Border Securitization and Containment vs. Fundamental Rights: The European Union’s “Refugee Crisis”

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Since the conflict in Syria began in 2011, over 6.5 million Syrians have been internally displaced and another 4.8 million have fled to neighboring countries, including to Turkey, Lebanon, Jordan, and Iraq. However, the brutality of the ongoing war in Syria, and the deterioration of basic living conditions in host countries, have pushed thousands of Syrians to seek protection further afield, most notably in the European Union (EU).

While the number of refugees and migrants traveling to the EU in 2015 increased fourfold from the previous year to around a million, the number is relatively insignificant given that Turkey and Lebanon host over 3.9 million Syrian refugees combined. In contrast to Turkey and Lebanon, the EU is a bloc of 28 countries with a population of over 500 million and a GDP that represents 30% of the world economy. How, then, has a mere one million refugees so shaken the EU?

When refugee and migrant flows to Europe increased in early 2015, the EU panicked. Several EU member states re-introduced temporary border controls and deployed armies at their borders, even going so far as to erect barbed-wire fences. On some borders, migrants were stopped with tear gas. Oblivious of the exodus of 200,000 fellow citizens welcomed by the West in 1956, a member of the European Parliament from a Central European country proposed putting pig heads along the border of his country to deter Muslim refugees. Anti-immigration rhetoric ran rampant and citizens were penalized for helping asylum seekers. Several countries fiercely opposed the EU relocation scheme that required each member state to accept a quota of migrants who had traveled to Greece and Italy. These measures were adopted against the backdrop of immense human tragedy unfolding on a daily basis; in 2015, over 3,700 people lost their lives trying to cross the Mediterranean in search of safety and this figure increased to over 5,000 in 2016.

Rather than admonish member states for their shameful reactions, the EU enacted policies that contain refugees rather than protect them. Three recent policies mark the latest measures taken to address the migrant crisis: empowering the EU border agency, Frontex, encouraging prolonged immigration detention, and involving non-EU states to help stem the arrival of migrants.

Since its inception in 2005, Frontex has been mandated to survey and control the EU’s external borders in order to prevent undocumented migrants from entering. Frontex’s interception operations create a risk that asylum seekers will unlawfully be denied access to EU asylum procedures and returned to the countries they fled. Frontex’s operations may violate a number of international human rights, including the right to life and prohibitions against ill treatment, collective expulsion, and refoulement.

Despite these concerns, Frontex downplays its involvement in interception operations, insisting that responsibility ultimately lies with member states. However, Frontex has a leading role in joint operations, approving operation proposals and maintaining the ability to carry out the operations itself. As of 2014, Frontex managed almost 2,500 border guards and more than 40 aircraft, 50 helicopters, and 280 seaborne vessels allocated by member states. Given Frontex’s extensive powers, the Agency does not merely coordinate operations at the behest of EU member states; rather, it is actively involved in border surveillance. As such, it should be held accountable for potential human rights violations.

Leaving open the ambiguities around Frontex’s lack of accountability, in October 2016 Frontex was transformed into the European Border and Coast Guard (EBCG) Agency. The EBCG was granted expanded tasks, powers, and budget so as to more effectively prevent arrivals. While inaugurating the EBCG, European Council President Donald Tusk declared, “to save Schengen, we must regain control of our external borders.” But would such policies also help to save refugees?

Under international human rights law, the detention of migrants and asylum seekers should be a last resort measure, used in exceptional circumstances, and for the shortest period possible. Immigration detention should not be coercive or punitive. Systematic or mandatory detention, in breach of the principles of necessity and proportionality, may amount to arbitrary detention, prohibited under the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

In contrast to international law requirements, the EU’s current focus on coercion at the expense of protection is effectively encouraging member states to subject migrants and asylum seekers to systematic, coercive and prolonged immigration detention. In July 2015, the European Commissioner for Migration and Home Affairs, Dimitris Avramopoulos, adamantly opposed “prematurely” ending detention, emphasizing it as an important method to increase efficiency in immigration control and management. Similarly, in December 2015, the European Council President stressed that refugees who arrive to the EU should be detained for up to 18 months during screening proceedings – the maximum permissible length of detention under the EU Returns Directive. According to the Council, to overcome migrants’ unwillingness to cooperate, states should use detention for a maximum period necessary for the completion of return procedures. But will member states resist these incentives?

Finally, to strengthen measures preventing arrivals of asylum seekers and migrants, the EU turned to Ankara. In March 2016, the EU and Turkey signed an agreement allowing the EU to return all migrants and asylum seekers who reached Greek islands after March 20 back to Turkey. Under the controversial “one-for-one” scheme, for every migrant or asylum seeker returned to Turkey, the EU would resettle one Syrian from Turkey. In turn, Turkey was promised 6 billion euros, the lifting of visa requirements for its nationals, and the resumption of Turkey’s EU accession process.

Under international and EU law, the return of asylum seekers to Turkey could only be lawful if Turkey is designated as a “safe third country” or “first country of asylum.” According to the EU Asylum Procedures Directive, a country is considered “safe” if it both protects the asylum seeker from refoulement and offers him or her the possibility to request and receive protection in accordance with the 1951 Geneva Refugee Convention. As such, Turkey did not qualify as a “safe third country,” because it only grants refugee status to people fleeing events in Europe. Non-Europeans are only offered temporary protection in Turkey.

More recently, in February 2017, hailing the cooperation with Turkey, the EU decided to fund, equip and train Libyan border and coast guards to effectively prevent asylum seekers from setting off towards European shores. Externalization of border control to Turkey may have devastating effects on the fundamental rights, such as the prohibition of refoulement, collective expulsion, and ill-treatment, and safety of people fleeing war and persecution. By outsourcing responsibility for migrants and asylum seekers to non-EU countries, can the EU avoid complicity in these human rights breaches?

You’re Better Than This, Europe” wrote Nils Muiznieks, the Council of Europe’s Commissioner for Human Rights, in his June 2015 op-ed on Europe’s reaction to the increasing numbers of refugees. Muiznieks reiterated that the “situation of those trying to reach Europe today is not different from that of our fathers and mothers who, not long ago, were fleeing wars, persecution, torture or poverty.” Indeed, rather than helping refugees and asylum seekers in the spirit of solidarity, humanity, and burden sharing, the EU has focused mainly on stemming migrant flows and outsourcing migrant and refugee protection.

Despite the pressure on the EU member states’ asylum processing and reception capacities, the EU must adhere to its human rights obligations. Persons in need of protection are owed safe and legal migration routes and unimpeded access to asylum procedures in the EU. Detention should be used as the very last resort and for the shortest time possible. The EU should also ensure that collaboration with third-countries does not result in violation of migrants’ and asylum seekers’ fundamental rights. If the protection of their rights cannot be guaranteed in third-countries, the cooperation and readmission agreements should be repealed. Only by upholding the rights of those fleeing war and persecution–the vast majority of persons at EU’s doors are refugees fleeing Syria, Iraq and Afghanistan–will the EU and its member states live up to the pan-European project’s underlying principles of fundamental rights and solidarity, enshrined in the Treaty on European Union and the EU Charter of Fundamental Rights.

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Izabella Majcher is a researcher at the Global Detention Project, which is a center dedicated to the research on immigration detention in countries around the world. Izabella is also a PhD candidate in International Law at the Graduate Institute of International and Development Studies (IHEID) in Geneva. Her doctoral research focuses on the European Union policies targeting undocumented migrants and their compliance with international human rights law.

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