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By Elspeth Guild, Jean Monnet Professor ad personam, Queen Mary University of London and emeritus, Radboud University Nijmegen.

The most pressing problem for the EU as regards working with other countries and international partners on migration and asylum is the EU’s own image in this area. The image has two faces, one inwardly facing, how is the EU’s record perceived within the EU itself and the other outwardly facing, how is the EU’s record in this area perceived by states around the world. In this blog I will only examine the external dimension, how the international community views the EU’s policies, legislation and action on borders, migration and asylum. The new Pact on Migration and Asylum (2020) promotes greater cooperation with partner countries to achieve EU borders, migration and asylum objectives. The assumption is that states outside the EU are willing partners to achieve EU goals in this area. However, as I will discuss here, this rosy picture is not entirely justified. The EU finds itself face to face with a condundrum: the greater EU and Member State exercise of coercion in border, migration and asylum policies, the harder it is for the EU to find countries willing to partner with it to achieve the EU’s border management objectives.

The EU’s action (or inaction) in this area is by no means a secret.  International media around the world extensively covered the 2015-16 refugee arrivals into the EU, revealing the appalling conditions of arrival and first ‘reception’ which pushed almost 2 million people in desperate need of refuge and assistance to walk the length of Europe in search protection. This attention has been sustained in the international media, from the New York Times to Al Jazeera or the South China Morning Post (to name only a few of the English language outlets with an international reach). Rarely are the images positive regarding the reception of asylum seekers or migrants at EU external borders or border control operations. Instead, almost without exception they focus on the horrors – the Moria refugee camp in flames, the Presidents of the Commission, Council and Parliament at the Greek Turkish border encouraging border guards to prevent people who resemble the popular image of a refugee or refugee policy in general.

Many international and regional organisations with human rights mandates frequently issue press releases deploring the EU’s actions in the field. For example, the UN’s Office of the Commissioner for Human Rights has frequently criticised EU border and migration management on the grounds of failure to respect human rights. The UN High Commission for Refugees is equally a regular critic of EU actions which negatively impact refugees. Even UN organisations which do not have a central human rights mandate, such as the International Labour Office, have criticised EU policies on border management.

Regionally, the Council of Europe’s Special Representative on Migration and Refugees has also kept a close watch on EU developments, not always favourable. The Heads of Government of all the South American states unanimously condemned the EU’s expulsion policy as designed in the Return Directive. Similarly, international non-governmental organisations such as Amnesty International, Human Rights Watch or the Open Society Institute are regular and often fierce critics of EU policies in this area.

At the UN, the procedure towards the negotiation of the Marrakesh Compact for Safe, Orderly and Regular Migration adopted in December 2018, provided an opportunity for states to express their views on borders, migration and the treatment of foreigners generally. The first year was devoted exclusively to stock-taking which permitted a wide ranging debate on the subject. Having participated as an academic observer in a number of the open sessions for representatives of states at the UN in Geneva, I was taken aback by the strength of criticism which delegates from many countries in different regions of the world expressed regarding the EU and its border policies.

Notwithstanding this rather sustained and negative reception for EU policies around border management, migration and asylum, the new Pact reveals continuity regarding the EU’s approach to cooperation with third countries. The focus, as I will develop below, remains directed towards what third countries should do to improve the attainment of EU objectives with little attention to the interests of third countries (other than financing).

The EU’s External Reputation in Borders, Migration and Asylum

As if the 2015-16 arrivals and their extensive mediatisation were not enough, the continuous loss of life though unsuccessful attempts to cross the Mediterranean in unseaworthy boats has also been on front pages of news outlets around the world. Images of dangerous rescues, perilous attempts and figures of estimated deaths (far surpassing even the numbers of the US-Mexico border) published by IOM, have horrified readers and viewers in many countries. Additionally, the criminalisation of NGO rescue workers in particular in Italy including the highly mediatised prosecution of Carola Rakete, the German captain of a rescue ship operating in the Mediterranean, has not helped the image of the EU as an effective promoter of human rights particularly in the field of humanitarian rescue. Adding to the negative image, the fire at the refugee camp in Moria on the Greek island of Lesvos in September 2020 revealed to the world the degrading circumstances of life in the camp and the horror of non-existent reception facilities for thousands of vulnerable people after the fire.

