Thursday, 23 April 2015

Don’t Rock the Boat: EU leaders do as little as possible to address the migrant crisis


Steve Peers


Yesterday the EU leaders, in the European Council, adopted a policy for addressing the recent crisis of large-scale migrant death tolls crossing the Mediterranean. It builds upon the recent 10-point plan adopted by ministers (discussed here), but builds upon it in some respects. There were also some interesting last-minute changes to the earlier draft of the text (all of which are shown in the annex below), indicating leaders’ real priorities.



Detailed comments


At first sight, the leaders’ statement shows more compassion than the 10-point plan, referring to the huge loss of life as a ‘tragedy’ and stating an immediate priority to ‘prevent more people from dying at sea’. To this end, there is a specific commitment to triple the funds for ‘search and rescue’ as regards existing EU operations. However, this is only ‘within the mandate of Frontex’ – and the head of the EU border agency has stated that this agency does not really have a search and rescue role.


It should be noted that since these operations are coordinated by Frontex, detailed rules of EU law will apply (discussed here) will apply. These rules do allow, in some cases, for returns of migrants directly from their rescue to non-EU countries – as long as those countries are safe. It is unlikely that in the current situation, Libya would qualify as safe.


The destruction of traffickers’ vessels ‘before they are used by traffickers’ seems to suggest some Minority Report style precognisance of the future use of the boats, considering that traffickers do not paint logos on the side of their boats like ferries or shipping companies. This is also qualified by a reference to compliance with international law. It may be questioned whether this action will legally be a foreign policy operation (as the leaders assume), given the approach to EU law taken in a recent CJEU opinion concerning the EU’s anti-pirates operation (discussed here).


As compared to the 10-point plan, there is a reference to Interception of communications, and a very brief reference to the root causes of the problem (conflict in countries of origin, as well as Libya). The EU leaders took out a reference to stopping migrants making it to the Mediterranean shores, but it’s obvious that this is the main intention of stepping up cooperation with sub-Saharan countries.


There’s an added stress on readmission treaties, including with countries of transit; this refers implicitly to EU readmission treaties with North African states (not Libya) currently under negotiation. There are also two added references to the right to asylum and EU asylum law, confirming that the EU leaders do not intend to simply return migrants without considering their claims. Some press reports had erroneously suggested an intention to return many thousands of migrants without considering claims, but if migrants make it to EU waters or land, it would be illegal to return them without examining their claims under EU law. Migrants can be returned to countries of origin or transit if their asylum claims are unfounded, as long as those countries are safe. Again, returning migrants to Libya would, under current circumstances, breach EU and human rights law as long as that country does not appear safe.


As compared to the 10-point plan, it appears that the intention is not to fingerprint all migrants, but only those applying for asylum; this simply re-iterates long-standing EU law. More generally, the plan says little about safe passage, removing the original (and puny) target number of 5,000 resettlement places, and not referring to other forms of safe passage instead. (While it would be difficult to issue humanitarian visas in Libya, it would be possible to offer this option - discussed further here - in other States). Equally, there is little practical solidarity with frontline states; other Member States offer cash and help with processing and return, but weakened any significant commitment to relocate people from those frontline States.


There is an immediate commitment to issue a ‘roadmap’ next week, pre-empting the Commission’s agenda-setting role (its strategy paper is due in May). However, the role of the European Parliament may still prove significant, since it must approve any funding decisions or changes in legislation.




Overall, the new commitment to search and rescue is welcome, although it is qualified in light of Frontex’s limited powers.  The desire to address root causes is good but seems half-hearted, and this is easier said than done. A more ambitious strategy regarding the processing of asylum claims in non-EU transit states is probably necessary in the medium term, but neither the EU leaders nor asylum NGOs want to swallow this bitter pill for the time being. The destruction of traffickers’ boats is subject to legal and practical constraints, and will be almost literally a drop in the ocean. The summit result is frankly pathetic as regards safe passage of migrants, ensuring that they avoid the risk of the crossing altogether, and it is marginal as regards assistance to frontline Member States.


On the whole, it seems that the leaders want to do as little as possible to change the current approach to dealing with the crisis. Similar to their method of dealing with the euro crisis, this looks like a short-term patch-up that offers less than first appears, which will probably have to be revisited soon.



Photo credit: Kenneth Roth


Barnard & Peers: chapter 26





Special meeting of the European Council, 23 April 2015 - statement

[note: changes from the earlier draft are noted by underling for additions of text, and strike-out for removals of text] 


1. The situation in the Mediterranean is a tragedy. The European Union will mobilise all efforts at its disposal to prevent further loss of life at sea and to tackle the root causes of the human emergency that we face, in cooperation with the countries of origin and transit. Our immediate priority is to prevent more people from dying at sea.


2. We have therefore decided to strengthen our presence at sea, to fight the traffickers, to prevent illegal migration flows and to reinforce internal solidarity and responsibility. Given that instability in Libya creates an ideal environment for the criminal activities of traffickers, we will actively support all UN-led efforts towards re-establishing government authority in Libya. We will also step up efforts to address conflict and instability as key push factors of migration, including in Syria.


