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This paper analyses the legal challenges and practicability of establishing of disembarkation centres for illegal migrants outside EU territory.

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Theme

This paper analyses the legal challenges and practicability of establishing of disembarkation centres for illegal migrants outside EU territory.

Summary

To ensure the EU does not again face a situation like the refugee crisis of 2015-16 various options are being discussed. One solution might be the establishment of disembarkation centres for illegal migrants outside EU territory. This paper analyses the legal challenges and practicability of such centres, taking into account the following: (1) the establishment of disembarkation centres outside the EU by international treaties; (2) the exercise of sovereign powers in these centres; (3) the establishment of a common mechanism of distribution and compensation for the admission of migrants; and (4) the readmission of refused migrants from these centres.

Analysis

Introduction

In the aftermath of the migration crisis of 2015 within the EU and its Member States, many ideas were discussed as to how to get the uncontrolled mass immigration into EU territory under control. All players, no matter whether officials from the EU or its Member States, agreed that there should be no repeat of the situation of 2015-16.

Although all relevant players, apart from some human-rights activists, shared the same goal, the way to reach it remained controversial. Some countries preferred a common European solution to the challenges of illegal mass migration, some relied on themselves, or on cooperation with other countries with similar political convictions, in order to stop incoming illegal migrants. The most prominent measure on the EU level was the conclusion of the so-called Refugee Deal with Turkey of 18 March 2016. On the national level, the closure of the Balkan route by the Eastern European countries of Macedonia, Slovenia, Serbia and Croatia on 9 March 2016 marked the most prominent measure against the uncontrolled flow of illegal migrants into the EU.

Echoing the discussions elsewhere in the developed world on how to outsource the contentious asylum process and how to cut down on the flow of arrivals of illegal migrants, the heads of State or government of the EU Member States discussed at the EU summit in Brussels on 28 June 2018 the possibility of establishing centres for illegal migrants outside EU territory. The heads of State or government of the EU Member States agreed on exploring ways to build new centres, probably in Africa, where migrants could be screened for asylum and from where only legitimate refugees might move on to the EU. Although they said that these centres in outside countries would operate in ‘full respect of international law’,1 the European Council addressed neither the question of the legal admissibility and practicability of their establishment nor the question of how and where refugees would be resettled. Exploring the legal and political practicability of the so-called concept of regional disembarkation platforms was left to the Council of the EU and the EU Commission. The answer to both open questions remains crucial to further EU asylum policy. In the event of non-conformity with international law, the EU’s concept of regional disembarkation platforms will not serve as a possible resort for a common asylum strategy at all. But even if these regional disembarkation platforms outside the EU are in conformity with international law, it would continue to be difficult to establish them because some countries in the bloc have refused to accept them2 and swift handling of asylum seekers is necessary to prevent a backlog.

It is the aim of this paper to provide an analysis of the legal challenges and practicability of centres for illegal migrants outside the EU, or, in the words of the European Council: regional disembarkation platforms. This paper should serve as a solid legal basis for further discussion about whether these centres can be a possible option for a common asylum strategy within the EU to provide a more effective handling of illegal migration to EU countries. The paper does not aim to assess the political chances of success of the EU’s concept of regional disembarkation platforms.

Our examination of the legal practicability of disembarkation centres for illegal migrants outside the EU starts with the question of whether these centres for illegal migrants to the EU –for example in Africa– can be established by international treaties. Secondly, we examine if the EU can exercise sovereign powers in these centres, ie, apply asylum procedures on its own authority. Thirdly, we discuss the possibility of a common EU mechanism of distribution and compensation for the admission of migrants. Finally, we demonstrate how the re-admission of refused migrants from the centres can be carried out in compliance with international law.

Is the establishment of disembarkation centres for illegal migrants outside the EU subject to international treaties?

As the establishment of disembarkation centres for illegal migrants outside the EU would concern the exercise of sovereign power outside EU territory, these proposed centres could only be legally created if created by an international treaty. An international treaty is an international agreement concluded between States or international legal personalities in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.3 The basic rules for the signing of international treaties are laid down in the Vienna Convention on the Law of Treaties (VCLT) of 1969 .

Accordingly, the establishment of disembarkation centres for illegal migrants outside the EU would have to be an approvable subject of an international treaty between the EU and the host countries for the proposed centres. In general, States and other international legal personalities can freely determine the subject matter of their international treaty to be signed. However, according to Arts. 34 and 35 of the VCLT, such a treaty may not create any obligations for a third State without its consent, unless the third State expressly accepts that obligation in writing. As a treaty on the establishment of a centre for illegal migrants outside the EU would be signed by the EU as one party to the treaty and the host State of the disembarkation centre as the other party, it would not create any obligation for a third State. As such, there is no problem with third States not being involved in the agreement. Therefore, these Articles do not serve as an obstacle to such a treaty.

Furthermore, a treaty on the establishment of disembarkation centres for illegal migrants outside the EU must not violate public international law. According to Art. 53 of the VCLT the treaty must not conflict with a peremptory norm of general international law. A peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole, as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Consequently, a treaty on the establishment of disembarkation centres for illegal migrants outside the EU would have to be in conformity with a peremptory norm of general international law, the so-called ius cogens. Part of the internationally recognised ius cogens are first and foremost the minimum standards of human rights that can be derived from the core constituents of international documents on the protection of human rights. These include, for instance: the prohibition of the use of violence (Art. 2 IV of the UN Charter); the prohibition of genocide and crimes against humanity (Art 3 of the  Geneva Conventions); the right to life (Art. 6 of the ICCPR); the prohibition of race discrimination (Art. 4 of the ICCPR); and the prohibition of torture and of slavery ( Arts. 7 and 8 of the ICCPR). As the establishment of disembarkation centres for illegal migrants outside the EU does not imply the violation of any of these human rights, it is not in breach of any peremptory norm of general international law. There is currently no newly emerging peremptory norm of general international law that might lead to the nullification and termination of the treaty, as stated in Art. 64 of the VCLT.

In addition, Art. 42 I of the Geneva Convention must be taken into account. Due to that provision, in an international treaty on refugees no reservations to Articles 1, 3,4, 16 I, 33 and 36-46 may be made. These articles forbid the treaty to narrow the definition of the term ‘refugee’ as laid down in Art. 1 of the 1951 Refugee Convention. Likewise, they prohibit the treaty from violating the equal treatment of refugees (Art. 3), their right to practice their religion and freedom as regards the religious education of their children (Art. 4), and their free access to the courts of law on the territory of all Contracting States of the 1951 Refugee Convention (Art. 16 I). Furthermore, and this is a crucial point for any international treaty on the establishment of disembarkation centres for illegal migrants outside the EU, the treaty cannot violate the non-refoulement principle. This principle is guaranteed in Art 33.1 of the 1951 Refugee Convention and states that ‘no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Arts. 36-46 of the 1951 Refugee Convention are procedural final clauses with no relevance to the content of any international treaty on the establishment of disembarkation centres for illegal migrants outside the EU. Accordingly, any international treaty on the establishment of disembarkation centres for illegal migrants outside the EU has to guarantee the illegal migrants in these centres (ie, refugees and asylum seekers) equal treatment, freedom of religion, free access to courts of the EU and non-refoulement in the event of their lives or freedom being threatened in another territory. Complying with these requirements, an international treaty establishing disembarkation centres for illegal migrants outside the EU could be signed if in line with the aforementioned requirements of international law.

The next question is if the EU, as an international governmental organisation, has the competence for signing such an international treaty with a possible host country. Article 47 of the Treaty on the European Union (TEU) explicitly recognises the legal personality of the EU, making it an independent entity in its own right. Accordingly, as laid out in Art. 216 of the Treaty on the Functioning of the European Union (TFEU), the EU has the ability to negotiate and sign international agreements ‘with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties’. As opposed to individual Member States, the EU is not a State party to the Geneva Convention of 1951. To date, the EU’s formal accession to the Convention has not been realised. Therefore, the EU itself is not bound by the Convention as a matter of public international law. Nevertheless, Art. 78 I of the TFEU states that the EU’s ‘common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection… must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties’. These other relevant treaties include the European Convention on Human Rights (ECHR), the EU Charter of Fundamental Rights, the Convention on the Rights of the Child, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In line with the general principles of EU law, this also encompasses other potential treaties that might be signed in future by all EU Member States.4 Accordingly, any EU asylum acquis must be in compliance with the Geneva Convention and the 1967 Protocol. Non-compliance constitutes an infringement of Art. 78 I of the TFEU. As an integral part of EU law, the Geneva Convention of 1951 remains a subject to the interpretative principles of public international law.

Article 78 of the TFEU (signed in Lisbon in 2007) raised the Common European Asylum System (CEAS), first introduced by the European Council in Tampere in 1999, to a legally-binding objective of the EU’s primary law. According to Art. 78 II of the TFEU, the EU legislation on asylum is part of the shared competences between the EU and its Member States. This requires that any EU legislation in this area must comply with the principles of subsidiarity and proportionality. A shared competence consequently limits EU action to initiatives that cannot be sufficiently achieved at the national level and remain limited in terms of regulatory intensity to what is necessary to achieve legitimate policy objectives. However, as the far-reaching Common European Asylum System is a specific objective of the Lisbon Treaty, the application of these principles of subsidiarity and proportionality requires a certain generosity.5 In other words: in this case, the principles cannot be applied strictly, because otherwise the Treaty objective could not be reached at all. Article 78 II (a) of the TFEU explicitly allows the agreement on a ‘uniform status of asylum’. Consequently, the objective of a uniform asylum status implies that the principles of subsidiarity and proportionality do not prevent EU action in normal circumstances. As the drafting history and the general scheme of the EU Treaties argue in support of a substantive congruence of the EU’s asylum status and the refugee status of the 1951 Geneva Convention, the Common European Asylum System is, therefore, founded on the Convention.6 This is confirmed by the reference in Art. 78 I of the TFEU. Thus, EU legislation on the basis of Art. 78 II (a) of the TFEU must specify the meaning of the 1951 Geneva Convention. EU secondary legislation concerning asylum, such as the Asylum Qualification Directive 2011/95/EU, the Asylum Procedure Directive 2013/32/EU, the Asylum Reception Conditions Directive 2013/33/EU, the Dublin III Regulation (EU) No 604/2013 and the Regulation (EU) No 439/2010 establishing the European Asylum Support Office (EASO) in Malta must be interpreted in the light of the 1951 Geneva Convention.

The TFEU does not restrict the geographical scope of the provision on asylum procedures. In particular, it does not specify whether common ‘procedures for the granting and withdrawing of uniform asylum or subsidiary protection status’ should necessarily apply within the territories of the Member States. Specifically, the drafting history of Art. 78 II (d) of the TFEU shows that the exterritorial processing of asylum applications is also covered by the TFEU, always taking into account that these procedures, wherever they take place, must comply with international refugee law and human rights.7 However, in accordance with the EU’s supranational structure, the EU is only authorised to legislative harmonisation and administrative support in cases of asylum. The decisions on granting asylum to an individual are still taken at the national level by the Member States. At present, Art. 78 of the TFEU does not provide a sufficient legal basis for examining asylum applications by EU authorities, such as EASO, instead of national authorities of each Member State. Establishing a specific EU authority to decide upon asylum applications replacing the Member States’ asylum bureaucracy, would require a Treaty change in accordance with Art. 48 of the TFEU. However, on the basis of the existing Art. 78 II (d) of the TFEU, the EU can support transnational cooperation between the Member States.

Article 78 II (g) of the TFEU established an explicit legal basis for ‘partnership and cooperation with third countries’. This offers the EU the possibility of cooperating with third countries even in situations in which the adaption of secondary legislation does not result in an exclusive external treaty-making competence. However, Art. 78 II (g) of the TFEU itself does not provide sufficient legal basis for the establishment of disembarkation centres for illegal migrants outside the EU on the territory of third countries. It only serves as a legal basis for cooperation with third countries on the level of EU competences. As mentioned above, the EU does not have the competence to run asylum procedures on its own instead of the Member States’ authorities. Therefore, only in combination with Art. 78 II (d) of the TFEU could the EU justify future EU legislation providing for external asylum processing centres that would have to be run by the Member States. Art. 78 II (g) of the TFEU could be used to guarantee a favourable political and administrative context by cooperation with the possible host States of the disembarkation centres for illegal migrants, to enable its Member States to run the centres outside the EU themselves with the financial and operative support by the EU. For that purpose, the EU would have the competence to sign an international treaty with a possible host country on the establishment of disembarkation centres for illegal migrants outside EU territory.

Fulfilling all the aforementioned requirements of an international treaty, the signing of a treaty on the establishment of centres for illegal migrants outside the EU would be in accordance with international law and would be binding to its parties, according to Art. 26 of the VCLT. None of the parties, ie, neither the EU nor the country hosting the disembarkation centre, could, according to Art. 27 of the VCLT, invoke the provisions of its internal law as justification for its failure to execute a treaty. The binding effect for the EU and its Member States is explicitly guaranteed in Art. 216 II of the TFEU that states that ‘agreements concluded by the Union are binding upon the institutions of the Union and on its Member State’.

Can the EU exercise sovereign powers in these centres?

In its international treaty with a possible host country on the establishment of disembarkation centres for illegal migrants outside EU territory, the EU could receive the permission of the host State to exercise its own sovereign powers in these disembarkation centres. Within the freedom of contract, the host State is entitled to assign this power to the EU. However, as the EU –on the basis of the existing TEU and TFEU– currently does not have the competence to run asylum procedures on its own instead of the Member States’ authorities, it could only provide its Member States with the financial and operative support to establish and run these external asylum processing centres. Within the Common European Asylum System (CEAS), the EU could only function as contract party to the host State for the establishment of such disembarkation centres, which would be run by the Member States and its asylum authorities. The sovereignty in these disembarkation centres for illegal migrants would, in fact, be exercised by the Member States as long as there is no Treaty change in accordance with Art. 48 of the TEU replacing the Member States’ asylum bureaucracy and giving the authority to decide upon asylum applications to the EU.

Exercising their sovereign rights in these disembarkation centres, the EU Member States would be responsible for the organisational and institutional framework. In accordance with their national asylum law, they could either operate the centres on their own using their national administrative staff or they could licence Intergovernmental Organisations (IGOs) like the United Nations High Commission on Refugees (UNHCR) with the operation. Crucial for the operation of these disembarkation centres for illegal migrants outside the territory of the EU is that they are run in accordance with the obligations of fundamental and human rights laid down in international human rights documents, such as the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights (ECHR) and the Geneva Convention, as well as in the national constitutions of the Member States.

The EU Member States that run these disembarkation centres outside the EU would have to decide for themselves if the extra-territorial asylum procedure carried out in these centres should complement, or replace, their national asylum procedure. This decision is crucial as regards the legal consequences of the asylum decisions being made in the disembarkation centres outside the Member State’s own territory.

The first option is a complementary extra-territorial asylum procedure. This could serve either as an additional offer, or as a freely selectable alternative to the existing national asylum procedure. If the services of the Member States in the disembarkation centres are not only offering help or advice, it means that the services performed are acts of sovereignty. In this case, as acts of sovereignty, they must be in accordance with the fundamental rights guaranteed in the constitution of that Member State. Making use of this complementary extra-territorial asylum procedure, the asylum applicant’s domestic position in the Member State must not deteriorate. It may only be applied to give the applicant an additional option strengthening his legal position. The complementary extra-territorial asylum procedure could be operated in analogy to the airport procedure of asylum cases (Art. 43 of Directive 2013/32/EU on common procedures for granting and withdrawing international protection), where the asylum procedure is conducted in a transit zone before the asylum seeker is allowed to enter the country in which he or she applies for asylum. According to Chapter II of Directive 2013/32/EU, in this transit zone the asylum seeker has to be given free access to effective legal remedies, such as independent consulting and advisory services in the national asylum law (Art. 8, 12 I (c), Arts. 20-23). Accordingly, in the extra-territorial disembarkation centres each EU Member State would have to guarantee the asylum seekers the same amount and quality of legal remedies as on its own State territory. The complementary extra-territorial asylum procedure would have to be in compliance with the minimum procedural requirements laid down in Chapter II of Directive 2013/32/EU, such as free access to interpreters, legal consultancy and official hearings. All legal remedies being offered in the Member State’s asylum law must be guaranteed, including the access to the appropriate administrative courts. In addition, the disembarkation centres would have to offer the asylum seeker accommodation and services (eg, food and healthcare) for the duration of the entire asylum procedure.

