The Dawning of the Age of Aquarius: European Borders and Asylum Policy

Posted in: Immigration Law

Immigration and asylum may prove to be the defining issue for European integration and upcoming European Parliament elections. After a June crisis in which Italy and Malta turned away the Aquarius rescue ship, Spain offered to take the migrants on board as a short-term solution as EU countries attempted to find a long-lasting multilateral solution. In the wake of a voluntary agreement, individual countries like Germany and Spain are still roiled by domestic debate over the best approach, while countries like Hungary and Italy are holding fast to their exclusionary policies. Europe’s path is not yet clear, but the Aquarius seems to be the canary in the coal mine. The million-euro question is whether the age of Aquarius is one in which Europe reaches a mutually agreed upon solution or whether nationalism provokes states to provide their own answers. This post seeks to make sense of the latest developments.

Rescues at Sea

International law dictates that “shipmasters must render assistance to those in distress at sea, regardless of their status or circumstances” and states are “required to cooperate with their neighbours with the aim of reducing the risk of non-rescue.” In order to encourage shipmaster compliance, international law releases shipmasters from their obligations by requiring disembarkment to a place of safety be arranged as soon as reasonable. While late June witnessed Italy flouting these rules, many hoped such violations were part of a short-term strategy to bring EU countries to the table for a grand bargain. As I wrote here, states provided initial support for regional processing centers in Europe as well as disembarkation centers in Africa and increased support for African coast guards and economies.

But the post-June deal developments have been pretty discouraging. In early August, both Italy and Malta rejected an Open Arms rescue boat with 87 African migrants, with Spain ultimately accepting it into port and France agreeing to take about a third of the migrants. Spanish generosity, however, may be waning. In the past, migrants allowed to disembark in Spain after high-profile Italian and Maltese dock refusals had received fast-tracked papers and a special entry permit. Now such rescued migrants will be “held by police for 72 hours at a migrant camp, given a medical checkup, identified and detained while they await asylum or are given an expulsion order.”

In mid-August, the rescue ship Aquarius, laden with 141 rescuees, found itself in a second round of hot potato again unable to dock. Malta reiterated its legal position that it is not bound to offer disembarkation in its ports or ensure that a place of safety is provided, even for rescues within its search and rescue region, and it does not interpret “place of safety” to include compliance with human rights obligations. Spain refused entrance as its ports were not the safest (i.e. closest) destination. Italy demanded Britain take possession as the Aquarius was registered in Gibraltar. Britain rejected Italy’s proposal and instead demanded it should go to Italy. Only after several tense days and an agreement by France, Germany, Luxembourg, Portugal and Spain to take the 141 migrants, Malta finally agreed to let the ship dock.

Most concretely, this increasingly hostile European approach means migrants taking to the sea face greater risks of death and human rights violations. Even as departures have declined, over 700 people died on the Central Mediterranean route in June and July. Many attribute this rising death toll to a combination of Italy’s and Malta’s aggressive litigation tactics which have led many rescue boats to stop patrolling the Libyan coasts and the Libyan Coast Guard’s inability to fill in the gap. Even if the Libyan Coast Guard were better equipped and financed, serious concerns about the human rights conditions in Libyan detention centers remain. Such facilities are so bad that the UNHCR has concluded that Libya is not a safe port for purposes of international law. Yet, even Italian ships are now being instructed to send rescued migrants back to Libya, leading to the first “pushback” in years.

The EU is continuing to explore the concept of regional disembarkment agreements to address the serious and deepening cracks in the rescue system. In late July, the European Council issued papers emphasizing the need for clear rules for all and encouraged all coastal states in the Mediterranean to “establish search and rescue zones and Maritime Rescue Coordination Centres (MRCCs)” which will partner with the UNCHR and IOM to help “ensure those disembarked can receive protection if they are in need of it” or “will be returned to their countries of origin if they are not”

Asylum Seekers Who Reach Land

Of course, the rescue at sea problem is really about the unsustainability of Dublin regulations. Under Dublin, the one and only state that is to examine an asylum request is supposed to be the first European country in which an individual asylum seeker arrives. Even if an individual wishes to live elsewhere, the “Dublin phase” of his or her assessment will include a determination of the state of first entrance and a transfer back to the competent state. In reality, this means a much higher burden for states like Italy, Greece, and Spain. Amnesty International has urged the overhaul of the Dublin system to encourage “a mandatory distribution mechanism of asylum-seekers” and “solutions based on promoting equivalent protection standards, fair sharing of responsibility, and stricter enforcement of family reunion rights.” Even Chancellor Merkel has acknowledged that the Dublin system is “not functional.”

So how will European states address this inequality? One possibility floated earlier this summer is EU processing centers. The European Council issued a paper in late July offering

  • full operational support with disembarkation teams of European border guards, asylum experts, security screeners and return officers, and all costs covered by the EU budget;
  • rapid, secure and effective processing that reduces the risk of secondary movements and accelerates the process to determine the status of the person concerned;
  • full financial support to volunteering Member States to cover infrastructure and operational costs; as well as financial support to Member States accepting transfers of those disembarked (€6,000 per person).

Discussions continue with the UNHCR and the International Organization for Migration. Given rising domestic nationalism in many countries across Europe, it is perhaps unsurprising that no states have indicated their willingness to host such a center.

Meanwhile, Spain and Germany have begun to advocate for a “fair distribution” of migrants across the EU. They will present a fuller view at a September EU meeting, but have made clear that states like Poland and Hungary must not be allowed to opt out. In turn, Hungary has pushed back suggesting that only its national government can decide who to admit. Other possible proposals include an EU humanitarian visa wherein asylum seekers can secure their right to entry in their home country and if granted, would avoid irregular entry.

Meanwhile, the late June EU immigration deal also failed to assuage increasingly vocal domestic groups in Germany who wish to close borders with their neighbors. Chancellor Merkel has now promised to enhance efforts to deport rejected asylum seekers by “procur[ing] the needed documents” as Bavaria has opened its first asylum screening centers. Merkel also negotiated bilateral agreements with Spain and then Greece to take back migrants who had applied for asylum there first and is hopeful she can strike a similar deal with Italy. In practice, this means those seekers wishing to enter Germany and apply for asylum can now be turned back at the German borders. Some view enforcement of such agreements as an infringement of Schengen’s principle of free movement and a worrying trend in the direction of harder borders and undoing of European integration.

But perhaps the strangest twist of all is that Steve Bannon, former Chief White House Strategist, has announced a plan to unite far-right nationalist parties across Europe. Should parties be amenable to his plan, he would help manage campaigns for far-right parties to the European Parliament and create a nationalist bloc to block the integrationist efforts of the European Parliament on immigration and other issues. At least some far-right parties, such as Alternative for Germany and France’s National Rally, have rejected the offer of cooperation and coordination, but his offer is still open.

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