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by Céline Bauloz, Refugee Law Initiative, School of Advanced Study, University of London

We continue our series of blogs aimed at providing an enriching background to the topics that will be discussed during our annual conference titled “Beyond ‘crisis’? The State of Immigration and Asylum Law and Policy in the EU” , which will take place in Brussels on 10 February 2017.

The so-called migration/refugee crisis has shed light on the limits of the EU and its Member States’ ability – and willingness – to effectively deal with larger flows of migrants. This crisis has been largely depicted as a policy crisis rather than one of numbers (see most notably P. De Bruycker; M. Den Heijer, J. Rijpma & T. Spijkerboer; V. Chetail), and for good reasons. Looking only at refugee data at the peak of the crisis in 2015, UNHCR accounts for 86 percent of the world’s refugees being hosted in developing regions and 6 percent in Europe.

As the absolute number of arrivals in the EU has nevertheless greatly increased, the EU strategy has been to address both the structural deficiencies of its internal migration and asylum policy and the migratory pressure at its external borders. This last strategic objective has been most notably tackled at the EU external policy level through increased cooperation with third countries. After the 2015 Valletta Summit, the 2015 EU-Turkey Joint Action Plan and the 2016 EU-Turkey Statement, the European Commission proposed a new Migration Partnership Framework (MPF) which was endorsed by the European Council in June 2016. Presented as a new approach for more coordinated, systematic and structured cooperation with third countries, this contribution provides an overview of the MPF and its operationalization before undertaking a more critical assessment of its potential and prospects.   

I. The Migration Partnership Framework (MPF) in a nutshell  

The self-declared objective of the MPF is to develop win-win relationships with third country partners to better manage migration. For doing so , it determines a mix of short- and long-term actions to be undertaken. In the short-term, these aim to:

❖  save lives at sea and in the desert;
❖ fight traffickers and smugglers’ networks that benefit from people’s despair;
❖  increasing returns of those who do not have the right to stay; and enable migrants and refugees to stay closer to home rather than embark on dangerous journeys;
❖  open up legal ways to Europe for those in need, in particular with more resettlement for refugees.

In the long-term, the objective is to address the root causes of irregular migration and forced displacement through support for third countries in their political, social and economic development and fostering sustainable development.

These short- and long-term objectives are to be attained through the establishment of ‘compacts’ with third countries. Compacts are political packages which encompass clear targets and joint commitments, including, but not only, through the conclusion of more formal agreements such as on readmission. They are allegedly aimed to be in the mutual interests of the EU and partner countries by combining different policy elements beyond migration, such as mobility, trade or development.

Financial support is to be provided through a more flexible use of existing financial tools within the EU, including the EU Emergency Trust Fund for Africa and the EU Regional Trust Fund in Response to the Syrian Crisis, while the long-term objective of fostering sustainable development in partner countries will be supported, among others, by the External Investment Plan proposed by the Commission as a new model of private sector investments.

II. The MPF in practice: the Nigerien ‘showcase’

Dialogues and negotiations with five priority countries of origin and transit have started in the immediate aftermath of the MPF introduction, that is, with Mali, Nigeria, Niger, Senegal and Ethiopia. While they have had, so far, more or less tangible results depending on the countries (such as negotiations of a readmission agreement with Nigeria), the European Commission depicted its collaboration with Niger as ‘a showcase of how the EU and its Member States can combine the various instruments and tools available in a comprehensive manner’.

As perhaps the most developed of the five compacts, the case of Niger indeed provides a good illustration of the breadth of actions which can be taken by partner countries and the supporting tools that can be provided by the EU and its Member States under the MPF. The Nigerien authorities have accordingly been quite active in cooperating with the EU, be it for the implementation of the short-term Action Plan against illegal migration or the finalisation of the Action Plan to fight against smuggling, decrease irregular migration and provide alternative economic opportunities. Concrete actions have also been taken, such as stricter measures of border control against irregular migrants going to Libya, awareness campaigns to discourage migration, arrests of smugglers and seizures of their equipment, as well as repatriation of migrants to their countries of origin with the assistance of the International Organization for Migration (IOM) (see Niger: Action and Progress under the MPF; Second Progress Report on MPF, pp. 3-4; and First Progress Report on MPF, pp. 4-6).

