Statewatch article: RefNo# 33154
The cradle or the grave? EU migration policy and human rights by Frances Webber
Statewatch Journal; vol 23 no 3/4 february 2014
EU migration policy is ever more firmly anchored in the imperative of exclusion, causing the deaths of thousands at its borders and subjecting migrants to “institutionalised detention”. This quasi-criminal framework for migration empties of meaning the ideals on which the EU claims to be founded.

The images conjured up when we think of migration to Europe are of boats – drifting, leaky and overcrowded; bodies – drowned, washed up on beaches and caught in fishermen’s nets; fences topped with razor wire; camps – squalid places of misery and desperation. They are images of exclusion and death.

EU migration policy comes under the rubric of ‘freedom, security and justice’ [1] - as fine an example of Orwellian doublespeak as you could wish for, and a standing affront to its victims. The objectives of the policy – to keep out the world’s poor, while ensuring that a flexible, compliant workforce remains available as and when required – have always sat uneasily with Europe’s self-image as the cradle of human rights and democracy. This self-image compels at least lip-service to the universalist ideals of refugee and human rights protection, which gives some room for activist campaigns. But there is no doubt that EU migration policy is ever more firmly anchored in the imperative of exclusion of all but the most highly skilled and qualified. EU policies on economic migration are a mockery of commitments to the development of poor countries. The protection obligations towards those seeking asylum from persecution or war are undermined by border protection policies which deny the possibility of safe arrival, cause the deaths of thousands at the borders, and are destroying freedom of movement for migrants in Africa and central Asia. For those who make it into Europe, minimum reception standards are daily mocked, and the routinisation of detention goes unchecked. And the racism underlying EU priorities is turning inwards to undermine the core right of free movement for EU citizens.

Enforcing global inequality

As neoliberal capitalism destroyed traditional farming and manufacture in the countries of the south and turned peasants and farmers into city slum-dwellers and migrant labourers, an EU-wide shrinking population and ageing demographic spurred discussion, for a few years around the millenium, of developing EU economic migration policies to facilitate the admission of migrants for work. But the glacial slowness of the EU’s bureaucracy meant that no policies easing economic migration or setting out minimum standards for Europe’s migrant workforce had been developed by the time of the economic crisis. The jargon of development changed, and the fashion became ‘circular migration’, trumpeted as offering exciting work possibilities for migrants without the social costs of providing for their families. The proposed Seasonal Workers Directive now nearing finalisation will regulate without facilitating the admission of workers for periods of up to nine months, mainly in the agricultural, horticultural and tourism sectors. [2] The Directive contains a number of welcome guarantees fought for by migrant rights groups, including provisions on equal pay and conditions with nationals in the workplace, and decent accommodation, which should benefit those coming for work in the fields and greenhouses of Spain and Italy. [3] But with the number of workers to be admitted left up to the member states, no clear enforcement mechanism for complaints, no family reunification permitted, exclusion from unemployment benefits, no accrual of residence rights, and no indication that the EU will demand ratification of the Migrant Workers Convention by member states, the Directive still condemns seasonal workers to second-class status in Europe.

Other EU initiatives on labour migration are positioned at the high end of the market, facilitating the movement of the global elite. A Directive on the admission of intra-company transferees, currently being drafted, will enable corporate executives from all over the world to move to and between member states, while the Blue Card Directive creates a harmonised fast-track procedure and common criteria (a work contract, professional qualifications and a minimum salary level) for the issue of a residence and work permit for highly qualified migrants, allowing family reunification and movement around the EU. [4]

Otherwise, the emphasis is on stopping unauthorised work and movement. A proposed entry-exit system will track the movement of (lawfully resident) migrants through Europe, automatically generating lists of overstayers. The Employer Sanctions Directive [5] requires member states to impose duties on employers to check that all non-EU recruits are legally entitled to do the job on pain of penalties, to notify authorities of all such recruits, and to comply with workplace inspections. (The UK opted out of the Directive [6], as it has on all measures under Title V of the Lisbon Treaty, despite its own similar employer sanctions regime, partly because of the requirement to reimburse employees whose employer has paid them less than the minimum wage, thereby ‘rewarding illegal immigration’.)

