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Asylum in the European Union: The Politics of

Protection and Containment What are the consequences of biopolitical

responses to calls from ethnic nationalism?

Student Name: Irina Rizmal

Student Number: 090004435

Module: International Politics Project (IP3001)

Course: BSc International Politics

Date of Submission: May 2012

Department: Social Sciences

Supervisor: Dr. Sara Silvestri

Word Count: 10,993

Table of Contents

1. Introduction ............................................................................................................................ 2

1.1 Research Questions ............................................................................................................. 2

1.2 Objectives .............................................................................................................................. 4

2. Theoretical Framework ........................................................................................................ 5

3. Literature Review .................................................................................................................. 6

3.1 Supranationalism vs. Intergovernmentalism ..................................................................... 6

3.2 The Politics of Protection or Containment ......................................................................... 7

3.3 The Power of Ethnic Nationalism ....................................................................................... 8

4. Research Strategy .............................................................................................................. 10

4.1 Limitations ............................................................................................................................ 11

5. Findings ................................................................................................................................ 12

5.1 The Politics of Containment .............................................................................................. 13

5.2 Minimum Common Standards on Procedures ............................................................... 15

5.3 From Dublin to Stockholm ................................................................................................. 19

The Dublin Convention .............................................................................................................. 19

The Hague Programme ............................................................................................................. 20

The Schengen Borders Code ................................................................................................... 20

The Stockholm Programme ...................................................................................................... 22

5.4 Other principles, actions and tools ................................................................................... 24

Global Approach to Migration ................................................................................................... 24

Border Surveillance System ..................................................................................................... 25

Readmission Agreements ......................................................................................................... 27

Regional Protection Programmes ............................................................................................ 27

5.5 FRONTEX ............................................................................................................................ 29

5.6 Thematic Programmes ....................................................................................................... 32

6. Case Study: Italy ................................................................................................................. 35

7. Conclusions ......................................................................................................................... 37

8. List of Abbreviations ........................................................................................................... 40

9. Bibliography ......................................................................................................................... 41

ANNEX ................................................................................................................................................. 48

*Front cover image courtesy of the EUObserver, available at: http://euobserver.com/22/28235

1. Introduction

Despite subscribing to a common asylum regime, European policy responses in this

sphere remain characterised by ‘intergovernmental cooperation and non-binding

instruments’ 1 , rather than liberal, democratic and humanitarian responses supposedly

working under an umbrella of supranationalism. As a result, European borders pose as

‘highly differentiated border zones [...] of highly perforated systems or regimes’ 2 , with

decision making driven by individual Member States’ interests, portraying the Union as

incapable of adequately responding to flows of asylum seekers attempting to reach its

borders.

Despite the common belief that this inability results from the reluctance of Member

States to assume responsibility, or their concerns over the notions of sovereignty and

power, the fact that European borders have been ‘more real for most non-OECD

national than for members of OECD countries’ 3 calls for different explanations.

Exclusionist policies of the European asylum regime divide global society into groups of

‘Us’ and ‘Them’, whereby a ‘civilised European order is situated like an island within a

threatening sea of starving, brutalised, but determined-because-desperate inferior

peoples’ 4 aiming to find refuge within European borders.

1.1 Research Questions

This paper seeks to unveil the space created by the European asylum regime to allow

Member States to choose the preferred and exclude unwanted asylum seekers,

adopting an essentialist concept of the nation through a lens which argues that ‘if your

race or culture or religion does not fit the parameters, then you cannot belong’ 5 . By

implementing barriers to entry for specific groups of asylum seekers, the European

Union allows the ethnic nationalist sentiments of its Member States to guide policy on

asylum down a path of social exclusivity whereby Europe is created ‘less as a

cosmopolitan melting pot and more [as] a white fortress’.

1 Lindstrom, C. (2005) European Union Policy on Asylum and Immigration. Addressing the Root Causes of

Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice? Social Policy and Administration, vol.39 no.6 p.589

2 Tsianos, V. and Karakayali, S. (2010) Transnational Migration and the Emergence of the European Border

Regime: An Ethnographic Analysis, European Journal of Social Theory, vol.13 no.3 p.378

3 Huysmans, J. (2006) The Politics of Insecurity: Fear, migration and asylum in the EU, Routledge p.74

4 MacMaster, N. (2001) Racism in Europe, Basingstoke: Palgrave p.217

5 Schlesinger, P. (1994) Beyond Nationalism? in Hutchinson, J. and Smith A. D. (1994) Nationalism, Oxford

University Press p.325

This paper argues that, given the fact that the formation of the European asylum regime

is mainly led by the interests of Member States, it is guided by sentiments of ethnic

nationalism, employed as ‘a source of cohesion and stability’ 6 . Gaining strength through

official acknowledgments that multiethnic projects in Member States have in fact failed 7 ,

European policy responses are erecting a selective asylum regime, whereby those who

do not fit into the picture of a ‘European nation’, are in great numbers sentenced to

containment outside of the Union’s borders. With buffer zones already in place through

Strategic Partnerships and Association and Cooperation Agreements with neighbours on

the Eastern and South-Eastern Border, the focus is now placed on the only parameter

left to be covered by this triumphant ‘separatist project’ 8 of an exclusivist European

asylum regime – the Mediterranean - stemming flows of asylum seekers from the African

continent.

To this end, this paper poses questions such as:

 Where is asylum policy placed in the overall European migration regime?

 What are the characteristics of the European asylum regime?

 What are the elements and mechanisms employed?

 Who are these mechanisms aimed at?

 What are the variations present?

6 Muller, J. (2008) Us and Them: The Enduring Power of Ethnic Nationalism, Foreign Affairs, vol.87 no.3 p.31

7 Statements of Member States’ leaders: Nicolas Sarkozy declares multiculturalism had failed (2011) Telegraph;

Merkel says German multicultural society has failed (2010) BBC

8 Muller, J. (2008) Us and Them: The Enduring Power of Ethnic Nationalism, Foreign Affairs, vol.87 no.3 p.19

1.2 Objectives

Through the analysis of official documents published by the European Union,

partnerships with non-EU countries and other publications, this paper outlines what

mechanisms have been set up to contain asylum seeker flows, preventing them from

reaching the European Union and where these mechanisms have been implemented,

demonstrating exactly which groups of asylum seekers it is that they are set out to

contain.

To that end, this paper shows how the assertion of border protection over the protection

of individuals is made possible through collective action of Member States, harmonising

their asylum and migration policies 9 . Analysing who belongs to the excluded groups of

‘Them’, and what weight such projects carry for the European Union, the fact that there

is a sense of emergency in containing flows of asylum seekers from the Southern Border

is highlighted. Through the analysis of the Union’s partnerships and agreements in the

field of asylum, this paper demonstrates that, at least to an extent, policy responses

concerning asylum in Europe are led by sentiments of a post-colonial whiteness

refashioned against an amorphous, heterogenous, non-descript, yet essentialised and

decidedly culturally inimical mass of non-EU nationals 10

, leading to the

institutionalisation of a regime based on biopolitics, aiming to enable population control,

even in the sphere of granting asylum, serving the purpose of excluding the Unwanted.

Ultimately, a case study on Italy, the Member State at the peak of Europe’s Southern

Border is analysed to enable a more coherent understanding of the aims of containment

policies, how they are erected and in what ways do they serve the Union’s overall

interest in containing African asylum seekers.

9 Humphrey, M. (2003) Refugees: An endangered species? Journal of Sociology, vol.39 no.1 p.36

10 De Genova, N. (2010) Migration and Race in Europe: The Trans-Atlantic Metastases of a Post-Colonial

Cancer, European Journal of Social Theory, vol.13 no.3 p.408-9

2. Theoretical Framework

Walzer sees people belonging to a community defending their politics and culture

against strangers and, by valuing their assumed distinctiveness, allowing for the creation

of an atmosphere in which closure must be permitted 11

. In that sense, this paper

explores the notion of interest whereby Member States of the European Union are

guided primarily by self-interest in strengthening social cohesion within their individual

borders and excluding those who are deemed as the ‘Others’.

Methods of discourse analysis are employed in the process of reconstructing the current

discourse on migration which ‘codifies migrants as a security threat in an a priory

fashion’ 12

. Through this method the process of desecuritisation of the notion of asylum

tackles the question of the political itself 13

, examining how policy responses to asylum

are manufactured within the EU. Comparative analysis of prescribed responses is

employed to highlight the extent to which ethnic sentiments play a role in setting courses

of action and targets at which these responses are aimed at.

The complexities of the European asylum regime are broken through, by fundamentally

breaking away with the reductionist tendency to justify containment and exclusionist

policies by branding migrants as nothing more than a national security threat 14

. By

applying a desecuritised lens through which to observe the European asylum regime,

this paper enables a more coherent analysis of the patterns of inclusion and exclusion

inherent in it, going beyond mere generalisations about its overall effects on asylum

seekers.

Ultimately, seen as arising from ethnic nationalist tendencies, the concept of biopolitics

which Foucault and Duffield have addressed is employed analysing the sentiments

guiding asylum policy formation, with the ultimate result of containing specific refugee

flows outside of European borders. In this context, biopolitics is employed as dealing

with populations ‘as a political problem, a biological problem and a power’s problem’ 15

Weiner, M. (1996) Ethics, National Sovereignty and the Control of Migration, International Migration Review, vol.30 no.1 p.175

12 İçduygu, A. and Fuat Keyman, E. (2000) Globalization, Security, and Migration: The Case of Turkey, Global

Governance, vol.6 no.3 p.389

13 Huysmans, J. (2006) The Politics of Insecurity: Fear, migration and asylum in the EU, Routledge p.143

14 İçduygu, A. and Fuat Keyman, E. (2000) Globalization, Security, and Migration: The Case of Turkey, Global

Governance, vol.6 no.3 p.396-7

15 Foucault, M. (2003) Society Must Be Defended, Penguin Books Ltd. p.245

3. Literature Review

3.1 Supranationalism vs. Intergovernmentalism

The literature agrees that policy responses to asylum in the European Union reflect an

intergovernmental mechanism. Instead of elaborating a coherent and integrated

approach to migration, Member States ‘chose to build upon past domestic experiences

and national restrictive laws’ 16

. As a result, ‘post-Maastricht policies are characterised by

intergovernmental cooperation and non-binding instruments’ 17

in which Member States

implement policy mechanisms in line with their domestic discourses on asylum.

