The European Union outsources asylum policy and protection

Sonal Marwah Featured 0 Comments

In a deal reached in March 2016 between the European Union (EU) and Turkey, “all new irregular migrants” who reached Greece after March 20 were to be returned to Turkey. In exchange the EU would resettle more Syrian refugees living in Turkey, increase its financial support for refugees in Turkey, and remove visa requirements for Turkish citizens (Collett 2016).

To deport migrants from Greece to Turkey, Turkey had to be classified as a “safe third country”—a country where migrants could request and receive refugee status in line with the Convention Relating to the Status of Refugees. But Turkey is not a “safe third country.” Turkey is a signatory to the Convention, but not the 1967 Protocol, which means that it maintains a geographical limitation and does not protect non-European refugees. Under Turkey’s existing refugee framework, Syrians are unable to claim full refugee status in line with the Refugee Convention’s provisions. Turkey has also stopped Syrians at the border, violating the principle of non-refoulement1 under international law.

The controversial EU-Turkey deal aimed to curb the irregular migrant flow into Europe. In substance, the deal blocked the arrival of smuggled migrants by putting pressure on Turkey, the key transit state, to control its borders. In return, Turkey was offered 3-billion euros in relief funds, promises of accelerated EU-membership talks, and visa-free travel for Turkish citizens to most of Europe. Such an agreement is tantamount to an external border strategy, which outsources EU’s asylum obligations to a non-EU country.

Published in The Ploughshares Monitor Volume 38 Issue 1 Spring 2017 by Sonal Marwah

The EU-Turkey agreement focused on Syrian refugees. However, irregular migrants from Africa are deemed a greater long-term challenge, given the continent’s generally poor governance, poverty, regional instability, and expected population growth. Mirroring the EU-Turkey approach, the EU has more recently sought to “buy” similar deals with African countries that produce significant numbers of refugees and the transit countries used by irregular migrants to reach Europe. All in an attempt to ‘secure’ Europe’s borders.

Partnering with Africa

Last June the EU, in cooperation with African states, created the Migration Partnership Agreement Framework (EC 2016) to stem and deter irregular migration2 to Europe. Leaders from the EU and Africa first met in Valletta, the capital of Malta, in November 2015 “in an effort to strengthen cooperation and address the current challenges but also the opportunities of migration” (European Council 2015). At this summit, the Emergency Trust Fund for Africa was launched.

The core objectives of the Migration Partnership are to “save lives,” “fight traffickers and smugglers’ networks,” increase returns of irregular migrants and “enable migrants and refugees to stay closer to home,” and “open up legal ways to Europe for those in need” (EC 2016). Migration projects are being implemented in Mali, Nigeria, Niger, Senegal, and Ethiopia. The bilateral compacts negotiated between the EU and each of these countries combine “different policy elements like development aid, trade, mobility, energy, security, [and] digital policy” (EC 2016). For the period 2016-2020, the sum of 8-billion euros has been allocated to support implementation.

Because of the scale of this externalization of migration and refugee policies, the Migration Partnership is garnering international attention. The arrangements generated by it should be critically examined to determine if they undermine the individual’s right to asylum and weaken the refugee protection regime.

Third-country asylum processing

Under the terms of the agreements negotiated through the Migration Partnership, asylum claims to EU Member States will be processed in Africa. European Migration Liaison Officers were set to be deployed to the five priority countries in early 2017. The EU claims that such an arrangement will discourage migrants from making dangerous journeys that often rely on human smugglers. And so lives will be saved.

But it is highly doubtful that asylum-processing centres in partnering African states can be in full compliance with UN human-rights safeguards and asylum-screening standards. For one thing, states engaging in third-country asylum processing benefit from the fact that such a process avoids the much higher standards of asylum determination that would be required within those states’ territorial jurisdictions.

It is well known that civil society and political institutions are not as robust—if they exist at all—in many African states as they are in Europe. Asylum seekers in Africa have limited if any legal recourse to register complaints or garner the advocacy support of nongovernmental groups. Third-county asylum processing could therefore expose migrants to additional trauma and vulnerability, and adversely affect their ability to gain asylum in the EU.

Deeply embedded migrant smuggling networks in Africa add a further complication. Consider Niger. It is a major transit country for West African migrants making their way to Libya, bound for Europe. Peter Tinti (2017), an expert on transnational organized crime and migrant smuggling, has found that migrant smuggling is an entrenched and significant source of livelihoods in northern Niger. Everyone from drivers, fixers, landlords, shop owners, and currency dealers to local law enforcers is involved in the web of bribes that allows migrants to continue their journeys.

