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DRC Policy Brief

Implications of the

EU’s outsourcing

of protection

responsibilities and

migration control

Danish Refugee Council

Borgergade 10, 3

DK-1300 Copenhagen,

Denmark

T +45 3373 5000

[email protected]

www.drc.dk

Danish Refugee Council

Brussels Representation

Place du Congrès 1

BE-1000 Brussels

T +32 2 894 4930

MARCH 2017

The Danish Refugee Council calls for a critical reflection on the consequences and humanitarian

implications of the trend towards externalisation in EU asylum and migration policies.

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DANISH REFUGEE COUNCIL

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The EU-Turkey Statement of March 2016

, which externalised protection responsibilities in exchange for

funding and other inducements to Turkey, demonstrated the lengths to which the EU is willing to go to ind

quick-ix solutions to the pressure on its borders. One year after the launch of the Statement, it has been

followed by several new policy initiatives and agreements

that

consolidate the outsourcing of protection

responsibilities and migration control and as the predominant EU approach

to managing mixed migratory

lows.

This DRC Policy Brief looks at the consequences of the EU trend to externalise protection responsibilities and

migration control for people on the move, as evidenced by DRC’s operational presence in Turkey, Greece and

the Western Balkans.

The global challenge of displacement and migration calls for a uniied, comprehensive and long-term response,

and DRC welcome the attention and resources that the EU has dedicated to strengthening the management

of displacement and migration.

So far however, the EU has not adequately assessed the implications of

its new measures from a protection and rights perspective.

In assessing the implications of its migration

management measures, DRC calls for the EU to look beyond what is presented as successful containment of

speciic routes, reduced arrivals at the EU’s borders, and increased return rates, and carefully consider both

the immediate and long-term unintended consequences and humanitarian implications. The EU must honor

the objective of its policies, namely to save lives, reduce the need for embarking on haphazard and dangerous

journeys, ensure efective access to asylum procedures and uphold the digniied return of migrants and

rejected asylum seekers.

Key EU policy initiatives and agreements following the EU-Turkey

Statement, which institutionalise a practice of externalising protection

responsibilities and migration control:

•

the

New Partnership Framework with third countries (June 2016)

that is modelled

on the EU-Turkey Statement and aims to leverage all existing EU and Member

State instruments and tools available for external cooperation with a number of

priority countries in order to curb refugee and migrant movements to Europe;

the

Joint Way Forward (October 2016) – an agreement with the Afghan Government, signed

in the margins of the Brussels Donor Conference on Afghanistan, to accept an unlimited

number of returns of Afghan nationals, who are irregularly present in EU Member States;

Joint Action Plan on the Implementation of the EU-Turkey Statement (December 2016)

–

which urges the Greek Government to make necessary amendments to the national legislation

to 1) allow the abolition of exemption of family cases and vulnerable persons from Admissibility

Assessment and 2) to limit the appeal steps in the context of the asylum procedure;

the

Joint Communication on the Central Mediterranean Route (January 2017)

and

Malta Declaration (February 2017) - a key outcome of the Malta Summit on 3 February

2017 that endorsed the bilateral MoU between Italy and the internationally recognised

Libyan Government aimed at stemming migratory lows, particularly from Libya to Italy;

•

1 EU-Turkey Statements:

http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/

2 New Partnership Framework with Third Countries (June 2016): COM(2016) 385 inal; Joint Way Forward (Oct 2016): https://eeas.europa.eu/

sites/eeas/iles/eu_afghanistan_joint_way_forward_on_migration_issues.pdf ; Joint Action Plan (Dec 2016): https://ec.europa.eu/commission/

sites/beta-political/iles/december2016-action-plan-migration-crisis-management_en.pdf;

Malta Declaration on the external aspects of

migration: addressing the Central Mediterranean route (Feb 2017) http://www.consilium.europa.eu/en/press/press-releases/2017/01/03-malta-

declaration/ ; Renewed EU Action Plan on Return (March 2017) COM(2017) 200 inal

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FEATURES AND CONSEQUENCES OF THE EU

EXTERNALISATION POLICIES

Restoring order in migratory flows

A narrative of unprecedented crisis is legitimising an erosion of refugee protection.

The multiple migration policy initiatives and partnership agreements launched in the past year have been

developed in a context of strong narratives of unmanageable lows and unprecedented crisis. This ‘crisis

narrative’ has three overall implications:

•

It fuels the rising trend of European xenophobic and anti-immigrant populism and increases

tension between refugee and migrant populations and host between communities;

It addresses mixed lows as a whole, and generally does not

diferentiate appropriately the needs of those on the move;

It warrants the use of short-term temporary measures, which have

given leeway to and legitimised the undermining of rights.

Order in the migratory lows in Greece: extensive use of detention

After the launch of the EU-Turkey Statement, people who are arriving on the Greek Islands are

detained in the Hotspots following a procedure, which has been strongly criticised by civil society

organisations as arbitrary. Delays in the asylum procedures on the islands and the prolonged

entrapment in facilities and sites that lack adequate services and accommodation are causing

frustration and tension among refugees and migrants. In an attempt to control the situation the

authorities are increasingly resorting to the controversial practice of arrest and detention on public

order grounds.

