Instrumentalisation of International Migration to the EU: A Critique of Securitised Approaches
Mariana Cavalheiro Galvão
Abstract
The use of migration for political purposes has raised concerns within the European Union. This blog post critically analyses the main EU policy and legal responses and proposals on the instrumentalisation of migration, emphasising the need for an approach centred more on individuals and less on the security of the EU. For these purposes, it examines in particular Belarus’ use of migrants for political purposes, as well as the subsequent European Commission’s proposal of a Regulation on situations of instrumentalisation.
Keywords
Instrumentalisation, European Union Migration and Asylum Law, Security
1. Introduction
In the last few years, there have been several instances in which third countries have tried to exert pressure on the European Union by deliberately using migration flows as a means. States have resorted to such tools of coercive foreign policies[1] even before this became an explicit concern for the EU and its Member States in 2020 when Turkey sent over 13000 people to its border with Greece. In 2020, however, the expression ‘instrumentalisation of migration’ has become widely used concerning such phenomena in which migrants are treated as instruments of power.
Other terms, like ‘weaponisation of migrants’, as well as the existence of a ‘hybrid threat’ to security, have also circulated in the media and policy debates, in continuity with the terminology used by the American political scientist Kelly M. Greenhill in 2010.[2] Greenhill has suggested that such practices of instrumentalisation can be exercised by different actors: those that create or threaten to create cross-border population movements (referred to as “generators”), those who do not create but intentionally act to provoke others to generate migratory flows (the “agents provocateurs”) and actors that opportunistically exploit the existence of these migration flows generated or catalysed by others (known as “opportunists”).
In such scenarios, the well-being and the rights of migrants are often disregarded, both by the author(s) of the strategy of instrumentalisation and the actors that respond to it. Concerning the former, this is so mainly because the primary goal is to induce political, military, or economic concessions and to undermine the ‘target’’s standing.[3] When it comes to the actors that respond to such practices, they tend to disregard migrants’ rights mainly as a result of the prominent place that ‘security’ concerns occupy in their policies.
This blog post will provide some reflections on this phenomenon and how it has been approached in policy and legal debates, by examining in particular the 2021 case involving Belarus, as well as the Commission’s proposal of a Regulation on situations of instrumentalisation.
2. The 2021 Belarus’ ‘instrumentalisation’ of migrants
While using migrants as instruments of power is not a new foreign policy strategy, the 2021 events in the EU’s external border with Belarus have shaped the EU’s legislative proposals, placing explicitly the issue of instrumentalisation on the European agenda.
After the Belarusian Presidential Elections of August 2020, the EU decided to enact targeted sanctions,[4] which included travel bans and assets freeze for a group of specific individuals. These people were considered liable for the repression and intimidation of peaceful individuals, opposition members and journalists[5] who protested against the fraudulent elections that did not meet international standards.[6] After Belarus forced the landing of a Ryanair aircraft in Minsk to detain an opposition journalist, the EU introduced a ban on Belarusian carriers taking off, landing, or flying over the EU’s airspace. The sanctions regime was accompanied by support for the Belarusian citizens.[7]
In response to sanctions imposed by the EU, Belarus orchestrated the movement of migrants, mostly nationals of Middle Eastern countries, to the European external borders in Lithuania, Poland, and Latvia. This was done by offering migrants the promise of reaching the EU, facilitating their visa processes and travels to Belarus. Once in Minsk, they were sent to the EU external borders.[8]
The European Commission considered that the actions carried out by Belarus amounted to a “hybrid attack”[9], threatening the entire European Union. This meant that thousands of individuals – children and pregnant women included – found themselves stranded in detrimental conditions without shelter and in circumstances that violated their human rights in the name of security concerns.[10]
3. Policy and Legal Responses
From a domestic standpoint, the first response was the enactment of a declaration of an “extraordinary situation” by Lithuania and a “state of emergency” by Latvia and Poland[11]. These exceptional frameworks allowed for the adoption of national laws and legislative proposals that consolidated the militarisation of borders and legitimised violations of international and European law by restricting asylum procedures and going against the well-established principle of non-refoulement and the prohibition of inhuman and degrading treatment.[12] These legal changes facilitated violent practices in the name of security concerns, which were privileged over migrants’ rights.
