The EU’s Ethical Dilemma: The scramble to stem the refugee and migrant flow into Europe

In addition to the multitude of migration cooperation agreements being signed between the EU and African countries, a new deal with Libya has just been concluded in Malta. This article explores the new plans to engage with Libyan authorities and asks whether they will work.

2016 was a remarkable year for migration management on the European continent. Confronted with record numbers of refugee and migrant arrivals in 2015, largely through irregular and often dangerous means, and a projection of similarly high numbers in 2016, the European Union (EU) signed a deal with Turkey to stem the flows. The agreement, now commonly referred to as the EU-Turkey deal, resulted in an almost immediate and sustained drop in arrivals along the Eastern Mediterranean route via Turkey and Greece. The deal has, since its implementation and the dramatic reduction in maritime irregular migration from Turkey to the Greek Islands, been hailed as a success by the European Commission although it is not entire clear whether the deal itself which is poorly implemented has caused the drop in numbers.

New Partnership Framework Agreement announced in June 2016, promised to use “all policies and instruments at the EU’s disposal to achieve concrete results” in reducing migration to Europe. This was backed with millions of Euro in additional funds for the EU Emergency Trust Fund for Africa, and billions promised in investment boosting programs all aimed at cutting arrivals into Europe. Bilateral agreements have so far been announced with Ethiopia, Niger, Nigeria, Mali and Senegal, with plans to establish similar cooperation agreements with other countries.

Cutting migration through Libya

Bolstered by the reducing numbers on the Eastern Mediterranean route, the EU began to focus its attentions on replicating results along the Central Mediterranean route from Libya (and to a lesser extent Egypt) into Italy, where a record 181,141 persons arrived during 2016. “Europe has proven it is able to close down irregular routes of migration…Now it is time to close down the route from Libya to Italy…it is within our reach,” European Council President Donald Tusk is reported as saying.

In a summit in Malta in early February 2017, European Union leaders agreed on a controversial plan to prevent large numbers of asylum seekers and migrants from departing from Libya before the weather conditions improve in the European spring. The Malta Declaration pledges EUR 200 million to support training and equipment to Libya’s coastguard, the setting up of “safe” refugee camps in Libya and the voluntary repatriation of those willing to return to their countries of origin. In addition, the Italian government offered EUR 200 million of its own to support the work of Libyan coastguard vessels and “humanitarian repatriation” of migrants.

While the EU may have rejected proposals for a Turkey-style1 deal with Libya, these new agreements have raised concern among observers who have said that they “make a mockery of the EU’s so-called fundamental values of human dignity and rule of law”. Conditions within Libya are still in turmoil as the UN-backed government of Fayez al-Seraj struggles to keep a partial hold on the nation. A communique  by the German embassy in Niger documented reports of executions, torture, rapes and bribery in private prisons in Libya, where thousands of migrants and asylum seekers are being held in “concentration camp-like conditions”. UN human rights experts2 have also raised alarm about the deal, which they believe will violate the principle of non-refoulement. “By going ahead with this idea, the EU has all but declared Libya a “safe third country”. Limiting departures from the Libyan coast simply means accepting and legitimizing the human suffering prevailing in Libya,” they said. Recent reportsfurther indicate that the UN-backed Libyan government is considering authorising EU and/or NATO ships into Libya’s territorial waters to assist in turning back boats to the shore3. And according to Oxfam’s deputy director, “the fact that all EU governments have welcomed the Libya deal, which makes no attempt to increase Libya’s commitment to people’s rights whilst shutting off the route to Europe, shows their duplicity”.

Will it work?

In late 2016, the EU hailed a migration compact it had signed with Niger as the reason for a plunge in migrant numbers arriving in Niger (a major transit country for West African nationals) from 70,000 in May to 1,500 in November. The EU’s foreign policy chief Frederica Mogherini said that the bloc’s funding to Africa was creating “positive results and important building blocks for new cooperation”. However, the dramatic fall in numbers was later revealed to have been the result of a technical error in the data collection system, and was challenged for only measuring movements through two transit points and therefore not reflecting overall entries or exits to and from Niger. Moreover, an assessment by the International Organisation for Migration (IOM) suggests that asylum seekers and migrants were avoiding the main transit towns for fear of arrest, casting doubts over whether the funding support to Niger actually yielded results.

While the recent investments into Libya may yield a reduction in asylum seeker and migrant flows to Europe in the first instance, it is likely that smuggling networks will divert flows to other North African countries in what is known as a “balloon effect”. And while Europe may be able to secure deals with some of these states, many of them will have a limited capacity to effect them – weak government institutions and political hurdles remain. Moreover, there is no guarantee that the EU will be able to establish a unified approach in all countries. Egypt for example, just announced that it will oppose the establishment of asylum-processing camps in its territory, and instead called on Europe to increase investments to create more jobs.

Stabilisation vs Securitisation?

Europe’s attempt to externalise its migration management has been criticised by the Special Rapporteur on the human rights of migrants before. In 2015, the EU’s approach was termed as one lacking transparency and clarity, with a “weak standing” in international law, and bearing “few signs” of additional human rights or development benefits. The current jostle for deals to link aid to a reduction in migration is being framed by European governments as stabilisation support, but appearto focus “almost solely on the fight against smuggling operations, securitisation of borders and the prevention of new migration routes”. In many ways these policies could be viewed as the beginning of a descent down a dangerous slope, where Europe’s fixation with stopping migration compromises its values and the lives and rights of persons on the move.

However, it is increasingly apparent that the factors forcing or driving people to move to Europe will not abate any time soon. And while Europe cannot shut the doors to those genuinely seeking asylum, it must contend with the thousands of persons who are not eligible for asylum but who continue to arrive irregularly on its shores. European governments on their part have to contend with challenging and expensive returns procedures, which have so far borne limited fruit. Lessons from the rise of populism in Europe and the United States (e.g. Brexit, the election of Donald Trump) have shown that governments who are perceived by the electorate to ignore immigration issues, are often ousted in favour of their hard-line, right-wing counterparts, potentially posing a greater risk to more measured thinking and action.

How does Europe then balance its prerogative to secure and control its borders with its equal obligation to protect the human rights of asylum seekers, refugees and migrants within its purview? Certainly, a failure to provide for a means of safe, orderly and legal migration will only continue to give market to people smugglers and put many at risk. One commentary suggests that the European Union will have to place a greater, and less superficial, emphasis on improving conditions in the countries with which it intends to partner, and heavily invest in the government institutions necessary to manage them. Whatever the outcome the EU, by virtue of the European Convention on Human Rights, will be bound to effect a human rights based framework that recognises and effects the rights of all groups of people on the move.

1  The return of asylum seekers and migrants arriving in Greece back to return for a similar number being offered resettlement from refugee camps inside Turkey.

2  Mr. François Crépeau, Special Rapporteur on the human rights of migrants; Mr. Nils Melzer, Special Rapporteur on torture and other, cruel, inhuman and degrading treatment or punishment; Ms. Urmila Bhoola, Special Rapporteur on contemporary forms of slavery, its causes and consequences ; and Mr. Sètondji Roland Adjovi, Chair of the Working Group on Arbitrary Detention.

3  However, if those departing Libya are allowed to board an EU flagged ship, the extra-territorial application of the non-refoulement obligation may prevent their enforced return where the person fears harm by the Libyan state. For more on this see: Cantor, 2015. Extraterritorial non-refoulement: intersections between human rights and refugee law. Available at: (last accessed 09/02/17).

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