By Dr. Bernd Parusel

On 20 December, news broke that the European Parliament and the Council of the European Union had reached an agreement on the “New Pact on Migration and Asylum” after long and difficult negotiations.1 This pact, which had been presented by the European Commission in autumn of 2020 and also includes earlier proposals, is a comprehensive package of laws and policy recommendations that cover many areas of the EU’s common migration and asylum policy and contain some innovations. The pact introduces, for example, a mandatory screening of asylum seekers and migrants without travel documents who arrive at the EU's external borders; fast-track asylum and return procedures in closed reception centers at (or close to) the borders; specific rules for border crossing, reception conditions, and asylum processing in different types of “crisis” situations; and a new "solidarity mechanism" for better responsibility-sharing between the member states of the EU. These proposals, and also the compromise reached in December, have received a lot of criticism because they represent a tougher policy against people on the move, create an even more complicated asylum system than today, and generally weaken the right to asylum.

One might ask now whether it is this pact that will govern the EU's common migration and asylum policy for a long time to come, or whether there will be more measures designed to deter people from fleeing to Europe. As I argue in this essay, the pact is both the endpoint (for now) of a long-term reform process and a starting point for new or intensified strategies to control and limit refugee flows to Europe. In parallel with the pact taking the final steps towards formal adoption, we are already seeing many new activities in what is usually called the “external dimension” of EU migration policy. These include various arrangements to manage migratory flows and displaced people in cooperation with countries of transit and origin outside the Union, such as in North Africa. What are these activities, and what is their potential impact? Are they legal and realistic? Do they solve any problems? These are the questions that this article will examine.

The "external dimension" of EU migration policy

The external dimension of EU migration and asylum policy is nothing new in itself, and it goes without saying that refugee and migration flows to the EU are affected by the situation in people's countries of origin and developments in countries surrounding the EU. But at various times, often in times of increasing irregular migration to the EU and perceptions of migration crises, politicians have launched more or less radical proposals to try to stop or reduce the number of people who seek protection in the EU through measures outside the EU.

As early as 2005, the EU Heads of State and Government noted that migration issues had become increasingly important and that the public was concerned about migration. The European Commission then launched a “Global Approach to Migration” (GAM), which was further developed in 2007 and 2008 and eventually resulted in a framework for the EU's cooperation with other countries. The GAM aimed to build "comprehensive partnerships with countries of origin and transit". With this policy framework, the EU intended to strike a balance between three migration policy objectives: promoting mobility and legal migration; optimizing the migration-development nexus; and preventing and combating irregular immigration.

The Arab Spring and the migratory and refugee flows it triggered put external action back high on the EU's agenda in 2011 and beyond. The EU launched dialogues on migration, mobility, and security with Tunisia and Morocco, and the GAM was revised to become the GAMM with two m's, the "Global Approach to Migration and Mobility". The new framework now had four priorities: to improve the organization of legal migration and to facilitate mobility; prevent and reduce irregular migration in an effective yet humane way; strengthen synergies between migration and development; and strengthen international protection systems and the external dimension of asylum law.2

Following the arrival of large numbers of asylum seekers in the EU in 2015-2016, the EU moved towards tougher and more restrictive measures. Controversial agreements were made with countries outside the Union. The most prominent one is an informal agreement with Turkey which was aimed at preventing asylum seekers from countries such as Syria and Afghanistan from travelling via Turkey to Greece and from there to the rest of the EU.3 The EU also started supporting the coast guard in civil war-torn Libya to prevent migrants and refugees from crossing the Mediterranean towards Malta and Italy.4 Significant sums of money were channeled through a new emergency fund to projects in African countries in an attempt to address the “root causes” of forced displacement and irregular migration and to combat people smugglers.5 One of the main recipients of EU funds was Niger; a state in the interior of West Africa that had been identified as a major transit hub for irregular migration from sub-Saharan Africa to North Africa and Europe.6

EU leaders also often talked about the importance of opening legal pathways to Europe to create alternatives to irregular and dangerous travel, but legal immigration projects mostly remained small-scale, stalled after a while or did not materialize at all. A possibility for non-EU nationals to apply for visas to travel safely to the EU and apply for asylum, instead having to use dangerous irregular routes, was never introduced. The number of quota refugees, i.e. persons selected for resettlement in countries of first refuge, received by the EU member states increased for a while but then decreased again.7

