Travel Regime over Refugee Regime: How the EU Circumvented its Duties to Accept Refugees During the Migrant Crisis
by Anna-Lena Rüland
Published onJan 01, 2021
Travel Regime over Refugee Regime: How the EU Circumvented its Duties to Accept Refugees During the Migrant Crisis
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Abstract
For the past decades, global migratory pressures have steadily increased and provided both the Global North and South with several new challenges. Using the concept of regime complexity as a theoretical framework, this article examines how states of the Global North and South have dealt with these challenges. On the basis of an in-depth study of the 2015 European migration crisis, this article argues that the European Union (EU) has drastically restricted access to asylum for refugees by addressing the crisis through the travel regime instead of through the refugee regime. It further contends that this has had an important impact on the mandate of the United Nations High Commissioner for Refugees (UNHCR), the main body governing the refugee regime. Further research should investigate whether other states of the Global North have reacted similarly to growing migratory pressures and investigate what impact this has had on the institutions at the heart of the refugee regime.
Key Words: Refugee Crisis, Regime Complexity, Regime Shifting, UNHCR, IOM
Introduction
Until early 2020, when Turkey opened up its borders with Greece and led many migrants to try to enter the European Union (EU), the EU-Turkey deal of 2016 had been rather successful in reducing the influx of migrants reaching Europe. Back in 2015, when the number of people seeking asylum in Europe skyrocketed to 1.26 million, the deal was the smallest common political denominator that all EU Member States could agree on (European Parliament 2017). Prior to the negotiation of the agreement, Member States were split over the question of how the high influx of migrants should be handled. Southern European States, such as Greece and Italy, were unevenly burdened when thousands of refugees reached their shores in 2015 and called the EU for help and support. As entry points of arrival they were responsible for processing asylum requests under the Dublin Regulation (European Commission N/S-b). When the numbers of asylum seekers outgrew their state capacities and a wave of secondary movement1 reached Northern European States, like Sweden and Germany, the EU finally sprang to action to address the sharp rise in arrival numbers.
In the first months of 2015, the European Commission hastily developed various crisis-response mechanisms (Collet and Le Coz 2018: 10). Amongst these was the EU-Turkey deal, which states that “irregular migrants arriving in Greece after 20 March 2016 are to be returned to Turkey, and that the EU is to resettle one Syrian for every Syrian returned from the Greek islands” (Collet and Le Coz 2018: 19). The deal is probably one of the most controversial parts of the EU response to the migrant crisis. International Organisations (IOs), activists, and scholars alike heavily criticize it (see: Human Rights Watch 2016; Gogou 2017). In the pertinent academic literature on the topic, scholars often investigate the deal’s consistency with international law and its impact on refugees (see: Poon 2016; Lehner 2019; Peerboom 2019). Surprisingly few of them analyse the deal using a comprehensive International Relations framework. This paper seeks to close this research gap by asking whether regime complexity can help explain the EU’s response to the refugee crisis of 2015.
The argument I put forward in this paper is twofold. First, while a lack of political will of certain Member States to agree on an effective refugee distribution mechanism considerably influenced the EU’s overall reaction to the refugee crisis of 2015, I argue it is desirable to analyse Europe’s response to the high influx of refugees using the concept of regime complexity. This approach has, so far, been largely ignored in the context of the 2015 migrant crisis. I contend that the overlap between the refugee and the travel regime enabled the EU to engage in regime shifting. By doing so, the EU has been able to address the migrant crisis through the travel instead of through the refugee regime. The shift from the refugee to the travel regime enabled the EU to effectively close its borders to stop the high influx of asylum seekers. Second, I argue that this has had significant implications for the United Nations High Commissioner for Refugees (UNHCR), the main body governing the refugee regime. Due to the controversial nature of the EU-Turkey deal, the institution played a limited role in managing the influx of migrants coming to Europe. By presenting this argument, I criticize the dominant assumption in the literature on the refugee regime complex that the UNHCR remains relevant in times of institutional proliferation by expanding its mandate to other refugee-related issue areas (see: Betts 2009; Betts 2010b; Betts 2010a; Betts 2013). While the organisation can perhaps sometimes oppose a regime shift, in the case of the 2015 refugee crisis the UNHCR limited its involvement in the EU-Turkey deal to retain its moral standing. As a result, the International Organisation for Migration (IOM) dethroned the UNHCR as the leading relief institution in the 2015 EU migrant crisis.