Similarly, Geddes concludes that EU responses to migration and asylum remain on the

level of intergovernmental cooperation combined with attempts to implement elements of

domestic political constraints on immigration control 18

However, other than highlighting the ineffectiveness of a supranational approach, the

literature does little to highlight the full extent of the consequences of such an

arrangement. Despite efforts of a handful of scholars to argue that the mixture of

national and supranational politics in Europe set the conditions for a sense of identity

panic to be produced 19

, little has been done to analyse the extent to which this condition

allows Member States to implement their individual interests in policies regarding asylum

in the EU.

Therefore there is a gap in the literature dealing with asylum in general, and in the

European Union in specific, which would pose as a more coherent analysis of the forces

behind, as well as the consequences of, the development of a variety of identitarian

obsessions amongst Member States, following the model of mutual reinforcement and

exclusion, as Balibar argues 20

Kostakopoulou, T. (2000) The ‘Protective Union’: Change and Continuity in Migration Law and Policy in Post- Amsterdam Europe, Journal of Common Market Studies, vol.38 no.3 p.498

17 Lindstrom, C. (2005) European Union Policy on Asylum and Immigration. Addressing the Root Causes of

Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice? Social Policy and Administration, vol.39 no.6 p.589

18 Geddes, A. (2000) Immigration and European Integration: Towards fortress Europe? Manchester University

Press p.67

19 Schlesinger, P. (1994) Beyond Nationalism? in Hutchinson, J. and Smith A. D. (1994) Nationalism, Oxford

University Press p.318

20 Balibar, E. (2004) We, The People of Europe? Reflections on Transnational Citizenship, Princeton University

Press p.170

3.2 The Politics of Protection or Containment

The Member States’ commitment to strict border controls and an exclusionist approach

to asylum are generally acknowledged to have shifted asylum regimes from a

protectionist mechanism to one of containment outside the borders of the European

Union. A post-Maastricht development sees the replacement of a static fortress-like

portrayal of the EU by a model of concentric circles, referring to the agreements and

partnerships between the Union and other, non-EU countries 21

. Action Plans devised by

the High-Level Working Group are portrayed as having a crucial role in the ‘reduction of

migratory pressure in the main countries of origin of immigrants’ 22

, focusing on specific

refugee-producing states and/or regions. These have also been criticised for supporting

the externalisation of asylum policies through their ‘primary focus on exporting migration

control’ 23

. Another means of exporting asylum containment is through Association and

Cooperation agreements and Strategic Partnerships between Member States and other,

non-EU countries 24

Castles thus argues that asylum regimes have undergone fundamental transformations,

shifting from a liberal system concerned with human rights, to a non-entree regime,

‘designed to exclude and control asylum seekers from the South’ 25

. There is, however,

little work addressing the question of where such mechanisms are employed the most,

and thus which groups of asylum seekers is it most strongly set out to deter. Thus, the

literature on containment could be enriched by implementing socio-cultural

categorisations in order to analyse the current stream of what Duffield sees as a racial

discourse concerned with cultural-types in circulation, in which the immigrant, as the

Kostakopoulou, T. (2000) The ‘Protective Union’: Change and Continuity in Migration Law and Policy in Post- Amsterdam Europe, Journal of Common Market Studies, vol.38 no.3 p.512-13;

Duffield, M. (2008) Global Civil War: The Non-Insured, International Containment and Post-Interventionary Society, Journal of Refugee Studies, vol.21 no.2 p.154

Lindstrom, C. (2005) European Union Policy on Asylum and Immigration. Addressing the Root Causes of Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice? Social Policy and Administration, vol.39 no.6 p.588

22 Boswell, C. (2003) The ‘External Dimension’ of EU Immigration and Asylum Policy, International Affairs,

vol.79 no.3 p.627-8

23 Castles, S. Crawley, H. and Loughna, S. (2003) States of Conflict: Causes and patterns of forced migration to

the EU and policy responses, IPPR p.37

24 Morris, L. (1997) Globalisation, Migration and the Nation-state: The Path to a Post-National Europe? The

British Journal of Sociology, vol.48 no. p.201

25 Castles, S. Crawley, H. and Loughna, S. (2003) States of Conflict: Causes and patterns of forced migration to

the EU and policy responses, IPPR p.45-6

embodiment of cultural difference in motion, becomes the iconic figure 26

, returning once

again to the need to address notions of ethnic nationalism present in asylum policy

formulations and introducing the idea of biopolitics at work, with the aim of managing

populations within and outside of the borders of Member States.

3.3 The Power of Ethnic Nationalism

The UNHCR has confirmed the stance that international mechanisms dealing with

refugees are failing in their delivery of protection and aid to asylum seekers as

definitions of who is to be considered a refugee are becoming narrower whilst strategies

to prevent them to make claims ‘are adopted through detention policies, border

protection and containment at a distance’ 27

. Thus there is agreement on the fact that

European policies have been devised in ways that enforce the externalisation of

immigration and asylum 28

This failure is commonly attributed to the reluctance of states to grant financial support,

assume the burdens of material relief, asylum and resettlements and their concerns over

how such action may implicate other foreign policy objectives 29

. There is general

agreement on the notion that there are different forces and concerns at play,

determining the course of the European response. Huysmans defines these as ‘internal

security, cultural identity and welfare’ 30

. Castles finds them in a focus on ‘cultural,

socioeconomic and political’ 31

threats. Hall finds reasons for a ‘defensive and regressive

exclusionism’ in the erosion of national economies and national cultures 32

Despite the term being present in every of the reasons for exclusionist asylum policies

above, identity concerns are often left sidelined and ignored. As a result, the majority of

the literature focuses explanations around the notions of asylum seekers being ‘a

Duffield, M. (2006) Racism, migration and development: the foundations of planetary order, Progress in Development Studies, vol.6 no.1 p.71

27 Humphrey, M. (2003) Refugees: An endangered species? Journal of Sociology, vol.39 no.1 pp.31-43 p.33-4

28 Lindstrom, C. (2005) European Union Policy on Asylum and Immigration. Addressing the Root Causes of

Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice? Social Policy and Administration, vol.39 no.6 p.591-2

29 Shacknove, A. E. (1985) Who is a Refugee? Ethics, vol.95 no.2 p.276

30 Huysmans, J. (2006) The Politics of Insecurity: Fear, migration and asylum in the EU, Routledge p.64

31 Castles, S. and Miller, M. J. (2009) The Age of Migration: International Population Movements in the Third

World, Palgrave Macmillan p.212

32 Morris, L. (1997) Globalisation, Migration and the Nation-state: The Path to a Post-National Europe? The

British Journal of Sociology, vol.48 no.2 p.193

serious burden for European societies’ 33

, and ‘uncontrollable immigration as a potential

security threat’ 34

, thus posing as incomplete and inherently simplistic. This security

discourse, Huysmans argues, places the choice for or against migration as a choice

about the survival of the political community 35

. However, the discourse does not fully

explain exactly why the survival of the political community is threatened in the first place.

Thus, little has been done to explore the link between Member State interest, identitarian

politics and social cohesion concerns, and exclusionism. At its core, the ethnic

nationalist idea remains lingering in the shadow of mainstream literature, based on the

idea of nations defined by ‘a shared heritage’ 36

, perfectly capable to serve as a tool for

explaining policy outcomes on asylum. As Connor explains, most authors writing on

ethnic nationalism mainly deal with its manifestations or policies aimed at its

containment, probably as a result of the intellectual’s discomfort with dealing with non-

rational explanations as such 37

. Therefore there is space, and, undeniably, a need, to

pay greater attention to the acknowledged fact that ‘ethnic and cultural parochialism is

almost everywhere a stronger political force than cosmopolitanism’ 38

, and apply such an

acknowledgement to supposedly cosmopolitan liberal bodies such as the European

Union, analysing its consequences.

Huysmans, J. (2006) The Politics of Insecurity: Fear, migration and asylum in the EU, Routledge p.76

34 Kostakopoulou, T. (2000) The ‘Protective Union’: Change and Continuity in Migration Law and Policy in Post-

Amsterdam Europe, Journal of Common Market Studies, vol.38 no.3 p.506

35 Huysmans, J. (2000) The European Union and the Securitisation of Migration, Journal of Common Market

Studies, vol.38 no.5 p.758

36 Muller, J. (2008) Us and Them: The Enduring Power of Ethnic Nationalism, Foreign Affairs, vol.87 no.3 p.20

37 Connor, W. (1994) Ethnonationalism: The Quest for Understanding, Princeton University Press p.75-6

38 Waever, O. Buzan, B. Kelstrup, M. and Lemaitre, P. (1993) Identity, Migration and the New Security Agenda

in Europe, London: Pinter Publishers Ltd p.45

4. Research Strategy

This paper analyses the policy responses to asylum flows in the European Union, with a

specific focus on the notion of containment assumed to arise as a result of sentiments of

ethnic nationalism. A qualitative analysis of official policy documents of the European

Union setting up mechanisms for border control and asylum screening and processing is

conducted.

The mechanisms of containment are analysed with specific reference to:

- The Global Approach to Migration

- The European Border Surveillance System

- Readmission Agreements

- Regional Protection Programmes

- Thematic Approaches

- FRONTEX operations

As it is acknowledged that, increasingly, ‘seeking asylum in Europe has been

criminalised’ 39

, with asylum seekers grouped together with illegal migratory flows,

general border control and protection mechanisms set up are analysed, as they play a

significant role in deterring all forms of migration, including asylum seekers.

Reports from FRONTEX are analysed to provide information on where operations to

contain migration, including asylum flows, are employed most extensively, offering

information on which groups they are aimed at.

