection for refugees. For example, most South American borders have
remained open to legal Venezuelan immigration despite the large scale
of this displacement. Other countries, such as Ecuador and Peru, have
limited legal entry for domestic political reasons (Freier and Castillo Jara,
2020). In either case, there is regional awareness that borders are porous
and that it is not possible to stop people from migrating (Brumat, 2020).
Following this logic, even for countries that have seen recent restrictive
policy shis towards Venezuelan immigration, the solution to irregular
arrivals is not deportation, but regularisation.
South American countries have opted for migrant regularisation, not
only because of an ideological paradigm shi, which led States to increas-
ingly follow a human, or migrant’ rights- based approach in the past 20
years (Cantor et al., 2015), but also because of pragmatic reasons (Brumat,
2020). A regularised migrant population is easier to integrate into society
and the formal economy, which benets the state, especially in the case
140 12. South American De Jure and De Facto Refugee Protection: Lessons From The South
of highly skilled migrants. Migrant regularisation is also paramount from
a public health approach, especially in times of Covid-19 (Freier, 2020).
Although there are signicant intra-regional dierences and increasing
resistance to regularisation due to the large scale of Venezuelan displace-
ment in some countries, overall this stands in opposition to the logic that
prevails in the EU. As seen in the recent Pact, its underlying logic is set on
blocking the arrival of those who seek protection (Carrera, 2020).
141
Leiza Brumat and Luisa Feline Freier
References
Acosta, D., and Freier, L. F. (2015), “Turning the Immigration Policy
Paradox Upside Down? Populist Liberalism and Discursive Gaps in
South America”, International Migration Review, 49(3), pp. 659–696.
Acosta, D., Blouin, C., and Freier, L. F. (2019), La emigración venezolana:
Respuestas latinoamericanas, 3 (2a época), Documento de Trabajo,
Fundación Carolina.
Acuerdo sobre Residencia para Nacionales de los Estados Partes del
Mercosur, Bolivia y Chile, (2002) (www.mercosur.int/documento/
acuerdo-residencia-nacionales-estados-partes-mercosur-boli-
via-chile/).
Blouin, C., Berganza, I., and Freier, L. F. (2020), “e spirit of Cartagena?
Applying the extended refugee denition to Venezuelans in Latin
America”, Forced Migration Review, 63, pp. 64–66.
Brumat, L. (2020), “Four Generations of Regional Policies for the (Free)
Movement of Persons in South America (1977–2016)”, In G. Rayp, I.
Ruyssen, and K. Marchand (Eds.), Regional Integration and Migration
Governance in the Global South, Cham: Springer International Pub-
lishing, pp. 153–176.
Brumat, L., and Acosta, D. (2019), “ree Generations of Free Movement
of Regional Migrants in Mercosur. Any inuence from the EU?” In A.
Geddes, M. Vera Espinoza, L. Hadj Abdou, and L. Brumat (Eds.), e
Dynamics of Regional Migration Governance, Cheltenham: Edward
Elgar, pp. 54–72.
Cantor, D., Freier, L. F., and Gauci, J. P. (2015), “Introduction: A paradigm
shi in Latin American immigration and asylum law and policy?” In
D. Cantor, L. F. Freier, and J.-P. Gauci (Eds.), A Liberal Tide? Immigra-
tion and Asylum Law and Policy in Latin America. London: School of
Advanced Study, University of London, pp. 1–10.
Carrera, S. (2020), “e Cognitive Dimensions of the New EU Pact on
Migration and Asylum”, No. 2020–22; CEPS Policy Insights, CEPS.
Comité Español de ACNUR. (2020, July 7), “Migrantes y refugiados de
Venezuela: Situación actual 2020” (https://eacnur.org/blog/la-sit-
uacion-actual-de-los-migrantes-y-refugiados-de-venezuela-tc_
alt45664n_o_pstn_o_pst/).
European Commission (2020), Proposal for a Regulation of the European
142 12. South American De Jure and De Facto Refugee Protection: Lessons From The South
Parliament and of the Council on asylum and migration management
and amending Council Directive (EC) 2003/109 and the proposed
Regulation (EU) XXX/XXX [Asylum and Migration Fund] (Text with
EEA relevance), COM(2020) 610 nal, 2020/0279 (COD), Brussels,
23.9.2020.
Freier, L. F. (2015), “A Liberal Paradigm Shi?: A Critical Appraisal of
Recent Trends in Latin American Asylum Legislation”, In Exploring
the Boundaries of Refugee Law, pp. 118–145.
Freier, L. F. (2018, September 28), “Why Latin America Should Recognize
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ca-should-recognize-venezuelans-as-refugees).
Freier, L. F. (2019, June 18), “e refugee conundrum: Lessons from South
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Freier, L. F. (2020), “COVID-19 and rethinking the need for legal pathways
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Europe”, MSF. (www.msf-me.org).
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13. Building Resilience in Strained
Refugee-Hosting States? The EU in
The Face of Lebanon’s Cumulative
Crises
Tamirace Fakhoury
13.1 Introduction: Setting the context
e European Union’s Southern Neighbourhood has gone through major
upheavals in recent years. Revolutionary episodes and their spillovers
have instigated a heated debate about the EU’s ability to nd solutions for
the regional root causes of conict and dispossession (Huber, 2020). Dis-
placement from Syria has emerged as “one of the largest, most complex
and protracted humanitarian emergencies today” (Knudsen, 2020).
Syria’s neighbouring polities (namely Lebanon, Jordan, and Turkey) have
taken in more than six million displaced Syrians. In this context, they
have evolved into key hosting states in the international refugee regime
even though they ocially declare themselves to be no-asylum countries.
Within this climate, the EU’s refugee diplomacy has consisted of
boosting these countries’ abilities to host refugees while governing the
challenge of displacement from a distance (Fakhoury, 2019b). To this
end, it has provided regional host states with nancial incentives and
partnerships that would prompt them to host refugees while equipping
them with protection tools. Under the motto of resilience-building, the
EU’s approach has emphasized the need to synchronize cooperation and
migration management with development (Fakhoury, 2019a). In this
vein, the refugee challenge would evolve into a development opportunity
for both host and refugee communities. e EU’s key policy instruments,
145
Tamirace Fakhoury
ranging from the European Neighbourhood Policy to more tailored
instruments such as the Compacts, stress the importance of reinforcing
the ability of both refugee and host communities to bounce back in
the context of adversities and shocks (European Commission, 2015;
European Economic and Social Committee, 2016). At the same time, in
light of divisions over burden-sharing and given the limited resettlement
opportunities that refugees have had, the EU has sought to embed resil-
ience-building in the countries of rst arrival within a broader politics of
regional containment (Anholt and Sinatti, 2019).
13.2 The EU’s regional approach in the context of
displacement from Syria
Insofar as the EU’s Southern neighbourhood is concerned, the EU’s New
Pact on Migration and Mobility oers no novel perspective (European
Commission, 2020). It is to be read in the context of the EU’s approach
of consolidating regional stabilization and resilience while governing
migration from afar. In this light, the New Pact builds on the EU’s reper-
toire of policy tools that turn migration management into a key pillar for
shaping neighbouring regions (Bialasiewicz et al., 2013). With the arrival
of more than one million Syrians to Europe by 2015, the EU devised new
partnership frameworks with third countries on migration, including
Syria’s neighbouring host states. One of these partnership pillars is to
design ‘comprehensive partnerships’ that leverage the EU’s funding power
in sectors such as development and trade (European Economic and
Social Committee, 2016). ‘Positive incentives’ revolve around providing
nancial arrangements, equipping host states with a toolbox of capaci-
ty-building programs, and devising trade facilitation schemes (European
Economic and Social Committee, 2016). In return, host states would be
encouraged to improve the integration of refugees into their societies
and labour markets (European Economic and Social Committee, 2016).
e EU-Turkey refugee deal and the EU-Jordan compact are cases in
point (Corrao, 2019; European Commission, 2016a). According to the
EU, these policy instruments twin development, refugee protection and
stabilization. In other words, they aim to strengthen the capacity of local
refugee protection regimes while fostering the resilience of refugees and
providing them with solutions close to their countries of origin.
Still, as many analysts argue, this approach has yielded complex conse-
146 13. Building Resilience in Strained Refugee-Hosting States? The EU in The Face of Lebanon’s Cumulative Crises
quences. First, these partnership tools cater to the EU’s logic of externali-
sation. In line with the logic of containing migration, they oer avenues to
discourage the departure of potential asylum seekers to Europe. Secondly,
by devising package instruments that cater to the mutual interests of the
EU and partner governments in areas such as trade or border manage-
ment, they turn refugee hosting states into co-partners in migration
management. Not surprisingly, these policy scripts have various backlash
eects. rough this policy lens, the EU seeks to ‘construct’ Syria’s neigh-
bours into rst asylum countries although they have always been transit
countries that have refused to provide durable solutions to the displaced.
Historically, such countries have looked at refugeeness through the
lens of temporary hospitality and guesthood. In key junctures of displace-
ment, they have opened their borders only to close them as displacement
evolved into a protracted refugee challenge (Yayha and Muasher, 2019;
Fakhoury, 2018). ey have furthermore buttressed ‘local closures’ in the
face of displaced individuals such as curfews, mobility restrictions and
connement in settlements and camps, arming and rearming the
narrative that they are no destination for those seeking refuge (Mourad
2020).
Lebanon provides a key case for understanding how the EU’s regional
refugee approach has led to contestation and incoherence (Del Sarto
and olens, 2020). Seen in this light, the EU’s goal of reconciling resil-
ience-building has had an uneasy relationship with the pragmatic goal of
deterring asylum. It has also encroached on rights-based refugee human-
itarianism (Lavenex and Fakhoury, n.d.).
13.3 Lebanon and the EU: Clashing logics?
Lebanon has been a key site for widespread displacement from Syria since
2011, and the EU has been the main funding power that has provided
refugee aid since then. e country is not a signatory to the 1951 Con-
vention. Still, since 2011, in a context of divided bureaucracies and elite
cartels, it has hosted more than one million Syrian refugees (Fakhoury,
2020). At the beginning of the conict, the Lebanese government adopted
a loose policy of border regulation. Soon, however, a securitized politics
of refugee containment superseded the open-border approach. In 2015,
the government ordered the borders to be shut down except for human-
itarian cases. It also asked the UN Refugee Agency to stop registering
147
Tamirace Fakhoury
refugees.
In the last years, Lebanon has witnessed an acute securitization of
the refugee question. Politicians have portrayed refugees as security and
economic threats, and mostly as threats to Lebanon’s sectarian pow-
er-sharing arrangement which rests on safeguarding the balance of power
between Christians and Muslims. As soon as the Syrian regime re-estab-
lished its authority on Syrian soil, various political parties began con-
tinually lobbying the international community for Syrian refugee return,
stressing Lebanon’s overstretched capacity. Municipalities and security
forces have enforced practices that have signicantly restricted Syrians’
access to legal residency, employment and housing and have reduced
their livelihood opportunities (Medina, 2020).
Municipalities have enforced illegal curfews that have limited refugee
mobility especially in times of Covid-19 (Chehayeb and Sewell, 2020).
Armed forces have also demolished refugee shelters in the name of envi-
ronmental violations even though displaced individuals have increasingly
been unable to aord decent housing (Human Rights Watch, 2019a).
Moreover, security forces have intensied their crackdowns on Syrians
who have worked in the informal labour market. is has occurred
although the Lebanese government has made it almost impossible for
Syrians to obtain legal labour permits. In parallel, the political elite have
scaled up calls for refugee repatriation (Fakhoury and Ozkul, 2019). In
coordination with Syrian authorities, the government has moreover been
processing applications for return.
In a nutshell, Lebanon’s asylum policy has increasingly consisted of
making it unbearable for refugees to stay. Lebanese General Security has
reported that about 170,000 Syrians have voluntarily returned to Syria –
although the numbers are contested (Human Rights Watch 2019b). Still,
researchers have cautioned against these so-called voluntary returns.
Push factors such as recurrent evictions, denial of rights and margin-
alization from access to services have coerced Syrians into searching for
alternative options (Mhaissen and Hodges, 2019).
Against this background, Lebanon’s realities have been at odds
with the EU’s proclaimed resilience-building approach. Since the onset
of refugee ight from Syria, the EU has upscaled its cooperation with
Lebanon, framed in the EU’s key policy instruments as a prioritized host
country. It has also embarked on a series of cooperative dialogues with
148 13. Building Resilience in Strained Refugee-Hosting States? The EU in The Face of Lebanon’s Cumulative Crises
Lebanon’s successive governments in the search for mutual benets as
to how Lebanon and the EU could benet from regional refugee coop-
eration. e EU and Lebanon’s governing powers have thus discussed
support to security reform, governance, development and trade in the
context of the refugee challenge. In 2016, in the framework of the London
Conference for Supporting Syria and the Region, the EU and Lebanon
signed the so-called Lebanon Compact (European Commission, 2016b).
Vague and less ambitious than the EU-Jordan compact, the compact
promises to explore avenues for facilitating the temporary inclusion of
Syrian refugees and their integration into the job market (Howden et al.,
2017; EU-Lebanon Association Council, 2016). Nonetheless, it arms the
primacy of Lebanon’s sovereignty and labour laws (EU-Lebanon Associ-
ation Council, 2016). In the context of the four Brussels conferences that
the EU has co-hosted since 2017, Lebanon and the EU have spelled out
respective commitments in view of boosting refugee inclusion. Objectives
such as facilitating refugee documentation procedures, allowing refugees
to work in restricted sectors and facilitating their access to education and
health as well as registering Syrian children born on Lebanese soil arise
as key projected outcomes of this cooperation.
Cooperation has however been a bumpy ride and spelled out com-
mitments on the part of the Lebanese government have turned out to be
aspirational. In practice, despite the EU’s funding power and its palette
of positive incentives, Lebanon has increasingly securitized its approach
towards refugees, and turned a blind eye to the EU’s rhetoric of resil-
ience-building. Today, according to UNHCR, more than 70% of surveyed
Syrians do not hold a legal permit (UNHCR, 2019). Furthermore, the
number of job permits for Syrians that have been issued have remained
extremely limited (Howden et al., 2017). Soon enough it has become
clear that the EU’s search for refugee solutions on Lebanese soil and its
quest for building resilience for both host and refugee communities hold
no achievable outcomes. Here, several factors come into play.
e EU’s refugee approach which seeks to entice Lebanon to facili-
tate refugee inclusion and to foster refugee resilience, has been at odds
with Lebanon’s geopolitics of asylum (Fakhoury, 2020). It is true that the
EU was able to inspire a conversation on improving refugee inclusion in
policy spheres. As underscored, with the adoption of the 2016 Compact
which promised funding in return for the Lebanese government relaxing
149
Tamirace Fakhoury
measures vis-à-vis Syrians’ temporary stay, the government pledged to
deliver on some reforms. In 2017, it announced its decision to waive the
USD 200 refugee residency fee enabling Syrian refugees to renew their
legal stay. ese commitments turned out to be eeting rhetoric.
In the last years, so conicts between Lebanese ocials and their
EU counterparts have increased. Some Lebanese politicians have started
calling on the EU to divert funds from Lebanon to Syria in the hope of
incentivizing refugees to go home. Still the EU has renewed its willing-
ness to support Lebanon’s recovery in the context of the refugee challenge.
Also, as Lebanese ocials started lobbying for rash refugee repatriation,
the EU has reiterated on various occasions that conditions for return
are still not favourable, and that it proposes instead as a temporary
solution “resilience-building” through humanitarian and development
aid (Fleyhane, 2017). In return, key governing powers have insisted
that Lebanon is no country of asylum and that the massive strains that
Lebanon is exposed to will most likely backre on Lebanon and the EU
(Hall, 2019). More precisely, they will trigger refugee waves to Europe
and destabilize the polity reeling from the weight of so many burdens.
In this light, various Lebanese politicians have criticized the EU’s
so-called politics of resilience-building where refugees are, framing it
instead as a politics of deterrence (Fakhoury, 2018). ey have also crit-
icized unbalanced burden-sharing in the international refugee regime.
ese clashes have not remained pure rhetorical divergences. ey have
had consequences for refugees’ lived realities and rights. As the EU and
Lebanon have diverged on their search for refugee solutions, a logic of
crisis governance has prevailed (Fine et al., 2020). is logic has privi-
leged quick xes that remained disconnected from local perceptions and
practices.
From yet another complex perspective, the EU’s refugee diplomacy
in Lebanon has remained detached from an engagement with Lebanon’s
divided allegiances vis-à-vis the Syrian conict and the domestic polar-
ities that the issue of displacement has brought along (Fakhoury, 2020).
Ever since Syria’s lethal conict erupted, Lebanese governing powers
have held divergent positions vis-à-vis Syria’s war and the refugee issue.
In the context of Syria’s war, some Lebanese factions have backed the
Syrian regime in the face of its rivals. Others have viewed the conict
as an opportunity to weaken Syria’s control in Lebanon. Amid domestic
150 13. Building Resilience in Strained Refugee-Hosting States? The EU in The Face of Lebanon’s Cumulative Crises
tensions, most political factions have started portraying the extended
stay of Syrian refugees, who are mostly Sunni, as a threat to Lebanon’s
system of sectarian power-sharing.
In this setting, the issue of Syrian refugee stay and return has become
tightly enmeshed with Lebanese politicians’ geostrategic interests
(Fakhoury, 2020). Some political executives who are staunch allies of
the Syrian regime hoped that, by advocating for Syrian refugee return,
they would contribute to restoring the legitimacy of Bashar-al-Assad’s
rule. Within this climate, the EU’s ‘resilience-building’ approach has been
moulded by the complex geopolitics of Lebanese Syrian relations, and its
policy pleas for improving refugee inclusion have remained mere ink on
paper (Lavenex and Fakhoury, forthcoming).
13.4 Overlapping crises
In October 2019, a massive protest wave broke out in L ebanon. e protest
wave which started in the wake of a proposed WhatsApp tax, called for
overthrowing Lebanon’s political leaders and changing the country’s
sectarian-based model of politics which promotes patronage, corrup-
tion, and inept governance. e protests, which happened on the heels
of a worsening nancial crash where both refugees and host communi-
ties found themselves on the verge of destitution, have called the EU to
rethink its politics of resilience-building. Since then, the Lebanese pound
has lost 80% percent of its value, and about 50% of Lebanese citizens have
been classied as poor by the Ministry of Social Aairs. UNHCR has
recently announced as well that because of Lebanon’s economic crisis -
further compounded by the global pandemic - more than 75% of Syrian
refugees have fallen below the poverty line in contrast to 50% in 2019
(Khoder, 2020).
Here, it is no exaggeration to say that the rhetoric of resilience-building
has not been backed by facts. It is also necessary to question the extent
to which it has been beneciary-led and to explore what factors have
thwarted its proclaimed objectives. In this context, refugees have been
thrown into more precarity, and signs of dissatisfaction and despair
amongst them have become strikingly visible in the last months. Back
in December 2019, some refugees started staging a sit-in at the UNHCR
in Tripoli, protesting shrinking funds and precarious trajectories
(Sewell, 2020). In the wake of the Beirut Blasts on 4 August 2020, Syrian
151
Tamirace Fakhoury
refugees began embarking on dangerous journeys in the Mediterranean
(AlBawaba, 2020).
13.5 Concluding remarks and the way forward:
Resilience-building as a cautionary tale?
Against this backdrop of cumulative crises, the gap between the EU’s
“resilience-building” rhetoric and policy outcomes on the ground has
widened by the day. Following the state’s recent failings, the EU has vowed
to rethink its politics of cooperation with Lebanon’s authorities (Apelblat,
2020). It has multiplied its calls for reforms and announced that an inter-
nationally backed economic rescue plan will be tied to conditionalities
necessitating the Lebanese government begin imminent reforms. Still,
the EU nds itself grappling with various dilemmas in the wake of both a
grassroots movement of contestation and a massive blast that have com-
pletely discredited the political establishment. One important dilemma
is cooperation with Lebanon’s governing powers over Syria’s protracted
refugee challenge.
In the last years, the EU has developed an approach of principled
pragmatism, favouring stabilization, and dialogue with Middle East and
North African (MENA) governments despite their questionable track
record on human rights. It has thus sought close cooperation with the
Lebanese government notwithstanding the government’s complex record
on refugee rights. Still, with the latest episode of collapse, civil society
organizations and activists have called for tracking international and EU
aid and their outputs:1 ey have also called on the EU and its Member
States to halt its cooperation with governing powers and to recongure
its architecture of aid in the small state. In this regard, the EU’s pragmatic
refugee diplomacy with Lebanon’s government - despite its bad record
of public services, rule of law and accountability - has come under erce
criticism.
Against this background, the implosion of Lebanon’s social contract
and the deterioration of refugee rights spell out colossal challenges for
the EU’s external policy. Firstly, how can the EU build on Lebanon’s
overlapping crises to develop an external policy that is more attuned to
people’s and refugees’ aspirations? And how can its funding power have
1 Authors’ conversations with activists 2019-2020.
152 13. Building Resilience in Strained Refugee-Hosting States? The EU in The Face of Lebanon’s Cumulative Crises
more tangible eects on improving the livelihoods and rights of both
refugee and host communities? Finally, what are the implications and
risks of cooperating with host governments and economies in which
social contracts are imploding?
In Lebanon, the current social contract between the government and
its citizens as well as its non-citizens does not hold anymore (Collard,
2020). As it falls apart, refugees are mired in a complex struggle (El-Taliawi
and Fakhoury, 2020). A resilience-building approach built on compre-
hensive policy partnerships is more likely to produce severe backlash
eects as far as vulnerable communities are concerned, when the roots of
vulnerability are not duly tackled, and when ‘resilience-building’ remains
disconnected from an underlying protection environment. Lebanon’s
successive crises, ranging from the nancial crash to the Beirut Blasts,
have broader insights to convey. It cautions the EU against the perils
of cooperation, and mutual partnerships with third countries when an
underlying ‘rights-based environment’ and legal remedies for refugees
remain absent. It also cautions against glorifying resiliency humanitari-
anism as a surrogate solution for rights-based humanitarianism (Turner,
2019).
153
Tamirace Fakhoury
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157
14. South America and The Cartagena
Regime: A Comprehensive Approach
to Forced Migration Responses
Gilberto M. A. Rodrigues
14.1 Introduction
Latin America has developed a specic regional regime for refugees.
e 1984 Cartagena Declaration on Refugees (UNHCR, 1984) had set
a landmark recommendation to all countries in the region: the need to
amplify the Geneva Convention of 1951’s refugee denition to incorporate
human rights mass violations as the “sixth reason” for the refugee deter-
mination process. Starting from this bedrock conceptual framework, the
Cartagena Regime evolved and included other innovative ways regarding
protection and solutions for refugees in the last 35 years. Particularly
in South America, there has been a comprehensive approach to forced
migration responses with lessons learned that could be useful for com-
parative studies and policy debates, including those regarding the new
European Union 2020 New Pact on Migration and Asylum (European
Commission, 2020).
14.2 The cartagena regime
e 1984 Cartagena Declaration on Refugees is a non-governmental
document approved by academics and UNHCR ocials in a Colloquium
held in Cartagena de las Indias, Colombia, in November 1984. e
document addressed a refugee crisis within a critical situation in Latin
America at that point. Civil wars, international interventions and massive
human rights violations in Central America were producing hundreds of
158 14. South America and The Cartagena Regime: A Comprehensive Approach to Forced Migration Responses
thousands of refugees. Neighbourhood host countries had no legal pro-
visions to recognize those people under the 1951 Refugee Convention’
standards.
Gradually, with UNHCR regional support as well as NGO actions,
Latin American countries began introducing the ‘massive violations of
human rights’ clause (which may encompass situations such as author-
itarian regimes, humanitarian crises and civil wars) in their national
legislations. e new conceptual framework enlarging the Geneva Con-
vention of 1951 denition was adopted voluntarily by each country thus
transforming the 1984 Cartagena Declaration into an aective regional
so law. e Cartagena Regime (Jubilut, Espinoza, Mezzanotti, 2020)
became much more complex and comprehensive than its starting point,
including protection and durable solutions’ regional mechanisms that
have been developed in its 35 years of existence.
A political commitment by the majority of the countries in the
Americas, in partnership with UNHCR, has dened a political agreement
to organize a summit every ten years in order to evaluate and update
the Cartagena Regime (Cartagena +). us, it has now four declarations
(1984, 1994, 2004 and 2014) and two plans of actions (2004 and 2014)
comprising the content of the regional regime, 1 which includes protec-
tion and durable solutions mechanisms, some of them unique (UNHCR,
2014).
14.3 The cartagena regime and the global compact on
refugees
e importance of regional and subregional approaches was valued by the
Global Compact on Refugees (UN, 2018) in its item 2.3, where it states
that “Comprehensive responses will also build on existing regional and
subregional initiatives for refugee protection and durable solutions where
available and appropriate, including regional and subregional resettle-
ment initiatives…”. is is exactly what the Cartagena Regime, in its 35
years of existence, represents, encompassing a broad policy framework
(not binding, as explained above) that includes protection and durable
solutions for intra-regional and extra-regional situations.
1 For reference by year, see: 1984, https://www.oas.org/dil/1984_cartagena_declaration_
on_refugees.pdf; 1994, https://www.refworld.org/publisher,RRI,,,4a54bc3fd,0.html;
2004, https://www.refworld.org/publisher,RRI,,,424bf6914,0.html; 2014, https://www.
unhcr.org/brazil-declaration.html.
159
Gilberto M. A. Rodrigues
14.4 Contemporary refugee and migration laws in South
America
South American countries have embraced the international refugee
regime through their recognition of the 1951 Geneva Convention and
1967 Protocol. As part of their national regulatory process, refugee laws
were approved based on the general International Refugee Law but also
based on the Cartagena Regime. Table 1 shows Mercosur countries
regarding their status to both international and domestic norms.
Table 1 – Mercosur: Geneva Conv.+1967 Protocol ratication status /
Refugee laws
Mercosur
countries Argentina Brazil Paraguay Uruguay
Geneva
Conv.
1951
Accession/1961 Ratica-
tion/1960 Accession/1970 Accession/1970
1967
Protocol Accession/1967 Accession/1972 Accession/1970 Accession/1970
Refugee
Laws
Ley Nº
26.165/2006 –
Ley General de
Reconocimiento
y Protección al
Refugiado
Lei 9.474/1997 –
Dene mecan-
ismos para a
implementação
do Estatuto dos
Refugiados de
1951.
Ley N°
1938/2002 –
Ley General
sobre Refugiados
Ley Nº
18.076/2007
– Derecho al
Refugio y a los
Refugiados –
Data collection by the author (2020)
160 14. South America and The Cartagena Regime: A Comprehensive Approach to Forced Migration Responses
Refugee laws are necessarily connected to general migration laws,
which regulates the status of migrants vis-à-vis their rights, including
residence, acquisition of nationality and other important issues regarding
human rights of migrants. Table 2 shows how migration laws in Mercosur
countries evolved from a national security focus to a human rights focus
over the last twenty years.
Table 2 – Mercosur countries’ migrations laws – general focus
Mercosur
Countries
Argentina Brazil Paraguay Uruguay Venezuela
Previous
migration
laws and
their focus
22.439/1981
National
Security
6815/1980
National
Security
470/1974
National
Security
9.604/1936
National
Security
19.329/1937
National
Security
Contem-
porary
migration
laws and
their focus
25.871/2004
Human
rights
Non-dis-
crimination.
13.445/2017
Human
rights
Non-dis-
crimination
978/1996
National
develop-
ment
18.250/2008
Human
rights
Non-dis-
crimination
37.944/2004
Human
rights
Adapted by Rodrigues and Silva, 2018
e intersection between refugee laws and migration laws in South
America (particularly in Mercosur countries) allows asylum seekers to
apply for other alternatives for provisional or permanent residence when
they have their asylum applications refused by national authorities.
However, those complementary protection instruments are relatively
new and their implementation has been aected by a high level of discre-
tionary power and also by restrictions imposed by regressive administra-
tive regulations which in many cases have reduced the ground of human
rights protection granted by the law as well as by the Cartagena Regime.
Yet, it should be made clear that since 2017 new right and far-
right-wing governments in South America have managed migration
issues with a security, nationalist approach, which has led to violations
of Refugee Law (Jubilut et al., 2019). rough executive decrees and/
or ordinances either Argentina (Macri’s government, 2017-2020) and
Brazil (Bolsonaro’s government, 2019-present), to mention two major
Mercosur countries, have tried to control borders, criminalize migrants
161
Gilberto M. A. Rodrigues
and downplay human rights standards of their laws regarding refugees
and migrants. But in many cases courts have been provoked to intervene
and suspend those illegal acts, such as the Brazil’s Ministry of Justice
ordinance n. 666 (Alarcón, Rodrigues, 2019), which illegality was recog-
nized even by an atypical Brazil’s UNHCR Oce declaration (Brasil247,
2019), and was contested in the Supreme Federal Court (STF, 2019).
14.5 The context of forced migration in the region
It is important to contextualize the forced migration challenges that Latin
America and the Caribbean region have faced in the last twenty years.
e Colombian war and violence committed by the Colombian Army,
paramilitary forces and guerrillas are still ongoing, despite the 2016 Peace
Agreement between Colombia Government and the Colombian Revolu-
tionary Armed Forces (FARC), a process that led the Nobel Committee
to award Colombian President Juan Manuel Santos with the 2016 Nobel
Peace Prize (e Nobel Prize, 2016).
In Central America, the North Triangle composed of El Salvador,
Guatemala and Honduras has confronted long-term structural violence,
aggravated by civil wars and the emergence of Maras, violent urban
gangs. ose problems have produced long-term massive waves of forced
displacement in the region.
In the Caribbean, Haiti became a top international security priority
followed by the approval of the United Nations Stabilization Mission in
Haiti (2004–2017),2 which was mainly coordinated by South American
countries, particularly Brazil, Chile and Argentina. In 2010, a huge earth-
quake partially devastated the island and produced a massive ux of
forced migrants mainly to South America.
Finally, the political, economic and humanitarian crisis in Venezuela
(Rodrigues, 2018) has produced a massive migration ux since 2016
with a huge impact on South American countries, especially Colombia
and Brazil. According to 2020 UNHCR gures, Venezuela is the second
highest country source with 3.7 million (refugees + displaced abroad).3
From outside the region, despite its distance, the Syrian war has
2 For more on the United Nations Stabilization Missions, see: https://peacekeeping.un-
.org/en/mission/minustah.
3 For more data, see: https://www.unhcr.org/gures-at-a-glance.html.
162 14. South America and The Cartagena Regime: A Comprehensive Approach to Forced Migration Responses
also impacted the region, as the Syrian community is strong in many
South American countries, which favoured reception and governmental
policies to receive them in a timely manner.
