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By Francesco Maiani, Associate Professor, Centre of Comparative, European and International Law, University of Lausanne

This article has been originally published on reflaw.org which operates under the auspices of the University of Michigan Law School’s Program in Refugee and Asylum Law (PRAL). The link to the article on the reflaw.org website is accessible here. Professor Francesco Maiani is also Member of the Editorial Advisory Panel (EAP) of RefLaw.

Introduction: The Cyclical Crises of The Common European Asylum System

In 2015-2016, the Schengen common travel area and the Common European Asylum System (CEAS) risked a complete meltdown. The story has been told elsewhere on RefLaw: one million refugees landed in Greece and Italy and then engaged in secondary movements throughout the European Union (EU). In response, unilateral measures negating the very idea of a common space of travel and protection spread like wildfire: “waving” unidentified refugees “through” to neighbouring States, unilateral border closures, competitive devaluations of national asylum systems endangering the integrity of international and EU standards. Some semblance of unity could only be found under the rallying cry of “stemming the flows.”

The EU thus initiated a series of measures aiming to confine refugees in countries outside or on the periphery of the EU. The EU-Turkey statement and “hotspot approach” epitomize this policy. At the same time, the European Commission proposed a reform package centred on three ideas: fighting secondary movements, reinforcing the above mentioned externalisation measures, and introducing a new solidarity mechanism centred on the physical relocation of protection seekers among the EU Member States (EUMS).

Fast-forward to the summer of 2018, and we are again in the midst of a “crisis.” The reform of the CEAS is stalled over the apparently unbridgeable rift between those EUMS requesting more solidarity and those EUMS wanting none of it. Meanwhile, with Mediterranean crossings reduced to pre-2015 levels, EUMS governments are maintaining, introducing or announcing unilateral measures to “stem” imaginary but electorally lucrative migration flows.

France has been pushing back migrants crossing from Ventimiglia, Italy for years. This practice is illegal. At present, France is only authorized under EU law to carry out terrorism-related checks on what should be an open border. Furthermore, systematic pushbacks of this kind constitute collective expulsions prohibited by the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Lastly, they contravene due process guarantees established by the EU Asylum Procedures Directive and Dublin Regulation, namely the right to make an application for protection, the right to have the responsible EU MS determined through the application of the criteria laid down in the Dublin Regulation, including those based on family ties and on humanitarian considerations, the right to a personal interview and to a reasoned decision; the right to an effective remedy having suspensive effect against a transfer decision.

Uncontested for years, the French push-back practice is now becoming a model for other European countries. With local elections in view, the German minister of Interior has threatened to follow France’s lead and push back asylum seekers at the border with Austria. The Austrian Chancellor promptly followed suit, announcing border closures with Italy and Croatia while advocating, with an exceptionally bad choice of words, for an “axis of the willing” between Germany, Austria, and Italy against illegal migration. Meanwhile, in Italy, the new government decided to flex its muscles and close its ports to boats carrying migrants rescued in the Mediterranean.

In short: minimum consensus for reforming the CEAS seems lacking, unilateral measures threaten the integrity of the CEAS itself and of the Schengen travel area, and a humanitarian crisis is unfolding in the Mediterranean due to uncertainty and conflict around points of disembarkation.

It fell to the European Council to find political ways forward for a European solution to the unfolding crisis. The conclusions eventually adopted at the meeting of 28 June 2018 placed CEAS reform on the back burner and shifted focus to new measures designed to “prevent a return to the uncontrolled flows of 2015 and to further stem illegal migration on all existing and emerging routes.”

Confirming en bloc the externalisation measures taken so far, the European Council coined two new concepts: “regional disembarkation platforms” (RDPs) to “eliminate the incentive [of migrants] to embark on perilous journeys,” and “controlled centres” (CCs) to take charge of those disembarked in the EU “on the basis of a shared effort.”

In crude summary, the idea is that if Europe can lift the drawbridge and confine migrants in its Southern neighbourhood, it need not face a divisive debate on internal solidarity. To borrow from Catherine Woollard of ECRE, this looks rather more like “Externalization Fantasyland” than like a feasible policy plan. Indeed, RDPs and CCs raise such a host of legal and political questions that they might never see actual implementation.

Regional Disembarkation Platforms (RDPs): A “Game Changer”?

