EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Gabriel Almeida & Katharina Bamberg, OMNIA Coordination Team, Odysseus Network.

Widely anticipated in times of rising numbers of people on the move, the United Nations Summit for Refugees and Migrants on 19 September 2016 offered an opportunity to evaluate the current scenario of migration worldwide and to frame the discussion for future negotiations on a global migration policy. The UN pitched the summit as a ‘historic opportunity’ and ‘watershed moment’ to further international cooperation with the hopes of ultimately leading to a more systematic, humane and coordinated approach to responding to large movements of refugees and migrants. Yet, there has been ample discussion on whether the document adopted by the Summit (the New York Declaration for Refugees and Migrants) does in fact reflect this ambitious plan or whether it is evidence of the difficult negotiations that took place between states that differ significantly on basic approaches to migration policies.

This article starts by giving an overview of the run-up to the UN Summit, arguing that the final result is a rather inconsistent ‘patchwork’ of different views on migrants and refugees (1). It then analyses the summit in relation to the European Union, examining to which extent the Declaration mirrors and opens space for legitimising important elements of current EU migration policy, such as the focus on border controls and the EU’s “migration compacts” (2).

1. The New York Declaration: a patchwork of different views on migrants and refugees

In a year in which, as the United Nations High Commissioner for Refugees alerted, ‘[an] unprecedented 65.3 million people around the world have been forced from home’ and the ‘refugee crisis’ reached the top of states’ political agenda, it comes as no surprise that the UN would be the stage for discussions on shared approaches to migration.

Although a considerable number of migration movements does, in fact, take place between countries of the global South, the political landscape of countries in the global North, among them a considerable number of European Union Member States, can also be understood as a motivation for the summit. Concerns about the rise in anti-immigration tendencies and differing national positions are clearly evident in the adopted New York Declaration.

In the run-up to the Summit and especially during the negotiations for the adopted document and its attached proposals, differences in political positions between the UN members became apparent. As Elizabeth Ferris, Senior Adviser to the Summit, has put it, ‘[in] order to advance the protection of both refugees and migrants […] compromise is needed’, which seemed to have also impacted on the realistic translation of ambitious proposals into the New York Declaration. Other commentators have further illustrated how the negotiations were also bound up with intra-UN mandate-competition in which the UNHCR in particular seemed keen to assert its position in leading the UN’s work on refugees. Eventually, this may have led to the fragmentation of the negotiation process and to higher expectations on the second UN summit of leaders called for by the White House.

Given the highly political climate during the run-up to the summit, the New York declaration does not seem to offer a particularly coherent vision or agenda with which the UN would tackle the global refugee crisis. Quite the contrary, the Declaration can be seen as a patchwork of different views on migrants and refugees, aimed at pleasing states with often clearly opposing ideas (Australia and Canada being a clear example) –  a common UN reality that makes the final substance of the text rather difficult to grasp. This is particularly evident in paragraph 33 on the detention of children (recognising that child detention is “seldom, if ever” in the best interests of the child while maintaining the possibility to do so for the purpose of determining their migration status) and in the minimal consideration of Internally Displaced Persons throughout the text (limited to briefly recognising that “[there are now] over 40 million internally displaced persons”.  

In times when even solid principles and obligations under refugee international law are contested by many states’ practices, such as recurring reports of violations of the principle of non-refoulement, the Declaration should have first and foremost reaffirmed the commitments and principles of the 1951 Refugee Convention and its 1967 Protocol. While it is true that the 1951 Convention was re-established as the cornerstone of international refugee law, the first reference to it can only be found on page thirteen of the document (para 65).

While certain points of concern warrant further scrutiny, the New York declaration does contain important calls to the respect for migrants’ and refugees’ rights. A good example is the point condemning racism, xenophobia and intolerance against refugees and migrants while reasserting the value of diversity in enriching societies and contributing to social cohesion (para 14). As such, this can be seen as making a valuable contribution in times of highly populist, anti-immigration rhetoric in a number of countries, not least in a number of European Union Member States.

The UN Summit can also be seen as initiating a debate about the definition of a global approach to migration. Words, expressions and tones were carefully selected. Never has there been a more timely opportunity for states to influence the ‘general’ understanding of how to deal with the “challenge of migration”. While it is hard to ascertain the exact level of influence of the EU in shaping the final result of the Declaration, the document does seem to mirror many of the elements of the current EU migration policy.

