During the few last weeks, migration policies discussions have heated up. At yesterday’s European Council, discussions drew out over the night, and a deal was finally clinched at 5 am in the morning. However, divisions persist, with the Council’s conclusions mentioning no legally binding commitment.
This Focus aims to offer the reader a "compass" to understand proposals and buzzwords that recurred the most on newspapers and social networks over the last few weeks, and will most likely remain in the debate over the next years.
What do these measures and keywords entail, and what concrete policies should they translate into? Which countries share the same stance, and which ones disagree?
"EUROPEAN MARITIME BORDER"
"Who lands in Italy, lands in Europe", is the statement behind the recent Italian proposal on the issue of rescues at sea and disembarkations in the central Mediterranean. The Italian Government proposed to "Europeanise" the EU's maritime borders, thus considering landings on the shores of EU countries of first arrival as landings "in the Union".
In concrete terms, the Italian proposal would imply the automatic relocation (see below, Relocations) towards other EU countries of all sea-arrived migrants. "All" refers not only to migrants who could qualify as refugees, but also to "economic" migrants. It would therefore mean asking those European countries that have not provided for emergency relocations of asylum seekers from 2015 to date, to do so automatically and permanently in future, also including economic migrants.
In this respect, EU countries would accept an even more "extreme" versionof the Dublin rules reform that failed to pass at the beginning of June. The latter proposal, put forward by the current Bulgarian Presidency, still held responsible the country of first entry into the EU but, in case of a remarkable number of arrivals, it provided for the possibility of relocating. Relocations, however, were limited to those migrants whose probability of being granted a form of protection (refuge or subsidiary status) was higher than 75% (i.e. Syrians, Iraqis, Eritreans, and Somalis), who from 2015 to date have constituted less than 8% of asylum applications filed in Italy.
Tonight, the Eu Council only went as far as to define migration as "a challenge not only for a single Member State, but for Europe as a whole", but did not find a consensus around the Italian proposal.
"HOTSPOTS AND REGIONAL PLATFORMS"
Up to now, hotspots have solely been those centres set up in Italy and Greece at the end of 2015, in the midst of the "migration crisis" with mixed national and EU personnel. These centres were created with the aim of increasing and speeding up the identification of the disembarked migrants. Initially, hotspots were conceived as closed facilities from which migrants were not allowed to leave until the identification process was completed, which in theory should have taken place within 3 days. In reality, especially at times of high migration flows, the policy terms have gotten softer, with hotspots becoming more similar to reception centres.
The proposal that has made the most progress at the Council is to createhotspots that not only identify migrants but also assess asylum applications. Therefore, the time of stay of migrants would go well beyond the 3 days envisioned for their mere identification, and hotspots would turn into actual "camps". It is no coincidence that the heart of the issue lays on determining where to open them: EU countries, or outside of Europe.
French President Macron, for example, proposed to strengthen Italian hotspots with more EU funding and staff. Yesterday’s European Councilwent further, proposing to set up more hotspots (called "controlled centres" in the summit’s conclusions) in other EU Member States. The conclusions state that "those who are saved, according to international law, should be taken charge of, on the basis of a shared effort, through the transfer in controlled centres set up in Member States, only on a voluntary basis".
At the same time the Italian, German, and Austrian governments, have spoken out in favour of opening hotspots in third countries, and the European Council’s conclusions called on the Council and the Commission "to swiftly explore the concept of regional disembarkation platforms, in close cooperation with relevant third countries as well as UNHCR and IOM". The creation of these centres could not, however, take place without the consent of the African countries involved, which have already on several occasions expressed their concerns, if not total opposition.
Launching external "regional platforms" would bring the EU closer to the"Australian model", but with one important difference. Australia leads rescued migrants to closed centres in third countries (e.g. Manus), also when the rescued migrants have already reached Australian territorial waters. In the European case, the shared position seems to be that migrants arriving in the territorial waters or on the territory of a member country would not be brought back to the external ’regional platforms’ - as is in any case expected by international law, in order to avoid a so-called refoulement .