Europe's "doorkeepers" in Asia and North Africa

The EU's agreement with Turkey, which is formally just a joint statement, is controversial in many ways. The cooperation contributed to people from Syria and Afghanistan, among other places, being prevented from moving on to Greece. Those who still did manage to get to Greece were often denied protection there, but sending them back to Turkey never fully worked in practice. The result was long stays of vulnerable people in substandard reception centers on Greek islands and many asylum seekers trying to leave Greece to travel on to other EU countries through the Balkans. If one is to see something positive about the Turkey agreement from a protection point of view, it is that the EU took over a number of Syrian refugees staying in Turkey under resettlement and that EU money helped organizations in Turkey that provided reception and integration programs for refugees. Despite the fact that the arrangement with Turkey must be seen as questionable, the EU continues to work in the same direction and this work is intensifying. In June 2023, talks were held with Tunisia on an agreement on cooperation, financial support, and migration management. In previous months, there had been an increase in irregular arrivals via Tunisia of persons seeking protection in the EU, which was of particular concern to the right-wing government in Italy, which had promised to halt irregular migration across the Mediterranean Sea. A meeting between European Commission President Ursula von der Leyen, Italian and Dutch Prime Ministers Georgia Meloni and Mark Rutte, and Tunisian President Kais Saied in Tunis led to a Memorandum of Understanding on a Strategic Partnership signed on 16 July. The agreement rests on five pillars: macroeconomic stability, economy and trade, green transition, people-to-people contacts (e.g., through cultural, scientific, and technological training and exchange programs), and migration and mobility. On migration, the parties underlined their intention to develop a holistic approach to address the causes of irregular migration, including by promoting sustainable development in disadvantaged areas. A common priority is the fight against irregular migration and smugglers.8 However, the Tunisian side did not seem entirely convinced, with the President stating that Tunisia did not intend to act as a border guard for the EU. In Europe, the agreement was heavily criticized by experts, human rights organizations, and the European Parliament, partly because it was seen as supporting Tunisia's increasingly autocratic government, which had taken extreme measures against refugees and migrants staying in the country, and partly because it was seen as ineffective or counterproductive in terms of the intended effect of reducing dangerous journeys across the Mediterranean. The agreement had also been reached without parliamentary scrutiny and some governments in the EU felt left out. However, the European Commission stated that the agreement should be seen as a model for similar deals with other countries in North Africa, such as Egypt.

Offshoring asylum

The fact that the agreement with Tunisia – at least initially – did not lead to a rapid reduction in the dangerous journeys of asylum seekers across the Mediterranean might be one reason why Italy quickly went ahead on its own with a new and perhaps even more radical idea – to send asylum seekers, which the Italian Coast Guard picks up in the Mediterranean, to Albania instead of taking them ashore in Italy. Rome and Tirana announced at a press conference in early November 2023 that they had agreed on a deal that would allow Italy to use and operate two reception facilities on Albanian territory for at least five years. At any given time, up to 3,000 people would be able to live there while their asylum applications were being examined.

The relocation agreement between EU member Italy and the nonEU country Albania differs in important respects from other offshoring strategies in Europe, such as the United Kingdom's agreement with Rwanda or similar plans that Denmark had discussed with a number of countries. In the UK, the goal is a pure deportation policy – asylum seekers who cross the English Channel to the UK should simply be sent to Rwanda, and Rwanda should take care of their asylum procedures, reception, integration, and everything else that follows. Italy's deal with Albania, by contrast, is based on the idea that Italian authorities handle the entire procedure and that Italian law applies even if the people are geographically on Albanian soil. In addition to managing the asylum process, Italy would provide necessary services inside these facilities, which include, for example, health care and order and security. Albania would mainly ensure safety outside and around the facilities. Even after the asylum examination is carried out, people would be handled by Italy.

Whether extraterritorial solutions of this kind are legal under international law is questionable, to say the least. The Supreme Court of the United Kingdom ruled in November 2023 that asylum seekers may not be sent to Rwanda because that would violate the asylum law principle of nonrefoulement. The UK would simply not be able to guarantee that Rwanda would not send people seeking protection back to the countries from which they have fled and where they would face political persecution or other circumstances that would give them a right to protection elsewhere.

