In general terms the Council document is re-enhancing the commitment of EU to address issues related to migration and refugee influxes with a policy mix of externlisation, tough border controls and criminalisation of actors that obstruct EU imperatives. In most cases the text is vague and very diplomatic so reflection is mostly based on interpretation of intention.
On point 5 the Council commits to explore the concept of regional disembarkation platforms in close cooperation with third countries as well as UNHCR and IOM.
The concept itself is still not specific but the first hand analysis suggests a number of difficulties to be addressed. If the disembarkation platforms become asylum process centres then who is going to have access to them? If this is only people saved during SAR operations in the Med, as implied by the document, then the concept will fail to address its main stated purpose which is to stop smuggling through Med. People will still get on boats in order to be saved and be transferred to the centres in order to request asylum. If these places are opened to population generally then soon will transform to magnet camps attracting huge numbers of people and producing an enormous backlog or cases. In either case legal, institutional, administrative, economic and political complexities are enormous.
Point 6 regarding those arriving on EU territory the idea is to “transfer [them] in controlled centres set up by MS, only on a voluntary basis, where rapid and secure processing would allow to distinguish btw refugees and migrants. Then refugees would be relocated on a voluntary basis while migrants will be returned.”
In this case the entire idea is opening the door for the implementation of fast track detention. Although some experts have rushed to celebrate it as a choice in the right direction fast track detention is an old concept that has been practised in EU countries, especially in Britain, and empirical evidence suggests its reality is far from ideal regarding respect of asylum procedures and human rights. It also appears there has been only a number of MS inclined to consider this measure and that is why it all depends on voluntary participation of MS.
Still the idea will have to deal with a lot of legal and practical constraints. Detention is a punitive measure, especially for vulnerable people and should be implemented, according to EU law, only as a measure of last resort. Moreover blanket indiscriminate detention as a basis for asylum policy wont be able to stand without intense gerrymandering on behalf of authorities. Although the EU-Turkey deal experience has proven well enough that both EU institutions and MS governments are ready to circumvent the rule of law to protect their political agendas.
Fast track asylum proceeding are also questionable, especially since the Greek hot-spot experience has made clear that the Commission’s intention is to politically influence national asylum systems under the pretext of supporting them with EU asylum experts. A frame of extreme transparency will need to be put in place, if it is to be accepted that the asylum procedures within detention centers is independent and up to standards.
Furthermore it’s unclear of what happens with people after they receive asylum or with those who are not eligible for international protection. The relocation program from Greece and Italy implemented during 2016 and 2017 was painfully slow and in the end fell short of ambitions. How is it going to work out better in this case.? And will recognised refugees remain detained while anticipating relocation? And what about rejected people? Are they going to be detained while expecting deportation, and for how long and where? And what if their return cannot be implemented, will they have to stay incarcerated for 18 months, the maximum period predicted in EU law but in practise an inhumane choice?
Last but not least it is questionable how much further detention will contribute to the deterrence effect than it already does. For example the Greek gov, which has reportedly refused in the Council to open additional ‘controlled centers’, is already implementing a policy of mass detention. Although away from public eye in order to avoid criticism in November 2017, according the the Greek Ombudsman, 3,572 people were detained for deportation in detention centers and police stations around the country.
Point 9 provides for the creation of a separate dedicated budget line for externalisation policy within the Internal Security Fund, the Integrated Border Management Fund and the Asylum and Migration Fund, which will make it possible to streamline financing of project in a much faster and effective pace.
Point 10 repeats the already mentioned intention of the Commission to bolster the capacity and mandate of Frontex. The commission has already proposed the creation of a 10,000 standing force available to Frontex and the increase of its budget to be tripled to EUR 12 billion during the next Multi Annual Financial Framework (EU BUDGET 2021-2027). As the Commission has already mentioned, and the Council reiterates in its document, a new regulation enhancing the mandate of Frontex to undertake and execute deportation will be swiftly presented possibly giving the agency authority over national policy on border control and returns.
Point 11 deals with secondary movements predicting that “MS should take all necessary internal legislative and administrative measures to counter such movements and to closely cooperate amongst each other to that end”. Bottom down the provision opened the way for Germany’s tactic to produce bilateral agreements btw MS to deal with secondary movements, most possibly by returning population that has been registered or requested asylum in others countries prior to their secondary movements. Indeed a trilateral deal btw Germany, Spain and Greece as well as another one btw Germany and a disputed number of countries have been announced in 72 hours after the EU summit.
Point 12 mentions a reform of Dublin in relation to SAR disembarkation operations which means that a large part of the regulation might need to undergo revision to accommodate the new concept, especially regarding those processed in EU territory but not only. Meaning an agreement over Dublin will be pushed back for a long period.
A first hand assessment of conclusions makes clear that EU leaders have resorted to wishful thinking in an effort to produce something that looks convincing to political adversaries in various countries as well as within the Council itself.
The only concrete measure identified in the Council conclusions could be the controlled (detention) centers for processing those disembarked on EU territory. This could open the way for wider swift implementation of fast track detention around Europe even for cases of people that have not been rescued during SAR operations. The question of discrimination also remains given that some asylum applicants will undergo process under detention while others (for example someone entering EU territory from Romania or Evros) might not face the same situation.
IT IS WORTH it to know that prior to the council UNHCR and IOM co-signed a letter to the Council, EU Commissioners and the Africa Union which offers some first advice on the mechanics and regulatory framework the disembarkation platforms concept should involve. The letter pays the necessary lip service to human rights but it makes very clear both organisations are on board the project if it goes on.