The European Immigration Deal and Its Aftermath

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Posted in: Immigration Law

In the wake of repeated refusals to allow humanitarian ships to dock, Italy forced a reckoning with Europe’s immigration issues. While other states such as Hungary and Poland were refusing to accept migrants from elsewhere in Europe, Italy’s refusal to accept shipwrecked seekers still at sea brought the crisis to a head. At last weekend’s EU summit. Italy kept the heat on during the summit, asking a Spanish ship to stand down from a Mediterranean rescue, and outmaneuvering other states by taking advantage of consensus-based rules for the summit itself. But will the resulting conference statements provide a building block for future immigration framework development, or was it simply a paper for Chancellor Merkel to stave off domestic dissent? In this post, I’ll explain what happened at the recent EU summit regarding immigration as well as detail the content of the voluntary agreement. I’ll also offer some thoughts about the possible stumbling blocks for greater agreement and ongoing efforts to transform or leverage the anti-immigration agenda into an anti-EU agenda.

Lawyerly Control of Process Forces the Immigration Debate

Italian Prime Minister Conte, citing his credentials as a law professor, flouted European Council norms and forced the immigration debate onto the top of the summit’s agenda. Because of the consensus process that governs EC summits, he was able to block all planned joint conclusions until the heads of states reached agreement on the immigration issues. Between his refusal to accept ships and his hardline bargaining approach, diplomats have accused him of holding a knife to leaders’ throats, but he may have succeeded, at least in the short term, in getting what he wants.

Separate from the immigration issue, such a strategy may prove corrosive. As we have seen with the US Congress, the willingness of political actors to aggressively use process to force their agenda or to guarantee particular outcomes can cause institutionally problematic escalations. Think, for example, of the filibuster or emerging practices regarding judicial appointments. While savvy regarding institutional process legitimately helps politicians achieve their desired ends, serious disruption of institutional norms regarding process can undermine the long-term ability to reach consensus and make policy. Many European diplomats have suggested that Conte overplayed his hand and may encounter stiffer future diplomatic resistance than had he “played the game” in a friendlier way.

What’s in the European Agreement?

While the full text can be found here, I wanted to offer a short summary and some commentary on the voluntary agreement. In brief, the agreement includes:

  • Increased determination to stop smuggling on the Mediterranean by increasing support for Africa, the Libyan coast guard, greater cooperation with countries of origin. Most notably, and probably a nod to Italy’s preferences, “All vessels operating in the Mediterranean must respect the applicable laws and not obstruct operations of the Libyan Coastguard.” In other words, humanitarian rescue ships should stop rescuing persons in Libya’s search and rescue zone and then trying to enter either Italy or Malta’s ports. Of course, without significantly greater support for Libya’s Coast guard, we should expect many repeats of the 110 migrants who likely died in the Libyan zone during the course of the summit’s negotiations.
  • Enhanced efforts to implement the EU–Turkey statement including full implementation of the bilateral readmission agreements and greater financial support for states such as Spain and Morocco to deal with increased flow of migrants in the western Mediterranean.
  • Willingness to explore regional disembarkation platforms, in close cooperation with relevant third countries as well as UNHCR and IOM. These platforms are justified as a way to deter dangerous boat journeys. The thought is that economic migrants will not attempt to make a dangerous boat journey to Europe if they are likely to be returned to Africa, and thus human trafficking will become a less viable enterprise. I discussed the human rights concerns about such platforms here. The siting concern also looms large. Algeria, Egypt, Libya, Morocco, Niger, and Tunisia have also been mentioned, but none has volunteered. Morocco has publicly refused.
  • Creation of “controlled centres set up in Member States, only on a voluntary basis, where rapid and secure processing would allow, with full EU support, to distinguish between irregular migrants, who will be returned, and those in need of international protection, for whom the principle of solidarity would apply. All the measures in the context of these controlled centres, including relocation and resettlement, will be on a voluntary basis, without prejudice to the Dublin reform.”
  • Disbursement of 500 million euros to the EU Trust Fund for Africa and a request for new contributions from member states and “steps towards creating a new framework enabling a substantial increase of private investment from both Africans and Europeans” with “particular focus should be laid on education, health, infrastructure, innovation, good governance and women’s empowerment.” Skeptics have decried this as window dressing that may not materialize at all. A fair concern, but given the overall voluntary nature of the agreement, it would be a surprising feat to secure committed funding for the so-called Marshall plan, but leave the rest as voluntary.
  • Encouragement to increase finances and enhance the mandate for Frontex (the European Border and Coast Guard Agency) to secure the borders and help increase the return of “irregular migrants.”
  • Concern about secondary movements of asylum seekers between member states and emphasized member states ability to “take all necessary internal legislative and administrative measures to counter such movements and to closely cooperate amongst each other to that end.”
  • Commitment to further reform on the Dublin system without any concrete amendments but instead aspirations “to reform it based on a balance of responsibility and solidarity, taking into account the persons disembarked following Search And Rescue operations” and to further examine “the Asylum Procedures proposal.”