Publications and statistics provided by other bodies are employed, providing data for

analysing the extent of bias in Europe in the approach of granting asylum based on

origin. These include reports from the United Nations High Commissioner for Refugees,

Amnesty International, Human Rights Watch and the International Federation of Red

Cross and Red Crescent Societies.

Reports from the European Council on Refugees and Exiles (ECRE), a pan-European

alliance of 70 organisations in 30 countries, established to promote the rights of those

who seek international protection in Europe 40

, provides reports on the effects of policies

Broken Promises – Forgotten Principles (2004) An ECRE Evaluation of the Development of EU minimum standards for refugee protection, Tempere 1990 – Brussels 2004, ECRE, p.17

40 European Council on Refugees and Exiles website, available at: http://www.ecre.org/about/this-is-ecre/in-a-

nutshell.html

adopted by the European Union and individual Member States on those who seek

asylum within Europe’s borders.

For the case study on Italy, official publications and NGO reports, alongside other

publications and news articles are used to determine the scope of the mechanisms set

up for dealing with flows of asylum seekers and how these operate in practice.

Generally the most recent policy documents are used. However, this paper limits itself to

developments in the European asylum regime up to 2010 and therefore does not include

the strategies adopted in response to the refugee crisis arising as a result of the

revolutions in North Africa.

For more elaborated and differentiated views on policy developments, as well as

theoretical tools, books are used as secondary sources, alongside academic journals

which mainly prevail due to the contemporary nature of the research question at hand,

and the continuous developments of asylum policies.

4.1 Limitations

Primarily, the contentious nature of the topic, calls for increased sensitivity when making

direct arguments. The fact that many scholars avoid dealing with the topic of ethnic

nationalism, especially in relations to asylum, serves to highlight this point. This in effect

limits the availability of literature dealing with, and especially supporting, the argument

put forward by this paper.

Secondly, data from official sources, such as the International Organisation for

Migration, or the European Union itself, simply does not exist, as numbers of asylum

seekers diverted from the European Union are blurred together with numbers of illegal

migrants.

Finally, a language barrier means that the paper relies predominantly on sources

available in English.

5. Findings

The growing branch of rules, tools and procedures, on European asylum law,

supposedly guided by humanitarian concerns and human rights has proven inconsistent

as ‘appeals based solely upon compassion, solidarity or rights are only occasionally

successful’ 41

. Instead of constructing a Protective Europe, European asylum laws have

had the opposite effect, meshing together with restrictive migration provisions and

notions such as organised crime and human trafficking. This is a highly recognised

occurrence, with the UNHCR consistently calling for the differentiation between refugee

and migratory movements as they ‘fundamentally raise different concerns and require

distinct policy responses’ 42

. This has not yet taken place, nor does it seem that it will in

the near future. An ECRE report estimates that ‘90% of asylum seekers have to rely on

illegal methods to access the territory of the EU’ 43

due to the restrictive migration

measures adopted. In this respect, Member States have widened their scope of tools

used for identity formation placing asylum within the sphere of EU’s external interactions.

By focusing on the social boundaries erected by the politics of asylum in Europe, it

becomes possible to ‘build a general theory of the emergence of collective,

supranational identities’ 44

and spot patterns of inclusion and exclusion. Here, it is

impossible to avoid the notion of collective identity formation in Europe led by Member

States’ national interest and thus an inherent rejuvenated racial project of expressly

European identity closing down boundaries towards the race-neutral but mercilessly

racialised Third World 45

, led by revitalised sentiments of ethnic nationalism posed

against the inimical ‘Other’. By analysing where the patterns of exclusion are strongest,

the exact kind of identity that Europe is building becomes clearer, finding the

Mediterranean Border as the main focus of the control fanatics, with the virtual extension

of European borders to the North African coast creating a second rejection ring around

Europe 46

. Here, a conservative alliance-containment model has been created,

Shacknove, A. (1993) From Asylum to Containment, International Journal of Refugee Law, vol.5 no.5 p.517

42 UN High Commissioner for Refugees (October 2000), Reconciling Migration Control and Refugee Protection

in the European Union: A UNHCR Perspective, Point 4(i), p.1

43 Broken Promises – Forgotten Principles (2004) An ECRE Evaluation of the Development of EU minimum

standards for refugee protection, Tempere 1990 – Brussels 2004, ECRE p.17

44 Downs, W. M. (2001) Review of Cederman, L. E. (2001) Constructing Europe’s Identity: The External

Dimension, The Journal of Politics, vol.63 no.4 p.1295

45 De Genova, N. (2010) Migration and Race in Europe: The Trans-Atlantic Metastases of a Post-Colonial

Cancer, European Journal of Social Theory, vol.13 no.3 p.408-9

46 Dietrich, H. (2004) The Desert Front – EU refugee camps in North Africa? Konkret, issue 12

constituting a non-entree regime, deterrence measures, readmission agreements, harsh

border controls and involuntary returns of refugees to countries of origin 47

. By studying

how Europe’s boundaries emerge out of specific and differing interactions with the

Union’s external environment, inferences about Europe’s identities are obtained much

more accurately 48

. Through erecting rings of rejection, the European asylum regime

serves the purpose of excluding specific groups of would-be asylum seekers from official

proceedings within the Union, serving the national interests of Member States

concerned over notions of ethnic nationalism, creating a biopolitical system of screening

and, in a way, ‘rescuing the European nation states’ 49

5.1 The Politics of Containment

Interests of border protection have become more important than the protection of the

individual, as harmonisation has been accompanied by policies aimed at tackling

irregular and illegal migration and human trafficking, having asylum seeker flows

increasingly portrayed as the products of international organised crime 50

. As a result,

mostly all persons intercepted, returned or otherwise prevented to reach the EU’s

territory are treated as illegal migrants, with no provisions made for potential asylum

seekers amongst them 51

. As the IFRC notes, despite the growth in asylum and refugee

law emanating from the European Union, ‘the most critical component of a

comprehensive strategy appears to be missing: effective access to international

protection/asylum in the EU’ 52

. In this light, ECRE has argued that it is important not to

Chimni, B. S. (2002) Aid, Relief and Containment: The First Asylum Country and Beyond, International Migration, vol.40 no.5 p.77

48 Downs, W. M. (2001) Review of Cederman, L. E. (2001) Constructing Europe’s Identity: The External

Dimension, The Journal of Politics, vol.63 no.4 p,1295

49 Lindstrom, C. (2005) European Union Policy on Asylum and Immigration. Addressing the Root Causes of

Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice? Social Policy and Administration, vol.39 no.6 p.592

50 Humphrey, M. (2003) Refugees: An endangered species? Journal of Sociology, vol.39 no.1 p.36

51 Leonard, S. (2010) EU border security and migration into the European Union: FRONTEX and securitisation

through practices, European Security, vol.19 no.2 p.240-1

52 International Federation of Red Cross and Red Crescent Societies (IFRC) (2008) Opinion of the National Red

Cross Societies of the Member States of the European Union and the International Federation of Red Cross and Red Crescent Societies on the European Commission Policy Plan on Asylum, p.1

allow Member States to enjoy the privilege of operating in a legal vacuum as is currently

the case 53

. The European Commission maintains that:

‘sea border surveillance activities aimed at preventing unauthorised border

crossings, whether carried out in the territorial waters of the Member States,

in the contiguous zone, in the exclusive economic zone or on the high seas,

fall within the remit of the Schengen Borders Code’ 54

This said it should be taken for granted that officials performing border checks under

these provisions should also respect other European laws and therefore the right to seek

asylum in the European Union. Instead, the wide ranging migration control measures

introduced by European states are blunt instruments, which, failing to distinguish

between refugees and ordinary migrants, undermine the foundations of the refugee

protection regime, encompassing policies such as non-arrival, diversion, restrictive

application of the 1951 Convention and deterrence policies 55

. As a result, it comes as no

surprise that the overall conclusion drawn is that the strengthened and externalised

border controls in Europe ‘have had the effect of preventing access to asylum in the

European Union’ 56

. It only remains to analyse where, that is, who at, these mechanisms

are aimed at in order to fully understand what they are set out to achieve as

discrimination seems to be ‘written into the very nature of the European Community’ 57

The European asylum regime, as a mechanism of managing and compensating for

cultural difference, seems to construct a form of socio-cultural racism whereby the

immigrant and, essentially, the asylum seeker as well, are the embodiment of cultural

difference 58

which is to be contained outside of the Union, and away from the assumed

communities of its Members’ nation states.

European Council on Refugees and Exiles (2010) Briefing on the Commission proposal for a Regulation amending Council Regulation (EC) 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), p.5 54

Ibid. p.18

55 UN High Commissioner for Refugees (October 2000) Reconciling Migration Control and Refugee Protection in

the European Union: A UNHCR Perspective, Point 19, p.7

56 International Federation of Red Cross and Red Crescent Societies (IFRC) (2008) Opinion of the National Red

Cross Societies of the Member States of the European Union and the International Federation of Red Cross and Red Crescent Societies on the European Commission Policy Plan on Asylum, p.6

57 Bhabha, J. (1998) ‘Get Back to Where You Once Belonged’: Identity, Citizenship and Exclusion in Europe,

Human Rights Quarterly, vol.20 no.3 p.598-9

58 Duffield, M. (2006) Racism, migration and development: the foundations of planetary order, Progress in

Development Studies, vol.6 no.1 p.71

5.2 Minimum Common Standards on Procedures

The starting point of any analysis of the European Union’s asylum regime is found in the

examination of its core guiding principles, the tenets of which consist of the Directive on

Minimum Common Standards and Procedures in Member States for granting and

withdrawing refugee status. If engaging only with the legislative side, European

cooperation and development on common asylum law can be argued to have

succeeded in curtailing regulatory competition and in doing so largely halting the race to

the bottom in protection standards in Europe 59

. However, this level of analysis poses as

simplistic, failing to comprehend the complex set of actions arising from the application

of such procedures. Ultimately, these are only texts of directives and not actual

measures adopted, and therefore do not allow comprehension of what scope of action

they allow in practice.