2. The EU approach at the UN stage: does the Declaration mirror the current EU Migration policy?

The developing EU Agenda on Migration has been the object of analysis and criticism particularly since the beginning of the so-called ‘refugee crisis’ and the attempt to coordinate a common EU response to the unprecedented migration flow towards the EUl. The external dimension is an important part of the current EU migration policy. While the EU-Turkey statement has received the most extended media coverage, other forms of EU cooperation on migration such as the Karthoum and Rabat processes (click here for a critical view on the first) were initiated prior to that. Therefore, in view of the pivotal space that migration recently took on the EU external agenda, it is no surprise that EU participation at the UN Summit included several of high-ranking EU officials, such as the Vice-President of the Commission, Frans Timmermans, the President of the Council, Donald Tusk, and many Commissioners, besides the High Representative Federica Mogherini.

After a careful analysis of the NY Declaration, several points indicate that the Declaration reflects important elements of the current EU migration policy, the most important of which are described in the subsections below.

a. Combining the “prevention of irregular border crossings” with the principle of non-refoulement

“[…] We will promote international cooperation on border control and management as an important element of security for States […]. We will strengthen international border management cooperation, including in relation to training and the exchange of best practices. […] We reaffirm that, in line with the principle of non-refoulement, individuals must not be returned at borders. We acknowledge also that […] States are entitled to take measures to prevent irregular border crossings.” (NY Declaration, para. 24)

“[…] we recognize that the ability of refugees to lodge asylum claims in the country of their choice may be regulated, subject to the safeguard that they will have access to, and enjoyment of, protection elsewhere.” (NY Declaration, para. 70)

Despite the reference to the principle of non-refoulement, which often appears in the Declaration as a secondary reminder rather than a strong reaffirmation, the wording above may potentially condone certain policies that states use to strengthen border controls and to expand deterrence actions in the name of the ‘prevention of irregular border crossings’.

Moreover, when considering the contentious situation at the outer borders of the Schengen Area and reports of alleged pushbacks on the EU’s sea borders and along the Balkan Route, one may wonder if the above paragraphs will not be interpreted according to the will of a Member State to act in the name of ‘state security’ while leaving the respect for the principle of non-refoulement as a secondary consideration. For example, it may implicitly leave space for the legitimisation by some EU Member States of troubling actions such as an increasing construction of walls and fences, in the name of preventing irregular border crossings.

Furthermore, the paragraphs above leave the EU with greater legitimacy in returning asylum seekers to the country of their first entry into the EU, by recognising that “refugees’ abilities to lodge asylum claims in the country of their choice may be regulated”, despite overwhelming agreement that this rationale, which underpins the controversial Dublin system, has proved to be failing. Not only could this possibly be interpreted as essentially maintaining the EU’s insistence on the “first country of entry” precept of the Dublin Regulation, but also securing the contested use of the “safe third country” principle as reaffirmed in bilateral co-operation with third countries (such as the one between the EU and Turkey) and other deterrent mechanisms.

b. Focus on combating “smuggling and trafficking”, instead of on the need for legal pathways for migration

“With a view to disrupting and eliminating the criminal networks involved, we will review our national legislation to ensure conformity with our obligations under international law on migrant smuggling, human trafficking and maritime safety. […] We welcome reinforced technical cooperation, on a regional and bilateral basis, between countries of origin, transit and destination on the prevention of human trafficking and migrant smuggling and the prosecution of traffickers and smugglers.” (NY Declaration, para. 36)

Equally as concerning is the focus in the New York declaration on combating smuggling and trafficking while neglecting that resorting to irregular migration channels is linked to the absence of regular and safe pathways for migration. While it is widely acknowledged that resorting to irregular channels can put those on the move at risk of exploitation (not to mention perils to their own life, as made clear by the alarming number of deaths in the Mediterranean in 2016 so far), the Declaration misses the opportunity to give proper weight to the need for more pragmatic and attainable commitments to expand legal pathways of migration (encompassing resettlement, humanitarian visas, student and work permits, etc.), which could result in a considerable blow to the smuggling business.  

Unfortunately, the language used in the New York Declaration on this point is rather weak: “[…] well-managed migration policies […] may include the creation and expansion of safe, regular pathways for migration” (Annex II, III.8, emphasis added), with no explicit reference to resettlement, visas, innovative schemes such as private sponsorship or other forms of regular migration.

The rationale of tackling irregular migration through “eliminating” smuggling instead of providing safe, legal pathways for migration is very much in line with the reiterated EU approach evidenced by the focus on strengthening borders (e.g. the fast-paced creation of the European Border and Coast Guard) and the lack of commitment for resettlement policies (e.g. the unsatisfactory number of relocations and the slow-moving  discussions on an EU Resettlement Framework).

c. From the EU “Migration Compact” to a “global compact for safe, orderly and regular migration”?