Despite eforts to provide appropriate space, unaccompanied minors are still being detained due

to a lack of open accommodation facilities and deiciencies in age assessment procedures and the

identiication of unaccompanied minors. The increased number of administrative detainees coupled

with the questionable detention conditions, continue to represent a serious protection risk on the

Islands in Greece.

DRC launched its operation in Greece in November 2015, and has a daily presence in Moria, Lesvos

with a protection and legal assistance capacity. The above observations are based on DRC’s

protection data. DRC is also present on the mainland.

There are numerous examples of the way in which this is taking place: a general “race to the bottom” and

erosion of humanitarian standards and human dignity as a way of countering perceived pull factors; expedited

asylum determination procedures; a growing tendency to diferentiate between individuals based on

nationality; and the extensive and increasing use of detention, including of children and people with serious

vulnerabilities. Rather than focusing on sustainable solutions with respect for human rights, shortsighted and

short-term measures, including containment and deterrence, are taking precedence and being legitimised by a

narrative of unprecedented crisis.

•

DRC calls for a balanced and positive narrative on refugee protection framed in terms

of manageability and solutions.

Framing asylum seekers as illegal and movements as

overwhelming is destructive and detracts from eforts being directed at addressing the

root causes of displacement and forced migration and inding solutions for the displaced.

DRC calls for the appropriate relection of the similarities and diferences of those on

the move in policies and the application of legal frameworks. Everyone on the move,

regardless of status, mode of travel and country of origin, must have their fundamental

•

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human rights upheld. A migration management framework must ensure that the reception,

processing and return or readmission of those not qualifying for asylum is conducted in safety,

dignity and with respect for human rights, and recognise the particular protection concerns

and vulnerabilities faced by refugees by upholding and applying the Refugee Convention.

Containment and deterrence: facing detention, abuse, ill-treatment

and push-backs

Despite the “closure” of the Western Balkans route, refugees and migrants continue to ind their

way to Macedonia and Serbia, many in the hands of scrupulous smugglers, and with the intention to

continue their journey to Western Europe.

In Macedonia, the policy of tolerance that allowed refugees to freely transit through the country

after the border closure was transformed to a policy of detention. Refugees and migrants are

detained in so-called “transit-centers” with limited freedom of movement, and are faced with risk

of arbitrary deportations back to Greece. Refugees and migrants caught by the police outside the

transit-centres are in many cases deported without an individual examination of their claim, or

explanation of the grounds for their deportation.

In Serbia, continued arrivals, and the limited possibilities to move onward, has resulted in the number

of refugees and migrants to steadily build up. Responding to the strict border controls and entry

limitations on the border to Hungary and trying to regulate the migratory lows through Serbia,

the Serbian authorities supported the adoption of informal “waiting lists” to enter Hungary. This

policy, however, has allowed the Hungarian authorities to enforce brutal measures to catch those

who are not going through the oicial entry points: beatings, dog bites, the use of pepper spray and

other types of inhumane treatment are regularly reported by refugees being pushed back to Serbia.

Hundreds of persons have been forced back to Serbia by Hungarian authorities. Croatia has also

regularly been pushing back people, although no similar violence has been reported.

Since the beginning of the refugee crisis, DRC has deployed a protection capacity in both Serbia and

Macedonia with the speciic purpose of supporting the authorities in providing protection to refugees

and migrants along the Balkan route, and have conducted consistent protection monitoring since

October 2015.

Cooperation with Third Countries on migration management

Short-term objectives of stemming onward lows to Europe foster restrictive measures and rights-

violations.

While we welcome strengthened cooperation with third countries on improving reception and asylum

systems, the current EU policy on stemming irregular migration to Europe is promoting a steady erosion of the

international refugee protection regime and fundamental human rights. The EU is trading its political leverage

for externalised border controls and compromising its role as a key actor in foreign policy dialogue. The

emphasis on stemming onwards lows in cooperation with third countries unintentionally promotes increased

use of restrictive measures such as detention, ill-treatment and possible refoulement to countries of origin.

•

DRC calls for the EU and Member States to maintain a rights-based approach to migration

and refugee protection.

Conditionalities based on returns and readmissions and the

ability of States to prevent onward movements should not form the basis of partnerships

with third countries or of the allocation of aid. The objective of reducing arrivals to the

EU must never be at the expense of ensuring access to protection for those in need.

DRC calls for solidarity and responsibility sharing both within the European Union and

globally. The EU must actively contribute to improving refugee protection in regions of origin,

without undermining the right to seek asylum in Europe. The EU should lead by example in

its support to the establishment of an international system of solidarity and responsibility

sharing to manage movements of refugees and migrants by shouldering its fair share.

•

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Saving lives and combating human smuggling

Containment strategies make access to protection more diicult and nurture human smuggling in the

absence of safe and regular pathways.