The expanding fortress

The heart of the EU’s migration policy is protection of its external borders from the incursions of ‘irregular migrants’ – refugees and migrants from the Middle East, Africa and Asia seeking safety and livelihood in Europe. The thicket of ‘compensatory measures’ introduced in the 1980s and 1990s to allow internal borders between member states to be opened – visa controls, carrier sanctions, funding for national border security and detection technology – have grown into a forest of military hardware, surveillance equipment, a multi-billion euro business, and a set of neo-colonial relationships with ‘developing’ states where favourable trading terms and visa privileges are conditional on stopping entry to Europe from their shores.

Death by Frontex

Frontex (the EU Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union), set up by EC regulation in 2004, [7] seconds border guards from all member states to shut off informal migration routes by joint detection, interception and return operations at and beyond Europe’s external borders. Having reduced boat arrivals in the Canary Islands to a trickle through coastal patrols off Senegal, Mauritania and Cape Verde, it closed in on still ‘vulnerable’ routes such as the Strait of Sicily and Evros on the Greek-Turkish border. It has entered working agreements with fourteen states of origin, with eight more in progress [8] – agreements which are not publicly available, or subject to the approval of parliament or the control of the European Court of Justice. [9] Interception operations co-ordinated by Frontex, and those undertaken under bilateral agreements such as Italy’s push-backs to Libya, have resulted in the return of thousands of boat people to the countries they fled, with no consideration of Refugee Convention or human rights obligations, attracting condemnation from the European Court of Human Rights in the Hirsi Jamaa v Italy case in 2012. [10]

The activities of the agency and member-state participants brought widespread condemnation, [11] and in October 2011 Frontex became subject to new requirements to ensure compliance with non-refoulement and human rights obligations. Frontex was to train the European Border Guard in human rights obligations; a code of conduct promulgated for Frontex operations; another code required monitoring of joint returns. A Fundamental Rights Strategy was to be implemented, and a ‘Consultative Forum’ set up, with input from civil society groups as well as EU rights bodies and UN High Commissioner for Refugees (UNHCR). A Fundamental Rights Officer was to be designated. These provisions have made little difference, and in 2013 the EU Ombudsman called on the agency to investigate complaints of violations, [12] and allegations surfaced that Frontex has participated in ‘systematic’ push-back operations from Greece to Turkey, which resulted in the deaths of twelve Afghan migrants in January 2014. [13]

The purpose of surveillance

The razor wire topping the six-metre fence separating the Spanish enclave of Melilla from Morocco was removed in 2007 because of the horrible injuries it caused to those trying to cross it, but the Spanish government announced its reinsertion in November 2013, along with metallic mesh to prevent migrants inserting their fingers into the fence to climb it, a second helicopter for the Spanish civil guard, thermal imaging cameras and two rapid response units. The razor wire is not EU-funded, but it is likely that some of the other policing paraphernalia is. The 23 thermal vision cameras [14] mounted along the length of the 12.5 kilometre barbed-wire-topped wall keeping migrants from Turkey out of Greece are funded by and form part of Eurosur, an intensive surveillance network along the EU’s eastern and southern borders, coordinated by Frontex. Eurosur, the European Border Surveillance System developed since 2008 and (since December 2013) fully operational in the 19 southern and eastern Schengen states, [15] is a “multi-purpose system to prevent cross-border crime and irregular immigration and to contribute to protecting migrants’ lives at the external borders”. Its website boasts that near-real time information exchange between Frontex land, air and sea patrols and national coordination centres for border surveillance enables more rapid national and joint operations against border threats.

The emphasis in the Eurosur publicity on saving lives (or at least ‘contributing’ to this) reflects the recent sensitivity of the EU to accusations that deterrence of irregular migration precludes rescue. Intensive surveillance of the Mediterranean did not prevent the deaths of an estimated 1,500 boat people between March and June 2011. [16] Most notorious were the deaths from hunger and thirst of 63 of 72 migrants, [17] whose boat drifted between Libya and Italy, sending distress signals every four hours for ten days, ignored by an airplane, military helicopters, two fishing vessels and a large military vessel. French, British, Italian, Belgian and Spanish military were all in the area and are all believed to share some responsibility for the deaths.

It isn’t just Frontex which causes deaths at sea. The perennial arguments amongst member states over responsibility for rescue, their refusal to assist boats in distress or to allow disembarkation, coastguards’ deliberate scuppering of the small boats, and the criminalisation of rescue under the Facilitation Directive, all combine to create a climate which discourages compliance with maritime rescue obligations. [18] But anger and concern at the increasing death toll, culminating in the deaths of 359 migrants [19] as their boat caught fire off Lampedusa in October 2013, has lent impetus to the proposed recasting into Regulations [20] of a Council Decision on maritime surveillance, to strengthen non-refoulement, human rights and rescue provisions – although some Mediterranean member states oppose binding EU rules on rescue and disembarkation of migrants, claiming it is outside EU competence. [21] Activists say the proposal provides only marginally better protection for refugees.