The London Conclusions set out the elements to be taken into consideration when

evaluating risks of persecution in third countries as follows:

(a) Previous numbers of refugees and recognition rates

(b) Observance of human rights

(d) Stability 60

This allows Member States to shrink their responsibilities to asylum seekers by

transferring them to third countries found in compliance with the above provisions.

According to ECRE however, this is at odds with international refugee law which sets out

that ‘the primary responsibility for international protection remains with the State where

the asylum claim is lodged’ 61

. Nevertheless, the London Resolution further states that

‘the principle of the host third country is to be applied to all applicants for

asylum, irrespective of whether or not they may be regarded as refugees’ 62

Thielemann, E. and El-Enany, N. (2010) Refugee protection as a collective action problem: is the EU shrinking its responsibilities? European Security, vol.19 no.2 p.216

60 Article 4 of the Conclusions on Countries in Which There is Generally no Serious Risk of Persecution, London,

30 November and 1 December 1992

61 Broken Promises – Forgotten Principles (2004) An ECRE Evaluation of the Development of EU minimum

standards for refugee protection, Tempere 1990 – Brussels 2004, ECRE, p.10

62 Article 1(b) of the Resolution on a Harmonised Approach to Questions concerning Host Third Countries,

London, 30 November and 1 December 1992

The third country can be considered a host country even if the applicant merely ‘had an

opportunity, at the border or within the territory of the third country, to make contact with

that country’s authorities in order to seek their protection’ 63

. Thus the politics of

European asylum containment are widened to third countries, irrespective of whether the

person concerned can and would be recognised as a refugee by the European Union.

Even the Union itself recognises the inefficiency of such a regime, with the Presidency

claiming that

‘the designation of a third country as a safe country of origin for the purposes

of this Directive cannot establish an absolute guarantee of safety for nationals

of that country. [...] For this reason, it is important that, where an applicant

shows that there are serious reasons to consider the country not to be safe in

his/her particular circumstances, the designation of the country as safe can

no longer be considered relevant for him/her’ 64

However, the application of the right of specific groups of refugees to seek asylum by

providing reasons to consider that a third country is not safe for his/her particular

circumstances is increasingly sidelined by the general application of the regulation. This

is particularly evident when further examination of regional and thematic approaches to

the notion of asylum is conducted.

Hence, a Communication from the Commission describing a strategy on the External

Dimension of the Area of Freedom, Security and Justice highlights the importance of

‘geographic prioritisation’ 65

. The list of regions sets out the political priorities for each

region as follows:

‘Cooperation with the Western Balkan countries is intensive with the aim of

strengthening stability in the region in the light of the countries’ European

perspective. As regards Russia, justice, freedom and security has become a

central feature of the strategic partnership. For Ukraine, strengthening

stability through the European Neighbourhood Policy and promoting capacity

Article 2(c) of the Resolution on a Harmonised Approach to Questions concerning Host Third Countries, London, 30 November and 1 December 1992

64 Footnote 1 of the Note from the Presidency on the subject of the amended proposal for a Council Directive

on minimum standards on procedures in Member States for granting and withdrawing refugee status 8772/04 2000/0238 (CNS), p.4

65 Chapter V of the Communication from the Commission: A Strategy on the External Dimension of the Area of

Freedom, Security and Justice COM(2005) 491 final

building such as a fundamental overhaul of the judiciary, and the

development of border management and an asylum system in line with

European standards. With the Mediterranean countries, strengthening good

governance and the rule of law as well as improving migration

management and security are the main goals. [...] Migration and border

management are at the top of the agenda, and partnerships should be

strengthened in the region with countries of origin and transit. Further

progress is necessary on readmission agreements, and efforts to

develop the dialogue with Libya on migration should be pursued.’ 66

The priorities of migration and border management are highlighted particularly for the

Mediterranean countries, recognised as the greatest transit zone for African asylum

seekers. Readmission agreements which target asylum seekers as much as they do

other types of migrants are emphasised upon, in practice allowing for the third country

principle to be applied. Such thematic approaches, are consistent in most EU strategies

on migration and asylum, highlighting the continuous importance to better control and

contain African populations, with a much more tranquil approach adopted towards other

regions.

One important element has however been ignored by the Directive – that of access. With

this in mind, a proposal to amend the Directive on minimum standards on procedures

has been erected in 2009, adding the notion of responsibility. It states that

‘with a view to ensuring an effective access to the examination procedure,

officials who first come into contact with persons seeking international

protection, in particular those carrying out surveillance of land or maritime

borders or conducting border checks, should receive instructions and

necessary training on how to recognise and deal with requests for

international protection. They should be able to provide third country nationals

or stateless persons who are present in the territory, including at the border,

in the territorial waters or in the transit zones of the Member States, and wish

to request international protection, with all relevant information as to where

and how applications for international protection may be lodged. Where those

persons are present in the territorial waters of a Member State, they should

Chapter VII of the Communication from the Commission: A Strategy on the External Dimension of the Area of Freedom, Security and Justice COM(2005) 491 final, original emphasis

be disembarked in land and have their applications examined in accordance

with this Directive’ 67

This provision carries particular weight given the fact that land and maritime surveillance

conducted extensively by Member States throughout the Mediterranean, often focus on

intercepting and deterring groups of migrants attempting to gain access to the territory of

the European Union, irrespective whether or not potential asylum seekers are amongst

them. Hence, this provision would enable for a more effective asylum system in the EU,

allowing it to fulfil the duties it is prescribed by international refugee law. However, the

Proposal was not passed; maintaining asylum seekers intercepted at European maritime

borders trapped within the rejection circles of restrictive migration laws of the Union.

Again, a regional overview of the restrictive European asylum regime demonstrates who

the primary target of such provisions is. A Communication from 2010 shows that during

that year ‘the most important countries of citizenship of asylum seekers in the EU were,

in order: Afghanistan (20 580), Russia (18 500), Serbia (17 715, excluding Kosovo), Iraq

(15 800) and Somalia (14 350)’ 68

. Therefore, the greatest influx of asylum seekers in the

EU came from its Eastern and South-Eastern Borders. Nevertheless, the same

Communication, highlights the need to address ‘the geographic and thematic priorities of

the EU’, offering ‘a structured dialogue on migration, mobility and security to its partner

countries, and in particular those in the Southern Mediterranean’ 69

. This highlights two

points. Firstly, the number of asylum seekers in the EU seems to be originating

significantly less from North Africa than other regions. This may be a direct result of

reduced refugee flows from the region or, more likely, due to the effectiveness of

mechanisms erected in order to stem their flow. Secondly, although partnerships on

issues such as migration, mobility and security existing between the European Union and

other states and regions, such as Russia, Eastern and South-Eastern Europe and Asia;

the focus is placed on the Southern Mediterranean, despite figures pointing in another

direction. Therefore, the current containment apparatus of the European Union is

primarily aimed at asylum seekers from the African continent.

New Point 19 in the Proposal for a Directive of the European Parliament and of the Council on minimum standards on procedures in Member States for granting and withdrawing international protection COM(2009) 554 final 2009/0165(COD)

68 Chapter II(2) of the Communication from the Commission to the European Parliament and the Council:

Annual Report on Immigration and Asylum (2010) COM(2011) 291final

69 Chapter V of the Communication from the Commission to the European Parliament and the Council: Annual

Report on Immigration and Asylum (2010) COM(2011) 291final

5.3 From Dublin to Stockholm

The Dublin Convention

The Dublin Convention was set out to deal with issues concerned with determining the

Member State responsible for the examination of an asylum application. It was replaced

in 2003 by the Dublin II Regulation which reaffirms these principles, dealing with a

variety of scenarios including applications for asylum lodged in other Member States or

transit zones, applicants with family members present in the European Union and

applicants in possession of a valid visa for one or more Member States 70

. However, what

the Regulation inherently fails to do is address the scenario which has by now become

common – that of responsibility for applications lodged in international waters in the case

of interception. Thus what European refugee law is consistently failing to do is to

address the cases arising as a result of the provisions and actions adopted by the

European Union itself.

In 2004, the EU Justice and Home Affairs Council introduced a Regulation for creating a

network of immigration liaison officers, aiming to prevent and combat illegal migration,

the return of illegal migrants and the management of legal migration 71

. However, the

Regulation makes no reference to the notion of asylum and the right to seek

protection 72

. Therefore, asylum seekers intercepted in international waters are most

likely to be returned to third countries without being given the option to seek protection in

the EU. Having in mind that, as Figure 3 in the Annex shows, most maritime operation

are concentrated in the Mediterranean, it is, again, the asylum seekers from the African

continent that are most vulnerable to such provisions, or rather, the lack of them.

Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

71 Article 2 of the Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration

liaison officers network

72 Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees‟ (2006) Human Rights Watch,

vol.18 no.5, p. 95

The Hague Programme

The Hague Programme aims at strengthening freedom, security and justice in the

European Union stressing the equal need for intensified cooperation and capacity

building ‘both on the southern and the eastern borders of the EU’ 73

. However, there are

significant differences in the application of cooperation between these two regions. The

Programme states that ‘it welcomes initiatives by Member States for cooperation at sea,

on a voluntary basis, notably for rescue operations’ 74

. Yet, as this paper shows in

Section 5.6, cooperation at sea has been inherently regionally-oriented, notably placing

primary focus on the Southern Mediterranean. It is also applied consistently with aims

different to the proclaimed goal of rescue operations, focusing rather on stemming

migration and asylum flows from reaching European coasts.