3. We today commit to:


Strengthening our presence at sea


a) rapidly reinforce EU Operations Triton and Poseidon by at least doubling tripling the financial resources for this purpose in 2015 and 2016 and reinforcing the number of assets, thus allowing to increase the search and rescue possibilities within the mandate of FRONTEX. We welcome the commitments already made by Member States which will allow to reach this objective in the coming weeks;


Fighting traffickers in accordance with international law


b) disrupt trafficking networks, bring the perpetrators to justice and seize their assets, through swift action by Member State authorities in co-operation with EUROPOL, FRONTEX, the European Asylum Support Office (EASO) and EUROJUST, as well as through increased intelligence and police-cooperation with third countries;


c) undertake systematic efforts to identify, capture and destroy vessels before they are used by traffickers;


d) at the same time, the High Representative is invited to immediately begin preparations for a possible CSDP operation to this effect, in accordance with international law;


e) use EUROPOL to detect and request removal of internet content used by traffickers to attract migrants and refugees, in accordance with national constitutions;


Preventing illegal migration flows


f) increase support to Tunisia, Egypt, Sudan, Mali and Niger among others, to monitor and control the land borders and routes in order to prevent potential migrants from gaining access to Mediterranean shores, building on current CSDP operations in the region, as well as on regional cooperation frameworks (Rabat and Khartoum processes); step up dialogue with the African Union at all levels on all these issues;


g) reinforce our political cooperation with African partners at all levels in order to tackle the cause of illegal migration and combat the smuggling and trafficking of human beings. The EU will raise these issues with the African Union and the key countries concerned, with whom it will propose the holding of a summit in Malta in the coming months;


h) step up cooperation with Turkey in view of the situation in Syria and Iraq;


i) deploy European migration liaison officers in key countries to gather information on migratory flows, co-ordinate with national liaison officers, and co-operate directly with the local authorities;


j) work with regional partners in building capacity for maritime border management and search and rescue operations;


k) launch Regional Development and Protection programmes for North Africa and the Horn of Africa;


l) invite the Commission and the High Representative to mobilise all tools, including through development cooperation and the implementation of EU and national readmission agreements with third countries, to promote readmission of unauthorised economic migrants to countries of origin and transit, working closely with the International Organisation for Migration;


m) while respecting the right to seek asylum, set up a new return programme for the rapid return of illegal migrants from frontline Member States, coordinated by FRONTEX;


Reinforcing internal solidarity and responsibility


n) rapid and full transposition and effective implementation of the Common European Asylum System by all participating Member States, thereby ensuring common European standards under existing legislation;


o) increase emergency aid to frontline Member States and consider options for organising emergency relocation between all Member States on a voluntary basis;


p) deploy EASO teams in frontline Member States for joint processing of asylum applications, including registration and finger-printing;


q) set up a first voluntary pilot project on resettlement across the EU, offering at least 5,000 places to persons qualifying for protection.


4. The EU institutions and the Member States will work immediately on the full implementation of these orientations. The Presidency and the Commission will present next week a roadmap setting out work up to June.


5. The European Council looks forward to the Commission Communication on a European Agenda for Migration, in order to develop a more systemic and geographically comprehensive approach to migration. The European Council will remain seized of the situation and will closely monitor the implementation of these orientations. The Council and the Commission will report to the European Council in June.

Wednesday, 22 April 2015

The EU response to migrant deaths: protection and prevention – or policy laundering?

Steve Peers

On Monday, EU foreign and interior ministers adopted a ten-point plan in response to the recent huge death toll of migrants crossing the Mediterranean. There will be a summit on Thursday to examine the issue further, and then an EU Commission strategy proposed on May 13th. But for now, I want to examine the initial plan.

Overall, this is a very disappointing document. It’s not only vague on crucial details but more importantly focusses less on the situation of the migrants (addressing the root causes which cause them to move, and protection from drowning and persecution) and more on border control and repression. One point in the plan constitutes a rather crass example of ‘policy laundering’ – attempting to use a crisis to shove through an essentially unrelated policy objective.

Let’s look at the ten points of the EU plan in turn, then examine the ‘Australian solution’ and the ‘Christians only’ approach which some have suggested. For alternative solutions to the problem, see the proposals of the UN Special Rapporteur on Migrants, the EU's Fundamental Rights Agency, Patrick Kingsley (in the Guardian), Nando Sigona, and myself.

Reinforce the Joint Operations in the Mediterranean, namely Triton and Poseidon, by increasing the financial resources and the number of assets. We will also extend their operational area, allowing us to intervene further, within the mandate of Frontex;

This is the only one of the ten measures related directly to search and rescue, although it’s not clear if this is actually intended to be a search and rescue mission. The mandate of ‘Frontex’ (the EU’s border control agency) concerns border control, not search and rescue as such. Indeed there is no mention of search and rescue here, or in the rest of the plan. Nor is there any express mention in the plan of the recent loss of life. There are no details of the extent of the increase in financial resources and assets, or the extent to which the operational area will increase.