The second option is a replacing extra-territorial asylum procedure. This option would relocate the entire asylum procedure from the territory of the EU Member State to the territory of a third country. Consequently, all asylum seekers who seek asylum in a specific Member State would be expelled, or deported, from that Member State’s territory to the disembarkation centre abroad where they could only apply for asylum and where their asylum procedure would be executed. As no asylum procedures would be carried out on the Member State’s own territory anymore, each EU Member State would have to establish an entry ban for newly incoming asylum seekers to its own State territory and an obligation to leave the State territory for the duration of the asylum procedure in the event of the asylum seeker having already entered the country. This would also apply in the complementary extra-territorial asylum procedure. In replacing the extra-territorial asylum procedure the disembarkation centres in third countries would have to be operated in compliance with the Member State’s national asylum laws, guaranteeing the asylum seeker an asylum procedure in accordance with the rule of law, including free access to interpretation services, legal consultancy and official hearings, as well as offering him or her accommodation and services for the duration of the entire asylum procedure.

However, there would be no need for the protection of the EU and its Member States in the event of the asylum seeker entering from a safe third country, or in the event he or she enjoys sufficient protection in a third country from where they enter the EU.

It could be argued that disembarkation centres for illegal migrants outside the territory of the EU fulfil the requirements of safe third countries, with the consequence that no EU Member State would have to grant asylum to asylum seekers who apply for it in these centres. According to Art. 3 III of the Dublin III Regulation ‘any Member State shall retain the right to send an applicant to a safe third country, subject to the rules and safeguards laid down in Directive 2013/32/EU’. However, the concept of a safe third country in Art. 38 of Directive 2013/32/EU explicitly mentions only a ‘safe third country’. A disembarkation centre in a safe third country is not a country in the formal sense of the term, because it does not fulfil any of the legal requirements of a State (State territory, State population and government authority). Therefore, a disembarkation centre outside the EU cannot be considered as being covered under the term ‘safe third country’ in Art. 38 of Directive 2013/32/EU. This interpretation would go beyond the wording of the Article.

Not falling under the concept of safe third country of Art. 38 of Directive 2013/32/EU, disembarkation centres for illegal migrants outside the territory of the EU could be considered a ‘flight alternative’ in the sense of the Directive. In that case, EU Member States could consider an asylum seeker’s application for asylum inadmissible if he or she comes from ‘a country which is not a Member State [and which] is considered as a first country of asylum for the applicant’. According to the concept of safe third country in Art. 35 (b) of Directive 2013/32/EU, ‘a country can be considered to be a first country of asylum for a particular applicant if he or she enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement’. An asylum seeker in a disembarkation centre run by an EU Member State would definitely enjoy sufficient protection in that centre. However, under Art. 38 of Directive 2013/32/EU, the disembarkation centre does not fulfil the legal requirements of a country. Therefore, a disembarkation centre outside the EU, where EU Member States run extra-territorial asylum procedures, cannot be considered a country providing the asylum applicant with sufficient protection. Consequently, the EU Member States would be obliged to proceed with any asylum application being made in these centres as if the application had been received on their own national territory.

How can the EU legally establish a common mechanism of distribution and compensation for the admission of migrants?

To prevent ‘forum shopping’ and the phenomenon of ‘refugees in orbit’,8 where asylum seekers are referred from one Member State to another by claiming it is not responsible for them, the EU was in need of determining which Member State is responsible for examining asylum applications. Article 78 II (e) of the TFEU gives the EU legislator (the European Parliament and the Council of the EU) the competence to set up ‘criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection’. On these legal grounds the so-called Dublin III Regulation was enacted. Using the terms ‘criteria’ and ‘mechanisms’, and Art. 78 II (e) of the TFEU itself, does not set narrow confines for modifying existing rules. For instance, it enables the EU legislator in accordance with the ordinary legislative procedure to establish a quota system allocating asylum seekers among Member States on the basis of a specific distribution key, or certain relocation mechanisms.

Therefore, parallel to the establishment of disembarkation centres for illegal migrants outside the EU, an appropriate common EU mechanism for the distribution of the incoming legal migrants could be created, taking into account the factual burden of each Member State in terms of asylum applicants in the disembarkation centres. In realisation of the purpose of a Common European Asylum System (CEAS) such a mechanism would be subject to EU secondary legislation in accordance with Art. 78 II (e) of the TFEU. On the initiative of the EU Commission, the European Parliament and the Council of the EU could adopt appropriate measures in accordance with the ordinary legislative procedure. The EU legislator would have to agree on a specific distribution or relocation mechanism, including a distribution/relocation key among the EU Member States that participate in the disembarkation centres for illegal migrants outside the territory of the EU.

In the event that not all EU Member States participate in running these disembarkation centres and allow recognised asylum seekers to enter their territory, the EU could oblige the non-participating Member States to contribute to handling the asylum issue. In this respect, the EU could refer to the principle of solidarity laid down in Art. 80 of the TFEU, which generally obliges other Member States to support those that take more responsibilities upon themselves in managing the Common European Asylum System. Art. 80 of the TFEU refers to the policies of the EU laid down in Arts. 77-79 and states that ‘their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States’. The implementation of this obligation can be effected in various ways, for instance, by financial or operational support. Accordingly, the EU could agree on a certain compensation mechanism for the Member States that do not participate in running the disembarkation centres. They could be obliged by the EU legislator in accordance with the ordinary legislative procedure to pay financial compensation for not taking part in the asylum procedure run in the disembarkation centres, or to provide operational or logistical support for the participating Member States.

How can readmission of refused migrants from the centres legally take place?

At the end of each asylum procedure being conducted by the EU Member States in the disembarkation centres for illegal migrants outside EU territory EU according to their national asylum law, there will be a final decision: either the asylum seeker is granted asylum or the application is rejected. In cases of asylum being granted, the asylum seeker is entitled to enter the country that granted him or her asylum status and he or she is given residence status. In the other cases, when the asylum seeker’s application is rejected in a legally binding way, he or she would have to leave the disembarkation centre. In these cases, the EU Member States must have ways of deporting the rejected applicants.

An agreement on repatriating rejected asylum seekers to their transit countries, or countries of origin, must be a subject in any international treaty regarding centres outside the EU. As with the establishment of disembarkation centres for illegal migrants outside the EU, the agreement would have to be in accordance with the relevant provisions of the VCLT of 1969. As the rejected asylum seekers’ transit countries, or countries of origin, would sign the readmission agreement voluntarily and as it would create obligations only between the signatory States, the agreement would be in accordance with Art. 34 & Art. 35 of the VCLT, according to which a treaty may not create any obligations for a third State without its consent unless the third State expressly accepts that obligation in writing. According to Art. 53 VCLT, a readmission agreement may not conflict with a peremptory norm of general international law. As the readmission of rejected asylum seekers does generally not imply the violation of any of the human rights mentioned above, it is not in breach of any peremptory norm of general international law. However, since the principle of non-refoulement is not only part of international customary law but also laid down in Art. 33 I of the 1951 Refugee Convention, in EU primary law in Art. 19 of the EU Charter of Fundamental Rights, in Art. 78 I of the TFEU and as in EU secondary law in Art. 5 of the EU Repatriation Directive 2008/115/EC, these laws have to be adhered to in the text and implementation of any readmission agreement. Accordingly, such an agreement would not violate any norm of international law and could, therefore, be signed effectively into law. Due to Art. 26 of the VCLT, it would be binding to its parties and none of the signatories could, according to Art. 27 of the VCLT, invoke the provisions of its internal law as justification for its failure to perform a treaty.

As the signing of readmission agreements with rejected asylum-seekers’ transit countries, or countries of origin, is in accordance with international law, it is questionable who is competent to conclude these agreements: essentially, whether it is within the competence of the Member States who run the disembarkation centres or within the competence of the EU? Due to Art. 79 III of the TFEU, ‘the [European] Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States’. Accordingly, the EU has the competence to sign readmission agreements with third countries in order to return rejected asylum seekers from the disembarkation centres abroad to either their countries of origin or their transit countries. According to Art. 4 I (j) of the TFEU, this competence to sign readmission agreements with third countries is part of the shared competence between the EU and its Member States. That means that the Member States can conclude their own readmission agreements with third countries in accordance with the principles of subsidiarity and proportionality, as long as the EU does not negotiate, or sign, a readmission agreement with the same country. EU agreements precede the agreements of Member States in this area.

The EU has already negotiated and signed readmission agreements with several countries of origin and transit with a view to returning illegal migrants and cooperating in the fight against trafficking in human beings.9 Usually, these agreements are linked to visa facilitation agreements, which aim to provide the necessary incentive for readmission negotiations in the third country concerned, without increasing illegal migration. In practice, for its readmission agreements with third countries the EU Commission uses an unpublished model readmission agreement which is constantly adapted and developed further in coordination with the Member States.10 In its eight chapters, these EU readmission agreements with third countries deal with procedural and technical arrangements concerning readmission, the obligation of receiving, the means of providing proof and furnishing prima facie evidence, deadlines and time targets, as well as the distribution of costs in the readmission procedure.

Conclusions

As result of the legal analysis presented in this paper, it can be stated that the EU, as an international governmental organisation with its own legal personality, has the competence for signing an international treaty with a possible host country on the establishment of disembarkation centres for illegal migrants outside EU territory. This treaty would be in accordance with the Vienna Convention on the Law of Treaties (VCLT) of 1969, and its content would have to be in compliance with the Geneva Convention of 28 July 1951 and the 1967 Protocol. However, in accordance with the status quo of the Common European Asylum System (CEAS), where –on the basis of the existing TEWU and TFEU– the EU currently does not have the competence to run asylum procedures on its own instead of the Member-State authorities, it can only sign a treaty with a third country on the establishment of disembarkation centres for illegal migrants outside EU territory. As long as there is no Treaty change replacing the Member States’ asylum bureaucracy and giving the authority to decide upon asylum applications to the EU, the EU can only function as a contract party to the host state for the establishment of such centres. The disembarkation centres themselves would have to be run by the EU Member States and their asylum authorities. As such, only the EU Member States can exercise their sovereignty in asylum issues in these disembarkation centres for illegal migrants. The Member States –no matter if they opt for a complementary or replacing extra-territorial asylum procedure– would have to provide the asylum applicant with sufficient rights and protection during the entire asylum procedure and they would be obliged to proceed with any asylum application being made in these centres as if the application had been received on their own national territory. The EU can only financially and operatively support the Member States in this procedure but is not entitled to interfere in their asylum procedures. However, the EU legislator can agree on a specific distribution, or relocation mechanism, including a distribution/relocation key among the EU Member States that participate in the disembarkation centres for illegal migrants outside EU territory. The Member States that do not participate in running the disembarkation centres can be obliged by the EU legislator to pay a financial compensation for not taking part in the asylum procedure run in the disembarkation centres or to provide operational or logistical support for the participating Member States. For cases where, in accordance with the Member State’s national asylum law, the asylum seeker’s application in the disembarkation centres is rejected in a legally binding way, the EU has the competence to sign readmission agreements with third countries in order to return the rejected asylum seekers from the disembarkation centres abroad to either their countries of origin or their transit countries. In conclusion, from the legal point of view, there are no obstacles to the European Council’s plan of establishing disembarkation centres for illegal migrants outside EU territory. However, whether the plan is also politically practicable and can find the necessary support among EU institutions, the Member States and the possible contractual partners, remains unclear.

Prof Dr Dr Arndt Künnecke
Federal University of Applied Sciences for Public Administration, Brühl, Germany



1 European Council meeting (28 June 2018) – Conclusions, EUCO 9/18, p. 2, (accessed 14/I/2019).

2 See Alfred Hackensberger & Christian Putsch (2019), “Asylzentren außerhalb der EU – das sagen die betroffenen Staaten”, WELT Online, (accessed 15/I/2019).

3 Art. 2 VCLT.

4 See Kay Hailbronner & Daniel Thym (2016), ‘Constitutional framework and principles for interpretation’, in Kay Hailbronner & Daniel Thym (Eds.), EU Immigration and Asylum Law, 2nd edition, München, MN 55.

5 See Steve Peers (2016), EU Justice and Home Affairs Law: EU Immigration and Asylum Law, 4th edition, Oxford, p. 393; and Matthias Rossi (2016), ‘Article 78 TFEU’, in Christian Calliess & Mattias Ruffert (Eds.), EUV/AEUV, 5th edition, München, para. 11.

6 Hailbronner & Thym (2016), op. cit., p. 1032, FN 54.

7 Ibid, p. 1037.

8 Hailbronner & Thym (2016), op. cit., p. 1024.

9 So far the EU has signed readmission agreements with the following States, all being now in force: Albania (1/V/2006), Bosnia and Herzegovina (1/I/2008), Georgia (1/III/2011), Hong Kong (1/III/2004), Macao (1/VI/2004), Macedonia (1/I/2008), Moldova (1/I/2008), Montenegro (1/I/2008), Pakistan (1/XII/2010), Russian Federation (1/VI/2007), Serbia (1/I/2008), Sri Lanka (1/V/2005), Ukraine (1/I/2008), Armenia (1/I/2014), Azerbaijan (1/IX/2014), Turkey (1/X/2014) and Cape Verde (1/XII/2014). The readmission agreement with Kazakhstan was signed on 10/XII/2009 but has not yet entered into force.

10 Nils Coleman (2009), European Readmission Policy, Leiden, p. 88.

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<![CDATA[ The European Council and migration: any progress? ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari112-2018-gonzalezenriquez-europeancouncil-migration-any-progress 2018-10-09T04:04:49Z

The European Council has come up with a vague agreement, but it has avoided a political crisis and at the same time made more visible the seriousness of the migration challenge to the EU.

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Original version in Spanish: El Consejo Europeo y las migraciones: ¿se ha avanzado algo?

Theme

The European Council has come up with a vague agreement, but it has avoided a political crisis and at the same time made more visible the seriousness of the migration challenge to the EU.

Summary

The results of the European Council of June 28, 2016 on migration were weak for their vagueness, but at least they avoided a break with Italy and defined much more clearly the battle lines. Many expected that the Council would reform the European asylum system, but the issue of irregular economic migration via the Mediterranean and the decision of the Italian government to not accept on its soil migrants rescued at sea by international NGOs upset the anticipated agenda.

Analysis

“In the end, there was no way to reach an agreement which satisfied everyone”

The European Council of 28 June 2018 faced a difficult political puzzle to resolve with little prospects for concrete results: to reach an agreement between the three different parts of Europe that are opposed on the migration issue and the two large currents of opinion that support opposing policies. On the one hand, Eastern Europe is in large part nationalist and Islamophobic; it is against any imposition requiring countries to accept refugees, especially from Arab countries; on the other hand, Southern Europe has become the front line of what is basically economic immigration, much influenced by the economic crisis –which Italy has not yet left behind– and the port of entry for immigrants who are difficult to fit into existing Southern European labour markets. Finally, the countries of Central and Northern Europe –once generous with refugees in the past but now in a restrictive phase, driven by a change in public opinion– now also receive ‘secondary migration’ flows. To this geographic divide must be added another more diffuse and cross-cutting divide (but no less influential for that) that pits those who see migration from the perspective of human rights and solidarity with the developing world and countries trapped in war, against those who prefer a perspective centred on the defence of a way of life, the Welfare State and the European labour markets. In the end, there was no way to reach an agreement which satisfied everyone.

Let us take these issues one at a time. In the European Council, two political aspirations –not just different, but also antithetical– confront each other. Germany was planning to reach an agreement at the meeting on the reform of the European asylum system that, among other things, would reduce the continuing arrival to its territory of asylum petitioners who entered the EU through another country and who move on to yet another country, whether or not they receive asylum in the first country of entry. Germany is the main destination of these so-called ‘secondary movements’ for a number of reasons (but especially because migrants prefer to live where a community of the same origin is already located). In this way, Germany’s significant generosity in the past has made it a pole of attraction for such ‘secondary movements’. Around 70,000 people arrived in Germany in 2017 in this way, crossing the Austrian border from the south and east. European asylum norms (ie, the Dublin rule) already anticipate that they will be returned to the first country where they were registered, and there is a fingerprint database (EURODAC) which allows the country to be identified. Nevertheless, the procedures are long and complex. The result is that Germany has only been able to return around 15% of the immigrants/refugees who should not be on German soil. What Germany achieved at the European Council meeting was some bilateral accords with various countries to make the process of returning ‘secondary’ migrants easier. It has already formalised agreements with Spain and Greece but has not yet done so with Italy, which is the main country of origin of close to 35% of the secondary entries reaching Germany. In any case, this is not an achievement of the European Council but rather of Germany’s foreign policy: the only reference in the conclusions of the European Council in this regard is that the Member States should do everything possible to halt these movements (something which they supposedly already by applying the Dublin Rule).

Germany’s need to halt secondary migratory movements is the result of the rise in the polls of the xenophobic Alliance for Germany party (AfG), which is now threatening the comfortable majority of the Christian Social Union (CSU) in the upcoming elections in Bavaria in October. Bavaria is the principal Land through which migrants enter Germany from the south and the leader of the CSU, Horst Seehofer, has threatened to return to the Austrian border all asylum seekers who enter Germany through this route. In response, the Austrian Chancellor, Sebastian Kurz, has said that his country will reintroduce border controls along the Brenner, the principal transport route for the heavy lorry-borne trade across the Alps between Italy and Austria and thence to Germany. The economic impact of such a slow-down in the transport flow of goods in the heart Europe would be worse than in any of the other cases where border controls have been reintroduced in the Schengen Area.