On the European level, one of the first responses was the enactment of temporary exceptional measures concerning asylum and return for Lithuania, Poland and Latvia, as per Article 78(3) of the Treaty on the Functioning of the European Union,[13] on 1 December 2021.[14] This article provides for the possibility of adopting provisional measures when Member States face an “emergency situation characterised by a sudden inflow” of third-country nationals. These measures included (i) the extension of the registration period for asylum applications to up to four weeks, instead of the typical three to ten days; (ii) granting material reception conditions, such as temporary shelter and adequate food and clothing; and (iii) a simplification of the return procedure for rejected applications.[15]
Shortly after, the Commission introduced a new package of proposals to establish a permanent legal basis for dealing with future situations of instrumentalisation of migrants in the European Union, which drew inspiration from the provisional measures. These proposals included an amendment of the Schengen Borders Code[16] and a new Regulation on Situations of Instrumentalisation in the Field of Migration and Asylum.[17]
Concerning the Schengen’s Border Code, the Commission proposed the introduction of Article 2(27) which would define the instrumentalisation of migrants as follows:
“a situation where a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating [them], onto or from within its territory and then onwards to [EU’] external borders, where such actions are indicative of an intention of a third country to destabilise the Union or a Member State, where the nature of such actions is liable to put at risk essential State functions, including its territorial integrity, the maintenance of law and order or the safeguard of its national security” [18]
While a clear definition as such is not the solution to the main issues discussed in this blog post, it is worth noting the ambiguity of the proposed definition, especially because of broad terms such as “intention of the third country” and “essential state functions”.
Moreover, the Commission proposed the modification of the applicable rules at border crossing points (Article 5) and on border surveillance (Article 13). Under the new regime, Member States would be able to limit the number of border crossing points, thus facilitating the creation of more obstacles to effectively access asylum procedures. Furthermore, the proposal intensifies border surveillance by allowing the use of drones, motion sensors and mobile units. Rather than emphasizing the protection of individuals, surveillance seeks to prevent migrants from crossing the border. This would contribute to a further deterioration of migrants’ conditions, ignoring that they might have faced ill-treatment both in their countries of origin and during the instrumentalisation process. The Proposed Instrumentalisation Regulation complements these proposals, as well as the New Pact on Migration and Asylum, by providing for a specific ‘crisis’ regime not covered by the New Pact. [19] While no majority could be found in the Council in December 2022 concerning this proposal, its future outcome currently remains uncertain.[20] Some have suggested that it will most likely not be approved before the 2024 European elections, and others have noted that the Council attempted to revive the notion of ‘instrumentalisation’ by integrating the regime associated with it in the debates on the New Pact. [21] In both scenarios, the time is still ripe for contributing to ongoing debates on instrumentalisation and the specific regime that might be associated with it.
Under the Proposed Regulation, Member States can derogate from EU asylum law when facing situations of instrumentalisation. While the proposal attempts to justify the proportionality of these derogations, as per Article 5(4) of the Treaty on the European Union[22], it seems to penalise migrants for the actions undertaken by the author(s) of instrumentalisation. In fact, by introducing mechanisms that allow for derogations from the Common European Asylum System, the proposal undermines the protection of these individuals, facilitating their ill-treatment.
An example is the derogation from the proposed common asylum procedure rules under the New Pact, allowing for an extended deadline of up to four weeks to register asylum applications. Additionally, Member States would hold the authority to determine not only the admissibility but also the merits of asylum applications at their borders or transit zones, the merits being generally excluded from the common regime[23]. With this, the decision-making deadline would be extended to sixteen weeks, instead of twelve. In fact, a delay in the decision may infringe on the right to reception.
Another example is the one set in Article 3,[24] whereby Member States are allowed to temporarily establish different modalities for material reception conditions than those present in the Reception Conditions Directive.[25]Essentially, even if States must still cover migrants’ basic needs, the extended decision-making period might likely lead to detrimental living conditions since the standards for reception can be lowered.
Finally, the proposal allows Member States to not apply the border procedures proposed in the New Pact and the recast Return Directive. Instead, an applicant whose asylum claim has been rejected would only be subjected to a refusal of entry as per Article 14 of the Schengen Borders Code. While States must still ensure respect for the principle of non-refoulement, provide emergency healthcare, consider the best interest of the child, and persons’ vulnerabilities and restrict the use of coercive measures, this derogation seems disproportionate. It neglects other important guarantees concerning remedies and procedural safeguards, potentially impacting the fundamental rights enshrined in the Charter.[26]
The proposed changes to the Schengen Borders Code and the establishment of a special regime for situations of instrumentalisation, rather than mitigating the negative impacts on fundamental rights resulting from instrumentalisation, raise concerns about the extent to which these rights would be guaranteed. As the legal package stands, there is a possibility of violation of crucial rights such as the right to human dignity, the right to asylum, the prohibition of inhumane or degrading treatment or punishment and the right to an effective remedy.
4. Conclusion: Persons, not Political Tools
From the analysis above, it follows that the proposed legal package by the European Commission, which includes the revised version of the Schengen Borders Code and the proposed Instrumentalisation Regulation, does not offer promising solutions.
Framing instrumentalised individuals as security concerns or weapons of ‘hybrid attacks’ and building upon such an approach to create a special legal regime ultimately further exacerbates the already destabilising scenario at the EU external borders triggered by the authors of instrumentalisation. While the primary responsibility for the adverse conditions faced by migrants lies with those who instrumentalised them, the EU is also to be held accountable for the degrading and inhuman treatment they may be subjected to. It is problematic to think that the solution to such scenarios lies in further derogations from EU asylum law, which facilitates violations of fundamental rights. In addition, this creates a fragmented system with different levels of protection within the European Union and different categories of individuals with distinct levels of protection.