The plight of refugees and migrants seeking to arrive in Europe but blocked by national and EU-funded border guards has not made many friends for the EU. Roundly criticised by UNHCR on a regular basis, the treatment of refugees and migrants seeking protection and entry to the EU has also made its mark on regional and international human rights instances as well as at the UN more generally. The European Court of Human Rights has received a steady stream of cases regarding the treatment of refugees and migrants at EU external borders. While this is small in comparison with the cases which the Court receives on length of criminal and civil procedures, the border, migration and asylum cases tend to be highly sensitive for member States. The UN Human Rights Committee has received communications alleging violations of the International Covenant on Civil and Political Rights (for instance SDG v Italy filed in 2020) regarding the treatment and death of refugees and migrants in the Mediterranean. The Prosecutor of the International Criminal Court has received a detailed complaint in 2019 of crimes against humanity allegedly committed by EU and national officials in the support of the loosely termed Libyan border guards’ treatment of migrants and refugees. From the perspective of the regional and international instances, European refugee and migration activities are taking up a lot of their time. And this is without counting the supervisory instances within the EU which have been engaged in investigating and determining legality of activities at the external borders in pursuit of deterring people from crossing them (see the numerous Fundamental Rights Agency reports, the April 2020 complaint to the EU Court of Auditors on the mismanagement of the Trust Fund for Africa regarding funding border activities, the Commission concerns about Frontex’s expenditure of euros 100 million on drones used for pushbacks from Greece to Turkey October 2020 etc). The various instances have yet to determine these complaints.

The EU itself drew world attention to its battle against the arrival of persons suspected of seeking to enter the EU irregularly by seeking a UN Security Council Resolution in 2015 to authorise military action against smugglers and traffickers of migrants in the Southern Central Mediterranean. Having achieved the objective of a UN Resolution, at least partially authorising military action in international waters, the EU failed dismally either to reduce the number of migrants missing in the Mediterranean (see IOM missing migrant data) or to stop the arrival of persons entering the EU irregularly across the Mediterranean. According to Frontex’s Annual Risk Analysis 2020, irregular sea border entries in 2019 totalled 106,246 while in the previous year the figure was 113,643. Other than the two exceptional years: 2015 and 2016 when substantially larger numbers of refugees and migrants arrived irregularly in the EU, the figure of irregular sea border entries has rarely exceeded 200,000. Compared with Frontex’s global figures on entry of third country nationals into the EU in 2019 which exceeded 61.5 million entries, the figures of irregular entry by sea are statistically insignificant. Yet, the EU’s military operation in the Mediterranean rumbles on (most recently prolonged to 30 November 2020 (Council Document 9688/20)) though its website indicates an increasing number of military assets which are no longer deployed.

In the face of so much international attention which is paid by media and international and regional institutions to the treatment of refugees and migrants seeking to enter the EU, most of it ranging from fairly to extremely negative, it is not surprising that the Pact itself indicates that cooperation in border management is sensitive for partners.

Finding Willing Partners?

The Commission’s New Pact on Migration and Asylum (COM 609(2020)) reflects this conundrum facing EU policy makers. In section 6 entitled ‘working with our international partners’ it seeks to plot a route to engaging countries outside the EU both bilaterally and regionally in regulating migration towards the EU which deliver what the Pact promises will be ‘mutual benefits.’ However, there is a profound difficulty at the heart of the Pact’s approach in particular for countries outside the EU. The objective of the Pact as stated in this section is ‘to address the complex challenges of migration and its root causes to the benefit of the EU and its citizens, partner countries, migrants and refugees themselves’ (p. 17). The problem with this formulation is that it completely fails to take into account that the ‘migrants and refugees’ referred to are in fact the citizens of those same third countries with which the EU seeks to address the challenges. The only specified citizens are EU citizens, giving the impression that other countries do not have citizens they only have prospective migrants and refugees as their inhabitants. This statement gives the impression that the EU does not have sufficient regard to the duty of countries outside the EU to protect the interests of their citizens.

The Pact fails to take a rounded international relations or diplomacy perspective of the issue of migration. All migrants are citizens of some country (except the very few who are stateless). Just as the EU seeks to defend the interests of its citizens, so other states are required to do so as well. The constitutions of countries around the world generally express the duty of the state to act in the interests of the citizens. Images of the poor treatment of people at EU borders as perceived from within the EU are images of migrants and refugees. But in other countries around the world, these are images of their citizens suffering degradation and humiliation by EU and Member State actors and actions. The more mediatised the EU treatment of migrants and refugees, the more problematic the question of cooperation in pursuit of EU migration goals becomes for the governments of other countries. The Pact recognises the issue at least obliquely when it states ‘[i]t is important to bear in mind that migration issues such as border management or more effective implementation of return and readmission can be politically sensitive for partners’. This is perhaps an understatement.

The Pact is quite opaque about how to leverage migration management cooperation as considered desirable by the Commission and Member States in the context of partnerships with third countries. It calls for the incentivization and improvement of expulsion [1] (and readmission by third states) through the instrumentalization of other policy areas of interest to third countries, a carrot and stick approach. In the EU’s politics of sticks and carrots, the stick is primarily how to convince third states enthusiastically to embrace EU expulsions of the third state’s citizens.