The Schengen Borders Code

Article 3 establishing the scope of the Schengen Borders Code states that the

Regulation applies to any person crossing an international border without prejudice to

the rights of refugees and persons requesting international protection 75

. In order to reach

European Union territory, Article 5 sets Entry Conditions for third-country nationals as

follows:

‘For stays not exceeding three months per six-month period, the entry conditions for

third-country nationals shall be the following:

(a)they are in possession of a valid travel document or documents authorising

them to cross the border; (b) they are in possession of a valid visa, if required

pursuant to Council Regulation (EC) No 539/2001 of 15 March 2001 listing

the third countries whose nationals must be in possession of visas when

crossing the external borders and those whose nationals are exempt from

that requirement (1), except where they hold a valid residence permit; (c) they

justify the purpose and conditions of the intended stay, and they have

sufficient means of subsistence, both for the duration of the intended stay and

Article 1(1.6.3.) of The Hague Programme: Strengthening Freedom, Security and Justice in the European Union (2005/C 53/01) 74

Article 1(1.7.1) of The Hague Programme: Strengthening Freedom, Security and Justice in the European Union (2005/C 53/01)

75 Article 3(b) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006

establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)

for the return to their country of origin or transit to a third country into which

they are certain to be admitted, or are in a position to acquire such means

lawfully; (d) they are not persons for whom an alert has been issued in the

SIS for the purposes of refusing entry; (e) they are not considered to be a

threat to public policy, internal security, public health or the international

relations of any of the Member States, in particular where no alert has been

issued in Member States’ national data bases for the purposes of refusing

entry on the same grounds’ 76

Therefore it is not applying for asylum, but reaching the territory of the European Union in

order to do so that is extremely difficult. With the erection of carrier sanctions and strict

border check mechanisms, the European Union has closed off its borders to migrants

and therefore would-be asylum seekers from Africa and Asia, revealing the biopolitical

patterns of European migration and asylum policies. Thus, despite the Schengen

Borders Code Regulation encompassing a clause stating that

‘by way of derogation from paragraph 1[...] (c) third-country nationals who do

not fulfil one or more of the conditions laid down in paragraph 1 may be

authorised by a Member State to enter its territory on humanitarian grounds,

on grounds of national interest or because of international obligations’, 77

those attempting to reach Europe from Africa and Asia are prevented from obtaining the

opportunity to reach EU territory in advance, in most cases, as Figure 1 in the Annex

shows.

Article 5(1) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)

77 Article 5(4) of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006

establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)

The Stockholm Programme

The Stockholm Programme claims to be set out to achieve an Open and Secure Europe

Serving and Protecting Citizens. Therefore it should come an no surprise that national

interests prevail in the Regulation, as a Europe of Responsibility, Solidarity and

Partnership in Migration and Asylum as Article 6 describes the Union as, turns into a

mechanism for stemming asylum flows as the, already described as inefficient Dublin

System ‘remains a cornerstone in building a Common European Asylum System

(CEAS)’ 78

. The idea of regional approaches is echoed again, as the Programme calls for

the creation of Regional Protection Programmes to be incorporated into the Global

Approach to Migration 79

. Additionally, migration and asylum are further externalised,

placed in Article 7, Europe in a Globalised World – The External Dimension of Freedom,

Security and Justice, with return and readmission agreements with third countries placed

as a priority in the Union’s external relations 80

The mentioned regional programmes are elaborated further within the external

dimension. Again, a different pattern is applied to different regions. Hence, in the

Western Balkans the focus is placed on Stabilisation and Association Agreements

through which issues such as visa policy facilitation and readmission agreements are

slowly developed. Regarding Turkey, priorities are set on concluding the negotiations on

readmission agreements. Engagement with the Black Sea Region aims at supporting

stability and security, alongside border and migration management. In terms of the

Russian Federation the focus is placed on cooperation within the framework of the visa

dialogue, legal migration, tackling organised crime and the improvement of judicial

cooperation. Only for the Mediterranean Region is there a sense of alarm, highlighting

that it is necessary to enhance the work regarding migration (maritime) border

surveillance, and a stronger partnership with countries of transit and of origin based on

reciprocal requirements and operational support, including border control, fight against

organised crime, return and readmission. 81

Reaching swift conclusions with Algeria,

Article 6(2) of The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens 2010/C 115/01

79 Article 6(2.3) of The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens

2010/C 115/01

80 Article 7(3) of The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens

2010/C 115/01

81 Article 7(4) of The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens

2010/C 115/01

Morocco, Egypt and Libya is placed as high priority and portrayed as a matter of

exceptional urgency.

Even regarding countries with recognised high numbers of refugees, many of which

seek refuge in the EU - Afghanistan and Iraq - the position of the European Union

seems more at ease, stating that focus should be kept on effectively addressing the

refugee situation through a comprehensive approach and efforts should be made to

address illegal immigration flows and conclude readmission agreements 82

, but there is

no sense of panic. As a result, the adjustments undertaken to accommodate national

executives’ beliefs and interests in the process of setting migration and asylum laws, and

priorities in the Stockholm Programme 83

, portray a picture of mechanisms developed to

stem the flow of migrants and asylum seekers especially from North Africa, constructing

the European refugee regime as a biopolitical apparatus created to manage populations

and serve the purpose of closing down EU borders for any form of protection to these

specific group.

Article 7(4) of The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens 2010/C 115/01

83 Kostakopoulou, D. (2010) An open and secure Europe? Fixity and fissures in the area of freedom, security

and justice after Lisbon and Stockholm, European Security, vol.19 no.2 p.161-2

5.4 Other principles, actions and tools

The early tools set out to deal with issues of asylum have been seen as a failure as, for

example, the workings of the HLWG on Asylum and Migration set up in 1998 focus not

on root causes such as ‘human rights violation and poverty, or on protection of refugees,

but instead on measures to prevent entry into Europe’ 84

. Until now, little has changed.

The only advancement of the current system is that it becomes more obvious which

ethnic group’s containment takes priority.

Global Approach to Migration

The European Union continuously justifies its actions based on notions of universal

values, claiming that due to its ‘humanitarian traditions, Europe will also continue

showing solidarity with refugees and persons in need of protection’ 85

. What official

documents do not state is the plethora of mechanisms developed to reduce and prevent

the arrival of those in need of protection. Were these mechanisms developed actually

driven by notions of humanitarianism and non-discrimination, there would be no need for

the IFRC to issue a report highlighting the need for all claims to be seen as ‘unique’ and

thus ‘accordingly processed individually and considered on their individual merits without

resort to generalised assessments based on e.g. nationality’ 86

. It is essentially such

generalisation that are inherent in the Global Approach to Migration, seeing regions

outside the European Union as blocks producing irregular migrants and refugees which

are to be contained outside the Union’s borders.

Analysing prospects of a Common Immigration Policy for Europe, the Commission

remains consistent in its insistence on maintaining the principles set out in the Global

Approach to Migration, and the mechanism of partnerships with third countries. Again, it

specifically highlights the importance of engaging closely with the African partners to

jointly implement plans on migration and mobility 87

. Similarly, in a Communication from

Chimni, B. S. (2002) Aid, Relief and Containment: The First Asylum Country and Beyond, International Migration, vol.40 no.5 p.87

85 Introduction, paragraph 12 of the Communication from the Commission to the European Parliament, the

Council, the European Economic and Social Committee and the Committee of the Regions: A Common Immigration Policy for Europe: Principles, actions and tools COM(2008) 359final

86 International Federation of Red Cross and Red Crescent Societies (IFRC) (2008) Opinion of the National Red

Cross Societies of the Member States of the European Union and the International Federation of Red Cross and Red Crescent Societies on the European Commission Policy Plan on Asylum, p.3

87 Article 6 of the Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions: A Common Immigration Policy for Europe: Principles, actions and tools COM(2008) 359final

the Commission on the topic of Strengthening the Global Approach to Migration, a

regional division is maintained. For the Eastern and South-Eastern regions neighbouring

the EU, it is emphasised that dialogue and cooperation on migration are already

underway through various frameworks, ascertaining that there would be an added value

in developing cooperation in ‘the areas of labour migration management, development-

enhancing remittances, voluntary return and reintegration of migrants and diaspora

networks’ 88

. On the other hand, regarding Southern migratory routes, there is again a

sense of exceptional measures, calling for ‘new forms of dialogue and cooperation

between countries from various regions and settings, beyond the traditional boundary

lines of relations between the European Union and these countries’ 89

Therefore, the Global Approach to Migration supplements other mechanisms of the

European asylum apparatus, reinforcing the idea that migrants and asylum seekers from

other regions can be managed through further development of existing agreements,

whilst only those originating from Africa specifically, need to be controlled through the

adoption of measures beyond the traditional lines of existing agreements.

Border Surveillance System

With notions of prevention shifting from preventing the root causes of migration,

assuming a new meaning – ‘preventing the influx of refugees and immigrants into the

EU’ 90

, even the Union itself published a number of reports emphasising the negative

effects such developments have on refugees, arguing that the ‘legitimate measures

introduced to curb irregular migration and protect external borders should avoid

preventing refugees’ access to protection in the EU’ 91

. Acknowledging that the issue of

asylum seekers’ access to the EU has increasingly come into question, the Commission

proposed the development of mechanisms capable of allowing for the differentiation

between persons in need of protection and other categories of migrants before they

Article 3(2) of the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions Strengthening the Global Approach to Migration: Increasing coordination, coherence and synergies COM(2008) 611 final

89 Article 3(1) of the Communication from the Commission to the European Parliament, the Council, the

European Economic and Social Committee and the Committee of Regions Strengthening the Global Approach to Migration: Increasing coordination, coherence and synergies COM(2008) 611 final

90 Lindstrom, C. (2005) European Union Policy on Asylum and Immigration. Addressing the Root Causes of

Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice? Social Policy and Administration, vol.39 no.6 p.594

91 Article 2 of the Communication from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of Regions Policy Plan on Asylum: An integrated approach to protection across the EU COM(2008) 360 final

reach the border of potential host States 92

. How such a mechanism would work, for the

Southern Maritime Border, rigorously patrolled by FRONTEX with an aim of intercepting

and returning vessels carrying migrants back to third countries, is not clear.