14.6
Open borders
as a regional policy in South America
South America had a traumatic experience with borders of confronta-
tion during the Cold War, in which national security doctrines played a
central role in shaping international mobility as a national security issue.
Military regimes agreed to cooperate in controlling their borders against
the so-called subversives (those persecuted for political reasons), and also
secretly exchange detainees who were then victims of forced disappear-
ances through the horrible Operation Condor (Tremlett, 2020).
e re-democratization process in the 1980s brought a new era of
human rights protection and border management in South America.
New cooperation between Argentina and Brazil led to bilateral com-
mitments in the late 1980s and soon aer that to Mercosur in 1991
(Mercosur, 2020), built under borders of cooperation frameworks. Even
policies of combating organized crime (especially narcotrac) and its
re-securitization measures adopted by many countries beginning in the
1990s - also deepened by 9/11 antiterrorist security outcomes - were
not determinant in changing the pattern of open borders for receiving
forced migrants. e 2004 Mexico Declaration and Plan of Action estab-
lished the concept of solidarity borders, calling governments to keep their
borders open to receive forced migrants. is was particularly important
in South America with the Colombian conict (Ecuador and Venezuela’s
borders with Colombia); and more recently with the Venezuelan conict
(Colombia and Brazil’s borders with Venezuela). However, the Covid-19
pandemic has changed border control due to emergency sanitation norms
restricting entry to foreigners without permanent residence permission.
14.7
Non-refoulement
principle and legal limits to
deportation
Non-refoulement is a bedrock principle of International Refugee Law
entrenched in all national refugee laws in South America. is principle
goes beyond refugee laws themselves and links migration laws limiting
163
Gilberto M. A. Rodrigues
the possibility of deportations of non- recognized refugees who could be
in danger if deported. Tab l e 3 shows how Mercosur migration laws deal
with this issue.
Table 3 – Mercosur countries’ migrations laws – deportation & access
to justice
Mercosur
Migration
Laws
Argentina
Law
25.871/2004
Brazil
Law
13.445/2017
Paraguay
Law
78/1996
Uruguay
Law1
8.250/2008
Venezuela
Law
37.944/2004
Deporta-
tion and
access to
justice
Deportation
should
respect due
process
of law;
migrants
have the
right to
access
justice
without
costs
Deportation
should
respect due
process
of law;
migrants
have the
right to
access
justice
without
costs
Non
admission
of for-
eigners
who may
represent
risk to
public
health
Non
admission
for lacking
documents
or partic-
ipation
in crimes
against
humanity,
genocide;
human,
drug
tracking
condemna-
tions.
Non
admission
of for-
eigners
who may
represent
risk to
public order
and inter-
national
relations
Adapted from Rodrigues and Silva, 2018
14.8 Humanitarian visas and qualifications: their role and
limits
Humanitarian visas are a complementary form of protection, which
“grant legal status to people who are not recognized as refugees under the
Geneva Refugee Convention, or the Cartagena Declaration, but whose
return is contrary to States’ obligations to the principle of non-refoule-
ment” (Freier and Gauci, 2020).
In 2012, they were applied to Haitians as part of an accommodation
process regarding Brazil’s CONARE decision which did not recognize
them as refugees. Assuming their vulnerable condition and the impossi-
bility to repatriate them to Haiti (due to the critical situation the country
164 14. South America and The Cartagena Regime: A Comprehensive Approach to Forced Migration Responses
has confronted since its 2010 earthquake), Brazil’s National Immigration
Council (CNIg) conferred Haitians humanitarian visas, recognizing their
vulnerable situation, allowing them provisional residence permission,
which was later converted to a permanent one for most of them under
some conditions.
Aer the humanitarian visa solution for Haitians, Brazil’s government
applied a similar measure for Syrians in 2013. e aim was to accelerate
the Refugee Status Determination (RSD) for Syrians settled in a rst
host country. rough a fast track procedure visas and qualications for
Syrians (Rodrigues et al., 2017) were, in fact, part of Brazil’s commitment
to contribute to share the burden of the Syrian crisis that had begun in
2011.
UNHCR celebrated the legal alternative of humanitarian visas as a
complementary protection in line with UNHCR standards. e 2014
Brazil Declaration and Plan of Action stressed that possibility. Brazil,
Argentina, Uruguay and Venezuela migration laws included provisions
related to that, either for entry or residence permissions. Nevertheless,
some experts, such as Laura Madrid Sartoretto and Diego Arcarazo
(2020), Giuliana Redin (2020), and myself as well, see this kind of com-
plementary protection as a possible lack of political will to support
Refugee Status Determination (RSD) based on the broad Cartagena de-
nition, due to less responsibilities the state assumes with those humani-
tarian migrants.
14.9 South-South cooperation and extra-regional
resettlement
Extra-regional and intra-regional resettlement was part of the South-
South cooperation South America countries implemented since 2005
and based on the resettlement in solidarity of the 2004 Mexico Decla-
ration and Plan of Action (also included in the 2014 Brazil Declaration
and Plan of Action). In this regard, Palestinians were resettled (Espinoza,
2017), but in a limited way. e same happened with Syrians, who could
have beneted from assistance from Syrian communities in many South
American countries, yet were limited due to the distance from their
origin.
165
Gilberto M. A. Rodrigues
Intra-regional resettlement was implemented in Latin America
in 2005, based on the Solidarity Resettlement Program, which was
“designed as a protection tool and a durable solution for Latin American
refugees (primarily of Colombian origin) who faced risks in neigh-
bouring countries”. e Program was also “a mechanism for international
solidarity and responsibility sharing among the region’s states, seeking to
bring relief to those countries hosting the greatest number of refugees”
(Marcogliese, 2017). Between 2005 and 2014, around 1.151 refugees,
mainly Colombians, who were settled in Ecuador and Costa Rica were
resettled to Argentina, Brazil, Chile, Paraguay and Uruguay.
14.10 Venezuelans and
prima facie
RDS by Brazil’s
CONARE
Another important protection measure that was prov ided for t he rst time
in Latin America was Brazil’s decision to recognize prima facie thousands
of Venezuelans (ACNUR, 2020), based on the “human rights massive
violations” clause therefore eliminating interviews and other procedures
for the RDS. is decision made by Brazil’s CONARE in December 2019
(followed by other similar decisions in 2020) is considered by UNHCR
and many experts one of the most relevant ones regarding protection of
refugees applied in the region.
Yet criticism on this decision came from many experts, NGOs and
communities of refugees that saw a political bias in Brazil’s government
towards President Maduro’s regime. e decision applied to Venezuelans
could potentially be applied to refugees from other nationalities, but few
think it will be.
14.11 The Inter-American Human Rights System and the
Cartagena Regime
e Inter-American Human Rights System (IAHRS) is comprised
of three bodies: the Inter-American Commission on Human Rights
(IACHR), the Inter-American Court of Human Rights (I/A Court H.R.)
and the Inter-American Institute of Human Rights (IAIHR) (OAS, 2020).
e rst is legally binding for all 34 Organization of America States
(OAS) members, while the second is binding only for those recognizing
166 14. South America and The Cartagena Regime: A Comprehensive Approach to Forced Migration Responses
its jurisdiction – that means 20 states (including all Mercosur members,
excepting Venezuela, and the other South American countries – Bolivia,
Chile, Colombia, Ecuador and Peru).
e IAHRS has also played an important role in migration and
human rights in cases regarding arbitrary detention of migrants, violation
of nationality of migrants, extradition, deportation and expulsion of
migrants, among others. Due to the fact that almost all South American
countries recognize the I/A Court H.R, its subsidiary role in connec-
tion to the Cartagena Regime also empowers the intersection between
migration and human rights in those countries. e I/A Court H.R.
Advisory Opinion OC-21/14 on “Rights and guarantees of children in
the context of migration and/or in need of international protection” (I/A
Court H.R., 2014) is an important example of that.
14.12 Conclusions
e Cartagena Regime has contributed to a comprehensive response
to forced migration challenges in Latin America in line with the GCR.
In South America, the 2004 Mexico Declaration concepts of solidarity
borders, solidarity cities and solidarity resettlement have been applied.
Complementary protection in the form of humanitarian visas and quali-
cations have been also applied in South America with relative success in
cases in which the RSD did not recognize forced migrants, although there
have been limits to their implementation. New right- and far-right wing
governments have contributed to regressive policies regarding migration
and a human rights-based approach. e Covid-19 pandemic has aected
the regular status of open borders and the normalcy of migration law reg-
ulations.
167
Gilberto M. A. Rodrigues
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(2019), “e Cartagena Declaration at 35 and Refugee Protection in
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Siqueira (2017), “Visas and qualications: Syrian refugees in Brazil”,
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15. Admissibility, Border Procedures
and Safe Country Notions
Jens Vedsted-Hansen
15.1 The different meanings of ‘safe country’
Although only mentioned in a couple of places in the New Pact on
Migration and Asylum issued by the European Commission in September
2020 (European Commission, 2020a), the perception of certain countries
as safe for asylum seekers and refugees seems to become increasingly
important in EU asylum law and policy as the legislative proposals
accompanying the EU Pact attribute signicant weight to ‘safe country’
notions in various connections. From these texts it seems clear that the
notion of safety will become ever more relevant in both of its traditional
meanings: as a reference to the applicant’s country of origin and as a term
referring to non-EU countries through which the applicant has transited
or previously stayed en route to the external border of the European
Union.
e legal contents and implications of the ‘safe country’ notion dier
quite signicantly between the various legislative instruments, yet its
cognitive aspects may appear to be far less dierent. In reality, the notion
of safety is given meaning through its actual usage in specic procedural
contexts that may well allude to similar preunderstanding of the notion.
e following analysis shall illustrate this with a particular focus on
border procedures and admissibility under the EU Pact and its legislative
proposals.
e concept safe country of origin relates to the various procedural
channels through which asylum applications are being examined on
the merits. Historically, this aspect of the ‘safe country’ notion has been
171
Jens Vedsted-Hansen
linked to the special procedures for ‘manifestly unfounded applications’
or other types of accelerated asylum procedures. Such procedures were
gradually introduced during the 1980s and 1990s, rst with reference
to the UNHCR Executive Committee (UNHCR, 1983) and later by the
pre-Maastricht ‘London Resolution’ on Manifestly Unfounded Applica-
tions for Asylum (EC, 1992a) that linked the acceleration of examination
procedures to the concept ‘safe country of origin’ through the accompa-
nying Conclusions on Countries in Which ere is Generally No Serious
Risk of Persecution (EC, 1992b). e past decades have added to the ‘safe
country of origin’ standards as well as to the actual implementation of
these standards.
As opposed to the substantive application of ‘safe countries of
origin’, the concept safe third country has been increasingly used as an
admissibility criterion. is was, and still is, the crucial requirement to
be fullled in the implementation of pre-procedure returns of asylum
seekers from Greek islands to Turkey under the EU-Turkey arrangement
of March 2016 (European Council, 2016) that is oen considered as a
blueprint (Ineli-Ciger and Ulusoy, 2020) for the ‘protection elsewhere’
policies now underway as a more general and far-reaching element in the
revised CEAS to follow from the EU Pact.
As yet another kind of ‘safe third country’ device employed among
EU Member States, the principle of ‘mutual trust’ is being systematically
used as a legal basis for presuming the safety of asylum seekers in other
Member States, as reected in the various CEAS instruments and oper-
ationalised in the Dublin Regulation (EU, 2013a). is intra-EU usage
of the ‘safe country’ notion is not going to be discussed any further here.
15.2 Pre-entry screening at external borders: asylum
procedure ‘light’?
An overall rationale of the New Pact on Migration and Asylum is the
need to tackle the changing nature of the migration challenge that pur-
portedly results from the tendency towards mixed migration ows. e
EU Pact itself posits that mixed ows of refugees and migrants have
meant ‘increased complexity and an intensied need for coordination
and solidarity mechanisms’ (p. 3). e Commission elaborates on this
in the Proposal for a Screening Regulation (European Commission,
172 15. Admissibility, Border Procedures and Safe Country Notions
2020b) by stating that available data demonstrate that the arrival of third-
country nationals with clear international protection needs as observed
in 2015-2016 has been ‘partly replaced by mixed arrivals of persons’. It is
therefore, in the Commission’s view, important to develop a new eective
process allowing for better management of mixed migration ows. In
particular, it is ‘important to create a tool allowing for the identication,
at the earliest stage possible, of persons who are unlikely to receive pro-
tection in the EU’ (p. 1).
e proposed Screening Regulation does not include any specic tool
for that purpose, however. While the pre-entry screening aims to ensure
swi handling of third-country nationals who request international pro-
tection at border crossing points (recital 7), it seems unclear whether and
how the outcome of the screening will actually contribute to that aim.
It therefore has to be analysed in connection with the other legislative
proposals.
According to Article 14(2) of the Proposal, the authorities conducting
the screening shall, in the de-brieng form provided for by the Regula-
tion, point to ‘any elements which seem at rst sight to be relevant to refer
the third-country nationals concerned into the accelerated examination
procedure or the border procedure’ stipulated by the Amended Proposal
for an Asylum Procedure Regulation (European Commission, 2020c).
In other words, ‘swi handling’ implies that the pre-entry screening will
simply be aimed at identifying cases that can be referred to the acceler-
ated or/and border procedures and hence be exempt from the ordinary
asylum procedure. e latter is supposed to become accessible only for
those applicants with well-founded claims, as explained in the EU Pact
(p. 4).
Neither the proposed Screening Regulation nor the annexed standard
de-brieng form species which types of information should be consid-
ered relevant ‘at rst sight’ for referral into the various asylum procedures,
nor is there any stipulation as to how such information is to be collected
and veried. Against this background it is hard to avoid the impression
that information may be sought, collected and reported during the pre-
screening at external borders that will de facto become decisive to the
examination of applicants’ need for protection despite the absence of
such legal clarity and procedural safeguards.
e mandatory elements of the proposed pre-screening will be health
173
Jens Vedsted-Hansen
and vulnerability check, identication, security check and registration of
biometric data as well as lling out of a de-brieng form and ‘referral
to the appropriate procedure’, i.e. return procedure, accelerated asylum
procedure or border asylum procedure (Article 6(6), cf. Article 14).
Accordingly, the standard de-brieng form will include information per-
taining to irregular entry and itinerary such as countries and places of
previous residence, third countries of transit, modalities of transit and
assistance provided by facilitators in relation to irregular border crossing
(Article 13 and Annex).
Some of this information may be indirectly relevant to the substan-
tive examination of the applicants’ need for protection and thus for chan-
nelling cases into accelerated procedures based on their assumed ‘safe
country of origin’. Nonetheless, it seems safe to assume that the pre-entry
screening will primarily address issues and facts that may provide the
basis for considering applications inadmissible on ‘safe third country’
grounds. If implemented in close connection with border procedures
on asylum and return, as foreseen by the EU Pact (p. 4), the pre-entry
screening seems likely to serve as a device for summary decisions con-
cerning pre-examination return based on inadmissibility grounds as well
as for the cursory examination and allocation of cases to normal or accel-
erated and/or border asylum procedures.
15.3 Inadmissibility on ‘safe third country’ grounds:
second layer of border procedures?
While the proposed Screening Regulation can be considered as purely
procedural and organisational, the 2016 Proposal for an Asylum
Procedure Regulation (European Commission, 2016) and the Amended
Proposal for an Asylum Procedure Regulation (European Commission,
2020c) launched with the EU Pact contain procedural standards based on
criteria with a certain degree of substantive content. e operation of these
criteria in the context of border control, however, will depend crucially
on the organisational arrangements conditioning the implementation of
the relevant procedures. ere is ample evidence that CEAS standards do
not in reality prevent Member States from acting at variance with EU law
when exercising border control. Importantly, monitoring and enforce-
ment by the Commission have so far proven insucient to eectively
prevent the infringements, as implicitly recognised by the Commission
174 15. Admissibility, Border Procedures and Safe Country Notions
itself in the 2015 European Agenda on Migration (European Commis-
sion, 2015: 12) and in the EU Pact (European Commission, 2020a: 6).
is is to be borne in mind when forecasting the eects on the ground
of the procedural standards proposed along with the EU Pact. e border
procedure that will be applicable for the examination of asylum applica-
tions as well as for carrying out return decisions according to the Asylum
Procedure Regulation (Articles 41 and 41 a of the Amended Proposal)
may give rise to particular concern in this regard.
One of the key devices in connection with the proposed border
procedure is the return of asylum seekers on ‘safe third country’ or ‘rst
country of asylum’ grounds. Here we shall focus on the former notion
that is likely to be the most relevant in practice and the most problem-
atic in principle. While the border procedure as such will be optional for
Member States in these cases, the application of the admissibility criteria
will be mandatory under the proposed Asylum Procedure Regulation
(Article 36). Notably, the requirements for declaring an application inad-
missible without any examination of the need for protection are based on
the more or less substantiated presumption that a given third country is
‘safe’ for asylum seekers and refugees.
e 2013 Asylum Procedures Directive (EU, 2013b) already lays
down fairly modest criteria for applying the ‘safe third country’ notion,
requiring that there is no risk of persecution or serious harm in, and no
risk of indirect refoulement from, such a country. In addition, there must
be the possibility to request refugee status and, if found to be a refugee,
to receive protection in accordance with the Refugee Convention (Article
38). e inadmissibility criteria in the Proposal for an Asylum Procedure
Regulation (European Commission, 2016) are even weaker as the latter
requirement will be modied to the eect that the possibility must exist
to receive protection in accordance with the ‘substantive standards’ of
the Refugee Convention or ‘sucient protection’ (Article 45(1)). is
apparent expansion of the inadmissibility grounds may extend the scope
for political manoeuvre in situations where the solidity of the basis for
assuming safety in a third country could be questioned. As is well known,
this was indeed the case for returns to Turkey within the framework of
the 2016 EU-Turkey arrangement (European Council, 2016). It is not
hard to imagine future scenarios in which a exible standard for assessing
the ‘suciency’ of protection in a third country could be helpful for the
175
Jens Vedsted-Hansen
purpose of rejecting applications as inadmissible and returning asylum
seekers to that country without examining their cases.
e eects of this inadmissibility ground will be crucially dependent
on the actual possibility to rebut the presumption of safety and the
assumed individual connection to the ‘safe third country’ in question.
To the extent admissibility decisions are going to be made in a border
procedure that is narrowly connected to, if not de facto coinciding with,
pre-entry screening as discussed above, it may prove very dicult to
uphold the procedural safeguards necessary to ensure eective access to
rebuttal of the presumption of safety.
15.4 Safe countries of origin: distorting the perception of
protection?
It is well established that the ‘safe country of origin’ notion cannot in and
of itself justify the rejection of an asylum application. e only legally
sustainable impact of the legal concept is that of creating a presump-
tion that the applicant is not in need of international protection for the
purpose of channelling the case to an accelerated examination procedure.
Like any other presumption, this procedural one has to be rebuttable, and
the possibility to rebut the presumption of safety in an applicant’s country
of origin must be real and eective. e possibility of rebuttal is clearly
reected in Article 36 of the 2013 2013 Asylum Procedures Directive (EU,
2013b). Importantly, however, the eectiveness of the access to rebuttal
is at risk of being reduced as a consequence of the pending legislative
proposals.
Introduced back in 1992, as described above in section 1, the ‘safe
country of origin’ notion has become a central part of the CEAS. In the
Asylum Procedures Directive (EU, 2013b) it is one of the key grounds
for accelerated examination that may take place at the border (Articles
31(8)(b) and 43). In addition, the EU Court of Justice (CJEU, 2013) has
made it clear that this procedural criterion does not in itself constitute
discrimination on grounds of applicants’ nationality, provided that the
accelerated procedure complies with the basic principles and guarantees
set out in the Directive. Nonetheless, the legislative proposals accompa-
nying the EU Pact will raise other and more severe fundamental rights
concerns if adopted.
176 15. Admissibility, Border Procedures and Safe Country Notions
Already the initial Proposal for an Asylum Procedure Regulation
(European Commission, 2016) contains a provision that will reintroduce
the designation of ‘safe countries of origin’ at EU level by way of an EU
common list of such countries, including Albania, Bosnia and Herze-
govina, Northern Macedonia, Kosovo, Montenegro, Serbia and Turkey
(Article 48 and Annex 1). While some of these countries may be rather
uncontroversial in this regard, the latter appears highly disputable at least
since the Turkish government’s reactions to the military coup d’état that
was attempted just two days aer the Proposal had been launched in July
2016. e Commission has apparently neither modied this part of the
Proposal nor explicitly addressed the question of how it may still be con-
sidered compatible with EU fundamental rights.
Furthermore, the Amended Proposal for an Asylum Procedure
Regulation (European Commission, 2020c) launched with the EU Pact
will introduce an additional ground for accelerating the examination
procedure: the applicant’s origin in a country for which the proportion of
decisions by authorities granting international protection is 20% or lower,
according to the latest available yearly average Eurostat data. Exceptions
are foreseen for situations where a signicant change has occurred in the
third country concerned since the publication of the relevant data, or
where the applicant belongs to a category of persons for whom the pro-
portion of 20% or lower cannot be considered as representative for their
protection needs (Article 40(1)(i)).
Leaving aside the apparent contradiction inherent in this exception,
which is quite hard to reconcile with the very idea of accelerated pro-
cedures, the need for such an acceleration ground is not evident, given
the abovementioned grounds that are based on similar considerations.
e Explanatory Memorandum presents this proposal as being based on
‘more objective and easy-to-use criteria’ and suggests that the percentage
is justied by the signicant increase in the number of applications made
by applicants coming from countries with a low recognition rate and
‘hence the need to put in place ecient procedures to deal with those
applications, which are likely to be unfounded’ (European Commission,
2020c: 13-14).
Considering that the proposed acceleration ground, along with the
pre-existing criteria, will be mandatory for the channelling of cases into an
accelerated examination procedure, and that examination in the border
177
Jens Vedsted-Hansen
procedure of cases accelerated on this ground will become mandatory as
well, the totality of the procedural proposals seems to have the rather clear
cognitive implication that many asylum seekers neither deserve nor need
to undergo substantive examination in normal asylum procedures with
the full scope of guarantees. While such seem likely to become a privilege
for only a limited number of asylum seekers, sizeable categories of people
will be confronting strong presumptions against their need for protection
that will, due to the procedural devices discussed above, become de facto
very hard to challenge in the context of border procedures.
178 15. Admissibility, Border Procedures and Safe Country Notions
References
UNHCR (1983), e Problem of Manifestly Unfounded or Abusive
Applications for Refugee Status or Asylum, Executive Conclusion No.
30 (XXXIV), 20.10.1983.
Ministers of the Member States of the European Communities responsible
for Immigration (EC 1992a), Resolution on Manifestly Unfounded
Applications for Asylum (‘London Resolution’), 30.11.1992.
Ministers of the Member States of the European Communities respon-
sible for Immigration (EC 1992b), Conclusions on Countries in
Which ere is Generally No Serious Risk of Persecution (‘London
Conclusions’), 30.11.1992.
CJEU (2013), Judgment of the Court in Case C-175/11, H.I.D., B.A. v
Refugee Applications Commissioner, Refugee Appeals Tribunal,
Minister for Justice, Equality and Law Reform, Ireland, Attorney
General, 31.1.2013 (ECLI:EU:C:2013:45).
EU (2013a), Regulation (EU) No604/2013 of the European Parliament
and of the Council of 26June 2013 establishing the criteria and mech-
anisms for determining the Member State responsible for examining
an application for international protection lodged in one of the
Member States by a third-country national or a stateless person, OJ
L 180, 29.6.2013.
EU (2013b), Directive 2013/32/EU of the European Parliament and of
the Council of 26June 2013 on common procedures for granting and
withdrawing international protection, OJ L 180, 29.6.2013.
European Commission (2015), Communication: A European Agenda on
Migration, COM(2015) 240 nal, Brussels, 13.5.2015.
European Council (2016), Press Release: EU-Turkey statement, 18 March
2016.
European Commission (2016), Proposal for a Regulation of the European
Parliament and of the Council establishing a common procedure
for international protection in the Union and repealing Directive
2013/32/EU, COM(2016) 467 nal, Brussels, 13.7.2016.
European Commission (2020a), Communication on a New Pact on
179
Jens Vedsted-Hansen
Migration and Asylum, COM(2020) 609 nal, Brussels, 23.9.2020.
European Commission (2020b), Proposal for a Regulation of the
European Parliament and of the Council introducing a screening of
third country nationals at the external borders and amending Regula-
tions (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU)
2019/817, COM(2020) 612 nal, Brussels, 23.9.2020.
European Commission (2020c), Amended proposal for a Regulation of
the European Parliament and of the Council establishing a common
procedure for international protection in the Union and repealing
Directive 2013/32/EU, COM(2020) 611 nal, Brussels, 23.9.2020.
Ineli-Ciger, M. and O. Ulusoy (2020), “Why the EU-Turkey Statement
should never serve as a blueprint”, Forum on the new EU Pact on
Migration and Asylum in light of the UN GCR, CEPS, Brussels,
October.
16. Setting The Right Priorities: Is the
New Pact on Migration and Asylum
Addressing The Issue of Pushbacks at
EU External Borders?
Marco Stefan and Roberto Cortinovis
16.1 Introduction
e notion of ‘pushback’ describes practices of refusal of entry at the
border as well as expulsions of individuals from a state territory without
an assessment of their personal protection needs and with disregard for
basic procedural guarantees. e term also encompasses hostile and
violent actions by states’ authorities against individuals that are oen
associated with those practices.
Pushback practices represent a major threat to the fundamental rights
and rule of law standards established under EU primary and secondary
legislation, most notably the prohibition of refoulement and the right to
seek asylum (Parliamentary Assembly of the Council of Europe, 2019).
ey also stand at odds with the EU Member States’ obligation to uphold
the international legal framework of refugees and migrants’ protection.
e commitment to comply with this framework has recently been reaf-
rmed in both the UN Global Compact on Refugees (GCR) and the
Global Compact for Safe, Orderly and Regular Migration (GCM).1
Pushbacks have been reported at several sections of the EU external
1 See Global Compact on Refugees, United Nations, New York, 2018 (https://www.
unhcr.org/5c658aed4.pdf); Global Compact for Safe, Orderly and Regular Migra-
tion, December 2018 (https://www.un.org/en/ga/search/view_doc.asp?symbol=A/
RES/73/195).
181
Marco Stefan and Roberto Cortinovis
borders, including along the Western Balkans Route, as well as in the
Western, Central and Eastern Mediterranean (European Union Agency
for Fundamental Rights, 2020a; Parliamentary Assembly of the Council
of Europe, 2019; Refugee Rights Europe and End Pushbacks Partnership,
2020). is contribution pays specic attention to the situation at the
Greek-Turkish land and sea borders. Greek authorities’ systematic use
of violence toward migrants and asylum seekers at the Evros River has
been widely documented over many years (Pro Asyl, 2013). However,
worrying reports of such practices have drastically multiplied over 2020
(Wemove Europe and Oxfam International, 2020). Extensive accounts
also exist of pushbacks at sea by the Greek Coast Guard (Kingsley and
Shoumali, 2020).
Increasing evidence of the European Border and Coast Guards
(Frontex) active involvement in and connivance with these kind oper-
ations have recently induced the European Commission to request
the agency to investigate existing allegations of pushbacks and address
persisting accountability gaps for fundamental rights violations in the
Aegean Sea (Nielsen, 2020; Adkins, 2020).
Taking the steps from this backdrop, this contribution interrogates
whether and how the Commission’s New EU Pact on Migration and
Asylum (European Commission, 2020a) envisages the adoption of legal,
procedural and operational responses that are required to address the
increased use of pushback practices at EU external borders.
Special focus is paid to the Pact’s proposal to establish an independent
fundamental rights monitoring mechanism in pre-border screening pro-
cedures. We evaluate the potential of such a mechanism to prevent devi-
ations from the non-refoulement principle, but also to redress the serious
accountability challenges traditionally associated with pushbacks.
16.2 International, regional and EU fundamental rights
standards
A state’s obligation not to expel or return a person to territories where
his/her life or freedom would be threatened (non-refoulement) is the cor-
nerstone of the international protection regime. It is set out in Article
33.1 of the 1951 Refugee Convention, as well as in other UN Human
Rights Conventions (e.g. in Article 3 of the Convention Against Torture).
182 16. Setting The Right Priorities: Is The New Pact on Migration and Asylum Addressing
the Issue of Pushbacks at EU External Borders?
e non-refoulement principle is also a key tenet of the system estab-
lished under the European Convention on Human Rights (ECHR).
Article 2 (right to life) and Article 3 (prohibition of torture, inhuman and
degrading treatment or punishment) prohibit any return of an individual
who would face a risk of a treatment contrary to those provisions. e
obligation of non-refoulement under the ECHR is absolute: it does not
allow for derogation, exception or limitation, even in situations of mass
arrival of migrants at borders (Hruschka, 2020) or in the context of a
health emergency such as the Covid-19 pandemic (Nicolosi, 2020).
Article 4 of Protocol 4 to the ECHR specically prohibits the collec-
tive expulsion of aliens. Such prohibition constitutes a corollary of the
non-refoulement principle as it grants every individual the possibility to
assert the existence of a risk of treatment incompatible with the Con-
vention in case of expulsion from a state’s territory. e prohibition of
collective expulsions is also a rule of international and regional human
rights law stemming from the right to a fair trial: it implies the right to
an individualized procedure taking into account the personal situation of
any person subject to expulsion, regardless of the legal or administrative
status of the latter (Carrera, 2020).
Prohibition of refoulement and summary expulsions are included in
EU primary law, specically in Articles 18 and 19 of the EU Charter of
Fundamental Rights. In addition, pushbacks are oen associated with
excessive use of force that may as well result in violations of the right to
integrity and the protection from ill treatment (Articles 3 and 4 of the
EU Charter). In extreme circumstances, violent actions might even lead
to a breach of the right to life (Article 2) (European Union Agency for
Fundamental Rights, 2020b).
Non-refoulement obligations are also incorporated in the key legisla-
tive instruments of the Union’s asylum and border management acquis.
e EU Asylum Procedures directive provides that whenever an applica-
tion for international protection is made (including at the border) access
to an asylum procedure is to be granted (Article 6), and that applicants
should have access to an eective remedy with suspensive eect against
a decision rejecting their protection claims (Article 46).2 e Schengen
2 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013
on common procedures for granting and withdrawing international protection (re-
cast), OJ L 180/60, 29.6.2013.
