When it comes to asylum in Europe, major implementation gaps remain, and violations remain unaddressed. At the same time, it is full steam ahead on the external dimension of asylum and migration policy, as ECRE’s analysis published this week shows. The publication of the AIDA country updates analysing asylum systems in Europe up to end 2020 has started and demonstrates that rectifiable weaknesses persist; a legal note looks at UN avenues for addressing the violations that continue.
On the other hand, this week also sees the publication of papers on asylum and migration in external policies. A policy note summarises the recent developments in efforts to use EU external policies to restrict migration to Europe, including the measures in the Pact, the final agreement on the external funding instrument, the NDICI, and the implementation of revisions to the Visa Code. A second policy note looks in detail at the agreement between the EU and Afghanistan, the Joint Declaration on Migration Cooperation (JDMC), which focuses on increasing deportations to Afghanistan.
Early next week, a joint meeting of the EU’s Foreign Affairs Council (FAC) and the Justice and Home Affairs Council (JHA) will take place, with the goal of making migration a “core element” of external relations that is set out in the Pact and at the heart of Commission plans for the future of asylum in Europe, illogically. This follows on from the fourth JHA meeting, including today’s, that have covered the same ground. In this context, a few reminders might be necessary.
Pre-empting a Pact
First, despite its name, the Pact has not been agreed and is not an agreement; it is a set of proposals for consideration by the co-legislators. The agenda for next week’s Joint Council treats the Pact, including the “Comprehensive Approach” covering external issues, as though it were a done deal, already an established part of EU law and policy. It is not. The Regulation on Asylum and Migration Management, the RAMM, attempts to codify the use of external tools in migration management but it is only a proposal – and fundamental questions have been raised about the legal basis of elements of the RAMM and other legislative proposals (inter alia) by the Council’s Legal Service. Meanwhile, the other co-legislator, the European Parliament, is reserving all judgment until a regulatory impact assessment has been completed.
It is premature, to say the least, to start implementing elements of the Pact, but as with the detention centres being constructed in Greece, provisions on crisis management, or the stealth expansion of EU agencies’ mandates, certain activities seem to start before political agreement and necessary changes to legal frameworks.
Part of the explanation may be that, as ECRE’s policy note indicates, the external part of the Pact is frequently discussed at JHA because it is not hostage to the same Member State conflicts as most other elements. And not only: it is even used tactically to build trust among them and to keep dialogue open.
Comprehensive should not mean capture
Second, the comprehensive approach is but the latest term for the internal-external policy nexus or internal-external security nexus. These are efforts to bring together EU internal policies and external foreign policies, with similar efforts at national level. While contradictory and mutually undermining policies are hardly desirable, as ECRE’s analysis of the RAMM and previous comments on CSDP and other external policies, argue, it is always a one-way street, with the direction of travel being objectives developed and promulgated on the internal “side” which should then be adopted or imposed on the external “side” and not vice versa. There is no concomitant attempt to shape internal politics and policy decisions by needs identified in and actors involved in diplomacy, for example. As with other “comprehensive approaches” – security and development and civil-military cooperation come to mind – the benign expression tends to mask efforts to influence or absorb other policy areas.
The attitude of external policy constituencies to the integration of internally defined migration objectives is not clear, and even the extensive world of analysts on EU foreign policy – not usually lacking in commentary on every nuance of EU external relations – has not looked in detail at this question. What will be the dynamics in the joint Council? Do foreign ministers simply accept the elaboration of partnerships with key countries by the domestic policy counterparts?
Of course, in many cases they agree with the use of external policies as a response to the EU’s asylum and migration “crisis”. There is also a sense that the migration agenda injects a new relevance into European and national diplomacy. Certainly, EU external policy can be a backwater, considered a minor area of policy, with the persistence of intergovernmentalism and the very different geographic and strategic interests of the Member States blocking progress.