A systematic effort to capture and destroy vessels used by the smugglers. The positive results obtained with the Atalanta operation should inspire us to similar operations against smugglers in the Mediterranean;

The ‘Atalanta’ operation concerns an EU military operation against pirates in the Indian Ocean. It’s clear from press briefings that the intention is to have another military operation regarding the smugglers. This will obviously entail significant costs and raises legal questions about the jurisdiction which the EU Member States have to destroy boats in the waters of third States or the high seas.

EUROPOL, FRONTEX, EASO and EUROJUST will meet regularly and work closely to gather information on smugglers modus operandi, to trace their funds and to assist in their investigation;

These bodies are respectively the EU police cooperation agency, the EU border control agency, the EU asylum support agency and the EU prosecutors’ agency. The asylum support agency has traditionally had little or nothing to do with this issue, and there is a risk that some of its funding is diverted. There is no express commitment to give it extra funds.

EASO to deploy teams in Italy and Greece for joint processing of asylum applications;

This will defray the cost of processing for those Member States and speed up processing times for overburdened administrations. It’s not clear whether this will simply be an application of existing rules which allow EASO to simply support national administrations, or whether there will be a shift to genuine ‘joint processing’ by a group of Member States or the agency as such. That would require fresh legislation.  

Member States to ensure fingerprinting of all migrants;

EU legislation already requires fingerprinting of all short-term visa applicants (once the EU’s Visa Information System is fully applied, in the next year or so), residence permit holders, asylum applicants and persons crossing borders without authorisation. All holders of EU passports (ie EU citizens) must also be fingerprinted. The only gaps here are non-visa nationals coming for short-term visits (ie citizens of countries like the USA and Canada) and irregular migrants who have ‘overstayed’ after a legal entry. However, after the EU’s Visa Information System is fully applied, the second group (overstayers) will simply be a sub-category of the first group (non-visa nationals), since everyone needing a visa will already have been fingerprinted. And proposed legislation establishing an entry-exit system will require the non-visa nationals to be fingerprinted too, although it will take a number of years for that legislation to be agreed and made operational. These various categories of people are subject to different rules as regards how the fingerprint information is stored and used; it’s not clear if the intention is to change those rules.

The very odd thing here is what fingerprinting of ‘all migrants’ has to do with the issue of migrants drowning at sea in an attempt to reach the EU. It would perhaps make sense to reiterate the requirement to fingerprint all those who apply for asylum or attempt to cross the border without authorisation (as all those migrants who attempt to cross the Mediterranean are doing), but the plan clearly refers to ‘all migrants’. So we can only conclude that this is a blatant attempt at policy laundering.

Consider options for an emergency relocation mechanism;

The concept of ‘relocation’ entails moving asylum-seekers and/or recognised refugees from the Member States which have an obligation to consider their claim, or which have recognised their refugee status, to other Member States. It would obviously reduce the pressure on the Member States which receive a significant number of refugee claims from migrants crossing the Mediterranean – most notably Malta, Italy (the island of Lampedusa) and Greece. However, it would entail either suspending the EU’s Dublin rules on asylum responsibility in part (requiring a legislative amendment) or encouraging voluntary offers from Member States which are not responsible under the rules. Both options have been discussed many times over the years with no success (Dublin amendments) or very little success (voluntary offers). The wording used here (‘consider options’) is so underwhelming that little can be expected.

A EU wide voluntary pilot project on resettlement, offering a number of places to persons in need of protection;

‘Resettlement’ is the process of taking some of the people in other (non-EU) countries who need international protection and moving them to the EU. This is the only one of the ten points which offers ‘safe passage’, ie a way for would-be asylum-seekers to enter the EU without running the risk of drowning when crossing the Mediterranean. The ‘number of places’ is not specified, and it should be noted that under EU financial law, a ‘pilot project’ is a short-term programme using only a small amount of money. Furthermore, the project is expressly ‘voluntary’. Overall, it seems that this one form of ‘safe passage’ being offered by the EU is very narrow indeed.

Establish a new return programme for rapid return of irregular migrants coordinated by Frontex from frontline Member States;

EU law specifies that asylum-seekers cannot normally be removed until a final negative decision has been taken upon their application. So this refers to people whose asylum application has definitively failed, or who never made such an application and have no other ground to stay. There are procedural rights in the EU’s Returns Directive for irregular migrants, but there is no mention of them (or the asylum laws) here. Frontex already has a role coordinating joint return flights; the intention is to devote more effort (and presumably resources) to removing people from the EU’s Mediterranean Member States.

Engagement with countries surrounding Libya through a joined effort between the Commission and the EEAS; initiatives in Niger have to be stepped up.

This is the only part of the 10-point plan that hints that the EU’s relations with third countries have a role to play. It isn’t clear what this ‘engagement’ will concern. Will it focus on the conditions in the countries of origin and transit, thereby ensuring that fewer people want to head to the EU in the first place? Or is the EU only concerned with the repressive aspects, such as tracking down smugglers and traffickers?