Avoiding such secondary movements is also important for France. In 2011 the first disputes between France and Italy were prompted by the entry into France from Italy of irregular migrants from Africa. There is a continual tension between the two countries over the issue and the conflict exploded politically with the Aquarius case. While French the French President, Emmanuel Macron, accused Italy of cynicism for rejecting the landing on its coasts of those rescued from the ship, the Italian Minister of the Interior, Matteo Salvini, reminded Macron that the French government was doing everything possible to prevent the migrants rescued from the Mediterranean and taken in by Italy from reaching French soil. In fact, due to French vigilance of the usual public transport entering France from Italy (mainly trains), many migrants choose a more dangerous crossing through the Alps on foot.

There are no European norms for regulating the internal management of irregular economic migration. There has been no attempt to ‘communitarise’ the issue of dealing with irregular economic immigrants that Member States cannot send back to their country of origin because of the lack of readmission agreements with them. The EU only manages to deport 38% of those who are under expulsion orders, so that more than 60% of those arriving irregularly and not being granted asylum end up staying in Europe. There is nothing similar to the asylum system, so each Member State is expected to deal with this type of migrants as best it can once they are on its soil. Nevertheless, the norms regulating free circulation within the Schengen area do allow each Member State to reinstate border controls with any other country if there is evidence that irregular immigration has increased from any particular country. The EU, for its part, is increasingly active in foreign migration policy: its final objective is to secure the support of States of origin or of transit (basically African countries) to combat human trafficking and to facilitate the return of irregular immigrants who reach European soil and their readmission to their countries of origin. So far, bilateral agreements have been more successful in this regard: the much criticised accord between Italy and Libya reduced arrivals in Italy from that country by more than half, while Spain has agreements with Morocco, Senegal, Mauritania and other coastal countries of West Africa.

Despite knowing that the issue of deportation/return is the biggest obstacle preventing an effective control of economic migrant flows, the conclusions of the European Council ignore the fact and propose instead the creation of closed classification centres on European soil where those potentially to receive protection (asylum or refugee status) would be separated from the economic immigrants who should be returned to their countries of origin. But who will offer to host one of these centres knowing that more than half of the economic immigrants will remain free on their soil even with an unenforceable expulsion order in their hands. It is no surprise that no country has yet offered to do so. On the other hand, what is the difference between the proposed type of centre and the foreign internment centres that operate in Spain and in the rest of the countries of Europe and where immigrants remain for a maximum of only a few months in line with European regulations? Is someone in the EU thinking of changing the rules to lengthen the maximum length of stay at these centres?

Nor did the European Council give rise to any novelty regarding the possibility of making progress in the internal distribution of those who are given asylum. The Commission decision to impose quotas –widely disregarded and nearly impossible to manage because of the weakness of the so-called ‘hot spots’ and due to the shortcomings of European asylum rules– are not even mentioned in the Council’s conclusions. The word ‘quota’ has simply disappeared. Now they speak of voluntary distribution, which satisfies the demands of the Eastern Europeans but clarifies nothing with respect to how it is to be managed. The conclusions refer to progress in asylum reform, with no precise details, to be submitted to the next European Council in October.

On the other hand, the European Council proposed something that the Commission had already suggested in the past: the creation of receiving centres beyond European soil where the separation between individuals with the right to asylum and those without would be made. Before the European Council, two Member-states, Austria and Denmark, had announced their cooperation with a third country in Eastern Europe to set up a similar centre there, but the proposal now seems to have been ruled out. This model has an advantage from the EU’s perspective: those who do not receive the right to asylum but cannot be returned will not be on European soil, but rather in Egypt, Tunisia or Morocco... which it is assumed will significantly reduce the incentive to migrate irregularly. In the past, the possibility was even suggested of opening up such a centre on a large passenger ship that would always be in international waters, beyond European jurisdiction. Australia has done something similar for many years, and although it has been heavily criticised from the human rights perspective, it appears not to be in contravention of international standards. Asylum seekers arriving irregularly by sea are diverted to the island of Nauru or towards Papua New Guinea where they can be held for years while their petitions are being processed.

“The Schengen free-movement area cannot be maintained if one State, applying European asylum rules, is obliged to retain on its soil many more immigrants than its population is willing to accept”

The conclusions of the European Council mention the possibility, but with no further details being provided. In which country or countries will these ‘regional landing platforms’ be installed? All North African countries, along with Albania, have already announced that they are unwilling to take part. Should one of them prove willing in the future, depending on what the EU might offer, under what rules and with what staff would the centres operate? More importantly, from the perspective of the North African countries, what guarantee is there that the economic migrants –those whose asylum requests in Europe are denied– will be returned to their countries of origin or of transit? Will they not have the same legal problems as European states when trying to deport their irregular immigrants?

The political fuse that made the European Council meeting so explosive, requiring 16 hours of negotiation to reach an outcome, was the political decision of the new Italian government to not accept the landing on its coasts of NGO ships devoted to rescuing immigrants close to Libya’s territorial waters. None of the ships were sailing under Italian colours. The decision, implemented for the first time in the case of the ship Aquarius, posed the stark European dilemma: the Schengen free-movement area cannot be maintained if one State, applying European asylum rules, is obliged to retain on its soil many more immigrants than its population is willing to accept. Some elements in the equation will need to be modified, be it entry or distribution mechanisms or the general rules regulating the destination of those rescued at sea.

To start with, the European Council has given its explicit support to the Italian government, declaring that ‘All ships operating in the Mediterranean must respect the applicable laws and must not interfere with the operations of the Libyan coast guard’. In other words, NGO ships must allow the Libyans to undertake the rescue, regardless of the fate of those rescued and returned to Libya. The result will be a clear decline in the number of arrivals in Italy, while the latter is supplying more patrol boats, reinforcing the Libyan government’s capacity to better control its territorial waters. In turn, in reaction to news of the ill treatment and systematic violence to which migrants are subjected, the EU is trying to organise the voluntary repatriation of immigrants in Libya back to their countries of origin through two UN organisations: the International Organisation for Migration (IOM) and the UN High Commission for Refugees (UNHCR).

Conclusion

What the European Council has produced is a vague agreement, more declarative or rhetorical than executive in nature, but it does have two virtues: it has prevented a very troubling political crisis –the Italian government’s threat to veto all agreements– and it has brought to the fore more clearly than ever the seriousness of the migration challenge and its impact on the EU. The European Council has achieved this without making any substantial progress on anything, but rather by making statements that have allowed Italy’s Prime Minister, Giuseppe Conte, to claim that ‘Italy is no longer alone’ in the face of irregular immigration from the sea. Whether progress can be made from now on will depend on the Member States because although the pending asylum system reform is the responsibility of the Commission and European Parliament, everything related to irregular economic immigration –once migrants arrive in Europe– continues in practice to be in the hands of the Member States. Nevertheless, neither the European Council nor the agreements achieved with Germany’s Chancellor have been able to convince the CSU that secondary migration will be substantially reduced.

The ongoing confusion in the public debate and the media between economic migrants and asylum seekers makes it difficult to move ahead in finding a European solution. But the distinction is necessary to maintain some sort of coherence in the Member States’ and the EU’s migration management policies and to have some sort of long-term perspective on the issue. What makes the distinction difficult is that economic migrants might request asylum, which if accepted can guarantee them a certain period of legal residence while their cases are processed; on the other hand, all those who seek asylum fall under the Dublin rule, which is why they will not make the request in Italy if, for instance, their intended destination is Sweden or Germany.

While the number of refugees worldwide remains more or less constant –and there is no reason to expect a substantial increase–, the number of young Africans in need of opportunities keeps growing and will continue to do so until the end of the century for demographic reasons. It is clear that Europe does not have the capacity to resolve the problems that cause waves of refugees or poverty in Africa, but the people of Europe and their intellectual and political elites are increasingly conscious that Europe will be affected by the consequences of what occurs in Africa, a continent that for decades, since the end of decolonisation, seemed distant and far removed from their concerns. Point eight of the conclusions of the European Council reflects the need to have a greater presence in Africa, more effectively influence its economic growth and intensify contact in all fields. It remains to be seen if the conclusions translate into a financial and political commitment.

Carmen González Enríquez
Senior Analyst, Elcano Royal Institute
| @rielcano

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<![CDATA[ Italian and Spanish approaches to external migration management in the Sahel: venues for cooperation and coherence ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/wp13-2018-italy-spain-approaches-external-migration-management-sahel 2018-06-20T02:10:53Z

Italy and Spain face similar challenges in managing migration originating from and transiting through Africa. This paper provides a broad view of the evolution of their migration policies with the aim of encouraging an improved and broadened dialogue between the two countries.

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Index

(1) Introduction – 3
(2) Drivers and patterns of migration in and through the Sahel – 4
(3) The Sahel as the playground for renewed EU activism in external migration management – 7
(4) Italy’s migration policies in the Sahel: the Niger case study – 9
 (4.1) Broadening the focus: Italy’s external migration policies – 9
 (4.2) Niger’s augmented importance in migration management – 10
 (4.3) Impact of migration management cooperation and continuing challenges – 12
(5) Spain’s migration policies in the Sahel – 14
 Case study: Spain’s policies in Senegal – 17
(6) Coordination and coherence of Italian and Spanish external migration policies – 19
 (6.1) Past experiences of cooperation: initial multilateralism essays – 21
 (6.2) Cooperation in the post-2015 era: managing a constellation of interactions and frameworks – 23
 (6.3) The way forward: closer dialogue at all levels, mutual learning and promoting coherence internally and within the EU framework – 25
(7) Conclusions and recommendations – 28

Summary

This paper is the result of a joint project by the Istituto Affari Internazionali (Rome) and the Elcano Royal Institute, promoted by the Italian Embassy in Madrid. It provides a broad view of the evolution of Spanish and Italian external migration policies through a closer examination of their approach towards the Sahel region and in light of the broader EU policy context. The analysis focuses on the historical background, migratory contexts, policy tools, perspectives, interests and strategic preferences of these two key EU Member States. Its aim is to encourage an improved and broadened dialogue between the two countries, ultimately contributing to increased cooperation on external migration policies.

(1) Introduction

Being located at the external borders of the EU, Italy and Spain face similar challenges in managing migration originating from and transiting through Africa. The patterns and magnitude of the migration flows along the Central Mediterranean Route (CMR) –of primary concern to Italy– and along the Western Mediterranean (WMR) and Atlantic Routes (WAR) –of foremost concern for Spain– vary over time and exhibit certain differences. Nevertheless, both countries are interested in relieving migratory pressure through cooperation with origin and transit countries and encouraging the development of coherent and complementary policies at the EU level. Despite similar geostrategic realities and shared challenges, cooperation in the external dimension of migration management between the two countries has so far remained limited.

Migratory pressure on the EU in general, and the EU Member States (EUMS) at its external borders in particular, has been mounting from 2014-15 onwards, gradually leading to a relatively better realisation of the structural, complex and multi-dimensional nature of EU-bound migration. This has highlighted the importance of a comprehensive and concerted approach that not only links migration with action in development, security and the broader scope of foreign policy, but also combines the efforts and assets of EUMS with those of the EU as a whole. The achievement of higher degrees of complementarity and coherence nevertheless remains a challenge. The recent move towards an integrated approach in external migration management has already led to improved communication and increased degrees of operational cooperation between EUMS, as well as between Italy and Spain in and vis-à-vis countries of origin and transit of common concern. This can offer a window of opportunity for broadening and improving cooperation and for developing functioning mechanisms of communication and coordination between the two countries.

The Sahel is a highly relevant region for better understanding the Italian and Spanish approaches to external migration management, examining the workings of the current collaboration between the two, and exploring future venues for enhanced cooperation. This is the case not only because the Sahel is highly prioritised by both countries but also because it has become one of the main ‘laboratories’ of EUMS cooperation with the recently augmented activism within the EU framework. The Sahel is also a region that shows up the complex inter-linkages between migration and demographic dynamics, socioeconomic development, human and state (in)security, and political instability, all aspects which partnership mechanisms with third countries should take into account.

Carmen González Enríquez (Elcano Royal Institute), Patrícia Lisa (Elcano Royal Institute), Asli Selin Okyay (IAI), Anja Palm (IAI)


The authors would like to thank the Italian Embassy in Madrid for its support in their research and Nicoletta Pirozzi (IAI) and Bernardo Venturi (IAI) for their valuable contributions and feedback to the previous versions of this paper. They are also particularly indebted to all those interviewed and to the Spanish, Italian and EU authorities for their time, generosity and sharing of knowledge.

 
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<![CDATA[ The weaknesses of Spanish emigration ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari7-2018-gonzalezenriquez-martinezromera-weaknesses-spain-emigration 2018-01-23T09:33:20Z

The Spaniards who have emigrated to other countries since the economic crisis have done so under worse conditions than other recent emigrants from the rest of Southern Europe.

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Original version in Spanish: Debilidades de la emigración española

Theme

The Spaniards who have emigrated to other countries since the economic crisis have done so under worse conditions than other recent emigrants from the rest of Southern Europe.

Summary

This paper compares the situation of Spanish skilled emigrants –based on the results from the first European survey on the issue– with that of the Greeks, Italians and Portuguese. Although unemployment and the risk of poverty among Spanish university graduates has been higher than the average for other national groups since the economic crisis, the Spanish took longer to emigrate than other Southern Europeans. Spanish emigrants have also enjoyed less secure positions in their destination countries, suffering higher unemployment and lower average salaries than their European counterparts. They have faced greater life difficulties, partly because they left in more precarious conditions, but also because their command of the local language is weaker. Furthermore, because only 36% of Spanish emigrants register at their consulates in destination countries, this analysis estimates that the total number of Spanish emigrants is nearly three times the official statistic.

Analysis1

Introduction

The economic crisis since 2008 has had a much greater impact on Southern Europe than on other parts of the continent, prompting a noticeable increase in both unemployment and economic emigration. This has given rise to a new wave of internal migration within the EU from the South to the North, and a further external movement of emigrants to the Americas and other continents.

Within this context, and at the worst moment of the crisis, four institutions from Italy, Ireland, Portugal and Spain cooperated to undertake the survey ‘Emigrating in times of crisis’.2 The survey’s data allows, for the first time, a comparison between the experience of recent Spanish emigration and that from other Southern European countries. The study focused on five groups of international emigrants: Italians, Greeks, Portuguese, Irish and Spaniards. These have been the most affected by the economic crisis that began in 2008 in terms of unemployment and state budget cuts. The questionnaire –prepared in five languages and accessible online through the Survey Monkey program– ran for three months (from 21 May to 18 August 2013) and received a total of 6,750 valid responses (1,543 of which were Spanish). The questions focused on different aspects of the migrant experience: the emigrant’s situation in the country of origin, the reasons for leaving and the difficulties encountered in the destination country, including employment and income situation. In this paper, the data for Irish emigrants has been excluded in order to focus on the more homogenous group of Southern Europeans.

The first problem facing researchers attempting to analyse the characteristics of recent Spanish emigration is the absence of sufficient statistical information. For this reason, all the quantitative studies that have been undertaken have employed survey techniques relying on ‘snowball samples’ which use Internet and social media to conduct the survey (either physically or electronically), to publicise it and to contact with more emigrants.

The survey ‘Emigrating in times of crisis’ excludes individuals who emigrated before 2007, along with those who are not native Spaniards, Greeks, Italians or Portuguese, and those with less than university education.3 With these restrictions, the sample number to be analysed was limited to 4,058 individuals (982 of which were Spanish).

A late emigration

One important conclusion derived from the comparison between the four countries of the sample is that Spanish emigration occurred later than the others –despite the fact that the economic crisis began in Spain earlier, as a result of the end of the property boom in 2007–. The data presented in the following graph is derived from the survey and is consistent with the evolution of departures documented by the National Institute of Statistics (INE) in which a significant increase in emigration is registered in 2012. The comparison with the rates of departure among those interviewed from the other three countries of the region reveals that the rate of Spanish emigrants leaving Spain was below that of the other countries until the second half of 2010 and began to overtake them in 2011.

Figure 1. Comparative evolution of departure rates, by country of origin, trendlines

Comparing the evolution of departure rates with the changes in the unemployment rate among university graduates in the four countries, the divergence between them becomes apparent: the unemployment rate of Spanish university graduates is, together with the Greek, the highest in the group since 2008.