183
Marco Stefan and Roberto Cortinovis
Border Code states that border control should be carried out without
prejudice to the rights of refugees and third country nationals requesting
international protection (Article 3).3 e EU Return Directive requires
Member States to take into account the non-refoulement principle
throughout all the dierent stages of the return procedure.4 Legislation
laying down the Frontex mandate imposes respect of the non-refoulement
principle in all agency activities, including in the context of border sur-
veillance operations at sea.5
16.3 Fundamental rights monitoring under the new Pact
Allegations of pushbacks at the Greek-Turkish borders over 2020 have
been accompanied by strong reactions by the European Parliament LIBE
Committee (European Parliament, 2020) and civil society organizations
(Wemove Europe and Oxfam International, 2020). Calls for the Commis-
sion to investigate allegations of illegal pushbacks by Greek authorities,
– and eventually to launch an infringement procedure against Greece –
have remained unanswered.
Proposals allegedly directed at addressing the potential breach of fun-
damental rights in the treatment of people seeking asylum at Europe’s
borders have instead been tabled by the Commission on the occasion of
the publication of the New Pact on Migration and Asylum.
e proposal for a Regulation establishing a pre-entry screening aims
at introducing uniform rules concerning the identication, registration
and ngerprinting of migrants and asylum seekers and for conducting
3 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March
2016 on a Union Code on the rules governing the movement of persons across borders
(Schengen Borders Code) (codication), OJ L 77/1 23.3.2016.
4 Directive 2008/115/EC of the European Parliament and of the Council of 16 December
2008 on common standards and procedures in Member States for returning illegally
staying third-country nationals, OJ L 348/98, 24.12.2008.
5 Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13
November 2019 on the European Border and Coast Guard and repealing Regulations
(EU) No 1052/2013 and (EU) 2016/1624, OJ L 295/1, 14.11.2019; Regulation (EU) No
656/2014 of the European Parliament and of e Council of 15 May 2014 establishing
rules for the surveillance of the external sea borders in the context of operational co-
operation coordinated by the European Agency for the Management of Operational
Cooperation at the External Borders of the Member States of the European Union, OJ
L 189/93, 27.6.2014.
184 16. Setting The Right Priorities: Is The New Pact on Migration and Asylum Addressing
the Issue of Pushbacks at EU External Borders?
security and health checks at the EU external borders.6 e proposal also
aims at establishing a tool for channelling individuals to the following
procedure: return – or in case of application for international protection
– normal, accelerated or asylum border procedure.
Article 7 of the proposed regulation envisages the creation of a new
“Independent Mechanism for monitoring fundamental rights” which
aims at ensuring compliance with EU and international law during the
pre-entry screening process. e mechanism should ensure in particular
that national rules on detention (including its grounds and duration) are
respected during such process. It should also ensure that fundamental
rights violations related to access to the asylum procedure and non-com-
pliance with the non-refoulement principle – which indeed might well
occur during the pre-entry screening – are dealt with promptly and eec-
tively.
And yet, the proposal limits the monitoring mechanism to the
pre-entry screening process only. is implies that the mechanism would
not apply to the fundamenta l rights-sensit ive border procedures following
the pre-entry screening.7 Furthermore, and perhaps even more critically,
the mechanism would not cover the whole range of border surveillance
operations and border management activities that are performed by
Member States (and the EU Frontex agency) before the activation of the
screening procedures.
is limited scope casts doubt on the eectiveness of the proposed
monitoring mechanism in properly addressing the fundamental rights
and rule of law challenges linked to pushback practices. As underlined
by the Greek case, such practices are characterized by a high level of
informality: they are designed to escape public scrutiny and performed
in remote areas which are oen not accessible to independent monitors.
To eectively prevent abuses and increase accountability of national
and EU border and coast guards, the mechanism should ensure that all
border surveillance operations and border management activities at the
6 Proposal for a regulation of the European Parliament and of the Council introducing a
screening of third country nationals at the external borders and amending Regulations
(EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817, COM(2020)
612 nal.
7 See Amended proposal for a Regulation of the European Parliament and of the Coun-
cil establishing a common procedure for international protection in the Union and
repealing Directive 2013/32/EU, COM(2020) 611 nal.
185
Marco Stefan and Roberto Cortinovis
EU external (sea and land) border are actually monitored. Ensuring that
independent human rights monitors oversee the work of the authorities
responsible for controlling, surveilling, and patrolling the EU external
borders is crucial in this respect. ese independent monitors should
be given the authority (and necessary human and nancial resources)
to initiate and carry out autonomous and thorough investigations over
alleged pushbacks, collective expulsions and related abuses. Similar mon-
itoring mechanisms are already deployed in the eld of forced returns
(European Union Agency for Fundamental Rights, 2019).
Another key issue of concern is the potential role of the mechanism
in handling complaints and providing access to justice to individuals who
have had their fundamental rights (including access to asylum) violated
at the border. As underlined by regional and international human rights
bodies, a complaint mechanism can only be eective if it is in line with
substantial and procedural standards of independence from state author-
ities. It also needs to be accessible in practice, and secure prompt and
thorough follow-up procedures (Carrera and Stefan, 2020).
e Commission’s proposal for pre-entry screening regulation
assigns a specic role to the EU Agency for Fundamental Rights (FRA)
to provide guidance to Member States in ensuring the independence of
the mechanism, as well as in providing a monitoring methodology and
appropriate training schemes. In the explanatory memorandum to the
proposal, the Commission also added that the mechanism should ensure
that “complaints are dealt with expeditiously and in an appropriate way”.
e proposed legislation, however, does not specify the degree of
independence that the envisaged monitoring mechanism should have
from the authorities subject to the monitoring. e large margin of dis-
cretion le to Member States becomes especially problematic in contexts
such as the Greek one, where institutional representatives (even at the
higher level) systematically reject to acknowledge responsibilities of
national authorities involved in push backs (Greek City Times, 2020).
186 16. Setting The Right Priorities: Is The New Pact on Migration and Asylum Addressing
the Issue of Pushbacks at EU External Borders?
16.4 Ensuring effective enforcement of fundamental
rights at EU external borders: the role of “accountability
actors”
e fundamental rights monitoring mechanism proposed in the Pact
should enable the work of the accountability actors which, at dierent
levels, are responsible for ensuring respect of fundamental rights and for
activating and delivering eective remedies within the EU legal and insti-
tutional system. ese include judicial authorities, EU institutions and
agencies and, crucially, independent NGOs promoting and protecting
human rights of migrants and refugees.
16.4.1 Accountability gaps at the national level: the role of judicial
actors
Within the EU legal framework, EU Member States courts and judges
can be considered to all eects as ‘EU courts’ which act as rule of law
guarantors and implementers of rights under EU law, including in the
area of border management, asylum, and returns (Cornelisse et al., 2020).
Judicial actions over repeated allegations of systematic violence against
migrants and refugees have indeed been launched in Greece (Statewatch,
2019). So far, however, these procedures have not produced any tangible
results, conrming the legal and operational challenges related to the
activation of judicial proceedings over pushback cases (Carrera and
Stefan, 2020). is circumstance should be read in conjunction with the
lack of eective administrative remedies in the country, which has also
been underlined by the UN Committee Against Torture (CAT, 2019).
In cases where evidence of pushbacks is brought before them,
national judicial authorities have an obligation to investigate related fun-
damental rights violations, identify responsible actors and deliver redress
to victims. Recent judicial developments in dierent EU Member States
including for instance Italy (Bathke, 2020) and Slovenia (Bozic, 2020)
highlight how judicial actors can and should assess responsibilities and
deliver both criminal and civil justice remedies to third country nationals
aected by pushbacks.
e establishment of a fundamental monitoring mechanism under
the new Screening Regulation should not be considered a substitute for
187
Marco Stefan and Roberto Cortinovis
the judicial oversight that must be made available at the domestic level.
Instead, if truly independent and endowed with the necessary resources,
the new mechanism could support the work of judicial authorities and
increase their capacity to investigate pushback allegations. is could
facilitate the collection of evidence needed to identify responsible actors,
an issue that has so far made it particularly dicult for aected individ-
uals to initiate judicial proceedings before national courts.
16.4.2 Frontex’s fundamental rights responsibilities
Along the years, Frontex has acquired an increasingly relevant role in sup-
porting national authorities in the management of EU’s external borders.
In Greece, Frontex is currently involved in almost every aspect of border
management, as testied by the EU Action Plan to support Greece in
managing its external borders with Turkey of March 2020 (European
Commission, 2020b). e agency’s involvement puts border and return
operations in Greece under a formal EU “umbrella”. is has important
fundamental rights implications: as an EU agency acting within the scope
of EU law, Frontex has a positive obligation to prevent abuses and secure
respect of EU primary and secondary law acquis (Fink, 2020).
In spite of the fundamental rights responsibilities established in its
recently amended founding regulation,8 Frontex has repeatedly refused
to admit (let alone investigate) occurrence of pushbacks in Greece.
e agency claimed instead that Greek authorities should be consid-
ered as solely responsible for any violation, because alleged episodes are
happening outside the operational area covered by the Agency’s oper-
ations.9 is claim is based on a minimalist interpretation of Frontex
human rights responsibilities, which does not reect the substantial
role the agency plays in Greece. Such position has become increasingly
untenable considering mounting evidence of the direct involvement of
Frontex-coordinated vessels in pushback operations in the Aegean Sea
(Waters et al., 2020). Evidence of Frontex-deployed ocers’ involvement
8 In this regard, see Articles 1, 5, 7, 10.1(e) and(ad), as well as Articles 31.3(e) and (f),
38.4, and Articles 43, 44, 46 and 47, of the Regulation (EU) 2019/1896 of the Europe-
an Parliament and of the Council of 13 November 2019 on the European Border and
Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624.
9 Such claims were made public by Frontex Executive Director, Mr. Fabrice Leg-
geri, during the European Parliament LIBE Committee Meeting that took place
on July 6 2020 (https://multimedia.europarl.europa.eu/en/libe-committee-meet-
ing_20200706-1645-COMMITTEE-LIBE_vd).
188 16. Setting The Right Priorities: Is The New Pact on Migration and Asylum Addressing
the Issue of Pushbacks at EU External Borders?
in pushbacks has been collected also in the Evros region (Karamanidou
and Kasparek, 2020a).
Aer requests for clarications from the European Parliament10 and,
subsequently, the European Commission,11 the Management Board of the
agency held an extraordinary meeting on 10 November 2020 to discuss
the issue of pushbacks. e Meeting Conclusions conrmed the need to
take urgent action to investigate ‘all aspects related to the matter’, and
called upon the agency’s Executive Director to ensure a ‘solid’ mechanism
for internal reporting and prompt follow-up of reported incidents. ey
also envisaged the establishment of a ‘sub-group’ within the Management
board (European Commission, 2020c).
e specic mandate of the sub-group is expected to be dened in a
following meeting of the Management Board. However, it is already clear
that the creation of such a new body will not in itself address the struc-
tural shortcomings characterizing Frontex’s accountability framework.
ere are no indications related to the independence and impartiality of
the sub-group, which remains purely internal and Member State driven.
Furthermore, it appears that rather than focusing on the investigation
of pushback allegations and incident reports, the sub-group will be
tasked with ‘the interpretation of EU regulations’ provisions related to
operational activities at sea’, and will be responsible for addressing ‘the
concerns raised by Member States about “hybrid threats” aecting their
national security at external borders’.
Legislative reforms of the agency over the previous years have not yet
resolved the persisting deciencies of the Frontex complaint mechanism,
nor enhanced the role of the Agency’s Fundamental Rights Ocer, which
still fall short of existing standards of independence, accessibility and
thoroughness of follow-up procedures. A generalized lack of transpar-
10 e European Parliament’s request for clarications have been formulated through a
series of written question included in a letter sent on 9 July 2020 by Fernando López
Aguilar, Chair of the European Parliament LIBE Committee, and addressed to Fron-
tex Executive Director, Mr. Fabrice Leggeri. Mr. Leggeri replied to the letter with a
letter draed on 24 July 2020. See (www.bellingcat.com/app/uploads/2020/10/FOI-1-
20200724_ED-reply-to-LIBE-Chairman.pdf).
11 An ocial request to convene an urgent meeting of Frontex Management Board was
made on 28 October 2020 by the EU Commissioner for Home Aairs Ylva Johans-
son. See, Borrás, M. (2020), “Commission calls for meeting with Frontex over alleged
‘push-back incidents’”, Euractiv, 29 October (https://www.euractiv.com/section/jus-
tice-home-affairs/news/commission-calls-for-meeting-with-frontex-over-alleged-
push-back-incidents/).
189
Marco Stefan and Roberto Cortinovis
ency concerning the specic roles and responsibilities of dierent actors
involved in Frontex operations (compounded by a lack of public access
to key operational documents) add to the structural accountability gaps
mentioned above (Karamanidou and Kasparek, 2020b).
Legislative proposals under discussion at the EU level should be
directed at addressing the shortcomings characterizing Frontex’s fun-
damental rights accountability. Provided it is properly designed and
entrusted with the task of overseeing the entirety of activities falling
under Frontex’s operational and coordination responsibilities, the
envisaged independent monitoring mechanism could help address the
serious accountability challenges identied above.
16.4.3 The role of independent NGOs
While reluctant to investigate responsibilities linked to violent pushbacks,
Greek authorities have increasingly criminalized civil society actors
supporting migrants and refugees, including NGOs involved in Search
and Rescue (SAR) operations at sea (Vosyliūtė and Conte, 2019). While
in itself a violation of regional and EU standards related to freedoms
of expression and association, reprisals and retaliation against NGOs
involved in SAR and other humanitarian activities also prevent these
actors from contributing to independent monitoring of human rights
abuses.
Independent NGOs can and shou ld play a key role in the monitoring of
fundamental rights at the EU borders. In its 2013 Decision on its own-in-
itiative inquiry concerning Frontex, the European Ombudsman recom-
mended making the Frontex complaint mechanism available to all stake-
holders with a legitimate interest in activating the procedure, including
independent NGOs. e active involvement of independent NGOs in the
monitoring process and the possibility for these organizations to submit
public interest complaints would substantially increase the impartiality
and eectiveness of the proposed monitoring mechanism.
16.5 Conclusions
Ongoing discussions concerning the scope and functions of the mon-
itoring mechanism envisaged by the Pact should take seriously the
190 16. Setting The Right Priorities: Is The New Pact on Migration and Asylum Addressing
the Issue of Pushbacks at EU External Borders?
alarming reports of fundamental rights violations coming from the
Greek-Turkish borders (as well as from other areas of EU external
borders).
Pushbacks are simply incompatible with a fundamental rights and
rule of law-based approach to migration and asylum in Europe. ey
also stand at odds with the commitment to uphold the normative foun-
dations of the international refugee protection regime included in the
UN Global Compact on Refugees. An express commitment towards safe
and dignied return of third county nationals has also been undertaken
in the UN Global Compact on Migration, where reference is made to
the importance of respecting the prohibition of collective expulsions – in
particular by guaranteeing an individual assessment and the exhaustion
of legal remedies against return decisions – as well to the need to uphold
the independence of monitoring mechanisms to ensure accountability of
return operations.
e establishment of a new fundamental rights monitoring
mechanism at the EU borders may contribute to address the challenges
mentioned in this contribution. To eectively address existing account-
ability gaps, however, it is crucial to align the proposed instrument with
internationally recognized standards of independence and adequate
follow-up to identied violations.
e mechanism should complement the role of existing accounta-
bility actors and instruments within the EU legal system. Investigations
over violent pushbacks need to be conducted systematically by national
judicial authorities. is is crucial to secure eective judicial protection
and deliver eective remedies, in line with EU law. Preserving the oper-
ational space of independent NGOs is also key to ensuring independent
monitoring and accountability of border and immigration enforcement
authorities.
Finally, the Commission as “Guardian of the Treaty” as well as EU
agencies (notably Frontex) should take much more resolute action to
address fundamental rights violations associated with pushbacks, in line
with the means and procedures that are available under their mandates.
191
Marco Stefan and Roberto Cortinovis
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to support Greece”, Press Release, Brussels, 4 March.
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Management Board on the alleged push backs on 10 November 2020”,
European Commission News, Home Aairs, 11 November.
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closing own-initiative inquiry OI/5/2012/BEH-MHZ concerning the
192 16. Setting The Right Priorities: Is The New Pact on Migration and Asylum Addressing
the Issue of Pushbacks at EU External Borders?
European Agency for the Management of Operational Cooperation
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(Frontex), 12 November.
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lum-seekers at the Greek-Turkish border, MEPs demand”,
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LTA(2020)007216_FULL_EN.pdf).
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rights of refugees, asylum applicants and migrants at the European
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ders).
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to Justice”, EU Immigration and Asylum Law and Policy, 30 April
(http://eumigrationlawblog.eu/frontex-human-rights-responsibili-
ty-and-access-to-justice/).
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com/2020/10/29/greece-does-not-push-back-migrants/).
Hruschka, C. (2020), “Hot returns remain contrary to the ECHR: ND &
NT before the ECHR”, EU Immigration and Asylum Law and Policy
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main-contrary-to-the-echr-nd-nt-before-the-echr/).
Karamanoidou, L., B. Kasparek (2020a), “What is Frontex doing about
Illegal Pushbacks in Evros?”, Respond Migration Blog, 1 August
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the Issue of Pushbacks at EU External Borders?
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195
17. The EU Pact on Migration
and Asylum and the Dangerous
Multiplication of ‘Anomalous Zones’
For Migration Management
Giuseppe Campesi
17.1 Introduction
One of the most qualifying aspects of the new EU Pact on Migration
and Asylum (European Commission, 2020a) published on 23 September
2020 are the proposals that the Commission has put forward to establish
a ‘robust and fair management of external borders’, which nd expression
in the proposals for a Regulation on screening at the external borders
(European Commission, 2020b) and in the amended proposal for an
Asylum Procedure Regulation (European Commission, 2020c)
e Commission’s stated aim is to build a system for the ‘better man-
agement of mixed migration ows’, establishing a ‘seamless link between
all stages of the migration process, from arrival to processing of requests
for international protection until, where applicable, return’ (European
Commission, 2020b: 4). According to the envisaged plan, migrants will
be registered and screened at the border to establish identity and health
and security risks and then be referred to the appropriate procedure, be it
asylum, refusal of entry or return. In particular, screening procedures will
help relevant authorities to decide whether an asylum application should
be assessed without authorising the applicant’s entry into the Member
State’s territory in an ‘asylum border procedure’ or in a normal asylum
procedure. Where an asylum border procedure is used and determines
that the individual is not in need of protection, an accelerated ‘return
border procedure’ should follow.
196 17. The EU Pact on Migration and Asylum and the Dangerous Multiplication of ‘Anomalous Zones’ For
Migration Management
While it is specied (European Commission, 2020c: 4) that none of
the proposals ‘abridge the exercise of individual rights’ and that asylum
and return border procedures will be surrounded by ‘adequate proce-
dural safeguards’ ensuring access to protection for those in need, the
Commission’s proposals risk institutionalising an asylum and return sub-
system where migrants’ rights will be protected by sub-standard legal and
procedural guarantees. Overall, the focus seems to be placed more on the
control of undesired migration and on the prevention of unauthorized
secondary movements within the EU space, than on improving reception
conditions and access to eective protection for incoming refugees.
In this contribution, I will assess the Commission’s proposals on the
new mechanism for the management of external borders in light of the
experience and lessons learned from the implementation of the so-called
‘hotspot approach’ in Greece and Italy (European Union Fundamental
Rights Agency, 2016).
17.2 Old wine in a new bottle?
e Commission’s proposals are not an absolute novelty. ey take up
and systematize ideas that had already emerged in 2018 and which
actually aimed at normalizing the hotspot approach (Campesi, 2020),
transforming it into an ordinary tool for the management of incoming
migration by sea. e proposal for a reinforced asylum border procedure
was already included in the 2016 proposal for a new regulation of asylum
procedures (European Commission, 2016), while the idea of an accel-
erated border return procedure had surfaced in the controversial 2018
non-paper on ‘controlled centres’ (European Commission, 2018a) and
was then included in the proposal for a recast return directive published
the same year (European Commission, 2018b). e Commission now
brings together the rules on the asylum and return border procedures
in a single legislative instrument, with the stated aim of closing the
gap between the two stages of migration management and eliminating
the risks of migrants’ unauthorised movements within the EU space
(European Commission, 2020a).
Unlike the hotspot approach, the new mechanism for the manage-
ment of external borders is however envisaged as no longer circum-
scribed to cases of disproportionate migratory pressure and as limited
to assisting frontline member countries in screening, debrieng and
197
Giuseppe Campesi
ngerprinting incoming migrants by sea, but to eectively implement
pre-entry screening and border procedures even outside ‘crisis’ situa-
tions. In particular, it would concern all third country nationals crossing
external borders outside of the border crossing points, or disembarked
aer a search and rescue operation, and all third country nationals pre-
senting themselves at border crossing points without fullling the entry
conditions who apply there for international protection.
Another important novelty is that the new mechanism for the man-
agement of external borders will also apply to all third country nationals
apprehended within the territory of Member States, where there are indi-
cations that they eluded border checks at the external border on entry.
is means that they will be subjected to pre-border screening and the
subsequent border procedures as if they had never physically entered EU
territory.
One of the most worrying aspects is that the envisaged mechanism
for the management of external borders relies heavily and explicitly on
the protracted connement of migrants and asylum seekers in border
areas. In particular, the proposals put forward by the Commission seem
to encourage member countries to multiply the sites of border enforce-
ment, transforming EU borders into a space in which ‘anomalous zones’
will proliferate.
Gerald Neuman, who rst used this concept in reference to the estab-
lishment of the refugee transit centre in Guantanamo, denes ‘anomalous
zones’ as ‘a geographical area in which certain legal rules, otherwise
regarded as embodying fundamental policies of the larger legal system,
are locally suspended’ (Neuman, 1996: 1201). Over the years, the practice
of strategically manipulating the geographical scope of jurisdiction by
creating areas where migrants’ access to rights and procedural safeguards
were limited has been a hallmark of migration control policies imple-
mented by main destination countries (Mountz, 2011). While the idea
of establishing extraterritorial processing centres has been occasion-
ally advanced (Noll, 2003), such an approach has never been ocially
pursued at the EU level.
e new EU Pact on Migration and Asylum does not represent an
explicit move in that direction, since it does not envisage the establish-
ment of processing centres in third countries; yet it oen alludes to the
extraterritoriality of the areas or facilities where screening and border
198 17. The EU Pact on Migration and Asylum and the Dangerous Multiplication of ‘Anomalous Zones’ For
Migration Management
procedures will be carried out. In what follows I will outline the potential
implications of these references to the extraterritoriality of the new
mechanism for the management of external borders.
17.3 The spatiality of the new mechanism for the
management of external borders
One point on which the Commission places great emphasis is that during
the new screening procedure third-country nationals concerned should
not be authorised to enter the territory of Member States (see Article 4(1)
of the proposal in European Commission, 2020b). In particular, Member
States are explicitly called upon to adopt measures to prevent the persons
concerned from leaving the ‘locations situated at or in proximity to the
external borders’ (see Article 6(1) of the proposal in European Commis-
sion, 2020b) where the relevant procedures are carried out.
Such measures may ‘in individual cases’ include detention, but the
Commission seems to suggest that this should not be the rule, apparently
leaving Member States free to determine the appropriate locations to
carry out pre-entry screening procedures ‘taking into account geography
and existing infrastructures’. It is only suggested that the tasks related to
the screening may be carried out in already established hotspot areas
(see Recital 12 of the proposal in European Commission, 2020b). is
reference to the hotspot approach is however particularly worrying here,
as the experience of the past ve years has clearly shown that hotspot
areas were in fact managed as places of connement, in which migrants’
freedoms were drastically curtailed even in the absence of formally
adopted detention measures (European Union Fundamental Rights
Agency, 2016).
Commissioner Johansson has argued before the LIBE Committee of
the European Parliament that with the new pre-entry screening proce-
dures the Commission is not intending to promote detention1, yet it is
easy to imagine that in order to prevent migrants from escaping the new
mechanism for the management of external borders, Member States will
be tempted to adopt automatic and generalized detention measures, or
at least strongly encouraged to carry out pre-entry screening and border
1 See record of the September 24th, 2020 session available at: https://multimedia.europarl.
europa.eu/en/committee-on-civil-liberties-justice-and-home-aairs_20200924-0900-
COMMITTEE-LIBE-B_vd
199
Giuseppe Campesi
procedures in locations where, if not formally detained, migrants will
actually be conned to islands or other geographically inaccessible areas.
Similarly, asylum seekers subject to border procedures shall not be
authorized to enter Member States’ territory and, according to the Com-
mission’s plans (European Commission, 2020c), must be accommodated
in dedicated ‘facilities’ set up in proximity to the sections of the external
border or border crossing points where Member States expect to receive
most asylum applications falling within the scope of the border proce-
dures. e Commission does not explicitly mention detention, but it is
clear that the emphasis placed on the need to prevent entry will induce
Member States to conne all asylum seekers subjected to border proce-
dures in the same locations where pre-entry screening takes place. is
was for instance the approach followed by Greece in the implementa-
tion of the hotspot approach, with every migrant reaching a Greek
island from Turkey subjected to a geographical restriction and prevented
from moving to the mainland pending the denition of his/her position
according to the asylum border procedure enacted with Law 4375/2016
(Bousiou, 2020).
Finally, migrants subject to a border return procedure may be held in
detention ‘in order to prevent unauthorised entry and carry out return’
for the duration of the procedure, which would last a maximum of 12
weeks. is should be added to the 12 weeks during which the migrant has
been placed under the asylum border procedure, which means that the
new mechanism for the management of external borders gives Member
States the power to curtail migrants’ personal freedoms for a total of six
months. e proposal does not specify where migrants subject to border
return procedures should be held in detention. Yet the Commission is
arguably inspired by the Greek example, where migrants were prevented
from reaching the mainland and repatriations under the EU-Turkey
statement were carried out directly from hotspot areas (Illias et al., 2019).
Less clear is where screening procedures should take place in cases
of third country nationals apprehended within the territory of Member
States. Article 6(2) of the Commission’s proposal on the screening of
third country nationals at the external borders (European Commission,
2020b) simply says that in these cases ‘the screening shall be conducted
at any appropriate location within the territory of a Member State.’ is
means that Member States will have room to implement this provision
200 17. The EU Pact on Migration and Asylum and the Dangerous Multiplication of ‘Anomalous Zones’ For
Migration Management
dierently, possibly also using ordinary pre-removal detention facilities
to that end. Yet the Italian case may be taken as an example of the impli-
cations that this provision can have – in particular when implemented by
frontline member countries.
Following the enactment of Decree No. 17/2017, the Italian police
have been vested with the power of returning irregular migrants inter-
cepted on Italy’s mainland to hotspot areas, thus giving a legal basis to
the practice of forcibly dispersing migrants gathering near main border
crossing points in an attempt to reach Switzerland, France or Austria
(Tazzioli, 2018). In spite of the Commission suggesting that ‘submit-
ting the same third-country national to repeated screenings should be
avoided to the utmost extent possible’ (Recital n. 19 of the proposal in
European Commission, 2020b), the idea of submitting third country
nationals apprehended within the territory of Member States to pre-entry
screening is likely to encourage dispersal practices. e legal ction of
EU borders will be literally haunting migrants within Member States’
mainland areas by giving state authorities more room to curtail their
personal freedoms and limiting access to ordinary asylum and return
procedures.
17.4 The new legal geography of EU borders
e envisaged mechanism for the management of external borders is
premised on the idea that ‘abusive’ asylum requests should be dealt with
quickly by keeping migrants at the border and returning them as soon
as possible. is idea is highly questionable because border procedures
always increase the risk of arbitrariness and discrimination (ECRE, 2019),
but it is also deeply awed as it rests on the assumption that member
countries will be able to quickly and eectively enforce returns. According
to the Commission’s plans, when it is ‘from the outset’ clear that readmis-
sion of rejected asylum seekers would be impossible, Member States ‘may
decide’ not to apply border procedures (European Commission, 2020c).
Yet, given that the main objective of the proposed mechanism for the
management of external borders is to prevent unauthorized entry, it is
likely that the eect produced will be that of immobilizing asylum seekers
in proximity of border areas, increasing as a consequence the pressure on
the reception infrastructures of frontline member countries.
201
Giuseppe Campesi
Similar logic was already at work in the implementation of the
hotspot approach. While the Commission never went so far as to classify
hotspot areas as extraterritorial sites, the result of the hotspot approach
was to encourage frontline countries to conne migrants to border areas,
in many cases on islands or in otherwise remote and poorly accessible
locations, such as transit zones. In the wake of the current pandemic,
Italy has even experimented with the practice of conning incoming
migrants into ‘quarantine ships’ (ANSA, 2020), which may be seen as a
rst experiment with the idea that was advanced in 2016 of establishing
oating oshore processing facilities (Nielsen, 2016).
e EU pact seems to go a step further in the legal manipulation of EU
border geography, describing the ‘locations’ where the new mechanism
for the management of external borders will be implemented as outside
EU territory. e legal implications of this attempt at de-territorial-
izing EU borders are obviously highly questionable, given it is doubtful
that Member States may escape their obligations on human rights and
refugee protection by simply reframing territory as non-territory (Gam-
melto-Hansen, 2014). On the contrary, as it has been suggested (Carrera
and Stefan, 2020), the rule of law follows the state wherever it exercises
jurisdiction over individuals.
e Commission seems to want to mitigate the fundamental rights
challenges raised by the proposed new mechanism for the management
of external borders by envisaging the establishment of a monitoring
mechanism for pre-entry screening procedures (see Article 7 of the
proposal in European Commission, 2020b). However, besides the struc-
tural limits already highlighted by Stefan and Cortinovis in their contri-
bution to this book (Chapter 16), one has to ask whether the envisaged
monitoring mechanism will be able to eectively address the risk of
human rights violations deriving from an approach which is premised on
the idea of conning asylum seekers at the border.
As the experience of the implementation of the hotspot approach
has demonstrated, Member States have managed hotspot areas as
spaces of border enforcement where access to rights was mediated by
distance creation. e relative remoteness of hotspot areas has greatly
limited asylum seekers’ access to information and support, keeping
them in isolation from local communities and resources that are more
readily available in the mainland. While, as suggested, it is doubtful that
202 17. The EU Pact on Migration and Asylum and the Dangerous Multiplication of ‘Anomalous Zones’ For
Migration Management
the insistence on the extraterritoriality of the new envisaged pre-entry
screening and border procedures may legitimize any local suspension of
the rule of law, the risk is that this may further encourage the multipli-
cation of remote places of connement where asylum seekers’ access to
rights will be mediated only by state representatives.
e eective protection of human rights in the framework of the
new mechanism for the management of external borders will depend on
the degree of independence that the envisaged monitoring bodies will
be able to maintain with respect to national governments. It will also
rely on the prerogatives with which they will be vested. Experience with
the implementation of the hotspot approach suggests that multiplying
the anomalous zones of border enforcement where asylum seekers – in
addition to being subjected to less guaranteed border procedures, will
also be kept isolated from civil society and advocacy groups – greatly
increases the risks that their access to rights is limited or their protection
needs not properly considered.