Deploy Immigration Liaison Officers (ILO) in key third countries, to gather intelligence on migratory flows and strengthen the role of the EU Delegations.

The intention here is to obtain more intelligence on migration flows, although it’s not clear what will be done with that intelligence once it’s obtained. There will be a cost for the EU and/or Member State budgets here.

The Australian solution?

Some have suggested that the EU adopt the supposed ‘Australian solution’, of sending boats to stop the migrants reaching the territory of the EU. In fact this is a highly simplistic understanding of Australian asylum policy. The Australians do not intercept most migrants just outside their country of origin or otherwise return them there directly. Rather the policy is to send asylum-seekers to various Pacific islands for processing and to live permanently if a claim is successful. Australia gives the countries concerned significant cash in return. Moreover, Australia has a very active resettlement policy, recently increasing the numbers of permits granted from about 13,000 to about 20,000.  So the asylum policy is justified by Australia as a means to stop people ‘jumping the queue’. Also, the policy is underpinned by indefinite detention of anyone who does make it to Australian shores without authorisation.

Could this policy be applied to the EU? There are some big legal problems. The European Court of Human Rights has ruled that migrants cannot simply be intercepted and returned to third States unless those States are safe (see the Hirsi judgment); it should be noted that conditions in some of the States participating in the Australian policy have been strongly criticized by human rights groups. Also, the EU’s Returns Directive bans indefinite detention of irregular migrants. That Directive does not apply to asylum-seekers, but EU asylum legislation applicable from July this year sets many new conditions regulating such detention. It’s highly arguable that detention of asylum-seekers cannot be justified (at the latest) once the final decision on the application has been made, or after the new EU deadlines to decide on asylum claims have passed. After that point the time limits for detention in the Returns Directive will apply.

Even if these legal problems could be overcome, could the Australian solution be replicated by the EU? The EU would have to find third countries willing to house large numbers of refugees and asylum-seekers, and pay them to do it. The numbers of migrants involved in Mediterranean crossings (about 200,000 in 2014) is far higher than those covered by the Australian solution (25,000 in 2012-13). So, although accommodating asylum-seekers in transit States is likely to play an important part in any long-term solution, this is easier said than done; and it’s important to note that the EU’s 10-point plan makes no mention of this issue.

Furthermore, the advocates for the Australian solution simply ignore Australia’s resettlement policy, which is one of the most generous in the world. Its 20,000 permits a year, for a population of 23 million, scale up to about 50,000 resettlement permits for the UK, and 450,000 across the EU. When the advocates of the Australian solution start to talk about that scale of resettlement, we should take them seriously – but not before.


Some have suggested that the UK and/or EU should focus exclusively on admission of Christian asylum-seekers, on the basis that they have ‘no other place to go’. Does that policy make sense? It’s undoubtedly true that some Christians face persecution, but so do many non-Christians – and Article 3 of the UN (Geneva) Convention on Refugees bans discrimination on grounds of ‘race, religion or country of origin’. It isn’t correct to suggest that Christians can’t live safely anywhere in any Arab or Muslim state: many of those States maintain the centuries-old tradition of letting Christians live without persecution, and indeed there are a large number of Christians living in Lebanon in particular. And it’s hard to see how this policy will work. Will Christians alone be rescued from boats in the Mediterranean, leaving the Muslims on board to sink? And how would asylum-seekers’ claims to be Christians be examined: by making applicants sit a Religious Education A-level on the boat? Or simply checking (for men and boys) to see if they are circumcised (and therefore likely to be Muslim) or not?


The first striking thing about the EU policy is that it pays little attention to the human emergency that triggered it: the deaths of hundreds of people, which resulted from a collective EU decision to stop search and rescue in the Mediterranean. There’s no express mention of the deaths themselves in the plan, and the Commission President’s statement on Sunday merely expressed his ‘deep chagrin’ at the deaths – as if someone had guzzled his last bottle of cognac.

Furthermore, the intention to expand the existing missions fails to mention any search and rescue aspects, and there is a very limited reference to expanding one form of safe passage.  No part of the plan mentions dealing with the situation in countries of origin, or helping countries of transit manage the number of migrants on their territory. Instead, there is a strong emphasis on expulsion of migrants from the EU. Overall, this leaves the impression that the ministers aren’t shocked that migrants have died – but rather irritated that some of them didn’t.

Arguments about the costs of rescue, or of asylum-seekers reaching the EU, are undercut by the implicit plans to spend considerable sums of money on a military mission, fingerprinting of migrants, expulsion, and intelligence gathering. So the argument isn’t really about economic cost – but the social and political impact of migration.

As for the intention to crack down on trafficking and smuggling, few will have sympathy for the vultures that profit from others’ suffering and frequently jeopardise the lives of hundreds of people. But it seems odd to focus on them in this plan without also trying to address the broader situation of the migrants themselves – as if the means by which people make dangerous journeys to the EU are more important than the reasons why they do this. On this point, the plan resembles the decades-long US policy of military missions in Latin America, trying to destroy drug crops. Admittedly, it’s harder to build new boats than to grow more drugs – but then, the migrants aren’t exactly coming on cruise ships. The policy may well have the effect of lowering the (already low) quality of vessels used to cross the Mediterranean, and increasing the cost of migrants' journey. Unless it forms part of a broader policy which aims to deal with the root causes of migration and the position of migrants in transit countries, it could make them less (not more) safe.

