Steve Peers

The EU faces another crisis alongside “Grexit” and “Brexit”: a surge in immigration. Initial EU responses culminated in an emergency summit in April. I previously discussed the outcomes of that summit. Subsequently, the Commission released its EU migration “Agenda” in mid-May, followed by detailed proposals. Last week, the European Council revisited immigration, reaching several conclusions. This post outlines those conclusions and offers my commentary. The third part of the conclusions, which vaguely promises increased cooperation with third countries, is omitted.

Comparing the final text with the last draft of the summit conclusions is insightful. For easy comparison, changes between the penultimate and final versions are highlighted below. Underlined words were added, while strikethroughs indicate deletions.

I. MIGRATION

1. Europe requires a balanced, comprehensive migration approach based on solidarity and shared responsibility. Following the European Council’s April decisions, concrete measures have been taken to prevent further loss of life at sea, find new ways to combat smugglers, and strengthen cooperation with origin and transit countries while upholding the right to seek asylum. The EUNAVFOR MED mission, authorized by the Council on June 22nd, is a significant step in this direction. Operational action against traffickers and smugglers, conducted in line with international law, is crucial to this approach.

The EU’s anti-smuggling mission is officially underway. However, phases two and three (destroying the boats) require endorsement from either the Libyan government or the Security Council. Details and criticisms can be found here.

2. Building upon the Commission’s European Agenda on Migration, all aspects of this comprehensive and systemic approach should be advanced.

The summit conclusions actually address much of the Agenda’s detail.

3. Containing the increasing flow of irregular migration requires broader efforts, including reinforced management of the Union’s external borders. The European Council concentrated on three key areas requiring parallel development: relocation/resettlement, return/readmission/reintegration, and cooperation with origin and transit countries. The Council will regularly evaluate progress in all three areas and report its findings later this year.

As mentioned, this blog post omits the third dimension: cooperation with countries of origin and transit.

Relocation/resettlement

4. Given the current crisis, our commitment to enhanced solidarity and shared responsibility, and adhering to its April decision, including paragraph 3, the European Council agreed on the following interconnected measures to assist 60,000 individuals:

Paragraph 3 of the April conclusions refers to EU interception, search, and rescue missions in the Mediterranean. It’s noteworthy that these missions aren’t explicitly mentioned in the latest conclusions.

a) Over two years, temporarily and exceptionally relocate 40,000 people in clear need of international protection from the frontline Member States of Italy and Greece to other Member States, with all Member States participating;

The final version adds a footnote stating that the UK will not participate. The 40,000 figure aligns with the Commission’s proposal, as does the two-year timeframe and the focus on Italy and Greece. The phrase “persons in clear need of international protection” suggests a focus on Syrians and Eritreans (as the Commission proposed), given their high refugee claim success rates.

b) By the end of July, the Council will rapidly adopt a Decision establishing a temporary and exceptional mechanism for this purpose; all Member States will reach a consensus on the distribution of these individuals, considering each Member State’s specific circumstances;

While there’s a commitment to a legally binding text, its content will likely differ significantly from the Commission’s proposal, as many Member States oppose the idea (or specifics) of the Commission’s distribution proposals. Adding “consensus” to the distribution agreement effectively makes the numbers accepted by each Member State voluntary, despite the Treaty calling for qualified majority voting on this matter. The added “specific situations” reference (according to press briefings) aims to exempt Hungary and Bulgaria from obligations given their current influx of asylum-seekers. Achieving the legally binding target of 40,000 asylum-seekers seems challenging if Member States only volunteer numbers. If a Decision with such an obligation is adopted, but admission offers fall short, enforcing the numbers could raise interesting legal questions.

c) Establish reception and structured first reception border zones and facilities in frontline Member States. Active support from Member State experts, EASO, Frontex, and Europol will ensure swift identification, registration, and fingerprinting of migrants (“hotspots”). This enables the identification of those needing international protection. The Commission, in close cooperation with hosting Member States, will draft a roadmap by July 2015 outlining legal, financial, and operational aspects of these facilities;

“Structured border zones,” present in the earlier draft, has been altered, possibly due to perceptions of quarantine. Frontex, the EU border agency, and EASO, the EU asylum support agency, lack inherent powers to fingerprint migrants. However, they can coordinate Member State actions. Europol’s involvement, the EU police agency, seems unclear, and the conclusions seemingly call for it to overstep its legal authority. While Europol could investigate smugglers, the conclusions only mention involvement in immigration law processes.

