External dimensions of EU migration law and policy

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1 1 External dimensions of EU migration law and policy Session 1: Overview Bernard Ryan University of Leicester Academy of European Law Session of 11 July 2016

2 2 Three sessions Plan is: Session 1: overview of external aspects of EU migration policy: its character, explanation, evolution Session 2: focus on return and readmission, especially legal constraints Session 3: focus on law relating to co-operation with other states, especially interception at sea + actions within the territory of those states

3 3 External dimension: some definitions In line with the wider objectives of programme, focus will be on EU policy which has these elements: EU initiated Affects immigration control or policy Action takes place wholly or partly outside EU/ Schengen territory Involves some action by the authorities of a third state. Note distinction drawn by Christina Boswell in The external dimension of EU immigration and asylum policy (2003) International Affairs 619: Externalisation of immigration control: The first involves forms of cooperation that essentially externalize traditional tools of domestic or EU migration control. The logic here is to engage sending and transit countries in strengthening border controls, combating illegal entry, migrant smuggling and trafficking, or readmitting migrants who have crossed into the EU illegally. Prevention in other countries: The second type of policy can be loosely defined as preventive : measures designed to change the factors which influence people s decisions to move, or their chosen destinations. Measures under this category include attempts to address the causes of migration and refugee flows, or to provide refugees with access to protection nearer their countries of origin. Preventive approaches involve deploying a rather different range of tools to increase the choices of potential refugees or migrants: development assistance, trade and foreign direct investment, or foreign policy tools.

4 4 Externalisation of immigration control Preventing and responding to migration which has irregular aspects to it: irregular routes/ journeys, irregular entry or stay. Main example: readmission agreements with states of origin/ transit. Also: interception at sea and co-operation aimed at prevention/ disruption of irregular departures These forms of external action attractive to developed states if they can be achieved - as imply fewer material and political costs. There is a specific role of law in driving and shaping external action as legal constraints may be avoided or reduced A significant part of EU strategy within migration crisis: EU-Turkey arrangements, naval operations in Mediterranean, wider policy initiatives

5 5 Prevention in other countries Boswell included two main strands: Root causes : Addressing the root causes of migration and refugee flows in countries of origin, through more targeted use of development assistance, trade, foreign direct investment or foreign policy instruments. This is about economic development and opportunity, aimed at reducing economic migration Early statements: Commission Communication on Immigration, 23 October 1991 (SEC (91) 1855) European Council conclusions, Edinburgh, 12 December 1992 Commission Communication on Immigration and Asylum Policies, 23 February 1994 (COM (94) 23): Note that there are reasons to doubt internal coherence: does development actually deter migration?? Asylum systems: promot[ing] so-called reception in the region, namely, support for refugee protection in countries or regions of origin, so that they would not be obliged to seek asylum in Europe. This is about international protection, aimed at reducing secondary movement by those seeking protection as refugees or similar.

6 6 Tampere conclusions (1999) Tampere European Council summit set agenda for EU justice and home affairs policy after Communitarisation by Treaty of Amsterdam. Included both elements discussed: Root causes: 11. The European Union needs a comprehensive approach to migration addressing political, human rights and development issues in countries and regions of origin and transit. This requires combating poverty, improving living conditions and job opportunities, preventing conflicts and consolidating democratic states and ensuring respect for human rights, in particular rights of minorities, women and children. Partnership with third countries concerned will be a key element for the success of such a policy, with a view to promoting co-development. Externalisation agenda - focused on readmission 27. The Amsterdam Treaty conferred powers on the Community in the field of readmission. The European Council invites the Council to conclude readmission agreements or to include standard clauses in other agreements between the European Community and relevant third countries or groups of countries. Note that Article 63(3)(b) had givenec competence over illegal immigration and illegal residence, including repatriation of illegal residents

7 7 Developments after Tampere, In subsequent (formative) period, both way of thinking about external dimension to migration remained present, with different emphases at different times, for different actors: see Boswell (2003). Commission Communication on a Common Policy on Illegal Immigration, COM (2001) 672, 11 October 2001: Readmission agreements again Also: financial support for third countries, including for asylum seekers infrastructure, supporting returns and Improvement of border control management and equipment. [This is the first clear sign of a hybrid agenda]. Seville European Council, June 2002 detailed focus on irregular migration: The European Council points out that closer economic cooperation, trade expansion, development assistance and conflict prevention are all means of promoting economic prosperity in the countries concerned and thereby reducing the underlying causes of migration flows. The European Council urges that any future cooperation, association or equivalent agreement which the European Union or the European Community concludes with any country should include a clause on joint management of migration flows and on compulsory readmission in the event of illegal immigration. That is what EU has been trying to achieve ever since