 Art credit: Alex Falco Chang

Barnard & Peers: chapter 26

Monday, 20 April 2015

Migrant deaths in the Mediterranean: What can the EU do?

Steve Peers

The latest tragedies in the Mediterranean add to the enormous and growing death toll of migrants crossing that sea. Today EU ministers will consider the issue as a matter of urgency, and the Commission is due to propose an EU strategy next month. Here are some thoughts as to what parts of the EU response should be.

First of all, it is necessary to reinstate a major search and rescue operation. The EU’s ‘Triton’ operation which replaced the Italian ‘Mare Nostrum’ operation from the end of last year is obviously inadequate as regards saving lives – which is not its main purpose in the first place. Equally the assumption that the termination of Mare Nostrum would reduce the number of migrants willing to undertake the Mediterranean crossing – and die in the attempt – was obviously mistaken.

The new operation need not be an EU operation as such, due to legal questions about how much the EU as such can set up a search and rescue operation. Possibly the EU, or at least a large group of its individual Member States, can contribute toward the coordination and funding of a joint operation, rather than leave this entirely up to the Italian government as before.

Secondly, the EU has an established system for border surveillance, known as Eurosur. Its main focus in border control but it has a subsidiary role as regards detecting migrants in need of rescue. It could be focussed more on the humanitarian aspect, if necessary by means of a rapid amendment to the legislation establishing it – or alternatively, if there are legal doubts about this, by a parallel agreement among the Member States.  

Thirdly, the EU should address the important role of the private rescue of migrants. At present, the EU Directive prohibiting the smuggling of migrants specifies that any assistance to irregular migrants is prohibited – even if the person or organisation concerned is not acting for profit. There is only an option for Member States to exempt humanitarian assistance from the prohibition. This legislation should be amended as soon as possible to make this exception mandatory, clarifying that this also exempts private sea vessels which assist those in need (in accordance with the law of the sea) also benefit from the exception. Private vessels which lose money as a result of offering assistance (for instance, because they were diverted from catching fish) should be compensated by national or EU funds if necessary. This amendment could be fast-tracked, pending a more comprehensive review of the legislation to consider the best criminal law response to smugglers and traffickers.

Fourthly, there is a need to address the situation in countries of origin and transit, so that fewer people feel the need to make this risky journey in the first place. This also takes account of realpolitik: it’s not socially, economically or politically feasible for the EU to offer protection to everyone in the world that needs it. Of course, solving the conflicts and poverty that cause desperate people to flee in the first place is far easier said than done. But it would certainly be possible to fully review EU foreign policies and development aid funding with a view to addressing the root causes of migration.

In terms of a legal response, there are several other external aspects of EU migration policy. For those who have a need for international protection, many already receive support or protection in neighbouring and transit countries, and the EU could step up its contribution to such assistance.  A proportion of the people concerned are already resettled by Member States, and the EU could increase its support for this resettlement process. It might be useful to amend EU asylum legislation to confirm that the persons concerned have refugee status in the Member States concerned, in accordance with the EU’s ‘Qualification Directive’, upon arrival.

There’s also an existing legal framework for Member States to consider applications for asylum lodged at their consulates in third (non-EU) countries. At the end of 2013, the EU’s main court (the CJEU) already ruled in the Koushkaki case that the EU’s current visa code requires Member States to issue visas to applicants if the criteria for issue are met. The visa code mainly applies to short-term visas, not visas for people who need long-term international protection. However, the code also provides for rules on the issue of a short-term visa with ‘limited territorial validity’ (LTV). These visas are not valid in all Schengen states, but rather valid usually in only the single Schengen State which issues them.  

According to the current visa code, an LTV visa ‘shall be issued…when the Member State concerned considers it necessary on humanitarian grounds, for reasons of national interest or because of international obligations’. The important point is that an LTV visa can be issued where the usual conditions for issuing a visa are not met, for instance where there is insufficient evidence of an intention to return to the country of origin. Obviously, where a person has a genuine protection need, a reluctance to return to her country of origin is perfectly understandable; indeed, it is built into the very definition of refugee or subsidiary protection status (ie a well-founded fear of suffering persecution or serious harm in that country).

It’s arguable the 2013 CJEU ruling in the Koushkaki judgment also applies to LTV visas, in light of the word ‘shall’. Admittedly, that word is then qualified by the words ‘considers it necessary’. But arguably, at least in cases involving a potential international protection need, the EU Charter of Fundamental Rights requires that where a person applies for a visa from a (Schengen) Member State, the existence of such a need must be considered if it is alleged, and an LTV visa must be issued if such a protection need exists. It can hardly be denied that EU law (and therefore the Charter) applies whenever a third-country national applies for a visa from a Schengen Member State.