On the other hand, there is also a quiet pragmatism in some external policy areas, where work continues on development, humanitarian and governance objectives, regardless of the latest efforts of home affairs actors to wield influence. Here, ECRE’s new Working Paper on external funding tends to bear out the argument that there is no take-over of external funding policy and programming, although it also shows negative consequences and increased risk of diversion of money to migration control that could be put to better use.
External dimension mission creep
A third point to remember is that the “external dimension” is an established part of EU asylum and migration policies and funding, and it should suffice. As for other primarily “internal” policies, from climate to employment to health, there is an external element because designing and implementing policies requires international cooperation, for instance on border management or return policy. The Pact pushes beyond this, intruding into external policies themselves, including by putting onto a more solid legal and operational basis the ideas in the largely moribund Partnership Framework. It is this mission creep that creates problems because it diverts the attention and resources of external policies, which have their own legal bases in the Treaties, own objectives, processes and wider international frameworks, towards EU migration objectives.
For all the talk of comprehensive approaches, the approach generates a new version of the “coherence” problem – the multiplicity of EU (and other European) actors operating in third countries. The creation of the EEAS was supposed to address this challenge by creating a coordinating or lead institution for external affairs. A new report analyses the many challenges the EEAS has already faced in its 10 years, not least due to the original carve up by the Parliament and Commission which served to stymie EEAS efforts to lead and coordinate. Nonetheless, as the same report finds, the great success of the EEAS has been the network of EU Delegations in +150 countries, representing the EU. The trend towards unified EU action at country level is disrupted by the increasing international activity of internal affairs policy makers – Commissioners, ministers on tour, the deployment of migration and return “liaison” officers into Delegations and embassies, and the increasing but ever-opaque activities of the EU agencies in third countries. Where integrating and dominating foreign policy doesn’t work, a new form of incoherence is generated by creating parallel structures.
Widening the debate: Displacement not Deportation
Finally, it is worth remembering that trying to detach migration from external policies is not likely to work; widening the approach may be more fruitful. ECRE argues that migration and forced displacement are important global issues and it is only right that they are part of external policies. Notably, forcible displacement is at record levels globally, due to persecution, repression, conflict and violence. Durable solutions are available to so few refugees they are hardly part of the debate.
The need is there. ECRE’s objection is to the narrow, Eurocentric agenda that is currently dominant in high-level political debate – and embodied in the Pact, the new partnerships it is giving rise to, and in agreements on EU funding. The global effort to prevent and alleviate the consequences of forced displacement is replaced by a narrow, almost obsessive focus on restricting movement of people who might eventually arrive in Europe (regardless of their protection needs), and leveraging international relations to facilitate deportation and return, as well as border control.
This narrow migration control agenda stimulates intense hostility in third countries, where it is (rightly) perceived as unrealistic, racist and unfair. The claimed “mutuality” of the partnerships under discussion on Monday is a figleaf: countries are variously brow-beaten into compliance through the threat of financial or practical consequences, with the use of visa regimes particularly effective, or they agree to EU demands with no intention of complying or in the knowledge that borders are porous, people move, and popular protests may ultimately hamper re-admission. Much more troubling is the complicity with repressive leaders who are ready to accept Europe’s coin or the cachet of cooperation in order to prevent people moving, to pull or push or accept them back, or whatever may be asked.
A wider approach would be based on respect for human rights because forced displacement is derived from the denial of rights; ECRE proposes that risk assessments should take place as the new funding is rolled out. The wider approach would also encompass the many positive contributions that Europe could make, including tackling the causes of forced displacement through effective and equitable development and trade policies, and security policies based on the security of populations (at risk of being) displaced, not exclusively on state security, as well as building up asylum systems and supporting offering emergency protection when needed.