203
Giuseppe Campesi
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205
18. The New EU Pact on Migration
and Asylum and the Rohingya
Refugee Situation
M Sanjeeb Hossain1
18.1 Introduction
On October 15, 2020, a press release issued by the EU Mission (2020)
to ASEAN informed that there was a “a signicant funding gap in the
international response” to the Rohingya refugee situation this year and
that the US, UK, EU and the United Nations High Commissioner for
Refugees (UNHCR) was set to co-host an online donor conference to
bridge this gap. e conference, marked by Myanmar’s absence, was held
a week later on October 22, where donors pledged $600 million to aid the
Rohingyas (Besheer, 2020). It was at this conference Md Shahriar Alam
(2020) the Bangladeshi State Minister for Foreign Aairs communicated
that Bangladesh was no longer in a position to bear the burden placed
by the refugee situation and that the Rohingyas would have to return to
Myanmar at the earliest opportunity. On the evening of the donor con-
ference, the Chinese Foreign Minister during a telephonic conversation
with his counterpart in Bangladesh informed that a foreign minister-level
tripartite meeting between Bangladesh, China and Myanmar would be
held soon and that Myanmar had assured China it would take back the
Rohingyas (New Age, 2020).
e new EU Pact on Migration and Asylum (EU Pact) “conditioned
by the United Nations Global Compact on Refugees (UN GCR) and the
EU Treaties” (Carrera, 2020; see Chapter 1) was proposed, in the words
1 I thank Maja Janmyr, Lewis Turner and Sergio Carrera for helpful comments
while writing this Chapter.
206 18. The New EU Pact on Migration and Asylum and the Rohingya Refugee Situation
of the European Commission (2020a), to build “a system that manages
and normalises migration for the long term” and is “fully grounded in
European values and international law”. is Chapter strives to shed some
light on the EU’s potential role in the coming days in ending the Rohingya
refugee situation with particular reference to EU Pact. It is written in light
of two realities. First of all, the European Union (EU) has played a pivotal
role in mobilizing funds to alleviate the plight of Rohingya refugees.
And secondly, despite the humanitarian assistance, developmental and
conict prevention support extended by the EU (European Commis-
sion, 2020b), the Bangladesh Government instead of relying solely on
the diplomatic assistance of the EU or utilizing UN-sponsored mecha-
nisms, actively solicited the involvement and help of China to resolve
the Rohingya refugee situation. It is worth recalling that China has in the
past, refused to condemn Myanmar (Amnesty International, 2017) for its
atrocities against the Rohingyas, and did not take part in the Rohingya
Conference alongside Russia despite being invited (Al Jazeera, 2020a).
Bearing these realities in mind, this contribution briey traces the
historical evolution of the Rohingya refugee situation and Bangladesh’s
engagement it. It then goes on to describe how the EU can take inspi-
ration from its new Pact in the collective global pursuit of ending the
Rohingya refugee situation. In many ways, this contribution consciously
asks more questions than it answers because its purpose is to oer a new
starting point for further debates on the EU’s role towards the Rohingya
refugee situation.
18.2 In retrospect – the plight of the Rohingyas
In “one of the rst major Western surveys of the languages of Burma”
Francis Buchanan in 1799 noted the Rooinga as Mohammedan’s who had
long settled in Arakan. Despite this and a range of sources documenting
the presence of the Rohingyas dating back centuries,2 they remain unrec-
ognized as one of the 135 national ‘races’ living in Myanmar (Al Jazeera,
2 See, Mihir Shekhar Bhonsale, ‘Evolution of the Arakan ‘Problem’ in Bur-
ma’ [2015] 76 Proceedings of the Indian History Congress 631-636; Moshe
Yegar, e Muslims of Burma: a study of a minority group (Schrienreihe des
Südasian-Instituts der Universität Heidelberg 1972) and, Mohammad Sha-
habuddin, ‘Post-colonial Boundaries, International Law, and the Making of
the Rohingya Crisis’ [2019] 9(2) Asian Journal of International Law, pp. 334-
358.
207
M Sanjeeb Hossain
2018). Excluded from the nation-building process since independence,
the Rohingyas were rendered ‘stateless’ (Lewa, 2009) through the passage
of the Citizenship Law of 1982. Over the years, an unholy combination
of general racism and hostile Armed Forces has played a central role in
stripping the rights of the Rohingyas in Myanmar. An array of accusa-
tions ranging from being “illegal Bengali immigrants” (Akins 2018) who
settled in Myanmar during the period of British colonization to being
“militants” (Ratclie 2017) have been put forth to justify the continued
persecution of the Rohingyas for decades. is is why, on the morning
of December 05, 2017, when Pramila Patten, the United Nations Special
Representative on Sexual Violence in Conict described the Rohingya’s
of Myanmar as the “most persecuted minority in the world” (OHCHR,
2017), none of the remaining attendees of the Special Session of the
Human Rights Council perceived her categorization as hyperbole.
To survive the onslaught of the Myanmar Army, the Rohingyas ed
to neighboring Bangladesh in ‘waves’. e earliest waves were recorded
in 1948 when Myanmar became an independent State, followed by two
more in the late 1970s and the early 1990s. e most recent wave began in
August 2017 aer a ruthless crackdown by Myanmar’s Army. As of today,
roughly one million Rohingyas are residing in 34 refugee camps located
at the southern tip of Bangladesh at a place known as Cox’s Bazar.
Bangladesh has a long history of collaborating with the EU, UNHCR,
International Organization for Migration (IOM), as well as other charities
and NGOs, in assisting the Rohingyas inside these camps. Interestingly,
a substantial amount of the eorts of the Bangladesh Government,
UNHCR and other partners target the ‘visible’ Rohingyas, i.e. the ones
who are ocially registered ‘Forcibly Displaced Myanmar Nationals’
or given ‘refugee’ status. ey form only a part of the overall refugee
situation, and the attention they receive casts a dark shadow on the plight
of Rohingyas who over the years have ed across the border and inte-
grated themselves within the local communities because the Bangladesh
Government, concerned that assisting unregistered refugees would create
a ‘pull factor’ (Danish Immigration Service, 2011), chose not to recognize
them. Living outside formal camps, several hundred thousand ‘invisible’
or unregistered Rohingyas live in dire conditions devoid of formal access
to food, shelter or work permits.3
3 Sabyasachi Basu Ray Chaudhury and Ranbir Samaddar, ‘Introduction’ in
Sabyasachi Basu Ray Chaudhury and Ranbir Samaddar (eds) e Rohingya
in South Asia: People Without a State (Routledge 2018), pp. 4.
208 18. The New EU Pact on Migration and Asylum and the Rohingya Refugee Situation
Although Bangladesh is not a State Party to the 1951 Convention
relating to the Status of Refugees and the 1967 Protocol and does not
have any national laws addressing asylum and refugee matters, it is not
entirely devoid of a framework geared towards protecting refugees.4
Much has changed since Pia Prytz Phiri (2008) described the adminis-
trative decisions taken by Bangladeshi authorities to protect and support
the Rohingyas as “ad hoc, arbitrary and discretionary”. ere is scope to
argue that many of the Rohingya refugees do not “feel like deer caught
between two tigers” as was once portrayed by Eileen Pittaway.5
In recent times, Bangladesh has received praise for keeping her
borders open to the eeing Rohingyas and actively striving to meet
their humanitarian needs. In 2017, the High Court Division of the
Supreme Court of Bangladesh held that the 1951 Refugee Convention
had “become a part of customary international law which is binding
upon all the countries of the world, irrespective of whether a particular
country has formally signed, acceded to or ratied the Convention or
not.” In the absence of any constitutional provision clearly depicting the
status of ‘customary international law’ in the legal order of Bangladesh, it
remains a generally accepted principle that customary international law
is binding as long as it does not contradict domestic law.6 Earlier this year,
the Bangladesh Government’s decision to grant Rohingya children the
access to education was widely lauded (Ahmed, 2020).
Unfortunately, this does not negate the reality that there remain many
gaps in the refugee protection regime. Instead of focusing on protecting
and enhancing their rights, the discussion and discourse around the
Rohingya refugee situation are leaning towards overcoming the challenge
of how to return them to Myanmar. A Memorandum of Understanding
(MoU) was signed between Bangladesh and Myanmar in November 2017
for the purposes of repatriating the Rohingyas (VOA News, 2017) who
4 e Foreigners Act 1946 remains one of the key pieces of legislation shaping
the status of refugees in Bangladesh.
5 Eileen Pittaway, ‘e Rohingya Refugees in Bangladesh: A Failure of the In-
ternational protection Regime’ in Howard Adelman (ed) Protracted Displace-
ment in Asia: No Place to Call Home (Routledge 2008), pp. 83.
6 Bianca Karim and Tirza eunissen, ‘Bangladesh’ in Dinah Shelton (ed) In-
ternational Law and Domestic Legal Systems: Incorporation, Transformation,
and Persuasion (Oxford University Press 2012), pp. 8.
209
M Sanjeeb Hossain
ed from the atrocities of the Myanmar Army.7 e European Parlia-
ment (2017), at the time, insisted on the “direct implementation of the
MoU and for the right of the Rohingya to voluntary, safe and dignied
return to their places of origin […]” and expressed a note alarm that the
Rohingyas may “not be repatriated back to their villages, but to refugee/
prison camps in Myanmar”.
Another MoU between Myanmar and UN Agencies was signed in
June 2018 to allow for the UNDP and UNHCR to assist the Myanmar
Government to implement the MoU between Bangladesh and Myanmar.8
In this MoU, the Myanmar Government agreed that it was “responsible
for the safety, reception and reintegration of the returnees” and would
“work for a comprehensive and durable solution to the displacement of
persons in and from Rakhine State” in line with the recommendations of
the Advisory Commission on Rakhine State (2017).
Following the recent remarks of Md Shahriar Alam and the assur-
ances given by China, it appears that Sheikh Hasina, the Prime Minister
of Bangladesh who once said “we have the ability to feed 160 million
people of Bangladesh and we have enough food security to feed the
700,000 refugees” (Tribune Desk, 2017), is running out of patience. One
wonders whether, on the not so distant horizon, the Rohingyas will be
repatriated to Myanmar at the expense of non-refoulement, a principle
Bangladesh has upheld so far.
In this context, the following section discusses how the EU drawing
from its Pact on Migration and Asylum can positively shape the outcome
of the Rohingya refugee situation.
7 e text of the MoU (Arrangement of Return of Displaced Persons from
Rakhine State) could not be accessed at the time of draing this contribution.
However, it was possible to access the text of a subsequent arrangement titled
‘Physical Arrangement for Repatriation of Displaced Myanmar Residents
from Bangladesh Under the Arrangement on Return of Displaced Persons
from Rakhine State’. In this document, the Myanmar authorities assure that
returnees will not be “settled in temporary places for a long period of time”
and the transit camps in Myanmar will not become camps for ‘Internally Dis-
placed Persons’.
8 In May 2020, the MoU was extended to June 2021.
210 18. The New EU Pact on Migration and Asylum and the Rohingya Refugee Situation
18.3. The EU Pact’s potential impact on the Rohingya
refugee situation
In the ocial Q&A relating to the EU Pact, there are two questions on
refugees, namely, 1) “What funding is available to support refugees and
address migration issues outside the EU?”; and 2) “What is the EU doing
to help other third countries hosting large numbers of refugees?” e
answers to these questions are straightforward. First of all, the Neigh-
bourhood, Development and International Cooperation Instrument
(NDICI) proposed at €79,462 billion envisions funding in support of
refugees beyond the EU. Furthermore, the proposed exible nature of
EU nancial instruments will allow responding to “unforeseen circum-
stances” (European Commission, 2020c) or crises relating to migration
and refugees. Secondly, the EU already has an existing track record
extending a helping hand to refugees in need through a range of dedicated
instruments, such as the EU’s Facility for Refugees in Turkey, or other ini-
tiatives like the Global Refugee Forum.
Although touted as “a new paradigm in the EU’s engagement with
external partners” (European Commission, 2020c), the text of the EU
Pact on Migration and Asylum explicitly mentions refugees and their
host communities in Turkey, Lebanon, Jordan and Iraq, but surprisingly
say nothing about the Rohingyas. Bangladesh, alongside Afghanistan,
Iran, Iraq, and Pakistan, is listed as a ‘partner country’ in a footnote.
One cannot ignore the possibility that the EU is concerned more about
refugees on and near its borders than refugees from ‘faraway’ lands.
Nevertheless, keeping in mind the answers to the questions relating to
refugees, there is scope to believe that the EU Pact has the potential to
impact the Rohingya refugee situation positively.
e EU Pact intends to deepen cooperation with partner countries
by devising “tailor-made” (European Commission, 2020c) approaches
that take into account their unique situations. ese approaches will
rely on a range of aspects which include, among others, the protection
of refugees and supporting refugee-host countries, and also addressing
the root causes of irregular migration. So far the EU’s response to the
Rohingya refugee situation has been an amalgamation of extending
nancial aid and enforcing sanctions. Since 2017, the EU (2020d) has
furnished humanitarian and development aid in the form of “food assis-
tance, shelter, health care, water and sanitation support, nutrition assis-
211
M Sanjeeb Hossain
tance, education, and protection services” valued over €226 million as
a response to the plight of the Rohingyas. In April 2020, the European
Council renewed the existing sanctions regime against Myanmar for
another year.
is does not imply, however, that the EU does not share a ‘rela-
tionship’ with Myanmar. Till date, aer China and ailand, the EU is
Myanmar’s “third biggest trade partner” (European Commission, 2020e).
Furthermore, although the EU is also one of the key partners in Myanmar’s
transition to democracy, the mVoter 2020 application (Strangio, 2020)
launched before the general elections held on November 08, 2020, is one
of those things that stand out like a sore thumb. Funded by the EU’s STEP
Democracy Project, the app was launched to assist Myanmar’s demo-
cratic transition. Despite many positives, this app has also ended up “vali-
dating Myanmar’s systemic discrimination and exclusion” (Stolton, 2020)
of the Rohingyas by listing at least two Rohingya candidates as ‘Bengalis’
(Reuters, 2020), in other words implying that they are immigrants from
Bangladesh. e EU’s strong calls to the Myanmar authorities to remove
such controversial data (Reuters, 2020) which are very likely to exacer-
bate ethnic tensions (Strangio, 2020) were ignored. e end result has
been the exclusion of about 2.6 million ethnic-minority voters, including
the Rohingyas from the general elections. As of now, the several hundred
thousand Rohingya’s remaining within Myanmar are conned in camps
and villages with limited access to health care and the right to move (Al
Jazeera, 2020b).
In realpolitik, it is not uncommon for compromises to be made
during the long and arduous journey towards democratic rule. However,
in light of the above, one wonders to what extent the EU (2019) is eec-
tively following through on its commitment to supporting “the voluntary,
safe, sustainable and dignied return of Rohingya people to their places
of origin, with the full involvement of UNHCR, in compliance with inter-
national law.” If the EU’s tailor-made approach of the future based on the
EU Pact is to be eective, it needs to ensure that its funded projects do not
end up “validating Myanmar’s systemic discrimination and exclusion”
(Stolton, 2020). How the EU shall achieve this while simultaneously con-
tinuing to lend much-needed support to Myanmar in its transition to
democracy will be tricky. is should not be a reason for the EU to shy
away from rethinking its approach to solving a problem as complex as
the Rohingya refugee situation, which is aecting millions of lives decade
aer decade.
212 18. The New EU Pact on Migration and Asylum and the Rohingya Refugee Situation
18.4 Concluding thoughts
In his speech at the recently concluded online donor conference, Md
Shahriar Alam (2020) critiqued the international community’s “business
as usual approach” and eorts to appease Myanmar “through increased
bilateral trade, investment and development assistance”. One cannot help
but speculate whether Alam was referring to, among other things, the
EU’s existing relationship with Myanmar. Perhaps the most telling remark
by Alam came at the very end of his speech when he said: “e role of
the United Nations in saving ‘humanity from hell’ is also not visible in its
policy actions towards Myanmar.” ere is no way to interpret this as an
o the cu remark. Instead, it may well be a clear reection of Bangla-
desh’s eroding condence in the UN and the specically UNHCR’s ability
to resolve the Rohingya refugee situation.
Even a cursory reading of the new EU Pact on Migration and Asylum
shows how signicantly it draws from the UN Global Compact on
Refugees. It has been said that the UN GCR shall achieve its core objec-
tives through the “mobilization of political will”. One of the four core
objectives of the UN GCR is to “support conditions in countries of origin
for return in safety and dignity”. Bangladesh’s crisis of faith may stem from
the belief that its partners like the EU and UNHCR have been focusing
primarily on alleviating the plight of the Rohingyas inside Bangladesh on
an ad hoc basis, but has been doing so at the cost of “pushing for any real
change within Myanmar” (Tasneem, 2020).
e EU would benet from paying attention to critics who have
voiced their concerns about how it has engaged with the Rohingya
refugee situation so far. Echoing Mohammad Shahabuddin (2020),
lending support to “a model of low-intensity democracy” that ulti-
mately exacerbates ethnic tensions is not the way forward. A genuinely
tailor-made policy towards the Rohingya refugee situation, the kind of
policy that is envisioned in the new EU Pact and reects the ethos of the
UN GCR, must strive for two complementary goals. First of all, the EU
should work with Bangladesh so that it gives voice to and enhances the
rights of the Rohingyas and respect the principle of non-refoulement,
something the EU can do eectively if it acknowledges that Bangladesh
is very likely suering from a ‘crisis of faith’. And secondly, the EU must
prioritize creating conditions to ensure the voluntary, safe, sustainable
and dignied return of the Rohingyas to Myanmar by addressing the
213
M Sanjeeb Hossain
‘root causes’ of their plight. is will catalyse the process of Bangladesh
regaining its faith in the international community that has eroded with
time.
214 18. The New EU Pact on Migration and Asylum and the Rohingya Refugee Situation
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219
19. The New Pact’s Focus on
Migrant Returns Threatens Africa-EU
Partnership
Tsion Tadesse Abebe and Aimée-Noël Mbiyozo
19.1 Introduction
e European Commission (EC)’s New Migration and Asylum Pact (New
Pact) is aimed at rebuilding trust and developing workable compromises
within the European Union’s (EU) 27 states.1 is could well be achieved
at the expense of partnerships with Africa. e New Pact’s emphasis on
migrant returns and strengthening external borders is contrary to Africa’s
position and could aect negotiations around the Post-Cotonou Partner-
ship Agreement (ACP) and the Africa–EU Strategy.
Decreasing irregular migrant arrivals and enhancing returns are
among the seven thematic areas of the New Pact that aim to increase
returns by implementing a common EU system that combines stronger
structures with more eective cooperation with third countries. Measures
include strengthening border control, signing returns agreements with
third countries and allowing EU Member States to choose between reset-
tling refugees and sponsoring returns.
19.2 Europe’s growing focus on returns
Overall irregular border crossings to EU Member States have dramati-
cally decreased since Europe detected 1.82 million illegal external border
1 Part of this Chapter was published by the Institute for Security Studies (Abe-
be and Mbiyozo, 2020).
220 19. The New Pact’s Focus on Migrant Returns Threatens Africa-EU Partnership
crossings in 2015. According to UNHCR (2020a) data, 95,031refugees
and migrants crossed the Mediterranean into the EU during 2020.
As irregular arrivals have decreased, EU institutions and Member
States have increased their focus on returning migrants. Within the EU,
where migration is deeply divisive among Member States, enforcing
returns is one of the few unifying topics. According to the New Pact:
“EU migration rules can be credible only if those who do not have
the right to stay in the EU are eectively returned. Currently, only about
a third of people ordered to return from Member States actually leave.
is erodes citizens’ trust in the whole system of asylum and migration
management and acts as an incentive for irregular migration.” It goes on
to state that an average of 370,000 asylum applicants are rejected each
year and a third are returned home.
19.3 Pressure on Africa
According to Eurostat (2020), Africans make up a small minority of
asylum claims in the EU per year. eir claims are far exceeded by those
of other nationals including Syrians, Afghans, Iraqis, Pakistanis, Turks,
Iranians and more recently Venezuelans and Colombians. In 2019, only
9,655 returnees – six percent of total returns – were sub-Saharan African
nationals.
Despite these low numbers, the EU directs a lot of returns pressure
towards Africa. In recent years, the EU and its Member States have tried
to compel African states to accept and facilitate returns and readmissions
through various legal and political instruments. Under the European
Commission’s (2016) New PartnershipFramework,13 of the 16 priority
countries are in Africa, namely Ethiopia, Eritrea, Mali, Niger, Nigeria,
Senegal, Somalia, Sudan, Ghana, Côte d’Ivoire, Algeria, Morocco and
Tunisia.
19.4 Africa’s divergent priorities
African negotiators have consistently resisted forcing states to take back
their returned nationals and failed asylum seekers. African migration is
predominantly intra-continental.According to the International Organ-
ization for Migration (IOM, 2020) Africa Migration Report: Challenging
221
Tsion Tadesse Abebe and Aimée-Noël Mbiyozo
the Narrative,21 million of the world’s 39.4 million African-born migrants
(53.2%) live in Africa.UNHCR (2019) says Africaalsohosts25.7 million
of the world’s 79.5 million displaced people. e continent is working
towards free movement, free trade and regional integration. Strength-
ening securitised measures to prevent or deter migration are contrary to
these priorities.
Contrary to the narrative that portrays African migration owing
principally to the EU, far more Africans are using the Eastern Routes
to get to the Middle East and Gulf via Yemen. In 2019 alone, 138,000
Africans used the treacherous Eastern Route; between 2006 and 2016,
over800,000African migrants and refugees crossed to Yemen.
Accepting returns is politically dicult for many African countries.
Cooperating with EU members on forced returns can hurt the legitimacy
of governments. is resistance by African governments is driven by the
urge to avoid being branded as facilitators of deportation of their own
citizens.
According to VOA (Hoije, 2016), in December 2016, Mali was oered
USD 160millionto cooperate on migrant returns, but it withdrew from
the deal due to a public outcry. According to the New Humanitarian
(Hunt, 2020), the Gambia faced public outcry aer it signed a similar
informal arrangement in May 2018. Returns from Germany began
accelerating and media images of deportees in handcus and shackles
arriving in the Gambia from Germany at a time of massive youth unem-
ploymentresultedin mass protest. e government eventually stopped
cooperating on returns to oset potential damage to their constitutional
role as protectors of their citizens – and subsequently hurt public trust
in them.
e other factor is remittances which serve as the most dependable
source of income to many African societies. According to IOM (2020)
Africa Report, Africa received USD 81 billion in remittances in 2018.
In contrast, the United Nations Conference on Trade and Development
(UNCTAD, 2019) reported a total USD 46 billion in foreign direct invest-
ment to Africa. e World Bank (Ratha, 2019) has established that remit-
tances are the most important source of external nancing in low- and
middle-income countries; in most cases they are larger than development
aid and foreign investment combined. Cooperation on returns could
attract development funding, but citizens fear losing remittances.
222 19. The New Pact’s Focus on Migrant Returns Threatens Africa-EU Partnership
e New Pact proposes a “one stop asylum” system with a central-
ised and accelerated system for asylum decisions. It applies mandatory
pre-entry identity, health and security screening. ose likely to receive
asylum would be designated to an EU country responsible for their appli-
cation. e rest would enter a ‘fast-track’ application process in border
facilities, based on their country of origin. If rejected, they would be
returned to their country of origin. Both processes will take 12 weeks.
Overall, this approach erodes refugee protection regimes, raising many
procedural and human rights concerns such as eliminating the chance to
appeal if rejected.
Vulnerable Africans genuinely seeking protection must surpass
extraordinary barriers to reach Europe. e measures taken to stem
irregular migrants increase the barriers for legitimate travellers and have
made these pathways even more dicult and dangerous.
19.5 Securitisation of human mobility
Returns form part of the EU’s migration approach towards Africa that
is focused on externalisation policies and an overall securitisation of
human mobility. ese measures have reduced irregular entries to the
EU at severe costs to Africa and are not aligned with Africa’s migration
priorities.
A 2019 Institute for Security Studiesreport(Abebe, 2019) examining
the impacts of European policies in Agadez, Niger, revealed many adverse
impacts. Agadez is a key transit point between West Africa and the Sahel
and the Maghreb region. It is estimated that a third of all migrants trav-
elling through Agadez end up on a boat to Europe. e EU’s interven-
tions to dismantle Agadez’s ‘migration industry’ without putting in place
alternative means of income generation for its residents have signicantly
diminished the local economy. Traders who provided goods and services
such as food, water or phones have lost their livelihoods. Development
aid promising to replace these livelihoods has not arrived fast enough
and many people have been disenfranchised.
While these measures have curtailed the local smuggling industry,
they have unwittingly contributed to a rise in others. Large criminal
syndicates have been able to adapt and continue to provide smuggling
223
Tsion Tadesse Abebe and Aimée-Noël Mbiyozo
services, while smaller Nigerien smuggling operators such as drivers or
hostel operators have lost their business. Sudanese smugglers have capi-
talised on these shis and oered new – and riskier – pathways through
less-travelled parts of Chad and Sudan, including active conict zones.
is journey costs ve times more than the one via Agadez.
e government’s inability to protect local economic actors has
eroded public condence in the local government. Molenaar (2017)
quotes oneocialwho said, “the locals ask us why we work for the EU
rather than them, the people who elected them”.
19.6 Development funds and visas used as leverage
e New Pact states all available tools should be used to enforce more
returns. ese include oering an additional 10% in development assis-
tance to countries that cooperate and applying restrictive visa measures
to those who don’t. e Pact’s visa proposal deepens the 2019 EU revised
visa system by shiing to a multilaterally binding instrument.
Previous EU migration platforms included plans to expand visa
pathways. Expanding immigration and humanitarian pathways has
shown to successfully slow irregular migration when combined with
strong enforcement measures, but the EU has moved away from these
proposals.
Koch et al. (2018) argue that, in recent years, the EU has re-oriented
migration policies to bundle restrictions within development funding
under the auspices of addressing the ‘root causes’ of migration. e
New Pact directs even more funding towards security and surveillance
measures – including allocations to repressive governments – than
projects with true development potential.
Mbiyozo (2020) argues that this approachenables the horric cir-
cumstances for migrants, refugees and asylum seekers in Libya. Migrants
– mainly from East and West Africa – who pass through or are returned
from failed boat crossings to Europe face ‘unacceptable and extreme’
forms of violence such as indenite detention, extortion, torture, sexual
violence, conscription and forced labour.
Since 2015, the EU Trust Fund for Africa has given Libya €435
million, including €57.2 million for border management. e EU has
224 19. The New Pact’s Focus on Migrant Returns Threatens Africa-EU Partnership
provided direct funding, training and equipment to the Libyan Coast
Guard, whose members have been implicated in smuggling and sus-
taining informal detention centres that operate as lucrative tracking
and smuggling hubs. EU development assistance is supposed to be spent
on helping those in need and visa measures should remain bilateral.
19.7 Returns are complex
Removing unauthorised people from one country requires another
country to accept them. Countries must cooperate and coordinate on
nationality identication and the issuing of travel documents. Deter-
mining nationality is a state’s sovereign right. It can be complicated to
prove, particularly if migrants dispute their origin or are unwilling to
cooperate.
According to Frontex’s (2020) Risk Analysis, 14,346 people of
‘unspecied sub-Saharan nationals’ arrived in Europe in 2019, up from
69 in 2018 and 0 in 2017. ese statistics suggest that authorities created
a new classication for undocumented migrants whom they suspected
were African but could not conrm it because those individuals refused
to disclose or dispute their country of origin to avoid being returned.
ird-country returns, meaning expelling someone to a country
where he or she is not a national, are particularly contentious. Transit
countries have strongly resisted accepting returns of non-nationals.
Some have been expelling migrants and asylum seekers themselves.
Human Rights Watch (2020) reports that, during 2020, Algeria has force-
fullyexpelledthousands of migrants and asylum seekers to Niger regard-
less of nationality. Expelling people to transit countries does not sustain-
ably resolve any issues and sets a problematic precedent.
e Institute for Security Studies (Mbiyozo, 2019) found that,
even when all parties agree to returns, reintegration schemes for failed
asylum seekers or irregular migrants from the EU to Africa have been
largelyineective.ey have instead resulted in hardship, violence and
even re-migration. Many cases have been documented where returnees
have not received the assistance they were promised. Some people have
even been returned to the wrong countries.
225
Tsion Tadesse Abebe and Aimée-Noël Mbiyozo
19.8 Negotiations at a standstill
e African Union (AU) and its Member States maintain that returns
must be voluntary despite mounting pressure across bilateral and multi-
lateral platforms. According to Slagter (2019), only Cape Verde has signed
a formal readmission agreement with the EU, while Ethiopia, Guinea, the
Gambia andCôte d’Ivoirehave agreed to informalarrangements.
Returns are one of the key factors behind the existing EU-ACP
negotiation deadlock. e current Cotonou Agreement includes a non-
binding clause (under Article 13) for countries to readmit nationals
whose asylum applications are rejected. e Council of the European
Union (2018) wants to include a legally binding clause forcing states to
accept non-voluntary migrantreturns.
e existing EU-ACP Cotonou Agreement expired in February 2020
and hasn’t been replaced. African member states – comprising 48 of the
79 ACP states – strongly oppose forced returns and insist that any returns
must be voluntary. e disagreement on returns has contributed to this
deadlock. e New Pact’s reiterated focus on returns could further com-
promise negotiations.
Enhancing returns and readmission is also a critical area of focus of
the migration and mobility priority area of the EC’s Joint Communica-
tion and Council Conclusions related to the Africa-EU Strategy. Nego-
tiations on this deal were postponed until 2021 due to Covid-19. Abebe
and Maalim (2020) concluded that, despite insisting that the Africa-EU
strategy is a “partnership of equals”, as it stands, the Communication and
Council Conclusions don’t suciently reect Africa’s priorities, including
reiterating securitised perspectives towards Africanmigration.
African negotiators haveconsistentlyresisted forcing states to take
back their returned nationals and failed asylum seekers, including
throughout the duration of the UN Global Compact for Migration.
Notably, this compact isn’t mentioned in the New Pact – nor are the
Global Compact’s principles on safe and dignied returns that respect
the rights of returnees in line with international and regional laws and
norms.