So the EU and its Member States could agree that this is the correct interpretation of the existing law, and take action to put it into effect, for instance adopting guidelines or standard rules for consulates on how to apply such obligations. EU funds could assist with any additional costs for Member States.

There’s also an immediate opportunity to address this issue by means of legislation, since proposed amendments to the visa code that would fully overhaul it are currently under discussion in the Council and the European Parliament (EP). These proposals raise many different issues, and the Council and EP are still at an early stage of discussing them. But it would be possible to split up the proposal and adopt an amendment to the LTV rules on a fast-track basis.

In a previous blog post, I suggested a simple amendment to the visa code to this end. This would simply amend the rules to state that an LTV visa ‘shall be issued…when it is necessary in order to ensure the international protection of the person concerned in accordance with Directive 2011/95 [the Qualification Directive], or when the Member State concerned considers it necessary…’.

In the longer term, other difficult and controversial aspects of an external protection policy could be developed. It would be possible to develop ‘joint external processing’ of asylum claims, as long as such processing in no way prejudices applications made at the border or on the territory of Member States, and entails the entry and stay of persons with international protection needs either on the territory of Member States, or on the territory of third countries which offer an equivalent level of protection. Nor should joint processing prejudice the resettlement of those groups of persons (such as Syrian refugees) whose need for international protection is obvious.

The problems associated with such joint processing should not deter the EU from taking the immediate steps outlined here that could reduce the death toll on the Mediterranean by stepping up rescue efforts and by giving more people with an established protection need a form of safe passage to the EU – either by means of resettlement of established refugees or assessment of asylum-seekers’ protection needs as an adjunct to the visa application process. There is a moral imperative for the EU to act swiftly and effectively to address the issue.

Photo credit: Daily Mail

Barnard & Peers: chapter 26

Sunday, 19 April 2015

Trivialising migrant deaths: why words matter


Steve Peers

The escalating tragedy of thousands of migrants’ lives being lost every year during attempted Mediterranean crossings is one of the most difficult issues facing the EU’s immigration policy. However, the importance of addressing this issue has recently been undermined by comments in the UK’s most popular newspaper (The Sun) by Katie Hopkins, the controversial media commentator. Let’s have a look at exactly what she said – and why such words matter.

Hopkins begins by saying that she doesn’t care about migrant deaths, referring to migrants as ‘feral’ and comparing them to the ‘norovirus’. Instead of a rescue mission, she advocates an Australian solution: to ‘threaten them with violence’ (gunships) until they go away. If they want a better life, they should ‘get creative’ in North Africa. Britain is not a promised land, and ‘swarms of migrants’ are already turning its towns into ‘festering sores’. Indeed, the migrants are ‘like cockroaches’ in their ability to survive bad fortune.

Hopkins’ rant raises two issues. First of all, should we respond to her at all? I think it’s usually best to ignore Internet trolls, and Katie Hopkins is the biggest troll of all. I’ve been ignoring her for years, and my first impulse was to ignore this latest outburst in turn. However, after some thought I decided we need to respond to her, due to the combined effect of the content of her words and the scale of the media platform which she used to make them.

Secondly, I have grave doubts about calling people racists or Nazis in public debate. Those terms have been debased by overuse. For instance, it’s not ‘fascist’ to set up free schools, or ‘Nazi’ to reduce welfare benefits. Nor it is usually ‘racist’ to advocate stricter immigration controls – especially in the UK, where the current debate is about restricting the numbers of mostly white people from countries like Romania and Poland. There’s even a so-called ‘law’ (Godwin’s Law) about the speed at which arguments degenerate into counter-insults about which person is the most like a Nazi. Calling people racists or Nazis is usually an indication that the speaker has no better argument, and leads to the supposed racists becoming more entrenched in their opinions. It’s simply counter-productive, and I’ve argued with people on social media who make the inane argument that voting for UKIP will lead to Auschwitz.

Having said that, I think comparisons with Nazis are still genuinely appropriate in the very exceptional cases where they can be justified – not because the Nazi party as such is likely to re-emerge anywhere, but because public discourse that uses Nazi concepts and imagery should disturb us in a civilized society, for two reasons. First, because it could lead to vile treatment of the groups being stigmatized could be treated in practice. How many refugee children will be called ‘cockroaches’ in school next week? Secondly, because the dehumanisation of any group of people dying in large numbers demeans us all, and undercuts any argument about saving them.

So with that in mind, let’s look at Hopkins’ comments. They immediately reminded me in particular of the phrases used in the Nazi propaganda newspaper Der Sturmer. So I did a Google Images search on ‘Der Sturmer cockroach’. As you might imagine, these images are very unpleasant. I won’t reproduce any of them, but unfortunately I have to describe them to make my point.

A can of bug spray exterminates a cockroach wearing a Star of David helmet. Jewish spiders spin their webs, and Jewish snakes and maggots conquer the world. The ‘Yid-Fly’ stings its victims with its long nose. Hideous Jewish men slobber over helpless Aryan women.

