At the Summit on 28 June the EU’s Member States have managed to discuss and reach some agreements on migration without the whole of the EU blowing up. Although the first verdicts are that nothing much has been decided reading between the lines of the European Council Conclusions there are some interesting developments – and not all negative.

1) European strategies not whole-of-EU agreements

It is self-evident that the separate but intrinsically linked questions of asylum and migration require collective European approaches but there is a move towards European strategies and away from EU strategies – the coalition of the willing approach. If nothing else, the last two years demonstrate that it is not possible to reach agreement across the 28. Trying to do so risks reducing everything to lowest common denominator – which given how low some countries are willing to go is very low indeed.

The mini-summit at the weekend with only 16 Member States present made progress in generating understanding and alternatives. While strategies that bring together groups of Member States is more efficient it may also be the best way to preserve the right to asylum in Europe – for now. Yes, every Member State should be a country of asylum and comply with existing European asylum law. However, the extreme anti-migration stance of some Member States means that they are also flagrantly violating EU asylum law and international law. Given this positioning, it is not possible to reach collective EU agreements.

The last two years demonstrate the deep divisions that persist but also 1) there are clear limits on the level of harmonisation on asylum and migration in the current political context and; 2) the misplaced approach of trying to provide EU legal solutions to political conflicts without political settlements first being reached.

The way forward now may be a patchwork of political agreements bringing together different groupings of states. There is still a crucial role for the EU itself. Agreement has not been reached on any of the legislative proposals. Point 12 of the Conclusions underlines that work will continue – much to the dismay of Austria.

But asylum is firmly part of the EU legal order, even if the legal framework remains unchanged. The focus of the EU institutions and agencies has to be on compliance and practical ways to implement the existing laws. At the same time, the EU can play a role in brokering European political agreements but these should be focused on preserving the right to asylum in Europe, defending European values, and upholding EU law, not on doing the bidding of political constituencies that promote anti-migration, anti-refugee but also (always) anti-EU approaches.

2) This is not about migration this is about the future of Europe

Indeed, the real agenda for the extremist/nationalist parties and governments is as much their anti-EU objectives as their futile battle against migration. These forces have an interest in maintaining the crisis: even as the numbers of arrivals in Europe fall, they continue to spout hysterically about terrorism and security and the end of the world. Fear and panic fuels their popularity among a small segment of the population. They use a sense of crisis to undermine the EU and to distract from their corruption and anti-democratic antics. The false notion that migration is the most serious security threat to Europe and that it is an existential threat to the EU is used to justify any measure, including those that undermine the rule of law and restrict civil society activity and other opposition, as well as the trend of illegal measures being proposed by interior ministers – the very people who are supposed to defend the rule of law.

Pandering to these forces on migration only makes them stronger. However difficult the centrist, mainstream parties, politicians and technocrats, must remain calm and stop repeating and absorbing the rhetoric, thinking and “solutions” of these parties. They must also stand up to the attacks on the rule of law. It is utterly self-defeating to accept the extremists’ framing of the issue. The belief that if migration is reduced then these parties will lose their power is mistaken. There are signals that this may finally be understood.

3) A road out of Dublin?

The mini-summit and bi-lateral meetings seems to have allowed for a certain rapprochement between the northern and southern countries, and in particular between Germany and Italy. One of the reasons for the deadlock on Dublin has been the insistence on maintaining the first country of arrival principle and indeed a proposed increase in responsibilities for the countries at the EU’s borders. ECRE has argued repeatedly that the failure to support a deeper reform of Dublin, combined with criticism of the southern countries, has fuelled anti-EU sentiment in Italy and led to the victory of the current government. The Commission and northern European countries are reaping what they have sown. There seems to be a better understanding of the concerns of the south – or at least a realisation that it is not enough to repeat that preventing secondary movement was part of the Schengen deal so just suck it up.

This is a positive development to be fostered. Continued debate and discussion and the move towards an alternative to the current rules that is fair both to asylum-seekers and to the Member States is essential in the long-term. Point 12 of the Conclusions states only that a consensus needs to be found on Dublin, based on responsibility and solidarity, but the speeches from Merkel and others indicate an openness to the deeper reform that may be needed.

