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By Nula Frei, PhD, Senior Researcher, Institute of European Law, University of Fribourg & Constantin Hruschka, Max Planck Institute for Social Law and Social Policy, Munich

As a reaction to the “unprecedented migratory flows”, the EU Commission issued a Communication on establishing a new Partnership Framework with third countries under the European Agenda on Migration on 7 June 2016. The EU Partnership Framework essentially unites all actions of the EU Member States (individually and collectively) to combat smuggling and trafficking, to address “the fate of migrants and refugees” as well as to manage migration “in a sustainable way” and to fight against deaths at sea.

As part of the actions under the new Partnership Framework, measures to prevent irregular migration and irregular entries play a primary role (alongside with “fast and operational returns” and “specific and measurable increases in the number and rate of return and readmission”). These measures always take place in a legal grey zone, threatening to conflict with the obligations arising from international and European law and especially the prohibition of refoulement. While the European Court of Human Rights (ECtHR) has already provided a legal compass for measures at the borders and under the control of European states (see following paragraph), such guidance lacks for cooperation with third countries. The following article aims to provide such legal orientation, using the example of the central Mediterranean route.

On 3 October 2017, the ECtHR, in its ruling N.D. and N.T. v. Spain once more emphasized that border control and expulsion measures involving a return to another country are prohibited under the European Convention on Human Rights (ECHR). The Court found that Spain – by returning N.D. and N.T. from Melilla to Morocco (regardless of the question where exactly the measure took place) – had violated the prohibition of mass expulsion (Art. 4 of Protocol No. 4 to the ECHR) and the right to an effective remedy (Article 13 ECHR). The ECtHR thereby confirmed its practice that it had developed in the judgments Hirsi Jamaa and Others v. Italy in February 2012 (repatriation to Libya by the Italian Coast Guard ) and Sharifi and others v. Italy and Greece in October 2014 (repatriation from Italy to Greece), where it characterized the obligation of Member States to register persons arriving irregularly and to inform them of their situation and their rights as an important procedural aspect of the prohibition of refoulement. The case has generated a lot of reactions (also on this blog) and has been referred to the Grand Chamber on 29 January 2018. The oral hearing of the case is scheduled for 4 July 2018.

At the same time, the actions under the new Partnership framework continue and the “fight against smugglers, terrorism and irregular migration” remains an important aim of European (migration) policy. Mechanisms supporting this aim comprise inter alia the 2015 Valletta Declaration, the establishing of a Central Mediterranean Contact Group as well as partnership programs under the European Migration Agenda. On 28 August 2017, the Heads of States of France, Germany, Italy, Spain, Chad, Niger and Libya’s “transitional government” as well as the High Representative of the European Union for Foreign Affairs and Security Policy met for a “refugee summit” in Paris and agreed on further steps to be taken. The fourth progress reports on the European Agenda for Migration released on 6 September 2017 describes these measures as a success measured against the significant drop of deaths and arrivals in the Mediterranean). Taking up these developments, the consolidated Progress Report on the European Agenda on Migration of 15 November 2017 prepared in preparation of the December 2017 Council meeting highlighted that “each and every workstream [under the Agenda on Migration] contributes to the overall effectiveness of the EU response”. Consequently, the EU Commission proposed a roadmap to a deal by June 2018 on the comprehensive migration package on 7 December 2017. The subsequent Council conclusions contain a Leaders’ agenda note on migration that mainly shows a high degree of agreement on the external dimension including border controls and partnerships with third countries in order to stem illegal migration and enhance returns, whereas the internal dimension as well as agreements on resettlement and other legal pathways are much less solid.

The situation on the Central Mediterranean route has therefore continued to attract a lot of attention including reports on the situation that showed (as Achilles Skordas highlighted on this blog and as was also much debated at the Odysseus Annual Conference including a workshop on externalization) an appalling situation for refugees and migrants including slave auctions revealed inter alia by reports of Amnesty International. In February 2018, after two years of reporting, the EU Fundamental Rights Agency named “strict border management” as one of the five migration issues that need urgent action. The LIBE Committee of the European Parliament conducted a Joint debate with the Committee Foreign Affairs and with the Delegation for relations with Maghreb countries (DMAG) including a debriefing by the UNHCR on their work in Libya on 5 March 2018 with a strong focus on the situation of refugees and migrants.