8 8 Externalisation and prevention? EU policy can have elements of both at the same time. Firstly, there may be a close fit between the prevention strategy and the goals of EU immigration control: Development of an EU-style asylum system Development of more systematic border control by the other state Development of immigration law and policy, including provision for both status and expulsion. Boswell (2003: 622) included these kinds of outcome within externalisation : The main instruments were border control, measures to combat illegal migration, smuggling and trafficking, and capacity-building of asylum systems and migration management in transit countries. These are not about economic or material support - but arguably about a kind of prevention in the other country, with only the goal of reducing migration pressure in EU. Also: the consequences may be more complex than that. Secondly, externalisation and prevention agendas can come together if the latter provides leverage for the former. This is a key issue in recent (2011, 2016) developments later Question: is there pure prevention? Do EU/ member states seek that?

9 9 External dimension: functional explanations One route to explanation of EU external dimension is a functional one. In particular, the idea that Schengen, i.e. the removal of internal borders, has forced member states to act collectively in the field of immigration control in relation to their shared external border This principle originally agreed in 1985 Taken forward in Schengen Implementing Convention 1990 Schengen zone came into operation on 26 March 1995 Now covers 26 states: EU 28, less Bulgaria, Croatia, Cyprus, Ireland, Romania and United Kingdom, plus Iceland, Liechtenstein, Norway, Switzerland. From 1 November 1993, EU had third pillar competence over external borders (and other immigration matters). Schengen acquis and borders competence transferred to EC Treaty on 1 May 1999 Revised, and became subject to usual EU institutional rules, under Treaty of Lisbon, 1 December 2009 Led to the establishment of Frontex on 1 May 2005 the European Agency for Operational Cooperation at the External Borders. (About to become the European Border and Coast Guard.) EU enlargement (2004, 2007, 2013) a further functional argument that preparations necessarily entailed extension of EU rules, including visa liberalisation +readmission co-operation.

10 10 External dimension: political explanations On their own, Schengen zone/ shared external border/ enlargement do not explain the priority given to externalisation at key periods. That has its roots in political pressures upon member state governments, and upon the EU itself. A reaction to perceived large numbers of irregular migrants and/ or asylum applicants Often in response to significant international events and crises e.g. end of Cold War ,Yugoslavian civil war conflict in Afghanistan, 2001-present, Iraq war and aftermath, 2003-present Arab Spring and aftermath, 2011-present especially in relation to Tunisia, Syria and migrants passing through Libya Also reflects developments within irregular migration, with new routes, new countries of origin, etc Ceuta/ Melilla incidents 2005 (migrants killed attempting to cross) Rise of sea migration since mid-2000s: Morocco-Spain, Canry islands, central Mediterranean, Aegean sea. Arab Spring and aftermath, 2011-present Trend for technology to enable irregular migration; GPS, satellite phones, social media, smartphones, etc. In , EU itself has sought to address its image, avoid being discredited

11 11 Association/ pre-accession processes EU promotes its agenda within association agreements and related pre-accession processes. This done previously for 13 states that joined, Now with current candidate countries: Western Balkans : Albania, former Yugoslav Republic of Macedonia, Montenegro, Serbia Turkey Immigration aspects Readmission of own nationals and transit nationals Visa facilitation agreements speed, cost, documents, multiple-entry visas Followed by Schengen visa liberalisation. [This arises under EU Regulation 539/2001. Suspension mechanism was agreed in Commission has recently proposed enhanced powers to suspend.] That follows detailed Commission scrutiny and progress reports on aspects of border and immigration. Wider process of association and accession adds leverage for readmission and other changes.

12 12 Western Balkans: readmission and visas Readmission agreement in force Visa facilitation in force Visa liberalisation SAA in force Accession candidate? Albania 1 May January December April 2009 June 2014 Bosnia and Herzegovina 1 January January December June 2015 Applied 2016 Kosovo Commission proposal May 2016 Macedonia (FYROM) 1 January January December April Montenegro 1 January January December May Serbia 1 January January December 2009 September 2013 June 2013