Bullying the neighbours

More controversially, ‘Task force Mediterranean’, [22] set up following the Lampedusa tragedy to ‘prevent further loss of life’, focusses on action by states of origin and transit to stop migrants embarking, within the framework of the Global Approach to Migration and Mobility and European Neighbourhood Policy. Egypt should combat traffickers in Sinai, Sudan should fight criminal organisations smuggling refugees from the Horn of Africa; Nigeria should protect nationals from trafficking, while Tunisia should stop boats being provided to smugglers in Libya. On the pretext of responding to humanitarian tragedy, the EU bullies its poor, embattled neighbours into accepting more immigration control burdens, echoing its response to the ‘Arab Spring’ in early 2011 when it rebuked Tunisia for not doing enough to halt the exodus from its shores in exchange for the €140 million extra aid it was considering giving. [23]

Aid is one weapon to compel neighbours to police the EU’s external borders; mobility partnerships (which promise limited labour opportunities and visa liberalisation) are another. The Council of Europe Human Rights Commissioner has complained [24] that Western Balkans states are under pressure to restrict the departure of citizens who might apply for asylum, the vast majority Roma, on pain of visa requirements for all their citizens. As a result, 7,000 Macedonian citizens were prevented from leaving between 2009-12, and returnees had their passports confiscated. A new offence introduced into the Serbian criminal code in December 2012 inhibits seeking asylum abroad. The UN Special Rapporteur on the Rights of Migrants complained that the Network of European Immigration Liaison Officers, and institutionalised cooperation with third countries to support their coastguards’ interception capacity, stops migrants entering EU territory, thereby denying them recourse to the EU’s human rights mechanisms without incurring responsibility for violations. [25]

The EU has readmission agreements with 13 countries and readmission provisions binding 79 African, Caribbean and Pacific states signatory to the Cotonou agreement, despite the lack of human rights or asylum infrastructure in many of these countries. These provisions rarely contain human rights commitments, but often commit states to ‘cascading’ readmissions systems with neighbours. [26] EU policies have resulted in detention camps in Turkey, Belarus, Ukraine, Tunisia, Egypt and Georgia, no-go zones for migrants in southern and eastern Morocco, [27] and disruption of migratory movements between the countries of the Sahel and West Africa. [28]

Degradation and death inside the borders

Only a couple of months after the October 2013 Lampedusa deaths, the Italian island was in the news again. A fuzzy video clip showed naked camp inmates being hosed down by guards. [29] The degrading treatment, with its echoes of Nazi concentration camps, focussed attention on migrants’ treatment in detention and reception camps, accommodation centres, retention centres, waiting zones, transit zones and ‘international zones’ which are a feature of the new Europe. [30]

How has detention become so institutionalised in Europe (and in the transit countries around its southern and eastern borders)? The UN Special Rapporteur says detention of irregular migrants is ‘systematic’, and that the Return Directive [31] has “institutionalised detention as a viable tool in migration management”. [32] The setting of the maximum period of detention for return at 18 months in the Directive has encouraged much longer detention periods than before in many member states for whom the previous maximum was measured in days or weeks (although 18 months was still too short a period for the UK, which opted out). Hungary, Malta, Cyprus and Greece have introduced mandatory detention of ‘irregular migrants’. Greece is creating 10,000 detention places, with EU funding.

Detention of anyone is supposed to be a last resort, and asylum seekers must not, according to the recast Reception Directive, [33] be detained simply because they have claimed asylum. Of course, they never are; they are detained for irregular entry – EU policy on visas and carrier sanctions provides no possibility of legal entry; [34] or they are detained to ‘check identity’, assess the viability of their claim, or with a view to return. All these reasons for detention of asylum seekers are perfectly lawful under the Reception Directive, which is predicated on the equation of asylum seekers with irregular migrants. Children are not excluded; even unaccompanied children may be detained ‘exceptionally’ under the Directive.