This needs to continue. Europe has to have a functioning asylum system and that means a reform of the allocation mechanism. To say that it is impossible is to play into the hands of the extremists. The requested “speedy solution” is unlikely – and better to take longer and do it properly – and it may be that the group of countries with a common system shrinks, but so be it.

4) Still too much focus on externalisation however…

There is still too much focus on externalisation and closing borders but reports from the meetings and the positioning of governments indicates that a majority of Member States seems to grasp that it is simply not politically or practically possible to rely solely on external options, such as outsourcing all Europe’s responsibilities to other countries or fully preventing migration.

One of the most debated points in the Conclusions is point 5 on “regional disembarkation platforms”. The Conclusions charge the Commission and Council with exploring the concept “in close cooperation with relevant third countries” and IOM and UNHCR. The latter have produced a concept note which will be one of the bases for the plans. Widening discussions to include the European Parliament and civil society is crucial, as is the proposed involvement of the African Union.

ECRE supports European cooperation on disembarkation or a European regional disembarkation mechanism because the priority has to be to ensure that rescue ships are able to dock in European ports. The situation provoked by Italy’s new government whereby ships are left stranded in the sea for days, while macho posturing takes places, is unacceptable. Coordination among European coastal countries to divide responsibility, supplemented by a relocation mechanism involving other European countries, is a legal and practical way to ensure that ports are kept open. But key questions concern first, how relocation is managed, and second, how what is the nature of cooperation with North Africa.

It is positive that a wide group of Member States are willing to relocate disembarked persons. The functioning of the proposed “controlled centres” needs to be clarified. Processing needs to take place in full conformity with EU and international law. There are lessons from the hotspots. Relocation pledges have to be met and quickly so that the centres don’t become detention camps; Member States needed to avoid rejecting relocation candidates on spurious grounds; all persons need to be treated fairly and in accordance with EU and international law, including through individual assessment of cases. Nationality based approaches in hotspots served to generate tensions between groups. Above all, these should not become detention and deportation centres.

Such a mechanism could involve cooperation with North African Mediterranean countries but only within very strict limits. First, rescued people have to be taken to a place of safety and it is questionable as to whether any of the countries of North Africa fit that definition (it should go without saying – but doesn’t – that Libya is not a place of safety). Second, under international maritime law all coastal states are obliged to be able to deliver search and rescue as well as to coordinate with each other. The rescue part includes disembarkation in a place of safety, meaning protection from refoulement and other human rights violations. In addition, all countries should have functioning asylum systems.

Therefore, supporting the development in the long term of these capacities in North Africa is a useful role that the EU could play and it could be part of a regional mechanism. However, it is legally and ethically unjustifiable to plan to disembark people before sufficient progress has been made. Thus, any regional mechanism that is purely based on disembarkation outside Europe now will generate violations of EU and international law, as well as being politically unfeasible. The vision of the platform put forward by Council President Tusk and Commissioner Avramopolous, as well as the Austrians’ idea for “search and rescue centres”, will simply contribute to Europe’s refusal to accept its responsibilities and are more likely to undermine the development of SAR and asylum capacity in North Africa than to enhance it. A mechanism is worthwhile only if it contributes to keeping European ports open rather than to facilitating their closure through trying to switch all responsibilities to North Africa.

It is as yet unclear what if anything will emerge but at least one version of the plan includes centres for the external processing by Europe of asylum claims. “Offshoring” or the “Australian model” is the great fantasy of the externalisers and central to the Austrian Presidency’s plans. There are legal, financial, security and political concerns with external processing.

