At Any Cost? The outsourcing of Europe’s border management

“The EU has repeatedly shown it is willing to stop refugees and migrants from coming to the continent at almost any cost now, with human rights taking a back seat.”
– Magdalena Mughrabi, interim Deputy Middle East and North Africa Director
Amnesty International

In a recent leak of confidential European Commission documents, online publication Spiegel Online uncovered an alleged plan by the European Union to work closely with governments in the Horn of Africa to stem migration flows from sub-Saharan Africa towards Europe. The leaked project documents proposed the provision of equipment, including the donation of cameras, scanners and cars, and the construction of reception centres with custody rooms, to the Sudanese government, while acknowledging a risk that such support may be “diverted for repressive aims”.

Although denied by the EU, the plans were met with heavy criticism from rights campaigners who determined that such assistance would make the EU complicit with regimes responsible for the denial of fundamental human rights. Sudanese President Omar al-Bashir has been indicted by the International Criminal Court on charges relating to his alleged role in genocide and crimes against humanity in Darfur. Moreover, Sudanese officials have been accused of colluding with human trafficking networks in Sudan and a report from the UN Panel of Experts for Libya found that Sudan has been arming and supporting radical Islamist elements in neighbouring Libya leading to a further destabilisation of the country in violation of a UN arms embargo on Libya.

Europe’s newest plan

Most recently on 7th June 2016, the European Commission announced a New Migration Partnership Framework that aims to reinforce cooperation with third countries to better manage migration. The Partnership Framework “will seek tailor made partnerships with key third countries of origin and transit using all policies and instruments at the EU’s disposal to achieve concrete results”. The EU offers an opening up of legal routes for migration to Europe; a UN-led global resettlement scheme to contribute to the fair sharing of displaced persons; and a series of financial instruments to offer short and long-term solutions, including an additional EUR 1 billion for EU Emergency Trust Fund for Africa, and a proposition for a package worth up to EUR 31 billion to boost investment in developing countries through an External Investment Plan. With reference to a “mix of positive and negative incentives”, the EU effectively communicates to partner counties that they will be rewarded with trade and aid for curbing the outflow of migrants and refugees from their countries and sanctioned if they fail to do so.

In a strong critique of the Framework, Oxfam International stated that “the EU [is] rewriting its foreign policy so that it serves the single objective of stopping people from coming to Europe. By choosing to outsource to third countries Europe’s border control and the responsibility for managing migration, Europe attempts to outsource its obligations to respect human rights”.

The Framework appears to be heavily influenced by the EU-Turkey deal signed in March 2016, the impact of which the EU says “was immediate” and which established “new ways to bring order into migration flows”. However, while the EU’s deal with the EU may have drastically cut arrival figures into Europe via the Eastern Mediterranean route to Greece, it has opened up the EU to what one commentator has called effective blackmail. Turkish president Recep Tayyip Erdogan has threatened to withdraw from the agreement if the EU’s promised commitments on visa liberalisation for Turkish nationals, EUR 3 billion in aid, and a re-energisation on Turkey’s accession to the EU do not materialise. Turkey has also refused to change its anti-terror laws to meet the EU’s requirements on visa liberalisation. After The Turkey deal was announced, the government of Niger told foreign ministers visiting from Europe that it needs EUR 1 billion to combat irregular migration, and in May 2016 Kenya announced a decision to close Dadaab refugee camp, which speculators suggest may be a posturing for more funds.

Return and readmission agreements

To date, the EU has 17 readmission agreements with partner countries (mostly in Eastern Europe and Asia) and the New Migration Partnership Framework aims to bolster these policies with more countries of origin and those of transit. While the numbers entering Greece may have decreased, a numerical assessment of the EU-Turkey “one-in-one-out” deal appears to show that the EU is yet to make significant headway in the “out” part of the scheme. Fewer than 500 people have reportedly been sent back to Turkey since the agreement came into force, and asylum applications shot up in Greece immediately after the deal was ratified. Moreover, a landmark decision by an independent authority examining appeals claims in Greece ruled against sending a Syrian refugee back to Turkey creating a potential precedent for others.

A major concern among humanitarian organisations is the return or readmission of people to countries where protection is not guaranteed. Return of refugees from Greece to Turkey are premised on 2 grounds outlined in the EU’s Asylum Procedures Directive:

  1. Under Article 35, a refugee can be returned to the first country of asylum if s/he has been recognised as a refugee in that country and can still avail him/herself of that protection, or s/he otherwise enjoys “sufficient protection” in that country, including benefiting from the principle of non-refoulement.
  2. Under Article 36 and 38, refugees can be returned to a “safe third country” provided that: their life or liberty is not threatened, there is no risk of serious harm, the principle of non-refoulement is respected, their right to freedom from torture and cruel, inhuman or degrading treatment is respected, and a possibility exists to request refugee status.

