A contemporary reading of the border system in europe: an inhumane cost
Rapporteur: Iker Barbero González
Lecturer at the University of the Basque Country and the main researcher of the IUSFUNDIE.EU (EHU-US 20/15) Project.
A Bleak (border) Panorama.
An entry in the blog “Fortress Europe”, written by the Italian activist Gabriele Del Grande, is entitled “A Cemetery called the Mediterranean”; and this is no exaggeration. Although the figures for the number of people who have died in the attempt to reach Europe are lower than in reality (as it is impossible to know precisely the exact total, due to the extremely high number of disappearances and deaths that will never be counted), the approximate figures that one source or another publishes already amount to a drama in themselves. According to Del Grande, from 1988 to February 2016, 27,382 people have died, of whom 3,507 correspond to 2014 and 4,273 to 2015. However this figure increases to over 5,000 in 2016, as the deadliest year. And according to the IOM project Missing Migrants, in June 2017, 1,985 have already died (from a total of 2,700 on borders worldwide). The Mediterranean Sea, a channel for maritime communication and trade for centuries, as the final ‘natural’ frontier with Africa and the Middle East, has become an immense mass grave.
These people, who risk their lives in boats, on roads or in deserts, are escaping from wars, famine, persecution or ecological disasters. These are people whose life process has been broken and their only option is to migrate to areas that are either safer or where there are higher expectations of progress. And those who are the most affected are young people who do have aspirations. This is why it is necessary to add to this situation, the plight of many children who are defenceless, the victims of sex traffickers, and those who are alone, either because they left their homes unaccompanied or because they became orphans along the way. One in every four children seeking asylum in Europe, whether fleeing from wars or catastrophes is alone, according to Eurostat. The figure has risen sharply and dramatically and it quadrupled in 2015 alone. Over 25,800 unaccompanied children reached the Italian coast after crossing the Mediterranean in 2016, according to UNICEF. Many others remained trapped in the Balkans and in Greece, according to the international organisation Save the Children, highlighting “the terrible situation and the degrading conditions” suffered by the children. Several hundred die every year by seeking to cross the Mediterranean with their families or alone. In short, a total violation of the rights of children.
And the European institutional response to the thousands of migrants and refugees who have to risk their lives crossing seas, rivers, mountains or deserts is “Do not come”. This was the statement made in 2016 by the President of the European Council, Donald Tusk who commented on Twitter, stating “Don’t come to Europe. Don’t believe smugglers. No European country will be a country of transit” The EU, far from its values empathy, freedom and justice, is immersed in a policy of border closure, security and selfishness. The rise of extremism and xenophobic discourse, has led to European leaders flying the flag of the “hard hand” against immigration, lowering the accepted levels of what is politically and ethically tolerable (these are the responsibility of opinion and electoral polls).
Giving a total figure of 28,000 or 29,000 deaths has no other purpose than to state that the current system of borders in the European Union is inhumane. It is no longer a question of political debates about which border model is the most appropriate for an acceptable economic or welfare system, it is rather a debate on the ethical and legal responsibilities with respect to the causes of these atrocities. The answer is simple: the EU border system and its consequences.
In order to focus on the EU border system, it is necessary to go back to the Constitutive Treaty of Rome (1957) and to the “compensatory measures” demanded by the Member States following the creation of the common area of freedom of movement for goods, capital and services, And the consequent (supposed) eradication of internal borders. I am referring here to the creation of the TREVI Group (the acronym for Terrorism, Radicalism, Extremism and International Violence) in 1976, as well as to the ad hoc committee on immigration in 1986, which was tasked with updating the external border posts system, coordinating visa policies and combating counterfeiting, and to the Schengen Border Code of 1985 and 1990, to Frontex and its operations Mos Maiorum, Indalo, Minerva, Sophia, et ., to the Eurosur Border Surveillance System, to Return Directive 115/2008; To the SIS I and II databases, Eurodac, and to endless devices for the control of human mobility both to and within the EU.
Although it should also be noted that on these border areas, not only do the institutional agents of the renewed European Border and Coast Guard Agency Frontex or the police forces of the Member States operate, but also that the number of actors has multiplied, with respect to police officers from third states, who are entrusted with exit control and rescue operations, in addition to private business actors who are responsible for providing technology, devices and knowledge in exchange for large amounts of money, not to mention, people-smugglers, and opportunists who stalk migrants and profit by offering an endless list of services such as false papers, life jackets or a seat on a boat or a refrigerated truck.
Due to all of the above, in this text, without the desire to make a comprehensive compilation of rules, facts and data, although with a willingness to offer arguments on the violation of rights across multiple borders, I will refer to this control system from a kaleidoscopic perspective on the concept of what constitutes a border, in the steps of Etienne Balibar, in Violencias, Identidades y Civilidad (Violence, Identities and Civility) (2005). To this author, the border possesses a heterogeneous character: “Under no circumstances should certain frontiers have been located at the borders in the geographic-political-administrative sense of the term, but should reside elsewhere, wherever selective controls are undertaken.”
In order to manage or rather control and combat irregular immigration destined for the countries of the North, selective administrative, instrumental and personal mechanisms are established, which are located at different points on the migratory path. On the one hand, the border of a nation state, and in the case at hand, the external borders of the supranational European entity, represent the most paradigmatic example of border control. In addition, the strategy that has been most rigorously configured is that of transferring control wherever the migratory process begins, or at least anticipate intervention before it arrives at the external border. This is what has been termed the externalization of borders. Thirdly, and following Balibar’s logic of locating the border wherever a control point has been established, one must also consider the internal borders. Despite the process of elimination of internal controls proposed and implemented by Schengen, the reality is that different internal mechanisms are established to detect, retain and expel those who have not been admitted or who have exceeded the time authorized to them. While the first two examples possess the function of selective containment, internal borders, as we will see below, serve a dual function, largely that of locating irregular persons and expelling them, but they also have another mission that is, as Terray says, “to keep illegal persons in terror of being arrested, to force them to hide, to walk hugging the walls, and not to make noise “.
When immigrants and refugees come knocking at the door: damaging external borders.