A further issue is the receiving capacity of these hotspots. If the Italian centres were in danger of collapsing with 10,000 arrivals per month, how long would it take for these centres to saturate, remembering that the period of stay should be sufficiently long to allow for the assessment of the asylum application? How can we separate asylum seekers from those who have already been refused and who are simply awaiting repatriation? And how can we ensure that the return of failed asylum seekers to their countries of origin really takes place, when today even European countries are not able to carry out more than 35% of returns?
"STOP SECONDARY MOVEMENTS"
According to the Dublin Regulation, the country responsible for assessing an asylum application is almost always the country of first entry into the EU. However, this rule is not always respected: whether or not they submit an asylum application, a number of migrants often try to reach another EU country by performing what is called a "secondary movement". In the case of an asylum seeker, the Dublin Regulation provides for a complex system of "take back" by the responsible Member State, but the procedure can last between 1 and 8 months and is rarely successful.
The problem of curbing secondary migration has re-emerged because of the proposal of the German Minister of the Interior, Horst Seehofer, to stop migrants at the border and to return them to the EU country they came from (for example Austria) or to the country of first entry (for example Italy or Greece). This brought Seehofer to clash with Merkel, who prefers EU rather than unilateral solutions.
However, it should be remembered that the number of migrants stopped while performing a secondary movement from Austria to Germany has declined by more than 90% between 2016 and 2017 (from 168,000 to 15,000), and that last year almost half of those apprehended were turned back to Austria. This is because the Schengen Borders Code already allows non-EU nationals to be refused entry at the border, for example if they do not prove to have sufficient financial means to support themselves.
In order to meet Germany’s requests, several proposals have been circulating around the table. These include an amendment of the EU directive on reception conditions for asylum seekers, abolishing the right to housing and financial support for asylum seekers who have carried out secondary movements, or the possibility of restricting the freedom of movement of migrants within the state competent to examine their application. In the end, yesterday’s Council conclusions stated that "secondary movements […] risk jeopardising the integrity of the Common European Asylum System and the Schengen acquis", but left the matter to be dealt with at national level, or at best through close cooperation among EU countries.
Italy and the European Union have been working for years in the attempt to bring origin and transit countries onboard, with the aim of reducing the number of people who travel along irregular routes. March 2016 saw the now famous EU-Turkey Declaration, which in less than a month led to a steep drop in arrivals in Greece and allowed the closure of the "Balkan route" in Europe. Faced with a failure of intra-European solidarity (see below, Relocations), the reduction of departures has been perceived by all EU actors as the only solution they could converge towards.
In 2017 in particular, Italy’s actions have focused on Libya, with the signing in February of a Memorandum of Understanding that commits the country to fight against irregular migration. Diplomatic and intelligence operations in Libya have led, from mid-July 2017 to now, to a 77% reduction in landings in Italy compared to the same period of the previous year. In the meantime, the European Union has launched the "Migration Partnership Frameworks", agreements with key countries in sub-Saharan Africa (for example Niger, Nigeria and Senegal), which condition the release of part of European official aid and assistance to these countries’ fight against irregular migration.
Doubts relate, on the one hand, to the sustainability of agreements with countries that are either fragile, such as Niger, or highly unstable, such as Libya. On the other hand, there is the question of what to do with the migrants who no longer make it to EU shores, and therefore remain in transit countries that are often inhospitable. In Libya, for example, there are dozens of militia-run centres alongside government detention centres, and torture and abuse have been documented in some of them. To provide an initial response to this problem, the World Organisation for Migration has carried out more than 25,000 voluntary returns over the past year, while the UNHCR has evacuated 1,500 vulnerable people from Libya to Niger.
In its conclusions, the European Council reaffirms his efforts to "externalize" border control and migration management to third countries, committing to "step up its support for the Sahel region, the Libyan Coastguard, […] voluntary humanitarian returns, cooperation with other countries of origin and transit".
The reform of the Dublin Regulation was proposed by the European Commission in 2016 and, after two years of negotiations, was put on standby at the beginning of June. Yesterday’s Council conclusions acknowledged that "a consensus [still] needs to be found", and that this consensus should be "based on a balance of responsibility and solidarity".
The circulated proposals are a more moderate option than the Italian proposal to establish a European maritime border (see above). They would allow asylum seekers registered in a certain European country to be automatically relocated, but only once a certain national "sustainability threshold" has been exceeded. This threshold is represented by a value calculated on the basis of four parameters: GDP, population, unemployment rate and number of refugees already present in the country. Relocations would be triggered when 150% of this value is exceeded.