In the Italian case, experts' objections relate to international maritime law and EU law, among other things. People rescued from distress at sea must normally be taken to the nearest place of safety. In most cases, given the geographical situation and the main Mediterranean migration routes, this would be ports in Southern Italy and not places further up the coast of Albania. The current EU Asylum rules require Member States to process asylum requests on their territory, and this will likely also apply under the reformed rules of the New Pact on Migration and Asylum, even if it widens the possibility of designating third countries as "safe" for return. Other arguments that have been put forward are that arbitrary or automatic detention of persons seeking protection is prohibited under international law and that a number of fundamental rights of asylum seekers cannot be adequately upheld in locked reception centers outside EU territory.9

More generally, it can also be said that the various asylum offshoring proposals currently being discussed in Europe risk violating general principles of asylum law. An important one, often emphasized by the UN Refugee Agency UNHCR, is that cooperation between states when it comes to asylum seekers and protection is acceptable – even desirable – when the goal and the result is enhanced protection for people on the move and responsibility-sharing between countries. Trying to shift responsibilities undermines the idea of international protection.

Despite these tensions, several EU governments have launched various types of outsourcing or offshoring ideas. Austria has shown interest in the British deal with Rwanda. Germany declared in December that it would explore the possibility of “third-country solutions”. In Sweden, the government is looking into the possibility of setting up "return hubs" in third countries for people who have had their asylum applications rejected but cannot be returned to their countries of origin. At present, however, none of these proposals has led to concrete results, which is probably partly due to legal and practical problems and partly to the fact that nonEU countries (with Rwanda and Albania as possible exceptions at this time) have not been interested in helping the EU with migration control measures that these countries perceive as unfair.

Levers, incentives, and conditionality

Although this may sound cynical, the question for the EU then becomes how to possibly motivate recalcitrant third countries to sign up for the EU’s restrictive migration policy goals. For some time now, there have been discussions about different types of means of pressure, or levers, to be put on other states so that they stop people who want to flee to the EU and take back asylum seekers and other migrants who are not allowed to stay in EU countries. These discussions include visa rules, aid, and trade. For example, the EU can make it more difficult for people from countries that do not cooperate with the EU on migration to obtain visas, reduce or stop development aid to recalcitrant countries, or threaten with trade restrictions. Diplomatic outreach to countries can be another tool, and it has been said that legal migration opportunities could be created for people that Europe wants, such as certain workers or students, in exchange for efforts in countries of origin and transit to prevent irregular migration.

Measures of this kind have been discussed for a long time, but it is difficult to see that any significant progress has been made or will be made in the future. Transit and origin countries are not a homogeneous group, which means that if pressure is to be exerted at all, the measures may need to be adapted to the specific circumstances of each country of origin and transit. Not all countries react in the same way to threats from the EU about visa restrictions, and in many parts of the world it is already very difficult for many people to obtain EU visas. Making trade preferences or development aid conditional on the obedience of third countries to the EU's restrictive migration policy objectives might work if a country is truly dependent on this, but if remittances sent home by refugees and migrants in the EU are a more important source of income, a reduction in official aid may not be a decisive lever.

Some measures in the external dimension could also be completely ineffective, or even counterproductive to the objective of reducing migration. If people are to have better living conditions in their countries of origin so that they do not feel they have to migrate, reducing aid or trade may not be the best way forward. Many third countries may also perceive the EU's pressure strategies as one-sided, paternalistic, or as expressions of neo-colonial attitudes. Third country governments generally have no interest in their citizens risking their lives on dangerous irregular journeys to Europe, but they tend to expect the EU to offer safe and legal alternatives, to treat their citizens humanely and fairly, to support their integration and to allow them to send money (so-called remittances) back to relatives in their home country – instead of taking them into detention and forcibly removing them. Unilateral pressure thus does not buy goodwill, at least not in the longer run, and there is an imbalance between the migration policy interests of many third countries on the one hand and those of the EU on the other. EU proposals that are perceived as unfair can lead to frustration and reluctance among third countries rather than to a willingness to cooperate, and this risks eroding the trust and sense of partnership that would be needed to create conditions that help build a better global framework for a responsible and humane migration policy.