This paper is divided into three parts. In the first section, I present four propositions that Alexander Betts puts forward in his article, “The Refugee Regime Complex“, on which I base my own argument (Betts 2010b). In the second part, I show that Betts’ propositions help to explain the EU’s approach to the 2015 migrant crisis. In the last section, I illustrate what consequences the EU-Turkey deal, as part of this approach, has had for the UNHCR. Finally, I summarize the most important findings from the paper and outline where further research on the consequences of regime complexity for refugee protection is needed.
The Travel-Refugee Regime Complex
In his article “The Refugee Regime Complex” (2010b), Alexander Betts describes the institutional overlap between the refugee and the travel regime and explains what consequences this overlap has for the protection of refugees and the organisation at the heart of the refugee regime.
Betts starts his article by giving a short overview of the historical development of the refugee regime in the aftermath of World War Two. At the time, the UNHCR was the only institution designed to oversee the resettlement of refugees (Betts 2010b: 13). This quickly changed with rapid institutional proliferation within and beyond the UN. As a result, some of the newly created institutions and treaties in other regimes, such as the human rights and labour migration regime, overlapped with the refugee regime, leading to the emergence of a refugee regime complex (Figure 1). Betts defines such a regime complex as an array of partially overlapping and non-hierarchical institutions that include more than one institutional agreement or authority and whose co-existence may lead to regime complexity (Alter and Raustiala 2017: 5). Institutional overlaps like those between the refugee and the humanitarian regime do not necessarily lead to conflict. In fact, they can even be complementary, for example, when migrants receive both Internally Displaced Person (IDP) and UNHCR protection. In the case of the refugee and the travel regime, however, the overlap resulted in irreconcilable contradictions that ultimately had important and negative implications for the protection of refugees (Betts 2013: 70 ff.).
Like the refugee regime, the travel regime consists of several institutions and treaties. Originally, their aim was to facilitate international travel and border crossings, for example, through the standardization of passports, which helped inspectors at border controls to quickly find the information they needed (Koslowski 2009: 16). With time and ever-growing numbers of travellers and border crossings, new challenges arose for border control officials. Due to an increasing number of individuals attempting to enter destination countries without authorization during the 1980s and 1990s, states began to stiffen their border controls. Travel was even further restricted in the 2000s after terrorist attacks committed by foreign nationals shook cities like New York City and Madrid (Koslowski 2009: 23). The attacks led to the wide-spread perception that irregular immigration could pose a national security threat.2 As a response to this alleged threat, many states adopted stricter visa and border control policies (Koslowski 2009: 22).
Though the refugee regime and the travel regime seem unrelated at first glance, they overlap in one specific area: the access to spontaneous arrival asylum. This overlap establishes a new regime complex, which Betts calls the travel-refugee regime complex (Figure 2). Both the travel regime and the refugee regime claim authority over access to spontaneous arrival asylum, which has far-reaching consequences for the people applying for asylum and the institutions at the core of the refugee regime.
In Europe, for example, migrants are traditionally able to apply for asylum once they reach European territory (Betts 2010a: 76). A state’s legal and normative obligations to an asylum seeker only apply once he or she has claimed territorial asylum (Betts 2010b: 26). Access to European territory, however, has progressively been restricted through the travel regime. Particularly since 9/11, when visa and border controls were toughened in many states, it has increasingly served states to securitize South-North migration.3 Specifically irregular migration, which states have perceived as a potential national security threat following the above mentioned terrorist attacks in the 2000s, has been restricted (Betts 2010b: 24). Because of tighter controls and entry requirements, it has become harder for migrants to reach European territory and to apply for asylum in the EU. With the securitization of travel, states have thus begun to perceive and respond to migration as an issue at the heart of the travel instead of the refugee regime. This has enabled EU Member States to partially circumvent an individual’s access to asylum. In the International Relations literature, this shift from one regime to another, depending on a state’s preferences, is referred to as ‘forum shopping’ or ‘regime shifting’ (Betts 2010b: 14).4
Betts’ four propositions
Based on these observations, Betts derives four propositions about states’ responses to migratory pressures and the UNHCR’s future as the major relief organisation at the centre of the refugee regime, which are detailed below.
