European Migration Policy Before the “New Pact”: Eroding Solidarity

In the context of the EU-Turkey statement, it has often been held that member states would only re-commit to solidarity and the rule of law in migration policy if arrival numbers are kept low. In fact, the opposite has been the case, argues Therese Herrmann.

Therese Herrmann, University of Duisburg-Essen

Five years after migration rose to the forefront of the EU‘s political agenda in 2015, and four and a half years after, beginning with the EU-Turkey Statement, European heads of state settled on an agenda of externalizing responsibility for asylum seekers to third countries, European migration policy is in a dismal state. This much, it seems, all parties can agree on.

Looking at the current situation in Greece’s hotspots and the routine violation of fundamental rights it exposes asylum seekers to, it is hard to miss the cynicism of Europe’s perpetual “migration crisis”. The rationale for the EU-Turkey statement has been that member states would only re-commit to the principles of solidarity and the rule of law in European migration policy if arrival numbers are kept low – an approach that in all likelihood the European Commission will continue in its „New Pact on Migration and Asylum“. In fact, the opposite has been the case.

Although enshrined in the EU’s founding treaties, solidarity in European migration policy has grown perpetually less enforceable and, by now, hardly seems to exceed the standards of humanitarian commitments when it comes to the relocation of asylum seekers. Simultaneously, a growing number of member states has unilaterally suspended rules applicable under international or Union law concerning the reception of asylum seekers. Although right-wing nationalist governments have been most public about it, the problem is not limited to a few rogue states.

From Solidarity to Humanitarianism: Europe’s Relocation Discussions

Even though the interception measures implemented as a result of the EU-Turkey Statement have drastically reduced the number of arrivals on the Greek islands, conditions for the reception of asylum seekers in Greece have worsened. Already found to be dignity-defying in 2011 by the European Court of Human Rights, reception conditions in Greece have further deteriorated with the transformation of hotspots into closed migration control centres as a result of the EU-Turkey statement. The five hotspots on the East Aegaen islands are widely reported to be far in excess of their capacity. International organisations and NGOs have consistently documented violations of fundamental rights on the islands, as have the European Council’s anti-torture committee and the EU’s Fundamental Rights Agency. The rights concerned under the EU’s Charter of Fundamental Rights include the prohibition against inhuman and degrading treatment (Art. 3), the rights of the child (Art. 24), but also of the right to asylum and protection against unlawful removal (Art. 18) and the right to an effective remedy and a fair trial (Art. 47).

It is hard to blame the hotspots’ systematic shortcomings on a lack of resources alone, especially where the material conditions of reception are concerned. Given that the hotspots have the full operational support of the European Union, it is difficult to imagine that resources are too scarce to provide for running water, beds, and basic health care. Rather, it seems that hotspots’ function as return centres creates incentives to sustain conditions that are deliberately deterring to would-be migrants – and, indeed, punitive to those already there.

It has often been invoked that the externalisation of asylum procedures through hotspots is a condition for member states’ willingness to participate in the inner-EU relocation of refugees and asylum seekers. But member states’ commitment to relocate, even in the face of Greece’s dismal reception conditions, remains limited after the EU-Turkey statement and has become increasingly less binding. In September 2015, the European Council set mandatory quotas for member states to relocate a total of 160.000 asylum seekers from Italy and Greece, using its powers under Art 78 (3) TFEU to adopt emergency measures for the benefit of member states under particular migratory pressure. Under 20% of these were actually relocated when the programme expired towards the end of 2017. While European Court of Justice confirmed this year that Poland, Hungary and the Czech Republic have infringed upon EU law by not taking in any asylum seekers under the relocation scheme, other member states have also remained well behind their quotas, often deliberately.

Eager to depict the relocation schemes as positive examples of European solidarity in migration policy, the Commission still called them a success, arguing that changes in the admissibility of asylum claims following the EU-Turkey statement had reduced the actual need for relocation. Meanwhile, the overcrowded camps on the Greek islands kept tens of thousands of asylum seekers waiting in conditions known to be rights-violating, often for over a year. The EU’s relocation scheme proceeded to exclude those who arrived in Greece after the EU-Turkey statement became operable on March 20, 2016, even though the statement’s legality continues to be contested and the majority of asylum seekers arriving on the Greek islands are found to be eligible for protection in the EU in spite of it – on grounds of vulnerability, family reunion under the Dublin Regulation, or because it has been found that Turkey cannot guarantee them the protection that a so-called “safe third country” or “first country of asylum” would have to afford.

