Towards global migration management

The development of EU migration control 1970-2009

This presentation:

• Traces turning points in EU migration law

• Explains decision-making structures in EU migration law from 1970 to the present

• Presents the impact of these laws

• Ends with the latest development, namely, the externalisation of asylum and migration control

This presentation does not

• Detail the effects of EU migration policy on migrants already living in the EU

• Mention the relaxation of labour immigration rules as a result of EU need for more skilled labour (the other coin of global migration management)

From ‘open’ policies to restrictive approach

• 1950s: open (public authority discretion)

• 1970s: Labour control, more rights (movements, courts, int’l legislation) and more restriction (immigration control)

• 1970s-present: EUropeanisation of law

• 1980s-2000: Fortress Europe

• 2000-present: global approach

1970-1980EUropeanisation & Fortress Europe

• Police and security cooperation at the European level started to include migration matters

• Justice and Home Affairs (policing, security, immigration) stayed inter-governmental

• The Single European Act was used as an argument to close down external borders

• European working groups (TREVI, Ad Hoc Working Group on Immigration) started to influence policy directions (securitarian approach)

1970-2004Intergovernmental decision-making

outside of the EU institutions (European Commission, Parliament

and European Court of Justice)• Intergovernmental = weaker role of EU political

and legal institutions (ECJ, EP), different legal effect and legal recourse to the rules adopted and less transparency and therefore accountability of the decision-making process

• Intergovernmentality as a whole is an expression of the rise of the 'security state' in Western Europe and the "degradation of democratic regimes" in the era of 'globalisation'

1980-1990Some quotes

• “With a limited role for the ECJ, non-existent then high-speed consultation of the EP, a marginal role for the Commission, considerable delegation of power to civil servants and immigration and law enforcement officers, and an engrained culture of secrecy, the EU's Justice and Home Affairs law was unacceptably unaccountable.” (Peers, 2000:38)

• Specifically migration:• “Law and order officials employed the mechanism of

supranational venues to avoid prying eyes and avoid the annoying opposition of national courts, other more liberal ministries and NGOs. [...] These policy networks stressed security issues and drove the restrictionism of 'Schengenland' and the Dublin Convention. All forms of migration control were shifted from national courts and other ministries to Home Offices or private entities. (Levy, 2002:13-14)

Fortress Europe:Policies and working groups

• Trevi

• Ad Hov Working Group on Immigration

• Coordinators Group on Free Movement

• Schengen

• Commision proposals: going global

• The Maastricht Treaty

• Amsterdam Treaty

1970-1980TREVI

• Shared information systems on migratory flows• Created of close networks and decision-making

procedures between authorities responsible for the disparate areas of policing, customs, immigration and intelligence gathering

• 1989: TREVI 92 group set up to assess the "policing and security implications of the creation of the SEA - namely the abolition of internal borders and the strengthening of the external borders…"

1980-1990 Ad Hoc Group on Immigration

• From 1986 to 1992, AHGI proposed restrictive immigration laws that have since defined national and EU approaches to migration

• These include: visa restrictions, introduction of carrier sanctions, concept of manifestly unfounded asylum claims (and related safe country principles), Eurodac and information exchange systems such as the EIS, Rapid Consultation Centre, CIREA and CIREFI

1989Coordinators Group on Free Movement

• Integrates Trevi and AHGI • Prepares 'compensatory' measures related to the SEA: puts

'Fortress Europe' into place with the Palma Document• Militarisation of the EU's external borders, tightening

checks, more money• Visa policy, common negative visa list and list of people

refused entry• Restrictive asylum measures on procedural grounds,

prevention from applying in more than one member state (Dublin Convention), 'unfounded' applications

• Technical aspects of migration management, surveillance systems, information exchange (SIS and European Information System), deportations, re-admission agreements

1980-1990Schengen

• Extended security-led approach to migration control• 1985 Schengen Agreement and the 1990 Schengen

Convention • Obliges signatories to abolish checks at common borders

(with exception of national security), more external border control, visa provisions and police/judicial cooperation

