The measures taken by the EU on asylum should be guided by a lawful and sincere humanitarianism.
In the wake of the ‘refugee crisis’ of 2015-16, the management of the Common European Asylum System entered a second stage. While earlier the European Commission had sought to resolve conflicts among member states—mainly over the relocation and secondary movements of refugees—in this second stage the focus has been on curbing the total number of arrivals in Europe and addressing the issue of returns.
‘Outsourcing’ agreements with third countries have become pivotal features of these new policies. In this perspective, a lower number of asylum-seekers arriving in Europe could ease frictions among states and strengthen the cohesion of European construction. To this end a number of initiatives and programmes have been launched, most notably the Migration Partnership Framework (MPF) endorsed in mid-2016 by the European Council.
The MPF urges third countries to collaborate in discouraging departures, having effective exit controls and halting new arrivals into the EU from their territory. Legal pathways are also envisaged to help those entitled to enter Europe through safe channels. In the long term, the main aim is ostensibly to address the root causes of irregular migration by supporting the economic, social and political development of third countries.
The 2016 agreement with Turkey and the Memorandum of Understanding with Libya the following year are well-known precedents. But similar agreements have been undertaken with Albania, Afghanistan, Egypt, Tunisia, Morocco and Senegal, among others.
The official premises of these actions are noble, including saving lives in the desert and at sea and dismantling networks of people-smugglers. Scrutinising the details of implementation however raises a number of concerns. First, the whole process of externalisation has numerous inconsistencies with the rules contained in the directives on the management of asylum and the principles of the EU Charter of Fundamental Rights and the European Convention on Human Rights.
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Next, homing in on the legitimacy of third-country border controls, these are equivalent to a pushback, infringing the core principle of non-refoulement in the Refugee Convention of 1951. This is according to influential legal interpretations: the United Nations high commissioner for refugees, the UN Human Rights Committee monitoring the 1966 International Covenant on Civil and Political Rights (article 5) and the European Court of Human Rights (three case-law instances).
Also at issue is the principle of non-discrimination, contained in the Geneva convention and articles articles 18, 21 and 55 of the EU charter. This would be infringed by, among other things, insufficient transparency as to the selection in third countries of individuals given access to legal pathways.
Apart from these questionable legal grounds, general perplexities arise as to how these agreements have been concluded. Defending a case taken by a Pakistani asylum-seeker who had found himself on Lesbos, the European Council denied that they had been made on behalf of the union—for which a procedure is set out, including the role of the European Parliament, in article 218 of the Treaty on the Functioning of the European Union. Rather, they were purportedly the result of agreements between individual member states and third countries. In 2017 the Court of Justice of the EU supported the European Council, reaffirming the capability of member states to represent the union in relations with third countries.
To this a Council of the EU ‘non-paper’ of April 2022 adduced a substantial innovation: the union’s delegations abroad were encouraged to give priority to secret readmission ‘arrangements’. It said that this represented ‘an alternative conducive to swift results for third countries with which there was an urgent need to improve cooperation’ (emphasis in original), with the ‘possibility to keep the arrangement confidential’. This would abandon the principle of ‘sincere cooperation’ among the EU institutions, stipulated in article 13(2) of the Treaty on European Union, since the parliament is completely left out.
Financial support under the MPF is ‘conditional’ on the co-operation of third countries in the reduction of migration flows. The impact on the human rights of those affected will thus not be disclosed with due transparency—corresponding to the political need not to stimulate harsh criticism of such a departure from the humanitarian principles in the founding texts of the union.
These developments have delicate, if not serious, repercussions. The EU’s image has been tarnished, at home and abroad, by adopting arrangements which clash with its underpinning humanitarian principles. In essence the council has renounced the requirements of transparency, public scrutiny and accountability in the Lisbon treaty, which sought to ‘constitutionalise’ the union in the wake of the failed project to draft a European constitution as such.
Even though article 218 of the TFEU sets a threshold on the centrality of the EU institutions—essential if the rise of nationalisms in Europe is not to be exacerbated—the MPF and related devices exacerbate the situation by giving states the ability to make confidential, undisclosed agreements. As studies on migration suggest, the EU seems to be moving towards ‘soft law’ approaches, foregoing the rule of law and the hard-law construction that could strengthen European political integration.