1. THE EUROPEAN PACT ON MIGRATION AND ASYLUM
The European Pact on Migration and Asylum published on 23rd of September in 2020 remains a field of intense negotiations between the Member States of the European Union. However, it highlights a guideline which, in fact, runs the risk of becoming an official European and national policy demonstrating at the same time a European character which is not only inconsistent with the protection of human rights, but also corresponds to the colonial past of the European Union States.
The documents and the proposed regulations which accompany the European Pact on Migration and Asylum use rather problematic concepts and terms and therefore produce policy at a level of both rhetoric and practice. The concept of “solidarity” as a European term seeks to give a sense of unity and common goals within the Member States by instrumentalizing people, such as migrants and refugees and blurring at the same time the nature of the principle of solidarity between Member States as a statutory concept of the EU since its constitution. Ad hoc policies and interventions (EU-Turkey Pact, optional resettlement, etc.) undermine the foundations of a united Europe, in which shared responsibility and solidarity were key elements of its creation and have consistently permeated the spirit of the entire Treaty on the Functioning of the European Union (TFEU). In the Pact, the culturally defined notion of solidarity as a support for fellow human beings is losing its meaning and the roles are being reversed. Consequently, those who suffer are the European Union and the Member States and not the refugees and migrants. Unfortunately, this rhetoric is consistent with and reinforces far-right discourse and action throughout Europe, especially in the European Union’s external borders where the immigrant / refugee is constructed as a “national danger” and an “enemy”. Furthermore, the Pact is part of the European Council’s strategic agenda for the years 2019-2024 and therefore in the chapter entitled “Protecting Citizens and Freedom” the result is that it defines the immigration policy as part of protecting the integrity of the Union’s territory. Undoubtedly, the European Union is not endangered by the immigrants and refugees but by such ideas and programmatic policies that fuel far-right organizations with reactionary arguments and a fear towards the Other.
The European Union’s immigration policy is at the heart of its relations with third countries and its partners which might mean that migrants and refugees are being used as a tool in transnational negotiations and agreements. In parallel, external border management is integrated into the wider EU migration management policy which results in strengthening FRONTEX, control and surveillance mechanisms as stated in European’s Council press release of 14.12.2020 on internal security and finally in general militarization of the borders. Indicative of a colonial approach of the European Union regarding its relations with third countries is the promotion of legal routes to Europe only in terms of attracting talents to the labor market of the European Union. It is almost ironic the establishment of a programmatic – and already fulfilled – partnership with third countries which will “ensure consistency with the Unions humanitarian goals expressed through support for refugees in third countries. Indeed, it is questionable whether third countries to which the explanatory memorandum refers can be Turkey, Libya or Egypt. These are countries from which their citizens are trying to escape due to political and other reasons of persecution. They have probably not adopted the Geneva Convention for Refugees and certainly they do not even protect the right to life of refugees. Immigrants and refugees are treated either as a “burden” passed on by the northern EU countries to the southern and eastern ones or from the latter to third countries of transit. Moreover, it is also interesting that in the comments on the Pact from Greece, Malta, Italy and Spain, emphasis is placed on the external dimension of the Agreement. In the non-paper that was released, the European Commission is asked to clarify the importance and implementation of the external dimension of the Pact. Utilization of financial tools, promotion of agreements with third countries, mainly with mainly with these countries with which the EU borders, and their equipment with methods and mechanisms, are suggested as ways to limit the movement of the predominantly migrant population from them to Europe. It is not surprising that N. Mitarakis, Minister of Immigration and Asylum in Greece, insisted on putting pressure on the EU and Turkey to re-implement the joint declaration of the European Union and Turkey, for the readmission of 1450 third-country citizens to Turkey.
The proposed for vote in the European Parliament draft regulation on the management of asylum and migration, based on the explanatory memorandum, hopes to bring about changes in the external borders, asylum and return systems, the Schengen area of free movement and the external dimension of the EU with the main declarative aim to be the limitation of the unauthorized movement of third-country citizens
between states and the dual demands for international protection within the EU, a result of the failure of the Dublin Regulation and current European Asylum System.