Figure 2. University graduate unemployment, by country

On the other hand, the high Spanish unemployment rate is not offset by a sufficient state protection that could, in theory, mitigate the consequences of unemployment on the well-being of such individuals. Data from Eurostat shows that the percentage of the population with a university education at risk of poverty (with a disposable income below 60% of the median) was highest in Spain during the period examined. From this comparison it follows that there are factors other than employment or income that have limited the departure of native Spaniards as emigrants.

Figure 3. Percentage of the university-educated population at risk of poverty, by country

More motivated by unemployment

The higher weight of unemployment as a cause of emigration in the case of Spaniards appears clearly in the responses of emigrants to the direct multiple-choice question as to their main reasons for emigrating. In contrast, the desire to improve levels of education and skills, to try new experiences, to advance professionally or raise income prospects, or to find new business opportunities, were less important factors for Spanish emigrants than for those from any of the other countries.

Figure 4. Main reasons for emigrating, by country of origin

Before deciding to emigrate, Spaniards were much more frequently unemployed than the other emigrants in the sample (48% versus an average of 39% in the three other countries). Because the Spanish emigrant’s mobility is most frequently induced by unemployment, the emigrant project tends to be undertaken with less preparation and inferior negotiating power. Furthermore, as will be shown below, the success of the Spanish emigrant project is lower than those from the other countries of Southern Europe, both in terms of the type of labour situation secured and the levels of income obtained.

Figure 5. Labour situation in country of origin

Although unemployment is a stronger factor in Spain as a reason for emigrating than in the other countries of the group, unemployment is not –according to the explanation of their own experience by those surveyed– the most cited reason in Spain or any of the other three countries. This result also coincides with the studies undertaken on Spanish emigrants by the International Organisation for Migration and the University Institute for Migration Studies.4 The protagonists of recent skilled emigration from Southern Europe explain their decision above all as the result of a general lack of prospects. As Shown in Figure 4, the option ‘I did not see a future for myself in my country’ was chosen by 50% on average across four countries, a response that expresses a profound pessimism with respect to possible future developments, and something which has also been documented in the Spanish case by other studies.5

Less successful

Furthermore, a comparison of the survey results reveals that the situation of Spanish emigrants in their destination countries is weaker than that of emigrants from the other countries. On the one hand, the Spanish were unemployed in their destination countries more frequently than the Portuguese or the Italians, and on the same level as the Greeks.

Figure 6. Labour situation in destination country, by country of origin

On the other hand, among the emigrants who have gained employment, Spaniards are over-represented in the occupations that require the least amount of education and skills and under-represented among the professions.

Figure 7. Type of employment, by country of origin

In keeping with this unequal situation in the labour market, the incomes of Spanish emigrants in their destination countries are lower than the average. Their presence is strongest amongst those earning less than €1,000/month and they are also concentrated at the intermediate income levels, between €1,000 and €3,000. But they have very little representation at the highest levels.

Figure 8. Monthly incomes in destination countries, by country of origin

An analysis of the logit correlations allows us to measure the weight of ‘being Spanish’ and of ‘being unemployed before emigrating’ on the employment situation encountered in the destination country.6 The logit model shows that the likelihood of a Spanish emigrant being employed in the destination country is 44% lower than for an emigrant from one of the other three countries. On the other hand, unemployment in the country of origin is a strong predictor of the employment situation in the destination country: if the emigrant was working before emigrating, the likelihood that he is now also employed in the destination country is 70% higher than if he were unemployed in the country of origin before emigrating. Given that Spanish migrants were more frequently unemployed before emigrating than the Greeks, Portuguese or Italians, they are found to be unemployed in destination countries also more frequently than the others.

Lower human capital (language)

One important factor related to the lower success of skilled Spanish emigration is a lack of foreign-language proficiency. More than half of the Spaniards interviewed (55%) point to this as one of the problems encountered in the destination country, compared with only 31% among the Portuguese, 35% among the Italians and 37% among the Greeks. These figures are consistent with the results of the Special Eurobarometer Number 386 (European Commission, 2012), a monograph dedicated to the use of foreign languages in Europe: the Spanish have the lowest level English-language proficiency of any European member of the EU. Only 14% of Spaniards said they know it well enough to have a conversation –less than half the EU average (32%) and far behind the leading countries, such as Sweden (82%) and Denmark (79%)–. The use of German among Spaniards (1%) is also at the bottom levels of the European rankings: the average in the EU is 5%. Only in the case of French, which 4% of Spaniards say they speak well enough ‘to hold a conversation in this language’, is Spain close to the EU27 average (5%), although it remains below Portugal (8%) and Ireland (10%).

In the case of the Spanish, this lower language proficiency in the destination country reduces job opportunities and, in general, makes it more difficult to deal with any procedure, be it the search for lodging, the administrative bureaucracy to acquire official recognition for degrees or to receive medical attention, or any other activity which requires fluency in the local language. Therefore, to the question as to what problems they had encountered in the destination country, Spanish emigrants pointed more often than the other national groups to the difficulties in finding work (25% compared with 14% as an average among the other groups), to secure medical insurance (13% compared with 6%), to rent lodging (34% versus 30%) or to acquire degree recognition (16% compared with 7%); in addition, they received job offers below their level of qualifications 23% of the time, compared with only 7% on average among the other emigrants of the group. Only 17% of Spanish emigrants said they had no difficulties, compared with 30% of the Greeks, 37% of the Italians and 32% of the Portuguese.

Few have registered with their consulates

Although it is legally compulsory to register at a Spanish consulate in the destination country for all those residing for more than three months outside Spain, there are no enforcement mechanisms to either sanction lack of compliance or to provide incentives for its fulfilment, especially with respect to those individuals in the early phase of their emigration experience and who do not yet know how long they will reside in the destination country. Registration at a consulate must be done in person and, in many cases, requires travelling from the place of residence to another city in the country where a Spanish consulate is located. On the other hand, the advantages of registration are scant and since 2013 there has even been a cost: losing access to free public health service in Spain.7

The survey results show that this under-registration is a common problem among the four countries of Southern Europe, and especially in the Greek case: only one in every seven emigrants from the country has registered abroad. In the Spanish case, only 36% of those who have emigrated since 2007 were registered at the time of the survey. From this figure it follows that one would have to multiply by 2.7 the number of those who have registered to obtain an estimate for the real number of native Spanish emigrants abroad.

Figure 9. Percentage of emigrants registered with consulates, by country of origin

The likelihood of registering rises with an emigrant’s length of stay: among the Spanish who emigrated before 2007, 78% were registered, but only 26% of those who emigrated during 2012 had registered. This suggests a pattern of behaviour in which the emigrant only goes to a consulate once emigration is firm.

Figure 10. Percentage of Spanish emigrants registered with consulates, by year of emigration

Source: survey ‘Emigrating in times of crisis’.8

On the other hand, together with the length of stay, the specific destination country is the other discriminating factor: the likelihood of an emigrant registering at a consulate in an EU destination country is lower than for emigrants to any other (non-EU) region of the world.

Figure 11. Percentage of Spanish emigrants registered with consulates, by destination (EU and non-EU) country

When considering the motives for not registering with a consulate, the perception that registration is not useful and is not worth the cost (time, travel, paperwork, etc) stands out as a dominant reason. The legal aspect (it is obligatory to register) barely carries any weight in the decision. This suggests that under-registration will continue to be usual in the future unless the required procedure is made far easier (for instance, by providing an online registration option) and positive incentives are provided.

Conclusions

The effect of the economic crisis on the emigration of university graduates has been felt later in Spain than in the other countries of Southern Europe, even though the impact of the crisis on the unemployment rate and on the percentage of university graduates at risk of poverty has been sharp and fast. Since 2008 unemployment among university graduates in Spain and Greece has been the highest in the EU and Spain heads the ranking of the percentage of university graduates at risk of poverty. On the other hand, Spain shares with Italy, Greece and Portugal the same kind of Mediterranean ‘welfare state’ in which the family plays an important role in complementing state-provided services. As a result, the additional family protection cannot explain the differences in the behaviour of Spanish emigrants.

The Spanish waited longer to emigrate than other Southern Europeans; they started out unemployed in their own country more frequently than the others, and their reasons for emigrating were based less on life strategies to improve their skills or professional prospects than on the imperative to find work. This seems to indicate that there are other non-economic factors in Spain –stemming from an aversion to geographic mobility– which influence decisions on whether or not to emigrate.

Because of this more notable resistance to geographic mobility, Spanish emigrants have left their own country in more vulnerable conditions and with less negotiating power. Their integration in their destination countries is less successful in terms of employment and income, and their life experience presents more difficulties. Another influential factor is related to human capital and foreign-language proficiency. This factor works against emigrants from Spain since, like the rest of the Spaniards, they have a deficit in this area that places them in a weaker position in the labour market of their destination countries.

Carmen González Enríquez
Senior Analyst, Elcano Royal Institute
| @rielcano

José Pablo Martínez Romera
Research Assistant, Elcano Royal Institute
| @jpmromera


1 The publication Migraciones devoted its latest issue (number 43) to recent Spanish emigration. The issue also included a longer version of the study presented in this paper.

2 The survey was undertaken by the European University Institute (Florence), the University Institute and University of Lisbon, Trinity College Dublin and the Elcano Royal Institute (Madrid).

3 One common result of the surveys undertaken to date concerns the level of university education among the new emigrants. Those with less education are very few: between 4% and 15% in the different surveys. In the survey ‘Emigrating in times of crisis’ only 11% of those interviewed had less than a university education.

4 Rosa Aparicio (2014), ‘Aproximación a la situación de los españoles emigrados: realidad, proyecto, dificultades y retos’, International Organisation for Migration, Madrid; and Raquel Caro & Mercedes Fernández (2015), ‘Perfiles y características de los nuevos emigrantes españoles’, Informe OBIMID October, Observatorio Iberoamericano sobre Movilidad Humana, Migraciones y Desarrollo, Universidad Pontificia de Comillas, Madrid.

5 Josefina Domínguez-Mujica, Ramón Díaz-Hernández & Juan Parreño-Castellano (2016), ‘Migrating abroad to get ahead: the emigration of young Spanish adults during the financial crisis (2008-2013)’, Global Change and Human Mobility, Springer, Singapore, p. 202-223; and Pablo Pumares & Beatriz González (2016), ‘Movilidad, migración y retorno de jóvenes españoles en el Reino Unido’, Actas del XV Congreso de la Población Española, Universidad de Las Palmas de Gran Canaria, p. 275-309.

6 The results of the correlations analysis can be seen in the article ‘La emigración española cualificada tras la crisis. Una comparación con la italiana, griega y portuguesa’, in issue nr 43 (2017) of the publication Migraciones.

7 Law 22/2013, of December 23, General Budget of the State for 2014.

8 These figures also include those for emigration prior to 2007 to show how length of residence in a destination country decisively influences consular registration; however, they exclude data from 2013 because many of the arrivals in that year had spent less than three months in their destination countries when the survey was undertaken, and they were still not obliged legally to register.

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<![CDATA[ One year on: an assessment of the EU-Turkey statement on refugees ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari21-2017-toygur-benvenuti-one-year-on-assessment-eu-turkey-statement-refugees 2017-03-21T02:42:33Z

An honest assessment of the refugee deal is very much needed since the EU is considering new ones with other transit countries. Both Turkey and key EU countries are facing electoral challenges as well: internal politics and foreign policy decisions are highly interwoven.

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In partnership with IAI

Theme

The authors assess the first year of the EU-Turkey statement on refugees, providing a summary of the current situation.

Summary

In 2015 the EU faced one of the most severe crises in its entire history. The refugee flows from the Aegean Sea caused a humanitarian drama that required a rapid response. While one particular member state, Greece, has been the most affected, another transit country, Turkey, has played a crucial role. A candidate country and also a long-term economic partner, Turkey was there to keep refugees out, as the guardian of Europe’s borders. Externalising the issue seemed the best option to European leaders after the many inconclusive attempts of the European Commission to relocate asylum seekers among the EU’s member states. With an unexpected revitalisation of relations with the aim of delegating irregular migration flows, Turkey and the EU concluded a deal to halt these flows to Europe. The EU-Turkey Statement was signed on 18 March with the proviso of certain concessions to be made Turkey, such as opening up chapters in its accession negotiations, €3 (plus €3) billion and, most importantly, visa-free travel for its citizens. Nevertheless, the deal was immediately subject to criticism from many sectors. One year on, an honest assessment is very much needed since the EU is considering the designing of new deals with other transit countries. In the meantime, both Turkey and key countries of the EU, such as the Netherlands, France and Germany, are facing very critical electoral challenges of their own. For this reason, internal politics and foreign policy decisions are highly interwoven.

Analysis

Introduction

While the world witnessed one of the most tragic refugee crises of its history in 2015, the EU got itself into an impasse due to its member states’ clashing interests and their inability (or unwillingness) to find a common solution to this global challenge.1 Despite the European Commission’s efforts and the publication of the European Agenda on Migration,2 this profound solidarity crisis led to the blunt refusal by some member states to implement the relocation system as approved by the EU Council in September 2015.3 As no common solution was found to distribute migrants and asylum seekers fairly among the member states, the decision was taken to strengthen the EU’s cooperation with countries of both origin and transit.4 With a Syrian refugee population at the time of around 2 million,5 and being the main transit country for migrants to the EU through the Balkan route, Turkey was identified as the provider of the solution to the European deadlock.6 On 29 November 2015, the EU’s heads of state or government held a first meeting with Turkey to develop EU-Turkey relations and draw the lines of a new cooperation agreement to manage the migration crisis.7

On 18 March 2016, during a second International Summit, EU leaders and their Turkish counterparts signed the EU-Turkey Statement, better known today as the EU-Turkey deal.8 According to the statement, all migrants crossing the Aegean Sea illegally would be readmitted to Turkey, while for every Syrian returned to Turkey from Greek islands, another Syrian would be resettled from Turkey to the EU, in a process that became known as the “one-to-one mechanism”. In exchange, the EU promised to re-energise Turkey’s accession process by opening up chapters, speeding up visa liberalisation and investing a €3 billion financial packet plus an additional €3 billion to improve the standard of living of the Syrian immigrant community in Turkey.9 While welcomed in Brussels as a positive step to addressing the ‘migration crisis’, the deal sparked heated criticism among international human rights organisations and civil society for being in breach of international laws such as the ban on collective expulsions. In particular, many opposed the decision to consider Turkey a ‘safe third country’ –ie, a country that is safe for third-country nationals–.

One year after the EU-Turkey statement, externalisation (or the effort to externalise migration control) is the cornerstone of the European strategy to address the migration challenge. On 3 February 2017 Europe’s leaders met in Malta to devise an action plan with Libya to halt irregular migration through the Central Mediterranean route.10 While the EU-Turkey statement might become a model for future deals with other countries, it is important to evaluate its effect at one year’s remove from its implementation. On the one hand it seems to have achieved its main goal, with the number of migrants crossing from Turkey drastically dropping in the weeks following March 2016. However, the situation is not as bright as it might seem, to the point that many observers are envisaging that the deal might break down. The growing political instability in Turkey, combined with a worsening of its relations with the EU, is also playing against the partnership designed to cooperate on migration management. This paper assesses the first year of the accord’s implementation, looks at its main effects and will try to answer the one question that remains in the air: will the deal break down in the near future?

Stemming the flow across the Aegean Sea: data evidence

One of the declared aim of the EU-Turkey Statement –better known as the EU-Turkey deal– is to ‘end irregular migration from Turkey to the EU’.11 Data evidence suggests that the flow of irregular migrants crossing the Aegean Sea did in fact slow down. However, a critical approach to the numbers reveals that the causal relation between the EU-Turkey deal and the drop in irregular crossings is not as clear as it might seem.12 After the peak in October 2015, the number of irregular crossings to Greece did in fact slow down, mostly due to the poor weather conditions of the winter months. In addition, the progressive closure of the Balkan route since September 2015, as the result of the closure of the border between Hungary and Serbia and the subsequent construction of a barbed-wire fence along the Hungarian-Serbian and Hungarian-Croatian frontiers,13 had already deterred migrants from undertaking the perilous journey through the Aegean Sea.14 In short, the combined effect of the Balkan route closure and the EU-Turkey statement resulted in migration across the Aegean Sea remaining very low even in the summer months of 2016.

Figure 1. Monthly Mediterranean arrivals in Greece, 2015-16

Nevertheless, the EU has frequently resorted to the rhetoric of preventing migrants from dying at sea to justify the agreement with Turkey. On this point there is no doubt that it has failed to achieve its goal: 2016 has been the most tragic year, with over 5,000 people dead while attempting to reach Europe by crossing the Mediterranean.15 The sharp increase from the 3,771 recorded in 2015 may well be the result of migrants tending to use the Central Mediterranean, the deadliest route. In short, even if the deaths on the Aegean have decreased, as underlined various times by the European Commission, this is not, however, unfortunately the case when taking into account the Central Mediterranean route as well.