By handling spontaneous arrival asylum through the travel regime over the refugee regime, states – particularly those in the Global North – limited the access to their territory without overtly violating international norms created to protect refugees (Betts 2010b: 16). As a result, migrants are often stranded in states of the Global South that they initially only wanted to pass through.
States of the Global South have responded to this regime shift of Northern States by reducing their own commitment to asylum towards third country nationals. This ultimately leads to even higher migration flows worldwide (Betts 2010b: 16).
Instead of contributing to refugee protection by granting asylum, States of the Global North increasingly engage in “burden-sharing.” This means that they contribute to the protection of refugees in Southern States, for example, through financial contributions to IOs, such as the UNHCR or IOM. Betts assumes that Northern States only do so when refugee protection in Southern States coincides with their economic or security interests (Betts 2010b: 19 ff.).
States of the Global South and IOs are affected by Northern States’ regime shifting. Regime shifting specifically impacts the UNHCR, which is at the core of the refugee regime complex. The organisation’s authority and mandate are gradually being undermined because states increasingly address migration through the travel regime. The UNHCR can oppose this international trend by adopting three strategies: mandate expansion, issue-linkage and de-coupling (Betts 2010b: 29 ff.).
The EU’s Approach to the 2015 Migrant Crisis
In this part of the paper, I describe how the EU reacted to the high influx of refugees in 2015 and examine to what extent Betts’ propositions apply to Europe’s response to the migrant crisis.
Regime Shifting Through the Securitization of Irregular Migration
When the numbers of asylum seekers peaked in the summer of 2015, reactions from the public, European politicians, and media outlets were mixed. The picture of the lifeless three-year-old Alan Kurdi, who drowned in the Aegean, for example, provoked a huge public outcry (Guiraudon 2017: 157). Humanitarian themes equally made up a big chunk of the Italian press coverage of the migration crisis (Berry et al. 2015: 8). Throughout 2016, however, after several terrorist attacks had hit major European cities, public and media discourse changed in tone and increasingly conflated migration with terrorism (Galantino 2020: 16). Both the human suffering on Europe’s outer borders and growing public security concerns pressed the EU to swiftly respond to the high influx of migrants.
The European Commission adopted the European Agenda on Migration (EAM) shortly after the asylum requests in Europe peaked in the spring of 2015 (Carrera et al. 2015: 3). In the EAM, the EU identified six immediate policy actions aimed to manage the influx of migrants more effectively. Amongst other things, the EU proposed a temporary and emergency-driven relocation mechanism for asylum-seekers within the EU, increasing emergency funding to frontline EU Member States, and a relocation mechanism for 20,000 refugees from outside the EU (Carrera et al. 2015: 4). In addition, the EAM put an emphasis on protecting EU external borders by establishing a Common Security and Defence Policy Operation in the Mediterranean to dismantle traffickers’ networks, strengthening Europol’s joint maritime information operation in the Mediterranean, and tripling the EU External Border Agency’s (FRONTEX) capabilities and budget (Carrera et al. 2015: 4). In October 2015, EU leaders further agreed to develop an integrated border management system that would go beyond the original mandate of FRONTEX to properly secure EU borders (European Council 2018). The Permanent Representative Committee granted this extended FRONTEX mandate nine months later and justified its decision by claiming that this would empower the border agency to patrol EU borders more effectively (European Council 2016).
In parallel to securing its external borders, the EU negotiated an agreement with Turkey to prevent irregular migrants from reaching European territory via the Eastern Mediterranean Route in March 2016. By signing the deal, Turkey effectively assured to close its frontiers to keep migrants from entering the EU. It also agreed to take back every person, including asylum-seekers, arriving irregularly to the Greek islands (Council of the EU 2016). In return, the EU accepted to resettle one Syrian refugee from Turkey for each irregular migrant the country took back (Guiraudon 2017: 158). The agreement is thus effectively a one-for-one swap and came at a high cost for the EU. In addition to resettling one Syrian for every irregular migrant Turkey takes back, the EU promised an initial €3 billion to help Turkey cope with the high numbers of Syrian refugees residing on its territory (Carrera et al. 2015: 8). It further guaranteed Ankara an upgrade of the EU-Turkey Customs Union as well as an accelerated visa liberation and EU accession process (Collet and Le Coz 2018: 19-20). Since coming into effect, the Turkey deal has been heavily criticized: Human rights activists and lawyers claim that the EU bypasses the norm of non-refoulement, which prohibits states from returning refugees or asylum seekers to a country where they have reason to fear persecution, by declaring Turkey a safe third country (see: Amnesty International 2016; UNHCR 1977). They further denounce the EU for not distinguishing between persons that might have a right to asylum and those who do not by returning every irregular migrant to Turkey (see: Poon 2016; Toygür and Benvenuti 2017).