Overall, it strikes me as a promising beginning, despite low expectations going into the meeting and the increasingly obstructionist practices of countries like Hungary, as well as seemingly liberal states like Denmark and France. Hungary vocally refuses to take any migrants and has criminalized assistance to asylum seekers. Denmark will be voting on legislative proposals that include doubled sentences for crimes committed in “ghettos” where most migrants live, a prison sentence for immigrants who force their children to take long visits to the country of origin, and confining “ghetto children to their homes after 8 p.m.” And France has been vigorously pursuing migrants it can return to Italy including the illegal turning away of unaccompanied minors.

Notwithstanding these countries’ approaches, this agreement strikes me as a realistic starting point. It addresses both push and pull factors while paying at least lip service to compliance with international law. Whether states will turn these non-binding aspirations into concrete binding EU policy probably depends a great deal on the ongoing political climate.

The EU and Germany

That brings me to my last point. Just as in the United States, the immigration debate is becoming a referendum on much greater political questions, for Europeans, many view immigration policy as a way to express dissatisfaction with the EU and what is perceived as Germany’s 2015 agenda setting. Many politicians and citizens dislike existing EU immigration policy not only because of its supposed effects on the culture and domestic economy, but also because of the limits it places on state sovereignty. Even as states were able to reach a voluntary agreement here, the Italian Prime Minister has built on his EU win not by making moves to solidify Italy’s commitment to the EU. Rather he has suggested a unified European anti-EU political movement—a “League of Leagues” to press back against the EU agenda.

Meanwhile, Chancellor Merkel left the EU summit with hopes that the voluntary commitments would save her domestically and bolster her role in uniting Europe. Many commentators were initially optimistic, but Germany’s interior minister is still threatening to resign, which might trigger the end of Merkel’s coalition. Even after Merkel drew up domestic measures to further limit migrant entry, the leader of the Christian Social Union was not satisfied.

In order to save herself, Merkel ultimately agreed to build transit centers to house asylum seekers and to turn away those who have already applied. Commentators rightly see this as the abandonment of the 2015 Open-Door Policy, and even if Germany does not create a hard border in violation of the freedom of movement principle for the Schengen area, a “soft” border raises a real risk of racial profiling and a violation of freedom of movement for a discrete and already disadvantaged minority. Equally significant, the deal may undermine the voluntary agreement reached at the EU summit. Why? In order to implement it, Merkel needs to strike a deal with Austria to handle migrants rejected at Germany’s southern border, but in addition to the difficulties in getting Austria to agree, these efforts may span a domino-like reaction with Austria and other states using Merkel’s move as an excuse to close their own borders.

At the same time, Merkel is still defending a commitment to international asylum law and emphasizing the humanity of those seeking entrance. Yesterday, she said “The soul of Europe is humanity, and this soul- if we want to maintain it—if Europe with its values is to continue to play a role in the world, then Europe cannot simply turn its back on hardship and suffering.” Where Europe will ultimately land on this question is still up for grabs, but the recent summit and internal German deal making suggest that immigration will continue to pose a serious, potentially existential threat not just to Merkel but to the EU system as a whole.