The EU, Migration and the Politics of Administrative Detention

Michela Ceccorulli, Nicola Labanca

• Publisher: Routledge
• Year: 2014
• Topic: Politics & International Relations
• eBook ISBN:
  9781317750062
• Subtopic: Politics
• Index: Politics & International Relations

Migration is now regarded as a security issue, both in public debate and government policies. In turn, the phenomenon of detention as a governance practice has emerged, and the developing presence of camps in Europe for migrants has given rise to a tangle of new and complex issues.

This book examines the phenomenon of irregular immigration, and provides a comprehensive picture of the practices and the implications of detention of migrants within and the European Union. It analyses 'detention' as a tool of governance and in doing so explores several key themes:

• the security threat for Europe
• the security governance processes enacted to handle irregular immigration
• the forms of detention in different geographical contexts
• the effectiveness of the EU's approach to the issue.

The EU, Migration and the Politics of Administrative Detention will be of interest to students and scholars of the EU's external relations, migration, human rights, European politics and security studies.

Part I
The EU and irregular immigration

How securitized is it?

1
The EU’s readmission policy in the neighbourhood

A comparative view on the Southern Mediterranean and Eastern Europe

Florian Trauner

Introduction

Administrative detention and forced return are closely interlinked. The EU and its member states consider these punitive measures necessary to give credibility to its migration policy and to stop unauthorized migrants from wishing to enter EU territory. According to Liza Schuster (2005: 612),

detention is now used by most European countries to facilitate removals, and its use is defended by governments on the grounds that deportation without detention would be almost impossible and that, since those detained are subject to removal, it is not in fact arbitrary.

In other words, detention is seen as a way to ensure that the act of removing an individual from a state’s territory can be effectively executed. Detention practices have gained importance precisely due to the fact that European governments and state authorities wish to install more ‘effective’ return and readmission policies.

The objective of this chapter is, therefore, to complement the book’s focus on administrative detention and to investigate the EU’s forced return and readmission policy. The analysis will concentrate on the neighbourhood of the EU, with a comparative view on the Southern Mediterranean and Eastern Europe. Although these neighbours are not the only third countries with which the EU is seeking to intensify cooperation on readmission, they play a particularly important role for the EU due to their geographical proximity and relevance as entry routes for irregular migration into Europe. The research is interested in two questions: (1) to what extent and for which reasons do southern Mediterranean and eastern European neighbours cooperate with the EU on the readmission of rejected asylum seekers and irregular migrants? (2) What are the major issues at stake, in particular with regard to the safeguarding of human rights?

The analysis proceeds in three steps. The first section presents the EU’s forced return and readmission policy as a central element of the external dimension of EU migration policy. This is followed by an investigation of the main differences and similarities in the EU’s readmission policy towards the Southern Mediterranean (pre-and post-Arab Spring) and Eastern Europe. The chapter concludes with an elaboration of the human rights-related challenges in the different geographical settings of the EU neighbourhood.

Readmission agreements and the external dimension of EU migration policy

With the EU developing an increasing interest in reducing ‘migration pressure’ in Europe, the countries neighbouring the EU to the south and east have become subject to growing European attention. In conceptual terms, there are two approaches underlying the establishment of an ‘external dimension’ of EU migration policy (Boswell 2003). The first is a restrictive and control-oriented one in which the EU externalizes classic migration control instruments to non-member countries that have to tighten their entry controls and/or accept provisions for facilitating the return of irregular migrants and rejected asylum seekers. The second approach seeks to abolish circumstances in the countries of origin that force people to migrate to the EU by using economic cooperation and/or development aid. This approach is preventive in nature and strives towards eliminating the root causes of migration.

