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I. Current EU Policy

The “Internal Dimension”

Within the borders of the EU the emphasis is on managing migration and securing the EU’s borders with the rest of the world. This “internal dimension” of the EU’s approach blurs immigration and asylum policies with cooperation among member states on counterterrorism, crime, and border security issues. It is unsurprising that it results in measures that are incompatible with the obligations of EU member states under the 1951 Refugee Convention¹ or the European Convention for the Protection of Human Rights (ECHR).² Efforts to develop common minimum standards for the treatment of asylum seekers have often undermined rather than enhanced protection.

A telling illustration of the direction EU policy is taking is the Asylum Procedures Directive.  In September 2005, the European Parliament expressed “severe reservations” about the draft directive and called for over 100 amendments to the document. In a reaffirmation of the principle that an asylum seeker should have his or her claim individually assessed, the Parliament argued that any applicant should have the right to “rebut the presumption of safety” associated with the proposal for “safe third country” lists.³ Human Rights Watch and others had called in March 2004 for withdrawal of the draft directive on grounds that the “most contentious provisions are all intended to deny asylum seekers access to asylum procedures and to facilitate their transfer to countries outside the EU.”⁴

Yet the EU Justice and Home Affairs Council passed the Asylum Procedures Directive on December 1, 2005, without significantly responding to the reservations expressed about the draft by the Parliament or others. The United Nations High Commissioner for Refugees (UNHCR) stated the following day that the agency was “worried that the implementation of the directive may lead to breaches of international refugee law if no additional safeguards are introduced, and make it harder for refugees to have their asylum claims properly heard in Europe.”

In addition to the Asylum Procedures Directive, individual member states such as Italy, Spain, the Netherlands, and the UK have introduced increasingly restrictive measures. These measures at the national level variously include increased use of immigration detention, falling recognition rates for refugees, the withdrawal of social benefits from asylum seekers, and the lack of effective opportunities to challenge detention and deportation, resulting in increased risk of refoulement (the return of persons in need of human rights or refugee protection to places where they are at risk of being persecuted, or subjected to torture and ill-treatment).⁵

“Externalizing” migration and asylum policy

A second dimension of EU policy seeks to “externalize” migration and asylum policy by focusing on regions of origin and transit countries as more appropriate places to host, detain, and process refugees, migrants, and asylum seekers.⁶

Since the mid-1980s, policy makers in Europe have been intrigued by the idea of “externalizing” or “internationalizing” the hosting of asylum seekers and migrants attempting to reach, or already on, the territory of the EU. The external dimension of EU asylum and migration policy currently has a number of components, including:

o refusal of entry to EU territory of persons coming from countries designated as “safe countries of origin” or transiting through countries deemed to be “safe third countries”;

o interdiction at sea of persons attempting to reach EU territory;

o the conclusion of “readmission agreements” with countries outside the EU, by which the countries agree to accept the return from EU territory of migrants and asylum seekers who transited through the countries en route to the EU; and

o support to border enforcement and detention capacity in transit countries that border the EU.

The external dimension emphasizes development as a mechanism for increasing the ability of regions of origin to secure their borders against irregular migration, but also to host refugees from the region—termed “capacity building”—and utilizes political and aid conditionality as a means of securing the cooperation of countries outside the EU.

Some elements, such as the proposal that common EU policy should include a refugee resettlement program to admit UNHCR-recognized refugees to the EU from their regions of origin, are relatively uncontroversial.⁷

Others are less clear cut. The Justice and Home Affairs Council in October 2005 hailed the EU’s first step in “improving access to protection needs and durable solutions for those in need of international protection, as quickly and as close to their home as possible.” The object of this praise was the European Commission’s September communication on Regional Protection Programmes (RPPs).⁸ In and of itself the RPP idea appears to have a number of positive elements; the RPPs’ goals of strengthening the protection capacity and improving access to durable solutions in the target countries are laudable. 

The RPPs concept raises concerns, however, that the EU will use the existence of such programs as a pretext to declare the target countries “safe third countries.”  The EU could then return asylum seekers and migrants who transited through these countries even though effective protection could not be guaranteed. 

