In his 2017 State of the Union Speech, European Commission President Juncker forcefully argued that “Europe is and must remain the continent of solidarity where those fleeing persecution can find refuge.”‍[91] These words ring hollow when compared to contemporary European irregular migration policies,‍[92] which are characterised by a lack of solidarity and intra-European disunity. The policy process has become fragmented and is marked by states taking unilateral actions to protect their domestic (political) interests against the perceived threats posed by irregular migration – oftentimes at the detriment of the European Union (EU) as a whole. In addition, the Union and its member states are challenged to balance their commitment to international norms and values against the political pressure exerted by extreme right political parties and disgruntled electorates. The EU’s pragmatic solution has become the manufacturing of ever-higher barriers that attempt to lower the number of irregular migrants arriving on European shores, while tacitly reinterpreting the fundamental norms and duties that apply to the irregular migrants that do make it to Europe.

Fragmentation and disunity during the 2015 refugee surge

The EU’s fragmentation regarding the issue of migration surfaced most clearly during the 2015 refugee surge and largely centred on the implementation of the Common European Asylum System (CEAS). Part of the dispute resulted from the Dublin Regulation,‍[93] under which the member state where irregular migrants first enter the EU is generally responsible for processing asylum applications.‍[94] Common countries of irregular entry, such as Italy and Greece, have always balked at the unfair burden they perceive this to put on their countries – even up to the point of quietly permitting irregular migrants to travel onwards without passing through the proper legal procedures. At the height of the refugee surge, the strain put on these countries increased to unprecedented levels.

At the same time, and largely responding to Chancellor Merkel’s open invitation to (Syrian) refugees to find refuge in Germany, northbound irregular migration flows created severe discord within other EU countries that did not look favourable upon irregular migrants’ presence in their countries. In response to increasing numbers of irregular migrants passing through their territories, the Austro-Balkan group advocated and partially implemented the reinstatement of national borders. Countries such as Germany, France and the Netherlands sought to bridge the gap between entry and transit countries by advocating a more welcoming approach combined with EU burden sharing.‍[95] In the end, the externalisation of asylum procedures through the EU-Turkey agreement appeared as a pragmatic policy measure that could take pressure off of the EU without substantially addressing these internal divisions.

Fragmentation and disunity in the reform of the CEAS

Fragmentation and a lack of solidarity are also visible in the implementation of the Emergency Relocation Scheme that saw the light in September 2015. In this scheme, the EU committed to relocate up to 160,000 refugees from Italy and Greece to other EU member states for the processing of their asylum claims. Countries such as Slovakia and Hungary voted against the adoption of an extended relocation decision in the Council, however, and turned to the Court of Justice of the European Union to annul the decision on 2 and 3 December 2015 respectively.‍[96] In the face of lacklustre willingness and even flat-out refusal to cooperate with resettlement, the scheme failed to achieve its stated aims. Only 29,144 eligible individuals – a mere 18.2 per cent of the total planned target – were relocated when the scheme concluded in September 2017.‍[97] Although Eastern European countries such as the Czech Republic, Hungary and Poland proved particularly reticent about relocation – up to the point that the Commission has now launched infringement procedures against them‍[98] – more than 20 member states relocated less than 50 per cent of their pledges.‍[99]

A Commission proposal tabled on 4 May 2016 seeks to remedy some of the Dublin Regulation’s problems.‍[100] However, the proposed reforms do not address the fact that the Dublin system “reinforces the idea that asylum applications are a national competence” and that “sudden inflows are a problem for other governments to deal with”.‍[101] The fragmentation between member states that has hijacked the EU migration debate more generally stands in the way of a substantial overhaul of the migration system that would allow for the more efficient and better regulated processing of irregular migrants arriving in Europe.‍[102] The proposed reforms thereby fail to address the foundational flaws of the Dublin system, which contribute to a lack of responsibility-sharing, and ignore the “volumes of national and European jurisprudence, academic commentary, policy analysis and research that have exposed the multifaceted deficiencies of the EU’s responsibility-allocation mechanism”.‍[103] The CEAS can therefore be expected to perpetuate inefficiency and intra-EU tensions, and discontent over the management of irregular migration.