This situation has led to first emergency resettlement efforts from Libya (via Niger) by UNHCR as well as to returns of migrants administered by UNHCR and IOM mainly also from Niger. France has deployed a small scale external asylum “unit” of the Office de protection des réfugiés et apatrides to Niger and has admitted some refugee to its territory as a result of asylum interviews conducted in Niamey. However, numbers remain very low.

Shifting migration control further upstream – once more

Involving third countries into the EU’s migration control policy has started as early as 2004 with the Hague Program. By this, the EU and its Member States aim at shifting the border controls far beyond the gates of Europe. The logic behind this strategy is: The closer the migration controls can be placed to the “source” of the migration movements, the less likely it is that migrants actually reach European territory and legal consequences kick in. However, this motivation of States to deter migrants from arriving at their territory, in order to avoid legal consequences often remains unexpressed. European policymakers and European Commission more often prefer to point out the humanitarian rationale behind this strategy: According to Angela Merkel at the Paris summit, “there is a clear correlation between the number of persons who hit the road to Europe and the number of deaths on the road”. Similarly, the Council Conclusions of October 2017 highlight that “overall, migratory flows are being significantly reduced and the number of deaths at sea has decreased.” It is worth noting that, from a legal point of view, this line of argumentation rests on shaky grounds, since it is at least doubtful that the positive duty of States to protect the right to life of migrants would entail a duty to completely suppress migration. Be that as it may, we can at least conclude that the strategic goals that European policy-makers aim to achieve by extraterritorializing migration control are mixed. That the aim of control and externalization is the priority of these migratory policies has been made clear in the statement by President Donald Tusk following the December 2017 Council Meeting: “Yesterday’s discussion on migration confirmed the hierarchy of our aims, where protecting our territory, protecting our external borders as well as stemming illegal migration come first.”

In this context, the measures to hinder migration are a priority and EU support in different forms is placed at different stations along the Central Mediterranean Route: A first point is found in the transit countries Niger and Chad, where asylum applications should be assessed in big camps run by UNHCR. This measure is advertised as a mean to prevent migrants starting the dangerous journey through the Saharan desert. As mentioned above, such an operation is already up and running with special support of the French government on a small scale.

The next step on the route is the travel through Libya: Starting with the Italian-Libyan Memorandum of Understanding (English Version here) of February 2017, the EU and its Member States, especially Italy, have supported the strengthening of the southern border of Libya as well as “integrated border management” in Libya as further points of control. Furthermore, persons who make it to Libya despite the foregoing migration control measures, should – according to the will of European Member States expressed at the Paris summit – apply for asylum in a “hotspot” managed by UNHCR.

Finally, the last stage of the route, the crossing over the Mediterranean, is (again) made increasingly difficult. The Libyan “Coast Guard” (which is partly formed by the Libyan Central Government, partly by armed militia) is behaving increasingly aggressive towards refugee boats but also towards private rescue vessels. Italy as well has topped up its opposition towards those private rescue operations. The support for this rather dubious “Coast Guard” is part of the overall approach of the EU to curb migration towards Europe. In the November 2017 Commission Progress Report this support is labelled as “support Libyans to take ownership of securing their territorial waters, and to enhance protection of and respect for human rights,” without mentioning the obvious human rights and international public law concerns of such a cooperation.

Enhanced resettlement as a compensation mechanism?

Overall, at all relevant stations along the central Mediterranean route, attempts are made to prevent people from continuing their journey. As a “compensation” for these interception measures, the European States propose to offer resettlement for more persons.

Resettlement means the possibility to travel legally as a refugee to Europe after an asylum procedure has been carried out outside Europe (mostly by UNHCR). An intensification of this possibility to travel further is now planned and implemented on a small scale for persons stuck in Libya through an Emergency Transit Mechanism (ETM) in Niger (or to Italy directly) in return for the cooperation in migration control. In other words, anyone recognized as vulnerable in one of UNHCR’s planned “hotspots” can hope to be taken over by Europe as a resettlement refugee.

For resettlement to function, European states would have to actively receive people. Otherwise, responsibility for protecting these individuals remains with UNHCR and /or the receiving countries, as is currently the case in most refugee situations. Perhaps the most striking example in this regard is Turkey: between July 2015 and September 2017, only slightly more than 17,000 people were able to enter the EU legally from Turkey under the July 2015 EU resettlement scheme while Turkey welcomes more than 3.5 million registered Syrian refugees.