According to the European Council, the EU has some 7,400 km of external land borders and 57,800 km of external maritime borders and coasts, in addition to the hundreds of airports that receive international flights (from outside the EU/Schengen area), which constitute the external air borders. In 2015, according to the Eurostat report published in June 2016, approximately 298,000 non-EU citizens were rejected at one of the external borders. More than two-thirds of these denials were enumerated by Spain (168,345), and took place mainly in Ceuta and Melilla, while the other main countries which denied entry were Poland (30,245), Hungary (11,385), Croatia (6,680) and Greece (5,790). Taking into account that the external borders are diverse in nature, 81% of refusals occurred at land borders, 16% at air borders and 3% at sea borders. In this respect, the United Kingdom and Italy reported the largest number of denials at sea borders (3,215 and 2,760, respectively) for 2015. The main nationalities to see their access at external borders denied were Morocco (164,885), Ukraine (24,485), Albania (16,910), Russia (10,715) and Serbia (7,775). Moroccans were refused entry mainly at the land border with Spain, Russians and Ukrainians at the land border with Poland, and the Serbs at the land borders of Hungary and Croatia. Albanians were mainly denied entry at the Greek, Hungarian, Croatian and Slovenian borders, as well as at Italian maritime and air borders.
For its part, Frontex counted 104,060 irregular crossings in 2010 and 282,933 in 2014. In 2016, the figure rose to 511,371. Despite the fact that in the latter part of 2016 (Q4 Repport Frontex) these crossings have fallen by 93% as a result of the closure of the Balkan corridor and the implementation of the EU-Turkey Agreement. However increased attempts at crossing are being made in the Central (Italy) and Western (Spain) Mediterranean. The data on the illegal crossing of borders offered by this agency, which is published every four months, reveals that the attempt to close routes leads directly to alternative routes being sought.
This land border perimeter is being fortified as far as it extends. Perhaps the most paradigmatic example of this hyper-fortification process is that of the Spanish postcolonial enclaves of Ceuta and Melilla. The fences (with a length of 8.2 km and 12 km respectively) that form these external border devices were first constructed in the 1990s, with the entry of Spain into Schengen Territory. In 1999, 2.5 meters of wire fence were replaced by galvanized steel, which was reinforced with hawthorn wire to a height of 3.10 meters and at a cost of 5,680 million pesetas. During the intense attempts to cross, in 2005 (in which 13 people died as a result of the police response), the device consisted of parallel fences of 3 to 6 meters in height with sharp wire, and designed to provide motor vehicle transit along the border perimeter, in addition to helicopter landing facilities, watchtowers, one hundred surveillance cameras, microphones and 24-hour volumetric motion sensors, high intensity searchlights. All of is this managed by almost 2,000 police and civil guards who were hired for the surveillance of Melilla and Ceuta (European Commission, 2005). Its cost was almost 50 million euros, and it was largely financed by the European Union as part of the border “Europeanization” policy. Since 2006, and under the auspices of Frontex, the fences were elevated to a height of 6 meters along their entire length, although without cutting elements but with more effective means to hinder crossing, with the construction of a third fence. This fence, or “three-dimensional wire”, whose cost came to 20 million euros, is aimed at preventing climbing or the use of ladders, by leaning the fence about ten degrees towards the Moroccan side. The cost of installation and maintenance between 2005 and 2013, both inclusive, according to a government reply to a parliamentary question on September 8, 2014, was 47,927,961.76 euros in the case of Melilla and 24,669,835.90 euros in that of Ceuta.
The case of Abdoulaye Mara, a 22-year-old Malian man, is especially striking. On 11 March 2015, he perched on top of the last barbed wire in the Melilla fence complex, he shouted “I asylum, I asylum “. Once he descended to Spanish soil, and while still requesting asylum, he was handcuffed by members of the Civil Guard and handed over to Moroccan auxiliary forces through one of the gates in the fence. This practice of rejection at the border, or “hot returns”, despite being made legal by Final Disposition 1 of the Organic Law for the Protection of Public Safety that amends Additional Provision 10 of the Organic Law on Aliens, has been considered to be a violation of international human rights laws and of European and state law themselves.
Morocco has also been a major beneficiary of public budgets for the development of border control. In October 2005, European Commission Vice-President Franco Frattini announced that the EU would develop policies to help Morocco combat irregular immigration. This aid was to consist of 45 million Euros, in addition to the deployment of Frontex troops to train Moroccan officers in border control strategies at the borders of Ceuta and Melilla. Morocco has now built a border structure consisting of a moat and a palisade, as well as a fence several meters high, using knife wire. This cutting wire is of the type that was installed on the Spanish fences but which was later removed due to the atrocious wounds it causes and which, however is now being installed on the fences of Hungary, Greece, Serbia, Macedonia, Poland, Romania and Turkey, by European Security Fencing, a company from the Spanish group Mora Salazar. This company invoiced 700,000 euros for the installation of the Melilla fence and 405,000 euros for the Ceuta fence. Hungary and Lithuania are literally building walls several meters high with Russia, Belarus and Serbia, and Croatia respectively, under the justification of the “fight against illegal immigration”. The EU has not been so divided by fences since the fall of the Berlin Wall. The fortification of the borders, and their hyper-securitization is in fact becoming a very lucrative business, as evidenced in the Nuremberg trade fair for the manufacturers of fences, alarms and other security systems.
The main clients are both EU and third states, however financing comes largely from the various funds available to the Union for immigration, security and police and judicial cooperation matters. One clear example of this is the External Borders Fund, which was implemented between 2007 and 2013 and financed with 1,820 million euros. The purpose of this fund was to strengthen cooperation between states in border control, whether by improving facilities and operating systems and identity control systems, or by the harmonization and development of Community legislation both within the states and in the consular offices. This fund was followed by the Internal Security Fund, which was created for the 2014-2020 period, with a total of € 3,800 million for this seven-year period; an increase of slightly more than twice the previous budget. The aim of the fund is to implement the Internal Security Strategy, cooperation on the application of Community rules on visas, police cooperation and the management of the Union’s external borders. All these funds would be part of the Solidarity and Management of Migration Flows Programme, which would also include, to a lesser extent, funds for integration or asylum, but for which, Spanish governments between 2007 and 2013 have purchased military hardware for the “fight against illegal immigration” to the tune of 155.87 million euros. According to the journalistic research project “The Migrant Files”, in recent years the Union has spent 13 million euros, of which 11.3 million have been used to carry out expulsions, 1.6 million has been spent on border control and 6.700 on FRONTEX (1,095 million between 2005 and 2016, with an increase of 6.388% in the last 11 years).