Fingerprinting irregular migrants and asylum-seekers crossing external borders is a long-standing obligation under the Eurodac Regulation. However, frontline Member States have been accused of non-compliance. Increased fingerprinting would facilitate returning irregular migrants from other Member States like the UK under the EU’s Dublin rules if they travel to another Member State and seek asylum.

The Commission recently published a paper on coercive methods for fingerprinting migrants.

d) Provide immediate, enhanced financial assistance to frontline Member States, helping alleviate the costs associated with receiving and processing international protection applications;

An emergency increase in the EU budget has already been approved.

e) All Member States will participate in resettling 20,000 displaced people in clear need of international protection, through multilateral and national schemes, reflecting Member States’ individual situations.

This aligns with a non-binding Commission Recommendation already adopted. Resettlement involves transferring individuals directly from refugee camps in countries like Lebanon or Turkey. “Displaced persons” also encompasses Syrians in camps within Syria. Legally, they aren’t “refugees” since they haven’t left their home country. Instead, international law refers to internally displaced persons with significant protection needs as “displaced persons.” They could qualify as “refugees” upon reaching the EU, having left Syria. The UK has pledged a minor increase in its limited refugee resettlement numbers.

Return/readmission/reintegration

5. Combating irregular illegal migration requires effective return, readmission, and reintegration policies for individuals not eligible for protection, discouraging people from risking their lives. All tools should be leveraged to facilitate the readmission of irregular illegal migrants to their origin and transit countries, drawing upon the ideas the Commission presented at the June 16th Council meeting.

Note that “illegal” was changed to “irregular” to address concerns about using “illegal” A footnote references the letter, discoverable through Google, but attaching it as an Annex to the Conclusions would improve transparency. However, the Commission letter’s text and a discussion can be found here.

Importantly, this section only pertains to individuals ineligible for refugee status or other forms of protection. Some press reports, based on leaked draft conclusions, suggested the EU wants to return all migrants. This is demonstrably false: this section clearly applies to “those not qualifying for protection,” and the initial section not only aims to relocate those needing protection within the EU but also to bring in more. Given a significant portion of migrants are from Syria and Eritrea, with high asylum claim success rates, any claims that the “vast majority” crossing the Mediterranean are economic migrants are patently false.

Specifically:

a) The High Representative should initiate high-level dialogues with the primary countries of origin for irregular migrants as soon as possible, working closely with Member States. The Council, in conjunction with the Commission, will prepare a comprehensive package to support negotiations with relevant third countries;

Since most issues here aren’t strictly foreign policy matters, the High Representative should only participate as the Commission coordinator, not the foreign policy representative. This appears like an internal Commission power grab, though she likely holds more political sway than the Home Affairs Commissioner. A parallel power struggle might be occurring between national foreign and interior ministries.

b) The Commission will ensure the prompt implementation of readmission commitments, particularly those under the Cotonou Agreement, and expedite ongoing readmission agreement negotiations. Simultaneously, new negotiations with other third countries will be launched;

Ongoing negotiations involve Belarus (near completion), Morocco, and Tunisia. Talks with Algeria and China were approved years ago but never commenced. “Cotonou” countries are sub-Saharan African, Caribbean, and small Pacific island nations, though the conclusions clearly refer only to African states.

c) Employing a “more-for-more” approach, EU assistance and policies will incentivize the implementation of existing readmission agreements and the conclusion of new ones. Trade agreement commitments regarding the temporary presence of individuals for service provision should incentivize concluding readmission agreements. Development policy tools should bolster local capacity-building, including border control, asylum, anti-smuggling efforts, and reintegration;

The EU secured readmission treaties with most eastern and southeastern countries through visa facilitation deals and, sometimes, the promise of future visa waivers. Visa facilitation has also been offered to Morocco and Tunisia. Recent documents suggest the EU is unwilling to offer visa facilitation to sub-Saharan African nations, hence the novel idea of offering service provider admission instead. While the market access aspect of service provision applies to all Member States (including the UK), immigration law aspects (like facilitated visas and permits solely for this group) arguably fall under immigration law, where the UK opt-out applies. The Commission’s migration agenda mentioned plans to propose rules on this, but didn’t link them to readmission.