By considerably securitizing its outer borders to manage the high influx of refugees in 2015, the EU clearly shifted from addressing the issue of spontaneous arrival asylum through the refugee regime to handling it through the travel regime. This regime shift enabled the EU to prevent potential asylum seekers from claiming territorial asylum in Europe. Since the EU’s decision to send all irregular migrants back to Turkey under the refugee deal does not allow for a distinction between individuals who have a right to asylum and those who do not, European states make it harder for asylum seekers to find refuge in Europe. Therefore, EU Member States have been able to reduce their commitment to international obligations to protect asylum seekers. Instead of accepting all migrants who are eligible to asylum, from 2016 onwards the EU only accepts refugees who have reached Europe legally or under the “one-in, one-out rule” specified under the Turkey deal. This behaviour fits Betts’ first proposition according to which states use the travel regime to restrict access to their territory to prevent migrants from applying for territorial asylum.
Southern States Reducing Their Readmission Commitments
During the 2015 refugee crisis, States from the Global South reacted to the regime shifting of European states, but in a different way than anticipated by Betts. Instead of reducing their own asylum commitments, in some cases Southern States have instead increasingly obstructed deportations of their own nationals by not cooperating with the responsible administrative bodies in European host countries (see: Gathmann and Weiland 2017; Bewarder et al. 2016). Prominent cases of unsuccessful deportations, such as that of Anis Amri, put pressure on the EU to improve readmission processes in the countries of origin (Smale et al. 2016). Southern States, however, only slowly started to cooperate more effectively with the EU on this issue. Improved readmission processes in countries of departure in the Global South were eventually the result of lengthy diplomatic negotiations and an EU tactic to offer these countries monetary incentives to combat so-called “root causes”5 of migration.
So, while Betts rightly assumed that Southern States would react to the regime shifting of Northern States, in the case of the EU migrant crisis they did not respond in the way he expected. Instead of reducing their own commitment to asylum, states of the Global South curtailed their readmission commitments. They obstructed readmissions in some cases because the regime shifting of the EU redistributes the costs and responsibilities at their expense as countries of departure in the Global South have to shelter growing numbers of refugees who are stuck on their territory because popular migration routes to Europe have been closed off by the EU.
Refugee Protection Through Burden-Sharing?
The EU’s securitization of its outer borders in the wake of the migrant crisis was coupled with a strategy of externalizing migration policies, which has already been part of the EU’s response to ever-growing migration movements long before the migrant crisis of 2015 took place (see: Betts and Milner 2006; Triandafyllidou 2014).
Sticking to this strategy amidst the 2015 crisis, the EU intensified efforts to stop migration movements before they could reach Europe by pledging money to both countries of departure and transit states in the Global South. As early as May 2015, the Commission combined the EAM with diplomatic efforts by then EU High Representative for Foreign Affairs and Security Policy Federica Mogherini to try and move Turkey, Western Balkan countries, and African countries and organisations towards closer cooperation to manage refugee flows and address the causes underlying irregular migration (European Commission 2015). Six months later, EU leaders met with their counterparts from Africa to discuss migration issues at the Valetta Summit on Migration (European Council 2018). During this meeting, both sides addressed the causes of irregular migration and agreed to improve cooperation on return, readmission, and reintegration. In the following months, the EU did not only promise considerable financial support to Turkey so it could provide effective protection to the three million Syrian refugees residing in the country, the Commission also agreed to fund migration-related projects in North Africa on several occasions. The 2017 Malta Declaration, for instance, determined that €200 million of the EU Trust Fund should be invested in migration-related projects in Libya (European Council 2017b; Rossi 2019: 375). One of the Declaration’s priorities was to “ensure adequate reception capacities and conditions in Libya for migrants, together with the UNHCR and the IOM” as well as “supporting the IOM in significantly stepping up assisted voluntary returns” (European Council 2017a). A meeting between the African Union and the EU in November 2017 led to a mutual promise to fight the “root causes” of irregular migration. During the meeting, the EU agreed to invest €44 million in projects that young Africans should benefit from (European Council 2017).