This imagery is not only anti-semitic. A search for ‘cockroach racist’ leads to further images from the far right. Huge upright cockroach figures resembling African men, some of them accompanied with the ‘n’ word. A world without Jews and blacks is like a world without rats and cockroaches, one cartoon asserts.  Cockroaches also designate Jews, Mexicans and Iranians.

I could probably find more such images with different search terms, but you get the point – and I feel sick. Is it fair to compare Hopkins’ rant to these illustrations, though?

First of all, as others have already pointed out, to some extent the policy itself is the UK government’s policy, at least as regards objection to search and rescue missions (I’m not aware that the government supports gunships to force migrants back to Libya). To be fair, this policy was partly based on a belief that the Italian navy’s recent ‘Mare Nostrum’ rescue mission, wound up late last year, served as a ‘pull factor’ for migrants. So ending the mission would actually reduce the death toll, since fewer migrants would attempt the crossing. This ‘seatbelt effect’ argument was perhaps plausible when it was first made several months ago, but it has since been disproved by events, as migrant deaths for the first few months of 2015 are well above the level of 2014 (see statistics here). In any event, this isn’t the argument that Hopkins is making.

Indeed, the absence of a large-scale rescue attempt is implicitly also EU policy. There’s been no attempt by the EU to coordinate a joint rescue effort to replace Mare Nostrum, and the EU’s immigration Commissioner says nothing much about the issue. But that’s not the point: I accept that the policy itself is not a Nazi policy, since there’s no intention to kill people based on their race – although I am bound to wonder whether more effort would be made to save these migrants if they were white. Instead, the arguments for the lack of a rescue effort are: its cost; that there’s no capacity for the UK/EU to handle more migration; and that the migrants should seek protection (if they need it) closer to their country of origin. These aren’t racist arguments as such, although the way that Hopkins makes them is facile.

Perhaps it’s pointless to fact-check a rant. But the problem with ‘getting creative’ in Libya is that, as Amnesty reports, 'the human rights of tens of thousands' of foreigners in Libya 'continue to be routinely violated'. As for the ‘survivability’ of migrants, the estimated death toll in the Syrian conflict alone is 191,300 - and that was a year ago.

Having said that, it’s hard to see how the UK alone, or the EU as a whole, has the socio-economic capacity to take in all of the 50-million odd people who need protection worldwide. It’s certainly a political non-starter. So significant numbers have to remain near their country of origin, and some of them will inevitably seek to make the dangerous Mediterranean crossing. Some new solutions could be tried, but there’s no obvious ‘silver bullet’ that could solve the problem miraculously.

What is objectionable is not the underlying argument that Hopkins is making, but the language which she uses in her piece to make it. While she borrows the imagery of the extreme right, she doesn’t quite make the argument as the Nazis, because she is not calling for the murder of large numbers of people, but rather for indifference to their deaths. That’s a fine line, as we can see if we put the argument in personal terms. Would you draw much moral distinction between a person who killed your family member, and a person who could have made a potentially successful effort to save their life but deliberately chose not to?  

Also, think about this: would the article have been published it if had been illustrated with a drawing like those I described above, depicting black people as feral stowaways or drowning cockroaches? Of course not.  And would it have been published if it had described Jews in the same way? Again, of course not. Thank God no British newspaper would today print anything remotely so anti-semitic – and let’s pray that this never changes. (Although Hopkins has suggested that the Labour party’s Jewish leader should stick his wife’s head in an oven). But the same self-restraint should apply to the way the media describes any group of humans.

So what is to be done? Some have suggested that Hopkins and The Sun should be prosecuted for racial hatred. Certainly her words promote hatred, but is that hatred based on race? Presumably Hopkins’ piece was checked over by the Sun’s in-house lawyer – who surely has one of the most ethically compromised jobs in the entire British legal profession. He or she might have argued that her expression of loathing was not specifically based on people’s race. That’s a pretty fine line, since surely not a single one of the 3279 people who drowned in the Mediterranean last year looked much like Katie Hopkins.

But in any event, I see no point in prosecuting her. It would allow her to portray herself as the victim, and would give more publicity to views. Prosecuting the editor of Der Sturmer didn’t stop the rise of the Nazis – it only increased membership of the Nazi party.

What about the newspaper which published her rant? The most remarkable thing in this saga is that any national newspaper would think that these views were fit to print. Have we really plunged to this depth of public discourse? Is it so hard to argue that ‘Charity begins at home’ without adding the explanation, ‘…because migrants are like feral, swarming cockroaches?’

The Sun newspaper has form on this, of course. In 1989, it lied about and sneered at the deaths of 96 Liverpool football fans at Hillsborough stadium. Most of the population of Liverpool have boycotted the paper ever since. We could even put the migrant death toll in the Mediterranean in terms the Sun understands: in 2014, it was equal to 34 Hillsborough tragedies – one for nearly every Liverpool Premier League match.

So my suggestions are these. First of all, we need to step up support for human rights, migrant and refugee groups, who do a brilliant job daily of reminding us of the common humanity that we share with the migrants, and working for solutions. Their job will not be made easier by the popularisation of neo-Nazi imagery in national newspapers.