Political and legal challenges to the deal

International organisations criticised the EU-Turkey deal from day one,16 claiming that Turkey cannot be considered a ‘safe third country’. The concept of ‘safe third country’ is the legal basis for the deal, as it allows the EU to return migrants and asylum seekers to Turkey without violating the non-refoulement principle.17 Reports and studies have shown that Turkey is indeed not a ‘safe third country’ for either asylum seekers or refugees.18 Additionally, the country’s domestic situation has deteriorated dramatically over the past year, following the attempted coup of July 2016. As a result, legal challenges to the return of asylum seekers from Greece to Turkey are on the increase. Furthermore, asylum requests filed in Greece must be assessed on an individual basis before a potential return to Turkey, as this would otherwise amount to mass expulsions. As a result, in April 2016 Greece adopted a new law (Law 4375/2016) to fast-track asylum procedures at the border.19 The law envisages a two-step process: before considering an application on its merits, the individual concerned must pass an admissibility assessment. Until recently, only Syrians have been subject to the admissibility procedure to decide whether they should be returned to Turkey. According to the EU-Turkey statement, most Syrians should be returned to Turkey: however, the Greek Appeal Committee has overturned the vast majority of the appeals, arguing that Turkey does not qualify as a ‘safe third country’, thus blocking a central element of the deal itself.20 According to the latest figures provided by the European Commission, arrivals continue to outpace the number of returns from the Greek islands to Turkey, as the total number of migrants returned since the date of the EU-Turkey Statement is only 1,487.21

The new procedure puts a disproportionate bureaucratic burden on Greece’s asylum system by establishing a de facto double formula for those in the islands –who need to undergo an admissibility and then an eligibility process– and those on the mainland –who undergo only the eligibility process–.22 Besides, the fate of those sent back to Turkey is also worrying: the UN Refugee Agency, entrusted by the deal to monitor the situation of returnees in Turkey, has expressed on several occasions its concern over the situation of Syrians readmitted to the country.23 It also reported obstacles to the regular access to refugee camps in Turkey and to monitor whether anyone sent there from Greece is given legal protection.24In addition, the reception conditions on the Greek islands, inadequate already before the deal, has worsened dramatically: the camps there have been transformed into detention facilities for those waiting a response on their eligibility –ie, on whether they can seek asylum in Greece or should be returned to Turkey–. By the end of 2016 around 15,000 people were still stranded on the islands in dire conditions.25

The legal nature of the EU-Turkey Statement is itself unclear, as the EU’s negotiators failed to follow EU procedure for concluding treaties with third countries.26 For this reason it is called a ‘statement’ and not an agreement, since it has not been approved by the European Parliament. As a result, the EU General Court has declared that it has no jurisdiction over a case presented by three asylum seekers against the agreement,27 placing a clear distinction between the member states and the EU itself.

The part of the deal that was best received –safe passage to Europe, also known as the ‘1-to-1 mechanism’– it also not working properly. Only 3,565 Syrian refugees have been resettled from Turkey to Europe, a negligible number compared with the goal of resettling 72,000, and even more so compared with the almost 3 million Syrians in Turkey.28 Figure 2 shows the number of individuals resettled from Turkey according to the agreement. Germany has by far accepted the highest number. The reason lies not only in the size of its population and its economic situation but also in the fact that it is the key country behind the design and negotiation of the deal with Turkey. The Netherlands and France followed Germany’s lead: being founder members of the EU they are merely assuming their responsibility.

Figure 2. Total resettlement under the 1-to-1 mechanism

Will unfulfilled promises be the breaking point?

Another aspect of the settlement is that relations between the EU and Turkey have unexpectedly revived. Since the EU was unable to find a fair solution for the allocation of asylum seekers among its member states, the only way of ‘solving’ the problem was its externalisation. Thus, there was a revitalisation of its relations with Turkey, since it is the main transit country for Syrian refugees. However, the situation was merely circumstantial as there is no convergence of interests when it comes to migration management.29 The agreement has also been criticised widely since Turkey’s democratic credentials are quite problematic as regards basic rights and freedoms, and this was even aggravated following the attempted coup. Bearing all this in mind, it is important to underline the following promises made to Turkey:

  • Lifting the visa requirements for Turkish citizens. Turkey has been given 72 benchmarks for achieving visa-free travel to the Schengen Area, among which it has fulfilled 67. One of the remaining benchmarks, revision of the anti-terror law, faced constant resistance from the Turkish side, leading to a deadlock. The issue of visa-free travel for Turkish citizens to the Schengen area is considered the deal’s ‘core’ part by the European Commission as it has already been on the agenda for a long time.
  • Opening negotiation chapters in Turkey’s accession process. However, only one chapter has been opened following the signing of the deal.30
  • ‘3-plus-3 billion euros’. According to the European Commission, of the €2.2 billion already allocated for 2016-17, contracts have now been signed for 39 projects to the value of €1.5 billion, all of which have begun to be implemented.31
  • Resettlement from Turkey, also known as the 1-to-1 rule. As noted above, 3,565 refugees have been resettled.

Visa liberalisation is a core part of the EU-Turkey Statement of 18 March which is designed to decrease irregular migration. The proposal for placing Turkey on the visa free list also clearly specifies that the visa exemption is dependent both upon continued implementation of the requirements of the visa liberalisation roadmap and of the European Union-Turkey Statement of 18 March 2016.32

Within all this process, the institutional division between the Commission, the Council and the Parliament has been highly visible. The Commission and the Council have appealed to realpolitik and tried to maintain the deal despite worsening conditions in Turkey following the attempted coup. On the other hand, there is also the European Parliament’s non-binding decision on freezing negotiations, with the aim of imposing some kind of sanction. However, the decision was not further promoted by a Council decision, and all of the deals financial stipulations have remained in place.

Conclusions

The deal: can it –and should it– be maintained?

An assessment one-year on of the deal’s implementation should also take into consideration that it came at a time when Brussels was gridlocked vìs-a-vìs the migration crisis. Therefore, there was no time for detailed debates in the EU to find a more adequate and long-term solution to the challenge. The Statement could have provided space for further discussion but instead it proved to be the first step in the reinvigoration of the EU’s externalisation policy. Even more, a critical approach to the EU-Turkey deal is now necessary since the EU is considering striking similar deals with countries such as Libya, Egypt and Tunisia.33 But there are still two main questions to consider:

  • Can the deal hold?
  • Should the deal hold?

The answer to the question of whether it can, depends on:

  • A further deterioration of conditions in Syria that might lead to a rising inflow of Syrians.
  • Greece’s capacity to handle the situation further, regardless of its lack of administrative and financial capacities.
  • Domestic issues in Turkey and the further deterioration of the country’s safety conditions.
  • The possibility of serious social unrest between Turks and Syrians. So far it appears that the Turkish government has no problem with having so many Syrians within its borders. There are even draft proposals to provide them with Turkish citizenship. Meanwhile, neither has Turkish public opinion been overly negative about the situation so far, although the granting of citizenship is not viewed positively. Furthermore, the government has relocated Syrians to Kurdish areas in south-eastern Turkey, which could be construed as social engineering designed to stem the rising Kurdish nationalism. In this regard, social unrest might well be a possibility.
  • The Turkish government’s reaction to unfulfilled promises. The country’s President has threatened the EU on several occasions with sending migrants on into Europe if the economic part of the deal is not complied with. The most important unfulfilled part of the deal is visa liberalisation for Turkish citizens. In general, the intention of linking the refugee deal and Turkey’s accession process to the EU ended up being more of a problem than a positive conditionality. The underlying logic was the rejuvenation of relations, or at least the maintenance of a working link. However, it led to a further deterioration in mutual trust and a greater estrangement between the peoples of Turkey and the EU.
  • And lastly, it depends mostly on the current state of the relations between the EU and Turkey. At present, the relationship has worsened significantly, both as a whole and as regards specific tensions with certain member states, notably Germany and the Netherlands. There are currently discussions on a possible complete breakdown in the event of the ‘yes’ vote triumphing in the Turkish constitutional referendum, which has dramatically been criticised by the Venice Commission ‘as a dangerous step backwards for democracy’.34 Should this be the case, there is likely to be a thorough reconsideration of the future of Turkey-EU relations.

All these points are vital for the deal to remain on track and they largely depend on domestic conditions in Turkey and Greece, the two key countries involved in the deal, in addition to on the relations between Turkey and the EU. Even if the deal survives for a while more, outsourcing the problem can never be a permanent or long-term solution.

As to the second question, whether the deal should hold, the answer comprises elements of realpolitik, humanitarian concern and the legal rights of refugees. The EU-Turkey statement has set a dangerous precedent by demeaning ‘the principle of the right to seek refuge itself’. It may well erode the EU’s image as a defender human rights, considering the closure of the Western Balkan route, the poor treatment of asylum seekers at the borders of European countries and the dire standards of living on the Greek islands.35 For this reason, continuing the policy of externalisation may require the creation of a firmer legal framework.

As a concluding remark, the decline in the number of illegal crossings in the Aegean, which is considered the deal’s main positive result, needs to be critically assessed. It should have provided the EU with sufficient scope to further discuss a long-term solution to the migration crisis. It should be borne in mind that the EU-Turkey statement involves only Syrian refugees but not those of other nationalities. This is a further reason why the EU-Turkey statement should merely be considered a stop-gap measure that must be replaced with a more stable and longer-term strategy. However, facing one of the most critical electoral years in the EU’s history, it is unrealistic to expect a fair assessment of the current situation.

İlke Toygür
Analyst, Elcano Royal Institute
| @ilketoygur

Bianca Benvenuti
Istituto Affari Internazionali
| @BeyazBi


1 İlke Toygür & Bianca Benvenuti (2016), ‘The European Response to the Refugee Crisis: Angela Merkel on the Move’, IPC-Mercator Policy Brief, June.

2 European Commission (2015), ‘A European Agenda on Migration’, COM (2015), Brussels, 13/V/2015.

5 According to UNHCR data, there are currently 2,910,281 refugees in Turkey. See UNHCR, Syria Regional Refugee Response for the most recent figures.

6 Meltem Müftüler-Baç (2015), ‘The Revitalization of EU-Turkey Relations: Old Wine in New Bottles?’, IPC-Mercator Policy Brief, December.

8 International Summit, Press Release 144/16, 18/III/2016.

9 The EU leaders had already agreed to a €3 billion fund in the aforementioned November 2015 meeting. See Meeting of Heads of State or Government with Turkey – EU-Turkey statement, 29/XI/2015.

16 Amnesty International (2016), ‘EU-Turkey Refugee Deal a Historic Blow to Rights’, 18/III/2016; Human Rights Watch (2016), ‘Say No to a Bad Deal With Turkey’, 17/III/2016; and Médecins Sans Frontières (2016), ‘Migration: Why the EU’s Deal With Turkey is No Solution to the “Crisis” Affecting Europe’, 18/III/2016.

18 See, among others, Ahmet İçduygu & Evin Millet (2016), ‘Syrian Refugees in Turkey: Insecure Lives in an Environment of Pseudo-Integration’, IAI Working Paper 13, August; Amnesty International (2016), ‘EU Reckless Refugees Returns to Turkey Illegal’, 2/VI/2016; UNHCR (2016), ‘Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey as part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept’, 23/III/2016; StateWatch Analysis (2016), ‘Why Turkey is Not a “Safe Country”’, February; Human Rights Watch (2016), ‘Is Turkey Safe for Refugees’, 22/III/2016; and Orçun Ulusoy (2016), ‘Turkey as a Safe Third Country’, Border Criminology blog, University of Oxford, 26/III/2016.

20 In June 2016 the Greek Parliament changed the composition of the Appeal Committees. By the end of 2016, the new Committee upheld 20 inadmissibility decisions of the Greek Asylum Service. See Amnesty International (2017), ‘A Blueprint for Despair: Human Rights Impact of the EU-Turkey Deal’, January.

25 Amnesty International (2017), ‘A Blueprint for Despair: Human Rights Impact of the EU-Turkey Deal’, January.

26 Treaty on the Functioning of the European Union, Part Five – Title IV, Article 218. For more on this see ‘EU Law Analysis. Is the EU-Turkey refugee and migration deal a treaty?’, 16/IV/2017.

27 General Court of the European Union, Press Release 19/17, Luxemburg, 28/II/2017.

28 European Commission (2017), ‘Report From the Commission to the European Parliament, the European Council and the Council: Fifth Report on the Progress made in the Implementation of the EU-Turkey Statement’, 2/III/2017.

29 For further information see Bianca Benvenuti.

30 Official negotiations for Chapter 17 were opened in December 2015. In addition, official talks for the negotiation of Chapter 33 were opened in June 2016, putting the item on the official timeline for EU-Turkey relations.

31 For further information see ‘Report From the Commission to the European Parliament, the European Council and the Council: Fifth Report on the Progress made in the Implementation of the EU-Turkey Statement’.

34 For more information see the Venice Commission’s opinion.

35 For more information see the Human Rights Watch report.

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<![CDATA[ After Brexit: Schengen remains in the balance, but the border question should not be neglected ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/commentary-lisa-after-brexit-schengen-balance-shall-not-be-neglected 2016-07-06T06:20:50Z

2016 can still be remembered as the moment of the successful call for the unilateral reestablishment of national border controls, leading to a progressive decline of freedom of movement in the EU. Another shock to Schengen’s foundations must not be allowed to happen again.

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The year 2016 will be remembered as the occasion in which an EU Member State submitted its membership to the EU to a referendum and 52% of the voters chose to leave, prompting a substantial shift in the EU political agenda for next time to come. To deal with the terms and details of the divorce, like the most appropriate moment to trigger article 50 of the Lisbon Treaty or the model of the future UK/EU relationship, is at the top of the two parties’ agendas. Strong cooperation and good faith will be necessary as interests begin to draw apart. There will be no place for a ‘best of both worlds’ approach from the UK or for threats or an unreasonable degree of pressure from the EU. The first assessment of future proceedings was held on the margins of the European Council of 28 and 29 June, where the future of the EU was also dwelt upon. This will probably accelerate the debate that was being edged aside but was steadily being considered necessary to reaffirm the EU’s values as regards mutual trust, democracy and solidarity while searching for new forms of flexible and inclusive solutions. A two-speed Europe should not be feared. It solved past serious divisions between member States and can still do so.

“Another shock to Schengen’s foundations must not be allowed to happen again”

Understandably, the remainder of the EU Council’s agenda, such as progress on improving the integration of the EU’s external border management or dealing with the external dimension on migration (the implementation of the EU-Turkey Statement and the Commission’s proposals for a new Migration Partnership Framework) were completely overshadowed. We must deal with one crisis at a time but the outcome of the British referendum shows that challenges must be tackled with consequent and reliable solutions or they will come back again knocking at our door.

The first stage of the long and complex divorce should not overshadow the EU’s remaining challenges. The future of the Schengen area is still in the balance. If Schengen and its associated migratory and asylum policies continue to be a ‘collective asset no one stands up for’, 31 years on from its inception, 2016 can still be remembered as the moment of extreme political speeches, the overrating of the protection offered by national borders and the successful call for the unilateral reestablishment of national border controls, leading to a progressive decline of freedom of movement in the EU. Another shock to Schengen’s foundations, such as occurred last September, must not be allowed to happen again. The ‘surprise effect’ of the exceptional and massive influx of persons arriving irregularly to the EU gave rise to contradictory political messages. Perceived initially as too big to control, Angela Merkel’s ‘open doors’ policy and ‘wave through’ approach –by which more than 1 million people travelled unchecked through the Western Balkan route on their way to Germany, Austria or Sweden– gave way to an overstretching of national reception capacities. Eight Schengen countries (Denmark, Germany, Hungary, Austria, Slovenia, Slovakia, Norway and France) introduced unilateral temporary border controls on public policy grounds. Border controls on security grounds were also established in France and Belgium after the terrorist attacks in their territories. These controls were in accordance with the Schengen Borders Code (SBC).

Unsurprisingly, upon the expiration of these initial measures, the ‘persistent serious deficiencies’ in Greece’s external border controls –according to a Schengen evaluation published in November 2015– have failed to be corrected. Despite a considerable transfer of financial and technical assistance and some acknowledged improvements in registering and processing refugee claims, the 50,000 on Greek territory still represent a considerable risk of secondary movements. Targeted border controls were kept until mid-November for Germany, Austria, Sweden, Denmark and Norway by a Council of Ministers decision of 12 May. For the first time, Schengen’s exceptional safeguard mechanism –article 26, n.2 SBC, allowing the reintroduction of border controls up to two years in situations of serious threat to public policy or internal security– were invoked, placing the overall functioning of the Schengen area at risk.

“The EU Border Guard is just the possible first step for integrated border management”

Temporary border controls are just a consequence of a more complex issue: addressing the structural deficiencies in the Southern European maritime external border, in particular the identification and registration of irregular migrants and sea border surveillance, re-emerged with the progressive destabilisation of neighbouring regions. Two thirds of the measures necessary to get back to the full application of Schengen by the end of the year focus on this challenge, particularly restoring Greek border securing and assuring efficient and dignified procedures to deal with third-country nationals who cross external borders irregularly and in need or not of international protection.