The Italy-backed idea for “migration compacts” has been officially introduced in the EU’s foreign policy since June 2016 under the name of “Migration Partnership Framework” (MPF). In practice, it activates the EU diplomacy and humanitarian apparatus (personnel, funding, intelligence, etc.) to better ‘manage migration’ by developing dialogues between the EU, including its Member States, and countries of origin and transit of migrants and refugees. Despite its declared intention to avoid more deaths of migrants resorting to irregular channels and to boost funds for the area of migration, the EU’s Migration Partnership Framework has been accused of conditioning development aid with a reduction in the number of irregular migrants, and as an incentive for countries of  origin and transit to reduce migration and accept returns “at all costs”, including costs for the human rights of migrants and refugees.

While the results of the EU’s migration partnerships are still developing and deserve a more careful analysis, their rationale is reflected in the Annex II of the New York Declaration, which opens negotiations for a “global compact for safe, orderly and regular migration”. The UN and its member states now have two years to define the aspects of a Global Compact that will be based on, among other things, international cooperation to improve “migration governance”, cooperation for border control, combating smuggling, reducing the incidences of irregular migration and enforcing return and readmission policies. States will also have to define the scope for addressing the drivers of migration, effectively protecting the human rights of migrants, promoting integration in host countries and protecting labour rights for migrant workers.

Much can happen in two years of negotiations, but the underlying elements for the Global Compacts raised so far indicate a possible replication of the EU’s Migration Partnership Framework, inheriting the same concerns about the conditionality of development funds with ‘combatting irregular migration’ and the externalisation of obligations under international refugee law.

d. Lack of solidarity in the EU mirrored by a lack of solidarity at the international level

Many commentators have already mentioned the rather non-committal nature of the document. Although the document states that ‘[w]e acknowledge a shared responsibility to manage large movements of refugees and migrants in a humane, sensitive, compassionate and people-centred manner’ [para 11], coherent and concrete starting points are lacking on how to translate these high-rising sentences into reality for persons on the move and for countries of first asylum welcoming substantial number of refugees. What does this mean for the concept of solidarity and its application in sharing the responsibilities between different countries?

At the EU level we have already seen Member States failing to implement a plan for relocating asylum seekers between themselves according to their different capacities, let alone providing refugees with protection in a humane way, if at all. Rather, the lack of solidarity was particularly striking in the Bratislava Declaration, which has unearthed both a strong North-South and an East-West divide within the EU.

Similarly, the picture is far from promising in the international arena. A pledge to resettle 10% of the refugees within the developed world was removed from the draft declaration the month before the summit. As such, this shows again the extent to which the content of the draft document was watered down during the negotiations to accommodate different viewpoints. Although dealt with to some extent during the US President’s leadership summit in a commitment by a number of countries to increase their resettlement efforts, Obama himself admitted that ‘it’s still not enough; not sufficient for a crisis of this magnitude’, the failure of countries at the UN summit to agree to a sustainable, if not bold, plan is a sign that solidarity is almost absent between potential States. Rather, we seem to witness a turn to a flexible and voluntary form of solidarity, as described in an earlier article on this blog.

Conclusion: will the Global Compacts mirror the EU’s  response to the ‘challenge of migration’?

The spectrum of reactions to the Summit and its conclusions is wide. According to the UNHCR, the UN summit could well be seen as a ‘game changer’ in providing assistance and protection to refugees and migrants. A rather more critical voice standing out from the UN’s official discourse was raised by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein who prior to the summit stated that ‘this summit cannot be reduced to speeches and feel-good interviews, a dash of self-congratulation and we move on’. Similar concerns were also raised by representatives of NGOs: Human Rights Watch lamented the summit’s ‘failure of vision’, while Amnesty International saw governments as ’procrastinating over crucial decisions even as refugees drown at sea and languish in camps with no hope for the future’.

Alexander Betts of the University of Oxford’s Refugee Studies Centre aptly captured the ambiguity with which the document should be read: ‘[…] the dominant humanitarian model fails to address refugees and governments’ needs in a sustainable way. At best, the summit outcome documents approach these challenges obliquely. At worst, they allow governments to dress their abuse of refugee and migrant rights in humanitarian rhetoric.’ The next two years of negotiations will show the direction which the Global Compacts will take, but the number of troubling points, as raised above, at such an early stage is alarming.

Our analysis suggests that the Global Compacts are likely to mirror many of the elements of the current EU migration policy, such as the focus on preventing irregular border crossing, the unwillingness to create and expand safe pathways for migration, the securitisation of borders, the lack of solidarity between states and the creation of ‘compacts’ linking development aid to migration management.

The New York Declaration sets a political discussion that could have profound effects to our understanding of states’ obligations towards migrants and refugees. Judging from the EU’s footprint throughout the NY Declaration, it is likely that the Global Compact will mirror important elements of the EU migration policy. As established by Article 21 of the Treaty on European Union, the EU has an obligation to base its external relations, including those related to migration, on the principles of democracy, human rights and solidarity. The impact of the EU’s current migration policy on the developing Global Compact will certainly put to proof the EU’s willingness to abide by those principles.