Discussing the capture of external policies often provokes a defensive reaction, especially from development officials, who point out that most EU support in third countries is not about migration objectives, and insofar as it is, the focus is often the positive contributions mentioned above. For instance, in discussions on Afghanistan, ECRE’s concern about the centrality of deportation in EU-Afghanistan relations is often countered by references to the other activities taking place and funding that is not directly linked to with migration, or, where it is, how it involves providing for returnees from neighbouring countries, for example, rather than being related to deportation from Europe.
So where does the “migration money” go?
In order to better understand whether this is the case, and in the light of increased funding for migration proposed in the NDICI agreement, ECRE commissioned research into EU external funding for displacement, asylum and migration, also published today. The research uses open source information from the EU’s databases on funding and published documents to glean a picture of the breakdown by different type of activity under the relevant funding instruments, ranging from efforts to prevent displacement all the way through to efforts to restrict movement. Given that there is as yet no standardised way to categorise asylum, forced displacement and migration expenditure, ECRE developed its own typology and the author gathered the figures, instrument by instrument, and collated them, applying the typology.
One of the central conclusions is that there is no clarity on how much money is being spent externally by the EU on what exactly; a lack of clear objectives, results chains and indicators of progress further hinders both scrutiny and evaluation. Unsurprisingly, the creation of Trust Funds has added a further layer of complication and opacity. The country snapshots of Afghanistan, Sudan and Nigeria, suggest reasons for concern, such as spending that might actually exacerbate the causes of forced displacement.
Due to particular limitations of the dataset, as described in the paper, as well as the absence of agreed data codes, circumspection is necessary when drawing conclusion, nonetheless, it can be seen that there is negligible spending on development of asylum systems and very limited spending on mobility and legal migration (for asylum and non-asylum migration). On the positive side, the bulk of funding appears to be support for displaced populations – commensurate with the EU’s role as a major humanitarian donor, with most of its humanitarian assistance going into situations of displacement. There are also significant amounts of funding being allocated to measures aimed at reducing and restricting migration, however.
Overall, more worryingly, the picture provided by the research is one of money being thrown at a perceived problem, in response to political demands, without a clear idea what the objectives are, let alone whether or not they are being achieved. Combined with ECRE’s previous working papers commissioned from African experts on the impact of EU policies and their recommendations for improvement, this latest batch of analysis indicates a way forward that is less damaging to displaced people and that may at least take into account the interests of other countries.
Better and worse funding for displacement
Earmarking of EU external funding for migration is happening, but it must cover the widest possible swathe of activities related to asylum, forced displacement and migration. The eligible categories need to be standardised and results need to be measured, as happens rigorously in other areas of external funding, especially development and humanitarian assistance. The same professional standards of data tracking and transparency should at least be expected as in other areas, as well as the application of legally defined objectives and international policy commitments. The needs and interests of the people directly affected and their legitimate representatives have to be central, along with detailed analysis of the context and long-term multi-pronged responses; otherwise no impact is likely.
The key challenge remains ensuring that external policies, and perhaps security and trade and investment in particular, are used to tackle the causes and consequences of displacement without being diverted to EU-specific goals of restricting migration. The dilemma is that the best way to address displacement, and one which would likely, ultimately, reduce movement to Europe is for external policies and funding to be left alone to meet their own objectives. This is not realistic in the current context, so widening of the types of activities to be carried out and better demonstration of the links between displacement and other objectives becomes necessary.
Amidst the clamouring of interior ministries to throw some money at other countries to stop migration, those working in international relations need to re-assert their expertise and their right to lead this work, backing up leaders and populations subject to these policies when relevant. All of this must not be a substitute for a functioning asylum policy in Europe, and for the rational, human rights-based and economically-driven migration policies that Europe needs. For now, the proposals that form part of the Pact are far from agreed, so selected elements should not be prematurely operationalised. Indeed, there is more than enough to be done in Europe and at its borders, without the continued same old efforts at manipulation of external policies. For these policies, development, external security, trade and investment implementing and demonstrating the whole plethora of possible measures to tackle and prevent displacement would better respond to the interests of both the EU and the affected populations.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)