The Directive offers a precarious legal basis for returns to Turkey. Turkey does not provide refugee status for non-Europeans, and any return would therefore be subject to a confirmation that the refugee would instead receive “sufficient protection”. However, UNHCR has cautioned that the term “may not represent an adequate safeguard or criterion when determining whether an applicant can be returned safely to a first country of asylum. In UNHCR’s view, “the protection in the third country should be effective and available in practice”, meaning that “there is no real risk that the person would be sent by the third state to another state in which s/he would not receive effective protection, or would be at risk of being sent from there on to any other state, where such protection would not be available”.1

In April 2016, Amnesty International reported on the alleged forcible deportations of Syrians by Turkish authorities to Syria on a near-daily basis since mid-January at the rate of 100 persons per day. In November 2015, Human Rights Watch reported on the effective closure of the border to Syrian asylum seekers at the same time that UNHCR guidance stated that “nearly all parts of Syria are embroiled in violence”, and urged all countries to ensure that persons fleeing Syria are admitted to their territory and are able to seek asylum. If substantiated, these pushbacks would be in violation of the principle of non-refoulement under international law.

Future plans: Libya cooperation?

With the containment of refugee and migrant movements on the Eastern Mediterranean route in effect, the attention of European politicians turned to departures along the Central Mediterranean route from Libya, which has witnessed a surge in departures in recent months.

In April 2016 the Italian government released a Migration Compact, which models itself on the agreement between EU and Turkey. According to the plan, the EU would implement a range of development investment projects and offer legal resettlement programmes to countries in exchange for the control of migration flows and screening economic migrants and refugees. Of particular interest to Italy is reaching an agreement with Libya, reminiscent of the “friendship pact” signed between the two countries in 2008.

Amnesty International has condemned any potential collaboration between the EU and Libya, stating that such a cooperation would risk fuelling or perpetuating human rights violations in the country. Amnesty has documented allegations of physical abuse, rape, torture, extortion, exploitation of migrants and refugees at the hands of Libyan officials and has accused the Libyan coastguard of “intercepting and returning thousands of people to detention where they suffer torture and other abuses”. These reports and general reports of difficult conditions have been corroborated by other sources, including RMMS’ 4Mi programme, which has documented a range of different abuses against migrants in Libya including physical and sexual abuse, death, and extortion. For example, 4Mi data recorded 871 migrant deaths in Libya between 2014 and 2016, which, given the relatively small number of interviews is still an underestimate of the actual number. EU law prevents the return of a third country national to a place they may be at risk of “serious harm”1 and in October 2015, UNHCR urged all states to suspend forcible returns to Libya as it was not a safe country, even before the outbreak of civil war.

(Outgoing) British Prime Minister David Cameron has backed a push for more international patrol ships to start turning back boats as soon as they set off from Libya, similar to controversial Australian  deterrent-based model. The European Court of Human Rights has ruled that such pushbacks contravene the principle of non-refoulement.

At any cost?

The EU is rapidly undertaking a series of measures which it suggests are to improve its migration management. But these measures have not just stopped at the bloc’s borders, and have instead, conceivably attempted to create a buffer zone aimed at shifting the responsibility for migration management to third countries. Through a series of bilateral and multilateral deals the EU has entered into multiple outsourcing arrangements taking various forms including, information sharing networks, border surveillance funding, the provision of security equipment and construction of detention facilities, and most recently a carrot-and-stick approach threatening consequences for non-compliance. Arguably these interventions are being earnestly sought so that refugees and migrants can be stopped before they reach EU.

The money committed by the EU towards the most recent of these agreements has already run into the multi-billions. The overall successes of the plans will be measured some way down the line, but a recent review of European aid dedicated to migration management found that the EU is struggling to draw a clear link between the causes and the effects of migration and that the limiting effects on migratory movement to Europe have been hard to measure. Instead, the EU’s fixation on prevention or detection of irregular immigration hindered the attainment of longer term of objectives including, developing the link between migration and development, organising effective management of migration, or the development needs of the countries of origin and migrants’ rights. Similarly, a recent report by the UK’s House of Lords EU Committee, found that the EU’s Operation Sophia naval mission in the Mediterranean Sea failed “in any meaningful way” to disrupt smuggler operations and instead allowed migrant smuggling networks to restructure and utilise “increasingly convoluted and risky sea-paths”. 2,516 people died in the Mediterranean between January and May 2016, a 38% increase on incidents reported during the same period in 2015.

As the EU frantically searches for solutions to the influx of refugees and migrants on its shores, many critics and human rights experts question whether this is being sought at the expense of human rights.

1] See further for a specific analysis for Turkey:

2] Article 15 of the European Union Qualification Directive. Serious harm consists of: (a) death penalty or execution; or b) torture of inhuman or degrading treatment or punishment; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

Note: This article originally appeared on the RMMS Horn of Africa website.