In 2015 and the so-called refugee crisis was the reason and certainly not the cause for the attempt to reform the already problematic common asylum system, but unfortunately for the worse. The formalization of the construction of large, closed, controlled, hot spots as the one in Moria as well as closed pre-departure detention centers in the countries of the southern and eastern borders of the EU is the first and, in fact, already implemented policy of the Pact.
In the text of the explanatory memorandum of all the proposed regulations, especially those concerning the management of asylum and immigration and the changes in the asylum procedures in order to justify the necessity of structural changes, the arguments that are used are challenged not only by our data but also by other organizations and by non-governmental organizations. In particular, the explanatory memorandum refers to the increase in the percentage of applicants for international protection without well-founded allegations. The recognition rates, at least in Greece during the last year as RSA indicates, the refugee profile of the newcomers in Evros or according to the informative note of Ministry of Migration and Asylum (half of the new asylum seekers were from Afghanistan and Syria) contradict the arguments of the explanatory memorandum. Lastly, the reference to the 88% reduction in arrivals since the climax of the “crisis” mainly confirms, as far as the Greek territory is concerned, state-organized human rights violations which relate to events of deterrence in the borders and mass illegal pushbacks of refugees.
The most important points which require the attention by the civil society are the following:
- In relation to the proposed regulation on asylum and migration management, in conjunction with the proposal for a Regulation addressing situations of crisis and force majeure in the field of immigration and asylum:
(i) The replacement of the current Dublin Regulation, which was obviously problematic and exposed the unequal relations within the European Union contributing to the exclusion of refugees in border countries. This replacement is done by the so-called “solidarity mechanism” which, in essence, behind the word «solidarity», unfolds a policy that turns people with immigration and refugee profile, into objects, numbers and products. The confinement of refugees and migrants is expanding with the creation of closed and controlled structures, either first reception or pre-departure centers.
Solidarity may be mandatory in times of “migration crisis”, but in fact Member States are given the opportunity to choose to provide their solidarity contribution in the form of a “return sponsorship”, not by relocating refugees to safe countries but by financially supporting their return or relocating people for their further return. The vague terms of “crisis”, “disproportionately large numbers”, “migratory” pressure have already been pointed out for the grave danger of the abusive interpretation of the provisions in order to serve the respective policies each time. The Articles 50 and 51 of the proposed evaluation regulation are obviously a field of political controversy and do not clarify the terms. In fact, the involvement of the European Border and Coast Guard Agency (FRONTEX) in the training of eligible persons for relocation or “return sponsorship” indicates the option of managing the refugee issue in terms of border guarding and militarization (Article 49 of the proposed Regulation on Asylum and Immigration Management).
In his speech for the Pact, M. Schinas has already stated that those who are not relocated, they will be returned, thus detaching the need to protect the applicants for international protection from the obligations under the Geneva Convention of each state and turning the refugee management into an issue of numbers. In short, for each person / number to be returned there will be a Sponsoring Member State that will take all necessary measures to facilitate and successfully complete the return procedures.
It is also noteworthy that according to the explanatory memorandum and Article 55 of the proposed Regulation on Asylum and Immigration Management, when a State undertakes the return sponsorship, and the number of third-country nationals respectively, the requests for international protection of nationals of third countries are still under examination, which undoubtedly puts pressure on the national asylum system to reject the asylum applications and force their return.
In particular, it is stated that «The sponsoring Member States would implement the supporting measures during a pre-determined period of time, set at 8 months. This period would start running from the day in which the Commission adopts an implementing act on solidarity in situations of migratory pressure. If the sponsored (sic!) third-country nationals are not yet subject to a return decision when the implementing act is adopted, the period would be counted starting from when the return decisions are issued or, if the persons unsuccessfully applied for asylum and consequently received return decisions, from when the third-country nationals no longer have a right to remain and are not allowed to remain» Therefore, the decision on third-country nationals who will receive a return sponsorship comes before the final decision on the request for international protection making the examination of an asylum application questionable and subject to wider political pressures. The explanatory memorandum continued: “When despite the joint efforts by the Member States, returns have not been successfully carried out at the expiry of the 8-month period, the third-country nationals would be transferred into the territory of the sponsoring Member State. For this purpose, the procedure described in the previous section would apply mutatis mutandis (in accordance with the return directive 2008/115 /EU In fact, for each relocation, if the return process to the Host State fails, the Sponsoring State receives a relocation contribution to continue the return process, a contribution of € 10,000 per relocated person in order to be returned by the sponsoring State.