The RDP concept is meant to complete an already over-packed externalization toolkit, put together mostly through informal measures in order to minimize judicial and democratic accountability:

  • Confinement in the abovementioned hotspots at the Union’s periphery–e.g. on the Greek islands–coupled in theory with systematic “safe third country” (STC) removals to transit countries. The EU-Turkey statement implements this concept; but, it cannot be applied on the “Central Mediterranean Route” given the unsafe conditions prevailing in Libya.
  • Arrangements whereby transit countries undertake to hinder departures and “pull back” persons intercepted or rescued on their way to Europe. Examples include the EU-Turkey statement, and a memorandum of understanding between Italy and Libya. The perceived advantage of such arrangements is that EU States may evade legal responsibility by avoiding contact with migrants. Of course, NGO boats conducting search and rescue (SAR) and carrying the rescued persons to Europe throw a wrench into the works. Hence the “closed ports” policy of Italy and the statement by the European Council whereby “all vessels operating in the Mediterranean must […] not obstruct operations of the Libyan Coastguard.”
  • Support to governments and communities in transit countries – Turkey, Libya, Niger, etc. – in order to improve conditions for migrants, support governmental efforts to suppress irregular movements, and incite smugglers to undertake new and different activities.
  • Resettlement to the EUMS of persons from transit states–so far in numbers that pale in comparison to those of persons hosted there–to provide some substance to the argument that while closing the doors to “irregular migration,” the EU stands ready to fulfil its protection responsibilities.

Glossing over the damage done–mass confinement in substandard conditions on the EU periphery, returns to countries with questionable safety credentials, responsibility-shifting to non-EU States hosting more refugees than the all the EUMS combined, etc.–the European Council triumphantly credited this set of measures with reducing irregular border-crossings to the EU by ninety-five percent since 2015. Still, it saw the need for new measures to “eliminate the incentive to embark on perilous journeys” and, in this way, to “definitively break the business model of smugglers, thus preventing tragic loss of life.”

RDPs should achieve this. They would be established “in close cooperation with relevant third countries as well as UNHCR and IOM”, and would “operate distinguishing individual situations, in full respect of international law and without creating a pull factor.” Even though it is not stated, one may assume that RDPs would be located on the territory of the non-EU countries. However, critical details are missing and left for the EU Council and Commission to flesh out.

Who is to be sent to RDPs, and under what conditions?

Given the arsenal of measures already in place, the “game changer” that European leaders had in mind is likely some kind of “Pacific solution”: wholesale return of those intercepted or rescued in the Mediterranean to designated areas in non-EU States. Short of “circumventing Article 3 ECHR” as Belgian Secretary of State Theo Francken suggested, this cannot be done legally. Wholesale return of those who somehow come under EUMS jurisdiction would per se negate the right to seek asylum, violate the principle of non-refoulement, and constitute collective expulsion prohibited under the ICCPR and the ECHR.

In line with this view, the European Commission has posited that only those rescued in the territorial waters and by vessels of the host third country could be brought there without the EU or EUMS incurring prima facie responsibility. Those saved by EU vessels could only be brought to a non-EU State “provided that the principle of non-refoulement is respected” – i.e. contingent on an individualized assessment of “safety” to be made in accordance with international and European refugee and human rights law. In light of this, far from being a “game changer,” the concept would hold little added value in relation to current “pull-back” and “safe third country” practices. Unless one could somehow make RDPs safe regardless of the conditions prevailing in their host State.

Who would operate RDPs and provide for identification, registration, reception, status determination and, if needed, repatriation?

One possible solution is for the EU to operate RDPs with the agreement of the host State. This would to an extent excise the process from local conditions. However, logistical and financial difficulties aside, this is an unlikely route as it would require far-reaching institutional engineering. For instance, the Court of Justice of the European Union (CJEU) would have to be entirely redesigned since–in its present form–it is not equipped to handle the mass litigation it would inherit by becoming Europe’s asylum appeal body. At present, asylum cases are handled by the EUMS at the national level. The CJEU only decides selected points of law raised by national judges via the “preliminary reference” procedure (Art. 267 TFEU). Should the EU itself start to run status determination procedures off– or onshore, this would change. As the only Court competent to review EU acts, the CJEU would become the appellate body. That is already its function e.g. in the field of competition law, but the caseload in the field of asylum would be unprecedented for it.

Another possible solution, one hinted at by the European Council conclusions, is for the International Organization for Migration (IOM) and United Nations High Commissioner for Refugees (UNHCR) to operate RDPs. However, the two agencies have made it quite clear that their role would be limited to supporting the RDP-host States.

Should neither of the above solutions be realized, the scheme would eventually resemble ordinary “safe third country” mechanisms already in place coupled with targeted EU, IOM, and UNHCR support. The responsibilities of reception and status determination would be left to the host State – which, as the territorial sovereign, would in any case be responsible for safety and security in the RDPs. In the long term, targeted support may yield the benefit of spreading organized, dignified reception and fair and effective procedures around the Mediterranean, but it would not turn RDP host States into safe countries overnight, and certainly would not be an externalization “game changer.”

Besides, sufficient incentives would have to be in place for non-EU countries to volunteer. “Tailor-made” support packages would likely have to be very attractive and extend beyond assistance in SAR and migration management.

What would happen to those “processed” in RDPs?

Would RDPs be mere processing platforms or, to put it crudely, would they turn their hosts into Europe’s dumping ground for unwanted migrants? This is another key question for potential host States and migrants alike.