Many are detained for return to another EU member state under the Dublin II Regulation, condemned for putting a disproportionate burden of reception on the member states at the southern and eastern border, for tearing families apart and for prioritising removal over humanitarian concerns. In 2011, the European Court of Human Rights banned Dublin II returns to Greece [35] because of the inhuman conditions of detention and the lack of a functioning asylum system, and the European Court of Justice ruled [36] that member states could not transfer asylum seekers to a known risk of inhuman or degrading treatment in another member state. Europe’s highest court acknowledged that member states’ reception of asylum seekers sometimes violated fundamental rights. Migrant groups demanded that the new Dublin III Regulation contain a provision suspending returns in the face of systemic deficiencies. But the recast Regulation, in force from November 2013, provides only for an ‘early warning system’ and case-by-case individual ‘suspension’ where the risk of inhuman or degrading treatment in the first state makes it ‘impossible’ to transfer an asylum seeker to the designated country. The EU continues to deny refugees the choice of asylum country through the artificial designation of a landing point as the ‘country of first asylum’, while failing to enforce human rights standards in reception throughout Europe.

Ongoing research conducted by the Institute of Race Relations [37] has identified over 150 migrant deaths in reception or detention over the past three years, many caused by medical neglect or lack of decent medical care. Conditions in Bulgaria and Hungary are such that UNHCR has warned northern member states against returning asylum seekers there. Security companies squeeze profits from centres in France, Germany, Austria and Italy as well as the UK; in Italy’s centres for women, where many detainees are victims of trafficking for prostitution, Doctors for Human Rights found unheated rooms, broken windows, unusable showers, missing toilet doors, sinks ripped from the wall, and a lack of bedding, toothpaste and sanitary pads. [38] A culture of brutality and impunity thrives in these places, [39] and self-harm, suicide, hunger strikes and protests abound. [40]

For those not detained, the Directive authorises cashless support, compulsory residence, restrictions on freedom of movement, reduction or withdrawal of support for various infractions – all features of support as control, and institutionalised inhumanity, which asylum seekers across Europe have been campaigning against in protests and marches and tent cities for the past decade.

Freedom of movement: closing the borders

Italy’s grant of temporary humanitarian visas to Tunisians in April 2011 led France to stop trains coming in from Italy, and illegally close its borders, claiming a ‘serious threat to public order’. [41] New Schengen rules (in force from October 2013) permit member states to close their (internal) borders temporarily in the face of ‘serious deficiencies’ in the external border controls of a neighbouring state. [42] It is not just against ‘irregular’ non-EU migrants that European states seek to close their borders. Ironically, owing to the activism of the far and Eurosceptic Right across Europe, the freedom of movement of EU citizens is now under attack. The Commission’s failure to act against the illegal deportation of Roma EU citizens from France [43] encouraged further erosion of free movement rights. Roma in Britain have been served with removal notices under new regulations [44] allowing for the withdrawal of residence rights from EU citizens who ‘abuse’ free movement provisions. But since free movement rights are deemed to render the grant of asylum unnecessary, EU citizens cannot claim asylum in any member state. The Roma, still Europe’s most persecuted and discriminated-against minority, have nowhere to go.

Refugee and migrant activists, human rights and civil society groups agree that while EU migration policy prioritises a quasi-criminal framework for migration, while speaking the language of human rights and protection, it ends up degrading the actors as well as the victims, and empties of meaning the ideals on which the EU claims to be founded.

Endnotes

[1] Treaty on the Functioning of the European Union (Lisbon Treaty), Article 67.

[2] Seasonal Workers Directive: link

[3] Platform for International Cooperation on Undocumented Migrants, 14 November 2013: link

[4] See: European Commission website: link

[5] Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals: link

[6] Written ministerial statement to Parliament, 24 May 2011: link

[7] Council Regulation 2007/2004/EC of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union [2004] OJ L349/1, as amended by Regulation (EU) 1168/2011 of 25 October 2011, [2011] OJ L304/1. Since Frontex operates as part of Schengen, the UK is not part of it, although it cooperates with it.

[8] Sara Colombeau, ‘Frontex: at the margins of Europe and the law’, in Atlas of Migration in Europe: a critical geography of migration policies, Migreurop/ New Internationalist, November 2013.

[9] See Melanie Fink, ‘Frontex working arrangements: legitimacy and human rights concerns regarding ‘technical relationships’, Merkourios Utrecht Journal of International and European Law 28/75 (2012), pp 20-35.