One booming sector is the research and development of programs and patents with applications designed to control human mobility. The ABC4EU (Automated Border Control for the European Union) R&D project, which is aimed at improving automation systems for the border control of passengers at airports announced a funding of 16.8 million euros in 2014. The consortium, led by Indra, consists of 15 partners from European countries. This is essentially what Claire Rodier, the French lawyer of the GISTI (the Information and Support Group for Immigrants) and co-founder of the European network Migreurop, has called “the security economy”, in reference to those companies and organizations that profit from increasingly sophisticated devices used to close borders. This author cites the French company Thalès, Italy’s Finmeccanica, Spain’s Indra, Germany’s Siemens, the French-German EADS and Sweden’s Eriksson, in stiff competition with America’s Boeing and several Israeli companies. At the end of 2010, the OPARUS project was launched, bringing together Sagem, BAE Systems, Thalès, EADS, Dassault Aviation and several others in the development of a common strategy for the use of drones (remote control aircraft) for the surveillance of land and sea borders. However, the most important thing, as Rodier stated in an interview in Diagonal on July 9, 2013, is that “by investing in the market for migratory security, these companies enjoy an ideological climate that has been infiltrated since the beginning of the century in the discourses pronounced by most of the governments in the EU, and by European institutions, and which consists of making immigrants a threat against which it is important to protect ourselves”. The criminalization of migrants has been a fundamental step in the business of industrialised migration control.
For some time now, the hyper-securitization of the EU’s borders has led its institutions, with the European Commission at its head, to develop the idea of ‘smart borders’. In 2008, this institution launched an initiative that included the implementation of automated border gate identification controls, increased pre-assessment measures and new databases. This proposal was supplemented by a second, which consisted of a road map for the development of the European Border Surveillance System: “EUROSUR”. This system (an heir to the Integrated Surveillance System SIVE, which has been used to control the south-western border of Andalusia and the Canary Islands) adds the use of state-of-the-art radars, satellite tracking systems, drones and autonomous systems for the detection of small boats sailing into EU waters.
However, as the study Borderline, the EU’s New Border Surveillance Initiatives Assessing the Costs and Fundamental Rights Implications of EUROSUR and the “Smart Borders” (2012) strongly raises, it is not clear that this system has saving lives as its ultimate goal. The Commission has repeatedly stressed the future role of EUROSUR in the protection and rescue of the lives of migrants, but Borderline states that “nowhere in the proposed regulation, nor in numerous R&D evaluations, studies and projects is there a definition of exactly how this might be done, Nor are there procedures established for what should be done with those rescued. The current circumstances of humanitarian crisis in the Mediterranean are more likely to lead to the use of this system to prevent ships laden with people from arriving at European coasts and if they do arrive, return them; than act in cases of boats adrift, shipwrecked sailors or maritime rescue (as would be required by international maritime law) .The limited assistance provided comes from NGDOs, activists and some maritime rescue services that invest their time, money and efforts in rescuing survivors, and already lifeless bodies. And this work is sometimes criticized, (lifeguards, doctors, firefighters, etc.) who have been detained and prosecuted in various parts of the Mediterranean, after being accused of trafficking in persons or “promoting illegal immigration.”
This deliberately insufficient aid on the high seas is aggravated when it involves certain political bodies abandoning their duty to provide aid. An example of this occurred on 13 October 2013 when, in the wake of a distress call by a Syrian doctor aboard a drifting, leaking boat, Malta and Italy avoided taking responsibility for organising a rescue for five hours, until the boat sank and 268 Syrian migrants died. However, this was not the last case. Following the tragic accident of a fishing vessel on 18 April 2015, in which more than 800 people died off the coast of Libya, an extraordinary session on migration was convened by the EU Council for Foreign Affairs, in which it was decided to tackle the issue of boats in the Mediterranean through military action: Operation Sophia, which is also known as EUNAVFOR MED. Its purpose has been to implement “measures to identify, find and capture vessels and other elements that are used or are suspected of being used by people traffickers.” In other words, instead of focusing their efforts on the rescue of refugees in boats, in order to prevent further deaths, military means have been used to end alleged illegal immigration networks.
This military intervention has not been (nor is it) an isolated fact. Several leading politicians have resorted to the use of different military bodies for the purposes of border control. Spain was a pioneer, when in late September 2005 it deployed some 480 legionnaires and regular soldiers along the border fences of Ceuta and Melilla, in order to stop the various attempts made to cross the frontier barriers. For several months these detachments patrolled the border perimeters, armed with weapons of war. However, it should be remembered that normally the body responsible for border surveillance, on the Spanish side, is the Civil Guard, a police body but of a military character, and on the other side Moroccan auxiliary forces, which are also of a military nature. More recently, and as a result of the arrival of mainly Syrian refugees, many EU countries have used their armies to monitor, guard and reinforce borders. Thus, as detailed in Guerras de frontera. Los fabricantes y vendedores de armas que se benefician de la tragedia de los refugiados en Europa (The Border Wars Report. Manufacturers and Arms Dealers who benefit from the Tragedy of Refugees in Europe), published in 2016 by the Transnational Institute, Stop Wapenhandel and the Delàs Center for Peace Studies, in May 2015, Bulgaria militarized its border with Macedonia. Hungary has passed a law allowing its army to use rubber bullets, tear gas and guns with nets against migrants on its borders; Slovenia, in addition to mobilizing the army, has contracted private security firms to support the border police on its border with Croatia. The Macedonian armed forces used tear gas and stun grenades to arrest migrants and refugees who were seeking to enter the country from Greece. Between 2015 and 2016, Austria deployed five hundred soldiers both on its borders with Slovenia and with Italy, after the closure of the Balkan route. In short, the balance between the reception of migrants and refugees and border control has now taken the latter option, while using one of the greatest expressions of coercive force of the state, the army, as if the issue was one of a military invasion.
“Dirty” control in the hands of others.