Though the declared aim of the significant EU investments into African States and Turkey was to address the underlying causes of migration towards Europe, a considerable amount of the money was diverted to security-related projects. In Libya, for example, EU money was also used to reinforce maritime surveillance and anti-smuggling capabilities of the local coast guard (Rossi 2019: 375; SOS Mediterranee 2020). EU investments into migration-related projects in Africa were thus closely linked to the Commission’s emphasis on border security matters. According to Betts’ third proposition this behaviour is typical for Northern States that only begin to engage in refugee protection in Southern States when migratory movements from the region might potentially threaten national security.
The Role of the UNHCR in the Migrant Crisis
For the UNHCR, the EU’s approach to the migrant crisis and especially the EU-Turkey deal posed a major dilemma. As the principal institution of the refugee regime, its main task is to oversee states’ implementation of the 1951 Refugee Convention and to provide vital assistance to refugees in need (Betts 2009: 71; UNHCR N/S). This “supervisory responsibility” for a normative treaty formally links the UNHCR to the refugee regime (Betts 2010b: 33). Due to its supervisory function, the organisation itself acquired a normative character, which eventually gave it moral authority over refugee-related matters. While this moral authority often helps the UNHCR to persuade states that are reluctant to host refugees to comply with international obligations, it also prohibits it from taking part in activities that are morally, ethically, or legally questionable.
Betts recognizes that such activities and regime shifting from the refugee to the travel regime can lead to a net reduction in cooperation on migration between Northern and Southern States and possibly even to a weakening of international refugee protection norms (Betts 2010b: 25). Yet, he does not assume that these developments might also erode the UNHCR’s moral standing within the refugee regime and limit its scope for action. Instead, he expects that the UNHCR can and will remain relevant to states by expanding its mandate and activities to regimes that border the refugee regime. The EU migrant crisis and the EU-Turkey deal, however, show that in some cases the UNHCR cannot make use of these “survival” strategies as this would lead to a public loss of face for the organisation.
Fearing exactly such a damage to its reputation, the UNHCR was quick to question the refugee deal’s legality and feasibility in the wake of the 2015 migrant crisis. Even before the deal was signed in the spring of 2016, the UNHCR expressed concerns as to how its implementation would affect the protection of refugees. A week before the summit in Brussels, where the EU-Turkey deal was to be negotiated, the organisation issued a statement in which it distanced itself from the deal’s outline (Spindler and Clayton 2016). When the deal was agreed on in March 2016, the UNHCR’s immediate reaction was to publish another public statement, in which it denounced the deal for breaching international and European law by collectively expelling migrants from Greece (Deutsche Welle N/S). Due to this alleged breach, the UNHCR announced to redefine its role in the refugee crisis, especially on the Greek islands (UNHCR 2016a). In another statement from March 2016, the organisation clarified that it was neither part of the deal, nor assisting with or involved in returns or detentions of refugees (UNHCR 2016b). Its more cautious appraisal of the EU-Turkey deal is in line with the role the pertinent literature on EU external governance ascribes to the UNHCR. In this literature strand, it is viewed as an institutional counterweight to and watchdog of EU migration policies (see: Lavenex 2016). Yet, despite its role as a monitor of EU migration policies and its criticism of the Turkey deal, the UNHCR reaffirmed its commitment to assist Greek authorities in the development of an adequate reception capacity (UNHCR 2016b). This is unsurprising since the UNHCR’s complete withdrawal from the migrant crisis would likely mean that the organisation becomes obsolete to the EU.