Meanwhile, the creation of a European Border Surveillance System began, stating that it

is set out to allocate priority ‘to examining the creation of a European Surveillance

System for the southern maritime borders’ 93

. The Communication sets out an ambitious

plan of creating an ‘integrated network of reporting and surveillance systems for border

control and internal security purposes covering the Mediterranean Sea, the southern

Atlantic Ocean (Canary Islands) and the Black Sea’ 94

, presumably as a general

approach to Europe’s borders in cooperation with FRONTEX. However, a Report on

progress made in developing the European Border Surveillance System, despite

maintaining the Black Sea region in the heading of Phase 3, Step 7, contains no

reference to it, focusing instead solely on the Southern Maritime Border referring to a

‘proposal for a pilot project on the integration of maritime surveillance in the

Mediterranean Sea and its Atlantic approaches’ 95

. Respectively, FRONTEX maritime

operations remain focused on the Mediterranean, and have not experienced any

significant development towards encompassing patrols and border protection operations

in the Black Sea Region, as Figures 3 and 4 in the Annex demonstrate. Thus, once

again, priority is placed on guarding the Southern Borders, and therefore strategies to

effectively stem the flows of the ethnically-different migrants and asylum seekers from

the African continent.

Article 5(2.3) of the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions Policy Plan on Asylum: An integrated approach to protection across the EU COM(2008) 360 final

93 Introduction, paragraph 2 of the Communication from the Commission to the European Parliament, the

Council, the European Economic and Social Committee and the Committee of the Regions Examining the creation of a European Border Surveillance System (EUROSUR) COM(2008) 69final

94 Article 4(3.1, Step 7) of the Communication from the Commission to the European Parliament, the Council,

the European Economic and Social Committee and the Committee of the Regions Examining the creation of a European Border Surveillance System (EUROSUR) COM(2008) 69final

95 Article 2(3.1.2) of a Commission Staff Working Paper: Report on Progress Made in Developing the European

Border Surveillance System (EUROSUR) SEC(2009) 1256final

Readmission Agreements

Readmission agreements between the European Union and third countries, encompass

no specific procedure for the ‘examination of the human rights record of countries people

are being returned to,’ 96

. Nevertheless, readmission agreements have been signed

between the European Union and a number of third countries, with a diverse set of

human rights and refugee protection records. What is more important for the purpose of

this paper is the fact that regional differentiation within these agreements is once more

present. The AENEAS Programme for financial and technical assistance to third

countries in the area of migration and asylum provides an example. With a global

approach, the programme is divided into regions – the African and Mediterranean; the

South-Eastern European; the Eastern; the Southern and Eastern Asia; and the Latin

America and Caribbean migratory routes 97

. Only two African countries, Morocco and

Algeria, ‘have been given priority as regards their eligibility under the AENEAS

programme 98

’ regarding negotiating readmission agreements with the European

Commission. Thus again, the focus is clearly placed on African migrants and asylum

seekers, with calls for reaching readmission agreements with North African states

continuously finding place in EU strategy papers, and their return to where they came

from, away from the European Union, no matter the consequences.

Regional Protection Programmes

Regional protection Programmes serve the purpose of containment most clearly. A

common justification offered by Member States for their preference for containment is

that ‘the primacy of overseas resettlement, the exilic bias, of post-war refugee policy

must be reversed’ 99

, employing an ironic twist of the human rights discourse. The

Commission also suggested that by screening asylum seekers outside of European

borders might ‘constitute an efficient tool in combating sentiments of racism and

xenophobia as the public would recognise that they have valid reasons for applying for

Broken Promises – Forgotten Principles (2004) An ECRE Evaluation of the Development of EU minimum standards for refugee protection, Tempere 1990 – Brussels 2004, ECRE, p.23

97 AENEAS programme: Programme for financial and technical assistance to third counties in the area of

migration and asylum, Overview of projects funded 2004-2006, European Commission

98 Lindstrom, C. (2005) European Union Policy on Asylum and Immigration. Addressing the Root Causes of

Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice? Social Policy and Administration, vol.39 no.6 p.597-8

99 Shacknove, A. (1993) From Asylum to Containment, International Journal of Refugee Law, vol.5 no.5 p.522-3

protection within the Union’ 100

. However, comparing examples of asylum seekers from

Kosovo and Zimbabwe, Schuster highlights the fact that, whilst Kosovans received a

considerably warmer reception in Europe compared to other groups, in case of

Zimbabwe it took a fierce struggle of campaigning to put an end to deportations of

asylum seekers from Europe back to the country 101

. Despite recognition that both groups

were facing persecution, it was the African asylum seekers whose suffering was harder

to acknowledge and provide protection for. The Communication and Schuster’s

research, offer evidence firstly, of xenophobic sentiments present towards asylum

seekers in Member States, and secondly, suggest that those arriving from Africa are in

advance placed in an unfavourable position through a mechanism guided by ethnic

sentiments.

The external reception centres, proposed on the basis of a Global Approach to

Migration, set the path for a complete externalisation of the asylum procedure, with

asylum seekers detained while their claims are assessed 102

. Two pilot projects were

authorised, in the African Great Lakes region and in Eastern Europe. Once an asylum

claim is determined, the applicant is repatriated to the home country, where there is no

longer need for protection or integrated locally into the community of a host country,

whilst only in cases where these two are not possible, the applicant is resettled in the

European Union 103

. Whilst approving the pilot projects, the UNHCR emphasised that

such a programme can by no means serve the purpose of replacing the possibility of

obtaining asylum in the EU. There is thus a general concern that ‘European policies on

border control contradict the aim at making human rights protection one of the flags of

European security governance outwards’ 104

. With the growing number of refugee camps

and detention centres at the outer borders of the Union, especially in North Africa, as

Figure 2 in the Annex shows, this concern seems valid. Regional Protection

Programmes thus serve the purpose of stipulating a mechanism that circumvents

100

Chapter 1(16) of the Communication from the Commission to the Council and the European Parliament on the Managed Entry in the EU of Persons in Need of International Protection and the Enhancement of the Protection Capacity of the Regions of Origin: ‘Improving Access to Durable Solutions’ COM(2004) 410 final

101 Schuster, L. (2003) Common sense or racism? The treatment of asylum-seekers in Europe, Patterns of

Prejudice, vol.37 no.3 p.237

102 Lavenex, S. (2006) Shifting Up and Out: The foreign policy of European immigration control, West European

Politics, vol.29 no.2 p.343

103 Lavenex, S. (2006) Shifting Up and Out: The foreign policy of European immigration control, West European

Politics, vol.29 no.2 p.343

104 Ceccorulli, M. (2010) Security and Migration: The development of the Eastern dimension, European

Security, vol.19 no.3 p.504-5

international refugee law as the Statute of the Office of the UNHCR and the UN Refugee

Convention and its Protocol maintain that ‘victims of persecution must be outside their

country of origin in order to be recognised and protected bona fide as refugees’ 105

Therefore, by erecting RPPs, and negotiating cooperation agreements with third

countries, as is increasingly the case with African states, the European Union manages,

by a thin line, to avoid directly violating international refugee law, controlling populations

by preventing asylum seekers from leaving their host regions in the first place and,

essentially, from placing foot on European soil.

5.5 FRONTEX

Amongst the earliest tasks that FRONTEX was allocated by the European Commission

was to investigate the feasibility of improving coordinated monitoring of the

Mediterranean, quickly followed by another study - BORTEC - which considered the

associated challenge of establishing a surveillance system covering the entire southern

maritime border alongside the open sea beyond 106

. From its very outset therefore, the

Agency was focused on controlling Europe’s Southern Border. The Regulation

establishing FRONTEX allocated it the following tasks:

‘a) coordinate operational cooperation between Member States in the field of

management of external borders; (b) assist Member States on training of

national border guards, including the establishment of common training

standards; (c) carry out risk analyses; (d) follow up on the development of

research relevant for the control and surveillance of external borders; (e)

assist Member States in circumstances requiring increased technical and

operational assistance at external borders; (f) provide Member States with the

necessary support in organising joint return operations’ 107

There is no specific provision granting FRONTEX the task of continuously patrolling

Europe’s Mediterranean Border, not to mention provisions setting out procedures

regarding asylum. With its involvement in rescue operations at sea, FRONTEX has

posed as an Agency with humanitarian concerns. However, having in mind that

FRONTEX operations encompass interception and diversion of vessels, potentially

105

Shacknove, A. (1993) From Asylum to Containment, International Journal of Refugee Law, vol.5 no.5 p.527-8

106 Lodge, A. (2010) Beyond the Frontiers: Frontex: the First Five Years, Frontex, p.39

107 Article 2(1) of Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for

the Management of Operational Cooperation at the External Borders of the Member States of the European Union

carrying asylum seekers on board as well, the proposed ‘humanitarian benefit -

preventing the loss of life at sea - trumps a human right - the right to leave and seek

asylum’ 108

. In fact, apart from actual rescue operations at sea, Member States’ and

FRONTEX officials ‘have avoided coming into contact with the people on board

intercepted vessels’ 109

, as diversion preventing access to territorial water of the Union is

utilised as a primary form of interception. This means that potential asylum seekers are

not given the chance to seek asylum, treated instead as illegal migrants and returned to

third countries outside the EU. In this way Member States, according to Sirtori and

Coelho, circumvent their responsibilities under international refugee and human rights

law, as ‘control exercised over those on board amounts to jurisdiction’ 110

, in effect

amounting to responsibility for potential asylum seekers on board as well. Nevertheless,

Member States are found to ‘attribute responsibility for possible breaches of human

rights and refugee law which occur in the course of, or as a result of joint operations

exclusively to the third country in whose territorial waters the operation was carried

out’ 111

. And with the EU asylum regime increasingly taking place outside the borders of

the Union, this means that responsibility has the potential of being fully shifted outwards.