The UNHCR response: Strong enough?

Through the Migration Partnership, the EU has both outsourced and offshored its international refugee obligations and protection responsibilities to African countries.

In a December 2016 report, Better Protecting Refugees in the EU and Globally, the UN Refugee Agency (UNHCR) offers proposals on how “an EU that is engaged beyond its borders” can “protect, assist and find solutions” (p. 3). And it notes that strengthening asylum systems and reception capacity in third countries shares responsibility and is an “expression of solidarity” (p. 5). But is this an appropriate response from the international guardian of refugee rights, mandated to uphold the principles of the refugee protection regime?

Providing support to the developing countries that host 86 per cent of the global refugee population is no doubt required. But endorsement of third-country processing centres in poorer African countries that are clearly ill-equipped to provide effective refugee protection should cause deep concern.

The UNHCR was not a party to the EU-Turkey deal, which was aimed at stemming an exceptional influx of migrants into Greece. But the Migration Partnership is not about exceptional responses. It aims to establish a normative framework for processing asylum seekers to Europe outside EU territory. Over the long term, the EU aims to fully integrate this partnership approach into its foreign policy and even its global strategy (EC 2016, p. 1).

The UNHCR’s acceptance of this containment of asylum seekers in poorer countries will go a long way in establishing the moral legitimacy of Europe’s externalization of migration and asylum policy. Yet the EU’s relocation of border controls to transit and origin countries will only make human-rights violations and lives lost less visible. In such circumstances, who will be held accountable for breaches of refugee obligations, human rights, and preventable deaths? The EU (sponsors)? Transit and origin countries (implementers)? The UNHCR (endorsers)? Or perhaps no one at all.

Shared protection of the vulnerable

Making third-country asylum processing a routine practice threatens to undermine the individual’s right to asylum and the entire refugee protection regime. Developing countries, such as the states with which the EU is partnering, cannot match the high protection standards and resources available in Europe, even with additional “development funds” from the EU. The UNHCR risks being held complicit in human-rights abuses if it signals to richer countries that a focus on externalized border control and deterrence strategies can replace the provision of legal and safe channels for refugees.

“Development funds” should not be used by the EU to secure the cooperation of poorer states that already host large refugee populations. Such funding should be based on aid effectiveness and principled development cooperation.

Ultimately, the entire Migration Partnership Agreement Framework seems to be based on false premises. Only a small percentage of refugees attempt to reach the West (Saunders 2016). Most stay in their own home country or flee to neighbouring countries to seek safety, hoping to return home. And, while one of the stated objectives of the Framework is to “fight smuggling and prevent deaths at sea,” there is some evidence that most Africans seeking to reach Europe don’t die in the Mediterranean Sea. A report by 4mi, an affiliate of the Danish Refugee Council, suggests that more die crossing the Sahara Desert, with its harsh conditions and no access to healthcare, food, or water (Miles 2016).

Thus, the focus of the Migration Partnership is misplaced. More importantly, it does not address the root causes of unsafe migration or help to alleviate the violence and poverty that drive migration.

Instead of looking for politically palatable deals to contain vulnerable migrants, Europe ought to focus its energy and resources on equitably sharing responsibility across EU states to increase legal avenues for safe migration, third-state resettlement, humanitarian visas, and legal labour migration. Such measures would indeed save lives and reduce the violence that irregular migrants face.

 

Notes

1. The principle means that refugees, asylum seekers, and victims of persecution are not to be forced to return to places in which they were
persecuted.
2. An irregular migrant is someone whose arrival is not in accordance with the immigration laws of the destination country.

References

Collett, Elizabeth. 2016. The paradox of the EU-Turkey refugee deal. Migration Policy Institute, March.
European Commission (EC). 2016. Migration Partnership Framework: A new approach to better manage migration. Factsheet, December.
European Council. 2015. Valletta Summit on migration, 11-12/11/2015.
Miles, Tom. More Europe-bound migrants may be dying in Sahara than at sea: report. Reuters, July 15.
Saunders, Doug. 2016. The migrant crisis: Here’s why it’s not what you think. The Globe and Mail, August 26.
Tinti, Peter. 2017. The E.U.’s hollow success over migrant smuggling in Niger. Refugees Deeply, January 17.
United Nations Refugee Agency (UNHCR). 2016. Better Protecting Refugees in the EU and Globally. December.

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