While the UNHCR criticized the Turkey deal for its breach of legal and humanitarian norms, the IOM was quick to praise its “huge impact” on reducing the number of refugees arriving in Europe via the Eastern Mediterranean Route (IOM 2018). Contrary to the UNHCR, it did not reduce its involvement in the deal, but actively participated in its implementation (Hassan and Geiger 2016). As early as May 2016, the IOM began with the resettlement of Syrian refugees from Turkey to the EU (IOM 2016). Since then, the IOM has gradually expanded its role in the migrant crisis and also started to help Turkey supply refugees residing on its territory with vital assistance (see: IOM 2017; IOM N/S). While the logistical aspects of refugee relief, such as resettlement, have historically always been part of the IOM’s core tasks, its relief assistance in Turkey has traditionally been a core responsibility of the UNHCR. The organisation’s greater involvement in and more positive assessment of the Turkey deal are consistent with its portrayal as a subcontractor and transfer agent of EU principles in the literature (Lavenex 2016).
Contrary to the IOM, which has increased its cooperation and involvement in European migration-management processes without questioning their moral and ethical implications, the UNCHR contests the Commission’s proposed security measures in the Mediterranean (Rossi 2019: 377-378). For the agency, an involvement in these measures compromises its capacity to continue to function as a counterweight to the EU’s focus on border protection (ibid.). This demonstrates that the UNHCR is not always able to redefine its role after a regime shift by states has occurred, especially in situations where its own reputation as a normative organisation is at stake.
Conclusion
Two of four of Betts’s propositions apply to the EU’s handling of the high influx of refugees in 2015: the first and third proposition. His first proposition, according to which Northern States limit refugees’ access to their territory through regime shifting, holds in the case of the EU’s migrant policies. By signing the Turkey deal and further securing its borders amidst a high influx of refugees arriving in Greece via the Eastern Mediterranean Route in 2015 and 2016, the EU has made it nearly impossible for refugees to claim asylum on European territory. Betts’ third proposition has also proven to be applicable to the EU case study. It has shown that the EU itself is not strengthening refugee protection through providing asylum, but instead allocates important funds to regions which host many refugees and migrants from third countries. According to the EU, these investments are first and foremost supposed to improve the local socio-economic situation so that people do not migrate. In fact, however, they are also used to finance security-related projects. This behaviour corresponds with Betts’ assumption that Northern States only alleviate the situation of migrants and refugees in the Global South when it suits their economic or security interests.
The proposition that Southern States react to Northern States’ waning will to host and assist refugees by reducing their own commitment to grant asylum only partly applies to the 2015 refugee crisis. Though Betts is right to assume that Southern States do react to the regime shifting of Northern States, in case of the EU migrant crisis they did not reduce their own commitment to asylum. Instead they obstructed deportations of citizens that have not been granted refugee status in Northern States. Turkey’s decision to open up its borders in early 2020, however, might indicate an important turn with regard to Southern States’ commitment to asylum towards third country nationals: When President Erdogan opened the borders to Greece he not only used refugees as political leverage to press the EU to take side with Turkey to end a standoff with Russia in Syria, he also used the opportunity to signal his country’s declining will and capacity to accommodate millions of refugees.
Only Betts fourth claim does not hold for the 2015 migrant crisis. The case study of the EU migrant crisis showed that the UNHCR is not always able to redefine its role when states shift from the refugee to the travel regime. Though it might sometimes be possible for the UNHCR to employ certain “survival” strategies to oppose regime shifting, the organisation was unable to make use of any of these during the migrant crisis of 2015. A greater involvement of the UNHCR in EU migration policies, which are partly in conflict with international and EU law, could damage its international reputation as a moral authority over refugee-related issues.
Overall, the analytical concept of regime complexity depicts a useful approach to analyse and explain the EU’s response to the 2015 refugee crisis. Yet, in the case of the EU study, the approach is analytically limited as it does not allow to consider the complex intergovernmentalism which is characteristic of the EU. It is, however, precisely this interplay between national and supranational interests which guides and constrains the Commission’s scope for action. Empirically, this study only provides insight into a very brief period. It would thus benefit from an in-depth study of how the EU managed migratory flows before and after the refugee crisis of 2015. Future research should moreover examine whether Betts’ propositions also apply to other world regions. For example, it would be interesting to investigate whether Betts’ propositions apply to North America’s response to growing migratory flows from South America. In addition, further studies should shed light on the question of whether states from the Global South do indeed reduce their commitment to asylum. A case study of Jordan’s and Libya’s response to high refugee influxes might be particularly telling in this context. Finally, it might be worth examining whether only states of the Global North have engaged in regime shifting amidst refugee crises or whether developing states are also limiting access to their territory for refugees.
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