226 19. The New Pact’s Focus on Migrant Returns Threatens Africa-EU Partnership
19.9 Conclusions
e New Pact reects the EU’s priorities, underscoring that returns are
one of the key unifying factors among its Member States. It does so at the
expense of African partnerships or true solutions to migration manage-
ment from Africa. e renewed focus on returns will aect important
non-migration agreements, most notably the ACP and the Africa-EU
Strategy.
e EU’s reorientation of migration policies prioritising the stemming
of migration ows has had numerous adverse eects – intended and
unintended – on Africa. ese restrictive policies are incompatible with
the EU’s own free movement regime and are inhibiting Africa’s eorts to
implement its own version.
e New Pact wrongly assumes that the threat of fast deportation
will deter migrants and refugees from attempting any movement. ey
undertake extraordinary risks because they have to. ere is also no
evidence that a country’s willingness to accept forced returns will result
in a high number of returns or deter future arrivals.
e AU and its Member States should remain focused on their key
priority – Africa’s regional integration agenda. Implementing the African
Continental Free Trade Area and expanding free movement are critical
to achieving Africa’s objectives – sustainable and inclusive growth, good
governance, and peace and security.
227
Tsion Tadesse Abebe and Aimée-Noël Mbiyozo
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20. Trends In Brazil’s Practices of
Refugee Protection: Promising
Inspirations For the EU?
Liliana Lyra Jubilut and João Carlos Jarochinski Silva
20.1 Introduction
Last October, Brazil was elected to chair the United Nations High Com-
missioner for Refugees (UNHCR) Executive Committee (ExCom)
(Brasil- Ministério das Relações Internacionais, 2020) in what can be seen
as a culmination of positive perceptions of the country’s refugee protec-
tion practices (ACNUR, 2003; Murillo Gonzales, 2010; Grandi, 2019).
ese practices encompass both traditional topics of refugee protection
and durable solutions – starting with the national law on refugees in the
late 1990s, followed by the proposal and implementation of resettlement
in solidarity in the early 2000s, the adoption of humanitarian visas from
the 2010s and, more recently, the treatment of Venezuelans arriving in
the country.
At a time when the European Union (EU) is discussing refugee
protection and governance (even though there are questions about the
comprehensiveness and honesty of the proposals (Crisp, 2020), as well
as of combining migration and asylum (Gilbert, 2020; see Chapter 3)),
assessing existing practices that (i) are said to be based on solidarity, (ii)
are perceived as responses to ‘crisis’, and, (iii) might inspire or be replicated
(through the practices in themselves or from trends among them) can be
relevant. is is true especially in terms of ensuring integral protection
(i.e. human rights and migratory status rights) (Jubilut and Apolinário,
2008a), as well as the balance between states’ interests and refugees’
rights. is text aims to aid in this endeavour, by briey describing each
of these practices and diagnosing trends in Brazil’s protection of refugees.
231
Liliana Lyra Jubilut and João Carlos Jarochinski Silva
20.2 Brazil’s praised practices of refugee protection
e rst praised Brazilian practice towards refugees was its national law
on the issue – Law 9474 of 1997 (Brasil, 1997). It was adopted aer the
redemocratization of the country, in a period of increased concern for
human rights (Jubilut, 2006) and was seen as a model for the region
(ibid.). is perception derived from the fact that it:
1. adopted, alongside the universal denition of refugee, the
regional concept stemming from the Cartagena Declaration
(Rodrigues, 2020) thus allowing persons eeing gross and gener-
alized violence of human rights to be regarded as refugees,
2. created a federal organ vested with the responsibility for refugee
status determination (RSD) and policies towards refugees,
3. established an administrative procedure for RSD in the country
and
4. linked refugee protection and human rights (Jubilut and Zamur,
2017).
Secondly, Brazil became an emerging resettlement country in the
early 2000s and regionally proposed the ‘Resettlement in solidarity'
initiative (Jubilut and Carneiro, 2011), which was adopted in the 2004
Mexico Declaration and Plan of Action. It encouraged countries in Latin
America to create resettlement programs and to implement them based
on solidarity, i.e. not focusing on the potential of refugees for integra-
tion but rather on their protection needs (ibid.). e initiative resonated
in the region especially due to the Colombian crisis. Brazil has resettled
mainly Colombians and Palestinians through the initiative (Jubilut and
Zamur, 2018). e numbers of resettled refugees in Brazil are small,
and reception of new cases was almost paralyzed in recent years – even
though resettlement is a key component in the “solutions” aspect of the
2018 Global Compact on Refugees (GCR) (paras. 90-93), but the practice
has been lauded as it has opened new avenues of protection (ibid.).
In 2012, once again beginning with a regional focus, Brazil adopted
humanitarian visas to assist in the protection of Haitians in light of the
2010 earthquake. is has been a third praised practice and in 2013,
it was extended to persons aected by the Syrian conict. e ad hoc
measures aimed at facilitating the entry of displaced persons from these
232 20. Trends In Brazil’s Practices of Refugee Protection: Promising Inspirations For the EU?
contexts into Brazil; in what could be understood as a complementary
pathway to admission, an avenue of protection sought by the GCR
(paras. 94-96). However, they did not secure legal migratory status for
them once they were in the country, leaving them with a precarious legal
basis (Jubilut, Andrade and Madureira, 2016). e adoption of the new
Brazilian Migration Law - Law 13 445 of 2017 (Brasil, 2017) has largely
changed this scenario as it establishes humanitarian welcoming as a
principle (Article 3, VI) and temporary humanitarian visas (Article 14, I,
c) as a possibility. Moreover, since the law’s adoption, the humanitarian
visa regulations seem to have built-in measures to grant legal migratory
status (thus being both an entry visa and a residency visa) (Brazil, 2019).
e ad hoc component of the granting of humanitarian visas, however,
remains.
is may be explained by the fact that geopolitics still plays a relevant
role in Brazil’s practices towards refugees, which is exemplied in the
fourth praised practice to be mentioned - the treatment of Venezuelans
arriving in the country, by Operação Acolhida (Brasil, n/d). Due to the
increased inux of Venezuelans, the federal government established this
operation in 2015, giving a leading role to the Armed Forces, aimed at
ordering the border of the northern state of Roraima (the Venezuelans’
main entry point into Brazil in this current displacement). e initia-
tive led to the creation of shelters, the enhanced presence of international
organizations and NGOs in the region, the structuring of bureaucratic
procedures for legal migratory status, and the novel practice of interi-
orização, i.e. the redistribution of the refugees to other Brazilian states.
Interiorização can be perceived as an “internal resettlement” and has a
dual focus – rstly, to relieve pressure on Roraima (which historically
has had high levels of inequality, insucient social and economic struc-
tures and problems in terms of access to rights and services (Jubilut and
Jarochinski Silva, 2020a) and secondly, to aid refugees in rebuilding their
lives.
However, even though the operation has earned prizes (Godinho,
2018) and inspired suggestions of a similar approach in the EU (Góis,
2020), certain realities have come to light, namely:
(i) integration remains a challenge;
(ii) the success of relocations also needs to be explained by the
limits that the geography of the northern states naturally create;
233
Liliana Lyra Jubilut and João Carlos Jarochinski Silva
(iii) refugee numbers in general in Brazil although high compared
to the country’s history are still small in comparison to others
in the region, and
(iv) there are concerns about the respect of international norms
in some practical aspects of the treatment of Venezuelans
in Brazil, such as access to adequate procedures and even to
refuge itself (Jarochinski Silva and Jubilut, 2018; Jubilut and
Jarochinski Silva, 2020b).
(v) moreover, it seems that resettlement has been put on hold as
the government has focused on Operação Acolhida (Jubilut and
Zamur, 2018).
20.3 Trends in Brazil’s Refugee Protection
Although praised as “good”, these practices have attracted criticism both
in themselves and for not being systemic decisions but rather ad hoc
polices – within a broader critique of Brazil’s non-holistic migration and
refugee governance, as well as due to concerns regarding human rights
and international refugee law, as outlined in the GCR’s principles (paras.
5 and 9). However, they seem to put good “bones” in place, from which
improved protective structures can be built. Furthermore, most of these
practices have been created in light of and as responses to signicant
increases in the inux of refugees into Brazil compared to the national
numbers, and seem to be innovative.
In this regard there are three aspects of Brazil’s practices that can also
be seen as noteworthy trends: a focus on solidarity, the implementation
of multi-level partnerships, and the crucial role of cities.
Solidarity can be noted both in the ‘Resettlement in solidarity’ ini-
tiative and in the practice of interiorização, and is present both towards
the states (i.e. those countries that were receiving large numbers of
Colombian refugees in the rst, and the state of Roraima in the latter)
and to the displaced, in a dual approach. Solidarity might be a principle
worthy of replicating in a regional context of developed cooperation and
open internal borders such as the EU, (and also) in a scenario where trust
seems to be lacking (ym, 2020).
Multi-level partnerships, which seem to be long-operating in Brazil,
is another interesting practice to be considered in discussing the new EU
234 20. Trends In Brazil’s Practices of Refugee Protection: Promising Inspirations For the EU?
New Pact on Migration and Asylum (EU, 2020). Since before its national
law on refugees, but with renewed strength aer it, a tripartite structure
of refugee protection (involving the federal government, the interna-
tional community represented by UNHCR, and civil society) has been in
place in Brazil (Jubilut, 2006; Jubilut and Apolinário, 2008b) pre-existing
the approach of partnership and multi-stakeholder participation of the
GCR (paras. 13, 22, 33-44, for instance).
Initially working on RSD, assistance and integration, the structure has
been replicated in the resettlement in solidarity initiative, as well as in
the Operação Acolhida (including interiorização). In the latter, a signif-
icant increase in the number of participating national and international
civil society organizations, and of organizations and organs linked to the
United Nations, has been noted. Multi-level partnerships in Brazil play a
key role in integral refugee protection, as well as in delineating the issue as
belonging to the country as a whole and not just of the government. is
might be a positive lesson for when considering constructive and protec-
tive governance. Moreover, a new local actor has also gained relevance
and added a new layer to multi-level partnerships in Brazil – i.e. cities.
Cities have become key partners in the interiorização (for example,
their acceptance in receiving Venezuelans, at least in theory – given that
in practice most internal redistribution seems to stem from personal or
familial ties of the refugees themselves), thus allowing for the observance
of two axes of multi-level partnerships in Brazil’s refugee protection:
government-international community-civil society; and federal govern-
ment-states-international organizations-cities.
e role of cities had already been highlighted in the ‘Resettlement
in solidarity’ initiative as they had volunteered to receive the resettled
refugees, took part in the selection process, and worked with civil society
and UNHCR in their integration (Jubilut and Carneiro, 2011). In Brazil,
cities do not have the power to issue documents, which in the case of
interiorização is provided prior to relocation, by a nationally accepted
document – even with provisional status – (this immediate and at the
point of entry issuance is a good practice that could be replicated by
the EU). Cities also cannot make decisions in terms of legal status for
migrants, but, in Brazil’s federal system, the municipal governments
are vested with the responsibility of the direct implementation of social
programs (even some funded by the national government), therefore
235
Liliana Lyra Jubilut and João Carlos Jarochinski Silva
being essential in the issues of health, education and shelter. us, having
this increased role of cities is a positive step toward integral protection of
refugees and other migrants.
Besides solidarity, multi-level partnerships and the increased role of
cities, there are three other trends that can be identied in Brazil’s refugee
protection good practices and that may be interesting to assess when the
EU is re-thinking its governance of migration.
First, there is the fact that, as mentioned, Brazil’s actions in migration
in general and refugee protection more specically are not as a rule
systemic but rather ad hoc policies. In this sense, they dier from the EU’s
New Pact that is said to posit general principles for later consensus (Betts,
2020) or be a police guide (Carrera, 2020; see Chapter 1). is ad hoc
nature can have both positive and negative aspects, as, on the one hand,
actions may be faster and grant rapid protection while more general rules
and practices are being determined and can also be tailored to specic
situations while political will is gathered for more systemic policies, and,
on the other hand, they are impacted by political will and action.
Second, and relating to this last point, another trend in Brazil’s
refugee protection is that it seems to default towards a reactive nature.
On the one hand, this leads to ad hoc policies and a non-systemic archi-
tectural structure of protection; on the other, it shows that good practices
can emerge in light of a crisis or emergencies, highlighting that inno-
vative refugee protection and policies that combine states’ interests and
refugees’ needs can exist.
Lastly, another relevant trend is that Brazil’s refugee protection
practices by and large respect rights. Although there is always room for
improvement, and there are occasional violations (that might be severe,
such as in the closing of borders without exceptions for refugees (Jubilut
and Jarochinski Silva, 2020a), individual cases of non-refoulment in the
past (Jubilut, 2015), and more recently a government decision of denying
claims without allowing the asylum seekers to be interviewed (DPU, 2020;
CNDH, 2020), they tend to be more contextual than systemic. Respecting
rights is central to the political decisions of migration governance; hence
this trend, as a general aspect and upheld to a great extent by the tripar-
tite system (particularly civil society and human rights-mandated public
organs), in Brazil’s refugee protection practices is noteworthy.
236 20. Trends In Brazil’s Practices of Refugee Protection: Promising Inspirations For the EU?
20.3 Conclusions
From the aforementioned practices regarded as “good”, to several of the
identied trends, Brazil might oer inspiration for new structures of
migration governance. ere is room for criticism as well as for improve-
ment, but some of the broader brushstrokes can oer positive paradigms
towards enhancing protection for both refugees and other migrants in an
increasingly challenging global environment.
237
Liliana Lyra Jubilut and João Carlos Jarochinski Silva
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Brasil, Chile, Paraguai e Uruguai. Buenos Aires: ACNUR.
Betts, A (2020), “Alexander Betts discusses the EU’s ‘New Pact on
Migration’ on CNN”, RSC News and Media (www.rsc.ox.ac.uk/news/
alexander-betts-discusses-the-eu-new-pact-on-migration-on-cnn)
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sileiro facilita visto humanitário a afetados pelo conito na Síria”
(www.justica.gov.br/news/collective-nitf-content-1570631506.17)
Brasil. Ministério das Relações Internacionais. (2020), “Brazil’s election
to the Presidency of the Bureau of the United Nation High Commis-
sioner for Refugees (UNHCR)” (www.gov.br/mre/en/contact-us/
press-area/press-releases/brazil-s-election-to-the-presidency-of-
the-bureau-of-the-united-nation-high-commissioner-for-refugees-
unhcr).
Brasil. (n/d), “Operação Acolhida” (www.gov.br/acolhida/en/home/).
Carrera, S. (2020). “Whose Pact? e Cognitive Dimensions of the New
EU Pact on Migration and Asylum”, ASILE Forum. (https://www.
ceps.eu/download/publication/?id=30350&pdf=PI2020-22-New-
EU-Pact-on-Migration-and-Asylum.pdf).
CNDH (Conselho Nacional dos Direitos Humanos). (2020), Recomen-
dação 17, 9 dec. 2020, through Ofício 4000/2020/CNDH/SNPG/
MMDFH.
Crisp, J. (2020), “Disingenuous, dishonest and dangerous: the EU Pact
on Migration and Asylum”, Refugee Law Initiative Blog (https://rli.
blogs.sas.ac.uk/2020/10/01/disingenuous-dishonest-and-danger-
ous-the-eu-pact-on-migration-and-asylum/).
DPU (Defensoria Pública da União). (2020). Recomendação 4094830 -
DPU SP/GABDPC SP/2DRDH SP, 24 nov. 2020.
EU. (2020), New Pact on Migration and Asylum (https://ec.europa.
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an-way-life/new-pact-migration-and-asylum_en).
Gilbert, G. (2020), “e New EU Pact on Migration and Asylum and the
Global Compact on Refugees and Solutions”, ASILE Forum, (www.
asileproject.eu/df_new-eu-pact-and-solutions-gilbert/).
Godinho, L. F. (2018), “Agências da ONU e Exército Brasileiro recebem
prêmio de direitos humanos por resposta humanitária à situação
venezuelana” (www.acnur.org/portugues/2018/11/22/agen-
cias-da-onu-e-exercito-brasileiro-recebem-premio-de-direitos-hu-
manos-por-resposta-humanitaria-a-situacao-venezuelana/).
Góis, P. (2020), “Precisamos de uma “Operação Acolhida” para a União
Europeia?”, Público, (www.publico.pt/2020/03/03/mundo/opiniao/
precisamos-operacao-acolhida-uniao-europeia-1906142).
Grandi, F. apud UN NEWS. (2019), “UN refugee chief impressed with
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Challenges of Protection”, E-International Relations, v. 1, pp. 1-6.
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and the impossibility of return of Asylum Seekers in Brazil”, Working
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mination in Brazil: A Tripartite Enterprise”, Refuge, v. 25, pp. 29-40.
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trust-among-the-member-states/).
21. Redistributing EU ‘Burdens’:
The Tunisian Perspective on The New
Pact on Migration and Asylum
Betty Rouland
21.1 Introduction
Regarding the so-called‘New’ Pact on Migration and Asylumpublished
on 23 September 2020 by the European Commission, Tunisia is more
than ever in the ring line of the European Union (EU) for the imple-
mentation of its extraterritorial migratory policies (European Commis-
sion, 2020). e country, located at the Southern shore of the Mediterra-
nean Sea and sharing a border with Libya, represents a central player for
the EU with its multiplying arsenal of instruments for managing human
mobility in the macro-region. is situation stands in a long line of
instances of‘cooperation’ on migration between Tunisia and the EUthat
started on 25 April 1976 (Limam, 2020a).
By an even stronger reinforcement of the security approach initiated
over the last decades, the Pact places cooperation with third countries at
the heart of its strategy of externalisation. It insists on control, tracking
and expeditious screening for ‘return’ or relocation while making
the refugee status process extremely tedious. In view of the migratory
situation and the multidimensional tensions characterizing the Medi-
terranean Sea region, room for manoeuvre by the Tunisian government
might be renegotiated. In the Pact, the focus on ‘migration partnerships’
exemplies how Tunisian mobility facilities is conditioned by readmis-
sions agreements, and how the label ‘partner’ proves not to be appro-
priate. So far, Tunisia has deployed a strategy based on a triple approach:
ocially resisting, cooperating on the ground and adopting a lethargic
position on legal issues.
241
Betty Rouland
21.2 The Pact: from territorial exclusion to inclusive
cooperation with third countries
Not shiing from previous paradigms, the Pact is merely an extension
of a coercive approach for promoting externalised and de-territorialised
policies on migration and asylum in third countries including Tunisia.
e Pact makes a priority of excluding non-EU citizens from its territory
while it advocates inclusive cooperation with third countries.
Classied as a country of departure (of origin and transit), Tunisia
accumulates what the EU considers ‘burdens’ to be redistributed. On the
one hand, Tunisia supplies the most important contingency of ‘irregular-
ized’ migrants arriving to the Italian coasts. On the other hand, the insta-
bility in Libya positions Tunisia as an irresistible gatekeeper for the EU in
regards to migrant and refugee ows. On top of that, the sensitive political
transition as well as the economic gloom triggered by the uprisings have
made the country one of themain providers of jihadistssince 2011 (Attia,
2019). In 2020, the pandemic crisis caused by Covid-19 further exacer-
bated multidimensional tensions favouring departures from Tunisia.
Consequently, the current context undeniably plays into the hands
of the European Commission’s Migration and Asylum Pact. With a total
of11,212 Tunisiansarriving to the Italian coasts since the beginning of
2020 (41.2% of the total arrivals), the tone changed over the summer
between both Mediterranean countries.1 While this situation reminds
us ofsimilar frictionscaused by the uprisings in 2011 (AFP, 2011),dip-
lomatic pressures increased and the Italian foreign minister Luigi Di
Maio threatened Tunisia with cutting economic support (equivalent to
€6.5million) (Haddad, 2020). In response,a bilateral agreementon the
readmission of approximately80 Tunisians a week in two ightswas
concluded between Italia and Tunisia (Ziniti, 2020).e civil societyhas
been denouncing the lack of transparency of this agreement as well as
the lack of accountability and the systemic violation of human rights
(FTDES, 2020).
e terrorist attack on the Notre Dame Basilica in the French city of
Nice on 29 October 2020, committed by a Tunisian national, placed the
security question back on the table. e terrorist arrived in the EU on
1 For more data, see: https://data2.unhcr.org/en/situations/mediterranean/loca-
tion/5205.
242 21. Redistributing EU ‘Burdens’: The Tunisian Perspective on The New Pact on Migration and Asylum
the island of Lampedusa, one European fortress gateway for migrants. In
the aermath of this tragedy, the French Minister of the Interior Gérald
Darmanin met his North African counterparts in Tunis in November
2020. His goal was to pursue cooperation against terrorism and to
negotiate the expulsion of radicalized Tunisians. While neither negoti-
ation on readmissions nor cooperation against terrorism are new diplo-
matic topics, the analogical picture linking irregular migrants, refugees
and terrorists has eectively moved the humanitarian debate into a ‘jus-
tication of security’ narrative. During an ocial visit in France, the new
head of the Tunisian government, Hichem Mechichi, had struck a fatal
damaged declaring‘and who says illegal migration, also says terrorism’
(Perelman, 2020).
21.3 A matter of form and substance
If the Tunisian government rmly arms its sovereignty on migration
issues refusing the project of ‘hotspot’ on its territory, several types of
cooperation remain in substance from the 1990s includinga long series
of agreements (Bisiaux, 2020). ose agreements essentially link the EU’s
nancial support in Tunisia to the European Union Emergency Trust
Fund(EUTF for Africa), estimated at €57m to be distributed to dierent
tasks for managing migration and asylum issues (controls, strengthening
of capacity-building, ghting human and migrant trac, etc.) (Bisiaux,
2020).
e Pact multiplies concepts or instruments for returning irregular-
ized or undesirable people to their home countries or third countries:
‘Return Directive’, ‘eective return policy’, ‘return systems’, ‘return border
procedure’, ‘return policies’ ‘return sponsorship’, ‘return programmes’, etc.
In doing so, the lexicon used in the Pact clearly embodies the priorities
made to exclude non-EU citizens from quicker and more eective pro-
cedures. In the Pact’s proposal, the ‘return’ for non-pre-selected people
facilitated by the cooperation with third countries appears a key objective
as shown by the occurrences of the term ‘return’ (-s, –ed, –ees, –ing) (98
times), ‘cooperation’ (70) or ‘third countries’ (35).
While ‘voluntary return’ is a recycled objective (from the Commis-
sion’s 2018 proposal on the Return Directive), the introduction of the
concept of ‘return sponsorship’ is well worth a cosmetic terminolog-
243
Betty Rouland
ical operation. Dened in the Pact as providing support to the Member
State under pressure ‘to swily return those who have no right to
stay’(European Commission, 2020: 5), the objective in substance aims
to achieve the same goal. As a complex puzzle of procedures, the‘return
sponsorship’is an unclear incentive of ‘solidarity practice’ and ‘partners’
from third countries have not been taking into consideration (Cassarino,
2020).
21.4 Upstaging the ‘monkey on our back’: asylum and
refugees in the context of a legal vacuum
In the Pact, the novelty is that screening procedures seek eciency in
‘instituting a concomitance’ between the examination and the application
for asylum or the return decision (Limam, 2020b). e document clearly
underlines the aim ‘to establish a seamless procedure at the border appli-
cable to all non-EU citizens crossing without authorisation, comprising
pre-entry screening, an asylum procedure and where applicable a swi
return procedure – thereby integrating processes which are currently
separate’ (European Commission, 2020: 4). By making asylum and
return as ‘part of a single system’ (European Commission, 2020: 3), the
screening upstages the refugee’s assistance and contradicts the humane
approachclaimed by the von der Leyen Commission (European Com-
mission, 2020). Priority is clearly on the protection of EU borders rather
than on the protection of people; refugees and asylum are nowa ‘subset’
of irregular migration (Spijkerboer, 2020; see Chapter 5). As a result of
the relegation of this thorny ‘burden’, the Pact emphasizes that juridical
status supplants human rights.
Despite the ratication of the 1951 Geneva Convention on refugees
and other associated protocols, Tunisia does not oer legal protection
to refugees. In 2014, impelled by the context of democratic transition,
Tunisia adopted a new constitution which recognizes the right to political
asylum inArticle 25 (Haon, 2012/3). is took place alongside a project
of law on asylum in Tunisia. It was reworked until 2018, but sincethen
nothing has happened (Limam, 2020b). In compliance with international
standards, the adoption of this law would permit expulsion or depor-
tation (called ‘return’) to Tunisia including Tunisians but also citizens
from third countries. Widely mobilized, the civil society is calling for the
establishment ofan eective asylum system (Euromed Rights, 2019).
244 21. Redistributing EU ‘Burdens’: The Tunisian Perspective on The New Pact on Migration and Asylum
To some extent, the camp of Choucha was a prelude for upstaging assis-
tance to asylum seekers and refugees. Near the Libyan-Tunisian border
post of Ras Jedir, this camp opened in 2011 and was managed by theUN
Refugee Agency(UNHCR) primarily to contain ows of people eeing
the armed conicts in Libya (Haon, 2012/3). In the camp, procedures
of returns (organized by the International Organization for Migration),
or resettlement in a third country (administered by UNHCR),coexisted
(Haon, 2012/13). Regarding the procedures for seeking asylum,multiple
irregularitieshave been denounced (e.g. lack to access to interpreters)
(Carrera et al., 2018). With almost 18 000 individuals in the camp, it
closed ocially in 2013 but it was dismantled in 2017 by Tunisian author-
ities. Back then, people refused to leave the camp because Tunisia does
not legal perspectives (asylum, residence or work permit). Since then,
people have desperately been waiting forrefugee status– which does not
yet exist in Tunisia (Blaise, 2019).
Tunisia has developed a strategy of‘response/resistance’and the law
on asylum is not the only project pending (Limam, 2020a). It is precisely
the absence of a clear legal framework for asylum procedures combined
with the violation of human rights that contradicts the idea one should
consider Tunisia as a ‘safe country’ or among the list of ‘safe third
countries’ – even though some EU countries refer to Tunisia as such.
e Pact refers to ‘a greater degree of harmonization for the concepts of
safe (third) country on the EU list of countries identied as such’ (Pact,
5). Tunisian NGOs and civil society organisations denounce thisstatus
quo advocating that only real measures for helping Tunisia become a
safe place would permit one to consider thecountry hospitable (Bisiaux,
2020).
21.5 Complex chessboard
A key innovation of the Pact is the call for solidarity among EU states
preaching the notion of interstate for mutual trust (Carrera, 2020). In
reference to the 2009 Lisbon Treaty, EU countries must improve their
cooperation in order to redistribute more equally the ‘burden’ of asylum
seekers and refugees. A sustainable approach prioritizing assistance to
migrants and refugees was seemingly discarded by the Pact which all the
same advocates rather inclusive cooperation with third countries for con-
taining, returning or relocating undesirable ows of migrants.
245
Betty Rouland
In doing so, the result (intended or not) has been international part-
nerships which are based on a balance of power rather than solidarity
and mutual trust. e Pact mentions the importance of ‘an assessment of
the interests of the EU and partner countries’ through ‘mutually bene-
cial partnerships’ (European Commission, 2020: 13) with neighbouring
countries (specically referring to) the North African region. However,
this principle of reciprocity is conditioned above all by the level of cooper-
ation of third countries on readmissions. Even more explicitly, the Com-
mission indicates the application of restrictive visa measures in cases of
‘substantial and practical problems’ (European Commission, 2020).
Initiated in 2012, a‘Mobility Partnership’between the EU and Tunisia
was signedin 2014with the purpose of improving the management of
migratory ows (Euromed Rights, 2014; European Commission, 2014).
is includes,inter alia, the opening of negotiations for readmissions in
exchange for avisa facilitation agreement (Limam and Del Sarto, 2015).
If thispartnership agreementis not implemented, the new conditions
advocated in the Pact might compromise negotiations further.2
In the Tunisian context of democratization, legal progress is being
driven by the mobilization of Tunisian civil society. Denouncing actively
human rights violations (e.g.systemic racism) (Akrimi, 2020), NGOs are
a new key actor for politicising the conditions of migrants and refugees
without status in Tunisia. In respect to the Mobility Partnership, the
Tunisian civil society criticizes the fact thatit has not been consulted
(Euromed Rights, 2014). Legal progress can be noticed as attested by
the approvedlaw in 2016to prevent and ght against human tracking
(Journal Ociel de la République Tunisienne, 2016). Furthermore,
a2018 lawsought the Elimination of All Forms of Racial Discrimination
in Tunisia (even if the associated Commission has not yet been estab-
lished) (Euromed Rights, 2018).
Since the 2011 uprisings, Tunisia has gone through major andmul-
tifaceted transformations including important challenges in terms
ofmigration and asylum issues (Rouland and Bachmann, 2015; Boubakri,
2015). Furthermore, the migration landscape changed signicantly as a
2 For the full text of the agreement, see: https://ec.europa.eu/
home-affairs/sites/homeaffairs/files/e-library/documents/policies/
international-affairs/general/docs/declaration_conjointe_tunisia_eu_
mobility_fr.pdf.
246 21. Redistributing EU ‘Burdens’: The Tunisian Perspective on The New Pact on Migration and Asylum
consequence of ows of people eeing not only armed conicts in Libya
but also contexts ofinstability and insecurity in other countries(with an
overrepresentation of Syrians, Ivorian, Sudanese, Eritreans, Somalis, and
Guineans in 2020) (Castiello d’Antonio, 2020).
By barricading the EU fortress with long and discouraging visa proce-
dures, Tunisia is receivingnew and varying inows(e.g. patients seeking
care in Tunisia rather than in Europe) (Rouland and Jarraya, 2015). Con-
sequently, labor migrants from sub-Saharan Africa are attracted by new
labour possibilities (domestic work, construction) or specic services
(higher education, private health services). As the EU transfers restric-
tive policies to third countries, thereby placing them under even further
pressure, the Tunisian government in turn is developingstrategies for
control without establishing a legal framework for labor migrants. Local,
national and (trans)regional intra-African mobility contexts are being
ignored, and in the end, everyone is losing.
247
Betty Rouland
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251
22. Fresh Start Or False Start? The
New Pact on Migration and Asylum
Petra Bendel
22.1 Introduction
On 23 September 2020, the European Commission pres ented its New Pact
on Migration and Asylum, accompanying it with an ambitious statement
of intent. e commissioners in charge, Ylva Johansson and Margaritis
Schinas, promised no less than a ‘fresh start’ covering all aspects of EU
migration and asylum policy, to the end of easing tensions and conicts
among the Member States and with the ultimate aim of forming the basis
of a reliable common migration and asylum system.
e Commission was and is in an unenviable position: It has to
rebuild trust and strengthen consensus among Member States aer a
long period of serious disputes over refugee policy. It has to stop the ‘race
to the bottom’ in refugee protection and provide a framework for orderly
migration. In the past few months, the Commission´s preliminary
negotiations with its Member States and the European Parliament have
entailed a lot of hard work that has resulted in a number of compromises.
In what follows I will analyse the Pact’s principal proposals as to their
innovative potential, their reliability, their chances of being implemented
in negotiations, their potential eciency and the protection of rights they
aord, taking the two Global Compacts into consideration.