In recent years, European policy on border control and the prevention of irregular immigration has opened up a new front, or rather, one that already existed; it has moved the matter beyond the external border: to the countries of origin and to the transit countries that lie outside the walls of Fortress Europe. This is what has been called transnationalization, relocation, or more specifically, the outsourcing of migration control. The aim of this outsourcing of control is threefold. Firstly, it involves curbing irregular immigration by creating a ‘pre-brake’ zone at external borders. Secondly, given the constant uncertainty generated by the “threats” of globalization, the European Union has set itself the task of creating a security perimeter in its adjoining territories in order to prepare itself in terms of reaction and defence. The third aim is to acquire a presence in strategic locations, either for geopolitical issues or for economic interests.
Although at the beginning of the 1990s several pronouncements were made that linked the European policy of controlling irregular immigration with countries of origin or transit countries, the policy of outsourcing border control began to take shape with the controversial Strategic Document on Migration and Asylum Policy. This text, which was drafted in 1998 by the Austrian Presidency of the European Council, sought to transfer in an almost forced manner, a large part of control work to countries of origin. As the text itself states, in order to achieve an integrated approach, “financial assistance should be linked, for example, with visa issues, the attenuation of border controls with readmission guarantees, air links with control regulations at borders, the availability of economic cooperation with effective measures in order to reduce factors of attraction” (1998: 112). Another element of European policy related to the policies of rings, and which places it in the context of the “enemy at the door” is the European Neighbourhood Policy. Launched in 2003 and developed in 2004, the ENP is the instrument through which the EU establishes relations with neighbouring states to “promote economic and social development in transboundary areas; working together to tackle common problems in areas such as the environment, public health and the fight against organized crime; keeping borders efficient and secure; promoting local actions, “from town to town”. The Commission Communication of March 2003 on “A Broader Europe: Relations with Neighbouring Countries: a New Framework for Relations with our Eastern and Southern Neighbours”. The EU offers its neighbours a privileged relationship in exchange for cooperation, especially in matters such as immigration and asylum. As the Migreurop group denounced, neighbouring states receive financial incentives when progress is made in accordance with Community provisions, if not these funds are recouped or eliminated (2009: 37).
As early as February 2000, the readmission clause (Article 13.5.c.ii) was introduced in the Cotonou Agreement 2000-2005 (former Lomé Convention) at the request of one party (the Netherlands) as a requirement for the renewal of the cooperation agreement. Subsequently, in the preparatory sessions of the European Council in Seville in 2002, the Spanish and British representatives suggested suspending cooperation agreements with the countries of origin and transit and even sanctioning those who did not take an active role in the control of their populations. However, due to opposition to this measure by France, Sweden and Finland, the conclusions of the Seville summit did not expressly include the possibility of sanctions, although the final draft did contain the threat that “insufficient collaboration on the part of a country could hinder the intensification of that country’s relations with the Union” (Seville Council of Europe 2002: 11).
A paradigmatic example of development aid that is linked to (or rather conditioned by) immigration management is the first Africa Plan, which was approved by the Spanish Government in May 2006, after the arrival of immigrant rafts on the shores of the Canary Islands from Senegal and Mauritania and the second Africa Plan, for the periods 2009 and 2012. Although these plans were presented with the aim of providing a “global, ambitious and at the same time realistic and determined policy for the sub-Saharan issue” (2006: 6), immigration control is their cornerstone. Prior to 2005, Mauritania and Senegal received less than € 500,000 each in terms of development aid. Although initially this involved material means, such as patrol boats or police agents in cooperation and training missions, from 2006 economic aid began to increase exponentially. This was true especially from 2009, when the Mauritanian authorities received between 10 and 15 million euros per year and the Senegalese government, between 5 and 10 million euros. According to the response of the Spanish Government to a parliamentary question posed by Senator Jon Inarritu of the EH Bildu party. Mauritania has received a total of 108.45 million euros, of which 88.6 million have been earmarked for border control and 19.8 for development aid. In the case of Senegal, Spanish assistance (59.7 million euros in total) has been divided between border control (34.9 million) and development cooperation (24.8 million).
Readmission agreements are one of the counterparts of these development aids (for border control). Two Council recommendations (of 30 November 1994 and 24 July 1995) were the initial rules on which the EU began work on the establishment of a common procedure concerning the guidelines to be followed in the drawing up of protocols on the implementation of readmission agreements. Subsequently, the Laeken Council Conclusions of 2001, and the informal meeting of the Ministers of Justice and Home Affairs of 2002 in Santiago de Compostela the drafting of common procedural rules in the negotiations of readmission agreements was given continued encouragement.
The aim of this type of agreement is not only the repatriation of irregular migrants to their countries of origin, but also to force the countries with which the agreement is signed to also admit third-country nationals who are considered to have entered Community territory through their own. Thus, in both the bilateral agreements and in the return directive itself, migrants are expected to return, not only to their country of origin, but also to a country of transit or to another third country, enabling these countries to then do the same at a later date. The main consequence of this type of provisions is that it is difficult to monitor the fulfilment of guarantees in the implementation processes used in the application of these measures.
Although there are many examples of bilateral readmission agreements signed between Member States and countries of origin or transit, perhaps the most paradigmatic is the agreement signed on 18 March 2016 between the EU and Turkey. Basically, this agreement consists of “accepting the rapid return of all migrants who do not need international protection and who have passed from Turkey to Greece, and to accept all irregular migrants intercepted in Turkish waters” in exchange for “visa liberalization and accession negotiations “and at least 3,000 million euros of the mechanism for refugees in Turkey”. However, both the means, the objectives and the manner in which such an agreement has been developed and materialized cast serious doubts on its legality or compatibility with Community Law. Since its implementation, a number of human rights organizations have documented the conditions under which expulsions or readmissions occur, as well as the lack of procedural guarantees that violate basic rights. What are the criteria that allow some refugees to remain in Greece while others are expelled to Turkey? What are the examination procedures being implemented? What information is being offered to refugees about their rights? What are the effective possibilities for requesting asylum and denial? These were some of the questions posed by the French organization GISTI in its report on the mission to the Greek hotspots in 2016 entitled “The Turkey Agreement. EU: the Great Sham.”
