Dr Céline Hocquet, Teaching Fellow, Birmingham Law School, University of Birmingham

Photo credit: Issam Barhoumi, via Wikimedia Commons

As the EU proposes yet another collaboration with a non-EU nation to manage migration beyond its borders, it’s crucial to critically examine the EU’s externalization policy and its use of informal cooperation. This analysis should consider the historical, legal, and political context of the EU’s external migration and asylum policy.

From the EU-Turkey to the EU-Tunisia deal?

On June 11th, the EU and Tunisia agreed to collaborate on a comprehensive partnership package encompassing various areas like economy, energy, and migration. Notably, both parties declared the fight against irregular migration and preventing loss of life at sea as shared priorities. This includes addressing migrant smuggling, human trafficking, strengthening border controls, and enhancing migrant registration and return processes. In return, the EU pledged 100 million euros for border management, search and rescue, anti-smuggling, and return operations. Additionally, a 1 billion euro investment plan for Tunisian economic development, including projects in the digital and energy sectors, was offered.

Those familiar with EU migration law and policy will likely find this situation familiar.

Back in March 2016, following a meeting with Turkish representatives, the European Council released a press release. The EU-Turkey Statement, commonly called the EU-Turkey deal, proposed containing and returning all irregular migrants arriving in Greece from Turkey in exchange for 6 billion euros in EU funding.

At the time, the EU characterized migrant arrivals through the Mediterranean Sea as a “crisis.” The EU emphasized the exceptional nature of migration flows, the high number of migrants arriving on European shores, and the tragic loss of life during sea crossings. This framing presented the situation as both critical and unprecedented, highlighting perceived threats to the EU’s stability and security, or its asylum system. Consequently, swift and exceptional measures were deemed necessary to address this “crisis” and its perceived disruptions. These measures primarily focused on controlling irregular migration and EU external borders, particularly through externalizing controls to non-EU countries and entities.

The EU-Turkey Statement, credited with swiftly reducing migrant arrivals from Turkey to Greece, was quickly seen as a potential blueprint for future EU migration and asylum policies. Despite criticism regarding its informal nature and potential threats to migrant and asylum seekers’ rights, similar non-binding and opaque partnerships, such as the 2017 Italy-Libya memorandum of understanding or the 2016 Afghanistan-EU Joint Way Forward, were established between the EU or its member states and third countries to facilitate the return and/or containment of unwanted migrants.

Examining the roots of EU informal cooperation on migration

My PhD thesis focuses on the EU’s growing reliance on informal cooperation arrangements with non-EU nations to manage migration. Specifically, my research investigates how characterizing migrant arrivals to Europe as a “crisis” impacts the EU migration and asylum law system. Rather than solely focusing on informal cooperation as a result of this so-called “crisis,” I argue for the importance of understanding these developments within the broader context of the EU migration and asylum law system. This perspective allows us to move beyond crisis-driven narratives of emergency and security and grasp the historical development of the EU’s use of informal cooperation to externalize migration and border controls.

Through an iterative approach, I examined the emergence and early development of the EU migration and asylum law system, particularly some of its key measures. My analysis demonstrates that informal cooperation, as seen in agreements like the EU-Turkey Statement, the Afghanistan-EU Joint Way Forward, or the Italy-Libya Memorandum of Understanding, is not a new phenomenon resulting from the unique circumstances of 2015-2016. Instead, these developments are deeply rooted in the history of EU external migration and asylum policy. My research identifies several persistent trends within the EU migration and asylum law system throughout its evolution, one being the utilization of informal and diverse cooperation frameworks and measures that circumvent established procedures and fundamental rights guarantees.

The lasting impact of the intergovernmental era

The development of a common approach to asylum and migration law at the then-EEC level reveals the significant role of informal cooperation among member states. Long before the 2015 crisis, member states engaged in informal cooperation through intergovernmental initiatives, notably the Trevi Group. Established in 1975 by the European Council in Rome as an ad hoc group of interior ministers, the Trevi group initially focused on counter-terrorism efforts before expanding its scope to include asylum and immigration in the 1980s. This informal cooperation resulted in the adoption of several soft law measures in the field of immigration and asylum that continue to impact the common migration and asylum law system. For instance, the Dublin Convention and its related implementation acts were initially agreed upon within this ad hoc group before being incorporated into the acquis communautaire and formalized by Maastricht. This highlights the crucial role of informal and opaque cooperation in shaping common migration and asylum policy. The use of informal cooperation to bypass existing frameworks is not unusual in EU migration and asylum law. Therefore, informal cooperation agreements with third countries are not solely a product of exceptional circumstances in 2015-2016 but rather align with the historical practices of common migration and asylum policy.

Tampere and the comprehensive approach to migration

While EU cooperation on migration with non-EU nations initially centered on formal EU readmission agreements, the use of informal and diverse tools is not new. In 1999, the Tampere European Council called for a comprehensive approach to external migration policy. This involved diversifying external migration-related measures by utilizing other EU external action tools and addressing “political, human rights and development issues” in third countries as a means to reduce immigration to the EU. The Cotonou Agreement, signed on June 23, 2000, is considered the first example of diversified EU externalized migration and border controls. While primarily focused on EU development cooperation with African, Caribbean, and Pacific states, the agreement also included readmission clauses to facilitate the return of migrants residing irregularly in the EU. This reflects the expansion of EU migration-related cooperation into other areas of external action. Therefore, the allocation of 6 billion euros in funding in exchange for Turkey’s cooperation on migration containment is not a practice unique to the crisis context surrounding the EU-Turkey deal.

The EU’s Global Approach to Migration and Mobility and political agreements

Following the adoption of the Global Approach to Migration and Mobility (GAMM) in 2011, the EU introduced a new tool for cooperation with non-EU nations on migration: mobility partnerships. These non-binding political agreements aim to create “tailor-made” partnerships that address shared concerns between the EU and its partners. They offer significant flexibility in terms of implementation and areas of cooperation, with limited guarantees for fundamental rights. While informal and opaque cooperation with non-EU countries, often bypassing human rights and standard procedures, was presented as a shift in EU external migration policy justified by the 2015 crisis, my findings suggest otherwise. The EU’s use of non-binding and flexible instruments to develop cooperation on migration and border controls with non-EU nations predates the crisis. The adoption of such informal agreements from 2015 onwards represents a continuation of pre-existing practices.

Conclusion

This overview demonstrates the importance of historical context when analyzing developments in EU migration and asylum law. Analyzing these developments solely through the lens of a crisis offers a limited understanding, as it overlooks the historical, political, and social contexts in which these arrangements operate. By considering informal cooperation with third countries, such as the EU-Turkey deal or the emerging EU-Tunisia negotiations, within the broader evolution of EU migration and asylum policy, we can move beyond the narrative of crisis or exceptional circumstances often used to justify these measures. Doing so reveals that rather than being policy innovations driven by emergency and security concerns, informal arrangements and diversified tools for externalizing EU migration and border controls are deeply rooted in the historical development of EU migration and asylum policy.