It is critical that the mere existence of RPPs is not used to justify the return of migrants and asylum seekers to countries like Ukraine in the absence of adequate capacity to process and host those groups, or to undermine the right to seek asylum in the European Union. UNHCR, in welcoming the RPP proposal, stressed the need for guarantees that RPPs would be complementary to existing asylum provisions in EU states.⁹

Scepticism regarding the RPP concept can be traced to its forebear, the Regional Protection Area, or RPA, concept, touted in a February 2003 UK Cabinet Office and Home Office policy paper, called “A New Vision for Refugees.”¹⁰  Under the New Vision proposal, RPAs were to be established both to achieve improved protection in regions close to the origin of refugee flows, but also to contain those flows by returning spontaneous arrivals from the EU to the RPAs and by establishing managed refugee resettlement programs from the RPAs to the EU as an alternative to irregular movement by asylum seekers to the EU.  Following vigorous protests from civil society and other member states, inc luding Germany and France, the UK withdrew its proposal prior to the June 2003 European Council meeting in Thessaloniki.  Nevertheless, it is not difficult to imagine individual states, or the EU as a whole, seeking to rely on the existence of a Regional Protection Programme to justify the establishment of a similar “protection area” in the future.   

Human Rights Watch is also concerned about the implications of the EU’s goal (as the Commission communication on RPPs states) of addressing asylum needs “as close to home as possible.”¹¹ As discussed below, countries that the EU is cultivating to offer “protection in the region” may not be up to the task, with the result that this aspect of the externalization of EU migration and asylum policy threatens to cut off access to meaningful international protection for many who require it.  European Commission plans for “protection in the region” based on improved protection in current countries of transit appear also to be based partly on the proposition that, even before such improvements take place, “intercontinental movements are seldom necessary for protection reasons alone.”¹²Human Rights Watch research—in Libya and Ukraine (the two case studies in this paper), and elsewhere—suggests this assumption is false.

The EU has begun to implement elements of almost all of the externalization measures listed above. Meanwhile some individual EU states have already stepped well beyond common EU policy in some of the areas listed. At least two EU states, Italy and Spain, have engaged in exclusionary practices that conflict with international law. These and other EU states have also implemented returns with scant regard for whether the receiving countries could offer effective protection.

By bilateral arrangement with Libya, Italy in late 2004 and again in 2005 expelled—without a proper assessment of their asylum claims or access to fair asylum procedures—people who arrived from North Africa and were being held on the Italian island of Lampedusa under Italy’s mandatory detention policy for undocumented migrants and asylum seekers. (The Italian government elected in April 2006 said in May that it will not expel individuals to countries that have not signed the Refugee Convention, including Libya.)

In early October 2005, faced with mass attempts by undocumented migrants to force entry into Spain’s North African enclaves of Ceuta and Melilla, the Spanish government expelled back to Morocco at least seventy-three people who had reached the enclaves, including several who had sought to claim asylum. The expulsions were reportedly carried out without an individual assessment that would have enabled presentation of asylum claims. Eleven migrants were killed and scores wounded in and around the enclaves during the crisis. There were reports of excessive use of force by Spanish and Moroccan border guards in and around the enclaves, and allegations that some migrants were abandoned in the desert by the Moroccan authorities.¹³

The European Commission dispatched a fact-finding mission to Spain and Morocco in the wake of the crisis, but its mandate was limited to assessing the scale of “illegal migration” from Africa via Morocco to the EU, immigration channels from Morocco to the EU, and ideas from Moroccan and Spanish authorities about “measures to intensify cooperation between the EU and Morocco in preventing and combating illegal migration.” As the Commission’s report on its investigation states: “The technical mission did not seek to investigate the recent tragic incidents in Ceuta and Melilla nor did it aim to assess the ways that border management is carried out by Morocco or Spain.”¹⁴ While a focus on irregular migration is perfectly legitimate, it must be coupled by consideration of the human rights dimension of migration.