By Aideen Elliott, Maynooth University
Since the summer of 2015 when the refugee and migration crisis was at its height, the European Union (EU) has been grappling with finding a solution upon which all Member States could agree. By vigilantly controlling borders and enlisting the help of Turkey and Libya in particular, the EU managed to achieve its goal of reducing the number of arrivals of refugees and migrants to EU territory. This prompts two important questions.
Firstly, is the goal of reducing the number of arrivals an appropriate one? In aiming to find a ‘solution’ to the so called migration crisis, the EU undertook border control to both save lives at sea and to reduce the number of arrivals. However, since a large proportion of the people fleeing to Europe are in need of international protection, this means that EU member states are aiming to reduce the numbers of people to whom they provide international protection. This is in a context where 86% of refugees are hosted by developing countries and the UNHCR continuously calls on developed states to ‘shoulder the burden’ of refugee protection.
The Stockholm Programme agreed by the European Council in 2009 stated that ‘[t]he strengthening of border controls should not prevent access to protection systems by those persons entitled to benefit from them’. However, no channels for such access have been created. According to Erica Feller, Assistant UN High Commissioner for Refugees, this is a symptom of treating asylum seekers as a subset of irregular migrants. She finds that refugees and migrants are becoming confused in the public mind, in the policies of governments, and in the laws of States. She warns that as the distinction starts to disappear, so does the line between migration control and refugee protection and she concludes that not only is the blurring of the distinction dangerous, it is also legally unsound. Legal issues that arise include the potential violations of the right to leave a country (Article 2 of Protocol No. 4 to the European Convention on Human Rights), and of the principle of non-refoulement (Article 78(1) TFEU and Article 18 and 19 of the EU’s Charter of Fundamental Rights).
This brings us to a second question: what price has the EU paid for a reduction in the number of arrivals to Europe? In February 2017 at a meeting in Malta, the European Council declared: ‘We will step up our work with Libya’ and outlined the nine areas of cooperation in ‘migration control’[i]. Shortly before this, the German embassy in Niger sent a report detailing what migrants and refugees face in Libya, namely concentration camp-like conditions in private prisons operated by people smugglers. While news screens are less likely now to broadcast images of refugees and migrants along the EU border of the kind we saw in 2015, the suffering has not ended, it has moved. The body of evidence continues to grow, with reports from UNHCR, Amnesty International, Human Rights Watch, and countless international journalists all detailing horrific abuses of migrants in Libya, including the sale of human beings.
The support for cooperation with Libya within the Commission, the European Parliament and the Member States has not waned, and in fact the idea of ceasing this cooperation in light of the atrocities conducted on Libyan territory has not been seriously considered. The same policy circles that emphasise the need for the EU to resource initiatives at the neighbourhood level of Member States to help refugees and migrants to integrate into their new communities, is at the same time effectively standing over the torture and mistreatment of other refugees and migrants. In addition, we must not ignore the racial aspect to how this has developed. The images coming from Libya of enslavement and torture are mostly of black male victims. The Libya to Italy route is used by many forced migrants from Sub Saharan Africa. As a family choose one amongst them to gamble their savings on, it is often a man for whom the journey may be considered safer. Many even within the Parliament seem unable to comprehend that any nation other than Syria produces refugees, and certainly not Sub-Saharan African countries, and we see hints (sometimes very strong ones) in discourses that men are less deserving and more threatening to Europe, than women and children. It is important to reflect upon whether EU-Libya cooperation would be as resistant to criticism if the victims were not black men, and what this says of the EU’s commitment to fighting racial discrimination.
The price the EU has paid for ‘stemming the flow’ may therefore be the undermining of the claim to being considered a union defined by a commitment to peace, equality and human rights, and the normative power that comes with that. The EU has come to depend on the help of militias in Libya to ‘stem the flows’, or turn away refugees and migrants from European shores. Some including the European External Action Service (EEAS) argue that it is better that the EU work with these forces, and that the EU is in fact training the border guards and helping them to improve. There is, however, a lack of evidence that the cooperation is motivated by anything other than self-interest. DG Development Cooperation instead of attaching Human Rights conditionality to aid is now focusing on migration control, and Viktor Orbán is deemed to have ‘won’ the migration debate. When migration control is an international affairs priority then Human Rights inevitably take a back seat, and when the EU is eager to work with militias, their image as a protector of Human Rights must be deeply damaged.
It was sad and ironic to emerge from the European Parliament recently after a meeting that reaffirmed cooperation with Libya as the only ‘pragmatic’ solution and to face as I descended the steps, an exhibition on Simone Veil entitled ‘Conscience of a Century’. One cannot but be struck by how distant the reality of today is from her words ‘Europe had a duty to be an example of democracy and respect for human rights’.
19 February 2018
 Feller, E. 2006, “Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of Things to Come”, International Journal of Refugee Law, vol. 18, no. 3-4, pp. 509-536.
[i] Malta Declaration by the members of the European Council on the external aspects of migration: addressing the Central Mediterranean route, 3 February 2017,