• Creates a Schengen Information System• Schengen began as an entirely intergovernmental process

as the EU could not reach an agreement on the abolition of internal border controls, UK refused to end entry checks: France, Germany, Belgium, Luxembourg and the Netherlands started negotiations outside the EU legal system

• Now the whole Schengen acquis has to be accepted by every new EU member state

Commission proposals• Commission on migration = just as restrictive and driven by

'security' ideas as intergovernmental policies:• 1991 and 1994 Commission Communications on

migration and asylum: • Readmission agreements linked to aid and trade

agreements: ‘comprehensive’ approach to migration• Deter asylum seekers by “making the material situation of

asylum-seekers less attractive, withholding of certain social security benefits, restrictions of employment and freedom of movement"

• Registration and fingerprinting of asylum seekers to "aid identification and combat multiple applications,"

• Combat clandestine immigration, deport immigrants, and monitor 'migratory flows'

• But also minimum asylum standards, seen as too liberal by Member States' governments and have therefore not been taken up by the Council

Schengenland: Declaring war on migration

• Only four of the 142 SIA Articles deal with free movement. The remaining 138 Articles introduce increased external border control, police cooperation, the SIS and restrictive immigration, asylum and drug trafficking regulations.

• “The increase in migratory pressure goes hand in hand with the economic crisis. Uncontrolled immigration could in the end destabilise our societies and undermine the integration of third country nationals who are legally resident in the Member States” (Palma document)

Declaring war on migrants:Fortress Europe

• Virtually impossible for non-EU citizens to enter the EU without a visa (common visa lists)

• Considerable increase in police, customs and military presence at the EU's external borders Germany’s eastern border: "there is no higher police density at any other European border“

• Institutionalised discrimination:• Internal checks = discriminatory police practices

against ethnic minority and migrant communities• Central EU police database on foreigners. By

1999, 88% of all SIS data entries on persons concerns third country nationals

1993The law: Maastricht Treaty (TEU)

• Intergovernmental decision-making criticised for unaccountable procedures, Maastricht Treaty: “increase the transparency of the decision-making machinery and facilitate the democratic control of activities".

• Instead, Maastricht Treaty formalised it and removed EU migration law from community competence by creating the third pillar of Justice and Home Affairs

• The first pillar: economic and social affairs and general rules and provisions.

• The second pillar: foreign, security and defence policy • The third pillar: immigration, asylum, policing (internal security) as

well as criminal and civil law (judicial cooperation)• Maastricht era was fundamental in creating the EU's current migration

regime.

• Critique:• Undemocratic and unaccountable: K4 Committee (unaccountable to

parliament, just like its predecessors, the AHGI and the Coordinator's Group) played a central policy-making role during the Maastricht era

1999More law: Amsterdam Treaty

• It integrated parts of the third pillar into the first • Integrated Schengen acquis into the acquis communitaire • Introduced a comprehensive Title on migration policies into

the TEC,[4] therefore putting JHA at the centre of EU policy-making

• But: community based decision-making and jurisdictional rules did not apply to the field of migration under a special 5 year regime

• The Amsterdam Treaty = aimed at pressing on with European integration and creating an "area of freedom, security and justice", harmonising the EU's approach to migration, (consolidated by the Tampere summit (1999), the Hague and now Stockholm programmes

In summary:

• Since the 1970s, Europe has approached migration as a security issue and used police measures against migrants

• States have used undemocratic means to avoid granting migrants rights

• The EU has built an extensive police and security apparatus to repress migrants at the borders and in the EU

• As a result, migrants are dying and living and working in inhumane conditions (slavery-like)

• Still, migrants are entering Europe

2000-2010Going global

• 2000: Change in EU migration control as Fortress Europe ‘unsuccessful’ (Vitorino paper)

• Globalisation of control:

• Extending EU migration law to other countries

• This is enforced by linking the granting of aid and the signing of trade agreements to “cooperation” in implementing EU policies