For example, applying the Commission’s four parameters, Italy’s share would be 12% of total EU arrivals. Consequently, the 150% threshold would be reached when at least 18% (12% + 6%) of European asylum seekers have applied in Italy in a given year.
"SAFE PORTS IN SEVERAL EU COUNTRIES"
In recent weeks, the Italian government has asked its partners to acknowledge that Italian ports should not be the only safe havens for disembarking migrants after a rescue operation has been carried out in the central Mediterranean.
The law of the sea provides for the obligation to assist those who are in distress at sea, a principle laid down both in the 1974 SOLAS Convention and in the 1982 UNCLOS Convention. Furthermore, according to the 1979 Hamburg Convention, coastal countries are obliged to carry out search and rescue (SAR) operations in their own areas of competence. The same conventions stipulate that rescued persons should then be taken "to a place of safety, within reasonable time". However, the treaties do not specify what these "places of safety" are.
In recent years, a situation has arisen in the Mediterranean where Italy has found itself as being the only actor responsible for coordinating search and rescue activities not only in the SAR area under its jurisdiction, but also in the Maltese area and in a large stretch of sea beyond Libyan territorial waters which does not fall under any state’s jurisdiction.
According to the Italian Government, the ports of other European countries bordering the Mediterranean should also be considered safe and sufficiently close – a position that has been opposed over time by France, Spain, as well as by military, commercial, and NGO ships that have headed for Italy after having lent assistance. In general, opponents argue that the safe port for disembarkation should be the nearest safe one, and therefore an Italian or Maltese port.
The possibility of deeming "safe" harbours in Tunisia, or even Libya, has been circulated. As regards Libya, a recent judgement by the Ragusa Appeals Court reiterated that Libya cannot be considered a safe harbour under international law.
As far as Tunisia is concerned, it is difficult to establish whether this country is "safe" to asylum seekers. Although it is not as unstable a country as Libya, the standards of the right to asylum are much lower than those in the European Union.
In essence, the issue is mainly political. If Italy continues refusing foreign-flagged ships access to its ports, and the other European countries do not decide to act as a replacement, the situation that has arisen since the beginning of June would continue, with ships that, after completing a rescue, would not know which port to head for and would be forced to wait at sea for days or weeks. In its conclusions yesterday, the Council appeared to be siding with Italy on this one, stating that "all vessels operating in the Mediterranean must respect the applicable laws and not obstruct operations of the "Libyan Coastguard".
The EU’s commitment to increase the return of irregular migrants who have not been granted international protection has been reaffirmed every year since 2011, and the Council conclusions again underlined "the necessity to significantly step up the effective return of irregular migrants". Nevertheless, on average European countries are still able to repatriate only about 35% of the non-EU citizens ordered to leave.
Precisely because of this, the Union proposed new measures last year to make return policies more "efficient". However, the new measures have not achieved the desired effect, and today we are back to square one, at the point that the conclusions of the Council contain a commitment to bring repatriations to "at least 70% of the people who are ordered to leave by the end of 2019".
The problem is complex because it is partly unrelated to the willingness of EU countries to carry out returns. These can only be done if the country to which the people should be returned to agrees to receive them. For example, while between 2013 and 2017 Italy returned only 20% of the migrants ordered to leave the country, Germany managed to return almost 80%. However, this is not just a matter of efficiency, it is also a matter of having functional agreements in place. In fact, 36% of the people reached by a return decision in Germany came from Balkan countries such as Albania and Serbia, which Berlin considers largely "safe" and with whom there are return agreements. A further 9% of the migrants reached by an expulsion measure came from Afghanistan and Pakistan: Germany also has agreements in place with these countries that have allowed it to increase returns.
Italy, on the other hand, has issued expulsion decrees to the greatest extent against people of African nationality (49% from North Africa; 18% from sub-Saharan Africa), i.e. from countries with which it has fewer agreements or which do not respect the agreements made. For example, between 2013 and 2017, Egypt repatriated 43% of the people formally expelled from Italy, Tunisia 31%, while almost all sub-Saharan countries (such as Senegal, Gambia, Sudan and Côte d'Ivoire) have repatriation rates between 0% and 10%.