Second, we have to counter extremist language by Katie Hopkins or anyone ‘inspired’ by her and given a similar high-profile platform. There’s certainly no point threatening her, or using extreme language in return. In spite of everything, I still believe that she is good at heart.

Finally, and most obviously, follow the wisdom of Liverpudlians: don’t buy that vile paper.

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Barnard & Peers: chapter 26

Friday, 17 April 2015

EU Zombie Law: the CJEU re-animates the old 'third pillar'


Steve Peers

Back in 1993, when the Maastricht Treaty entered into force, the EU began adopting measures on criminal law and policing under a peculiar institutional system, known in practice as the ‘third pillar’ of EU law. This system was amended by the Treaty of Amsterdam in 1999, and then survived several attempts to kill it over the next decade; indeed I once compared it to Rasputin. The Treaty of Lisbon nominally finished it off it as from that Treaty’s entry into force (1 December 2009); but this was subject to a five-year transitional period.

That makes it sound as though the third pillar finally came to an end on 1 December 2014 – but it did not. Indeed two judgments of the CJEU yesterday (here and here) not only maintain old third pillar measures in force, but allow new measures based on them to be adopted. Third pillar measures aren’t exactly dead yet – rather they are undead. Let’s take a look at these zombies of EU law.


The Treaty of Lisbon has a transitional Protocol, which contains two rules relating to the third pillar. First of all, Article 10 sets out the five-year transitional period, after which the normal jurisdiction of the CJEU would apply to the measures concerned. At the same time, the UK could choose to opt out of all of these measures, and then opt back in to some of them, as it indeed did last year (see discussion here).

Secondly, Article 9 of that Protocol, which is not subject to a time limit, states that third pillar measures adopted before the entry into force of the Treaty of Lisbon stay in force until they are amended or repealed. Some of them have been amended or repealed, or will be soon (the law establishing Europol, for instance). But the majority remain in force, including the controversial law establishing the European Arrest Warrant (EAW).

Why does this still matter? First of all, the pre-Lisbon measures don’t confer direct effect on individuals, so can’t be invoked to create rights in national courts. Secondly, this means that the European Parliament (EP) has not had any real say in the adoption of these measures. In particular, the EP has a lot of excellent suggestions for the reform of the EAW. Thirdly, a legal question arises as to whether the pre-Lisbon measures can serve as a legal basis for the adoption of new measures even after the entry into force of the Lisbon Treaty. This question was answered by yesterday’s judgments.


The EP challenged the validity of post-Lisbon Council measures which had implemented pre-Lisbon EU criminal law acts, in particular giving police forces access to the EU’s Visa Information System and prohibiting some new designer drugs. There are parallel actions still pending, against measures implementing pre-Lisbon laws establishing Europol and the ‘Prum’ system of exchanging data between national police forces.

The reason for the EP’s objection to these measures was that the Council exercises these powers by means of a qualified majority vote, and argues that it does not have to consult the EP at all, since the legal requirement to consult the EP was set out in the old third pillar rules in the Treaty, which were repealed by the Treaty of Lisbon. In the EP’s view, the Council should use the post-Lisbon rules for the adoption of implementing measures, ie giving the Commission the power to adopt delegated acts over which the EP has control. Alternatively, fresh EU legislative acts have to be adopted; these would be subject to the ordinary legislative procedure.

The CJEU ruled that, in accordance with Article 9 of the transitional protocol, the pre-Lisbon measures remain in force. In the Court’s view, that also means that the Council is entitled to adopt implementing measures following the pre-Lisbon process. However, the Court, unlike the Advocate-General, said that the Council at least has to consult the European Parliament on these measures. It reasoned in effect that the cross-reference to the repealed Treaty rules in the pre-Lisbon legislation retained those rules in force.


The Court’s ruling in effect allows the Council to create new third pillar acts long after the third pillar has nominally died. It’s as if zombies could procreate, and give birth to baby zombies (I’m going for a ‘grossest legal analogy’ award here).  Furthermore, the Court’s reasoning as regards the EP’s partial victory means that to some extent, even aspects of the long-dead Treaty rules on the third pillar have now been zombified by the Court.

How much damage could these zombies do? There’s no risk of the famous ‘zombie apocalypse’ affecting EU law. Apart from these implementing measures, all other EU criminal law acts adopted since the Treaty of Lisbon have taken the normal EU form of Directives and Regulations, and have been subject to the post-Lisbon procedures (usually the ordinary legislative procedure). Many pre-Lisbon EU measures (such as the EAW law) don’t provide for implementing measures, and some of those which do (such as the Europol law, as mentioned already) will be replaced soon.

The Court’s rulings are a reasonable legal interpretation of the transitional rules. But the broader political problem remains: many controversial measures affecting civil liberties have had no real input from the EP. Since its resort to the courts has had only limited success, the EP should now consider alternative means (blocking legislation or budget disbursements) to achieve the goals of reviewing pre-Lisbon EU criminal laws – and in particular securing much-needed reforms to the EAW.

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Barnard & Peers: chapter 25