The Progressive Post

Asylum for containment: the bankruptcy of conditionality

professor of migration law at the Amsterdam Centre for Migration and Refugee Law, Vrije Universiteit Amsterdam

For two decades, Europe has tried to contain migrants and refugees in neighbouring countries. The situation in Tunisia is merely the most recent ‘crisis’ that shows that this approach is bankrupt. Long-term, formalised and unconditional support addressing the concerns of Europe’s neighbours will also better serve Europe’s interests.

For two decades, the EU and its member states have tried to externalise asylum and migration policy. They make private actors (such as airlines) and neighbouring countries (Turkey, Libya, Tunisia, Morocco) responsible for keeping African and Asian migrants away from European territory. In the Asylum for Containment report, which I co-authored with colleagues from Niger, Serbia, Tunisia and Turkey, we point to a contradiction at the heart of European externalisation policy, which helps to explain why externalised migration policies do not work, and, at times, even backfire.

Europe is aware that, for externalisation to work, neighbouring states must have functioning migration and asylum systems (with state-of-the-art legislation, policy and administration). From a European perspective, this is perfectly logical: to contain migrants and refugees in neighbouring countries, asylum and migration governance there is supported. However, Europe’s neighbour states are also aware of the link between Europe’s containment policies and its support for migration and asylum governance. While in itself they have an interest in functioning migration and asylum governance, they do not want to be the place where European containment policies take place – they do not want to become European hotspots. This position of Europe’s neighbours is not merely based on calculating the benefits and costs of cooperating with Europe; it is also based on a normative position about global mobility.

Neighbouring countries do cooperate to some extent. Serbia hopes to become an EU member state soon, and formally accepts the EU acquis as it is. For the Serbian government, EU accession has priority over any disadvantage that may follow from implementing European law. Niger (one of the poorest countries on earth) receives budget support from the EU on the condition that it implements certain migration policies. Other countries also accept, at some level, what is, to quite some extent, a European diktat. In some contexts, they do so eagerly – particularly when the EU is willing to train and fund their police forces and security services. Of course, they do have some extent of countervailing power, but none of them (not even Turkey) can afford not to relate to European policy preferences.

However, containment is not in the interest of Europe’s neighbours. They are less affluent (and, in many cases, far less so) than Europe, and they lack the massive administrative systems European countries have. Like European countries, they have economic, social and political concerns which make migration and asylum sensitive issues. The EU funds a UNHCR office in Agadez (northern Niger) where, for example, Sudanese refugees can ask for resettlement in Europe, rather than try to reach Europe by a smuggler boat. At first sight, this is a positive initiative. However, local authorities and civil society organisations are unhappy with the ‘hotspotisation’ of their city, which coincides with the undermining of the traditional trans-Sahara trade due to EU-led anti-smuggling policies. Why would people in Agadez be prepared to bear a burden that people in Greece, Italy, Germany or Sweden are not prepared to bear?

This ‘calculating’ attitude (‘this costs us more than the EU gives in return’) is reinforced by a normative perspective. It is not just that European external migration policy is not ‘profitable’ enough for neighbouring states. From their perspective, it is also unreasonable and not legitimate. This normative perspective is many-layered. Europe’s neighbours are at the wrong end of what Steffan Mau has called the global mobility divide. Due to the restrictive European visa regime, in particular citizens of African countries have fewer mobility rights than they had during the Cold War. European promises of legal pathways for migration conspicuously fail to materialise – quite  the contrary: France, for example, routinely reduces the number of tourist visas as part of its external policy. The effects of this (grandparents who cannot visit their offspring, people who cannot attend the funeral of a loved one) create anti-European resentment. Another layer is that the displacement Europe seeks to contain is often the result of European foreign policy. The disastrous 2011 NATO intervention in Libya (to mention merely one example) has destabilised not just Libya, but the Sahel as well. The resulting increase in conflict-induced migration is not primarily the responsibility of dysfunctional African politics but of European policy. From the perspective of Europe’s neighbours, it is not reasonable to expect them to pick up the pieces of the ruins of European foreign policy. A third layer is that a country like Serbia fails to see what is reasonable in the idea that migrants and refugees coming from EU member states (Greece and Bulgaria) headed for other EU member states like Hungary or Croatia, should be its responsibility when they transit through Serbian territory.

The combination of the ‘calculation’ of neighbouring countries with their normative rejection of European externalisation results in non-cooperation. Even when Europe succeeds in pressuring them to sign agreements, Europe’s neighbours do not necessarily implement them. This non-implementation is highly contextual. Tunisia cooperates with the EU regarding the coast guard and Integrated Border Management, but refuses to adopt the Asylum Act (drafted with the technical assistance of UNHCR and funded by the EU) because that would turn Tunisia into a safe third country. Turkey did adopt an EU-inspired Asylum Act in 2013, and now hosts the largest refugee population worldwide. Tunisia has learnt from that. Serbia is another example. Whereas at the formal level (adoption of legislation and policy frameworks) Serbia copy-pastes the EU acquis, it does not implement it. Like Greece, it is aware that not having a functioning asylum and reception system leads to the legal impossibility of returning asylum seekers. In Niger, key elements of the central state have been convinced by the EU to cooperate, but the local authorities whose cooperation is crucial for success do not see why they should. Obviously, Turkey is a case apart, because it has more clout than the other three countries we studied, and because for Turkey migration is merely one of the elements of its geopolitics related to Europe. However, also Turkey’s cooperation with the realisation of European interests only goes so far.

Conditionality is the key. Neighbouring countries do not cooperate with European external migration and asylum policy because they know that Europe will use their cooperation to contain migrants and refugees on their territory. From a European perspective, support for the condition of cooperation with European policy priorities makes perfect sense. For exactly the same reason, it makes no sense from the perspective of Europe’s neighbours. In Asylum for Containment, we conclude that conditionality and the policy characteristics that come with it (short-term, informal or even secret, bilateral cooperation) do not work and even backfire. It is quite possible that Serbia and Tunisia would have welcomed European support to set up an asylum system that actually works, if it had not had good reasons to believe that if they did so Europe would saddle them with a problem it is not willing to deal with itself. Without the compulsion that conditionality entails, and without the policy aim of containment, Europe’s neighbours would probably have better functioning migration and asylum management than they have now. That would be good news for migrants and refugees in these countries, but also for Europe because more people could remain there under acceptable circumstances.

It is clear that Europe’s policy of containment and conditionality, initiated in the 2006 Spanish Plan for Africa, is bankrupt. The alternative is long-term, formalised and unconditional support addressing the concerns of Europe’s neighbours.

Photo credits: Eddeb

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