22.2 A communicative false start
e Commission did not do itself any favours with the unnecessarily high
expectations it raised in advance of announcing the Pact. e proposals
252 22. Fresh Start Or False Start? The New Pact on Migration and Asylum
in their current form, in line with their compromising character, have
not been able to sustain their dened narrative of migration as a normal
process rather than acrisisevent (Bendel, 2017). Instead, the discourse
of ‘irregular migration as the typical case’ or indeed of the ‘refugee crisis’
is in evidence again and again. e Commission’s introductory commu-
nication fails to explain how the proposals improve on thestatus quo.
Indeed, quite to the contrary, it has le experts and non-experts strug-
gling with an extensive loose-leaf collection of proposals for regulations
and recommendations, opaque in form and content.
22.3 Familiar initiatives with a ‘twist’
e nine legal initiatives set out in the Pact do not oer many proposals
with which we are not already familiar. Its centrepieces are pre-entry
screening, asylum procedures at the EU’s external borders, and a
proposal for ‘exible solidarity’ rather than shared responsibility among
the Member States. ere is, then, little innovation in evidence; yet each
aspect of the Pact has been given a new ‘twist’ to increase their appeal to
the negotiating partners both in the Council and in the European Par-
liament.
First, the Pact (again)presents a proposal to abolish the Dublin Reg-
ulationand replace it with the screening of asylum seekers prior to their
entry to a country (the criterion of the rst irregular entry of the Reg-
ulation, however, among others, are maintained), anked, if required,
by asylum procedures at the EU’s external borders (Hruschka, 2016;
Maiani, 2020; Carrera, 2020). In contrast to proposals presented in the
past– specically prior to the commencement of Germany’s EU Council
presidency (July-December 2020) – the pre-entry screening procedure
outlined here does not include any preliminary decisions on asylum
(Statewatch, 2019). Its purpose is to capture a more detailed registra-
tion of asylum seekers and an additional security and health check. e
asylum procedure would commence aer this screening.
e proposal bears an evident resemblance to the ‘integrated refugee
management’ introduced in Germany in 2016, whose central idea was to
dive the applicants into dierent clusters for theasylum procedureright
from the start (Informationsverbund Asyl und Migration, 2020). Very
much like the clusters established there, the New Pact would implement
253
Petra Bendel
a distinct procedure for asylum applicants from countries with ‘low rec-
ognition rates’ and for those whose applications include information that
is false or abuses the process, or from those who may represent a danger
to national security. Depending on the group to which they are assigned,
the system would channel asylum seekers into one of four possible pro-
cedures: resettlement, the ‘conventional asylum procedure’ (yet with very
tight deadlines), a fast-track asylum procedure, or relocation to another
Member State for consideration of asylum.
Second, the Commission has turned away from the principle of fair
distribution of people seeking protection among the Member States –
which has de facto never been in operation – and intends to replace it
with a ‘new solidarity mechanism’ (at the same time mandatory and
exible). In accordance with the new mechanism, not every Member
State will have to accept people seeking international protection and may
opt for other instruments of ‘solidarity’ instead.
e ‘twist’ as compared to the principle of ‘exible solidarity’
proposed by the Slovak Council presidency in 2016 is the new instru-
ment of ‘return sponsorship’. Instead of receiving refugees, a Member
State can ‘sponsor’ people required to return to their countries of origin.
is entails arranging the return; if the ‘sponsoring’ Member State fails
to do this within a period of eight months, it must permit the person to
enter its own territory – an idea that aimed both at facilitating coopera-
tion with those Member States not willing to receive refugees (particu-
larly the Visegrad-States) and at accelerating returns.However, Hungary,
Poland and the Czech Republic were quick in rejecting even these new
plans (Euronews, 2020). e Commission intends to specify at a later
date a separate catalogue of operational and technical support measures
that may serve as instruments of solidarity in this context.It remains to
be seen whether this catalogue contains more elements that support, for
instance, the reception and asylum standards in Member States under
pressure or the European Asylum Support Oce (EASO)and how the
dierent possible contributions will be rated in the announced ‘solidarity
pool’(De Bruycker, 2020). e proposal further states that, where the
migration system in a Member State is overloaded, the other Member
States should take on a certain ‘fair share’ of refugees. It even provides
for the possible relocation of recognised refugees in countries other than
those of their rst arrival.
254 22. Fresh Start Or False Start? The New Pact on Migration and Asylum
22.4 No commitment to ‘legal routes of entry’, sea
rescue or cooperation with third countries
Depending on the issue at hand, the proposals submitted dier widely
on the extent of legal obligation they confer. Whenever they cover ‘hard
topics’, the proposals are legally binding dra regulations. is is the
case for the pre-entry screening and asylum procedures at the border
(including an expansion of the EURODAC ngerprint system), the
new regulation on the responsibility of Member States in times of crisis
intended to replace the ‘mass inux directive’ of 2001, and the instru-
ments of ‘exible solidarity’.
However, those aspects of the Pact relating to humanitarian issues
of asylum and migration are recommendations only, and will lack any
legally binding character. Obviously, the Commission anticipated
Member States’ poor agreement on these topics, therefore according
them low priority. ey include legal routes of entry, cooperation with
countries of origin or transit (in order to achieve EU borders, migration
and asylum objectives –which perpetuates the EU’s well-known little
attention to the interests of third countriesand reinvents the wheel of
the returns partnerships (Guild, 2020). e precise content of most of
these recommendations remains vague, regrettably so in the context of
the Commission’srecommendations for stabilisation of the resettlement
systemand its designation of funding (includingprivate sponsorship)
for this purpose (Leboeuf, 2020; Feith Tan, 2020; see Chapter 6). is
is an issue that has also been encouraged by the Global Refugee Forum
in order to reduce the pressure on host countries, but is here possibly
combined withcontainment aspects (Carrera and Cortinovis, 2019). In
some instances, the fuller formulation of these ‘soer’ aspects will not
take place until sometime in 2021.
One of the areas thus aected relates to the opening of additional legal
pathways to entry to the EU, which – also corresponding to the call for
‘Global solidarity in theGlobal Compact on Refugees (United Nations,
2018)– has the potential to represent an opportunity to create a ‘win-win’
situation in negotiations with migrants’ and refugees’ countries of origin
or transit, but is overshadowed by the Commission’s conditionality on
return, readmission and ghting against migrant smuggling as the centre
pieceof the external dimension of migration policies (Anrade, 2020).
255
Petra Bendel
e EU’s New Pact’s reference to ‘Talent Partnerships’, which might be
inspired by the Global Compact on Migration’s ‘Global Skills Partner-
ships’ remains vague and certainly non-binding (International Labour
Organization et al., 2018).
Refraining from the criminalisation of private search and rescue
organisations and coordinating rescue-at-sea operations among the
Member States are further recommendations of the Pact, and doubtless
desirable courses of action. e issue of search and rescue otherwise
remains undened, and certainly not subject to proposals of binding
regulation; a contact group yet to be established would be required to
report to the Commission once a year. Nevertheless, the Commission
did provide for technical and detailed provisions for disembarkation
following search and rescue operations.
e proposals remain grossly decient in the other, crucial issues,
such as substantial future regulatoryarrangements regarding secondary
movementsand substantial measures pertaining to the internal borders
of the Schengen area (ym, 2020). Without these aspects, questions
must remain as to the new asylum system’s eectiveness in practice.
22.5 An over-ambitious timeline and unclear prospects of
implementation
Taking into account the legal form chosen for the Pact – regulations
instead of directives – , the prospects of implementing the laws and
regulations directly eective in the Member States during the negotia-
tions in the Council appear poor. Following the tendency noted in the
context ofprevious eorts to reform the Common European Asylum
System (CEAS), the Commission,in these new proposals,has completely
refrained from draing directives, which would still have to be transposed
and implemented in the Member States (Pollet, 2019; Migration Policy
Institute, 2020). Instead of directives, it proposes the issuance of binding
and directly applicable regulations. is means that much is at stake for
the Member States in the negotiations, and the negotiations are accord-
ingly likely to be intense. It may therefore prove at the least challenging
to keep to the ambitious timetable, which provided for mutual political
consent by the end of 2020 and adoption by June of 2021.
256 22. Fresh Start Or False Start? The New Pact on Migration and Asylum
is is still more the case, due to the fact that the Commission
continues to insist upon completing the reforms to CEAS stuck in
dierent stages of negotiations. ese have been negotiated in a ‘package’
and largely depended on the Dublin regulation’s revision from which the
Pact, however, now withdraws: the Reception and Qualication Direc-
tives, the Resettlement Framework and the regulation of the European
Union Agency for Asylum (formerly EASO), on the reform of which pro-
visional political consent is in place.
e content of the Pact appears to promise tough negotiation
processes ahead. It would be surprising indeed if the States located on
the EU’s external borders gave their consent to the new system, which
transfers responsibility for preliminary examinations and border proce-
dures onto them. ose States which opt to take on ‘return sponsorships’
are unlikely to agree without a murmur to take in all asylum applicants
that they are unable to return aer the scheduled period of eight months.
Finally, still to take place are political negotiations regarding which addi-
tional instruments might be applied by Member States that refuse to
receive asylum seekers within the ‘solidarity à la carte’. Dening these will
be no simple endeavour.
22.6 Potential efficiency: More questions than answers
Even if the Dublin system will not be applied – at least not under that
name – in the future, the new procedure at the heart of the suggested Pact
raises numerous questions:
• How can we make certain that it will genuinely ease the pressure on
Member States with external EU borders?
• How can we guarantee faster and more reliable screening, within
the timeframe envisaged by the Commission of ve to ten days, and
quicker asylum procedures at the border, for which the Commission
has set a timescale gure of 12 to 20 weeks at most?
• How can we ensure that Member States will comply?
We are yet to hear details of the resources, skills and powers that will
be available – and necessary – for the achievement of these objectives. We
might have been able to look forward to more ecient and harmonised
procedures had a more radical proposal been presented, one proceeding
257
Petra Bendel
far beyond the reform of the European Asylum Support Oce (EASO) –
on which consensus has already been reached – and following the (albeit
still perfectible) model of the German Federal Oce on Migration and
Refugees (BAMF), responsible for the registration, examination and
decision of asylum claims and whose branch oces with specially trained
personnel le the asylum cases.But here, too, the Commission did not
venture far enough (Gra and Schneider, 2018).
Similar considerations apply to the question of how to avoid a
backlog, and the potential concomitant development of new, perhaps
even long-term ashpoints, in the Member States with external EU
borders, which are currently already struggling to cope with the strain.
e implications for accommodating refugees also merit consideration,
with the muchcriticized pilot projectoncamp accommodation under
EU supervision (Sanderson, 2020; European Commission, 2020).
22.7 Appropriate regard to fundamental rights and
‘vulnerable persons’?
Questions also arise on how these procedures will ensure respect for the
fundamental rights of the migrants and refugees undergoing them, as
required by international and regional refugee protection and human
rights standards, as enshrined in the UN Global Compacts on Refugees
and Migrants, as well as in the EU Treaties (Bendel, 2016).
e Commission has responded to concerns by installing a newinde-
pendent monitoring mechanism, which might have had innovative
potential if its operation had been placed under the auspices of the
European Commission, the European Union Agency for Fundamental
Rights (FRA) or another, independent institution (Cortinovis and Stefan,
2020; see Chapter 16). As it is, Member States will be tasked with con-
ducting their own monitoring of respect for fundamental rights, which
will entail forming a committee and possibly consulting the FRA. e
worst-case scenario here is that this distribution of powers in an ‘inde-
pendent monitoring mechanism’ will result in a situation in which the
same State which has violated a law will judge these violations – a con-
tradiction in terms.
e Pact proposes the identication of ‘vulnerable persons’ (as
referred to in the diction of the Commission) during screening. ese
258 22. Fresh Start Or False Start? The New Pact on Migration and Asylum
individuals will not have to go through the accelerated asylum procedure
mandatory for all others – a principle familiar to us from the Reception
Directive. But what appears to be a humanitarian measure may suer
from important limitations on its practicability in view of the existing
time pressure. Validation of the legal correctness of such a procedure
and allocation of responsibility for its conduction will also be required.
An additional question as yet unanswered is that of access to legal
instruments: To whom can an asylum seeker (who has been rejected or
deported) appeal, and who are the ‘appropriate authorities’ mentioned in
the proposals?
22.8 Conclusions: A Herculean task rather than ‘a fresh
start’
Rather than representing ‘a fresh start’ and instead of providing a new
vision on real common principles and policies, the Pact re-issues well-
known policy choices out of the drawer, although sometimes ‘with a twist’.
Instead of presenting a new idea of solidarity, so strongly recommended
in theWikström-Reportof the European Parliament, it relies more on
the logics of ‘exible solutions’ based on nationalistic interests (Hruschka
and Maiani, 2017). e reliability of the suggested policies diers largely
according to their ‘hard’ (securitized) or ‘so’ (humanitarian) policies,
thus showing where priorities are being set. eir chances of being
implemented in negotiations are at least restricted, given that they are
presented as regulations, not as directives. For the protection of rights
the suggestions may aord the monitoring mechanism may be crucial,
but should be re-designed.
To conclude, we are in no doubt that reconciling the increasingly
diverging interests of individual States and managing the humanitarian
disaster of European refugee policy represent a Herculean endeavour.
Of course, our hope is that the Commission will successfully negotiate
between the Member States and between Council and Parliament, ideally
with the result of shaking up the existing impasse and soening intran-
sigent stances. It may then be possible to return to the original targets:
the protection of refugees and the regulation of migration which until
now has remained largely unregulated. ese proposals run to over 500
pages, yet with good reason we nd their content wanting. We await the
legislators’ views and decisions with interest.
259
Petra Bendel
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United Nations (2018), “Global Compact on Refugees”, (https://www.
unhcr.org/5c658aed4.pdf).
23. EU External Migration
Management Policies in West Africa:
How Migration Policies and Practices
in Nigeria Are Changing
Amanda Bisong
23.1 Introduction
European Union policies have shaped the evolution of migration moti-
vations, patterns and structures across West African states. From slave
trade to colonial times, countries within the European Union (EU) have
inuenced who, where and for how long people in West Africa move.
is inuence continued in post-colonial West African states with the
reduced but available mobility options for West Africans to European
countries to study, work or reunite with family.
But these migration policies have become more restrictive over
the years (Abebe and Mbiyozo, 2020). Consequently, the changes in
migration policies between EU and West African countries have resulted
inchanges in migration patterns and decisions of migrants (Beauchemin
et al., 2020). Although bilateral migration cooperation between West
African and EU states has evolved to reect these changing patterns,
such measures have had the eect of externalising migration policies
of EU states in West African countries. For most migrants and refugees
in the EU that originate from large West-African countries like Nigeria,
externalisation of the EU’s migration policies has meant adopting an
approach that extends European borders beyond the frontiers of African
countries and into their internal territories (into the internal workings of
the state).is has far reaching impact on the legal and political systems
263
Sergio Carrera & Andrew Geddes
in these countries and does not necessarily contribute to the intended
outcomes of migration cooperation.
e EU identies Nigeria as a priority country for migration coop-
eration. However, this cooperation has resulted in several practices with
the potential to contradict its regional (ECOWAS),continental (Abebe
and Mbiyozo, 2020)and International commitments, including the UN
Global Compact on Safe, Regular and Orderly Migration (GCM) and the
Global Compact on Refugees (GCR). efocus on return of Nigerian
migrants from the EU (Uzomah, 2021), for example, has several potential
areas for conicting with the Objective 21 of the GCM which calls for
cooperation between countries of origin, transit and destination in facil-
itating safe and dignied return and readmission, as well as sustainable
reintegration. Furthermore, while most asylum seekers from Nigeria,
may not be categorised as refugees within the denition of theGeneva
Convention on Refugees (see article 1 of the Geneva 1951 refugee con-
vention), they may still require complementary protection or non-ex-
pulsion on humanitarian grounds, hence emphasising the need for indi-
vidual assessment of asylum requests.
23.2 The effects of EU external migration management
policies on migration in Nigeria and free movement of
people in Africa
As the external dimension of the EUs’ migration policies continues to gain
traction, their direct and indirect eects can be observed in the national
and regional practices, policies and legislations of migration partnership
countries including Nigeria. While the EU has failed to achieve a read-
mission agreement with Nigeria,it has adapted its development coopera-
tion which hasyielded more results than formal agreements (Vermeulen
et al., 2019).
23.2.1 Changes to national migration legislation and practices
Over the last decade, migration policies and reforms to immigration laws
in West Africa have been supported by EU countries, either directly or
through international organisations like the International Organisation
for Migration (IOM). ese national migration policies include sections
that address reducing irregular migration from West Africa to Europe.
264 Preface
Nigeria is no exception. e national migration policy was supported by
international organisations. Although the consultations and inputs were
provided by the national stakeholders, the inputs still follow the standard
template of most national migration policies, thus raising the question
about ownership of the content of these policies.
Most of the West African countries have adopted theUN protocol
against the smuggling of migrants, in addition to anti-tracking laws.
ese anti-tracking laws are useful in the region, which is rife with
tracking in persons especially women and children. Although traf-
cking in the region is mostly linked with economic survival and some
cultural practices carried out by ordinary individualsand not necessarily
transnational criminal networks (Sanchez, 2020). However, the arbitrary
interpretation of immigration agencies in implementing laws on the
smuggling of migrants have led to restrictive practices with negative
eects on the movement of persons with in the country and the region. In
Nigeria, national courts have begun to adopt a restrictive interpretation
of immigration laws in restrictive ways.
For example,a federal high court in Katsina, recently charged twelve
persons for attempting to irregularly migrate to Europe through Niger
(Radio Nigeria, 2020). is is particularly noteworthy as there is no
provision in Nigerian law which criminalises attempts to migrate irregu-
larly, either in the Immigration Act or in the Nigerian Criminal or Penal
Codes. e migrants were therefore charged with evading immigration
clearance while crossing Nigerian borders, based on section 46(3)(b)
of the 2015 Immigration Act which states that“if a person… refuses or
fails to produce or furnish to any such ocer or person any document or
information which he is required to produce or furnish to that ocer or
person under this Act, or otherwise obstructs any such ocer or person in
the exercise of his functions thereunder;he shall be guilty of an oence.”
Furthermore, an increasingly worrying practice of immigration
authorities within the region who have been arresting circular or seasonal
migrants for irregular entry and overstay in neighbouring countries, has
also been observed in Nigeria. ese increased arrests and deportations
are in a bid to curtail irregular migration movements in the region.
However, “irregular migration movements” are not dened and on the
basis of the ECOWAS regulations are subject to varied interpretation by
the Member States. More so, deportations are not carried out in accord-
265
Sergio Carrera & Andrew Geddes
ance with the conditions stipulated in the ECOWAS regulations of 1979
(see article 11), thus aunting ECOWAS protocols and regional human
rights commitments. rough the support of the EU and international
organisations (including those implementing the UN GCM), restrictive
denitions of irregular migration are adopted with the eect of curtailing
or restricting regional human mobility.
23.2.2 Focus on returns and readmission: return into unemployment
Current migration cooperation between the EU and its Member States
and the Nigerian government is focused on returns and readmission.
ere is still no readmission agreement between the EU and Nigeria,
however Nigeria has several agreements with some EU Member States
which are not regularly respected. For the Nigerian authorities, the focus
is on exhausting all available local remedies in the host country before
return is conducted, while EU countries on the other hand have the pref-
erence of conducting returns immediately when a migrant in an irregular
condition is identied. us, the challenge for both authorities has been
to nd a compromise between these two positions.
Nigerian nationals are granted asylum in the EU on grounds of com-
plementary/ subsidiary protection or non-expulsion due to humani-
tarian reasons. In2019, 4365 out of 29660 applications were granted
asylum in the EU in rst instance and some aer appeal (EUROSTAT,
2020). While some EU Member States authorities may erroneously
assume that Nigerian nationals are not entitled to international protec-
tion, theviolencein the country may necessitate protection under other
statuses (UNHCR, 2020). is highlights the need for states to ensure
that migrants and asylum seekers especially from large migrant origin
countries do not fall within cracks of the migrant categories, especially
where these do not reect specic rights, needs or migration realities.
More broadly, the case of Nigeria highlights the need to better explore
and develop the linkages and protection gaps emerging from a strict
application of the division between the GCM and the GCR.
However, while the return of migrants from EU countries is cat-
egorised by political gimmicks and uncooperative national author-
ities,return migration from African countries occurs more frequently
and with less hassle (Ahrin-Sam and Zanker, 2019). is may be because
of the negative and horric human conditions in which migrants and
266 Preface
asylum seekers in neighbouring countries (such as Libya) nd themselves.
Consequently, while the number of yearly returns from EU countries to
Nigeria has uctuatedbetween 100 – 500 returns, returns fromLibya and
neighbouring African countries to Nigeria are in the range of thousands
(IOM, 2020; Zandonini, 2020). ese returns are organised with the
support of international organisations such as the IOM funded by the EU
or its Member States.
One thing that the governments of both Nigeria and EU countries
have failed to consider is the situation in which thereturned migrants
nd themselves in Nigeria (Vermeulen, 2020). In some communities, the
rate of re-emigration is higher because the conditions which migrants
return to are much worse than the conditions which motivated them to
migrate initially.
For some of these migrants, they may havetaken loans to fund their
migration (Sanderson, 2019), and on their return (without sucient
income and without having been able to earn income at their intended
destination), have to begin repaying these loans. However, the employ-
ment and business conditions in the country are not such that would
enable them to repay these loans swily in order to avoid negative conse-
quences. Other migrants, on their return, are given support to start small
businesses through micro-credit loans and facilities received from inter-
national organisations. However, these organisations fail to acknowledge
the dicult business environment and the harsh conditions which limit
the success rate and survival of small businesses. Consequently, these
businesses do not thrive because of the challenging environment and the
high costs of doing business (e.g. lack of power supply, multiple taxation
by government agencies, high costs of inputs, high costs of rents etc.).
erefore, many returned migrants nd themselves in aworse situation
than the one they had prior to emigration (Zandonini, 2020).
23.2.3 Bilateral cooperation on development with a renewed focus
on migration
rough bilateral cooperation on development, EU states have inten-
sied their support towards curbing irregular migration from Nigeria
to Europe. Although there are several studies that highlight the
inconclusive eects of using development aid to address migration-
related issues, the practice still continues, with such interventions framed
267
Sergio Carrera & Andrew Geddes
within the narrative of addressing the ‘root causes of migration’, which
focus on the drivers that motivate people towards migration (Siegel 2019;
Dennison et al., 2019). However, this narrative on root causes fails to
acknowledge the role of current migration policies and other overar-
ching economic policies (like trade and agriculture) and structural global
inequalities in contributing to the current situation. Youth employment
and economic empowerment programmes, linked to the so called ‘root
causes’, are implemented in ‘migration prone’ communities in order to
discourage young people from migrating to the EU. e outcomes of
these programmes remain opaque.
e problematic relationship between development aid and migration
is further demonstrated by the use ofconditionalities to elicit the cooper-
ation of migrant sending countriesin theirbilateral relations with the EU
(Statewatch, 2020; ECRE, 2020). Several projects funded under the EU
trust fund in Africa provide examples of the use of development coopera-
tioninstruments to achieve migration control (Oxfam, 2017). In Nigeria,
development cooperation to fund migration control can be observed in
thetrainingandequippingof Nigerian immigration authorities with the
objective of enforcing migration control on behalf of EU countries (TV
360, 2021; Punch Nigeria, 2019). More recently European states have
focused on empowering authorities in Nigeria to play a more direct role
in restricting migration.
23.2.4 Securitisation and militarisation of migration
rough increased cooperation with FRONTEX, West African states have
carried outborder controls, instituted border management systems and
regular travel checks within the region (DW, 2019). ese interventions
are aimed at saving migrants from tracking networks, being exposed
to harm at sea or in the desert, thus motivated by humanitarian and
anti-criminal motives. However, this cooperation also has the eect of
increasing border checks in the region and in practice,imposing dicul-
ties on the free movement of persons within the regionby criminalising
migration. is goes against the ECOWAS protocol on free movement
(Zanker et al., 2020).
In Nigeria, migration discussions have become synonymous with
terrorism, banditry and smuggling. Consequently, the use of military
force to address these challenges and by extension restrict the movement
268 Preface
of persons even within the region is justied by the government. ese
military interventions motivated by the focus on counter-terrorism and
anti-smuggling are aimed at reducing transnational organised crime in
the region. However, these practices risk exacerbating other factors of
insecurity and political instability, such as protests and social disorder by
disgruntled youth seeking means to migrate. ese interventions are now
strongly linked to addressing irregular migration in the region, including
controlling irregular migration and promoting border management.
23.2.5 Conflict between state and federal governments over the
mandate relating to migration
In Nigeria, federal government ministries and agencies are incompeti-
tion with state level ministriesand agencies over access to funding for
activities to curb migration and their mandate on addressing issues of
migration (Olakpe, 2020). Consequently, in states such as Edo, where
migration through irregular channels is rampant, there has been a
taskforce on migration set up by the government (Houttuin and Haaij,
2018). Beyond economic reasons, migration is equally important in Edo
because of the role of thediaspora in governance(the current governor
of Edo has received huge support from the diaspora community)
(Vanguard, 2020).
Moreover, measures at the state level are being taken to curb irregular
migration and support the reintegration of returning migrants into their
communities. To ensure the implementation of these measures at the
community level, state governments demand direct support from their
counterpart development and international organisations. is conict
is also an outcome of EU external migration management policies as it
instigates a competition for resources between actors in the Nigerian
federal system.
23.3 No end in sight? EU’s continued fixation on the
external dimension of migration
Presently, West African countries like Nigeria still nd themselves con-
fronted by the contradictory demands of two free areas of movement:
ECOWAS and the EU. e newEU pact on Migration and Asylumaims
to be a continuation of the eorts to externalise EU migration policies
269
Sergio Carrera & Andrew Geddes
in countries such as Nigeria. e crisis is now the new normal as argued
byLandau and Freemantle (2020; see Chapter 24). One of the reasons
for adopting this pact stems from and the need to adopt a more ‘human
and humane approach’ to migration as emphasised by President von der
Leyen in herState of the Union address (EC, 2020).
However, the recommendations provided by the New Pact in actual
practice does not consider the human rights of migrants, which involves
trading of migrants between countries and encampment in detention
sites before deportation and summary deportation on arrival in the EU.
Practices such as these contradict several commitments to which Nigeria
and EU countries are signatory at the international level and further may
undermine the implementation of the GCM and GCR related objectives.
More worrying is the fact that international organisations which support
Nigeria in the implementation of its migration commitments are also
used to promote the implementation of the EU’s externalisation agenda
in the country.
Movement of persons – including Nigerian migrants in various
countries on the African continent is important for socio-economic
development. However, the current externalisation practices of the EU in
several African countries does not bode well for the implementation of
regional free movement measures and neither for the much wider con-
tinental free movement protocol which has been adopted by 33 African
countries and is being pushed by the AU. By extension, this focus on
restrictive migration policies and closing the opportunities for available
migration channels, contradicts the UN GCMs objective to facilitate safe,
orderly and regular migration. For countries like Nigeria, it is important
to emphasise the human rights of migrants are respected and that the
conditions to which migrants are returned are more stable and make
them less vulnerable to exploitation. However, this equally requires intro-
spection on the part of the Nigerian government as well as the EU.
270 Preface
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24. Containment Development and
Africa’s Time-Space Trap
Loren B Landau and Iriann Freemantle
24.1 Introduction
In 2015, a moral panic engulfed Europe. Long uneasy with African
migration across the Mediterranean, the European Union (EU) and
its Member States responded with unprecedented levels of peacetime
defensive action. In the subsequent years, panic engendered a sophis-
ticated, multilateral apparatus to suppress African mobility. e New
Pact on Migration and Asylum represents the next stage in its evolution
(European Commission, 2020).
24.2 From crisis to containment
ePact demonstrates that what began as a crisis has now become a
new ‘normal.’ It furthers eorts to institutionalise strategies that code
‘ungoverned’ and ‘irresponsible’ migration as existential threats to the
EU, to host countries, and to migrants themselves. It outlines a series of
initiatives – coercive, narrative and ‘developmental’ – to contain Africans’
ambitions to move.
Importantly, the paternalism used to frame these eorts discursively
reconciles intercepting and pre-empting Africans’ movement with the
EU’s liberal, universalist foundations. e EU’sraisond’êtrestems from
respect for rights and dignity; concerns with safety and freedom; and
dedication to progress for all (European Union, n.d.). It wants a future
where Africans are ready to join the world. Within this rubric lies the
rub: only the deserving and developed will be allowed to move; however,
275
Loren B Landau and Iriann Freemantle
demonstrating deservingness requires adherence to ever more restrictive
if amorphous moral codes connected to legality, safety and responsibility.
In eect, qualifying to move means surrendering the desire to do so.
To gain entry, refugees and asylum seekers must demonstrate that they
migratedalmost exclusively by compulsion. (Ruy and Yayboke, 2020).
e justication for this approach and the EU’s extra-territorial
modalities are outlined in thePact’sopening pages (European Commis-
sion, 2020: 2):
Addressing the root causes of irregular migration, combatting
migrant smuggling, helping refugees residing in third countries
and supporting well-managed legal migration are valuable objec-
tives for both the EU and our partners to pursue through compre-
hensive, balanced and tailor-made partnerships.
In this short statement, the European Commission is proposing that
the EU dedicate itself,inter alia,to slowing migration by addressing the
reasons people move. It also designates that to move legitimately means
doing so in ways that states authorise and make legal. Ensuring that the
only movements are righteous ones justies extraordinary measures to
regulate not just people’s ability to migrate, but even their desire to do so.
24.3 Containment development and the ‘time-space trap’
is Chapter argues that the apparatus furthered by thePactentrenches
two interrelated regimes of knowledge and control:Containment Devel-
opment (Landau, 2019) and the Time-Space Trap (Freemantle and
Landau, 2020). ese institutional and discursive constructions not only
recalibrate the EU’s relations to Africa and Africans, but also to its own
history and ethical commitments. It does this by casting migration man-
agement in humanitarian terms: to counter material and moral depriva-
tions in ways that ready Africans for a universal liberal project. Working
with allies across sectors and continents, this produces a regulatory
regime that intercepts and prevents mobility while coding even the most
coercive means as necessary to ‘protect’ Africans and foster their conti-
nent’s development. Stepping back, we can consider the elements that set
this trap.
It begins by reframing undocumented African mobility as both
276 24. Containment Development and Africa’s Time-Space Trap
illegal and immoral. It is worth noting thePact’slanguage: this is not a
campaign to extinguish human tracking and exploitation. It rather aims
to suppress human smuggling. Given the tightening of borders into the
EU and across Africa – in law if not in practice – almost anyone moving
or planning to move will somehow intersect with agents, operators or
actors otherwise complicit in human smuggling (Brachet, 2018). By
default, almost anyone poor who has not pre-authorised a trip to the EU
but begins a journey that may end there, becomes complicit in a crime.
