Unbuilding the Wall? Rebooting European Immigration Policies

Posted in: Human Rights

When I last wrote about European immigration policies, the European Union was struggling mightily to get recalcitrant EU countries to accept migrants, particularly those migrants fleeing from Africa. Over the past year, many Europeans embraced ever increasing nationalism, and most proposed regional and state solutions favored keeping the vast majority of migrants from ever reaching European shores. But in the past month, some evidence suggests a possible reversal of this trend. In this post, I’ll discuss how the opportunity for a broad regional immigration agreement emerged, what such a migration distribution proposal might look like, and the questions that it raises.


When I left this tale last fall, the EU had issued papers calling for regional disembarkation agreements. Such agreements and their implementation largely focused on keeping migrants out of Europe in two ways. First, rather than facilitating rescue at sea by existing charitable organizations such as Medicins Sans Frontieres or by European state coast guards, Europeans funded efforts by the Libyan military to keep migrants out of European waters. Such a strategy raises serious human rights concerns. The processing centers where migrants are detained to determine their refugee status are rife with abuse. In fact, the United Nations Office of the High Commissioner found conditions in Libya so bad that taking migrants there after a rescue at sea would violate international law given the “considerable risk of prolonged arbitrary detention in inhuman conditions, torture, and other ill-treatment, unlawful killings, rape and other forms of sexual violence, forced labour, extortion and exploitation.” Alternative European-funded African locations for determining status such as processing centers in Niger and most recently, in Rwanda also raise grave human rights concerns as local militias often control the centers and sell migrants into slavery or prostitution. Despite an initiative joined by eight EU nations pledging to resettle migrants processed in Libya and Niger, data suggests most countries have taken few or none.

Meanwhile, countries such as Italy and Malta continued their policies of closing their ports to rescue vessels. For instance, this past June, Italy refused to allow a rescue vessel carrying African migrants to dock until other European countries agreed to take the migrants. After a lengthy standoff, including a denied European Court of Human Rights request for an authorization to disembark, sea captain Carola Rackete entered the Italian waters and docked despite Italy’s naval blockade. She was placed under house arrest pending a criminal investigation, but an Italian judge determined that Rackete had not intentionally rammed a military vessel and that she had “been carrying out her duty to protect life and had not committed any act of violence.” Rackete drew international attention and acclaim, including France’s highest civilian award which she refused citing their hypocrisy on the immigration issue.

In my opinion, the bad press over Rackete and the rise of a new administration in Italy combined to open a window for productive European negotiation on more humane and equitable immigration policies. Unlike the Salvini government that used docking crises to amplify its nationalist credentials, the new administration seems interested in a more cooperative European role. On September 15, after six days of waiting and France and Germany’s volunteering to take a share, Italy allowed rescue vessel Ocean Viking, carrying shipwrecked and other rescued migrants from the coast of Libya, to dock in Lampedusa. In the end, Italy, France, and Germany each took 24 migrants with the others going to Luxembourg and Portugal. Later in the month, the Italian government authorized a second landing of a rescue vessel depositing 182 migrants rescued at sea.

The much less contentious September dockings reflect a major change for Italy as well as for other EU members Germany, France, and Malta. Shortly after the second landing, they all signed a joint proposal to “relocate people rescued at sea and end the plight of migrant rescue boats adrift in the Mediterranean.” Equally important, but less emphasized in the news coverage, was Italian minister’s statement that these states “also intend to make it easier to return migrants who don’t qualify for protection in Europe.” A plan to expand this proposal will be presented to the full EU in early October.

While the EU is not releasing many details, what do we know about the proposal and its expansion so far? First, it seems to lock in speedy redistribution of migrants after landing. Within four weeks on shore, rescued migrants are to undergo security checks, and then they will be sent to willing EU states.” State participation in this redistribution will be voluntary, as will a “mechanism for rotating the ports to which asylum seekers are transported . . . .” Then, according to a German minister, “the recipient countries would process their asylum claims, and would have the right to withdraw from the pact if the arrangement, or the numbers of migrants, became disorderly.”

Even if the agreement remained only among Italy, Malta, France, and Germany, the proposal vastly improves upon the status quo. Currently, migrants are often stranded for days or weeks on rescue vessels, unable to disembark, until Italy and Malta are able to negotiate on a case-by-case basis for other countries to take the migrants in for processing. But other countries like Greece who are also bearing a disproportionate burden have a similar interest in rotating ports and thus have much to gain from an expanded agreement. The hope is to use the original agreement as an opportunity to revisit the EU Dublin Regulations which dictates that migrants’ first place of entry is where they are to have their asylum claims processed.


First, can a voluntary approach work? Given the high stakes and immense resources involved and the traditional approach of the EU, one might initially think a hard law answer is necessary. But think of the voluntary Paris climate accord with similar stakes and resource questions involved. After failure to get meaningful hard law treaty updates to the Kyoto Protocol, it was a set of voluntary commitments that reopened the international negotiations. Similarly, not all important states made important voluntary commitments for the Paris accord and some states, such as the United States, have withdrawn, and still the approach seems to be a plausible improvement. Here too, a voluntary agreement might work if a sufficient number of states agree to take a sufficient number of migrants. So it may matter a great deal whether Italian Prime Minister Comte is going to succeed in pushing for “serious penalties” against member states that refuse to take part in the burden sharing. and whether states like Hungary and Poland merely opt out or try to undermine the entire arrangement.

Second, what does it mean for a voluntary approach to work? From the individual EU states’ perspective, it may simply mean a more equitable distribution of migrants and less PR disasters with rescue vessels waiting to dock. But what about for migrants? Will they be more willing to undertake the journey? Italy’s closed ports policies in conjunction with the increased activity of the Libyan coast guard caused a precipitous drop in migrants’ willingness to journey to Italy from about 180,000 in 2016 to 23,000 in 2018. Would a reversal of this trend in turn undermine the voluntary agreement or would it prove durable if enough states were willing to share?

Relatedly, does success only mean a unified European approach or must it also include a human rights measure? At first blush, many commentators assume that reducing rescue-related risks and keeping migrants out of African processing centers will be a net human rights win. And I suspect that even very bad processing centers in European countries will be no worse than those in Libya and Niger and Rwanda. But that is still a far cry from human rights compliant. And what of Italy’s observation that states “also intend to make it easier to return migrants who don’t qualify for protection in Europe.” If European states are correctly processing asylum claims and fairly ascertaining protected status, then International Law does not oblige them to keep non-qualifying migrants. That’s an awfully big if. Rejection rates across Europe are already very high, with states like Italy at 80%. Of course, high rates do not themselves prove that claims are legitimate, but the correlation of the rapid rise in denials and the increasing public pressure across Europe to reduce migration give one serious reason for concern.

Of course, at this stage, we do not even know whether the voluntary approach will take root. But asking now about the end goals for European states and for the protection of migrants can help us assess whatever proposal does emerge from the upcoming EU meeting. Stay tuned.

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