Even though the conditions in Greece’s hotspots were well-known and a network of local governments and civil-society groups has been lobbying governments to allow communities to take in asylum seekers from the Greek islands on humanitarian grounds, it was only after Moria’s fire directed the public eye back to the island’s catastrophic conditions that discussions on relocations were taken up again. Re-committing to plans it had postponed in March 2020 because of the Covid 19 pandemic, Germany, along with six other European countries, pledged to take in 408 families from Greece. But pledges come reluctantly, are strictly voluntary and, in Germany’s case, apply to recognized refugees and a narrow class of vulnerable people only. This moves intra-European relocation closer to resettlement from non-European countries and away from anything resembling a binding responsibility-sharing mechanism. And, in exempting those waiting for fair asylum procedures in the hotspots, it misses the point that asylum seekers, too, are rights-bearers, and have been withheld those rights through the hotspots’ structural deficiencies.

Opt-outs of Legal Commitments

At the same time as the standards for solidarity in European migration policy are weakened, legal rules as a whole seem to have become less binding in the migration area. In March 2020, following announcements by Turkey that it would no longer prevent migrants from crossing the border into its neighbour state, Greece declared that it would suspend the registration of asylum claims. Though there was near unanimous consensus that this represented a breach of Greece’s obligations under the Geneva Convention, it received full backing of the European Commission. This was sustained even as a New York Times investigation found evidence that Greece had secretly expelled asylum seekers who had already reached its territory, abandoning them at sea on floating rafts they were forcibly put on. In a prior incidence in 2018, Italy’s then Interior Minister Matteo Salvini decided to close Italian ports to migrants rescued at sea, violating Italy’s obligations under international law.

But beside these prominent occasions, other member states have also taken a selective approach to legal commitments. A number of member states sought to de-escalate the situation in Italy by issuing a joint declaration of intent, known as the Malta Declaration, to set up a “temporary solidarity mechanism” through which migrants rescued at sea by private vessels could be quickly distributed across participating member states. This was hailed as a break-through in European solidarity in the face of the challenge by right-wing nationalist governments. However, the mechanism is not only strictly voluntary, it also bypasses existing Treaties, raising questions whether relocation procedures will comply with the minimum standards of the EU’s asylum acquis.

Developments since 2018 have shown that an ad-hoc, intergovernmental style of European migration policy-making would not be limited to emergency situations. Following stalemate in the renegotiations of the Common European Asylum System (CEAS) and a highly-publicized internal row between Chancellor Merkel and her interior minister, Horst Seehofer, over the legality of push-backs at Germany’s southern border, Germany proceeded to negotiate bilateral re-admission agreements with Spain and Greece. These would allow Germany to refuse entry to asylum seekers fingerprinted in either of these countries and directly return them without further legal procedure, bypassing both the Dublin Regulation and the Schengen Borders Code. The arrangement has been criticized not only for eroding the procedural safeguards and fundamental rights that form the basis of the Dublin Regulation, but also because it undermines member states’ readiness to commit to binding rules under a Common European Asylum System, both current and future.  

Outlook

Four and a half years after the EU-Turkey statement, European migration policy is driven by a potpourri of common rules, intergovernmental arrangements and unilateral action, whose shared claim to work in the name of European solidarity can only be upheld because the standards of what solidarity would entail in the first place are perpetually lowered, and detached from the rule of law. The EU-Turkey statement and the migration partnerships that EU institutions and member states subsequently concluded were justified as conditions for member states’ (re-)commitment to binding rules of responsibility-sharing. But, so far, it seems like they work in the opposite direction.

Europe’s third country deals and the deterrence measures associated with them work on the implicit assumption, often repeated in public discussion, that asylum seekers are obligated to remain in transit countries presumed to be safe for them. But in Turkey’s case, the safe third country approach can neither be shown to be legally tenable, nor has the Greek asylum authority found that the presumption of safety in Turkey would in fact apply to a majority of asylum applicants. The air of illegality meanwhile ascribed to asylum seekers in the hotspots not only contributes to the hotspots’ sub-standard conditions, it also discourages member states from relocating asylum seekers. Once commitments to asylum seekers arriving at Europe’s shores have been framed as merely humanitarian, rather than as based in international and Union law, it seems harder to justify to national publics why they should participate in setting up a binding responsibility-sharing scheme at all. In this way, it appears, an external and an internal commitment to the rule of law are related.

Therese Herrmann is a researcher in Political and Legal Theory at the University of Duisburg-Essen. She can be contacted at therese.herrmann@uni-due.de.

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