The EU ‘carrots’ to achieve third countries’ acceptance of EU migration objectives vary but better access for nationals of third countries to the EU for economic purposes is an evergreen. It turns up in the Pact in the form of talent partnerships to enhance commitment to support legal migration and mobility with key partners. This is reminiscent of the mobility partnerships developed in the 2010s to encourage southern Mediterranean states, in particular, to accept readmission agreements. A good example is the mobility partnership signed by the EU with Morocco in 2013, analysed here. But implementation proved embarrassing. In 2010, 10,416 Moroccan seasonal workers entered the EU (according to the Commission’s data). By 2016 the number had dropped to 3,781. Regarding entry for other remunerated activities, the data shows that while in 2010 43,334 Moroccans entered the EU in this category by 2016 the number had dropped to 6,283 (data on file with the author). These figures cast doubt on the good faith of the EU and Member States in offering enhanced employment opportunities for Moroccans in return for cooperation on border management and expulsion. The experiences of the mobility partnerships are unlikely to convince any third states that talent partnerships will result in enhanced opportunities for their citizens.

Finally, in the carrot and stick category, the Pact heralds the changes to the Visa Code which introduced a link between access to Schengen visas and the costs thereof and states’ readmission practices regarding their citizens being expelled from EU states. I criticised this linkage at the time as not only unfair to visa applicants who cannot be held responsible for the actions of their fellow citizens but also as likely to be counterproductive creating inequalities among states in the same region regarding access to visas and thus fostering sentiments of injustice in those which are disadvantaged. While the European Parliament achieved a softening of the proposal, turning it from a coercive measure to one where advantages accrue to states which cooperate with the EU, the establishment of the principle is unlikely to contribute to good international relations.

International Relations and EU Borders, Migration and Asylum Policy

The international relations weakness of the Pact is, no doubt, a reflection of the marginalisation, even at the current time, of foreign policy, international relations and diplomacy in the EU. This is not least the result of the late arrival of the competence in the EU in the field (2009) and the strength of national foreign ministries, still jealously guarding their powers. Additionally, the international relations field in EU law remains very divided regarding the exercise of international relations powers by different Directorates General in the Commission. For example, the negotiation of trade agreements is firmly within the competence of DG Trade which, proudly on its webpage, gives first place to these developments. In contra-distinction with international relations, the strength of interior ministries as regards migration and asylum has grown since the transfer of competence in 1999 (though formal cooperation began with the Maastricht Treaty in 1992). The tensions between DG Home and DG Trade regarding the ‘mainstreaming’ of migration objectives in international relations is often demonstrated in Brussels by the absence of representatives of DG Trade at meetings called by DG Home on this subject, of course always accompanied by apologies and reasons regarding other obligations. Institutionally the interior ministry weight in Brussels in relation to its international relations counterpart is reflected by the existence of a DG Home, very occupied by migration and asylum issues. But for international relations there is only an agency, the European External Action Agency, with divided loyalties between the Commission and the Council. As almost an afterthought, the Pact mentions that close cooperation with the High Representative will be important.

The outcome for the EU of this preponderance of DG Home and interior ministry perspectives on migration and asylum in an international context is the presentation in the Pact of ‘citizens’ as exclusively EU nationals and all other people as migrants or potential migrants even when the Pact is promoting collaboration with third countries. This weakness is not inevitable but to change it will require a rebalancing of the EU institutions and their priorities to privilege good relations with third states, including the citizens of third states who determine the composition of their governments. The influence of the DG Home and interior ministry perspectives that nationals of other countries are primarily sources of threat in the form of illegal immigration which needs to be ‘addressed’ in the states where they are present (ie their states of citizenship) will, inevitably, defeat the objective of cooperation with third states in most cases. The exception will be those states with totalitarian regimes which do not listen to their citizens.

[1] The EU avoids using the term ‘expulsion’ which is standard language to describe the removal of an alien from a state’s territory, used in international human rights conventions such as the International Convention on the Protection of All Migrant Workers and their Families 1990 (UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990, A/RES/45/158, available at: https://www.refworld.org/docid/3ae6b3980.html (visited 4 November 2020)) or Protocol 7 European Convention on Human Rights (Council of Europe, Protocol 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 22 November 1984, ETS 117, available at: https://www.refworld.org/docid/3ae6b3654.html (visited 4 November 2020)). Instead the EU uses the word ‘return’ which is unknown in international law but which it has defined in Article 3 Directive 2008/115 as “return’ means the process of a third-country national going back — whether in voluntary compliance with an obligation to return, or enforced — to:

  • his or her country of origin, or
  • a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or
  • another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted;”

cf. European Union: Council of the European Union, 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, 16 December 2008, OJ L. 348/98-348/107; 16.12.2008, 2008/115/EC, available at: https://www.refworld.org/docid/496c641098.html (visited 4 November 2020). For the sake of clarity to readers who may not be familiar with EU definitions, I have chosen to use the internationally recognised term.