These deficiencies are expected to be mitigated by the likely agreement on the creation and full functioning of the EU Border Guard by August. It will not be a truly European border guard and neither will it resolve new migratory pressures. The EU Border Guard is just the possible first step for integrated border management. Each Member State’s primary responsibility for managing its borders will be combined with the introduction of a shared responsibility in managing the security of the EU’s external borders. If a Member State faces disproportionate migratory pressure or any other challenges at its external borders there will be an obligatory pool of up to 1,500 border guards available to be deployed. If a member state refuses to cooperate with the Agency and jeopardise the functioning of Schengen zone, only then can the others reintroduce temporary border controls according to the Schengen Border Code. It is thus a stabilisation safeguard mechanism that reinforces cooperation and mutual trust before national controls can be introduced. The revamping of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States (Frontex) includes a supervisory capacity role for Vulnerability Assessments of the EU’s external border. The first is foreseen for August so that preventive measures can be taken to allow the lifting of border controls by the end of the year.

For the time being the inflows are under control, mostly because of the messages sent through the EU-Turkey Agreement. However, a sudden inflow could occur again and it is necessary to be able to face up to the challenge.

The urgency to keep high political pressure to get ‘back to Schengen’ and bridge an increasingly divided Europe ought to deserve the EU leaders’ attention, focus, leadership and political commitment. To use an expression of Yves Bertoncini and António Vitorino: Schengen is bravely ‘racing against time’ until the end of the year. Failure to comply with this deadline and extending systematic national border controls further, although legal, would be contrary to the Schengen spirit and radicalise the political questions facing the EU’s citizens and their leaders: are we seeking to maintain the rights associated with Schengen membership while strengthening the duties that go with it in terms of solidarity, border controls and migration policies? Or are we going to allow Schengen to live permanently with safeguard mechanisms and miss the opportunity to improve our collective ability to deal with migratory pressures or terrorist threats? These questions should also be among those in the minds of the EU’s leaders as they debate the Union’s future.

Patrícia Lisa
Analyst, Elcano Royal Institute
| @Llisa_Patricia

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<![CDATA[ Highs and lows of immigrant integration in Spain ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari47-2016-gonzalezenriquez-highs-lows-immigrant-integration-spain 2016-06-13T04:39:59Z

Spain can boast of having integrated a wave of migrants of singular size and intensity into its society. It is still, however, a long way from the countries where first-generation immigrants and their offspring have secured prominent roles in public life.

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Original version in Spanish: Luces y sombras en la integración de los migrantes en España

Theme

Spain can boast of having integrated a wave of migrants of singular size and intensity into its society, unaccompanied by social conflicts of any note or by the emergence of xenophobic movements. It is still, however, a long way from the countries where first-generation immigrants and their offspring have secured prominent roles in public life.

Summary

Spain can boast of having achieved the integration of more than 6 million immigrants in record time, without having witnessed the appearance of xenophobic movements, becoming in this respect an exception to the European norm. While the integration of immigrants has its positive sides, such as this, plus the full legalisation of their legal position and the absence of immigrant enclaves, it also has negative facets, such as the high burden of unemployment and low wages, the poor take-up of post-compulsory education among subsequent generations, the risk of Jihadist radicalisation and the scarcity of immigrant presence in public life. Spain is still far from those countries where first-generation immigrants and their offspring have succeeded in playing an important role in public life, like the recently-elected mayor of London, Sadiq Khan, son of Pakistani immigrants. For now, immigrants hailing from countries poorer than Spain occupy a secondary position both in the employment and wealth structure as well as in terms of social status.

Analysis

More than 30 years have elapsed since the first Immigration Law was approved in Spain, in 1985, and more than 20 since immigration started to figure prominently in public debate and be perceived as a new social reality. In this period Spain has gone from being a culturally and ethnically homogeneous society to one in which immigrants hailing from dozens of different countries, with widely differing religions, languages and physical characteristics, account for 13% of the population. The process has been managed by the authorities and society at large in the absence of any debate about how to ensure the integration of the immigrants. Particularly striking is the fact that there has been no significant debate in Spain –unlike many other European countries with longer traditions of immigration– concerning the cultural elements of integration, a debate that shuttles between two ‘models’, the multicultural and the assimilationist, and all the intermediate points in between. Perhaps because national identity in Spain as a whole is weak, opinion polls have consistently shown that immigration is not perceived as a cultural threat, unlike in a good deal of European countries. Only in Catalonia, where there is a strong national-cultural identity, perceived as being endangered, has this aspect had any importance.

It could be said that both the authorities and the general public in Spain have adopted a pragmatic stance towards the integration of immigrants, one that aims at solving problems and risks of conflict without being based on any prior model. With the accumulated experience of two decades, and when the effect of the economic crisis on immigrants returning to their poorer countries of origin seems to have ended, now is a good time to examine the data concerning this pragmatic approach to integrating immigrants in Spain.

A report has just been published with the results of an interesting survey of Ecuadorean immigrants in Spain, carried out by the Ecuadorean Embassy, UPCO University and the Basque Immigration Observatory (Ikuspegi),1 which reveals many positive but also negative aspects of the integration that has taken place in the country. Ecuadoreans, together with Romanians and Moroccans, account for the three largest groups of immigrants to Spain, lending added weight to the importance of the research. Using this report in conjunction with other sources it is possible to trace an outline of the highs and lows of the process.

Starting with the positive data from the perspective of integration:

  1. Legal integration. Ecuadoreans, like the majority of other non-EU immigrants, have now achieved a status that gives them permanent residence in the country. More than half (53%) of Ecuadoreans have obtained Spanish nationality and another 25% have permanent residence status. The phenomenon of illegal immigration has virtually ceased to exist in this group, as in the wider immigrant population in Spain. Prompted by rising unemployment, in 2008 Spain stiffened its policy against illegal immigration, which had already seen substantial falls with Romania’s entry into the EU in 2007 and the immigration amnesty of 2005. As a result of all this, the level of illegal immigration has become negligible, quite unlike the situation that existed at the dawn of the 21st century.
  2. Sense of acceptance. The Ecuadorean immigrants surveyed do not feel discriminated against by the indigenous population. This was the response of 74% of the interviewees. Only 25% report having suffered some form of discrimination. The sense that rejection does not exist or is expressed by a minority is related to the fact that there is no xenophobic party or movement of any consequence in Spain, something that has often been highlighted as one of the country’s achievements, particularly in light of the fact that no other European or Western country has received so much immigration per head during the period of greatest influx, between 1998 and 2007.2 No convincing explanation has been offered in answer to the question of why Spain has until now been spared a tendency that affects the whole of Europe, namely the spread of xenophobic parties and their electoral success. The commonest response to this question at the start of the century was the novelty of the immigrant phenomenon in Spain and the empathic way it was viewed from the perspective of Spain’s own migration experience in the 1960s. Added to this was the historical legacy of Francoism, which with its rhetorical abuse of Spanish nationalism had turned society off the very idea of nationalism, which came to be identified with the dictatorship. Portugal, which under Salazar also endured a lengthy authoritarian regime, is another exception to the general rule in Europe in not having a xenophobic party. Now, however, with an immigrant population of 13% –which does not include the Spanish-born second generation– and the demographic preponderance of generations that have no experience of the Franco regime or past waves of emigration, such explanations seem inadequate. In any case, the risk of xenophobic movements emerging in the future cannot be ruled out: 19% of Spaniards believe that a party with a racist or xenophobic ideology would be well-received, according to the results of the latest immigration barometer published by the CIS Centre for Sociological Research, carried out in 2014,3 while 44% report having heard anti-immigrant remarks in the previous few weeks.
  3. Plans to remain. The Ecuadoreans who are considering returning to their country or emigrating to another are in a minority (one third of the total), whereas the majority either plan to remain in Spain or have no specific plans for the future, which amounts to remaining by default. Young people are the most resistant to the idea advanced by their parents of returning to Ecuador. This reluctance to return on the part of second generations, which is a well-known aspect of migration processes, leads to a degree of stabilisation in the migrant population.
  4. Absence of ethnic enclaves. Clearly the immigrant population is not distributed evenly across Spanish cities and towns, instead tending to be concentrated in particular neighbourhoods and districts. To date however there has been no sign of immigrant enclaves, neighbourhoods that the indigenous population have abandoned in the wake of the immigrant arrivals. There is no equivalent in Spain to the French banlieues with their concentrations of Arab and sub-Saharan immigrants, or the Brussels suburb of Molenbeek, with its predominantly Moroccan population. This could be the positive and unintended consequence of the absence of a strong social housing policy in the country. Faced with a shortage of low-cost public housing, immigrants have turned to the market in search of accommodation, dispersing themselves among Spaniards and thereby fostering social integration through neighbourly relations. Such geographical dispersion has led to a similar effect in the school system and has offset the tendency to form educational enclaves. It must be acknowledged however that the economic crisis and the consequent reduction of the immigrant population may have put the brakes on a process –the formation of residential and educational enclaves– that in all likelihood would otherwise have taken place. The non-EU immigrant populations from relatively poor countries tend to be concentrated in two types of urban district: peripheral areas characterised by cheap housing built in the 1960s and 70s and an ageing population (such as San Cristóbal in Madrid and Juan XXIII in Alicante), and districts in run-down city centres with abundant low-quality housing (such as Lavapiés and El Raval) that are undergoing a process of renewal and gentrification, pushing out the immigrants as well as the less affluent indigenous population. Such urban renewal counteracts immigrant concentrations building up in central districts, but there is no comparable effect in the outlying districts where immigrants have congregated and where the cost of housing has fallen compared to the rest of the city; here the homes occupied by the ageing indigenous population are acquired or rented by immigrants when they fall vacant.
  5. Identification with the host country. Another good indicator of integration is the degree of identification with Spain expressed by the offspring of Ecuadorean immigrants. While adults predominantly identify as Ecuadorean and the Spanish identity is only marginal, among young people aged 15-24 there is a group in which both identities are shared (22%).
  6. Islamist radicalisation among Arab immigrants is very low in Spain compared to what has been observed in Belgium, the UK, France and Germany. Relative to its population very few combatants have left Spain to join the ranks of the so-called Islamic State.4

Contrasting with these positive data there are also more negative aspects:

  1. Unemployment, low salaries, job insecurity and poverty affect the immigrant population disproportionately. The unemployment rate in the case of the Ecuadoreans surveyed was 31%. Among other groups the proportion is even higher: 52% of Moroccans were unemployed at the end of 2014.5 Three quarters of the Ecuadorean women in work earned less than €1,000 a month, and the same was true of 64% of men. Up to 24% earn less than the minimum wage, now set at €649. Probably as a consequence of their lower income, combined with smaller networks of family support compared with the indigenous population, immigrants are taking greater advantage than their Spanish-born counterparts of the recovery in the job market that has taken place in recent years: in 2014 and 2015, the employment rate among immigrants grew by 10 points compared with only 4 points among those born in Spain.6
  2. Residential evictions have hit this group especially hard: 13% of Ecuadoreans have been served with court orders to vacate the homes they purchased, having been unable to keep up with the mortgage payments as a result of the crisis. As a group, immigrants have been more affected than native Spaniards by eviction notices, owing to their relative economic precariousness and their lack of family support networks.
  3. The integration of the Muslim population is not assured. Muslim immigrants in Spain continue to encounter obstacles to the practice of their religion on a range of fronts: the building of mosques; burials; harmonising some of their most important religious festivals such as Eid with the working calendar; and the teaching of their religion in classrooms. Only in places where there is a particular concentration of Muslims, such as Ceuta, Melilla and various municipalities in the South-East, have the local authorities drawn up specific integration policies in this regard. Although the Spanish State is officially non-denominational, in practice the Roman Catholic Church and faith enjoy privileges that the other faiths decry; these especially effect Islam, the country’s second most important religion by number of adherents. The clearest manifestation of this discrimination is the building of mosques. Buildings devoted to religious worship are not granted any special status in town planning, but Spanish local authorities find no difficulties in earmarking land for the construction of Roman Catholic churches when designing new neighbourhoods. When a Muslim community sets out to build a mosque, on the other hand, it frequently runs into all manner of administrative hurdles and the opposition of a section of the local residents, with the not uncommon result that mosques end up being opened in industrial premises on the outskirts of cities.
  4. The risk of Islamist radicalisation and violence. Although, as pointed out above, Islamist radicalisation in Spain is relatively minor compared to other European countries, it exists, and demands unstinting vigilance from the security and intelligence forces, focusing on three areas in particular: Ceuta, Melilla and Catalonia. The majority of Spanish Jihadists who have travelled to Syria and Iraq to join the ranks of Islamic State have originated from Ceuta and Melilla, cities that have become predominantly Muslim. The police in Catalonia have dismantled various networks that were allegedly preparing terrorist attacks.7
  5. The offspring of immigrants, those who are entering working age in the midst of an economic crisis, face a worse job market than the one that greeted their parents when they came to Spain in the throes of a construction boom. Furthermore, only a small proportion of this second generation is going on to post-compulsory education and university;8 this brackets them in the group with the poorest employment prospects, the low-qualified, among whom long-term joblessness in Spain is at its most acute. The number of jobs available for people with low qualifications continues to fall in Spain, as everywhere else in Europe, and this entails a significant problem of social integration over the medium to long term.9 Meanwhile, second generations have aspirations that differ from their parents’ because they have a distinct frame of reference: rather than comparing their quality of life with their countries of origin, their aspirations are determined in relation to those of their contemporaries in the country where they live, in this case Spain. But if their educational results are worse than average, such aspirations run the serious risk of being frustrated and causing feelings of exclusion and marginalisation. If such relative academic underachievement is to be prevented it is imperative to obtain detailed information that would enable extra educational resources to be concentrated where they most needed; however, unlike the majority of OECD countries where the PISA tests are administered to 15 year-old students, Spain does not record the specific national origin of its students, so that the PISA results for Spain include the children of Britons, Chinese, Moroccans, Germans and Ecuadoreans in the same figure. There is no justification for this lack of information, and it is something the Spanish education authorities need to address.

Conclusions

Spain has now transitioned into a second phase of immigration, with a stabilisation of the immigrant population, most of which has either acquired Spanish nationality or permanent resident status. Eight out of 10 non-EU immigrants without Spanish nationality have permanent leave to remain, according to figures published by the OPI immigration observatory.10 The growth of the immigrant population is now basically accounted for by families reuniting, a phase that other European countries with greater experience of immigration reached years ago and that brings its own challenges, such as the greater rate of dependence among the newly-incorporated family members compared to the migrants who arrived originally.

Spain can congratulate itself for having successfully incorporating into its society an immigration wave of singular intensity and size in this period without witnessing significant social conflicts, or the emergence of xenophobic movements, even at a time of high unemployment when there is keen competition for jobs. It still has a long way to go, however, before catching up with countries where first-generation immigrants and their offspring have succeeded in playing a prominent role in public life, such as the recently-elected mayor of London, Sadiq Khan, son of Pakistani immigrants, the Spanish-born French Prime Minister, Manuel Valls, and the Moroccan-born Najat Vallaud-Belkacem, the French Education Minister. For now, the integration of immigrants hailing from countries poorer than Spain takes place in the lower reaches of the occupational and social hierarchy, with an almost complete absence of high-profile figures to offset this lack of public protagonism. It remains to be seen whether the Spanish model is capable of producing such successful outcomes of integration as the ones cited above, a process in which the education system bears a major responsibility.

Carmen González Enríquez
Senior Analyst and head of Spain’s Image Monitor (OIE), Elcano Royal Institute
| @rielcano


2 Carmen González Enríquez (2015), ‘Migración, trabajo y amenazas al sistema de pensiones: balance del período 1996-2014’, ARI, nr 5/2015, Elcano Royal Institute.

4 Carola García-Calvo (2016), ‘España concernida’, Commentary, Elcano Royal Institute, 23/III/2016.

5 Carmen González Enríquez (2015), op. cit.

6 FUNCAS (2016), ‘Focus on Spanish Society’, March; calculations by Luis Garrido Medina.

7 Fernando Reinares & Carola García-Calvo (2015), ‘Terroristas, redes y organizaciones: facetas de la actual movilización yihadista en España’, Working Paper, nr 17/2015, Elcano Royal Institute.

9 Luis Garrido & Rodolfo Gutiérrez (2016), ‘El urgente rescate social: Recuperar para el empleo a los trabajadores menos cualificados’, Círculo Cívico de Opinión, Cuaderno nº 16.