In any case, only a serious resettlement policy may be able to convince migrating persons to voluntarily enter a “center” somewhere in the Nigerien desert, Chad or even Libya, in order to queue for an entry permit to Europe. In addition, it is clear that even if, as is currently far from being the case, the chances of getting off a boat alive in Italy would be lower than the chance of being resettled from a “center” to Europe, there would always be people who escape the European desire for absolute migration control and embark the journey to Europe on their own.

Undermining European protection standards

Resettlement also undermines – as do the other measures discussed here – European standards of international protection and obligations flowing from the Charter of Fundamental Rights. Currently, only persons who are refugees within the meaning of the 1951 Convention or the UNHCR Statute can hope for access via resettlement. In practice, this will reduce the protection enshrined in the Common European Asylum System to protection under the 1951 Convention, as the recognition of subsidiary protection (enshrined in Article 15 of the Qualification Directive) would not be possible in these camps. Even though the proposed EU Resettlement Framework Regulation also includes “serious harm” in the eligibility criteria in Article 5, one may wonder if UNHCR would propose a person for resettlement on the basis of a regional or protection framework. This means that persons who would receive protection if they reached Europe would be excluded from legal access to Europe. Currently, almost half of all positive asylum decisions throughout Europe include the granting of subsidiary protection or another form of humanitarian protection. In addition, national refoulement protection for family or humanitarian reasons (see Recital 19 of the Qualification Directive), which exists in most countries in the Dublin area, would also be void in these camps.

In practical terms, what would happen to people without protection needs remains unclear: could they stay in Niger? Would they be detained there in order to forcibly return them to their countries of origin? And who would finance this? The IOM led Assisted Voluntary Return (AVR) efforts from Niger might give an indication of the direction of the possible practical answer as it is directed towards persons “who wish to return”.

Protection under EU law is also significantly better than protection in Libya, Niger or Chad in another aspect. If an application for asylum has been made in an EU Member State, the person can only be referred to a third country if it is a safe third country. According to Article 38 of the Asylum Procedures Directive, this is only the case if (1) the person concerned does not fear persecution and serious harm as defined in the Qualifications Directive in the third country, (2) if the third country concerned complies with the prohibition of refoulement under refugee and human rights law and (3) if the person concerned has the possibility to apply for asylum and, in the affirmative case, to obtain the status as a refugee in accordance with the provisions of the 1951 Convention.

The situation in Libya and Niger – the countries that receive most of the attention along the central Mediterranean – does not seem to meet these requirements:

Moreover, as both States are not contracting parties to the ECHR, the refoulement prohibition enshrined in Article 3 ECHR is not applicable in these situations and there is no possibility to lodge a complaint to the European Court of Human Rights in Strasbourg. Whether or not the legal protection against refoulement contained in Article 7 of the International Covenant on Civil and Political Rights and Article 3 of the UN Convention against Torture (to which both States are parties), is respected by Libya and Niger is at least doubtful. The way to the UN Human Rights Committee or the Committee against Torture would in practice hardly be possible. Legal proceedings against state and non-state return measures are even more difficult in these countries than it already is at the European external borders. Access to a regular procedure with guarantees and information, as required by the ECtHR in its Hirsi Jamaa and N.D. and N.T. judgements is therefore very difficult for the persons concerned.

Responsibility under international law

As already highlighted since the beginning of the Italian-Libyan cooperation by several authors including by Achilles Skordas on this blog, States can – according to customary law rules on state responsibility – be held responsible for a violation of international law, inter alia, if it provides assistance in committing violations of international law (see Article 16 of the Articles on State Responsibility). Thus, a State can be responsible for a violation of international law if this State supports, directs or controls another State in a conduct that constitutes a violation of an international obligation, or forces another State to do so. Therefore, in our case, the question is relevant as to what extent the actions of EU Member States can be considered as assistance or support.