13 13 Western Balkans: provisions in association agreements Take example of EU-Macedonia (FYROM) Stabilisation and Association Agreement, signed in 2001 Article 75 provides for a framework for co-operation in relation to visa, border control, asylum and migration Specifically contemplates technical and administrative assistance inter alia on the drafting of legislation and border management Requires co-operation in the field of asylum on the implementation of national legislation to meet the standards of the 1951 Geneva Convention and the 1967 New York Protocol, thereby to ensure that the principle of non-refoulement is respected as well as other rights of asylum seekers and refugees Readmission obligations affirmed in Article 76 of SAA 2006 Similar provisions in EU-Albania SAA (agreed in 2006), Articles 80 and 81 EU-Montenegro SAA (agreed in 2007), Articles 82 and 83 EU-Bosnia SAA (agreed in 2008), Articles 80 and 81 EU-Serbia SAA (agreed in 2008), Articles 82 and 83

14 14 Turkey Accession agreement since Protocol 1970 Applied to join EEC in 1987, became candidate in 1999, negotiations commenced in 2005 Of 35 negotiation chapters, 1 is closed, and 14 others are open. Compromised by Cyprus-Turkey relationship Accession partnership Decisions since 2001 have set out the EU s agenda. Already in 2001, included out these medium-term priorities concerning migration control: Adopt and implement the EU acquis and practices on migration (admission, readmission, expulsion) so as to prevent illegal migrations. Continue strengthening border management and prepare for full implementation of the Schengen Convention. Lift the geographical reservation to the 1951 Geneva Convention in the field of asylum and develop accommodation facilities and social support for refugees. In 2003 version, added to short-term priorities: negotiate and conclude as soon as possible a readmission agreement with the European Community 2008 version: under short-term priorities says conclude urgently a readmission agreement with the EU, and make progress in the preparations for the adoption of a comprehensive asylum law including the establishment of an asylum authority Lifting of geographical limitation a medium-term priority.

15 15 EU- Turkey: immigration developments since 2011 Readmission agreement Under discussion from May December 2013, EU-Turkey readmission agreement signed, presented together with beginning of dialogue on visa liberalisation Officially came into force on 1 June However, appears that as yet not activated by Turkish Government. Visas In parallel, on 21 June 2012, Council of Ministers agreed to Commission work on visa liberalisation for Turkish nationals Based on a Commission roadmap, with 72 benchmarks across borders, irregular immigration, asylum, police co-operation and fundamental rights much of it not clearly linked to immediate goal There have been three progress reports : COM(2014) 646, 20 October 2014; COM (2016) 140, 3 March 2016; COM (2016) 278, 4 May 2016 In 18 March 2016 statement, EU (European Council) committed to visa liberalisation by the end of June 2016 provided that all benchmarks have been met. 4 May 2016 report identified 7 issues outstanding, including lack of respect for fundamental rights in laws on organised crime and terrorism Also proposed the Schengen visa waiver (COM(2016) 279, 4 May 2016) but that has not been acted upon, won t be until remaining benchmarks are met.

16 16 EU-Turkey immigration control relationship in A step-change in relationship due to migration crisis along Turkey/ Greece/ Balkans route EU desire to reduce arrivals, and to protect image against As of June 2016, UNHCR says 2.7 million Syrian persons of concern in Turkey. It struggling to cope, looking for support from EU. Turkey also seeing opportunity to advance other goals: visa liberalisation, accession EU-Turkey joint action plan of October 2015, activated on 29 November 2015 An outline commitment to support Turkish protection efforts; to support Syrian refugees in other states (to reduce push factors) co-operation to reduce irregular migration from Turkey Followed by EU-Turkey statement of 18 March 2016, including: All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey. This to be in accordance with EU and international law. Initially based on Greece/ Turkey readmission agreement [2002] For every Syrian returned from Greek islands, another will be resettled from Turkey to the EU. Based on existing provision for 18,000 resettlement places + plan for a further 54,000 Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU, and will cooperate with neighbouring states as well as the EU to this effect. Visa liberalisation by the end of June 2016 provided that all benchmarks have been met. Disbursement of 3 billion euros under the Facility for Refugees in Turkey Commitment to re-energise the accession process Activity by Turkey evident from third visa liberalisation report (above)

17 17 Global approach In November/ December 2005, Commission and European Council developed Global Approach to Migration a framework for co-operation with African and/ or neighbouring countries: COM (2005) 621, 30 November 2005 and Council doc 15744/05, 13 December 2005 A response to beginnings of significant irregular migration pressure. According to Commission: recent events in Ceuta and Melilla and the situation in Lampedusa and Malta, as well as in some Greek Islands, are clear indications that urgent action is required. Establishment of Frontex in 2004 a further element. Re-named Global Approach to Migration and Mobility in COM(2011) 743, 18 November 2011 A response to Arab Spring 2011 and related migration events Details: As before, stated aim has been a comprehensive approach: Based on policy instruments called mobility partnerships, agreed by the other country with EU and individual member states. Focus in practice is on reduction/ control of irregular migration to EU, via readmission agreements and co-operation in own border management Some expectation of legal migration, especially of temporary (circular) kind outcomes appear limited in practice.