Pragmatism at work: border externalization and the re‑interpretation of norms

In all likelihood, the failure to address the Dublin system’s lack of burden sharing will contribute to the persistence of current (perceptions of) unregulated intra-European migration flows with two important – and interrelated – consequences for future migration policies. One consequence is that domestic politics are increasingly taken over by a fear of the other. In a telling statement, the Italian Interior Minister Marco Minniti recently noted that it is his duty “to be close to those who are afraid, to reassure them, to liberate them from fear”, adding that “the left can no longer afford to ignore or look down on people scared by immigration or terrorism.”‍[104] Migration has become an issue that can decide elections and politicians have jumped on the migration bandwagon for electoral purposes. In the process, an image of uncontrolled migration flows is perpetuated – even though the EU-Turkey agreement has been quite successful at bringing down the number of irregular migrants entering the EU.

A second consequence is that EU migration policies are increasingly characterised by unilateral actions where EU member states seek to solve the current perceived migration crisis at its point of origin: Africa. Indeed, after the Austro-Balkan states unilaterally re-instated border controls, efforts of individual member states to manage irregular migration have largely turned southwards. This is visible most clearly in the Italian government’s efforts to accelerate forced returns, such as through bilateral return and readmission agreements with the migrants’ home and transit countries.‍[105] In addition, Italy actively outsources its border control, such as through the signature of a memorandum with the leader of Libya’s UN-recognized government, Fayez al-Serraj, which scaled up the cooperation between the Libyan coastguard and the Italian government. Behind the scenes, the Italian government has made substantial efforts to reach an agreement with tribes in South-Libya, as well as communities on the Libyan coast, to bring irregular migration to a halt.‍[106] Although these efforts contribute to human rights abuses and basically entail paying smugglers to stop smuggling migrants,‍[107] both Juncker and Merkel have praised Italy for its taming of irregular migration flows.‍[108] The effective management of irregular migration has thereby become a synonym for reducing migrant numbers at any cost.

A new development on the EU scenery is that French president Macron has taken it upon himself to expand the strategy of externalising EU borders even further. A recent high-level meeting on 28 August 17, including Chancellor Merkel, the Italian and Spanish prime ministers, the presidents of Chad and Niger and Libya’s prime minister and the High Representative of the European Union for Foreign Affairs and Security Policy, resulted in the presentation of a plan to resettle irregular migrants in North Africa.‍[109] Not unlike the EU-Turkey agreement, this plan would entail the combination of some legal resettlement in Europe with high investments to keep the majority of irregular migrants in ‘safe third countries’. The silent assumption behind this strategy appears to be that it is easier to manage irregular migration in Africa than it is to achieve sustainable management and control of irregular migration within a divided EU. A second silent assumption is that it is easier for individual member states to broker deals unilaterally than for the EU to take the lead in a unified migration policy.‍[110]

The biggest stumbling block standing in the way of this strategy is the normative and human rights framework that is the fundament of EU migration policies. To address the limiting effect of this framework on migration policies, a process is visible in which EU politicians and political leaders – as well as their member states – increasingly seek to renegotiate fundamental norms and duties through the reinterpretation of crucial concepts. The redefinition of Turkey as a safe third country within the EU-Turkey statement is a clear case in point.‍[111] The recent Dutch coalition agreement similarly puts a lot of emphasis on the ‘safe third country’ concept as a focal point for future migration policies and also states that it will investigate possibilities to update the 1951 Refugee Convention so that it can provide “a sustainable legal framework for future-oriented international refugee policies”.‍[112] Given the length of the European Court of Human Rights’ (ECHR) procedures,‍[113] and given that examples from Greece and Hungary show that policy makers simultaneously seek to limit the national judicial branch’s room for manoeuvre to protect these fundamental norms and values, legal institutional safeguards seem insufficient to stop this development.‍[114]

The way ahead

No reason exists to expect a major shift in EU migration policies in the foreseeable future. Member states such as Germany, France and Italy have taken the lead in the externalisation of borders and asylum processes to Africa with the aim of taking pressure off of Italy as a main first-entry country. One positive silver lining of this process may be that the need to broker deals with African countries may reinforce the development of legal pathways to Europe. Given that the frame that ‘irregular migration needs to be stopped’ has become dominant in many member states’ public and political discourse, however, and in light of recent right-wing and anti-establishment election outcomes in Austria and the Czech Republic, an even harder and more divided policy stance as to the CEAS is to be expected in the years to come. Migration policies continue to be a nationally driven divisor rather than a unifier for the European Union – meaning that Juncker’s “continent of solidarity where those fleeing persecution can find refuge” will likely remain a utopian dream.