In this sense, the proposed legal package is highly controversial. Rather than adding new derogations to existing rules in the name of security concerns, the EU should take seriously the need to prioritise the rights of migrants whose vulnerabilities have been exploited by a third country. The actions of those who seek to destabilise the EU by using migration as an instrument should not become an opportunity to create a regime that would further endanger the rights of the individuals who are the true victims of instrumentalisation.
HOW TO CITE THIS BLOG POST: Galvão, Mariana Cavalheiro, “Instrumentalisation of International Migration to the EU: A Critique of Securitised Approaches”. Nova Refugee & Migration Clinic Blog, October 2023, available at: https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=instrumentalisation-of-international-migration-to-the-eu-a-critique-of-securitised-approaches
[1] Kelly M. Greenhill, Weapons of Mass Migration: Forced Displacement, Coercion, and Foreign Policy (1 edn, Cornell University Press 2010)
[2] Ibid
[3] Alia Fakhry and others, Migration Instrumentalization: A Taxonomy for an Efficient Response (Hybrid CoE 2022).
[4] Alexandra Hofer, ‘The Proportionality of Unilateral “Targeted” Sanctions: Whose Interests Should Count?’ [2020] 89(3-4) Nordic Journal of International Law
[5] ‘After Rigging an Election, Belarus’s Regime Beats Protesters’ The Economist (13 August 2020) <https://www.economist.com/europe/2020/08/13/after-rigging-an-election-belaruss-regime-beats-protesters< accessed 28 May 2023
[6] ‘Belarus’s Election Was a Sham. The West’s Response Has Been Feeble’ The Economist (13 August 2020) <https://www.economist.com/leaders/2020/08/13/belaruss-election-was-a-sham-the-wests-response-has-been-feeble< accessed 28 May 202 3
[7] Andrius Sytas and Andrey Ostroukh, , ‘Belarus Forces Airliner to Land and Arrests Opponent, Sparking U.S. and European Outrage’ Reuters(23 May 2021) <https://www.reuters.com/world/europe/belarus-forces-vilnius-bound-ryanair-plane-land-detain-blogger-2021-05-23/> accessed 28 May 2023.
[8] ‘Belarus: Civil Society “Purge”’, (Human Rights Watch)< https://www.hrw.org/news/2022/01/13/belarus-civil-society-purge<accessed 28 May 2023
[9] Ursula von der Leyen [@vonderleyen], ‘Belarus Is Leading a Hybrid Attack against the EU’ (23 November 2021) < https://twitter.com/vonderleyen/status/1463153450590642178< accessed 29 May 2023.
[10] ‘Poland Imposes State of Emergency on Belarus Border’ BBC News (7 September 2021) <https://www.bbc.com/news/world-europe-58474475< accessed 29 May 2023.
[11] European Council on Refugees and Exiles, Extraordinary Responses: Legislative Changes in Lithuania 2021 (ECRE Legal Note 11, 2021) <https://ecre.org/wp-content/uploads/2021/09/Legal-Note-11.pdf<
[12] ‘Poland: Digital Investigation Proves Poland Violated Refugees’ Rights’ (Amnesty International, 30 September 2021) <https://www.amnesty.org/en/latest/news/2021/09/poland-digital-investigation-proves-poland-violated-refugees-rights< accessed 28 May 2023.
[13] ‘Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/49, Art. 78(3)
[14] Commission (EC), ‘Commission Proposes Temporary Legal and Practical Measures’, (European Commission,1 December 2021)<https://ec.europa.eu/commission/presscorner/detail/en/IP_21_6447< accessed 28 May 2023.
[15] Commission (EC), ‘Proposal for a Council Decision on Provisional Emergency Measures for the Benefit of Latvia, Lithuania and Poland’ COM (2021) 752 final
[16] Commission (EC), ‘Proposal for a Regulation Of The European Parliament And Of The Council Amending Regulation (EU) 2016/399 on a Union Code on the Rules Governing the Movement of Persons across Borders’ COM (2021) 891 final
[17] Commission (EC), ‘Proposal for a Regulation Of The European Parliament And Of The Council Addressing Situations of Instrumentalisation in the Field of Migration and Asylum’ COM (2021) 890 final
[18] Commission (EC) (n 17), Art.2(27)
[19] Commission (EC), ‘Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions on a New Pact on Migration and Asylum’ COM (2020) 609 final
[20] European Council on Refugees and Exiles (n 12)
[21] Commission (EC), ‘Proposal for a Regulation Of The European Parliament And Of The Council addressing situations of instrumentalisation in the field of migration and asylum’ COM (2021) 890 final/ Art. 2.
[22] ‘Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/49
[23] Commission (EC), (n 18), Art. 2
[24] Ibid, Art, 3
[25] Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) [2013] OJ L 180/ Art. 16 and 17
[26] Charter of Fundamental Rights of the European Union [2012] OJ 1 326/393