On the part of the EU, support to Niger has materialised in on-the ground assistance and trainings, most notably with the EUCAP Sahel Niger mission in Agadez under the EU Common Security and Defence Policy (CSDP), the provision of equipment and the forthcoming deployment of EU liaison officers, as well as assistance for the implementation of the short-term Plan of Action against smuggling and trafficking (see e.g. Joint Communication on Migration on the Central Mediterranean Route, pp. 12-13). Financial aid is being provided through different instruments: first, through the EU Trust Fund or with the financing of projects via this fund; second, through the development of a short-term impact project for the creation of alternative income to replace the migration industry; and third, in the longer term, through a package of budget support to tackle the root causes of migration and to provide sustainable alternatives for the local economy.

While the flow of irregular migrants transiting through Niger has arguably decreased from 70,000 in May 2016 to approximately 1,500 in November 2016 and some 102 smugglers have been arrested and 95 of their vehicles seized, the European Commission concedes that ‘this reduced transit flow within Africa has not yet resulted in reduced arrival to Europe’. While it is arguably too early to judge on the MPF achievements, the EU-Niger compact nevertheless already well illustrates the trade-off policy at the heart of the MPF.

III. The MPF partnership policy: fighting irregular migration through deterrence

Although the European Commission acknowledges that ‘[e]xternal migratory pressure is the “new normal” both for the EU and for partner countries’, it is this very normality that the MPF appears to tackle. As the EU-Niger compact exemplifies, its focus is disproportionately placed on preventing, limiting and combatting irregular migration through return, repatriation and reintegration of irregular migrants and the fight against smugglers’ networks.

This clearly transpires from the MPF strategy of deterrence towards partner countries which relies on carrots and sticks or, in EU parlance, on ‘a mix of positive and negative incentives’. On the one hand, positive incentives – carrots – aim to secure the full cooperation of partner countries. These are tailored to each partner country and can take the form, in the field of migration policy, of resettlement opportunities for individuals in need of international protection, visa facilitation or the opening up of other pathways for legal migration to the EU. These leverages are also meant to go beyond migration policy and embrace the EU neighbourhood policy, development aid, trade, mobility, energy, security, digital policy, education, research, climate change, environment or agriculture. Development assistance is itself inscribed as a long-term objective of the MPF but clearly considered by the European Commission as a reward for ‘those countries that fulfil their international obligation to readmit their own nationals, and those that cooperate in managing the flows of irregular migrants from third countries, as well as those taking action to adequately host persons fleeing conflict and persecution’.

On the other hand, the whole framework aims to raise awareness of partner countries on the consequences – the sticks – that may arise if they do not fully cooperate on readmission and return. As notes the Commission, ‘These relationships will be guided by the ability and willingness of the countries to cooperate on migration management, notably in effectively preventing irregular migration and readmitting irregular migrants’. From that perspective, the MPF allegedly revives the old EU approach to development aid conditionality which permeated its migration policy agenda at the beginning of this century (e.g. C. Boswell; V. Chetail; S. Lavenex & R. Kunz). The European Council could not have been clearer in this respect when it underlined the MPF to be based on ‘effective incentives and adequate conditionality’ and concluded that ‘[c]ooperation on readmission and return will be a key test of the partnership between the EU and [its] partners’.

Serious doubts can be raised on the MPF willingness and potential to address the root causes of irregular migration and forced displacement and improve opportunities in countries of origin by fostering sustainable development in line with the 2030 Agenda for Sustainable Development, two of its long-term objectives. The MPF is inherently at odds with the sustainable development goals which have been adopted by all EU Member States. Rather than pursuing sustainable development through, inter alia, the facilitation of orderly, safe, regular and responsible migration and mobility of people (target 10.7), the MPF uses sustainable development as a leverage for stemming migration. As noted in a joint statement of 124 NGOs, this also starkly contrasts with the EU commitment to eradicate poverty in its relations with the wider world enshrined in Article 3(5) of the Treaty on European Union (TEU).

IV. What about migrants?

If partner countries can nevertheless win from these conditional relationships by fully cooperating with the EU, migrants end up being the greatest losers. While one of the short-term objectives of the MPF is to save lives at sea and in the desert, migrants are being caught up in a system of deterrence without sufficient safeguards for their rights and well-being.