[10] Hirsi Jamaa v Italy, Application no. 27765/09, February 2012: link

[11] See, for example, Parliamentary Assembly of the Council of Europe, ‘The interception and rescue at sea of asylum seekers, refugees and irregular migrants’, PACE Resolution 1821 (2011), at 5.4 link ECRE and BRC joint response to House of Lords inquiry on Frontex, October 2007; Amnesty International, SOS Europe: human rights and migration control, March 2012; Human Rights Watch, ‘The EU’s dirty hands: Frontex involvement in ill-treatment of migrant detainees in Greece’, September 2011. link

[12] ‘Ombudsman calls on Frontex to deal with complaints about fundamental human rights infringements’, EU Ombudsman, 14 November 2013: link

[13] Migration News Sheet December 2013; ProAsyl and ECRE, 22 January 2014, link

[14] Fortress Europe: a Greek wall close up, euobserver, 21 December 2012: link

[15] Regulation of the EP and the Council establishing European Border Surveillance System, 11.10.13. It will bind the other 11 Schengen states from December 2014.

[16] Claire Rodier, ‘Libya: an outpost of externalised migration controls’, in Atlas of Migration above

[17] FIDH, ’63 migrants left to die in the Mediterranean: survivors continue their quest for justice’, 28 November 2013: link

[18] The EU’s Fundamental Rights Agency acknowledges this problem in its report Fundamental rights at Europe’s southern sea borders, 2013.

[19] David Bacon, ‘Europe’s deadly border’, Boston Review 25 November 2013: link

[20] Proposal for a Regulation of the European Parliament and of the Council establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, 5397/14, 17 January 2014: link

[21] See Steve Peers, ‘EU rules on maritime rescue: member states quibble while migrants drown’, Statewatch Analysis, October 2013: link

[22] Council discusses Communication from the Commission, ‘Task force Mediterranean’, 17409/13, 5 December 2013 EU Neighbourhood Info Centre, 9 December 2013: link

[23] EU demands Tunisia do more to stop illegal migration, BBC News, 12 April 2011: link

[24] OCHR, ‘EU border control policies negatively affect human rights’, 6 November 2013: link

[25] The management of the external borders of the European Union and its impact on the human rights of migrants’, François Crépeau, UNSR on the human rights of migrants, April 2013, para 56: link See also: link

[26] Pascaline Chappart et al, ‘EU readmission policy: cooperation to increase removals’ in Atlas of Migration above.

[27] See Hicham Rachidi, ‘Buffer zones around Morocco’ in Atlas of Migration above.

[28] Nicholas Pernet, ‘In Africa, the EU disrupts migration that does not concern it’, in Atlas of Migration above.

[29] ‘Outrage over video of “degrading treatment” of Lampedusa migrants’, Euronews, 18 December 2013: link

[30] See the section ‘Detention at the heart of asylum and immigration policies’ in Atlas of Migration (see [8]).

[31] Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third country nationals.

[32] Crépeau, above, paras 47ff.

[33] 2013/33/EU, June 2013. The Directive forms part of the Common European Asylum System (CEAS) designed to ensure similar criteria for the grant of international protection, similar reception conditions, procedures and outcomes throughout the EU, to end ‘asylum shopping’. Directives on these issues were promulgated in 2003-4, and recast in 2013. The UK has opted out of the recast directives, but remains subject to the original ones.

[34] A proposed joint EU refugee resettlement programme will be voluntary for member states.
[35] MSS v Greece and Belgium, Application 30696/09, 21 January 2011: link

[36] NS v UK, C-411/10, 21 December 2011: link

[37] Forthcoming, on irr.org.uk.

[38] Doctors for Human Rights, the CIE Archipelago, May 2013.

[39] See eg Migranti Torino, 8 July 2013: link Pueblos Unidos Detention Report 2012; Migreurop 2011 (on Spain).

[40] See Liz Fekete, ‘Permanent protest in the camps’, Atlas of Migration (see [8].

[41] A (genuine) serious threat to public order or internal security justified temporary border closure under the old Schengen rules. France blocks Italian trains carrying migrants, BBC News, 17 April 2011: link

[42] Steve Peers, ‘The future of the Schengen system’, Statewatch news December 2013. It is unclear whether they need Council or Commission permission to do so.

[43] ‘A defiant France steps up deportation of Roma’, Time World, 1 September 2010: link

[44] The Immigration (European Economic Area) (Amendment) (No 2) Regulations 2013, Sch 1: link


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