Why European cooperation on refugees is failing

— the EU’s smallest member state — offers a window into the politics and
policies hindering a more humane response to asylum seekers, as Leanne
Tory-Murphy reports.

By: /
22 August, 2018
Migrants in a dinghy await rescue by the Migrant Offshore Aid Station around 20 nautical miles off the coast of Libya, June 23, 2016. REUTERS/Darrin Zammit Lupi
By: Leanne Tory-Murphy

Global journalism fellow, Munk School of Global Affairs

At 316 square kilometres, Malta is the European Union’s smallest member state. But it plays an outsize role in regional politics. The country has been implicated in corruption scandals through the Panama Papers investigation, and the assassination of investigative journalist Daphne Caruana Galizia has cast a shadow on an island better known for its beaches, its hospitality, and an economic boom driven by the iGaming and cryptocurrency sectors.

The closest EU territory to the Libyan coast — the primary departure point for boats of migrants trying to reach Europe — Malta has also become a prime example of European migration policy — in particular ‘responsibility-sharing’ among EU member states — gone wrong. Malta is a microcosm of Europe’s lack of a unified response to migration, relying on backroom deals, legal red tape and collaboration with questionable authorities to keep asylum seekers from reaching its shores. It offers a window into the politics and policies hindering humanitarian refugee response on the continent.

In 1999, long before the most recent migration flows to Europe, EU member states began to develop a Common European Asylum System (CEAS). The idea was to generate standardized procedures for processing asylum claims throughout the EU and to uphold their commitments to the 1951 Refugee Convention.

The CEAS, in theory, should ensure that the cases of asylum seekers are assessed in a similar way in every EU country. In practice, however, the CEAS plays out very differently depending on the member state, and has essentially failed the test of regional politics in recent years. Legal scholar Francesco Maiani went so far as to say that “the very idea of common policies based on common rules, common interests, free travel, respect for refugee rights and solidarity…is in tatters.”

The Dublin Regulation, adopted in 2003, stipulates that asylum seekers entering Europe must make their asylum claims in the first EU country they enter. With an increase in arrivals by sea from both the Middle East and Africa, the external border states — primarily Greece, Italy and Spain — have been tasked with the responsibility of processing asylum claims on behalf of the entire European Union. Importantly, these countries are generally not the destination countries for most asylum seekers, who would gravitate towards places with stronger economies, or where they have existing family connections, like France and Germany.

In 2015, a year of record arrivals (over one million due to the war in Syria), this regulation began to be enforced more thoroughly. What are known as ‘hotspots’ started to be set up at points of arrival, like ports and border crossings, to fingerprint potential asylum seekers. The entry of their data into the Europe-wide EURODAC system meant that should they attempt to move to another country within the EU, they could be traced in the database and returned to their country of entry.

From solidarity to containment

In 2015, the European Council also approved an emergency relocation scheme in an attempt to increase responsibility-sharing throughout the member states. The idea was to assess each country’s capacity (based on population, economy, support services, etc.) for supporting and integrating asylum seekers and to establish a quota for redistribution. Under the scheme, for example, Germany would have taken 20 percent of asylum seekers entering Europe, and Hungary would have taken under two percent.

The initial proposal was that a fraction of the asylum seekers in the external border states — 100,000 — would be relocated throughout Europe. 

In practice, even this fraction turned out to be too ambitious, and in two years only 28,000 were relocated, with Malta alone meeting its quota (131 people) and others, like Hungary and Poland, refusing to take any at all.

While Malta has met its commitments, the country has also refused boat landings since 2015, following an informal agreement with Italy which allowed asylum seekers to disembark in Italian ports, allegedly in return for oil exploration rights in Maltese waters. Boats arriving through the central Mediterranean mostly tend to carry people from Sub-Saharan Africa, and although the majority of immigrants to Italy and Malta arrive from other parts of the world, including elsewhere in Europe, it is the boat landings of black Africans that have provoked a racist and classist political reaction. This is reinforced by the fact that similar numbers of asylum seekers, largely wealthier Syrians and Libyans, continued to arrive to Malta by plane once the boat arrivals were re-routed to Italy. 

But now, with the major sea change in Italian politics that has ushered in a coalition between the populist Five Star Movement and the far-right Lega Nord party, that agreement is off. Malta must reposition itself in relation to the new ‘zero tolerance’ migration policy espoused by Lega leader cum Interior Minister Matteo Salvini, which has seen the Italian ports shut to rescue vessels.  

I have very little time or respect for Salvini and what he stands for,” said Maria Pisani, who was the former head of the International Organization for Migration’s Malta operation from 2005- 2010 and is the current executive director of human rights NGO Integra Foundation, in an interview. “But I can understand the frustration of the Italian people, which is essentially borne out of this failed European asylum policy and a complete lack of solidarity amongst the member states towards the external border states.” 

“But there’s no solidarity towards the refugees either and I think this should come first,” Pisani said. “You’ve got 28 member states that are each looking after their own issues and each looking at it from a national perspective rather than a regional perspective…the only common voice remains one of deterrence and borders.” 

Criminalizing the rescuers

In the absence of a functioning CEAS, individual member states, especially border states like Malta, have nevertheless had to respond to the issue on their doorstep. The responses have been ad hoc, due to shifts in both migration flows and domestic politics. But the overall trend, as Pisani notes, is grim — rather than working to strengthen a flailing humanitarian response, Europe has instead chosen to try to shut down the frontline rescue operations at sea. 