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<![CDATA[ The EU-Turkey Agreement: a turning point in the EU’s policy approach to the refugee crisis but with the devil lurking in the detail ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/commentary-lisa-eu-turkey-agreement-turning-point-eu-policy-approach-refugee-crisis 2016-04-08T12:35:11Z The EU-Turkey agreement is a far cry from Angela Merkel’s open borders policy of the summer of 2015. The only chance for such a voluntary-based agreement to work lies in the Member States’ willingness and solidarity. ]]> The EU Council’s controversial EU-Turkey agreement of 17-18 March to tackle the refugee crisis has two major objectives: to stop/or substantially reduce the massive inflow of irregular migrants arriving to the Greek islands from Turkey (thus dismantling the smuggling networks) and to design an ordered resettlement mechanism in the EU for Syrians currently in Turkey. These objectives will be tackled with two separate but interdependent measures. First, all irregular migrants arriving in Greece from 20 March onwards will be returned to Turkey beginning on 4 April. Secondly, starting at the same time as these returns, for every Syrian returned the EU and its members will allow a Syrian refugee to legally enter the EU, the so called ‘1-for-1’ mechanism.

“[The EU-Turkey agreement] is a far cry from Angela Merkel’s open borders policy of the summer of 2015”

As explicitly stated in the EU-Turkey statement, these measures are ‘temporary and extraordinary’ (although it is not clear how ‘temporary’ they will be), justified –‘to end the human suffering and restore public order’– and can only take place ‘in full accordance with EU and international law, thus excluding any kind of collective expulsion. All migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement’.

The deal is, then, about exceptional and temporary mechanisms to try to halt an emergency and a humanitarian crisis. It is also a far cry from Angela Merkel’s open borders policy of the summer of 2015, and somehow marks the EU’s political turning point on the refugee crisis than started with the dramatic appeal by President Tusk in Athens, ‘Do not come to Europe. Do not believe the smugglers. Do not risk your lives and your money. It is all for nothing’, while trying to reach a consensus between the Member states and the Turkish at the Leaders meeting of 7 March.

The announcement came shortly after the European Council of February demanded a stop to the ‘wave-through approach’ and the approval of the joint statement by nine Western Balkan Countries, on an Austrian initiative, that, de facto, closed the Western Balkan route and left Greece as a ‘warehouse of souls’ (in Prime Minister Alexis Tsipras’ emotive expression): as of 31 March, more than 50,000 migrants were stranded in Greece, most of them along the border with Macedonia. The ‘closing’ of the Aegean Sea route by virtue of the EU-Turkey agreement is also implicitly reiterating the measures taken along the Western Balkans route and may lead to the emergence of alternative routes via the Black Sea or Albania, as well as to the renewed use of existing routes, namely from Libya into Italy.

However, even if the agreement’s legality can be saved at face value, its ultimate success is most uncertain and much depends on fulfilling Herculean implementation tasks (in the words of President Juncker) on extremely short deadlines while many political, ethical, logistic, legal and practical questions remain unanswered.

At present, never has the devil been so much in the detail. Athens transferred persons that were staying in the islands and are not covered by the agreement (who arrived before the 20 March) to the mainland in order to ‘distinguish’ between the two groups. They form part of the 51,000 people remaining in Greece who, according to EU law, will either have to be sent back to their countries of origin, if they are illegal migrants, or have their asylum claims examined. However, there is no known plan about how the Greek authorities are going to deal with them. Meanwhile, several NGOs and the UNHCR suspended some of their activities in the Greek islands in protest, while hotspots started to be adapted from ‘registration and screening’ to ‘implementing returns to Turkey’, which includes increasing detention capacity in the facilities.

Particularly important will be the practical implementation of the controversial return of ‘all irregular migrants’, in due respect for EU law. It is almost certain that decisions of inadmissibility on the basis of Turkey being a ‘safe third country’ as defined in the Asylum Procedures Directive (APD) will be referred by Greek courts to the Court of Justice. Complaints to the European Court of Human Rights are not off the horizon either.

“The Turks, in exchange […], obtained the (re)opening of the negotiating chapters for EU accession, speeding up visa liberalisation by four months”

The objective of proceeding to accelerate smooth returns is obviously challenged by procedural safeguards such as the right to an individual process examination, the access to effective remedy and the corresponding right to remain in Greece until the expiration of the time limit for an appeal or pending a decision. It will also be interesting to see how the Greek courts interpret the possibilities of using the fast-track procedures foreseen in the APD.

The Turks, in exchange for accepting the readmission of irregular migrants from Greece, obtained the (re-)opening of the negotiating chapters for EU accession (albeit in a much less ambitious form than originally requested), speeding up visa liberalisation by four months, to be concluded by the end of June, and additional financial support. Any delays in granting visa-free travel to Turkey due to the growing reluctance in certain Member States and in the European Parliament would, most certainly, have a negative impact on the agreement’s implementation. The Commission is struggling between sticking to the strict fulfilment of the benchmarks listed in the visa liberalisation roadmap and the political pressure to accelerate the process. The credibility of the whole visa liberalisation mechanism is at stake. Other countries on the EU’s periphery (Ukraine, Morocco and Cape Verde) are watching events closely.

The positive aspect is that the fulfilment of those benchmarks would help Turkey to enhance its asylum system, which in addition to certain measures already taken as to the Syrians’ legal protection, could eventually help to dispel some well-founded doubts on Turkey’s capacity to fulfil its part of the returning mechanism and protect resettled migrants in accordance with international standards.

“We are demanding that Greece deal simultaneously with thousands of persons remaining on its territory and implement and manage the ‘new’ hotspots with their renewed capacities”

Legal questions aside, it must be recalled that the point of departure is a very deficient Greek asylum system, as proved by the Strasbourg Court’s ban on other countries sending asylum seekers back to Greece since 2011. Even with considerable amounts of financial support via EU Humanitarian Aid and Civil Protection (ECHO), we are demanding that Greece deal simultaneously with thousands of persons remaining on its territory and implement and manage the ‘new’ hotspots with their renewed capacities to send people back to Turkey. Additionally, with a poor record of Member States reacting to EU calls, the foreseen support of providing Greece with up to 4,000 experts, as estimated by the Commission, does not look promising. Indeed, they are arriving slowly according to the Commission’s implementation fact sheet. In a tired country, strangled by austerity policies and with poor organisational traditions it can be really too much to ask, even if we are talking about the land of Hercules.

Against such a background and with a voluntary-based agreement, the only chance for it to work lies in the Member States’ willingness and solidarity. The same applies to the resettlements under the ‘1:1’ scheme.

The measure is not as legally complex as the returning mechanism but requires an even sounder logistical framework and a stronger commitment and solidarity from the Member States to offer up to a limit of 72,000 Syrian resettlement pledges. Again, we must also not forget that the legal and infrastructure asylum capacities still vary widely among Member States. Some countries simply have not developed national asylum capacities and the Commission recently issued infringement proceedings against nine Member States, including Germany and France, for the non-transposition of several directives of the Common European Asylum System. Even before the Brussels terrorist attacks, some countries were very reluctant to take part in the decisions to relocate 160,000 people in the first place. Linking refugees to investigations of terrorist attacks and invoking the need for security checks, as Poland did, undermines the already insignificant resettlement implementation rate.

The future of the mechanism is linked to the number of returns. If returns hit the 72,000 threshold or the levels of irregular migration halt, the EU will move to a voluntary humanitarian admission scheme. If it rises beyond that number, this would mean that Turkey is most likely not complying with its part of the deal on border controls and the agreement will be ‘discontinued’.

It is too soon to ascertain the effects of the measure on migrant inflows, but prospects are not optimistic as persons continue to arrive daily in Greece. Not to mention the priority given in the agreement to relocate Syrians that, in practice, means that we are forgetting others in need of protection, such as Afghans and Iraqis. Therefore, even if numbers decline, it is likely that non-Syrians in particular will seek alternative routes.

Thus, the question is: are these the right herculean tasks to overcome such Olympic challenges? Or are we misinterpreting the signs once more and not understanding that structural, non-transitory challenges cannot be overcome with exceptional, transitory actions, however difficult they may be to implement?

Patricia Lisa
Elcano Royal Institute

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<![CDATA[ Stormy months on the Aegean: the refugee deal and its impact on Turkey-EU relations ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/ari27-2016-toygur-ozsoz-stormy-months-aegean-refugee-deal-impact-turkey-eu-relations 2016-03-15T11:47:32Z The refugee deal of 2015, followed by the opening up of a negotiation chapter, has revitalised the relations between Turkey and the EU; however, there are crucial points to bear in mind for future relations to be sustained. ]]> Theme

The refugee deal of 2015, followed by the opening up of a negotiation chapter, has revitalised the relations between Turkey and the EU; however, there are crucial points to bear in mind for future relations to be sustained.

Summary

The relations between Turkey and the EU have been unexpectedly revitalised by the refugee crisis, which has served as a wake-up call for the EU on the importance of maintaining dialogue with Turkey. However, the timing of the refugee agreement between Turkey and the EU is questionable given the former’s domestic circumstances. In 2015, the Turkish government tried to use the deal in general, and German Chancellor Angela Merkel’s visit in particular, for electoral leverage before the country’s critical elections on 1 November. Even if the hope of revisiting accession negotiations was desirable to both parties, the path taken is far from ideal. Not publishing the 2015 Progress Report on time because of the ‘secret’ request of the Turkish government to delay it has been the icing on the cake. In addition to certain details of the refugee deal, the lack of transparency regarding the distribution of the promised EU funds has been criticised. It is very clear that the optimum solution for refugees deserves a more complex policy and a sharing of responsibilities. However, the last Turkey-EU summit on 7 March proved that there is no long-term plan whatsoever, since what is on the table is hard-core bargaining, which is even being referred to as outright ‘horse trading’ by some media outlets. It looks like Turkey is trying to convert the crisis into an opportunity both internationally and nationally, while the EU leaders have differing concerns that might lead them to accept ‘anything’ to get away with minimal damage, and possibly to save Schengen or influence the forthcoming elections.

Analysis

Turkey-EU relations: breaking the routine, as usual

Behind closed doors, Turkish and EU officials have been working on a draft plan for refugees for months. Over this period, advocates from both the EU and Turkey have embarked upon a marketing tour to promote the plan, starting with high-level EU officials visiting Turkey, together with EU Council President Donald Tusk, Commission President Jean-Claude Juncker and three Commissioners, including Johannes Hahn, responsible for European Neighbourhood Policy and Enlargement Negotiations. Then came President Recep Tayyip Erdoğan’s visit to Brussels and the warm welcome he received from the EU’s leaders. Last but not least, two and a half years after her previous visit to Turkey, German Chancellor Angela Merkel went to Istanbul to meet President Erdoğan and the Prime Minister, Ahmet Davutoğlu, also twice, in order to convince Turkey to accept the refugee deal. Just two weeks before the critical elections, and only days after the bombings in Ankara that killed over 100 people at a peace rally, the EU promised a set of gifts for Turkey in return for it playing a more active role in preventing the refugee crisis from overflowing onto European territory –a role that could be summarised as merely containing refugees on Turkish soil–.

To be more specific, all of the following promises were on the table for the first part of the bargaining process, which will be surprisingly raised afterwards in March 2016:

  • Speeding up the previously negotiated free-movement deal for Turkish citizens within the Schengen Area.
  • Opening up new chapters in the negotiation process, namely on energy, economic and monetary policies, judiciary and fundamental rights, justice, freedoms and security, education and culture, and foreign, security and defence policies.
  • An invitation for Turkey to participate in EU summits as a candidate country.
  • The provision of new funds to help tackle the migration crisis, which will not be taken from the EU’s Turkey allowance.
  • A proposal for an initiative to recognise Turkey as a ‘safe third country’.
  • Better cooperation in the fight against illegal migration and terror.

Added to this, Brussels and Ankara also agreed on a certain ‘hidden agenda,’ the contents of which surfaced during the delay of the publication of the European Commission’s Turkey’s 18th Progress Report that was supposed to be published in mid-October. Rumour has it that the delay had been Turkey’s ‘secret’ request to the EU, since the government did not want to face outright criticism just before the elections, especially on fundamental rights, the judiciary and freedom of expression. All in all, the situation was, once again, a break in the routine of the long history of Turkey’s relations with Europe.

Following the first Turkey-EU Summit on November 2015, the refugee crisis has not lost speed since there has been no settlement in Syria. With the rising number of refugees crossing the Aegean in January and February 2016, the EU’s leaders decided to meet Turkey once again after four months on 7 March 2016 in Brussels. With Merkel’s ‘allocation plan’ failing in Europe, the EU once again found itself on the card table to deal with the possible refugee flows from Turkey, since with spring coming, many more people were expected to move towards to Europe.

More than a promise: Turkey-EU leaders’ summits

The unexpected pace of Turkey-EU relations first reached full speed on 29 November 2015, when the EU’s leaders and the Turkish leadership led by Prime Minister Davutoğlu met in Brussels for the Turkey-EU Leaders’ Summit. The Summit acted as a platform for both sides to formalise promises made to one another. The Declaration announced at the end of the November Summit focused on four specific points:

  • Opening up Chapter 17 for negotiations on 15 December 2015.
  • Speeding up the visa liberalisation dialogue to a set date in October 2016.
  • Establishing a joint mechanism and signing the agreement on 17 December 2015 to fight against illegal and irregular migration with an annual budget of €3 billion.
  • Organising similar summits twice a year on a more systematic and institutional basis.

Apart from these steps, the two sides also agreed to establish the mechanism on High-Level Economic Cooperation, to speed up the Energy Dialogue, to contribute to the peace process on the Cyprus issue and to work more intensely on the revision of the 20-year-old Customs Union between Turkey and the EU.

The partnership, which can also be seen as an alternative view of the ‘privileged partnership’, a concept that has been on the table for Turkey before, has been generally welcomed by most actors on both sides; however, criticism has also emerged. The latter has centred on three points.

First, the timing of the close cooperation was a poor choice on the EU’s part. While in the Progress Report Turkey is said to be violating the rule of law and basic human rights, including an incredibly alarming situation in eastern Turkey, the EU should not be seen to be reaching out to such an illiberal country. However, it is also incredibly important that the EU does not lose its leverage on Turkey, especially when it is in such dire circumstances. Secondly, the refugee crisis is a much larger international problem, quite beyond a single country to handle alone. The agreement, focusing predominantly on Turkey, can only resemble a small bandage over a colossal wound. Lastly, the agreement does not point towards credible and feasible targets, so the result is still up for debate, which may end up deteriorating the bilateral relations.

The second get-together happened months after the first one. With Turkey unable to stop the refugee flow, with the aim of slowing it down the EU leaders decided to meet once again with Turkey in March 2016. By then, Merkel’s notorious ‘reallocation plan’ had also failed, with some member states accepting very limited numbers of Syrians in their countries. The alternative Merkel-Samson plan proposed by the European Stability Initiative (ESI),1 which assumed close cooperation between Greece and Turkey, was also subject to criticism. According to an official statement made after the summit, ‘Turkey confirmed its commitment to implementing the bilateral Greek-Turkish readmission agreement to accept the rapid return of all migrants not in need of international protection crossing from Turkey into Greece and to take back all irregular migrants apprehended on Turkish waters’.2 This statement means that the result of the summit is closer to the Merkel-Samson plan, which is a quicker solution, compared with having to convince 28 member states.

Developments before the second Turkey-EU Leaders’ Summit are also important. Italy objected to contributing a €3 billion fund to Turkey and Matteo Renzi needed to be convinced by Germany. Greece granted Turkey the status of ‘safe third country’ and with this a major problem in the Turkey-Greece readmission agreement was solved. This is also an important step for the Turkey-EU readmission agreement, without the EU being criticised since the status is open to discussion regarding the internal situation in the country. Days before the second Summit, the European Commission published its second assessment report on visa-free dialogue for Turkey, with an emphasis on Turkey improving its fulfilment with 72 criteria for the visa roadmap. The Commission even released a small portion of the fund to be allocated, as a gesture, days before the second Summit in Brussels. On the eve of the summit, Merkel and Davutoğlu held an hours’ long meeting, which could be defined as the pre-bargaining process for a Turco-German plan.

The timing of the second Summit could not have been any better for Turkey. A day before the Turkish Prime Minister, Davutoğlu, met the Greek Prime Minister, Tsipras, in İzmir, there were long hours of debate in Brussels. The end was again a new set of promises given by both sides, the draft outline of the plan being: the EU closing the Balkan loop-hole and both sides agreeing on a proposal that for every Syrian refugee returned to Turkey from Greece, a Syrian would be placed in the EU. According to the draft plan that will be discussed further on 17 and 18 March,3 The EU will pay an extra €3 billion to Turkey to guarantee the deal and open up new chapters on the accession talks. In return, visa-free travel for Turkish nationals was rescheduled with a new date, June 2016.

According to the latest issue of the Economist, ‘every element of the arrangement is politically, legally or morally problematic’, but still necessary.4

The refugee deal in detail: what to expect?