Aspects of global migration management

• Bi-lateral and EU agreements• Global data collection systems • Outsourcing control: IOM, UNHCR, ICMPD• EU border operations outside of EU (Frontex)• Long-term refugee camps in origin and transit• Mass deportations• Externalising asylum (abolishing asylum)• Creating detention centre regimes around EU

Legal steps in going global

• 1998: Austrian Strategy Paper (abolish Geneva Convention)

• Leaked to the public, public scandal• 1999: Pursued by other means (High Level Working Group

on Asylum and Migration)• Action Plans: global strategy of migration control

– pinpoint "causes of influx" – recommend diplomatic strategies on ‘third country cooperation’

(use development aid to influence migration, readmission agreements)

– regional refugee camps– information campaigns in countries of origin and transit– "indicate the possibilities" to involve the UNHCR, NGOs and

governmental organisations in the countries concerned in the 'grand plan' of migration control

More legal steps in going global: From Tampere to The Hague

• Today, JHA cooperation is the fastest growing area of the Union’s relations with third countries

• 1999 Tampere Summit for the first time expressed the political will of European leaders to actually achieve a comprehensive approach ('milestone‘ in developing a common European asylum and migration policy)

• Migration management is expensive:• New budget line (B7-667) to support the 'Cooperation with third

countries in the area of migration' (increased from €10 million in 2001, to €12.5 million in 2002 and around €20 million in 2003)

• Under AENEAS (2004), a total amount of €250 million made available between 2004 and 2008 "for the support of third countries' efforts to improve the management of migratory flows in all their dimensions, and in particular to stimulate third countries' readiness to conclude readmission agreements, and to assist them in coping with the consequences of such agreements"

The Hague Programme

• 2004: deadline for the creation of a common EU immigration and asylum policy, Tampere followed by The Hague

• Intensifies “external dimension” of asylum and migration: “complete the integration of migration into the Country and Regional Strategy Papers for all relevant third countries by 2005”

• Externalisation = external camps and deportation

• European Neighbourhood and Partnership Instruments = strategic framework for imposing asylum and migration policies on neighbouring countries (especially in Mediterranean basin)

Critique of global approach

• Presumes migration is a security risk• Fails to see migration in its historical context• Lack scientific or empirical basis and politically

motivated:– Vague and ill-defined proposals on improving conditions in

migrant-producing countries– Well-defined and measurable policies on restrictive

migration control mechanisms, which have little to do with reasons for migration

• Ineffective and inhumane:• Detention centres and management regimes around

Europe have created a humanitarian crisis

Imperialist tactics

• The European Council considers it necessary to carry out a systematic assessment of relations with third countries which do not cooperate in combating illegal immigration. … Inadequate cooperation by a country could hamper the establishment of closer relations between that country and the Union.

• “Any future cooperation, association or equivalent agreement which the European Union or the European Community concludes with any country should include a clause on joint management of migration flows and on compulsory readmission in the event of illegal immigration"

• This policy sets out a clear threat to reduce EU cooperation in the event of 'non-cooperation‘

Development aid under attack

• Commission institutions (e.g. DG Development), whose aim is to 'tackle root causes' "are not very keen to use development budgets - limited as they are - for the prevention or management of migration"

• British network of development organisations BOND:• “Rumours in Brussels suggest a further downgrading of

development in the near future… The political voice for the world's poor is becoming increasingly marginalised.”

• Conclusion: Not only an 'institutional turf war' but also the marginalisation of the "political voice for the world’s poor".

Spain-Morocco

• Since 2003, several Moroccan “repatriation” operations affecting a total of around 2,000 people

• Informal camps of migrants and repressive police operations, in the forests opposite the Spanish enclaves of Melilla and Ceuta

Ceuta/Melilla after The Hague• December 2004: co-operation between officers of the

Moroccan Royal gendarmerie and the Spanish Guardia Civil: first step in the implementation of joint patrols in the strait

• February 2005: Morocco signs a branch office agreement with the International Organisation for Migration, establishing an office in Morocco to “provide an effective contribution to the management of migration issues in Morocco”

• After EU pressure and with EU funding, Morocco starts a European repression of migrants

• This reality not visible to wider public until the migrant deaths at Ceuta/Melilla in 2005.