In November 2016, various lawyers and human rights organizations backed the presentation of an appeal to the European Court of Justice (ECJ) against the agreement, based on the violation of fundamental rights, as established in the Charter of Nice, the Community and international right to asylum, the principles and values of the EU, such as life, dignity and freedom of movement, in addition to the regulations of Community treaties on the creation and signing of agreements with third countries. This is not the moment for an in-depth analysis, but what can be appreciated, although briefly, is the violation of various international treaties such as the Geneva Convention, with respect to the return of persons to an unsafe country, as is Turkey, with its 79 condemnations from the European Court of Human Rights in 2015, in addition to European Law itself, with regard to that established for the creation of international treaties (Article 216 et seq. on the Treaty on the Functioning of the European Union TFEU). The appeal was lodged by two Pakistani refugees and one Afghan. The request made to the ECJ in the appeals consisted in calling for the declaration to be made null and void and to detain the forcible return to Turkey of those refugees arriving on Greek coasts, as they are people with the right to asylum in the EU.
The manner in which the ECJ has replied to the appeal has been surprising, if not to say disappointing (Case T-192/16, T-193/16 and T-257/16 NF, NG and NM / European Council) of 28 February 2017: “The EU General Court declares that is does not to possess the capacity to resolve the appeals of three asylum seekers against the EU-Turkey Declaration, which seeks to resolve the migratory crisis” in so far as “this act was not adopted by any of the institutions of the European Union.” In the opinion of this court “there are inaccuracies in the identification of the authors of the ‘EU-Turkey Declaration’ in the press release”, given that it is not clear whether it is the EU or its members who sign the declaration. It is from the evidence presented by the European Council that the court concludes that this agreement / declaration has been signed by the states that comprise the EU, in an international meeting parallel to the European summit, and not by this supranational institutional, the European Council, and which therefore falls outside the area of its jurisdiction.
It is even more surprising that, despite a ruling that disassociates the EU with the agreement, institutional representatives, such as Commission spokesman Margaritis Schinas stated “we remain committed to the implementation of the agreement between the EU and Turkey and, as we have said many times in the past, this involves mutual trust and fulfilment, and we hope that both parties will meet their commitments, as it is in the interest and benefit of both of them, and of the Syrian refugees.”
Recently the EU has once again taken up the idea of extending the model of the Africa Plans and the agreement with Turkey to all those places that are the origin of the migratory flows or the last countries of transit. In June 2016, the European Commission, through a communication on the establishment of a New Partnership Framework with third countries, framed in the European Migration Agenda, promised to mobilize eight thousand million euros over a five-year period (from, among other funds, The Emergency Fund for Africa) to “achieve short and long-term migration management objectives” through “a combination of positive and negative incentives in EU trade and aid development policies, to reward countries willing to collaborate effectively with the EU in the management of migration, and to ensure that there are consequences for those who refuse to do so.”
At the Malta Summit in February 2017, after the meeting of the EU Foreign Affairs Council, the High Representative of the European Union for Foreign Affairs and Security Policy, Federica Mogherini, said at a press conference that the 200 million euro agreement with Libya had been made in order to prevent refugees from moving to EU countries is crucial in preventing deaths at sea, “Our method is to direct the refugee flow. This is not a wall nor is it keeping people away. This is a European method that aims to address a rather complicated issue by giving priority to human rights and the fight against criminal organizations.”
The lives of immigrants and refugees is infernal in countries like Libya or Morocco, and even more so in a detention camp in any of these countries. In an interview with the Spanish newspaper El País on October 19, 2005, a worker from the NGO SOS Racism described how “Moroccan forces began to deport detainees from near Nador, Casablanca and Rabat to Oujda. Several people from these groups, some of whom were asylum seekers, called me, saying that they were being taken south to leave them in the desert (…) when we arrived at Ain Chuater, on the desert border with Algeria, we saw four groups of buses going south. We followed them, believing that they were organizing an even more murderous deportation to the Sahara, because there are many more obstacles there with respect to our own work and that of the journalists. We arrived at Ain Chuater the day they were regrouping to take the Senegalese and Malians to Oujda. From there we stayed in Bir Gandouz [on the border of Western Sahara with Mauritania] in two days at a rate of 2,000 kilometres a day. Now we must continue to look for survivors and dead in the desert.”
Another example is the Regane detention centre in Algeria, a camp whose existence has been confirmed by the Nigerian ambassador in Algiers. It was an improvised structure made in November 2000 by the Algerian government to detain 600 sub-Saharans from a shanty settlement in Magnia (also in Algeria), which is a base point from which to enter into Morocco clandestinely, before attempting to reach Europe. These are people “waiting for repatriation”, and who have arrived via Mali and Niger, both of which refuse to readmit them, despite attempts by the Algerian authorities to return them. The location of these centres coincides with the former secret detention camps made for fundamentalist prisoners in the 1980s. As the camp is crowded, the authorities “clean” the camp at night two or three times a week: they take a dozen detainees and take them into the desert, leaving them 400 kilometres from the border with Mali. “Algiers is holding 600 migrants in a detention camp in the Sahara.” El Periódico, 25 February, 2001. Recently, 41 Syrian refugees, mostly girls, children and women, were abandoned in the no-man’s land between Morocco and Algeria for more than 40 days without any kind of humanitarian aid.
The outsourcing of borders in Libya, according to reports by Doctors Without Frontiers (DWF), has also led to dramatic consequences such as systematic violence, rape, torture, or mental illness as a result of psychological abuse: “In this prison we were beaten every day, they were very, very brutal (…) the people were sick, but there was no hospital, no doctor to look after them. Some died in this prison. I saw two Nigerians die because they had been beaten too harshly (…) Many women were there too, they were all deported.”- Sidi Bilal, 29, Libya.” According to DWF, these detention centres do not meet the minimum standards of hygiene or habitability, which results in refugees suffering from skin diseases, outbreaks of diarrhoea and respiratory and urinary tract infections. As there is no rule regulating them, there is no ruling on maximum detention periods, and all rights to due process or a defence for deprivation of freedom are simply violated.