Some authors convincingly develop that especially the massive human rights violations by Libyan authorities and militias are at least facilitated by the financing and delivering of material and assistance from the EU states. As a result, with European monetary and practical support, the refoulement ban and the prohibition of torture and inhuman or degrading treatment are violated. Whether this fact triggers the responsibility of the EU or its Member States under international law is subject to intensive discussions. From our point of view it is – in light of the evidence on the increase of violations of the human rights of migrants caused by migration policies that are mainly based on deterrence as e.g. provided by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in his February 2018 report – difficult to argue against such a direct or indirect responsibility. In light of the discussions already published on this blog and at the workshop on this subject at the Odysseus annual conference, this argument is not further developed here. For a comprehensive analysis of the legal situation for EU Member States engaging in such policies it would also be necessary to analyse this question from an EU law perspective regarding its scope and applicability in this context.

In this context, the European Fundamental Rights Agency (FRA) has published a “Guidance on how to reduce the risk of refoulement in external border management when working in or together with third countries” in December 2016, a practical tool that clearly sets out the situation under customary international law. For our context, Guideline 3 is of particular importance:

  1. Refrain from asking third countries to intercept migrants in case of real risk of harm: Third countries should not be requested to intercept people on the move before they reach the EU external border, when it is known or ought to be known that the intercepted people would as a result face persecution or a real risk of other serious harm.

As stated above, this guideline, which reflects the minimal standard under international law, contradicts the current cooperation of the EU and individual Member States with Niger, Chad and Libya. Given the large number of reports that are now available on the situation in these countries, it is also clear that the situation “is known or ought to be known.”

In a further analysis by FRA published in February 2018 on the “five persisting challenges” regarding migration to the EU, the Agency analyses the main challenges in 14 EU countries. As a result FRA names:

  • Strict border management
  • Inadequate living conditions in reception centres
  • Restrictive asylum procedures
  • Leaving unaccompanied children vulnerable and
  • Immigration detention

as the key concerns. In our analysis, seems to be a clear link between the human rights violation along the Central Mediterranean and the measures taken inside or at the borders of the EU. This analysis is supported inter alia by the findings of FRA and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in his February 2018 report. The underlying phenomenon might be called the “spill-over effect of bad practices” in migration management and control.

Broken balance

There is also a related toughening of access to protection for migrants (including persons entitled to international protection under EU law) in general.

On a practical level, the evaluation of the current policy is devastating: The share of people seeking protection who died on the way to Europe has not decreased, while the share of asylum seekers who get access to protection in Europe has declined. In absolute terms, in 2016, illegal entries decreased by almost two-thirds compared to 2015; the number of asylum applications in the EU + countries (EU 28 plus Norway and Switzerland) has gone down by 43% between 2016 and 2017, while the number of refugees worldwide has reached a record level of more than 17 million. In sum, the contribution of the EU to the global refugee protection has decreased.

Although policymakers repeatedly demand and solemnly reaffirm their will for global responsibility sharing, States are struggling to legally commit to this aim. Thus, the two Global Compacts, which are currently being drafted under the umbrella of the UN based on the New York Declaration of September 2016, are not intended to become legally binding contracts.

At the European level, the outsourcing of responsibility continues. It is considered as a top priority, whereas the reform of the dysfunctional Dublin system is stuck for the moment and alternative ways of allocating responsibility like relocation have proven to only apply to a very small number of applicants. In the long run, the greatest danger of European externalization lurks in two separate areas:

  • With the aim of preventing migration, money and weapons are sent to unstable areas and dubious actors without considering the long-term consequences; a well-known but short-sighted policy pattern, the consequences of which can be observed in Somalia, Iraq, Afghanistan and many other countries;
  • The migration of persons in need of protection to Europe is increasingly labelled as “illegal” despite missing alternative pathways and a decreasing share of Europe to worldwide protection for persons in need of protection.

Current cooperation with third countries to prevent “illegal” migration is creating a clear tension with the rights of migrants including the prohibition of refoulement and numerous other human rights. The EU States are financing measures that they themselves would not be allowed to carry out under European law. The procedural dimension of the prohibition of refoulement, strengthened by the ECtHR in the N.D. and N.T. decision of 3 October 2017, suggests that the measures taken in cooperation with third countries would be lawful only if it were ensured that every person was registered, protected from refoulement and had access to a procedure including a full examination of international protection needs and to the respective rights enshrined in the 1951 Convention and other instruments of international, European and national law. This is the standard that every cooperation with third countries in the field of migration should comply with. Escaping legal responsibility under the ECHR because of a lack of jurisdiction is nothing more than a circumvention of human rights obligations. In particular, if such circumvention is done intentionally or grossly negligent it triggers responsibility under international law.