The EU and illegal immigration: unsatisfactory achievements

The Odysseus annual conference workshops identified two main features of the EU immigration policy. First, the European institutions increase their role as a collector of personal data to ensure a “smart boundary” system. Second, amidst distrust and terrorism, the Union has chosen to subcontract its immigration policy away from the old continent.

The collection of data: a proportionnality issue? 

The European Union has created six databases (SIS, SIV, Eurodac, Ethias, RTP & EES). In 2016, the different stakeholders reformed the framework of this policy to ensure a smarter boundary system. This new concept means that the Member States and the institutions must aim at eliminating institutional duplications and allowing for better interactions between the different bodies in charge of immigration policy and the management of data collected. According to R. Rozenburg, from the DG Home of the Commission, what is needed is not a substructure to run the policy, but rather a smooth EU architecture which eases communication. Within this new trend, Eurodac has been reformed. This fingerprint database was created to identify asylum seekers and illegal migrants to ease the implementation of the Dublin legislation. R. Rozenburg considers this legislative package as one of the most protected system in the world. For him, it focuses on qualitative rather than quantitative information with a high degree of data protection. MEP Monika Hohlmeier (EPP), supports this system and highlights its role in the protection of children against slavery. She also supports the reduction of the age to collect fingerprints from 14 to 7 years old.

The collection of data doesn’t make consensus and maybe one of its justifications is the political context with terrorism and strong migration pressures on borders. But is it a good justification to accept this U-turn of presumption and the relative proportionality in the legislation as Ms Niovi Vavoula stressed?

However some scholars and deputies disagree with this positive appreciation of data collection and especially the Eurodac system. Ms Niovi Vavoula thinks this database has to be deleted. The reform has broadened the scope of use of the data. This is problematic because it increases at the same time the risk of abuse. For her, this reform is based on a new principle: presumption of guilt. Thus it makes every migrant or EU citizen a presumptive criminal. Moreover, she emphasizes the lack of individual procedures in the possible remedies available. It is not a lack of legislative protection or judge’s limitations (Wetson case, Schwarz case) but proportionality and justification are off to allow this type of policy.  For instance, data are kept for ten years while generally it is only five. Notwithstanding the circumstances, there is no justification to augment to ten and thus it stresses the lack of proportionality.

The collection of data doesn’t make consensus and maybe one of its justifications is the political context with terrorism and strong migration pressures on borders. But is it a good justification to accept this U-turn of presumption and the relative proportionality in the legislation as Ms Niovi Vavoula stressed?Moreover the EU seems to forget all of its values by subcontracting its migration policy to its neighborhood due to intern EU crisis of trust.

Subcontracting of immigration policies amidst a European distrust crisis.

The manifestations of the distrust amongst European Member States are diverse. For instance, it is really difficult to conduct the Juncker plan to dispatch asylum seekers in Europe. Some countries such as Poland refuse the quotas and others as Belgium add new criteria to reduce the number of beneficiaries. Florence Giorgi explained that Belgian leaders have tried to reduce the territoriality principle outside the embassy and thus the possibilities to attribute residence permits. Moreover, the wills of some governments to open up data collection to EU citizens strongly highlights the distrust from the national leaders against the other-EU peoples.

First and foremost these national behaviours highlight the failure of Dublin legislation. As Ms. Niovi Vavoula explained, the EU immigration and asylum legislation doesn’t work because there is an asymmetry between the EU migration issue and the national solutions implemented. No state can support the migration pressures for a whole continent. The Dublin legislation might only reduce the responsibility of the other national states. It results in a distrust crisis in the EU and the uselessness of national anti-migration legislations. We could now understand the pactomania that Céline Bauloz pointed out.

The Commission has developed a new framework to run the migration and asylum policy. It is based on a more liberal perspective with a win-win relationship between EU and the countries of origin. In a short term, this pactomania aims at saving lives and fight against illegal migration. The EU agencies implement a policy to create awareness amongst potential migrants about the dangers to come to Europe and also facilitate the reinstallation in the home country.  In a longer perspective, the EU authorities encourage to solve the root causes of migration in the countries by helping for economic development and democracy. For example the EU has created a plan for external investment, a Fund for Africa or the Regional fund according to Prof. Dr. Cécine Bauloz. In few words, the migration issue is linked to the economic and trade policy and the most remarkable case is the agreement with Niger. It is a coherent and complete mobilization of the tools available: sensitization, dismantling of clandestine networks and return of illegal migrants. An economic perspective completes the EU-Niger agreement thanks to the Fund for Africa, aids on the hotspots via EEAS and the creation of a liaison officer position. The result was a drastic diminution of migrants from Niger and the apprehension of 102 smugglers. However, Niger is one case among others such as Ethiopia, Senegal and Mali. Moreover, how could you implement this type of agreement with failed state? Another type of subcontracting system is Turkey. The migration routes cross the anatolian region and the EU-Turkey agreement aims to stop it.

It is important for the partner country to have a strong and effective government to ensure smooth relationship because both sides are active in the implementation. This  migration policy hinges on the principle of the carrot and the stick.  On the one hand, the threat is the conditionality of the aid as the Declaration of Malta settled, which considers the relationship as a “mutual solidarity” and on the other hand,  the EU improves the relations with the country in a larger scope than migration and bind its authorities by the development cooperation.

This  migration policy hinges on the principle of the carrot and the stick.

The EU nevertheless has to fulfill its commitments, but so far it is not really the case. Despite EU has signed an agreement with these countries, only 30% of the money for development was given to Niger and none to Ethiopia. For the legal remedies, it is the same problem. The possibilities of remedies remain weak and the EU also doesn’t offer appropriate protection to asylum seekers and migrants. The continent is clearly dependent on this “mutual solidarity”. The parties gauge their power in this framework instead of ensuring a smooth relationship as Turkey’s example highlighted.

In an EU integration perspective, the Odysseus conference clearly underlines the difficulties of the EU to implement a coherent and effective migration and asylum policy. The project of the Blue Card highlights the needs of reforms and europeanization but Member States remain clearly timid about this State symbol. Terrorism and also the crisis of the nation-State create a context in which the national leaders have to prove the usefulness of the State action but the asymmetry with the migration crisis cannot allow to get good results. The EU is just a collector of data, which questions proportionality and justification of the achievement of the “smooth boundary” system. The incoherence of this management cannot solve the problem and only creates distrust between the European stakeholders. Clearly the crisis of trust in Europe springs up in this asymmetry and finding a solution in subcontracting, it is playing with fire. The EU becomes dependent on international relations which creates tools for our neighbours to put pressure on EU policy. Isn’t Turkey the best example?

Loïc Charpentier est étudiant en relations internationales à l’ULB.