First, the deterrence strategy used towards partner countries also permeates the MPF approach towards migrants. As noted by the Commission, ‘Increasing the rate of return will lead to breaking the business model of smugglers – so that people realise that paying large sums of money to reach the EU in perilous conditions is not worth the risk’. While the Commission suggests the creation of legal migration pathways as a complementary measure, this is not addressed in detail except as positive incentives, and thus conditional leverages, for partner countries to cooperate. As a result, the message could not be clearer: there is no need to irregularly migrate to Europe as you will in any case be returned.

This inevitably raises the question of the effectiveness of such a deterrence policy largely inspired by the EU-Turkey ‘deal’. The latter has been considered by the EU as an effective measure for reducing irregular migration flows from Turkey. An illuminating analysis by T. Spijkerboer, however, points to no identifiable causal relationship between measures taken under the EU-Turkey Statement and the effective decline in irregular migration flows. In fact, the mere idea that deterrence could be effective reduces the decision to migrate to a purely rational cost-benefit calculation, minimizing the impact of the multifaceted drivers of migration (e.g. N. van Hear, O. Bakewell & K. Long).   

Second, as noted by the 124 NGOs in their joint statement, the MPF provides no sufficient safeguards to ensure the protection, respect and promotion of migrants’ rights. While a general reference is made to full respect of humanitarian and human rights obligations, further safeguards are not detailed except in a footnote in relation to the Return Directive (MPF, fn. 20). This entails the risk of new Turkish-like scenarios challenging migrants’ right to leave any country and their rights and treatment in such countries, including as returnees, as already extensively analysed by scholars (see e.g. H. Labayle & P. De Bruycker and J.-B. Farcy in this blog or S. Peers & E. Roman).

Therefore, the protection and promotion of migrants’ rights in partner countries should have been more comprehensively integrated to the MPF. This would have been more consonant with the EU commitment to the protection of human rights worldwide (Article 3(5) TEU) and the human-rights based approach to migration governance commended by the United Nations. While the EU is apparently supporting Nigeria in addressing protection challenges, it is otherwise not clear to what extent human rights are incorporated into the compacts. This concern is all the more justified in light of the human rights record and security situation in the five priority countries as attest the UN Universal Periodic Review (see the compilations prepared by the United Nations Office of the High Commissioner for Human Rights for the last Universal Periodic Review of Mali, Nigeria  and Senegal in 2013, Ethiopia in 2014, and Niger in 2016).

The need for a systematic human rights assessment when cooperating with third countries in the field of migration has been reaffirmed by a recent decision of the European Ombudsman, echoing the worries of NGOs and experts in the field. The Ombudsman rejected the Commission’s argument that, due to its political nature, the EU Turkey agreement would be exempt from the need of a throughout human rights assessment. Quite the opposite, the Ombudsman concluded that the Commission should carry out a human right assessment of the EU-Turkey agreement, paying particular regard to the situation of women, children and people with disabilities. One could argue that this is yet another message to the Commission that, despite the discussion on the nature of its agreements with third countries, human rights considerations are to be at the core of these policies – a lesson that, one hopes, will be learned when moving forward with the ‘compacts’.

V. Conclusion  

If there could be only one benefit prompted by the crisis, it would be that of having created a momentum for the international community to take collective action in the field of migration. While not a solution in itself, cooperation among countries is inherent to the very phenomenon of migration which connects together countries of origin, transit and destination. Managing migration is thus a matter of international, regional and bilateral migration governance. This has been recognized by the EU but also by the broader international community which adopted the New York Declaration for Refugees and Migrants on 13 September 2016.

However, political realism has not been long to resurface in the EU, if it ever disappeared. The EU-Turkey Plan of Action and Statement already struck a blow at the moral – if not legal – responsibility of the EU towards migrants. By institutionalizing the cooperation model set up by the EU-Turkey deal, the MPF is likely bound to suffer from the same criticisms. While the MPF objectives of saving lives and fostering sustainable development are laudable, these are already undermined by its predominant focus on combatting irregular migration and its conditionality approach to partnership, both to the detriment of migrants’ protection.

The MPF has been interestingly compared to the New York Declaration by G. Almeida & K. Bamberg in this blog. The two converge on the idea of setting up compacts as frameworks of cooperation between states. However, one notable difference remains: while the latter aims both to maximize the benefits of migration and to minimize its negative effects, the former gives the feeling that migration is an evil that must be fought rather than a reality on which to capitalize.