While both parties have managed to agree, the question for the EU and for Turkey is whether they are both willing to honestly accelerate bilateral relations or not. This is the key issue, since Turkey-EU relations and the membership process have been in progress for years, with abundant ups and downs. If working on the refugee crisis and fulfilling the EU’s expectations can become a firm incentive instead of a shallow promise for moving ahead with the negotiation, this will be a very important development. However, in the event of the agreement not reaching a positive outcome for both parties, what will become of Turkey’s accession process? Will history judge such a move as nothing more than a meaningless political exchange, trading refugees for political gain, one way or the other? The pattern has been criticised by many different circles both in Turkey and Europe, since it has emerged at a time when the governing party was under criticism for its stance on basic values such as human and minority rights, freedom of expression and the press, and, most importantly, the impartiality of the judiciary process –ie, the very basis for the Copenhagen political criteria–.

Realpolitik should not be the only basis for the action of European leaders. Europe should provide an impetus for improving basic rights and freedoms in Turkey and also seek a humanitarian solution for the refugees. A fair and sustainable deal for refugees requires further attention, not a shallow set of promises when there are already almost 2 million people in Turkey in 2015 according to the UN5 –and many more expected to follow–.

Why open chapters if Turkey cannot close them?

Whether or not the two sides are committed to the refugee agreement, there are serious consequences for the future of Turkey-EU relations, for instance in the EU’s pledge to open new chapters in Turkey’s accession process. Five out of six chapters that are proposed to be opened have been repeatedly blocked by the recalcitrant Cyprus problem. If the EU, especially Germany, can pressure Cyprus into opening the blocked chapters, this could be a step forwards in the negotiation process.6

Speaking about the potential opening up of new chapters, some facts from the past should be borne in mind. Both the EU and Turkey have stressed the urgency of opening new chapters, especially on fundamental rights, justice and energy over several years in the hope that Turkey can patch up its deteriorating image in Europe. Finally, after a two-year stalemate, on 14 December 2015, Chapter 17 on Economic and Monetary Policy was opened. However, the question is: is there any hope that the chapter will be closed? On the 10th anniversary of Turkey-EU membership talks, 15 chapters have been opened with Turkey while only one has been closed, although only provisionally. In order for the EU accession talks to advance, however, chapters must not only be opened but also closed. Yet due to the European Council decision of December 2006, no chapter can be provisionally closed until Turkey fulfils its commitments under the additional protocol to the EU-Turkey association agreement –ie, until it can solve the Cyprus problem–.

Because of this decision, Turkey’s EU membership has been in a deadlock that no one can break but Cyprus: even if chapters are opened and the necessary targets are accomplished, there will be no possibility of closing them without the cooperation of one country. If a solution is reached on the Cyprus issue, Turkey would still need to rework the chapters in order to harmonise them with current EU legislation. Therefore, it would be a very encouraging development to remove the clause that prevents the closing of any chapter provisionally. If this happens, then the promise of advancing in accession negotiations can become a reality.

Opening a parenthesis, developments in Cyprus are promising. For the last year and a half, leaders on both sides seem to be synchronising on finding a lasting solution to the long-lasting Cyprus problem. But nothing is definite because a problem might arise, as in 2004, at the last moment with the Cyprus referendum. Still, there is a positive trend, which might lead to a peacefully united island.

The promise of visa-free travel for Turkish nationals

Another issue brought up in the refugee agreement is the debate over visa-free travel for Turkish nationals, a problem that was supposed to be naturally resolved by 2017 in accordance with Turkey’s progress towards visa liberalisation. The new refugee deal, however, states that the problem will be resolved a year earlier than anticipated, with June 2016 being set as the new target at the latest summit. The point has been the most publicised issue in the deal, since it has been a prime concern for Turkish citizens for over 30 years as visa regulations have a crucial impact on businessmen, Erasmus students and academics participating in EU programmes, in addition to all other travellers.

According to the European Commission’s Schengen Statistics, Turkish nationals rank fifth in the number of applications for C-type Schengen visas (short-term entry) around the world. Research by the Economic Development Foundation (IKV), a prominent Turkish NGO working on Turkey-EU relations, shows that from 2008 to 2014 Turkish nationals have paid, in total, a minimum of €250 million for C-type Schengen visa applications alone. And this does not include fees paid to intermediary agencies and bank commissions or other hidden costs associated with the visa application process.7

The legal fight for visa liberalisation should also be considered one of the most important clauses of the agreement, given the issue’s long history. While Turkish citizens had obtained important legal gains in the EU’s highest judicial organs and within member states’ national courts in the past decades, the results were unproductive. Turkey was pressured into signing the Readmission Agreement with the EU in December 2013, which had largely been negotiated over several years between the parties. With the signing of the readmission agreement, the two parties showed their commitment to solving the so-called visa problem, wherein the rules and the framework of the visa liberalisation process for Turkish citizens were determined and the parties expressed reciprocal commitments towards achieving this. According to the deal, visa facilitation would take place in 2017. With the refugee deal, the date has become closer. It is important to underline that Turkey is the only candidate country for which the visa applies.

€3 billion to Turkey: how?

Another important issue in the Turkey-EU migration deal is the financial assistance to be given to Turkey. At first, the EU declared its readiness to contribute €1 billion to Turkey’s refugee plan using the money from IPA I funds that remained unused. However, after President Erdoğan’s declaration in Brussels that Turkey had already spent over €7.5 billion so far in order to accommodate more than 2 million Syrians in the country, the EU’s leaders reassessed their contributions, resolving to provide €3 billion to Turkey to help tackle the migration crisis. Then, in March the Turkish government doubled the money requirement to €6 billion until 2018. In order to guarantee the agreement’s success, it is thus very important to ensure transparency in receiving and spending the money.

Yet the question still remains: how to use this money? On the one hand, Turkey has insisted on a formula where financial assistance will not be taken from the EU’s Turkey allowance. On the other hand, member states, except Germany and the UK, are reluctant to put their hands into their own pockets. The Greek Prime Minister, Alexis Tspiras, for instance, claimed that under current economic circumstances Greece could not contribute any further to the refugee fund. Frontex figures show that in 2015 850,000 refugees arrived in Europe, with the Greek islands in the Aegean being the most frequently used route on the way to Germany, the primary destination for refugees,8 with most of them entering Europe from Turkey. Such an influx of refugees puts Chancellor Merkel in a difficult position as in her own country she is held personally responsible for guarding the borders. The three State elections on Sunday 13 March showed that the German leader is being penalised while there is a clear rise in support for the anti-immigrant extremist right-wing Alternative für Deutschland (AfD). Merkel’s position on the issue, according to the Economist, is defined as pragmatism at home, power politics within Europe and realpolitik with Turkey.9

Conclusions

In light of the recent EU-Turkey agreement, the big questions still remain unanswered: how to deal with the refugee crisis? What are the best conditions for the refugees? The United Nations High Commission for Refugees (UNHCR) has reported that a record number of people have fled their homes in search of safety around the world. According to data gathered by UNHCR, over the course of 2014 the number of people forcibly displaced during the reporting year swelled to an overwhelming 59.5 million, compared with 51.2 million the previous year. Currently, one in every 122 people on the planet is now either a refugee, internally displaced or seeking asylum.10 The UNHCR also states that if this number were the population of a country, it would be the 24th largest state in the world. With over 2 million Syrians living within its borders, Turkey is today the country hosting the most refugees in the world.

After the EU-Turkey leaders’ summits, there have been important developments. Turkey started to take initiatives to control its borders, mainly in the Aegean Sea. However, it is hard to say they are fully secure right now. The main reason is that Turkey continues its open-door policy in the eastern region, without a proper refugee registration system. Still, things are moving forward, with already agreed measures on the table. The third meeting of the Reform Action Group (RAG), which coordinates future moves to harmonise Turkey’s legislation with EU standards, focused on this issue. At the meeting, EU membership was claimed to be one of the main driving forces behind Turkey’s reform process,11 and special measures were included in the Government Action Plan. Above all, the necessary steps towards visa-free travel to the Schengen area were prioritised with an agreed timetable to fully comply with the criteria by June 2016. Is this agenda realistic? Time will tell.

In the meantime, on December 15, the European Commission announced the establishment of a European Border and Coastal Guard to meet the new challenges.12 The new Agency will replace Frontex and monitor the Union’s external borders, have a pool of European border guards and the right to intervene when necessary. The Agency will also have a new mandate to send liaison officers and launch joint operations with neighbouring third countries, including operating on their territory.13 The latest statement of the EU Heads of State and Government indicates that Frontex will launch an additional call for national guest officers. In addition to EU forces, NATO has been involved in the Aegean Sea to help fighting human trafficking.

Such figures clearly show the magnitude of the problem, as well as the fact that the crisis requires a global solution rather than a national or regional one. In addition, with the impact of climate change there will be further migration flows in the near future. Given the ever-greater number of refugees, it will thus be impossible for Turkey or for the EU to tackle the problem alone.

One of the deal’s most urgent requirements is for Turkey to define the status of refugee within its borders. The Turkish government does not have the necessary registration system in place to classify such people. Commissioner Hahn defined the difference between refugees and immigrants and explained how they will be treated accordingly.14 For this reason, it is very important to define the status of refugees and register them. The magnitude of the problem requires an international and systematic solution. Should this not be the case and if related bodies try to solve it with their national/international popular image or public opinion as their main concern, the situation will become even more tragic in the near future.

Finally, it is important to bear in mind that refugee flows deserve further attention in Europe considering the use made of the issue by extreme right-wing political parties to stir up ultranationalist sentiments. All over Europe, anti-immigrant feelings have been emerging and becoming a very significant topic that could define the continent’s future. The issues related to the Schengen agreement and its violation have proved to be important. If no action is taken, anti-immigrant populism can shake European integration to its core.

İlke Toygür
Universidad Autónoma de Madrid (UAM) & Istanbul Policy Center (IPC)
| @ilketoygur

Melih Özsöz
EU Affairs Analyst
| @melihozsoz


1 For more information regarding the plan see The Merkel-Samsom Plan – A proposal for the Syrian refugee crisis.

4 For the full text, see ‘A messy but necessary deal’.

6 For further information on accession negotiations and the Cyprus problem see William Chislett (2015), ‘Turkey’s 10 years of EU accession negotiations: no end in sight’, Working Paper, nr 14/2015, Elcano Royal Institute, Madrid.

8 For further information see Migratory routes map, Frontex.

9 For the full article see the Economist at ‘Refugee realpolitik’.

10 See the UN Refugee Agency website for a more detailed analysis.

13 For more information see A European border and coast guard.

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<![CDATA[ Schengen: a collective asset no one stands up for ]]> http://www.realinstitutoelcano.org/wps/portal/rielcano_en/contenido?WCM_GLOBAL_CONTEXT=/elcano/elcano_in/zonas_in/commentary-gonzalezenriquez-schengen-collective-asset-no-one-stands-up-for 2016-03-09T11:57:59Z Schengen is the main collective asset that the EU has produced, along with the euro and the common market. However, it is currently in grave jeopardy of disappearing as far as its land borders are concerned. ]]> Original version in Spanish: Schengen: un bien colectivo que nadie defiende

Collective assets –such things as a clean environment, security, public health and the regulation of traffic on the roads– face a quandary that has been well studied by political science and economics: though everyone, or a vast majority at least, enjoy their benefits, their maintenance requires an individual expenditure, whether economic via taxes or behavioural in terms of complying with norms that would not invariably constitute an individual’s first choice. In the absence of a minimal degree of individual commitment from the majority, the collective asset founders and disappears. If the majority of drivers ignored traffic lights, if the majority of individuals failed to pay taxes, if nobody bothered to take their domestic waste to the nearest collection point or if the majority gave free rein to their instincts when reacting to people who annoy them, we would not enjoy security or orderly traffic or public health and hygiene. But there are always ‘free-riders’ who assume that others will abide by the rules while they enjoy the fruits of such collective assets for free.

“The proposal [from the Netherlands of a mini-Schengen] seems still-born before it has been formalised, because such a group would have to share the same policy vis-à-vis refugees”

Schengen is the main collective asset that the EU has produced, along with the euro and the common market. This is not only objectively but also symbolically the case. Surveys show that Schengen and the euro are the two elements that the European public rate as the EU’s most valuable achievements, the ones that generate most support for the European project. Schengen is currently in jeopardy, however, in grave jeopardy of disappearing as far as its land borders are concerned. European leaders such as Juncker, Hollande and Merkel do not tire of reiterating that the danger is real and that the disappearance of Schengen is moreover a threat to the common market and, over the longer term, to the euro.

Some months ago, when the first border closures took place in the East in the summer of 2015, the majority of observers thought the closures would trigger a concerted reaction from the EU to prevent the phenomenon from extending. Because, we reasoned, Schengen is too valuable for the EU to allow it to die. What we have seen, however, is that the closing of borders continues to spread and is having a domino effect. It comes as the result of the rise in the number of migrants and refugees that continue arriving and has meant that even Sweden, the country that has traditionally been most generous in granting asylum, has been overwhelmed and has closed its border with Denmark, which, as a result, has closed its border with Germany. Germany, in turn, is controlling inflows through its border with Austria, which is doing the same with Slovenia; while France, stemming from the state of emergency announced in the wake of the November 2015 attacks, has reintroduced controls at all its land and air borders, and Belgium too has suspended the free movement through its frontier with France to prevent the migrants now expelled from the camps in Pas de Calais from entering Belgian territory. Norway, which is a signatory to the Schengen Treaty, has taken matters into its own hands on its southern border. As freedom of movement within the EU went into clear retreat, the Dutch government proposed at the end of 2015 the creation of a mini-Schengen comprising just Germany, Austria, the Netherlands, Belgium and Luxembourg, to which Berlin suggested adding France, a mini-Schengen that would be isolated from the EU’s exterior southern borders. Apart from the fact that the proposal would constitute the final hammer-blow to trust between excluded States and those on the inside, and by extension the EU as a whole, the proposal seems still-born before it has been formalised because the group concerned would have to share the same policy vis-à-vis refugees and France has already stated that it will not accept any more, thereby placing itself in opposition to Merkel, who continues backing an open doors policy.

“The European Commission calculated in January that the restoration of border controls within the Schengen zone had already cost the EU’s economy €3 billion”

Meanwhile, the Commission calculated in January that the restoration of border controls within the Schengen zone had already cost the EU’s economy €3 billion, primarily due to the slowdown in road-borne international trade. But much more important than this figure is the risk that Germany will eventually apply such controls to all its borders, with a post-Merkel government determined to prevent an increase in the arrival of refugees –a political scenario that gains credibility in the context of the data emerging from German opinion polls–.

The recent extraordinary European Council meeting should have produced a response to this crisis, alongside the offer to the UK to avert Brexit, but while it made progress on the latter, it made no headway whatsoever on the former. Observers were left open-mouthed at the lack of reaction from the majority of States: they are not honouring what they agreed to. They are not sending the experts needed to ensure the functioning of the hotspots in Italy and Greece, without which the reception, registration, distribution and return mechanism is impossible, nor are they sending personnel and resources to Frontex, nor are they contributing the funds they promised to Turkey; rather, they erect all possible obstacles to prevent the acceptance of refugee quotas. Many seem to believe they can emerge from the crisis behaving like free-riders: in other words, hoping it will be others contributing to the solution.

It is paradoxical that it is precisely the countries of the East –those that have most benefitted from freedom of movement within the EU and the resulting high number of economic migrants that have gone to the West– that are doing least to sustain Schengen. At the Council meeting they fought to limit the restrictions that the UK wanted to impose on EU migrants’ social rights in the UK, and to a large extent they were successful. With their ‘No to everything’ stance on the refugee crisis, however, they have opened a wide rift and they are rendering a united European solution impossible. The countries that formerly belonged to the Soviet bloc never experienced immigration on a large scale, never took in refugees and have never lived with a population of Muslims; they have a highly negative perception of the latter, which means their citizens are extremely resistant to accepting asylum-seekers from Arab countries. In this aspect of political culture, as in certain others, post-communist Europe clearly differs from Western Europe. Even their limited experience of political asylum in the recent past (the Poles who left their homeland in the 1980s) reinforces their scepticism: most of them used the refuge they found in the West, above all in Germany, as a path to economic betterment, while those that opposed the authoritarian regime stayed behind and mobilised themselves. This is why many of them now see the current wave of immigration as fraudulent.

But the East is not the only problem. Juncker has frequently expressed his anger at the slowness with which the States in general are responding to their duties and commitments. What else is needed to make them react? Possibly that the worst case scenario starts to materialise, with Germany too signing up to this ‘all against all’ approach and restoring border controls. It is a truism to say that the EU only makes progress when it is hit by crises. In this case, how much worse does the crisis need to get?

Carmen González-Enríquez
Senior analyst on International Demography, Population and Migration at the Elcano Royal Institute
| @rielcano

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