By Charles Heller & Bernd Kasparek /Open Democracy/ – The ‘New Pact for Migration and Asylum’, announced by the European Commission in July 2019, was finally presented on September 23, 2020. The Pact was eagerly anticipated as it was described as a “fresh start on migration in Europe”, acknowledging not only that Dublin had failed, but also that the negotiations between European member states as to what system might replace it had reached a standstill.
The fire in Moria that left more than 13.000 people stranded in the streets of Lesvos island offered a glaring symbol of the failure of the current EU policy. The public outcry it caused and expressions of solidarity it crystallised across Europe pressured the Commission to respond through the publication of its Pact.
Considering the trajectory of EU migration policies over the last decades, the particular position of the Commission within the European power structure and the current political conjuncture of strong anti-migration positions in Europe, we did not expect the Commission’s proposal to address the mobility conflict underlying its migration policy crisis in a constructive way. And indeed, the Pact’s main promise is to manage the diverging positions of member states through a new mechanism of “flexible solidarity” between member states in sharing the “burden” of migrants who have arrived on European territory. Perpetuating the trajectory of the last decades, it however remains premised on keeping most migrants from the global South out at all cost. The “New Pact” then is effectively a pact between European states against migrants. The Pact, which will be examined and possibly adopted by the European Parliament and Council in the coming months, confirms the impasse to which three decades of European migration and asylum policy have led, and an absence of any political imagination worthy of the name.
The EU’s migration regime’s failed architecture
The current architecture of the European border regime is based on two main and intertwined pillars: the Schengen Implementing Convention (SIC, or Schengen II) and the Dublin Convention, both signed in 1990, and gradually enforced in the following years.[1]
Created outside the EC/EU context, they became the central rationalities of the emerging European border and migration regime after their incorporation into EU law through the Treaty of Amsterdam (1997/99). Schengen instituted the EU’s territory as an area of free movement for its citizens and, as a direct consequence, reinforced the exclusion of citizens of the global South and pushed control towards its external borders.
However this profound transformation of European borders left unchanged the unbalanced systemic relations between Europe and the Global South, within which migrants’ movements are embedded. As a result, this policy shift did not stop migrants from reaching the EU but rather illegalised their mobility, forcing them to resort to precarious migration strategies and generating an easily exploitable labour force that has become a large-scale and permanent feature of EU economies.
The more than 40,000 migrant deaths recorded at the EU’s borders by NGOs since the end of the 1980s are the lethal outcomes of this enduring mobility conflict opposing the movements of illegalised migrants to the EU’s restrictive migration policies.
The second pillar of the EU’s migration architecture, the Dublin Convention, addressed asylum seekers and their allocation between member-states. To prevent them from filing applications in several EU countries – derogatively referred to as “asylum shopping” – the 2003 Dublin regulation states that the asylum seekers’ first country of entry into the EU is responsible for processing their claims. Dublin thus created an uneven European geography of (ir)responsibility that allowed the member states not directly situated at the intersection of European borders and routes of migration to abnegate their responsibility to provide shelter and protection, and placed a heavier “burden” on the shoulders of states located at the EU’s external borders.
This unbalanced architecture, around which the entire Common European Asylum System (CEAS) was constructed, would begin to wobble as soon as the number of people arriving on the EU’s shores rose, leading to crisis-driven policy responses to prevent the migration regime from collapsing under the pressure of migrants’ refusal to be assigned to a country that was not of their choosing, and conflicts between member states.
As a result, the development of a European border, migration and asylum policy has been driven by crisis and is inherently reactive. This pattern particularly holds for the last decade, when the large-scale movements of migrants to Europe in the wake of the Arab Uprisings in 2011 put the EU migration regime into permanent crisis mode and prompted hasty reforms. As of 2011, Italy allowed Tunisians to move on, leading to the re-introduction of border controls by states such as France, while the same year the 2011 European Court of Human Rights’ judgement brought Dublin deportations to Greece to a halt because of the appalling reception and living conditions there. The increasing refusal by asylum seekers to surrender their fingerprints – the core means of implementing Dublin – as of 2013 further destabilized the migration regime.
The increasing refusal by asylum seekers to surrender their fingerprints – the core means of implementing Dublin – as of 2013 further destabilized the migration regime.
The instability only grew when in April 2015, more then 1,200 people died in two consecutive shipwrecks, forcing the Commission to publish its ‘European Agenda for Migration’ in May 2015. The 2015 agenda announced the creation of the hotspot system in the hope of re-stabilising the European migration regime through a targeted intervention of European agencies at Europe’s borders. Essentially, the hotspot approach offered a deal to EU member states: comprehensive registration in Europeanised structures (the hotspots) by so-called “front-line states” – thus re-imposing Dublin – in exchange for relocation of part of the registered migrants to other EU countries – thereby alleviating front-line states of part of their “burden”.
This plan however collapsed before it could ever work, as it was immediately followed by the large-scale summer arrivals of 2015 as migrants trekked across Europe’s borders. It was simultaneously boycotted by several member states who refused relocations and continue to lead the charge in fomenting an explicit anti-migration agenda in the EU. While border controls were soon reintroduced, relocations never materialised in a meaningful manner in the years that followed.
With the Dublin regime effectively paralysed and the EU unable to agree on a new mechanism for the distribution of asylum seekers within Europe, the EU resorted to the decades-old policies that had shaped the European border and migration regime since its inception: keeping migrants out at all cost through border control implemented by member states, European agencies or outsourced to third countries.
Considering the profound crisis the turbulent movements of migrants had plunged the EU into in the summer of 2015, no measure was deemed excessive in achieving this exclusionary end: neither the tacit acceptance of violent expulsions and push-backs by Spain and Greece, nor the outsourcing of border control to Libyan torturers, nor the shameless collaboration with dictatorial regimes such as Turkey.
Under the guise of “tackling the root causes of migration”, development aid was diverted and used to impose border externalisation and deportation agreements. But the external dimension of the EU’s migration regime has proven just as unstable as its internal one – as the re-opening of borders by Turkey in March 2020 demonstrates. The movements of illegalised migrants towards the EU could never be entirely contained and those who reached the shores of Europe were increasingly relegated to infrastructures of detention. Even if keeping thousands of migrants stranded in the hell of Moria may not have been part of the initial hotspot plan, it certainly has been the outcome of the EU’s internal blockages and ultimately effective in shoring up the EU’s strategy of deterrence.
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