Ceuta/Melilla in 2005• 27 September 2005: vast police operation of round-ups and

arrests in the neighbourhoods of Rabat and Casablanca sets off a chain reaction of panic.

• 28 September: when the Spanish-Moroccan summit on migration policies started, co-ordinated attempts to cross into Ceuta and Melilla gave rise to unprecedented repression by Moroccan law enforcement forces, resulting in six deaths

• This date also marked the beginning of hundreds of deportations to neighbouring countries

• “Black Book of Ceuta and Melilla” (Migreurop network ): • deaths in autumn of 2005 in front of the Spanish enclaves

were not mere excesses: they were a result of public policies; those undertaken by the European Union for years and later those of the Moroccan authorities that had converted to the repressive logic imposed by Europe.

EU accountability?

• In January 2007, the Human Rights Commission of the European Parliament placed the humanitarian crisis in Ceuta/Melilla on its agenda in the presence of the European Commission, UNHCR and the Moroccan ambassador

• The Morrocan ambassador was offended by the human rights report claiming the policies were institutional racism

• The European Commission’s representatives denied any responsibility. When asked “Why do you push Morocco to act like this?” the DG RelEx (foreign policy) representative stated that there is no European foreign policy in this field

• The representative from DG Justice and Home Affairs looked at his notes to avoid answering the question

• The UNHCR spokesperson mumbled inaudibly

Italy-Libya

The case of Libya “Gateway to Europe”

The case of Libya

• Migration control in Marocco has changed migration routes to go through Libya

• 2003: Italy and Libya sign an agreement to counter migration (rubber dinghies, off-road vehicles and satellite navigation systems, finances deportation flights and detention centres)

• 2004: The EU starts cooperation with Libya (control borders with Niger and assist ‘voluntary return’)

• 2009: EU external relations commissioner announces a 20 million package “to help strengthen Libya's border controls”

Immigration detention centre Misratah210 km east of Tripoli, Libya (http://fortresseurope.blogspot.com)

• More than 600 Eritrean asylum seekers arrested off Lampedusa or in the suburbs of Tripoli. All from 20 to 30 years old, including 58 women and several children and babies. The majority was arrested two years ago, but none of them has been tried by a court.

Libya & European economic interests• State visits and business deals between the UK, Italy, Germany and Libya

between March and October 2004 (same period as 'Mediterranean Solution’)• Shell (Dutch-British-owned) receives a €165 million contract to produce oil/gas in

Libya• Berlusconi visits Libya 4x and attends official opening of the pipeline

Greenstream, built and operated by the Italian energy giant ENI (6.6 billion dollars were invested in the 520-kilometre long pipeline, now supplying gas from Libya to Sicily)

• German chancellor Schröder visits Libya, accompanied by German industrialists, and signs a bilateral investment agreement on 1.2 billion dollars of oil and gas concessions granted to the German Wintershall, a subsidiary of the BASF group

• German RWE group starts business with Libya in oil and gas production, and the German Siemens group receives contracts worth €180 million

• Germany expresses interest in ordering "technical material like night-vision gear or thermal cameras for border protection“

• July 2004: Libya clears the way for the participation of foreign investors in state companies

• October 2004: EU foreign ministers resolve the political barriers to economic cooperation with Libya at a Council meeting in Luxemburg by revoking UN sanctions from 1992 and 1993

Effects of externalisation• There is no protection for refugees against

procedural violations of their substantive rights in the form of monitoring programmes, for example, despite the fact that there is ample evidence of violations, particularly with regard to external processing

• Especially the right to liberty and the right to be free from physical violence and abuse is violated as a result of external processing centres

• By now, tens of thousands of migrants have died (no official figures)

The future

• More domestic and EU foreign policies in the same direction

• More resistance by migrants and migrant support groups

• More cooperation of states and NGOs/activists between European and Africa (Bamako (Mali) Migration Agency, Migreurop network, border camps)

• Border camps in Calais and Lesvos