As thePactnotes (European Commission, 2020: 15):
is criminal activity therefore damages both the humanitarian
and the migration management objectives of the EU. e new
2021-2025 EU Action Plan against migrant smuggling will focus
on combatting criminal networks, and in line with the EU’s
Security Union Strategy, it will boost cooperation and support the
work of law enforcement to tackle migrant smuggling, oen also
linked to tracking in human beings.
Borrowing fromdystopian science ction (Niles, 2010), the EU goes
beyond just punishing those who move, but has launched a form of
‘chronoscopy’ or ‘pre-crime’: to identify and correct those likely to trans-
gress. Part of the correction comes through ‘Containment Development.’
is works by discursively removing the imperative to migrate. Although
almost all empirical models suggest‘development’ (i.e. economic growth)
spurs movement (—including analysis by the European Commission
(See Landau and Kihato, 2019; Natale et al., 2018) – the EU clings to
the position that ‘Economic opportunity, particularly for young people,
is oen the best way to reduce the pressure for irregular migration’
(European Commission, 2020: 18).
In this, the EU shis the goal of development from expanding human
agency and opportunity, to immobilisation. In its own words, “e EU
is the world’s largest provider of development assistance [and] this will
continue to be a key feature in EU engagement with countries, including
on migration issues. Assistance will be targeted as needed to those
countries with a signicant migration dimension” (European Commis-
sion, 2020: 19-20). e European Commission is quite clearly proposing
an institutionalisation of containment development.
Sprouting from the foundation myth that aid-spawned development
prevents mobility, Africa becomes a space of potential and patriotism, not
277
Loren B Landau and Iriann Freemantle
desperation. Development also means fewer conicts and declining dis-
placements. One no longer needs to move to realise a desirable future or
safety. Indeed, movement not only endangers yourself but threatens the
prospects of your family, community and country. With the exception of a
narrowly dened subset of refugees and asylum seekers, thePactfurther
entrenches the idea that Africans should dedicate themselves to achieving
prosperity,in situ (Curzi, 2016). Only once people have realised appro-
priate, but amorphously dened, levels of wealth, education and respect
for law – standards established by people outside African—are they
ready to enter a global, mobile future. It is with this goal in mind that the
European Commission will “…launch Talent Partnerships in the form
of an enhanced commitment to support legal migration and mobility
with key partners” (Euroepan Commission, 2020: 23). For the skilled and
morally vetted, the EU and the world awaits.
For this to work, the EU explicitly recognises the value of creating
visible but limited legal pathways. ePacthighlights that ‘Safe channels
to oer protection to those in need remove the incentive to embark on
dangerous journeys to reach Europe, as well as demonstrating solidarity
with third countries hosting refugees. Legal migration can bring benet
to our society and the economy’ (European Commission, 2020: 22). In
practice, these are eectively countermeasures intended to legitimise
exclusion rather than open doors. As noted, throughout thePactand
other EU documents,sedentarism should be the default; mobility the
exception. Yet pathways are a necessary part of the promise available
to those who meet the right, restrictive criteria. ose who behave
properly can take this road. But most cannot. ose moving via other
means become marked, stigmatised. As thePactnotes, “developing legal
pathways should contribute to the reduction of irregular migration”
(European Commission, 2020: 23). In reality, it will exacerbate it by
rendering almost all moves irregular.
24.4 Monitoring as moral policing
e EU aims to predict, quantify and publicise each African move.
Each time someone moves (or even contemplates doing so) without
authorisation it reinforces the appearance of Africans’ morally com-
promised lawlessness and justies further intervention. To do this, the
EU is working with partners tostrengthen its surveillance of Africans
278 24. Containment Development and Africa’s Time-Space Trap
(Fallon 2020), their behaviour and their moral adherence. New research
centres are part of this strategy as arehigh tech solutions and informa-
tion systems (CORDIS, n.d. a). One of these, ROBORDER (Roboborder,
n.d.), is an almost nine-million-euro eort to develop “a fully functional
autonomous border surveillance system with unmanned mobile robots
including aerial, water surface, underwater and ground vehicles, capable
of functioning both as standalone and in swarms, which will incorpo-
rate multimodal sensors as part of an interoperable network.” is and
similar eorts are essential to its chronoscopic project. As thePactnotes,
“A seamless migration and asylum process needs proper management
of the necessary information…An upgraded Eurodac would help to
track unauthorised movements, tackle irregular migration and improve
return.” Elsewhere (European Commission, 2020: 12-13) thePactargues
that “Interoperability will connect all European systems for borders,
migration, security and justice, and will ensure that all these systems
‘talk’ to each other, that no check gets missed because of disconnected
information, and that national authorities have the complete, reliable and
accurate information needed.”
e Pact’scurrent proposals complement signicant investments
in census oces, NGOs and university research centres (Barana and
Toaldo, 2016), which will generate information on African migration
like never before.But this is knowledge with a purpose – to regulate, to
promote sedentarising interventions and to naturalise the desire to stay
xed in place and out of global time. Indeed, to naturalise these eorts,
the EU is sponsoring dozens of programs aimed atlocalising Africans’
future imagination: through education and advocacy African youth are
instructed that migration is a betrayal of nation and family (IOM, 2019).
e MIRROR project (Migration-Related Risks caused by mis-
conceptions of Opportunities and Requirements) aims to identify and
‘correct’ African views about Europe’s potential (CORDIS, n.d. b). ese
campaigns are set to continue as “Tools such as strategic communica-
tion will be further deployed, providing information on legal migration
opportunities and explaining the risks of irregular migration, as well as
countering disinformation” (European Commission, 2020: 20). For those
who still wish to move, an assemblage of surveillance and violence will
keep them in place.
279
Loren B Landau and Iriann Freemantle
24.5 The illusory lure of futures elsewhere
In disingenuously dangling a global and mobile future to Africans willing
to mould themselves into externally dened parameters of moral respect-
ability, the EU asserts a form of temporal, pastoral power over would-be
African migrants. Adherence to immigration regulationsauthored and
oen imposed by the EU,together with a demonstrated commitment to
family, community and country mark one’s suitability to enter a global
future (see Adam and Trauner, 2016). But meeting these legal and moral
standards eectively means building a life dedicated to ‘development at
home’. It is founded on a fundamental irony: only Africans willing to
suppress mobility desires and adhere to EU-authored legal and social
moralities can access the fruits of the EU’s prosperity. Conict and dis-
placement are but further evidence of Africa’s (and Africans’) propensity
to violence – a moral failing that can only be rectied through particular,
place-bound political and social institutions.
It is important to note that contrary to analyses positing restric-
tive migration policies as betraying the liberal universalism on which
EU polities and futures are founded, the Pact positions ‘migration
management’ as an integral part of its reproduction. Warding o
itsown‘isolation and divisions’ and ensuring its own ‘freedom, protec-
tion and progress’ (Macron, 2019), it eectively imposes on Africa the
former and denies it the latter. It justies raising borders and external-
ising its project of socialisation and subjectication so that in the future it
may eventually allow ‘in’ the threatening, African ‘other’.
280 24. Containment Development and Africa’s Time-Space Trap
References
Adam, I and F. Turner. (2016). ‘Ghana and EU migration policy: studying
an African response to the EUs externalisation agenda,’ Chapter 14
in S. Carrera, J. S. Vara and T. Strik (eds.), Constitutionalising the
External Dimensions of EU Migration Policies in Times of Crisis. Elgar
Online (https://www.elgaronline.com/view/edcoll/9781788972475/9
781788972475.00022.xml).
Barana, L. and M. Toaldo. (2016). The EU’s migration policy in Africa:
five ways forward. European Council on Foreign Relations, 8
December 2016 (https://ecfr.eu/article/commentary_the_eus_
migration_policy_in_africa_ve_ways_forward/).
Brachet J. (2018). Manufacturing Smugglers: From Irregular to Clandes-
tine Mobility in the Sahara.e ANNALS of the American Academy of
Political and Social Science. 676(1): 16-35.
CORDIS (n.d. a). ‘Autonomous swarm of heterogeneous RObots for
BORDER surveillance,’ Horizon 2020 (https://cordis.europa.eu/
project/id/740593).
CORDIS (n.d. b) Undated. ‘Migration-Related Risks caused by miscon-
ceptions of Opportunities and Requirement,’ Horizon 2020 (https://
cordis.europa.eu/project/id/832921).
Curzi, C. L. (2016). “e Externalisation of European Borders: Steps and
Consequences of a Dangerous Process.” Open Migration, 12 July 2016.
European Commission (2020), Communication from the Commission to
the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions on a New Pact
on Migration and Asylum, COM(2020) 609 nal, Brussels, 23.9.2020.
European Union. (Undated). ‘EU Value’, https://ec.europa.eu/compo-
nent-library/eu/about/eu-values/.
Fallon, K. (2020). ‘UN warns of impact of smart borders on refugees:
‘Data collection isn't apolitical’. e Guardian, 11 November (https://
www.theguardian.com/global-development/2020/nov/11/un-warns-
of-impact-of-smart-borders-on-refugees-data-collection-isnt-apolit-
ical).
Freemantle, I. and L.B. Landau, (2020). ‘Europe, African Migration, and
the Timespace Trap,’ Geopolitics. https://doi.org/10.1080/14650045.2
020.1859479.
281
Loren B Landau and Iriann Freemantle
International Organisation for Migration (IOM). 2019. Student-Led Club
Helps Raise Awareness on Irregular Migration in Ghana. Medium.
https://medium.com/@UNmigration/student-led-club-helps-raise-
awareness-on-irregular-migration-in-ghana-3745da2356.
Landau, L.B. (2019). ‘A Chronotope of Containment Development:
Europe’s Migrant Crisis and Africa’s Reterritorialization,’ Antipode
51(1): 169-186.
Landau, L.B. and C.W. Kihato. (2019). ‘e Future of Mobility and
Migration Within and From Sub-Saharan Africa,’ Foresight Reec-
tion Paper. Brussels: European Policy Analysis and Strategy System
(https://espas.secure.europarl.europa.eu/orbis/node/1310).
Macron, E. (2019). For European Renewal. Speech Published on Elysée,
14 March (https://www.elysee.fr/emmanuel-macron/2019/03/04/
for-european-renewal.en).
Natale, F., S. Migali, and R. Munz. (2018). ‘Many More to Come?
Migration from and within Africa,’ EU Science Hub. Brussels: Pub-
lications Oce of the European Union (https://ec.europa.eu/jrc/en/
publication/eur-scientific-and-technical-research-reports/many-
more-come-migration-and-within-africa).
Niles, Mark, (2010). ‘Pre-empting Justice: Precrime in Fiction and in
Fact,’ Articles in Law Reviews & Other Academic Journals. 1183
(https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?arti-
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Roboborder. (Undated). Project Website: https://roborder.eu/the-pro-
ject/aims-objectives/.
Ruy, D. and E. Yayboke. (2020). ‘Deciphering the European Union’s New
Pact on Migration and Asylum,’ Brussels: Centre for International and
Strategic Studies (CSIS), 29 September (https://www.csis.org/analysis/
deciphering-european-unions-new-pact-migration-and-asylum).
25. The New Pact on Migration
and Asylum and African-European
Migration Diplomacy
Andrew Geddes and Mehari Taddele Maru
25.1 Introduction
While labelled as aNew Pact on Migration and Asylum, there is much
within the European Commission’s proposals as they relate to the
‘external’ dimension of migration and asylum policy that continues to be
consistent with a direction of travel established during the 1990s when
the EU looked towards closer cooperation with non-member states.
is external dimension has become particularly relevant in relation
to migration from African countries and an explicit recognition that
the attainment of EU objectives requires working closely with African
governments and African regional organisations.
In this contribution we draw from a recent working paper that we
co-authored for the Migration Policy Centre at the European University
Institute to consider the implications of the Pact for ‘migration diplomacy’
as it relates to migration relations between African and European gov-
ernments and regional organisations (Geddes and Maru, 2020). We
also change the focus from the EU perspective and consider the views
of African governments and regional organisations in the context of
‘migration diplomacy’ and the associated transnational dynamics.
ese considerations are urgent not only in the context of the Pact but
also in relation to ongoing challenges (displacement from Ethiopia being
the most recent) and also the underlying assumptions that inform EU
thinking more generally on migration. ere is a long-standing tendency
283
Andrew Geddes and Mehari Taddele Maru
for the EU and its members to view Africa as a potential source of large-
scale migration to the EU where relative inequalities of income and
wealth, the eects of conict between and within states and demographic
changes are compounded by the consequences of the climate crisis and
are then seen as sources of migration pressures on the EU (de Haas, 2007).
is baseline assumption is important because it has played a substan-
tial role in driving EU actions to tighten external border controls and to
develop agreements with non-EU countries with the purpose of reducing
ows towards the EU or dealing with ‘root causes’ (Geddes, 2021).
In 2017, in its White Paper on the Future of Europe (WPFE) the
European Commission outlined visions of the EU’s future development
(CEC, 2017). As the WPFE puts it, ‘the pressures driving migration will
also multiply and ows will come from dierent parts of the world as
the eects of population growth, widespread tensions and climate change
also take hold’ (ibid.: 11). Strikingly, while migration for work, family
reasons and study remain key drivers for ows to the EU, the reference
in the Commission’s WPFE is to forms of migration shaped by crises –
poverty, war, and climate change.
is kind of thinking provides an important backdrop for the devel-
opment of diplomatic relations between the EU and African countries
that, from an EU perspective, is driven by perceptions of crises of varying
kinds and then designed to stem ows from Africa to Europe. It is, of
course, the case that migration from Africa is not a simple unidirectional
move towards the EU, but there is concern among EU governments about
the potential for large-scale ows. Whether accurate or not, such percep-
tions have powerful eects.
25.2 Migration diplomacy
Migration has become a subject for diplomatic activity and assumed
a more prominent place in the foreign policy agendas of African and
European states, particularly in the form of formalised, multilateral
platforms for migration diplomacy that bring together a wide range of
state and non-state actors. Adamson and Tsourapas (2018: 115-16) show
how strategies of migration diplomacy are shaped by states’ economic
and security interests with the use of ‘diplomatic tools, processes, and
procedures to manage cross-border population mobility’ and pursue
these interests. Tools of migration diplomacy can include bilateral and
284 25. The New Pact on Migration and Asylum and African-European Migration Diplomacy
multilateral agreements and ‘arrangements’ not qualifying as legally
binding instruments such as the Global Compact for Migration. A key
focus of these diplomatic processes will be on capacity-building and on
persuasion, which is why the ideas that underlie policies are important
because they inuence the ways in which capacity to attain the objectives
of the agreement or arrangement is built.
We now focus very specically on African-European migration
diplomacy to consider the ways in which it is constituted as well as some
of the gaps. Addressing these gaps can be a way to build more eective
partnerships by enabling a wider range of voices to be heard and for
non-EU perspectives on policy challenges to be more central to debate.
e adoption process of the GCM and GCR presented Africa with
a unique opportunity not only to articulate and share common priori-
ties, opportunities and challenges but also to arm its collective resolve
to play its part in building an eective global migration partnership.
Coming together as 55 countries representing a broad spectrum of stake-
holders, Africa’s contribution to the GCM enabled Africa’s priorities and
demands to be conveyed to the international community in a well-de-
ned and well-communicated manner.1More importantly, Africa used
the consultation process to demand that the international community
guarantee the protection of fundamental human rights of migrants,
including those from Africa. Ecient and sustainable migration
governance architecture is unthinkable without the active participation of
national and local authorities and local communities in African countries.
e multilateral consultations on the formulation of the Global Compacts
helped Africa to focus on local, national and continental partnerships and
transformative capabilities for fair and eective migration governance
within Africa. Crucially, African countries, through the AU and RECs,
viewed the GCM not as an end in itself but as a means for building a
progressive migration governance partnership at global and continental
1 Africa’s concerns were communicated at the 2018 international conference
that led to the GCM; to the UN Economic Commission for Africa (UNECA)
acting jointly with the AUC; and to other UN agencies such as the Interna-
tional Organization on Migration (IOM) and the International Labour Orga-
nization (ILO), as well as to RECs.
285
Andrew Geddes and Mehari Taddele Maru
levels including with the EU.2
at said, due to power asymmetries between African and European
actors, ‘participation’, ‘consultation’ and ‘dialogue’ on their own are not
enough because they can just mean meetings without substantive action
on the ground. Participation alone rarely leads to outputs and impacts.
Attention must be paid to a shared strategic vision and to the develop-
ment and implementation of strategic migration governance at local
level. us far, African-European migration diplomacy has not led to
strategic migration governance in Africa. Current African approaches
to migration tend to lack a clear and comprehensive policy direction
that reects the national priorities and interests of those same African
countries. Instead, there is a focus on the criminal justice system, with the
emphasis on irregular migration, refugees and the prosecution of traf-
ckers and smugglers through legislation. A more strategic approach can
help shi away from migration management to migration governance
with the potential to address the securitization of borders, the criminal
approach to most migration-related public work and an undue focus on
the negative aspects of migration.
25.3 Strategy first
Strategic migration governance requires not only the development of
strategy but also identication of where responsibility for implementation
lies. States will retain primary responsibility for stability and the provision
of decent living standards meaning that responsibility lies primarily
with national governments supported or enabled by sub-regional and
regional organisations working with a range of other actors including
international organisations and civil society. States bear responsibility for
protecting their citizens and are expected to institute normative, insti-
tutional, collaborative and nancial frameworks for migration govern-
ance. Hence, assisted by the international community, it is axiomatic that
African countries should be held responsible for providing stability and
essential economic delivery for decent living standards.
is also requires that strategic migration governance has a per-
2 UNECA, Global compact consultative meeting agrees Africa needs to
drive and won migration narrative, October 31, 2017, available from-
www.uneca.org/stories/global-compact-consultative-meeting-agrees-afri-
ca-needs-drive-and-own-migration-narrative(accessed 2 November 2017).
286 25. The New Pact on Migration and Asylum and African-European Migration Diplomacy
spective that looks to the medium and longer terms. Clearly, the chal-
lenges related to migration are unlikely to be resolved – and may actually
be worsened – by short-term containment strategies at the borders of
countries of origin, transit and destination. African-European migration
diplomacy should go beyond a response to irregular migration and dis-
placement. Instead, it is necessarily linked to the African development
agenda at national, local and international levels. e consequent social
stability would make it possible to address the causes, triggers and accel-
erators of irregular migration and displacement. ese require foresight
and long-term strategic engagement. Unless governments get the fun-
damentals of migration governance right, current engagement with the
EU will remain on weak foundations, and always brittle. A key problem
is that African governments have yet to come up with a necessary degree
of political determination and leadership for eective implementation
mechanisms at national and regional levels. ere is an urgent need for a
nationally-owned, politically-led migration governance agenda. Eective
migration governance cannot be achieved without acquiring and building
the necessary capabilities to implement.
An argument can be made that priority in developing African-Euro-
pean partnerships on migration should have been – but was not – placed
on building migration governance structures throughout Africa to
develop comprehensive, stand-alone policies, as well as provide strategic
thinking and clarity about the benets and costs of migration. To do this
requires a normative, institutional and collaborative state framework –
in cooperation with non-state actors – that could facilitate voluntary,
safe, orderly and legal mobility and a consequent reduction in forced or
irregular migration.
25.4 Articulation of national migration policies
A rst step to building such an institutional architecture could be
national consultative conferences to articulate the policy direction of the
countries at the national level dealing with existing normative frame-
works on migration at the level of the African Union and Africa’s regional
economic communities.Given the transnational nature of migration,
eective migration governance requires well-coordinated, coherent and
harmonised national and regional collaboration. Such collaboration
should extend beyond organisations and Member States to the develop-
ment of bilateral, regional and global cooperation.
287
Andrew Geddes and Mehari Taddele Maru
25.5 Diplomats in migration governance
Diplomacy is also necessary to ensure the protection of migrants’ and
refugees’ rights and coordination among those involved, including the
migrants themselves and the governments in their countries of origin,
transit and destination. Regional frameworks and processes foster
harmonised policies and shared minimum standards for consistency,
cooperation and complementarity among Member States. Diplomacy
can also facilitate harmonised policies at regional and national levels,
help in the ght against criminal networks involved in human traf-
cking and smuggling and protection of refugees and the human rights
of migrants.All this is likely to require greater numbers of migration
diplomats including labour attachés – specically more diplomats trained
in migration governance.
Diplomats are also needed in the negotiation and implementation
of agreements aimed at the facilitation of regional free movement and
labour migration, which are unthinkable without regional policy har-
monization. is is supported under both the GCM3 and GCR. is,
at the regional level, could also foster complementary initiatives such
as training, education and job market matching with an impact on
migration within and outside Africa. In the Horn of Africa, for example,
the Intergovernmental Authority on Development (IGAD) has initiated
regional- and national-level processes, all of which require dynamic
migration diplomacy programmes staed by diplomats and ocers who
understand migration governance.
25.6 Progressive norms, regressive implementation
e AU and EU have long stated their commitment to a normative
framework, but while progress in norm-setting has been relatively rapid,
implementation has been slow. Practical steps are required to provide
3 See labour mobility under GCM objectives 5 (Enhance availability and exi-
bility of pathways for regular migration), 6 (Facilitate fair and ethical recruit-
ment and safeguard conditions that ensure decent work) and 18 (Invest in
skills development and facilitate mutual recognition of skills, qualications
and competences) and GCR on labour mobility paragraph 42 (A multi-stake-
holder and partnership approach), paragraph 95 (Complementary pathways
for admission to third countries).
288 25. The New Pact on Migration and Asylum and African-European Migration Diplomacy
resources for implementation. African states generally still lack the will
(as manifested by low levels of budgetary allocation), determination,
institutional framework and resources necessary to govern migration
eectively. Putting into eect those policies advanced in AU-EU policy
documents demands coherent, consistent and comprehensive planning,
and resourcing of implementation. Governance and institutional inad-
equacies are attributable primarily to the meagre resources allocated to
migration governance in national budgets, and challenges will remain for
the foreseeable future unless partners devote larger resources to plug gaps
in funding, address institutional weaknesses and help implement the rec-
ommendations advanced in AU-EU policy documents.
25.7 Implementation is local
‘Localization’ and local ownership are likely to be crucial implementation
mechanisms, a fact recognised in both the GCM and GCR. Migration
diplomacy can be a valuable tool for eective local governance of
migration in border areas. Building an ecient and sustainable migration
governance architecture is unimaginable without the active engage-
ment and devolution of powers, including nancial, to national and
local authorities and engagement with local communities. Community
engagement means considering the particularities of localities and com-
munities, their emerging issues and the priorities of migration source
hotspots and border areas. To avoid the common mistake of ‘one size ts
all’ or EU-centric ‘our size ts all’ programmes, migration policy requires
decentralised planning and implementation to enable migration govern-
ance to recognise the necessity of embracing proximity, local expertise
and legitimacy and to tailor interventions to local contexts. Localiza-
tion can encourage local entities to initiate their migration management
proposals and potentially help to reduce the negative impacts of secu-
ritized migration management and excessive border controls that have
substantially undermined the other useful components of cross-border
trade, including signicant opportunities for peace, mobility, integration
and regional prosperity.
A productive path for future AU-EU migration diplomacy would
be a focus on localising the migration agenda and devolving migration
governance with greater involvement of local populations, allocation of
resources and decision-making powers by local authorities as provided
289
Andrew Geddes and Mehari Taddele Maru
under GCM and GCR4 – co-opting them as vital participants in nding
solutions to the challenges of migration governance. is includes cross-
border areas. Clearly, decentralisation demands the capacity to implement
and discharge the responsibility that can be developed in the context of
enabling the state and local authorities to take responsibility for the gov-
ernance of migration in the regions and localities they administer.
e EU and other international actors should not be encouraging
– or funding – national systems that coercively replace local priorities
and disempower local authorities. Migration diplomacy should have as
its objective the aim of endowing local authorities with the capacity to
govern migration eectively in their areas.Many African countries need
a strategy-led migration governance, replacing the current legislation-led
migration management. ey also need clarity in strategic vision and
building the requisite capabilities for implementation at local, national
and regional levels. A corollary of this is the urgency of a shi of mission
for the EU’s migration partnership with Africa which is not clearly spelt
out in the new pact.
4 See GCM’s Whole of Society approach and Objective 17 (Eliminate all forms
of discrimination and promote evidence-based public discourse to shape
perceptions of migration); Objective 15 (Provide access to basic services for
migrants); Objective 16 (Empower migrants and societies to realize full in-
clusion and social cohesion); Objective 8 (Save lives and establish coordi-
nated international eorts on missing migrants); and paragraphs 40—54 on
implementation and follow-up, and GCR under paragraphs 3, 37, 62, 67 and
97 all of which require the full engagement of local authorities and commu-
nities.
290 25. The New Pact on Migration and Asylum and African-European Migration Diplomacy
References
Adamson, Fiona B., and Gerasimos Tsourapas. 2018. “Migration
Diplomacy in World Politics.” International Studies Perspectives20
(2): 113–28. https://doi.org/10.1093/isp/eky015.
CEC. 2017. “White Paper on the Future of Europe.” Brussels.
De Haas, Hein. 2007. “e Myth of Invasion: Irregular Migration from
West Africa to the Maghreb and the European Union.” Oxford: Inter-
national Migration Institute.
Geddes, Andrew. 2021.Governing Migration Beyond the State. Oxford:
Oxford University Press.
Geddes, Andrew, and Mehari Taddele Maru. 2020. “Localising Migration
Diplomacy in Africa?: Ethiopia in its Regional and International
Setting.” Working Paper. European University Institute. https://
cadmus.eui.eu//handle/1814/68384.
291
26. When Principles Are Compromised:
EU Return Sponsorship in Light of the
Un Global Compacts
Lina Vosyliūtė
26.1 Background
Some‘rebelling’ EU Member States have been challenging the principle
of equal solidarity and fair responsibility-sharing over asylum seekers
and refugees for the last ve years (Frasca and Gatta, 2020). In response,
the new European Commission came up with acompromised solutionin
the new Pact on Migration and Asylum (Carrera, 2020), attempting to
get the same rebels on board by blending a political priority to increase
the EU’s return rate (a policydubbed ‘return at any costs’ (Eisele et al.,
2020)), with the so-called ‘new forms of solidarity’ (European Commis-
sion, 2020a).
Return sponsorship is the new option on the menu.e proposed
directive on asylum and migration management (European Commis-
sion, 2020a, Article 55, para. 1)outlines: “a Member State may commit
to support a [beneting] Member State to return illegally staying third-
country nationals by means of return sponsorship”. In essence, the ‘new
approach’ allows those who are unwilling to show heartfelt solidarity in
relocating asylum seekers from frontier EU Member States (labelled as
‘beneting Member States’), to oer ‘half-hearted’ solidarity. It seems that
a committed marriage of solidarity (in sickness and in health,in poverty
and in wealth…) within the Union under Article 80 of the TFEU, has
been replaced with a ‘friends with benets’ arrangement, referred to as
the oxymoronic phrase ‘mandatory exible solidarity’.
292 26. When Principles Are Compromised: EU Return Sponsorship in Light of the Un Global Compacts
e ‘sponsoring’ Member State (e.g. Hungary or Poland) would
arrange returns of certain nationalities directly from and in close coop-
eration with the ‘beneting’ or frontier EU Member States (e.g. Greece
or Italy). e assumption is that the sponsoring Member State would use
their bilateral agreements with third countries to push ‘voluntary’ returns
or deportations. If both countries do not manage to return a person
within eight months (under normal circumstances), such a person would
be ‘relocated’ to continue the return procedure directly from the spon-
soring country. is inevitably prompts the question: was it realistic
for the European Commission and the EU Member States to count on
governments such as the Visegrad group (the Czech Republic, Hungary,
Poland and Slovakia) to sponsor returns of irregular migrants? More
importantly, how can the EU guarantee vis-à-vis third countries that such
returns will be implemented in line with EU and international law?
I argue that the ‘sponsored returns’ strategy is neither a solidarity-ad-
vancing nor an evidence-based strategy. It stands at odds with the EU’s
commitment to itsown Better regulation guidelines (European Commis-
sion, 2017). Furthermore, this ‘compromised solution’ does not build on
lessons learned from carrying out theEU readmission agreementsand
arrangements with third countries (Carrera, 2016)or implementingthe
EU return directive (Eisele et al., 2020).
Firstly, governments that do not uphold internationally agreed and
legally binding human rights standards cannot be seen as trustworthy
partners among third countries – especially in the sensitive area ofreturns
and readmissions (Carrera, 2016). e EU is compromising the standards
and principles agreed upon with the rest of the world just two years ago
within the scope of the United NationsGlobal Compact for Safe, Orderly
and Regular Migration (GCM) (UN General Assembly, 2018a) and
theGlobal Compact on Refugees(GCR) (UN General Assembly, 2018b).
Secondly, the Pact’s proposal for ‘sponsoring returns’ requires an even
higher degree of trust among the EU Member States of the rst arrival
of asylum seekers and other migrants and countries ‘sponsoring returns’
– those same countries who have not agreed to cooperate with reloca-
tions in the rst place. Many things could go wrong here without making
explicit the EU’s internal and external cooperation principles as well as
ongoing independent monitoring.
Finally, we must grapple with the reality that is the mishandling of
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Lina Vosyliūtė
returns by ‘sponsoring countries’. e Commission’s (2018a) proposal
to recast the EU Return Directivehas introduced a ‘border procedure’,
lowered procedural safeguards, and encouraged returns to be based on
informal bilateral agreements in the absence of post-return monitoring
(Vosyliūtė, 2019a). It also foresees that EU institutions and agencies will
get even more involved in handling returns and readmissions.
e ‘return sponsorship’ increases the likelihood of fundamental
rights violations while simultaneously diusing accountability across the
‘beneting’ Member State, ‘sponsoring’ Member State and the relevant
EU agencies and institutions. If such breaches are enabled by the EU
return policy via laws, policies, funding or operations, the glaring prob-
lematic is: who will be held accountable for the violations of fundamental
rights?