The EU has repeatedly emphasized that it seeks to take both approaches into account. The key political framework has been the EU’s Global Approach to Migration, launched under UK presidency in 2005, with a geographical focus on Africa and the Mediterranean region. With this initiative, the EU sought to develop a ‘truly comprehensive’ approach to migration, aimed not only at better control over irregular migration but also at addressing key push factors for migration such as poverty and a lack of job opportunities (Council of the European Union 2005). A stronger focus on socio-economic factors came as a reaction to the successful lobbying of partner countries such as Morocco (Wunderlich 2010: 260), and to the dramatic events in Ceuta and Melilla in 2005 when large groups of migrants tried to storm the fences surrounding these two Spanish cities, resulting in the death of at least 15 of them. Policy initiatives launched under the EU’s Global Approach, notably the Mobility Partnerships, have expanded cooperation to the field of legal migration, opening channels for circular and temporary migration in exchange for cooperation in the prevention and combat of irregular migration and trafficking in human beings (Council of the European Union 2005). The cooperation hence implies close and institutionalized collaboration on readmission and forced return – one of the very reasons why many third countries have been reluctant to engage in EU Mobility Partnerships.

The EU’s competence to sign readmission agreements with third countries dates back to the 1999 Treaty of Amsterdam (for some detailed analyses, see Kruse 2006; Trauner and Kruse 2008; Roig and Huddelston 2007). A readmission agreement can be defined as setting out ‘the practical procedures and modes of transportation for the return and readmission by the contracting parties of persons illegally residing on the territory of one of the contracting parties’ (Commission of the European Communities 2002: 26). From the EU’s point of view, a key added value of EU readmission agreements (compared to bilateral readmission agreements) is that they bundle the negotiation powers of individual member states at EU level and have a legal instrument that includes not only the return of own-state nationals but also of third-country nationals (persons that do not have the nationality of either of the signatory parties). Member states decided that all EU readmission agreements should include a clause that provides for the return of third-country nationals (TCNs) and stateless persons transiting the territory of one of the parties. A key issue in all negotiations has turned out to be the question of incentives. According to the European Commission (2002: 23):

[A]s readmission agreements are solely in the interest of the Community, their successful conclusion depends very much on the ‘leverage’ at the Commission’s disposal. In that context it is important to note that, in the field of JHA [Justice and Home Affairs], there is little that can be offered in return.

Soon after the first negotiations started, the Commission suggested considering visa facilitation packages or increased quotas for migrant workers as a way to improve the EU’s negotiating power.

Coupling visa facilitation with readmission has become a dominant pattern of cooperation in Eastern and South-Eastern Europe. In these countries, the EU started to view visa facilitation regimes not only as a necessary incentive for the signing of a readmission agreement but also as a means for mitigating the negative side-effects of the EU’s Eastern and Schengen enlargements (Trauner and Kruse 2008). In the context of their accession to the EU, the then candidate countries of Central and Eastern Europe were expected to introduce new visa requirements for their Eastern neighbours located on the EU’s negative visa list, including Russia, Ukraine and other CIS countries. This has created the perception in neighbouring states that the EU is creating a new dividing line in the enlarged Union. Against this background, the visa issue become of utmost importance for the Eastern European countries in their relations with the EU. The dual instrument of EU visa facilitation and readmission agreements was increasingly considered to be beneficial to both sides; they provide the EU with a strong lever to make third countries sign readmission agreements and increase the reform efforts in their domestic justice and home affairs sector, while also meeting the major grievances of neighbouring countries by easing the tight visa regime and fostering facilitated travel opportunities for bona fide travellers (Trauner and Kruse 2008).

Contrary to Eastern Europe, where the visa facilitation–readmission nexus has become firmly established, visa measures have not been included in the ‘toolbox’ of the EU’s negotiations with its Southern Mediterranean neighbours. Some member states have been reluctant to make much use of this incentive and ‘hesitate to close a door on irregular immigration to open a window on new potential irregular flows of visa overstayers, already the largest group of irregular migrants in the EU’ (Roig and Huddelston 2007: 377). Therefore, these countries have not coupled visa facilitation and readmission agreements in the Southern Mediterranean – a strategy which has constrained the possibilities for the European Commission to conclude EU readmission agreements in this region.

The EU’s readmission policy in the Southern Mediterranean

The Justice and Home Affairs Council mandated the European Commission to negotiate readmission agreements with Morocco in 2000 and with Algeria in 2002. These negotiations have made little progress. Whereas in the case of Morocco the first negotiations took place in April 2003 and entered their seventeenth round in 2012, Algeria has refused to even formally open negotiations. The reasons why these states refrain from accepting EU readmission agreements include a high domestic salience of the return issue and insufficiently strong EU incentives (see before). However, the absence of EU readmission agreements in Euro-Mediterranean relations does not imply that cooperation on the forced return of irregular migrants and rejected asylum seekers has not developed – quite the contrary.