Regarding development policy funds, these also apply to all Member States unless external funds within home affairs budgets are utilized. This phrase might also encompass national development policy budgets. The crucial question is whether this is new money or if it will be diverted from existing initiatives like building schools, hospitals, or supporting human rights advocates.

d) Member States will fully implement the Return Directive, maximizing the use of all provisions to guarantee the swift return of irregular migrants. Member States will input return decisions into the Schengen Information System;

While fully implementing existing law sounds reasonable, the aforementioned Commission paper encourages Member States to detain irregular migrants for as long as possible and utilize Directive derogations, potentially justifying limited judicial review and detaining irregular migrants (including families) in prisons alongside convicted criminals. Further commentary on this can be found here.

Some or all entry bans are already in the Schengen Information System (SIS), and the Commission plans to propose legally mandating the inclusion of all entry bans. However, inputting all return decisions into SIS is new, as not all result in entry bans. This is the first new data category added to SIS since its inception and will require time, money, and new EU legislation to implement.

The UK, not participating in the Schengen system’s immigration aspects, won’t access this data. While it can access the Eurodac database, which contains information on asylum applicants and those irregularly crossing borders in other Member States, this access is limited to instances where those individuals subsequently apply for asylum in the UK.

e) By July 2015, the Commission will outline how Frontex will provide immediate return support to frontline states. The Commission announced its intention to propose amendments to the Frontex Regulation, strengthening Frontex’s role, notably enabling it to initiate return missions;

The Commission paper also suggests Frontex should arrange return flights from third countries and handle expulsions from single Member States. The latest amendments to the Frontex Regulation in 2011 permitted Frontex to possess its own assets. Perhaps “Air Frontex” is on the horizon - the one airline you’d never want to fly.

f) To expedite asylum application processing, the Commission will, by July 2015, outline measures for EASO to coordinate the implementation of “safe country of origin” provisions within the Asylum Procedures Directive. The Commission indicated its intent to strengthen “safe country of origin” provisions in the Asylum Procedures Directive, potentially including a common EU list of such countries;

EASO’s role here is unclear, as it cannot decide on asylum applications but can only offer guidance. The Council attempted to agree on a common “safe country of origin” list in 2005 but failed. While including countries with a 99% application failure rate is straightforward, the inclusion of countries with even a 10% or 20% success rate becomes contentious, as it impacts a significant number of people whose claims might not be adequately assessed.

g) Adequate resources will be swiftly allocated to support an effective EU return policy. Furthermore, the Commission is invited to submit proposals in this regard during the 2016 EU budget discussions and establish a dedicated European Return Programme.

This implies increased funding for removals. It appears the “European Return programme” is simply a formal name for this funding to increase visibility.

Final Comments

Some analyses deem the summit a failure on immigration due to the Member States’ refusal to agree to binding refugee relocation quotas. However, this is not necessarily accurate. The summit conclusions still mention adopting a binding measure to relocate 40,000 individuals. If Member States ultimately relocate 40,000 refugees, the method becomes less relevant. However, replacing quotas with voluntary offers makes achieving this number less likely, potentially leading the Council to abandon the Decision altogether.

That said, even relocating 20,000 or 30,000 instead of 40,000 would alleviate pressure on Greece and Italy, significantly exceeding past relocation figures. This commitment implicitly acknowledges the Dublin system’s failure. Additionally, the pledge to resettle 20,000 represents a greater EU contribution than previously seen.

However, these positive steps are counterbalanced by the return and readmission decisions. A quid-pro-quo seems to be in play, trading a more generous asylum policy for stricter irregular migration control. This highlights the importance of Member States implementing EU law. The Commission has pledged to encourage Member States to apply the Directive as restrictively as possible. Therefore, NGOs and migrants’ legal advisors must monitor the practical application and challenge it when necessary.

“The Commissioner suggested it” is insufficient legal grounds for detaining families alongside convicted criminals while limiting judicial review. Any Member State seeking to apply exceptions to detention standards within the Returns Directive must demonstrate that “an exceptionally large number of third-country nationals to be returned places an unforeseen, heavy burden on the capacity of a Member State’s detention facilities or its administrative or judicial staff,” presumably separately (overburdened facilities don’t necessarily equate to overburdened judges, and vice versa). The derogation must end when conditions change and the Commission must be informed. CJEU case law (Kamberaj) suggests that omitting this procedural requirement invalidates the decision to lower detention standards. There are strong arguments that the derogation clause itself is invalid, violating Charter rights to family life, access to court, and children’s rights. At a minimum, it requires interpretation in light of those Charter rights and the similar protections outlined in Article 5 of that Directive.

Barnard & Peers: chapter 26

Photo: Zaatari refugee camp in Jordan, by US Department of State