The captain of the Lifeline, a Dutch ship dedicated to rescuing migrants in the Mediterranean, was charged in a Maltese court last month. The crime? Improper ship registration. 

If the EU’s intention, as recent history demonstrates, is to stop arrivals at all costs, then it seems to me they have found their final solution: ‘let them drown’.

Neil Falzon, director of human rights organization Aditus Foundation and the captain’s lawyer, said that the case is more representative of the overall political context than any bureaucratic violation. “NGOs have been out at sea rescuing migrants for years,” he said, “but this is the first time the Maltese government has decided to pick up on the registration issue.” A similar incident occurred this month when Gibraltar attempted to strip its flag from a rescue ship operated by Doctors Without Borders. The NGO has called this move politically-motivated, and will need to find another flag to sail under should Gibraltar prove successful, as it cannot legally operate without one. 

Creating legal troubles for the rescue operations is a page right out of Italy’s playbook. For years, certain Italian prosecutors have accused the rescue NGOs of colluding with smugglers, or even directly trafficking people themselves. But they have not prevailed in their allegations, and so the operations have continued.

Falzon notes that the recent closure of Italian ports to rescue ships has led to the next obvious question: where will people rescued at sea be brought to disembark? 

Malta, the closest ‘safe port’ to Libya, would seem to be the answer to that question. But Malta has only recently opened its ports on a limited, case-by-case basis in response to the crisis that has been created by the closure of Italian ports. The opening of Malta’s ports is highly conditional — Maltese Prime Minister Joseph Muscat brokered deals with other European leaders prior to agreeing to accept ships to ensure that landed asylum seekers will be immediately relocated elsewhere in Europe. 

In the absence of a more certain plan, some rescue ships have been forced to remain at sea with their passengers for days or weeks at a time, eventually landing as far away as Spain for lack of a closer hospitable port. The number of deaths at sea has risen as a result — the number of rescue ships patrolling the search and rescue area has been effectively diminished. 

Falzon says that Muscat’s approach makes “the security of peoples’ lives dependent on political agreements, when in fact the priority needs to be the safety of peoples’ lives.”

“We’ve pushed the threshold of acceptability further away from humanity and dignity and more towards a political understanding of human life,” he said.

Advocates argue that the Lifeline case, like similar cases in both Italy and Malta, is but a scapegoat for the failure of a comprehensive European migration policy based on international human rights and solidarity. In the absence of a functional policy to manage migration, states are instead trying to stop rescue operations from taking place at all, and more broadly trying to wash their hands of asylum seekers and migrants by preventing them from reaching Europe in the first place.  

But of course the presence of NGO rescue missions in the search and rescue area was borne out of government neglect. Aside from Italy’s short-lived commitment to the Mare Nostrum program — a government-led air and naval rescue initiative created in 2013 in response to several migrant shipwrecks near the island of Lampedusa — these missions are doing work that states have largely refused to do.

Pisani puts it bluntly, “If the EU’s intention, as recent history demonstrates, is to stop arrivals at all costs, then it seems to me they have found their final solution: ‘let them drown’.”

Border externalization

Europe is not only offloading its responsibility for the safety of asylum seekers attempting to reach the continent, it is also attempting to relinquish responsibility for its borders altogether, through highly questionable arrangements with authoritarian or conflicted countries like Turkey and Libya.

One of the primary ways that Europe has sought to manage migration is by paying non-European governments to do it for them. In 2016, the EU struck a deal with Turkey, agreeing to pay the country €6 billion in order to contain asylum seekers and prevent them from reaching Greece. This became the model for an agreement between Libya and Italy in 2017, which saw the direct financing of the Libyan Coast Guard, an entity with known connections to militia groups, in an attempt to divert Europe’s responsibility for ‘rescue’ and to keep people in Libya. 

This has caused an outcry from human rights groups as the harrowing conditions that migrants face in the country have been well-documented­ — slavery, extortion, rape, detention and torture are routine experiences for Sub-Saharan migrants in the country.

Despite accusations that the transfer of responsibility from Europe onto Libyan authorities constitutes refoulement, or push-back to an unsafe country, this has become a pillar of migration policy in the Mediterranean, and part of an overall scheme meant to foster ‘regional collaboration’ on the issue. 

Falzon said that Italy and Malta are “feeding each other’s resistance” to taking in migrants and refugees, but at some point other countries’ willingness to relocate those who would land on Malta’s shores may run out, and “we’ll be faced with the question of what to do with the boat at sea with a hundred people on board.” He wonders how far Malta is willing to go to push this logic. 

The strategy promoted by Italy and Malta in regards to migration has gained ground in part because “refugees don’t have votes,” Pisani said, “which is why we have these populist policies that can’t work. They’re not grounded in any real evidence; they’re grounded in a political rhetoric that is divorced from reality and truth.”  

As Italy and Malta continue to barricade themselves against migrants, there has been an increase in arrivals in Spain, demonstrating that the containment approach will simply divert migration flows, not stop them. “When people are facing such atrocious conditions, they are going to move one way or another,” Pisani said. “Containment can never be the answer when you’ve failed to provide other options, namely safe and legal travel.”

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