The EU’s Second Chance to Fix Asylum Policy: How Third-country Agreements Create the Opportunity for Change
Since the 1990s, the European Union has tried to find a solution to how an entire continent, which is growing and slowly becoming borderless, could evenly and fairly manage the flow of asylum seekers. Unlike today, the motivations behind the initial push for creating a similar, if not common, asylum system came from within the continent. The Bosnian War, which ravaged a large part of southern Europe during the first half the decade, created a massive flow of people seeking refuge in western countries. During this time period, E.U. Member States were also implementing the Schengen Convention, which aimed to abolish all border controls between participating countries by 1995. The two simultaneous events made it clear that for Schengen to work, the convention’s signatories had to establish common minimum standards of how claims to asylum should be processed.
But even through those early debates, cleavages among Member States emerged. Those countries which make up Europe’s external borders had different priorities than countries were asylum flows were attenuated by geographic advantages. The development of a comprehensive policy proved an act of compromise that, perhaps, should have been an opportunity for policy innovation. One solution to dealing with these divisions was to discourage asylum seekers from making the journey to Europe in the first place. Many policies today have this direct goal. Agreements which encourage third-countries to halt the journey of asylum seekers toward Europe are a clear example of this.
In theory, this approach is good. To appease tensions surrounding the development of a common asylum policy, the European Union negotiates agreements with countries of origin or countries of transit, aiding them in providing the necessary protections so that asylum seekers are no longer motivated to continue the journey to Europe. Such an endeavor cannot be purely superficial. Heavy investment is necessary, and demonstrable abilities to cooperate with what are often times corrupt administrations are required.
Yet, the European Union has not provided the adequate level of depth to implement these agreements. The close cooperation with Libya due to the 2015 spike in asylum seekers has mobilized close to €300 million for migration related projects. Additionally, the EU’s Mediterranean military mission dubbed Operation Sophia has been involved in extensive training operations with the Libyan navy and coastguard. Yet, following this surface-oriented approach to enforcing agreements with third-countries, the European Union itself admits that this outreach is inefficient: many asylum seekers that eventually reached European shores from Libya regularly report that it is members of the Libyan coastguard themselves that take part in smuggling operations.
Critics are right to point out that by externalizing its obligation to grant protections to those in need, the European Union is endangering the rights and lives of asylum seekers in countries of transit. But it needs to be acknowledged that the intention behind these agreements made their existence necessary. Had the Libyan cooperation not been established, many countries that favored a more stringent approach to discouraging migration would have embedded their severity in the European asylum system. The third party agreements served as a temporary bandage for cleavages that could have threatened to collapse the entire European asylum system. Such policy failure would have had devastating consequences for the Schengen region of open borders.
Despite this, Europe is once again presented with an opportunity to innovate policy. Article 78 of the Treaty on the Functioning of the European Union (TFEU) gives the European Union authority to develop a common system for asylum. Since the 1990s, the E.U.’s Common European Asylum System has undergone several changes, each bringing the rules and procedures closer into the European Union’s realm of governance. By the Union’s own admission, the next step is to bring them in even further. The European Union can now, for the first time, choose to abide by rules regarding international protection and improve them by creating a system where refugee status, or any other type of protection, is given fairly, and where policies for the reception of those granted such status are adequate.
This isn’t new territory for the European Union. It has already taken such steps, and has become a world-leader in the realm of data-protection rights. It now needs to do the same for asylum. By making clear that the European Union will provide one fair and sustainable system for processing claims to international protection, it will then have the opportunity to amend any third-country agreement that does not live up to the high standards of human rights protection. These agreements, however flawed, have allowed the European Union to create the foundation on which to build a stronger and better system of protection. It is time, however, that the flaws in those agreements be addressed.