FRONTEX thus poses as an incomparable mechanism for controlling and containing

various forms of migration, including asylum seekers. With its specific focus on the

Mediterranean Border it is the embodiment of the biopolitical ethnic-separatist project, as

‘never before has there been such a high level of sophistication in the coordination of

operation aiming to expel certain groups of migrants amongst such a large group of

states’ 112

. It is important to note at this point that FRONTEX is mainly a ‘coordinator of

EU Member States’ activities’ 113

, meaning the actions espoused by the Agency are the

result of Member States’ interests. And the primary focus is, once again, placed on

groups of migrants, including asylum seekers, coming from Africa, as an assessment of

FRONTEX’s first five years states that ‘there was no doubt in anyone’s mind where the

108

Pushed Back, Pushed Around (2009) Human Rights Watch, p.37

109 Sirtori, S. and Coelho, P. (2007) Defending Refugees’ Access to Protection in Europe, ECRE, p.38-9

110 Sirtori, S. and Coelho, P. (2007) Defending Refugees’ Access to Protection in Europe, ECRE, p.38-9

111 European Council on Refugees and Exiles (2010) Briefing on the Commission proposal for a Regulation

amending Council Regulation (EC) 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX), p.19

112 Leonard, S. (2010) EU border security and migration into the European Union: FRONTEX and securitisation

through practices, European Security, vol.19 no.2 p.246

113 Leonard, S. (2010) EU border security and migration into the European Union: FRONTEX and securitisation

through practices, European Security, vol.19 no.2 p.248

[future] focus of maritime attention lay: the Mediterranean Sea’ 114

. Despite Article 31 of

the 1951 Refugee Convention recognising that asylum seekers may enter the territory of

a signatory State without authorisation 115

, their very attempt to reach the territories of the

European Union is prevented, with their illegal status used to disqualify their rights 116

Through Joint Operation HERA, aimed at preventing irregular migration to the Canary

Islands, ‘bilateral agreements have been negotiated by Spain to allow interception not

just on the high seas but also inside Senegalese and Mauritanian territorial waters’ 117

allowing for interception and diversion of boats back to their points of departure.

Similarly, in 2010 the European Commission signed a Migration Cooperation Agenda

with Libya, agreeing to ‘jointly address the challenge of managing migration and

protecting refugees by offering 50 million Euros in aid to stop migrants and would-be

refugees transiting through Libya on their way to Europe’ 118

. With border control

operations financed by both the European Union and Italy, Libya has instituted a regime

of containment of African migrants and asylum seekers, who are intercepted at sea and

returned to Libya without being given a chance to reach European land and claim

protection.

114

Lodge, A. (2010) Beyond the Frontiers: Frontex: the First Five Years, Frontex, p.38

115 Article 31(1) of the 1951 Convention and Protocol Relating to the Status of refugees, UNHCR

116 Humphrey, M. (2003) Refugees: An endangered species? Journal of Sociology, vol.39 no.1 p.37

117 European Council on Refugees and Exiles (2010) Briefing on the Commission proposal for a Regulation

118 Noll, G. and Giuffre, M. (2011) EU Migration Control: Made by Gaddafi? International Relations and Security

Network

5.6 Thematic Programmes

The Thematic Programmes of the European asylum regime are erected with the aim of

setting clear principles and objectives for the Union’s engagement with third countries. At

the same time, they serve the purpose of reducing ‘the burden of control at their

[Member States’] immediate borders and increases the chances of curtailing unwanted

inflows before they reach the common territory’ 119

. As such, by analysing where the

focus of these is placed and what kind of action is prescribed, a better understanding of

the Union’s objectives concerning specific regions, and thus populations can be

obtained.

Thematic Programmes are conducted through the AENEAS Programme, whose annual

working programmes provide a breakdown of regions, specifying the objectives and

activities the EU aims to pursue. For Eastern Europe, Southern Caucasus and Central

Asia, the aim is to improve international protection by improving the conditions of

reception and of the capacity of registration and documentation of their asylum seekers

and refugees as well as integration in the host country. The same approach is applied to

Turkey. In the context of Sub-Saharan Africa, activities to be assumed encompass

reinforcing the capacity of protection in the host regions especially in order to support

the management of national authorities, develop registration and documentation

systems for refugees and tackle the problems concerning their integration in the host

regions. Again, only in the case of North Africa, exceptional measures are called for and

elaborated through the objectives of improving conditions of reception of refugees in the

region, improving international protection, complying with international conventions and

reinforcing legal structures in the regions, alongside promoting regional cooperation in

the field of management of migratory flows, especially transit migration, illegal migration

and trafficking in human beings. Hence, the types of activities to be adopted include a

plethora of measures aimed at developing regional dialogue on asylum and

strengthening of the legislative capacities and of the expertise available in the region,

developing and setting up of a protocol defining short and medium term immediate

responsibility for the victims of shipwreck and clandestine passage as well as developing

a network of liaison officers for harbour and airport control of migration 120

. Thus,

119

Haddad, E. (2008) The External Dimension of EU Refugee Policy: A New Approach to Asylum? Government and Opposition, vol.43 no.2 p.197

120 Annex II: AENEAS Working Programme 2005 in the Communication from the Commission to the European

Parliament and the Council: Thematic programme for the cooperation with third countries in the area of migration and asylum COM(2006) 26final

regulating migration flows, which include asylum seekers as well, is placed on a highly

elaborated level in the context of the greatest transit zone for African migration - North

Africa, whilst other regions are assumed to continue gradual development of their

migration management systems.

The importance attributed to instituting control mechanism across the Southern

Mediterranean by the European Union is highlighted by its determination to reach an

agreement with Libya despite the fact the Tripoli is not officially committed to protecting

refugees and asylum seekers, as it is not party to the 1951 Refugee Convention and its

Protocol, nor has it transposed the 1974 OAU Convention Governing the Specific

Aspects of Refugee Problems in Africa into official law, despite ratifying the document in

1981. This seems to have had little effect upon it reaching an agreement with the

European Union in 2004, encompassing ‘modern border control equipment, joint patrols,

and the establishment of reception centres to intercept would-be immigrants and asylum

seekers’ 121

. This raises two important points. Firstly, it shows that the European Union is

primarily concerned with stemming the flow of refugees irrespective of whether their

safety can be guaranteed at the borders that the European asylum regime has created.

Secondly, it demonstrates, once again, how important strengthening Europe’s Southern

and exclusionary Border is for the European Union.

Despite calls for Libyan authorities to ‘demonstrate a genuine commitment to fulfil their

obligations under the OAU Convention’ and stressing that until advancements in this

field take place cooperation with Libya can only be ‘limited in scope and take place on a

technical ad hoc basis’, the European Presidency nevertheless calls for an extension of

such cooperation to other countries of origin and transit on the African continent ‘in close

relation with the relevant regional organisations to develop a wider approach to

migration management on the African continent’ 122

. Therefore, human and refugee rights

are sidelined against efforts to control the movement of African populations towards

Europe and, essentially, given the application of such control so far, prevent African

asylum seekers from reaching the European Union. The politics of power thus become

embodied in the biopolitical nature of European asylum law, leading Europe, as a result,

to create a paradox through the process of defining its territorial and social boundaries

121

Lavenex, S. (2006) Shifting Up and Out: The foreign policy of European immigration control, West European Politics, vol.29 no.2 p.340

122 Note from the Presidency to the Council: Draft Council Conclusions on initiating dialogue and cooperation

with Libya on migration Issues, 9413/1/05 REV1

as ‘failure to adhere to human rights norms excludes states from membership of the EU,

but individuals excluded from access or membership frequently are denied those core

constitutive protections in the process’ 123

. This process of articulating and practicing

restrictive migration and asylum policy not only leads to questions concerning the fate of

refugees, it also poses as ‘a reflection of the kind of society that the European Union is

building’ 124

. It is a direct application of what Sarkozy has called for, claiming that there

was insufficient concern ‘about the identity of the country that was receiving’ 125

. The EU

asylum regime allows such calls for ethnic nationalism to be expressed, allowing as a

result Member States to mechanism based on such identitarian concerns against those

perceived as ethnically-Others, ultimately, as a result, stemming the flow of African

asylum seekers attempting to reach Europe.

123

Bhabha, J. (1998) ‘Get Back to Where You Once Belonged’: Identity, Citizenship and Exclusion in Europe, Human Rights Quarterly, vol.20 no.3 p.612

124 Statement by Bjarte Vandvik, ECRE Secretary General (2008) The European asylum system: ‘common

shouldn’t mean mediocre’, ECRE, p.4

125 Nicolas Sarkozy declares multiculturalism had failed (2011) Telegraph

6. Case Study: Italy

Considering the Italian perspective on notions of asylum is important in order to provide

a Member State’s view, with the aim of generating a more comprehensive understanding

of the overall European response, as the Union remains an intergovernmental

organisation in this sphere. With measures to contain asylum seekers primarily focused

on the Southern Mediterranean, and thus the regions of greatest concern for the EU,

using the example of Italy which ‘because of its geographical position, is the natural

landing space for all the migration flows coming from Northern Africa’ 126

, seems rational.

Italian cooperation with African states, especially Libya, on asylum is more developed

than that of the European Union 127

. Article 19 of the 2008 Friendship Treaty calls for two

things regarding migration and asylum - previous agreements and protocols on migration

to be implemented with 2000km of Libyan coast patrolled by mixed crews on patrol

boats provided by Italy; and Libyan land borders to be controlled by a satellite detection

system jointly financed by Italy and the European Union 128

. It is essential to keep in mind

that operations agreed between Italy and Libya serve general interests of the Union as

well in terms of controlling the Southern Border. Thus, two months after the agreement,

the European Union lifted its eighteen-year arms embargo on Libya so that the country

could import equipment to control its borders and limit the migration flow 129

, towards

Europe.