Although the New Partnership Framework on Migration with Third Countries of June 2016 prioritizes “ending the business model of human traffickers, who seek to exploit migrants for profit, it is essential to address irregular migration, and the best way to do this is to ensure that the borders are safer and better managed, “it is often border officials who illegally benefit from the refugees’ need to cross borders. According to Palestinian artist and director Mohamed Tayeb, who interviewed dozens of Syrians like Khadija on the Moroccan border and in the Temporary Immigrant Stay Centre (CETI) in Melilla to produce the documentary Exile Home “They know that refugees are willing to pay whatever it takes to get to Spain, and they try to take advantage of this, sometimes they raise the price by up to 2,000 euros per person, regardless of age, and then share this money with the Nador Border Police. They simply close their eyes or look away for five or ten seconds until the family reaches the border post with Spain.” These statements are confirmed by the investigation carried out by the Moroccan Judicial Police against border police who are linked to illegal immigration mafia-style
groups in Melilla, and who take some of the money that the Syrian refugees give to these criminal organizations so that they can reach the asylum office in the Spanish city.
In short, the problem with this European outsourcing model (whether we are dealing with Morocco, Libya, Mauritania or Turkey) is that the management of control is left to states, actors and methods that are not always subject to the rules, principles and guarantees that on might suppose a system that abides by the rule of law and democratic apples. In other words, despite the fact that systematic breaches of rights are committed by non-member states, they are directly or indirectly motivated by EU funding, which makes the latter equally responsible for any fatal consequences that may occur.
Once inside, locate and expel (or not).
Recalling what Balibar said about borders and wherever there was a selective control, the term ‘border’ should be used, we must now pay attention to what has been termed the internal border. This refers to those physical and legal mechanisms by which states locate those who have clandestinely entered Schengen territory or who have become “irregular survivors”; they are confined to temporary camps or internment centres and finally they end up being expelled or freed, but with the legal standing of a ‘deportable person’, i.e., a status of non-belonging, of non-citizenship, from which a severe limitation of rights derives, in addition to an existence that entails a precarious daily life marked by the constant threat of deportation. The number of people in this situation is once again impossible to calculate. However, there are official figures available that may be illustrative. According to data from Eurostat data, during 2016, almost one million (983,860) third country nationals have been found living irregularly in the EU, without losing sight of the 2,136,055 in 2015, 669,575 in 2014 or 505,130 in 2010. In the last five years, almost 6 million people have been intercepted who did not possess the relevant documentation within European territory.
The displacement of people from Greece, Italy, Spain or the Balkan countries to the United Kingdom, Germany or Scandinavian countries (what the European authorities have termed “unauthorized secondary movements”) has also led to increased police controls, identity controls and the re-establishment of internal borders between EU countries. Despite the process of eliminating internal borders, the reality is that different internal control mechanisms have been established with the aim of detecting, detaining and expelling those who have entered European territory without permission, or who have exceeded the time they had been allowed to remain therein. These inner controls are mainly implemented through the application of racial profiling, in places such as railway and bus stations, and stigmatised neighbourhoods; places where a high concentration of a certain ethnic group may be expected to be found (international phone centres, markets and mosques, etc.). In late 2010, a joint operation called Hermes was carried out at a European level. The aim of this police operation was to simultaneously coordinate the border agencies of all Member States in order to identify illegal aliens at strategic transport stations. The results of the operation were published by the European Council in the Final Report 17816/10 of 13 December 2010, which stated that between 11 and 17 October 1,900 people were identified as irregulars. As a result of the Rosalind Williams case, an African-American woman who was ordered by the Spanish National Police to identify herself due to her appearance (their actions being made on race-based criteria), the European Commission against Racism and Intolerance (2006 y 2011) and the United Nations Committee for the Elimination of Racial Discrimination (2011) have specifically spoken out on the need to eradicate such policing practices.
In fact, the association of these immigrant movements with various acts of terrorism has increased surveillance and police pressure in certain places and with respect to certain backgrounds. Countries such as Norway, Sweden, Denmark Germany, Austria, France, Malta and Hungary have alleged that threats exist to public safety and public order so as to obtain approval from those Community institutions responsible for authorizing the reintroduction of border controls. However, the trend has been to act unilaterally in order to shortcut the issue and deal with it without delay.
It was mentioned above that several hundred thousand people have been intercepted or detained in EU countries over the last few years, due to their irregular presence in a country. The profile of these people is highly varied, and includes people whose residence permits have expired or who cannot renew them due to the impossible nature of some form of legal requirement (such as lack of work), asylum seekers and persons whose request for protection has been denied, people who, despite having resided in a country for many years, were never able to gain access to a permit, or people who were prevented from entering European territory and are being held at airports or other borders, or in internment centres.
Although they may seem like figures of the past, refugee camps have proliferated in Europe as a result of containment and confinement policies in islands or strategic locations within the EU. Names like Moira Kara-Tepe, Matamados on the Greek island of Lesbos, Vial, Souda, Dipethe on the island of Chios, or Elliniko, Softex, Idomeni and Nea Kavala on mainland Greece. These are just a few examples of camps where thousands of mostly Syrian, Iraqi and Kurdish people fleeing the war – have been crammed together, while awaiting a decision to be made by the European Union to relocate them or deport them to Turkey. Generally, abandoned buildings, stadiums and disused factories, or even fields close to borders, are the places where these camps have been hurriedly put together, sometimes with the connivance or on the direct orders of the Greek authorities, as in the port of Piraeus, in Athens. In all cases, living conditions, especially in the cold and rainy winters, are deplorable.
According to the investigation Life in Limbo: Filling Data Gaps relating to Refugees and Displaced People in Greece, after talking to the refugees who lived in the Greek camps, the main concerns voiced centred on feelings of insecurity and vulnerability, with limited access to water, electricity and poor tents, while overpopulation is the greatest problem for many camps. The Moria reception centre on the Greek island of Lesbos has room for 1,500 people, but estimates speak of 4,000 inhabitants who are held in this camp alone. This idea of overflow is also reflected in the GISTI report on Greek hotspots, although a special reference is made to asylum applications and the impossibility of offering legal assistance in decent conditions: “The associations in Athens are overwhelmed by the high number of human rights violations already have already been suffered by migrants on mainland Greece, not only in Athens, but also in Thessaloniki and Idomeni, on the border with Macedonia.” European asylum regulations and the recent amendment of Greek law have led to over 50,000 people being ‘trapped’ by the closure of the Balkan corridor borders and who must now wait for the ‘pre-registration’ of their asylum request in Greece, in undignified conditions.