26.2 New EU vocabulary: what ‘solidarity’ means in the
EU
e Court of Justice of the European Union (CJEU) (2020a) in joined cases
of Commission v. Poland, Hungary and the Czech Republic(C-715/17,
C-718/17 and C-719/17) has conrmed that the principle of solidarity is
a legally binding obligation under Article 80 of the TFEU. Nevertheless,
instead of applying political pressure to implement this CJEU decision,
the European Commission (2020b) decided to reformulate what ‘soli-
darity’ means in the EU political vocabulary by coining a new oxymoron,
namely ‘mandatory exible solidarity’ in theirNew Pact on Migration
and Asylum,launched on 23 September 2020. e new approach to soli-
darity has been detailed in proposal for directive on asylum and migration
management (European Commission, 2020a) and theCommission Sta
Working Document accompanying it (European Commission, 2020c).
e EU Member States were given a new menu with several options.
ey could choose between ‘sweet and salty’ – whether to show solidarity
in relocating asylum seekers and/or in sponsoring return. e Com-
mission expected that the Visegrad group would take the latter bait. In
some instances, the Commission (2020c) also allowed for a ‘dessert’ – to
make other contributions, for example in capacity building, operational
support or an external dimension.
e European Commission (2020c) has foreseen that once the
294 26. When Principles Are Compromised: EU Return Sponsorship in Light of the Un Global Compacts
exible aspect fails, ‘compulsory solidarity’ via a ‘corrective mechanism’
would kick in, aer a long back-and-forth procedure. Nevertheless, the
Commission le implementation of ‘sponsored returns’ for a Member
State-run show with ‘built-in exibility’. For instance, “Member States
would have to submit Solidarity Response Plans indicating which sol-
idarity contributions they will make.” e Commission (2020c) would
simply cross-check these submissions against the distribution key based
on 50% GDP and 50% population.
e Commission (2020a) hasproposeda time-frame for sponsoring
Member States to carry out a return: “a period of 8 months (4 months
in situation of crisis)”. If this period has expired, the person concerned
would need to be relocated to a sponsoring country to continue
return procedures from that territory. e frontier EU Member States,
namelyGreece, Italy, Malta and Spaincalled to reduce this time-frame
to 6 months or even 3 months (Nielsen, 2020a). ose, labelled as ‘ben-
eting ones’ were not convinced. e frontier Member States, dubbed
theMediterranean axis EUROEFE-Madrid (2020), voiced their concerns
over the lack of ‘mandatory solidarity’ and called for greater clarity
(Nielsen, 2020b)in assigning responsibilities on ‘return sponsorships’.
One of their concerns related to their liability for (in)actions of the
sponsoring country. e proposed directive on asylum and migration
management(European Commission, 2020a, Article 55: para. 4) foresees
that “ese [return sponsorship] measures shall not aect the obligations
and responsibilities of the benetting Member State laid down in [EU
return] Directive 2008/115/EC.”
On the surface, this seemed to at least benet some ‘rebelling’ EU
Member States playing ‘bad cop’ – quickly brokering bilateral deals and
deporting irregular migrants on behalf of another EU Member State
without fear of public shaming or repercussions from human rights
bodies. Such sponsoring Member States would be seen as improving EU
return rates, while maintaining anti-migrant sentiments in front of their
voters.
Instead, the day aer the Commission launched the New Pact on
Migration and Asylum, the Hungarian and Polishprime ministersrushed
to Brussels to denounce any mandatory aspect of ‘solidarity’ in the EU
return policy on behalf of the Visegrad bloc (Brzozowski, 2020). ey
knew too well that the task ahead would not be an easy one. Such
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Lina Vosyliūtė
‘sponsors’ would need to broker returns with ‘countries of origin’ and ‘safe
third countries’with which they may not have good relations (Carrera,
2016; Cortinovis, 2018; Vosyliūtė, 2019). However, leaving aside a Euro-
centric approach, it may be useful to explore on which bases partners
around the globe could trust them.
26.3 The basis of trust for international cooperation in
the area of returns and readmissions
e international trust-based cooperation in migration and asylum
would require a dierent set of principles be followed than the exible
approaches proposed in the Commission’s New Pact. For instance, in
the area of migration, all cooperating states are seen as equal partners.
ey treat migrants – citizens of another state – with equal dignity and
respect. In the area of asylum, the UN Geneva Convention foresees that
refugees are entitled to international protection andnon-refoulementby
the receiving state because the refugee’s country of origin cannot be
trusted. ese principles were recently reiterated and re-conrmed in
theNew York Declaration of 2016 (UN General Assembly, 2016). It led
to the draing of two UN Global Compacts in 2018 – one on refugees
and the other on migration (UN General Assembly, 2018b and 2018a
respectively).
Both Compacts upheld previously existing international and regional
human rights standards on returns. e GCR proclaimed that states
should aim at “durable solutions” (UN General Assembly, 2018b, para.
89). e GCR also called states “to expand access to third-country
solutions and to support conditions in the country of origin for return
in safety and dignity”. e GCR promotes “enabling conditions for
voluntary repatriations” as opposed to “forced returns” (UN General
Assembly, 2018b, para. 87). Similarly, Objective 21 of the GCM (UN
General Assembly, 2018a) emphasises the commitment to “facilitate safe
and dignied returns” and “to guarantee due process, individual assess-
ment and eective remedy” to protect from ‘refoulement’.
e few EU governments who abstained or voted against the Global
Compact for Migration (GCM) demonstrated a political choice to depart
from already internationally agreed standards (Carrera et al., 2018a).
e GCM hasnot been signed or ratied by nine EU Member States:
296 26. When Principles Are Compromised: EU Return Sponsorship in Light of the Un Global Compacts
the Czech Republic, Hungary and Poland (voted against the GCM);
Austria, Bulgaria, Italy, Latvia and Romania (abstained) and Slovakia
(did not attend this UN General Assembly meeting to adopt the GCM)
(Vosyliūtė, 2019b).
Hungary is also not a party to the Global Compact on Refugees (GCR).
While 181 countries voted in favour, Hungary and the United States were
the only two nations that voted against the GCR. us, the Hungarian
government demonstrated a clear stance of unilateralism and departed
further from non-negotiable standards undermining its national con-
stitution and the Common European Asylum System (CEAS). Such a
departure of EU Member States is somewhat anecdotal sinceFerris and
Donato (2019)argue that the EU has initiated this process to nd a global
solution to the so-called ‘European refugee crisis’.
e misunderstanding shared by the Hungarian government and
others who haven’t approved the GCM is that they are not obliged to
comply with international and regional human rights standards. e
GCM summarises existing commitments in international human rights
and labour law without adding any new legal obligations. It does, however,
propose an evidence-based and human-centred narrative around human
mobility. e EU delegation in New York and the European Commis-
sion have conrmed that theGCM was reecting EU’s acquis (Vosyliūtė,
2019b). e Commission (2018b) even put forwarda proposal for the EU
Council to approve the GCM on behalf of the Union(it was later revoked
due to lack of support).
us thecontroversy around the GCMis a clear indicator of how
these Member States are also departing from EU treaty principles of
the rule of law, fundamental rights and democratic accountability
(Vosyliūtė, 2019b). e European Union is likely loathe to admit that
such Member States are invariably pushing the Union’s migration and
asylum policiesfurtherawayfrom the EU’s founding values and those
agreed in Global Compacts.
In spite of the concessional wording,the Visegrad countries initially
have not agreed to ‘mandatory exible solidarity’, perhaps because they
know too well that returns and readmissions require international coop-
eration and not unilateralism. Indeed,Carrera (2016)nds that for the
sensitive area ofreadmissions, trust and international reputation may be
crucial for the much sought-aer ‘eciency’ of returns.,Carrera (2016)
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Lina Vosyliūtė
arguesthat “identication procedures in light of the EU’s Readmission
Agreements, present many challenges and require veriable and
rebuttable (not blind) trust-based international cooperation with third
countries”.
e New EU Pact on Migration and Asylum encourages Member
States to ‘pool’ their bilateral agreements and informal arrangements – as
it regards who could return which third country nationals. e Commis-
sion had tested this approach when Member States were cherry-picking
asylum seekersrescued at sea for their potential returnsbased on their
nationalities (Carrera and Cortinovis, 2019). While this approach has
worked on a small scale, the dynamics in bilateral agreements and
arrangements are far more complex.
For instance,Cassarino and Marin (2020) arguethat although there
are “320 bilateral agreements linked to readmissions” concluded by EU27
and third countries, “bilateral cooperation on readmission [cannot] be
viewed as an end in itself, for it has oen been craed onto a broader
framework of interactions.” Bilateral agreements and arrangements have
stakes on both ends. ey are unlikely to become the Trojan horse to
pursue the EU’s self-interested goal to deport all irregularly staying third-
country nationals through the doors of the EU Member State who have
the best relations with the given third country of origin. is would very
likely upset such bilateral relations.
Besides, European countries oen underestimate other competing
priorities with the third countries. For instance, remittances in many
developing countriescontinue to be a far more relevant income source
than development aid (Konte and Mbaye, 2021). ey alsooverestimate
incentives from the EU’s visa policies(Cassarino, 2020). Consequently,
EU-centred readmission agreements or informal deals may also be
implemented half-heartedly by third countries.
Cassarino and Marin (2020) summarise it aptly: “readmission is
inextricably based on unbalanced reciprocities”.Carrera (2016)provides
evidence for how such a top-down approach backres. For instance,
in readmission procedures, mobility of certain nationals is treated as
quasi-criminal activity. us, the country of origin may be less willing
to cooperate in issuing documents as such treatment of its citizens
undermines sovereignty and equal standing in the international arena.
e European Parliament report on return highlights that lack of
298 26. When Principles Are Compromised: EU Return Sponsorship in Light of the Un Global Compacts
cooperation from third countries in identication and documentation
procedures is “one of the main reasons for non-return” (Strik, 2020).
erefore,European Parliament (2020)called “to improve relations with
third countries in a constructive migration dialogue based on equality”
and to aim at “sustainable returns.” Parliament (2020) also criticised
the use of informal bilateral deals, which escape democratic control,
unlike formal EU readmission agreements (EURAs). e latter have
better-dened responsibilities and require ex-ante and ongoing human
rights impact assessments. However, this Commission’s (2020d) list of
EURAsraises serious questions about EU principles, too. For instance,
the latest EU Readmission agreement was concluded withBelarus in June
2020, in the midst of violent suppression of civic protests against the dic-
tatorial regime (EU and Belarus, 2020).
26.4 What is the basis of trust among the EU Member
States cooperating on returns?
e Commission’s (2018a) explanatory memorandum of the proposal
to recast the Return Directivehighlighted the importance of “common
standards and procedures”. However,fundamental rights standards have
been reframed as obstacles for ‘eciency’ of return rates (Vosyliūtė,
2019a).While the Commission was satised with the explanatory memo-
randum, the European Parliament conducteda substitute impact assess-
ment (Eisele et al., 2019) and an implementation assessment of the EU
return directive (Eisele et al., 2020).e latest assessment(Eisele et al.,
2020) concluded that the EU’s return policy is over-relying “on inter-
state trust and the procedural safeguards available to the person prior
to removal or readmission”. ese ndings are in line with the academic
evidence highlighting the importance of veriable trust (see Carrera,
2016; Cassarino and Marin, 2020; Cassarino, 2020).
e Commission’s (2018a) proposal to recast the EU Return
Directive attempted to lower procedural safeguards. For instance,the
European Union Agency for Fundamental Rights (FRA) (2019)
arguedthat no person shall be returned before the negative decision on
asylum application becomes nal. e FRA (2019) raised concerns over
the speed and quality of such decisions, particularly in the context of
border procedure. e border procedure (if approved) would introduce
an alternative return regime with even lower procedural safeguards than
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Lina Vosyliūtė
those proposed in the recast Return Directive (Vosyliūtė, 2019a).
eCommission(2018a) stressed increasing eciency of returns as a
primary reason behind the ‘targeted revisions’ in the proposed directive.
e European Parliament’simplementation assessment of the current EU
Return Directive(Eisele et al., 2020) cautioned that: “To prioritise the
return rate as the primary indicator runs the risk of incentivising ‘return
at all costs’, without taking stock of the full human, foreign relations and
other costs”.
e new EU return policy has been an outcome of a blame-
shiing game among the EU Member States, the European Commis-
sion and Frontex. For instance, the Commission (2018a) stressedthat
“the shortcomings of Member States’ return procedures and practices
hamper the eectiveness of the EU return system.” e EU return policy
has shied towards more coercive approaches over durable solutions
and migrants’ agency (Vosyliūtė, 2019a). e Commission’s ‘targeted
revisions’ are likely to fall short of ‘eciency’ in light of its better regula-
tion guidelines, since ‘eciency’requires an assessment of individual and
fundamental rights impacts (European Commission, 2017).
eEU return policy has been moving further away from the GCM
(Vosyliūtė, 2019b). e EU dra law foresees the EU Member States’
obligation to detain those “at risk of absconding”. Such a political choice
does not encourage investing in alternatives to detention. Detention risks
becoming a default option in the EU, including for minors. As such, the
Commission’s current proposal is incompatible with GCM (UN General
Assembly 2018a) Objective 13 “using detention as a last resort”. Besides,
GCM Objective 7 calls on States to ensure “basic rights”, including pro-
cedural rights, despite the status and “to facilitate access […] to an indi-
vidual assessment that may lead to regular status” to those migrants that
cannot be removed. e Commission’s (2018a) proposal has not reected
these considerations. However,the European Parliament (2020)proposes
an alternative view on return management in the EU.Strik (2020) in her
report argues for including possibilities to regularise non-removable
persons’ status, as it would resolve administrative limbo, would “reduce
vulnerability to labour exploitation and may facilitate individuals’ social
inclusion and contribution to society”.
300 26. When Principles Are Compromised: EU Return Sponsorship in Light of the Un Global Compacts
26.5 When everyone gets involved in returns – who is
responsible for breaches?
As foreseen with the New Migration and Asylum Pact, EU institutions and
agencies will become more involved in handling returns, thus creating a
chain of responsibility. As argued byCarrera and Stefan (2018)the more
players are cooperating without clear mandates and responsibilities the
harder it is to access justice and seek eective remedies.e explana-
tory memorandum of the proposed EU Return Directive (European
Commission, 2018a) highlighted that challenges for ‘ecient returns’
arise from EU Member States’ non-exible interpretation of the current
Return Directive and for third countries that are not keen to readmit
their nationals.
Meanwhile, the European Commission has equipped Frontex with
more power in returns operations. Civil society and some academics
have dubbed it ‘EU’s deportation machine’(Jones et al., 2020). As the
EU’s return agency, Frontex only has a mandate “to support and monitor”
Member States, and decisions on merits (i.e. whether there are risks
ofrefoulement) in return procedures remain the sole responsibility of a
Member State. Frontex – as other EU agencies – should be accountable
to both EU institutions, EU supervisory authorities and courts. However,
the increasing role of Member States in the management board once
again blurs the lines of accountability (Carrera and Stefan, 2018; Jones et
al., 2020). While Frontex is required to monitor the treatment of migrants
during deportations, there is no subsequent post-return monitoring to
ensure that a returnee was re-integrated and did not experience any
further violations of human rights (Jones et al., 2020). So: how would
Frontex would go about following instruction that is ‘international and
EU law’ non-compliant? Mishandling of returns by ‘sponsoring countries’
is already an inconvenient reality. e following case study illustrates the
point of likely controversies.
In May 2019 Hungarian authorities attempted to return an Afghani
family in contradiction with EU asylum acquis and international laws
(rope, 2019). e watchdog civil society applied for interim proce-
dures at the European Court of Human Rights and managed to suspend
deportation of the family. United Nations High Commissioner for
Refugees (UNHCR)(2019) raised public concerns for the grave viola-
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Lina Vosyliūtė
tions of the Geneva Convention since Hungarian authorities have not
considered their asylum claims, declaring them ‘inadmissible’. Media
(rope, 2019; Pal, 2019; Aljazeera, 2019) have vividly depicted this
episode, reportingdeprivation of food and other inhuman and degrading
treatment, including intimidation with the return procedure to Afghan-
istan so as to force people to turn back to Serbia. Eleven of them did so.
In this case, the Hungarian authorities used the EU’s involvement to
legitimise such returns. e Hungarian Immigration and Asylum Oce
(IAO) said tojournaliststhat “the measures were part of a joint operation
with European border and coastguard agency Frontex, in which 39
people were own to Afghanistan altogether” (Aljazeera, 2019). Later,
Frontex refused to deport some Afghani nationals due to pressure from
civil society and human rights bodies, however human rights violations
such as deprivation of food or overuse of violence have continued (Jones
et al., 2020; Statewatch, 2020; ECRE, 2020).
In January 2021, Frontex announced “suspending operations in
Hungary” (Nielsen, 2021a). According to the media, Frontex became
concerned that despite the CJEU decision in December 2020, Hungarian
authorities pushed out morethan 4400 people without assessing their
asylum claims (Nielsen, 2021a). e Frontex Consultative Forum,
composed of civil society representatives,has been calling for years not to
support Hungarian authorities in returns (Jones et al., 2020; Statewatch,
2020). eEuropean Parliament’s Committee on Civil Liberties, Justice
and Home Aairs (LIBE) mission reportin 2020reiterated that Frontex is
under obligation to withdraw support in operations where fundamental
rights are not respected. It led to theEuropean Parliament launching an
inquiry into the agency’s activitiesin January 2021 (Nielsen, 2021b). is
episode illustrates that the EU agencies and even EU institutions carry
the ‘chain of responsibility’ whenever human rights violations arise.
‘Return sponsorship’ places EU Member States – especially those that
departed from ‘equal solidarity’ and human rights standards reiterated at
the GCM – at the core of implementing the return decisions made by ‘the
beneting country’. us, such breaches are ‘enabled’ by EU return policy
via laws, policies, funding or operations and it will invoke the Union’s
responsibility via theportable justice approach (Carrera et al., 2018b).
But who would be responsible to dene who is accountable for funda-
mental rights violations if everyone gets involved? A chain of respon-
302 26. When Principles Are Compromised: EU Return Sponsorship in Light of the Un Global Compacts
sibility model could be useful in capturing the direct or indirect roles
of all actors involved in fundamental rights violations during and aer
returns. is could lead to more eective remedies for rights violations
of returnees.
It seems that immense pressure is mounting on the international and
regional human rights bodies, EU supervisory institutions and inde-
pendent‘watchdog’ actors – civil society and journalists (Vosyliūtė and
Chun Luk, 2020). ‘Sponsored returns’ are likely to be brokered and imple-
mented by some Member States where the EU rule of law, fundamental
rights and democratic accountability principles are already compro-
mised.Vosyliūtė and Chun Luk (2020) demonstrated that governments
that fear accountability and liability are curtailing watchdog actors in the
area of migration. Some EU Member States arepolicing and criminal-
isingthose who are trying to uphold EU and international legally binding
principles (Carrera et al., 2019; Vosyliūtė and Conte, 2019; Allsopp et
al., 2020). When principles agreed upon in both Global Compacts and
among the EU Member States are compromised, the EU founding values
become an empty shell rhetoric.
26.6 Three scenarios on how ‘sponsoring returns’ can
backfire
e New EU pact on Migration and Asylum already blurs the lines of
‘who does what?’ (Carrera 2020).I argue that return sponsorship as a
‘new approach on solidarity’ further blurs accountability. e EU return
policy by design creates a chain of responsibility. What follows are three
hypothetical and equally concerning scenarios that illustrate this point.
ey are based on previous experiences with theEU mandatory reloca-
tion schemes (ECRE, 2018)and with theimplementation of EU returns
policy (Eisele et al., 2020), both attempts toexternalise responsibility for
asylum(Carrera et al., 2018b) seekers:
• rst scenario: quick returns to third countries;
• second scenario: ‘sponsoring countries’ overtake pre-return
detention; and
• third scenario – ‘sponsoring countries’ leave the burden of detention
to the ‘beneting countries’.
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Lina Vosyliūtė
First scenario: quick returns to third countries
e New EU Pact on Migration and Asylum foresees that migrants
who could not be deported within eight months in a normal situation
and within four months in a situation of crisis would need to be brought
into a sponsoring country and deported from there. So, a ‘sponsoring
country’ e.g. Hungary would need to proceed speedily with returns, as
otherwise they would risk ending up with irregular and non-removable
migrants from the ‘beneting country’, e.g. Greece.
e speed and lack of oversight of how the return decisions are
made by the ‘beneting’ country and implemented by the ‘sponsoring’
one, would risk violating procedural safeguards, including eective
remedies and the ‘non refoulementprinciple’. Persons would be sent to
third countries with the knowledge and involvement of EU agencies,
regardless of whether they would be ‘safe’ for the person in question (i.e.
LGBTQ+ to Pakistan, where it is a criminal oence) and whether indi-
viduals have any prospect of a dignied, humane and just existence. In
some third countries, returnees face automatic detention, for instance in
Libya; in others they have to pay penalties for ‘unauthorised exit’, as in
Egypt, Morocco, Tunisia and others (Grange and Flynn, 2014).
e rst scenario aims to externalise responsibility and delegate
the containment practices to countries of transit and origin via various
informal bilateral deals and multilateral arrangements that do not
consider human rights impact (Carrera et al., 2018b). Simultaneously,
the EU would lose any political leverage to criticise how such returnees
are treated aer their return, as has happened with similar third country
arrangements, such as in Turkey, Afghanistan or Pakistan. In this
scenario, returnees are le at high risk of human rights violation during
and aer the return procedure, so who would be responsible in courts?
Second scenario: ‘sponsoring countries’ do not manage to complete
returns quickly and thus have to overtake pre-return detention
e second scenario foresees that if ‘sponsoring countries’ (working
in close coordination with ‘beneting countries’) are not successful in
brokering voluntary returns or obtaining valid documents and sending
people to third countries, they would overtake pre-return detention in
their territory. us the ‘concentration of arrivals’ in beneting countries
such as Greece or other EU frontier countries would be replaced by ‘con-
centration of returns’ in sponsoring countries. As discussed above, the
304 26. When Principles Are Compromised: EU Return Sponsorship in Light of the Un Global Compacts
‘return sponsorship’ was invented to bring on board Hungary or other
countries in the Visegrad group that were unwilling to cooperate in relo-
cations. ose same countries were also not willing to recommit to the
international standards in the GCM. Some of themhave poor migrants’
rights record (Council of Europe Special Representative on Migration
and Refugees, 2017; UN Special Rapporteur on migrants, 2021), thus
making the EU vulnerable to inviting another more dangerous situation.
Illegal pushbacks,collective expulsions,torture and other inhuman
and degrading treatmentpractices have already been reported by the
European and international human rights bodies (Council of Europe,
2017; Parliamentary Assembly of Council of Europe (PACE), 2019; Strik,
2019; e UN Special Rapporteur on Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment,2018; UN Special Rapporteur
on human rights of migrants, 2021). ey are likely to escalate further
and give rise to the EU’s complicity in crimes against humanity.e UN
Special Rapporteur on Torture (2018) Nils Melzer has openly warned
that: “personal involvement in shaping, promoting and implementing
policies and practices which expose migrants to torture or ill-treat-
ment may amount to complicity or other participation in crimes against
humanity or war crimes.”
e prolonged detentions of non-removable migrants in sponsoring
countries would risk going in that direction. us, if aM.S.S.v. Belgium
and Greece (European Court of Human Rights, 2011) judgment logic is
applied by the courts, it could already preclude beneting countries to
relocate irregular migrants to certain sponsoring countries due to the
likely fundamental rights violations. Again, how would beneting and
sponsoring country and EU agencies resolve their inter-related account-
ability?
ird scenario: ‘sponsoring’ countries leave the burden of detention to
‘beneting’ countries
Let’s imagine that the ‘sponsoring return’ state does a lousy job of
obtaining documents, nding voluntary return solutions or using its
bilateral deals – and a person is detained for a prolonged period in the
‘beneting country’. Eventually, the sponsoring country would nd oper-
ational or even legal excuses (including on the grounds of EU law), as to
why such individuals should not be relocated to ‘sponsoring’ countries
for return (for example, the health risks in light of the pandemic, public
policy or national security).
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Lina Vosyliūtė
In the past, for instance, the Hungarian authorities have been very
creative in placing obstacles for asylum seekers (coming from Serbia) –
with measures such as accepting applications at only two border crossings
to capping the number of applications at a few people per day. e CJEU
(2020b, para.118), the EU’s highest court in Luxembourg judgement in
Case C-808/18concluded that Hungarian authorities created a “virtual
impossibility of making their [asylum] application”. Such creativity would
likely be revived.
e third scenario leads to lengthier detention and overcrowding
detention facilities and increased risks for inhuman and degrading
treatment in the countries of asylum seekers’ rst arrival. e ‘beneting’
countries would be le alone to carry outillegal pushbacks, pull-backs,
collective expulsions or returns incompatible with the non-refoulement
principle (PACE, 2019; Strik, 2019). e EU institutions would have little
say, since ‘equal solidarity’ and ‘fair responsibility-sharing’ are no longer
the EU’s principles.
In this scenario, the European Commission would be engaging in
attempts to further lower fundamental rights safeguards to accommodate
the situation. e beneting countries would aim to limit democratic
accountability and access to justice for the mistreatment of irregular
migrants. is would lead to greater secrecy, informality and silencing of
any watchdog civil society, independent journalists, supervisory authori-
ties and even courts. In this case, again, clarity is sorely lacking as to who
would be the accountable one – the beneting country, the sponsoring
one or the European Commission.
26.7 Conclusion
It was a risky bet for the European Commission to entrust countries that
were unwilling to participate in global solutions, such as the GCR and
GCM, to sponsor returns and readmissions of irregular migrants. Such
a sensitive issue requires veriable and rebuttable ‘international trust-
based cooperation’ with third countries. Who is going to trust those who
are putting themselves above internationally agreed standards and prin-
ciples?
For the EU, the headache is not only its international reputation as
a partner that ‘walks the talk’ but also the risk of legal liability. ‘Return
306 26. When Principles Are Compromised: EU Return Sponsorship in Light of the Un Global Compacts
sponsorship’ blurs who is accountable for what. On the one hand, the
long ‘chain of responsibility’ makes itis increasingly dicult to assign the
accountability for fundamental rights violations of detained or expelled
individuals. On the other, it is hard to imagine the situation where all
the relevant actors directly or indirectly involved (‘beneting’ and
‘sponsoring’ EU Member States, EU institutions and agencies, namely
Frontex) would be called out. is will only increase the blame-shiing
game among them. To avoid such chaos, the EU needs to stand rmly –
with actions and words — behind the meaning of solidarity.
e implementation of Global Compacts and independent moni-
toring of the EU treaties principles are ever more critical for establishing
trust among Member States, EU institutions and agencies, third countries
and – not least – migrants and refugees themselves.
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Lina Vosyliūtė
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AUTHORS LIST
Iker Barbero is Lecturer at the University of the Basque Country (UPV-
EHU), Spain.
Petra Bendel is Professor,University of Erlangen-Nürnberg, Germany.
Amanda Bisong is Policy Ocer, European Centre for Development
Policy Management (ECDPM), e Netherlands.
Leiza Brumat is Research Fellow at the Migration Policy Centre (MPC),
European University Institute (EUI), Florence, Italy.
Giuseppe Campesi is Professor of Law and Society at the Department of
Political Sciences of the University of Bari ‘Aldo Moro’ (Italy).
Sergio Carrera is Professor at the Migration Policy Centre (MPC) in
the European University Institute (EUI) and Senior Research Fellow and
Head of the Justice and Home Aairs unit at CEPS, Brussels. Sergio is
Visiting Professor at the Paris School of International Aairs (PSIA) at
Sciences Po, France.
Roberto Cortinovis is Researcher at CEPS.
Evan Easton-Calabria is Senior Research Ocer, Refugee Studies
Centre, University of Oxford, United Kingdom.
Tamirace Fakhoury is Associate professor of Political Science and Inter-
national Aairs, Director, ISJCR, Lebanon.
Luisa Feline Freier is Professor in the Academic Department of Social
and Political Sciences atUniversidad del Pacíco, Lima, Peru.
315
Authors List
Iriann Freemantle is Associate Researcher with the African Centre for
Migration & Society (ACMS) at the University of the Witwatersrand in
Johannesburg, South Africa.
Adèle Garnier is Assistant professor in the Department of Geography at
Université Laval, Québec, Canada.
Andrew Geddes is a Professor of Migration Studies and the Director of
the Migration Policy Centre (MPC), EUI.
Geo Gilbert is Professor of International Human Rights and Humani-
tarian Law, University of Essex, Chair of the Global Academic Interdisci-
plinary Network, United Kingdom.
M Sanjeeb Hossain is Post Doctoral Fellow at the Norwegian Centre for
Human Humans, University of Oslo, Norway.
Meltem Ineli-Ciger is Assistant Professor in International Law Depart-
ment, Faculty of Law, Suleyman Demirel University, Turkey.
João Carlos Jarochinski Silva is Professor at Federal University of
Roraima (UFRR), Posgraduate Program in Society and Borders,
post-doctorate by NEPO/Unicamp, Brazil.
Liliana Lyra Jubilut is Professor of the Post-Graduate Program in Law of
Universidade Católica de Santos, Brazil.
Eleni Karageorgiou is Postdoctoral fellow at Department of Law, Lund
University, Sweden.
Fatima Khan is Associate Professor at the Refugee Rights Unit, Univer-
sity of Cape Town, South Africa.
Mehari Taddele Maru is Part-time Professor, Migration Policy Centre
and Academic Coordinator, Young African Leaders Programme, School
of Transnational Governance, European University Institute (EUI).
Aimée-Noël Mbiyozo is Senior Researcher, Migration Programme,
Institute for Security Studies (ISS).
Loren B Landau is Professor of Migration & Development at Oxford
University and Research Professor with the University of the Witwaters-
rand in Johannesburg, South Africa.
The EU Pact on Migration and Asylum in light of the United Nations Global Compact on Refugees
Ana López-Sala is Research Fellow at the Spanish National Research
Council (CSIC), Spain.
Nandi Rayner is Researcher at the Refugee Rights Unit, University of
Cape Town, South Africa.
Gilberto M.A. Rodrigues is Sergio Vieira de Mello Chair, Federal Uni-
versity of ABC, Brazil.
Betty Rouland is Postdoctoral researcher (MEAE) at the Institut de
Recherche sur le Maghreb Contemporain.
omas Spijkerboer is Professor of Migration Law at the Amsterdam
Centre for Migration and Refugee Law of the Vrije Universiteit
Amsterdam, e Netherlands and Raoul Wallenberg Visiting Professor
of Human Rights and Humanitarian Law at Lund University, Sweden.
Marco Stefan is Research Fellow at CEPS.
Tsion Tadesse Abebe is Senior Researcher, Migration Programme,
Institute for Security Studies (ISS).
Nikolas Feith Tan is Researcher, Danish Institute for Human Rights and
ASILE Researcher.
Lewis Turner is Lecturer, School of Geography, Politics and Sociology,
Newcastle University.
Orçun Ulusoy is Researcher at the Amsterdam Centre for Migration and
Refugee Law of the Vrije Universiteit Amsterdam.
Jens Vedsted-Hansen is Professor in the Department of Law at Aarhus
University, Denmark.
Lina Vosyliūtė is Research Fellow at CEPS.
317
Authors List
ISBN:978-92-9084-999-5
doi:10.2870/541854
QM-02-21-358-EN-N