Legally, how would it be feasible to ensure compliance with EU asylum law and to guarantee basic legal rights, such as the right to legal advice, information and to effective remedy (e.g. a functioning appeal process) in such centres? The risk of human rights violations is high, as Australia’s miserable experiment demonstrates. Financially, managing such centres will be prohibitive. In terms of security, there a major pre-existing security challenges in all countries where such centres may be placed; in addition, they are likely to become magnets for organised crime in the form of smugglers and traffickers, as well as potentially leading to increased migration to the host country. Finally, it looks politically very unlikely that any country would be willing to host such a centre and if it did the risks of political disruption are high. Cooperation with the EU is already creating popular opposition in some countries, such as Mali; for others, such as Morocco, managing return of their own citizens from Europe is challenge enough without then hosting centres for third county nationals. Even Niger is becoming less pliant given the slow rate of acceptance by Europe of refugees evacuated from Libya.

Instead of spending yet more time and effort on trying to convince countries to take on Europe’s responsibilities when they have no interest in doing so, time should be spent on creating a functioning asylum system in Europe. This requires heads of state to give clear guidance to interior ministries to get on with their job instead of interfering in international relations. Their role is to manage asylum systems, including integration of beneficiaries of international protection, to devote adequate resources to safe and legal channels for those who need protection, and legal migration for others; to enforce the law in Europe instead of undermining it; and to tackle all genuine security threats not the perceived threat of refugees crossing borders. There needs to be a recalibrated threat assessment: what is the real threat to the EU and to European security? For most Europeans refugees crossing a border is not the number one security threat they see. Rogue governments that cooperate with Russia and repress their own citizens, misuse EU funds, and are infiltrated or manipulated by organised criminal groups look rather more worrying.

The same goes for DG Home. Point 9 of the Conclusions on the next Multi-annual Financial Framework (MFF) states that EU internal funding programmes should devote “significant components for external migration management” which is concerning but is at least better than the continued capture of external funding by migration control priorities.

EU external affairs policy and funding has of course has to cover forced displacement and migration but in a broad sense. Tackling the causes of forced displacement (not the causes of migration which is a natural, generally positive and certainly inescapable human phenomenon), supporting economic development, opening up legal migration, and tackling security threats. Point 8 in the Conclusions expresses support for a “substantial socio-economic transformation of the African continent” – great. The Conclusions state that the focus should be on “education, health, infrastructure, innovation, good governance and women’s empowerment”. This is the way forward not tawdry migration control agreements.

5) Still a long way to go

There are still worrying elements in the Council Conclusions, certainly in the framing and language, such as references to “uncontrolled flows” and the implication that the movement of people in 2015/2016 was “illegal migration”. People have the right to cross borders to seek protection; statistics from asylum systems show that the majority of those who arrived during the “crisis” were refugees. Even now, with the focus on Italy, the protection rate of those arriving there is 41% at first instance with the protection claims of still more people recognised on appeal.

In addition, the reinforcement of external borders remains a central focus – as though the EU currently had no borders. Return is still seen as a magic bullet and cooperation with the Libyan coastguard and the EU-Turkey Deal are too prominent, along with the facile mantra of “breaking the smugglers’ business model”.

The most worrying issue for many at the moment is the impending Austrian Presidency. The plans and the rhetoric coming out of the government are alarming. To hear what is said in public and to hear of what has been expressed in Council meetings by Austrian government representatives chills the bones. It is telling that even senior officials and diplomats – not just NGOs – find it evocative of the 1930s. Austrian attempts to externalise EU responsibilities for refugees and to prevent migration will not work – but could still a lot of damage. What requires more attention is their efforts to disrupt integration of refugees in Europe in their attempt to impose their idea of the ethnically homogenous Europe that never was. Their influence on the V4 countries and on the countries of the Balkans has to be actively countered.

Council Conclusions

There are signs that there may be a positive way forward: a move towards practical long-term thinking and new coalitions willing to defend the right to asylum in Europe. Background efforts to support fair and sensible legal reforms, supplemented by political agreements; a move away from the eternal crisis that just feeds the extremists and their anti-EU, anti-rule of law agenda. Political leaders and officials need to steer this course. We can but hope.

By Catherine Woollard, Secretary General for the European Council on Refugees and Exiles (ECRE)

Photo: (CC) Jameel Winter, March 2010

This article appeared in the ECRE Weekly Bulletin . You can subscribe to the Weekly Bulletin here.