Negative consequences all around

A final question that can be asked is why various and sometimes quite crude and radical measures in the external dimension of the EU’s migration policy seem to be booming again right now, despite the fact that researchers and experts have been warning about potential risks for many years. It is likely the result of two factors: first; the EU is once again experiencing an increasing number of irregular arrivals and asylum seekers, and this trend coincides with serious capacity problems in asylum reception systems in several EU member states and tougher economic conditions. This raises fears of new "migration crises", fears that in many parts of Europe are exploited and amplified by right-wing populist forces that present seemingly simple solutions to complicated problems. Second; there is a growing realization that the implementation of the internal asylum and migration reform via the EU’s New Pact on Migration and Asylum will take time and might in the end not reduce the number of people fleeing to Europe as much as some policy-makers want. Those in the EU who want fewer asylum seekers are therefore looking beyond the internal reform process and pushing for measures to stop migration abroad before people even reach the EU's borders.

It is important to note that cooperation between the EU and non-EU countries can be beneficial if done the right way; for example, if it leads to fewer people having to flee; if safe and legal pathways to protection are opened so that people do not have to risk their lives on irregular journeys; and if the result of cooperation is a sharing of responsibilities that strengthens protection systems. However, the EU's strategy today is not primarily about that, but rather about trying to push down the number of asylum seekers at almost any cost and as quickly as possible.

Considering that most displaced people are in the Global South, often in the vicinity of countries suffering from conflict or war, it is unfair if Europe tries to place additional responsibilities on communities and regions already struggling with severe crises and major refugee situations in their neighborhoods. Many countries and governments see this unfairness, so if the EU continues on this path, there is a risk that it will end up with only autocracies and dubious regimes left to work with. If it becomes dependent on them, which it already is to some degree, such regimes can gain power over European politics by threatening with migratory flows. Thus, the current orientation of the EU’s external migration policies not only undermines the global protection system. It may also further damage the EU's reputation and influence in the world.

Dr. Bernd Parusel is a senior researcher in political science at the Swedish Institute for European Policy Studies (SIEPS). His main research interests are in policies on migration, integration, asylum and borders in the EU and in the Member States of the EU. This also includes the Schengen area, visa policies and free movement within the EU. Before joining SIEPS, Bernd worked as an expert at the Swedish Migration Agency where he was responsible for activities within the European Migration Network (EMN). He also worked as a research coordinator at the Swedish Migration Studies Delegation (Delmi) and as an adviser to a government-appointed commission on the future of Swedish migration policy.

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Footnotes

1 European Parliament (2023): Asylum and migration: deal for more solidarity and responsibility sharing, Press Release LIBE 20 December 2023.

2 European Commission (2011): A Global Approach to Migration and Mobility, COM (2011) 743 final, 18 November 2011.

3 Kyilah Terry (2021): The EU-Turkey Deal, Five Years On: A Frayed and Controversial but Enduring Blueprint. Feature, Migration Policy Institute, 8 April 2021.

4 Zakariya El Zaidy (2019): EU migration policy towards Libya. A policy of conflicting interests. Policy Paper, Friedrich Ebert Stiftung; Eugenio Cusumano / Marianne Riddervold (2023): “Failing through: European migration governance across the central Mediterranean”. Journal of Ethnic and Migration Studies 49 (12), 3024-3042.

5 David Kipp (2018): From Exception to Rule – the EU Trust Fund for Africa. SWP Research Paper 13, German Institute for International and Security Affairs.

6 Tessa Coggio (2021): Europe’s Tackling of ‘Root Causes’ of African Migration Has a Mixed Record. Feature, Migration Policy Institute, 6 May 2021.

7 Bernd Parusel (2021): “Why resettlement quotas cannot replace asylum systems”. Forced Migration Review 68, 10-12.

8 Annick Pijnenburg (2023): ”Team Europe’s Deal. What’s Wrong with the EU-Tunisia Migration Agreement?” Verfassungsblog, 21 August 2023; Catherine Woollard (2023): “Editorial: The EU’s Dodgy Deal with Tunisia is a Classic of the Genre: Undemocratic, Unlawful and Unlikely to Work”. ECRE News, 26 July