EU member states have embarked on a strategy of ‘informalising’ cooperation on readmission (not only but in particular) in the Mediterranean region (Cassarino 2007, 2010b). Instead of formal EU readmission agreements, the informal cooperation on readmission is often regulated on a bilateral basis and embedded into broader strategic frameworks of cooperation or other types of arrangements (such as police cooperation agreements and memoranda of understanding). These arrangements are only ‘linked to readmission’ and are distinct from standard readmission agreements (Cassarino 2010a: 9). The informal patterns of bilateral cooperation on readmission are characterized by four elements, namely their invisibility, flexibility, limited costs of defection and adaptability to security concerns (Cassarino 2007: 189–90). France, Greece, Italy and Spain have been drivers in developing this non-standard approach towards readmission. The cooperation is accompanied by a dense web of bilateral and European cooperation activities, focusing on the transfer of technical equipment and know-how to border guards, and the establishment of migration management systems in the Mediterranean (Cassarino and Lavenex 2012: 285).

Particularly intense bilateral cooperation was established between Italy and Libya in the wake of the signing of the 2008 Treaty of Friendship, Partnership and Cooperation which made Italy agree to invest five billion euros over a period of 25 years to compensate for the Italian rule in Libya between 1911 and 1943. In return, Libya accepted to take back intercepted migrants from the Mediterranean (Andrijasevic 2010; Klepp 2010). Italy considered this cooperation a highly effective form of controlling irregular migration in the Mediterranean, and the EU heads of state and government came to share this view. In October 2009 the European Council called to ‘intensify the dialogue with Libya on managing migration and responding to illegal immigration, including cooperation at sea, border control and readmission’ (European Council 2009). Italian and European politicians ignored criticism that these practices would be in breach of international refugee and human rights norms. In May 2009, when Italy discovered 227 migrants some 35 miles off the island of Lampedusa and acted to remove them within 24 hours to Libya, NGOs fiercely protested that these migrants would be prevented from lodging an asylum claim and, in the worst case, directly pushed back into the arms of their persecutors (see, for example, Jesuit Refugee Service 2009).

Regardless of its controversial nature, the dense bilateral cooperation between individual member states and African states has allowed for enhanced EU involvement in this policy domain. The maritime operations carried out in the Mediterranean by the EU’s border management agency, Frontex, have relied on bilateral agreements – for example that between Spain and Mauritania – when involving African states (Carrera 2007: 21). Alongside several operations in the Mediterranean, Frontex implemented a first maritime operation in the Atlantic in 2006 to prevent irregular migration from West Africa to the Canary Islands. This operation, labelled HERA 2008, is regarded as the most successful sea operation and was extended four times. In 2008 it became a permanent fixture in the framework of the European Patrol Network (EPN). Frontex patrols off West Africa seem to have contributed to a substantial shift in (smuggled) migration routes, with more West Africans using a route across the Sahara, through Libya to Malta and Italy (Carling and Hernández-Carretero 2011: 49).

The impact of the Arab Spring

The revolutionary events that have taken place throughout the Arab world have fundamentally challenged the EU’s strategic approach towards the Mediterranean region. The field of migration and mobility have featured high on the agenda of the European debates on how to reinvigorate Euro-Mediterranean relations in the wake of the Arab Spring. In the view of Catherine Ashton, the EU’s High Representative for Foreign Affairs, ‘mobility partnerships’ providing comprehensive frameworks to govern the movement of persons should constitute an important element of a new ‘partnership for democracy and shared prosperity with the Southern Mediterranean’ (European Commission 2011d).

To alter EU migration policy towards the Southern Mediterranean, the EU has adopted a renewed ‘Global Approach to Migration and Mobility’ (European Commission 2011c). T...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of figures
• List of tables
• List of contributors
• Acknowledgements
• Introduction
• Part I The EU and irregular immigration: how securitized is it?
• Part II Detention centres in EU member states
• Part III Camps on the border of Europe
• Index