In 2010 FRONTEX reported only 150 detections of illegal migration in the first three

months of the year in Malta and Italy, down from 5,200 in the corresponding period of

2009, attributing the drop to the agreement between Italy and Libya which allows the

return of illegal migrants to Libya, without screening for refugees 130

. In reality, statistics

reveal that ‘over 50% of asylum seekers arriving in Italy are recognised as refugees’ 131

Italian authorities have in fact ‘acknowledged officially that they do not proceed with the

126

Franceschelli, R. (2002) Recent Developments in the Italian Refugee Legislation: How do they Fit in a European Migration and Refugee Policy? The Cicero Foundation,

127 Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees(2006) Human Rights Watch,

vol.18 no.5, p.99

128 Ronzitti, N. (2009) The Treaty on Friendship, Partnership and Cooperation between Italy and Libya: New

Prospects for Cooperation in the Mediterranean?, Istituto Affari Internazionali, p.5

129 Stemming the Flow: Abuses Against Migrants, Asylum Seekers and Refugees(2006) Human Rights Watch,

vol.18 no.5, p.102

130 Business Middle East: Migration Phobia (2010), The Economist Intelligence Unit Limited

131 Press release: EU shouldn’t shift its responsibility for refugees to Africa (2009) ECRE

formal identification of migrants who are pushed back’ 132

, and therefore potential asylum

seekers are not given the opportunity to lodge an application for protection. Even if such

action was taking place, the CPT Report highlights that even if protection was requested

aboard an Italian vessel, ‘there is no procedure in place capable of referring him/her to a

protection mechanism’ 133

. Meanwhile, Berlusconi was quoted by the Italian media saying

that the Italian idea it to ‘take only those citizens who are in a position to request political

asylum [...] referring to those who put their feet down on our [Italian] soil’ 134

. This is

apparently a shared view across the Union demonstrated by the measures adopted both

by Member States as well as at EU level.

Once again, neither Italy, nor the European Union, have been prevented in erecting

restrictive asylum regimes in light of human and refugee rights violations. Instead, the

Italian government signed a cooperation agreement with Libya, whilst negotiations with

the European Union are taking place outside of the Barcelona Process which calls for

respect of human rights and international obligations 135

. It seems that containing African

migrants and refugees away from Italy and Europe takes precedence over all other

issues. In this light, Berlusconi’s statement provides an explanation and a suitable

conclusion for such an extensive approach to achieving this goal:

‘The Left’s idea is that of a multiethnic Italy. That is not our idea. We don’t

want Italy to become a multiethnic, multicultural country. We are proud of our

culture and of our traditions’ 136

132

Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27 to 31 July 2009 CPT/Inf(2010)14

133 Report to the Italian Government on the visit to Italy carried out by the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27 to 31 July 2009 CPT/Inf(2010)14

134 Italy: Berlusconi Misstates Refugee Obligations, Human Rights Watch

135 Della Giovanna, M. (2010) The European Union and Libya: Strange Bedfellows? Paper presented for the

conference: „Belgique, Europe et mondialisation: quelles équations?‟ , Institut de Sciences Politiques Louvain-Europe, Louvain-la-Neuve 13-14 October 2010, p.16

136 Pushed Back, Pushed Around (2009) Human Rights Watch, p.26

7. Conclusions

What this paper shows is that groups such as ‘refugee’, ‘asylum seeker’, ‘irregular

migrant’, ‘illegal migrant’, and other identities, have been blurred ‘into an indistinct and

negative category of irregular migration’ 137

, by the current European migration and

asylum regime. Determining who belongs to which group has become inherently difficult

and increasingly irrelevant from the European perspective. Despite a plethora of asylum

and refugee laws in place, all claiming an unbiased and humanitarian basis, ‘Europe is

not providing refugees with an alternative to dangerous journeys, placing themselves in

the hands of smugglers and traffickers in their attempt to reach protection’ 138

, only to be

rejected as illegal migrants on this basis. Therefore the Europe of Protection has

become a Europe of Containment and Exclusion. While acknowledging that the effects

of policies aimed at improving conditions in countries of origin and host countries is a

long term project, it is nevertheless obvious that ‘current policy instruments work to

establish legitimacy for the denial of protection and the conclusion of readmission

agreements, with a view to shifting responsibility away from the European territorial

core’ 139

With increased calls against multiethnic societies, states feel obliged to react, and

closing down borders seems as the first logical step in stemming the flow of the

ethnically-different ‘Others’ towards their own boundaries. Thus 2010 has seen a heated

debate in Germany over the issue of multiculturalism, a row within the UK coalition

government over a proposed immigration cap, and the elections of a far-right party into

Swedish Parliament for the first time, all culminating with Angela Merkel arguing that the

vision of a multicultural Germany has absolutely failed 140

. With such developments at the

home front it only seems logical for states to close off their borders to those who seem

likely to threaten the fragile situation and deepen the tensions, asylum seekers or not.

Unfortunately, this places Europe as a beacon of containment of refugee flows, rather

than a Union led by solidarist and humanitarian notions offering protection to those

seeking it. With the threat of potentially losing these values from sight, the current

137

Duffield, M. (2008) Global Civil War: The Non-Insured, International Containment and Post-Interventionary Society, Journal of Refugee Studies, vol.21 no.2 p.154

138 Press release: EU shouldn’t shift its responsibility for refugees to Africa (2009) ECRE

139 Lindstrom, C. (2005) European Union Policy on Asylum and Immigration. Addressing the Root Causes of

Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice? Social Policy and Administration, vol.39 no.6 p.588

140 Business Middle East: Migration Phobia (2010) The Economist Intelligence Unit Limited

asylum regime, focused on containment is framed within a humanitarian discourse, as

the ‘emphasis on prevention and protection has appealed to the ethical side of state

actors, seeing it as a way to be seen to be advocating human rights and refugee

protection’, 141

, with the end result of actually reducing the pressure of numbers arriving

within European borders.

European politics of asylum, operating in a regional and thematic apparatus whereby

certain groups receive preferential treatment in comparison to others, institute a

mechanism in which states on the Eastern and South-Eastern Borders of the European

Union are given breathing space to develop their own mechanisms for asylum

management despite these being constructed on the basis of European standards.

Meanwhile, the states on the Southern Border are placed into exceptional mechanisms

specially designed the third countries of the Mediterranean, and thus for controlling

migration and asylum flows from Africa. This paper clearly demonstrates this by

analysing the regional provisions of projects such as the Global Approach to Migration,

the European Border Surveillance System, Readmission Agreements, Regional

Protection Programmes, Thematic Approaches as well as the spread, scope and content

of FRONTEX operations administered under the auspices of the European Union.

Comparing the reception Africans receive to other groups in the EU, as well as the

mechanisms erected to stem the various flows of migration, including asylum seekers,

demonstrates the bias present in the European asylum regime. If immigration laws

‘shape who we are as a people because they function as a mirror, reflecting and

displaying the qualities we value in others’ 142

, then European migration and asylum law

shows an alarming image of a society primarily focused on erecting a wall between itself

and migration flows from the African continent, including asylum seekers. It paints a

picture of a society placed on a dangerously thin line between applying biopolitical

measures to control migrant and asylum seeking populations, and sinking into the

depths of modern racism, bound up with the technique of power and the working of a

State which, following its interests, is obliged to use race, the elimination of races and

the purification of the race to exercise its sovereign power 143

141

Haddad, E. (2008) The External Dimension of EU Refugee Policy: A New Approach to Asylum? Government and Opposition, vol.43 no.2 p.200

142 Huysmans, J. (2006) The Politics of Insecurity: Fear, migration and asylum in the EU, Routledge, p.109

143 Foucault, M. (2003) Society Must Be Defended, Penguin Books Ltd., p.258

Delineating a cultural identity is thus part of the current project of drawing a perimeter

between Europe and non-Europe 144

. For the grave numbers of African migrants which

perish each year attempting to reach Europe’s southern coasts, Europe’s asylum regime

proves that the Union is not a welcoming place for them to seek refuge from suffering.

Sentiments for the need of a clear identity present in Member States prevailed over the

Union’s humanitarian mission, erecting a Europe which, compared to the 1900s when

there were many states in Europe without a single overwhelming dominant nationality,

by 2007 triumphed the separatist project of maintaining the domestic ethnic balance of

power 145

, with exclusionary migration and asylum laws as the primary tools. The refugee

regime of the European Union has thus been fundamentally changed by a resurgence of

ethnic nationalism and calls for greater social cohesion, instituting a biopolitical

apparatus and shifting from a ‘system designed to welcome Cold War refugees from the

East and to resettle them as permanent exiles in new homes, to a non-entree regime,

designed to exclude and control asylum seekers, [especially] from the South’ 146

144

Bhabha, J. (1998) ‘Get Back to Where You Once Belonged’: Identity, Citizenship and Exclusion in Europe, Human Rights Quarterly, vol.20 no.3 p.598

145 Muller, J. (2008) Us and Them: The Enduring Power of Ethnic Nationalism, Foreign Affairs, vol.87 no.3 p.19

146 Castles, S. Crawley, H. and Loughna, S. (2003) States of Conflict: Causes and patterns of forced migration to

the EU and policy responses, IPPR, p.45-6

8. List of Abbreviations

CEAS Common European Asylum System

ECRE European Council of Refugees and Exiles

EU European Union/Union

FRONTEX European Agency for the Management of Operational Cooperation at the

External Borders of the member States of the European Union

HLWG High Level Working Group

IDP Internally Displaced Person

IFCR International Federation of Red Cross and Red Crescent Societies

NGO Non-Governmental Organisation

RPP Regional Protection Programme

OAU Organisation of African Unity

UNHCR United Nations High Commissioner for Refugees

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ANNEX

Figure 1: Schengen Area – Visa requirements

Figure 2: European Detention Centres

Internal and External EU detention centres, available at: http://www.socialwatch.eu/2009/detention_centres.html

Figure 3: FRONTEX Joint Sea Operations

Lodge, A. (2010) Beyond the Frontiers – FRONTEX: The First Five Years, FRONTEX, p.41, available at:

http://frontex.europa.eu/assets/Publications/General/Beyond_the_Frontiers.pdf

Figure 4: Overview of sea border joint operations coordinated by FRONTEX (2006-2009)

Lodge, A. (2010) Beyond the Frontiers – FRONTEX: The First Five Years, FRONTEX, Annex, p.84,

available at:

http://frontex.europa.eu/assets/Publications/General/Beyond_the_Frontiers.pdf