Calais is a town on the west coast of France, a few miles from the UK by sea, and once the site of the European refugee camp pour excellence, which has finally been dismantled. For years, thousands of refugees survived in ‘The Jungle’ waiting, after paying thousands of pounds, to cross the English Channel in the bottom of a truck or a container heading into the UK. The meagre humanitarian aid and the precarious self-administered organization meant that the conditions in this camp too, were also deplorable. In 2015, according to An Environmental Health Assessment of the New Migrant Camp in Calais a study undertaken by the University of Birmingham and supported by Doctors Without Frontiers and the Council for Economic and Social Research (ESRC), the camp was in a situation of ‘”humanitarian crisis”, and “below the minimum levels of any refugee camp, “due to overcrowding, insalubriousness, the insecurity of women and children inside, from xenophobic attacks or police harassment on the outside, or the peril of bonfires. In its last year, the French authorities installed about 120 containers destined to provide temporary shelter to a small group of some 50 refugees, although this decision also raised a great deal of criticism. The camp was taken down in the first months of 2016 and its inhabitants were forced out, dispersing throughout France and moving mainly to Paris. Despite this, after the eviction, some refugees stated that “we lived better in the jungle”, given that those infrastructures destined to accommodate those who arrived had been reduced to a few bathrooms, toilets and portable urinals, a few water outlets and a complete disregard with respect to the collection of rubbish and waste. According to Refugee Rights, many organizations denounced the alarming conditions faced by refugees during the winter of 2016-2017. They faced precarious living conditions and a lack of alternatives to this problem, yet also systematic police violence. “The police are constantly waking up people during the night, and forcing them to move from one part of the city to another. They often use force in the process, and resort to tear gas if people do not immediately comply with their orders. Both during the night and during the day, the police remove the blankets and sleeping bags from the streets and throw them away, regardless of the freezing temperatures out in the open. “Despite the European Return Directive, which aimed to harmonize deportation procedures, the conditions and consequences of detention vary depending on the laws of each state. In Spain, internment takes place in closed centres with a maximum detainment period of 60 days, but in Italy confinement periods extend to up to 18 months. In the United Kingdom, because of its exception to the Directive, a three-year internment period is possible. According to the map drawn up periodically by Migreurop, more than 200 immigrant camps have opened throughout the European Union. Their typology and internal regulations vary from open regime centres to closed centres, asylum centres awaiting resolutions and centres for immigrants awaiting deportation, public centres, which are managed by the authorities themselves, or which are on occasions financed with public funds but managed by private actors. Although, as Migreurop itself warns, “other ‘invisible’ forms of detention should also be taken into account, such as informal centres where, under the guise of an emergency, the authorities detain those people out of reach of the public sphere, often beyond any legal framework: in reused administrative buildings, police stations, army barracks, stadiums, common prisons, airport and port stays, boat booths or even train compartments are all used by the National and Border Police.” In December 2007, the European Parliament published a report on the conditions of these retention centres for third country nationals (detention camps, open centres, transit centres and transit areas), and paid special attention to provisions and services for people with special needs in the (then) 25 EU Member States. This report gathered information on the 130 sites visited and the needs of people detained in them, which were defined by the concept of vulnerability (punishment, poor legal, social or health care, depression, death or suicide, etc.).
The deaths of Samba Martine, on December 19, 2011 at the Aluche Internment Centre in Madrid, and Idissa Diallo, from Guinea Conakry, on January 6, 2012 or those that occurred at the Zona Franca in Barcelona (among other deaths), marked a turning point in terms of the social perception and the political dimension of the Internment Centres for Foreigners in Spain. In the United Kingdom, according to data from the Ombudsman for Prisons and Probation, as well as the INQUEST inquiry into deaths in immigration centres (IRCs) and Immigration Detention Centres (IDCs), 25 people have died since 2004. In the report entitled The Hidden Face of Immigration Detention Camps in Europe, the Migreurop organisation responds critically to the evaluation report of the Return Directive, which was published by the European Commission on 28 March 2014, given that the report does not take into account the violation of the rights established in the Return Directive when put into practice.
However, despite the cost of internment centres and the detrimental consequences for internees, only a relatively small percentage of them are finally expelled. According to Eurostat data, over the last 5 years, some half a million people have been ordered out of Europe. In 2016, a total of 493,785 people were ordered to leave, mainly from France (81,000), Germany (70,005), Greece (33,790), Belgium (33,020), Italy (32,365) and Spain (27,845), although in previous years Greece had the highest figures, with 132,525 in 2010. However, since 2009, European countries have expelled 17,786 people who were living as migrants in an irregular situation. To do this, they used 58 million euros from European funds. This means that despite their subjection to a process of sanction, detention and a system that imposes the temporary deprivation of freedom, deportation only occurs in a few cases. The ‘deportation gap’ or the numerical incoherence between those who are ‘forced to leave’ and those who are actually deported is too great. It is here where the strategy of creating ‘deportable persons’ as subjects who live under a constant threat comes into play, as was mentioned earlier.
Although in a generic manner, the term ‘deportation’ is used, expulsion, with all its social burdens, is one more example, not only of the juridical mechanisms made to counteract irregular immigration, but also a symbolic border that, at the same time , serves as a deterrent to unregulated migratory projects and highlights once again the distinction between citizens and foreigners. This is a penalty system that has been specifically designed to punish administrative offenses committed solely by foreigners, given that a citizen would never be interned for an administrative infraction, and much less would they be expelled.
Each State executes its expulsions in accordance with its legislation, its economic means and its infrastructure and according to the population that it expels. The Return Directive is simply the common framework to which each country adjusts its own measures. Frontex organizes and coordinates expulsions, usually through joint flights, which facilitates both work and expenses for Member States. These deportations are known as Joint Return Operations.
In December 2016, during the height of the German electoral campaign, and after announcing a plan of ‘national effort’ to accelerate the deportation of those immigrants who had been refused residence, the German authorities deported 50 asylum seekers, whose requests had been denied, to their country of origin. This country was Afghanistan, and it was considered to be a safe country. In November the suggestion had already been made in a parliamentary debate that the new policy of deporting ‘failed refugees’ could affect 12,500 Afghans. In fact, asylum was denied to 27% of Afghans in 2015, and for the first nine months of 2016 the rate had risen to 46%. But Germany is not the only European country that deports people to Afghanistan. In 2016, 580 people were returned to the country. These deportations, to countries such as Afghanistan, Pakistan, Mauritania, Turkey, Iraq and Ukraine, call into question, on the one hand, the legal concept of what constitutes a ‘safe country’ in that they are places where there are still outbreaks of war or conflict, and at the same time the principle of non-refoulement, or the non-return of refugees from the country from which they have fled, and which is a maxim of international asylum law.