It is obvious that a system of industry for managing refugees and migrants is being formed and built through which human and financial resources are wasted and respectively “invested” not in their integration and in the employment of their cultural and productive assets for the benefit of the European Society, but in exclusion and organized de-legalization and dehumanization of the people. The contribution of relocating “illegal immigrants” in order to be returned highlights a mechanism that produces “illegal people” who are “bought” and “sold” within the EU.
(ii) The establishment of a mechanism to facilitate cooperation with third countries in the field of return and readmission which complements the mechanism established by Article 25a of EU Regulation no. 810/2019 (Regulation 2019/1155), as provided for in Article 7 of the proposed Regulation on Asylum and Immigration Management that if a third country is not cooperating sufficiently on the readmission of illegally staying third-country nationals, and without prejudice to Article 25(a)(5) of that Regulation, shall submit a report to the Council including, where appropriate, the identification of any measures which could be taken to “improve” the cooperation of that third country as for the readmission taking also into account the Union’s overall relations with the third country.
Unfortunately, the abstract discussion of agreements and protocols on the readmission of third-country nationals to third countries is not accompanied by a reliable and independent monitoring mechanism of the conditions to which third-country nationals are returned. Are the conditions safe for the Syrian refugees in Turkey? when in fact it is a country that has invaded Syria, are Libya and Egypt safe for the migrants / refugees from the countries of Africa or the Middle East? Or can their readmission make them victims of abuse, exploitation, human trafficking, and lead to violations of their basic human rights?
- On the amended proposal for a Regulation, establishing a common procedure for international protection in the European Union.
Amendments to asylum procedures introduce essentially or even extend the exemptions that have already been established by the so-called border as well as fast-track procedure including also those who originate from countries with annual recognition rate of 20% or with rates that are even less than the EU average ones. The rhetoric about the entry of people who do not need international protection is coming to launch a series of legislative changes and to “legitimize” a nightmarish situation for refugees, as it has been developed in the recent years on the islands. The proposal to exclude from the border proceedings only unaccompanied minors under the age of 12, unfortunately highlights a concurrence with ideas of the most extreme elements in Europe that dehumanize the immigrant or the refugee. Concerns about the consolidation of the administrative detention of applicants for international protection in the borders have been repeatedly expressed by both organizations and members of the European Parliament.
- Regarding the “introduction of a screening procedure” of third country nationals in the borders and the amendment of regulations 767/226, 2017/2226, 2018/1240, 2019/817.
The introduction of the concept and practice of a “screening control” of migrants and refugees in the borders. The argument is based on the rhetoric about mixed arrivals of persons, which, as stated above, is in contrast with the data available by organizations which are active in the field. The procedures aim at the “fast outcome” and “sorting” of specific third-country nationals, in the name of “Schengen protection”, finalizing a state of exemption in the border reception and identification centers, procedures that will include also those who will be arrested within the mainland at any time and had not yet passed the border controls. The proposal in this regulation of an establishment of an independent monitoring mechanism in respect for the human rights of the detainees and for non-refoulement is unlikely to work effectively, as, especially in border areas, the unhindered and continuous access of police arbitrariness control bodies and not only, it has been proven that it cannot timely remove the consequences for the affected people and hinder organized government policies. Moreover, the violation of the principle of non-refoulement currently in Greece is so widespread that even applicants for international protection have been forcibly pushed backed to Turkey. Nevertheless, the establishment of an independent mechanism for investigating deportation accusations is a real necessity, but not a legal prelude to consolidating a border exemption regime.