A genuine objective of saving lives must include safe and regular pathways for mobility. Contrary to the

declared objective of saving lives, the EU migration framework omits to adequately respond to the need

for safe and regular pathways. Rather than emphasise safer mobility, the EU policy initiatives emphasise

less mobility. While containment strategies and the outsourcing of migration control and protection

responsibilities to third countries make protection needs and rights abuses invisible to the European public,

they do not lower the number of people in need of protection. Rather, they lead to the criminalisation

of border crossings; nurture human smuggling rather than dismantle it

; make access to crossing borders

contingent upon resources and means; and push more people to use covert and more between dangerous

routes in the search for protection.

•

DRC calls for safe and regular pathways for mobility and access to protection,

including through humanitarian admission, resettlement, family reuniication and

other safe admission schemes, and expanded opportunities for regular migration.

DRC calls for resettlement to be preserved as an unconditional and

durable protection instrument for vulnerable refugees

that should not be

tied to readmission and returns, and that is coordinated by UNHCR.

•

No way out: Human smuggling on the increase

Visa restrictions for Syrians entering Turkey by air or sea, border closures and the ongoing construction

of a wall along the Turkish-Syrian border have made it de facto impossible for Syrians to cross into

Turkey regularly, thus according to DRC ield research resulting in:

a shift in migration routes from Syria (west-ward, to Hatay province);

increasing smuggling prices (from only USD 20-50 last year up to USD 600, and in some cases

USD 1,000 presently). Smuggling fees in the western provinces of Turkey to the EU countries

are costlier, starting from USD 500 or USD 1,000 and even as high as EUR 20,000 per person if

air travel and fake passports are involved, and

more reported abuse and exploitation involved in the smuggling.

A DRC study carried out among refugees and migrants (Syrians, Iraqis, Afghanis, Iranians, Sudanese

and Congolese) in 4 Western provinces of Turkey in November 2016 shows that between 73% and

93% of respondents entered Turkey irregularly, and 40% of respondents indicated that they had paid

between USD 1,000 and USD 5,000. People are forced to rely on smugglers at a much greater rate

than previously. While the erection of a wall does not seem to reduce the volume of migration lows,

its human costs are immeasurable. Border restrictions do not deter refugees from crossing irregularly.

Instead they increase reliance on smugglers.

DRC has been operating in the border areas of southeastern Turkey (Kilis, Hatay and Urfa) since 2013.

3 See e.g. DIIS report 2017:03. Europe and the Refugee Situation. Human Security implications; .

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Ensuring effective access to asylum procedures and upholding

dignified return

The outsourcing of protection responsibilities puts the right to seek asylum and protection against

refoulement at risk.

Increasing return and readmission rates is a key objective of the new EU policies and agreements, and is a

central part of the wider deterrence strategy. DRC acknowledges the right of States to return rejected asylum

seekers and migrants – provided that the decision to deny asylum, or withdraw a residence permit has been

made with due regard to national and international human rights standards. The externalisation of the asylum

procedure to a third country, as seen in the EU-Turkey Statement, must be based on a genuine assessment

of the capacity and willingness of receiving countries to adhere to international and European human rights

safeguards.

•

DRC calls for all legal safeguards to be fully respected and for protection to be

guaranteed in case of return or readmission. The potential readmission of third country

nationals in need of international protection to countries of transit where protection cannot

be guaranteed contradicts the core principle of the 1951 Refugee Convention. In the face

of closing borders and deterrence policies, the right to seek asylum must be safeguarded.

The immediate consequences and unintended humanitarian implications of the EU’s outsourcing of protection

responsibilities and migration control are clearly surfacing. DRC reiterates the need for a thorough and critical

assessment of protection implications.

Outsourcing protection: detainment and risk of refoulement

It is not only apprehended migrants entering or departing Turkey through irregular means who are

detained in removal facilities, but also asylum seekers, refugees and migrants sent back from the EU

under the EU-Turkey Statement. Local NGOs, including DRC partners, and UNHCR conirm that they

have diiculties gaining permission to visit detention facilities. Further legislative changes introduced

in October 2016 by means of Executive Order (n. 676) have dismantled safeguards to protect

foreigners from refoulement or otherwise unlawful deportation, based on determinations made by

administrative authorities instead of a court, and with no guarantee for recourse to judicial review.

As part of its mixed migration work in Turkey, DRC works with local partners to provide legal assistance

to asylum seekers, refugees and migrants in detention.

About DRC

DRC delivers protection-focused programmes all along displacement routes from regions of origin in the

Middle East, Central Asia, Horn of Africa, and West Africa, to transit areas in Iran, Turkey, Libya, Tunisia and

South-Eastern Europe, as well as in Denmark as one of the destination points in Europe.

DRC is uniquely positioned with knowledge about people on the move, their situation in regions of origin,

and their needs and protection concerns along the transit routes and in destination points. DRC coordinates,

aggregate and disseminate analysis on mixed movements through its global structure on Mixed Migration –

the Global Mixed Migration Secretariat (GMMS) – drawing on inter-agency regional entities in East Africa, the

Middle East, Central Asia and West Africa.