18 18 European Neighbourhood Policy (2004-) Within wider co-operation, a particular focus on readmission and visa arrangements with wider Europe countries. In practice, these imply scrutiny of and influence over migration-related policies in the state in question. Mobility Partnership Readmission agreement Visa facilitation Visa liberalisation Association Armenia 2011 January 2014 January 2014 Azerbaijan September September 2014 Belarus Negotiation 2014 Negotiation 2015 Negotiation 2015 Georgia 2009 March 2011 March 2011 Proposed 9 March 2016 Applied 1 September 2014 Moldova 2008 October 2007 October April 2014 Applied 1 September 2014 Ukraine June 2007 June 2007/ July 2013 Russia [non- ENP] Proposed 20 April Negotiation, 2011 onwards Co-operation with non-european Mediterranean region countries also covered by ENP. Progress reports cover North Africa (Egypt, Morocco, Tunisia not Libya) + Eastern Mediterranean (Israel, Jordan, Lebanon, Palestinian Authority). Immigration developments limited.

19 19 Beyond Europe: migration partnerships Cape Verde Mobility partnership signed on 5 June Involves France, Luxembourg, Portugal and Spain.. Visa facilitation (29 October 2012) and readmission (18 April 2013) agreements. In force: 1 December Jordan Mobility partnership signed 9 October 2014 Involves Cyprus, Denmark, France, Germany, Greece, Hungary, Italy, Poland, Portugal, Romania, Spain and Sweden Morocco Mobility partnership signed 7 June Involves Belgium, France, Germany, Italy, Netherlands, Portugal, Spain, Sweden, UK Tunisia 3 March 2014 Involves Belgium, Denmark, France, Germany, Italy, Poland, Portugal, Spain, Sweden, UK A mixture of EU promises to consider legal migration, and other state promises to control irregular migration (including co-operation with Frontex) Linked to possibility of visa facilitation and readmission agreements but negotiations have stalled For Morocco and Tunisia. Mobility partnerships negotiations sought, but not concluded, with Senegal.

20 20 June 2016 policy statement on external dimension 7 June 2016, Commission Communication on establishing a new Partnership Framework with third countries under the European Agenda on Migration, COM (2016) 385 See also: HRFASP, Addressing the Refugee Crisis in Europe: The Role of EU External Action, JOIN (2015) 40 Premise set out in opening paragraph: Europe is currently experiencing unprecedented migratory flows, driven by geopolitical and economic factors that will continue, and maybe intensify, over the coming years... Europe is duty bound to respond; to address the fate of migrants and refugees; to show its citizens that migration, including on the scale we see today, can be managed in a sustainable way. Emphasises that a solution to the irregular and uncontrolled movement of people is a priority for the Union as a whole. This to be communicated to member states and to third countries. Link between migration toolkit and EU external relations, with EU-Turkey relationship the model More financial assistance needed, including from development/ humanitarian policy. Arguably goes further than rhetoric in earlier periods. Also, innovative instruments of funding (drawing directly on member states) Funds for Syria, Africa and Turkey the model. Action against migrant smuggling part of package Aims at continuing dialogue with third countries, both at political and operational levels. This covers all of regions above (Western Balkans, Turkey, wider Europe, etc). To lead to migration compacts with individual countries especially Jordan, Lebanon, Tunisia; and African states beyond Mediterranean (Horn of Africa, West Africa)

21 21 Concluding thoughts Externalisation? External policy has developed considerably over period since Tampere 1999 Sucessfully oriented in practice to readmission-visa facilitation/ liberalisation trade-off That likely to imply a wider level if scrutiny/ input into borders, migration and asylum in other states Trade-off most likely to occur if there is a wider dynamic of which it is part (association, accession) Development? Economic version of root causes approach seems to have little relevance in practice, either to actual policy or to migration dynamics. (Could it ever?) Protection type root causes could do so but probably only if part of wider engagement. For example: support for reception and processing, in exchange for resettlement (Turkey, Jordan, Lebanon) [Note 20,000 agreed by EU Council on a voluntary basis, 20 July 2015.]