However, not even EU citizens are not safe from the machinery of deportation. In 2010, both French President Nicolas Sarkozy and the then Italian President Berlusconi (to a lesser extent) were involved in what has to date been one of the greatest challenges to European citizenship: the massive deportation of Romanian and Bulgarian citizens (and therefore Europeans) of gypsy ethnicity, who had been settled in France and Italy, citing exceptional public safety issues. Beyond the political disapproval voiced by other European leaders, and the harsh criticism of Justice Commissioner Viviane Reding, the European institutions never initiated a sanctioning procedure for this breach of Community law, nor did the European Court of Justice sanction either of these two Member States. In theory, mass expulsions are prohibited by international and European law. However, since there is no legal term that defines a mass expulsion in quantitative terms, the only idea on limitation that can be drawn from the norms and treaties on human rights and guarantees is that people should not be expelled as a group, that is, that each subject deserves the right to an individual sentencing procedure where, according to the law, the causes and the decision (based on legal considerations) are provided. The EU-Turkey Agreement provides exactly the framework required for this type of group expulsion to be possible.
According to the data available, in Spain the predominant practice at the moment is to expel increasingly more people in an express manner. An ‘express expulsion’ (in keeping with Spanish policing terminology) may be defined as a police procedure whereby a foreign person subject to an expulsion order (with or without the application of a final sentence) is detained and expelled in less than 72 hours and without having to go through internment in a detention centre. In this type of expulsion procedure, people no longer are stopped at random or in large-scale police deployment actions, they are rather referred to a police station as a precautionary measure or through regularization procedures, or the police visit the person’s home, place of work or education. And in less than 72 hours they are deported to another country. That is, the daily life of the person in question is curtailed in an extremely direct manner. This system is cheaper than a 60-day internment period in a deportation centre, as the deportee is detained in a police station (without judicial decision having been taken). It is also more effective, as in most cases the expulsion is guaranteed since the procedural implementation takes place within a short term of two or three days, avoiding those delays that legal assistance or the lodging of appeals and precautionary suspensive measures could cause. Express expulsion takes place in police cars that journey to Morocco or Algeria or on pre-established flights. And when faced with the question, how many are there? It is difficult to give a precise number, as this information has not been made public. However, by subtracting the total number of people expelled, plus those deported from internment centres, one would obtain the number of those expelled directly from police stations. According to data provided by the Spanish government in a written parliamentary response to the parliamentary group Amaiur, in 2013 the police carried out 4,726 expulsions from internment centres and 6,462 from police stations. In 2016, of the 7,597 foreigners interned, 2,205 were expelled. However, there have been a total of 9,241 deportations of foreign nationals, according to data provided by the General Directorate of Police to the National Mechanism for the Prevention of Torture. This means that in 2016, 7,036 people were deported directly from police stations within a maximum period of 72 hours.
The European trend is a ‘more effective’ return policy. This was stated by the Commission in its Communication on a More Effective Return Policy in the EU. A renewed action plan COM(2017) 200 final, 2.3.2017“, which states that European legislation allows countries to apply more forceful measures in several areas, such as extending the detainment of certain migrants (such as those travelling under false identities), curbing the misuse of asylum procedures or improving the exchange of information for the purposes of implementing returns.
The EU (and its Member States), whose principal values are freedom, solidarity and justice, is making an extremely restrictive interpretation of these values in so far as immigration and borders are concerned. We could even be reaching the de facto suspension of the fundamental rights of individuals, who have been rejected because of their nationality, administrative status, or life history.
Although at the beginning of the issue known as the ‘refugee crisis’ (which is in fact a crisis of Europe itself), the reception policies of some countries were presented by some leaders as a positive development, and in line with European values, over time it was proven that the real intention was to legitimize repressive policies against irregular immigration. To put it simply: ‘good refugee vs. bad irregular immigrant’. Moreover, this concept has been increasingly categorized in recent years, not so much in the legal field, but rather in the way it has been handled by the media, and in social terms, a fact that has resulted in the legitimation of practices contrary to international law, and which also run contrary to the interests of refugees; as has been seen in some countries where asylum seekers are interned in detention centres or in the case of the EU-Turkey agreement and its consequences. To put it simply again –‘refugee bad, irregular immigrant bad.”
The cost in human terms, although it has always been high, is today excessive and dramatic, if not to say inhumane. A deal that exchanges the maintenance of border strategy policies for actions that violate rights as fundamental as those of life, physical integrity or human dignity is meaningless from an ethical point of view. The economic cost of detention and deportation mechanisms has no other meaning than the construction of legal categories that are attributable to immigrants and refugees whose sole purpose is to be used a ‘reserve army’ in a neoliberal economy where the labour force must be made to live in precarious conditions by necessity. Furthermore, exorbitant sums invested in the control and expulsion of immigrants encourage companies and investment funds to exert pressure on the ruling elites in order to focus their policies on increased spending and investment in increasingly sophisticated frontiers, that are both militarized and disseminated.
And this trend towards hyper-securitization is solely taken on by the population at large through a discourse of fear, uncertainty and threat. I have already said that there is a need for a debate on how the European Union, with the cooperation of its Member States and third countries, has implemented migration policies based on the construction of the migrant in the popular imagination as a ‘barbarian’, as someone who is ‘uncivilized’. To this end, EU border policies have reinforced an argument that has so often been repeated by social movements and activists: the EU, beyond its discourse of the consecration of universal human rights, has constructed an immigration system against perceived threats (mainly from Muslim countries), its policies are implemented on the basis of categorization of legal personality, post-colonial practices, outsourcing, privatization and the selection of a migrants’ origins. The European immigration system, which is also applicable to other contexts, such as the United States or Australia, is becoming an increasingly disciplined structure with the aim of governing the mobility of all mankind.