Those found in need of protection might conceivably be resettled–primarily to the EU, given its involvement in the scheme–or be integrated locally in the RDP host State. The first solution would raise two questions: (a) How are those resettled distributed among the EUMS? (But was the RDP concept not supposed to let the EU out of this divisive debate?) (b) How many of those found in need of protection would be resettled to the EU? The higher the ratio, the stronger the risk of generating a “pull factor;” the lower the ratio, the higher the numbers to be integrated locally and, presumably, the reluctance of non-EU States to volunteer as RDP hosts. Retaining local integration as an option would also make the legal viability of the RDP scheme contingent on the conditions prevailing in the host State, i.e. on whether refugees would risk being deprived there of their rights under international law (see James Hathaway & Michelle Foster, The Law of Refugee Status 34–35, 2nd ed. 2014).

Concerning those found not to be in need of protection, the European Commission, IOM and UNHCR offered support to the host State in organizing for repatriation. Still, the host State would bear the risk of failed repatriations, and as Fratzke and Collett note “non-removable” migrants would risk finding themselves in limbo in potentially unsafe conditions.

In conclusion: if implemented in law-abiding fashion and without upending the EU institutional structures, RDPs are unlikely to be the hoped-for “game changer.” On the one hand, they would have little added value in respect of externalization tools already in place. On the other hand, they would be in all likelihood difficult to “sell” to non-EU States.

What of “controlled centres”?

Controlled Centres: Federal-Style Processing Centres or Glorified Hotspots?

“Controlled centres” (CCs) would, in the vision of the European Council, be the counterpart to RDPs on EU soil. Persons disembarked in the EU would be “taken charge of, on the basis of a shared effort” in CCs. There, “rapid and secure processing would allow with full EU support, to distinguish between irregular migrants, who will be returned, and those in need of international protection, for whom the principle of solidarity would apply.” The last phrase is legally wrong since the principle of solidarity applies to all persons coming under EU migration policies. But no matter, the sense seems to be that that those found to be in need of protection would be relocated to other EUMS.

On paper, the concept looks promising. The idea of “full EU support” seems to be a good starting point to move the debate on intra-EU solidarity forward. Furthermore, provided that swift processing and dignified reception conditions are ensured, it would be difficult to object in principle to CCs–though anyone acquainted with the grim “hotspot” precedent is entitled to think that “swift” and “dignified” are easier said than done.

Be that as it may, the voluntary character of the concept will likely be its undoing. EUMS would have to voluntarily set up CCs on their territory. Why would any of them do this and become a (or the) disembarkation platform for the EU? One possible answer is: to take advantage of “full EU support” in the processing of disembarked persons, and to benefit from the “principle of solidarity.”

Let us assume that “full support” would indeed cover all processing and reception costs. The other EUMS would still have to freely volunteer relocation places. Just like third countries volunteering as RDPs, the host State would bear the risk of shortfalls in relocation options, plus the risk of unsuccessful return operations concerning those not in need. With an implementation rate of thirty-five percent for the relocation programme of 2015-2017, and an EU-wide effective return rate of about forty percent, what States would be willing to take such risks?

The propensity to volunteer as CC hosts is likely to decrease further now that the Commission published its own take on the CC concept. In summary, according to the Commission, CCs would only screen out those who do not intend to request protection and possibly run expedited asylum procedures for selected caseloads. That would be the extent of what the Commission persists in calling “full EU support.” Persons who may be in need of protection would be channelled to ordinary asylum procedures. Under the current EU rules, it would ordinarily fall to the host State itself to run said procedure, organize reception, provide long-term protection or, as the case may be, repatriate.

The CC package is distinctly unattractive. As a matter of fact, no State has volunteered so far, and if none does in the coming months, it might never take off.

Concluding remarks

Assuming that the EU and the EUMS are committed to respecting international and EU law, and that they don’t plan to upend the institutional structure of the CEAS by establishing common processing centres offshore, no “game changers” are within easy reach. As shown, RDPs are highly unlikely to add anything of substance to the EU’s already extensive “externalization toolbox.” CCs in EUMS, for their part, are unlikely to ever take off absent predictable solidarity arrangements (as opposed to: fuzzy solidarity promises). This supposed exit from Europe’s solidarity conundrum leads, in fact, back around to it.

As shown by the UNHCR/IOM paper on the subject, the RDP and CC concepts might instead be an opportunity for a constructive discussion on responsibility-sharing and mutual support in the EU and in the wider Mediterranean region. That is, if “full EU support” could be made into something different than a slogan; if the EU were ready to make credible and commensurate resettlement offers; if EUMS and interested third countries were jointly capable of bringing about safe and dignified conditions for migrants and refugees across the whole region; and if all interested actors proved capable of placing the welfare and security of persons at sea above any real or perceived risks of creating “pull factors”.

That’s quite a tall order for leaders who have managed to send the EU in full crisis mode in the midst of a migration lull. As things stand, the likeliest course appears to be that RDPs and CCs will go nowhere and that policymakers will eventually have to resume the weary but necessary task of hammering out a deal for a reformed CEAS.