by Professor Marie-Laure BASILIEN-GAINCHE

Professor Marie-Laure BASILIEN-GAINCHE, Public Law Professor at the University Jean Moulin Lyon III and member of the Institute Universitaire de France, reflects in this column on the so-called migration crisis and the variables that should be analysed when approaching the topic. Professor BASILIEN-GAINCHE is one of the trainers of the course Managing Migration in Europe: Challenge and Response, which will be organized by the College of Europe from 24 to 26 September 2018.

Introduction

Migration is a natural phenomenon that takes place in all regions of the world. Therefore, we can wonder whether so much attention is paid to migrants’ arrivals on the European shores. Can the euro-centrism of our governments and media be the more vivid explanation? Yet their (over)use or (ab)use of liquid imageries (talking about « waves », « floods », « surge », « spillages », « tsunami ») reveal an inappropriate distortion. They make indeed public opinions consider (unfortunately and irrationally) human beings as a threat and a burden, rather than a chance and a promise.

Studying such a Europe, that paradoxically aims at protecting itself from those who precisely need its protection, we can think of the famous philosophical novel Robert Musil wrote in exile in Geneva: The Man Without Qualities. Through the presentation of the different characters who surround the anti-hero Ulrich – a 30-year old mathematician who faced an existential crisis that made him unable to develop his owns skills and genius – the Austrian novelist decodes the fall of the Austro-Hungarian empire, the disaggregation of the European culture, and the political chaos to come.

The European Union seems indeed to be “without qualities”: it has the capacities and the means to deploy the fundamental virtues or values of humanity, solidarity, rationality, but remains unable to employ them causing thus a deep crisis.

Actually there is no refugee or migrant crisis. There are two crises that are occurring following the important migrants’ arrivals of 2015 and the incapacity of the European member States to deal with them properly: a crisis of the European integration on one hand, and a crisis of the international protection on the other.

The Europe without humanity

More than 25,000 migrants have reportedly died in the Mediterranean Sea over the last two decades. Statistics from the International Organisation for Migration (IOM) show that more than 4,000 migrants at sea died in the years 2012 and 2013; 3,270 in 2014; 3,771 in 2015; 5,079 in 2016; and 2,993 from 1 January to 25 November 2017 – these data being of course only a fraction of the true number of people dying when migrating. If numbers of migrants attempting to venture on the Mediterranean and reaching European shores have significantly decreased in 2016, the death rates have substantially increased from 1,2% in 2016 to 2,1% in 2017, insofar that the central Mediterranean route is the world most lethal one, as highlights IOM in its last report (Fatal journeys. Volume 3. Part 1. Improving Data on Missing Migrants) released on 11 September 2017. These numbers are appalling, as they reveal the incapacity and even the unwillingness of the EU member States to comply with the duty to rescue people in distress at sea – no matter what their nationality and status are – as imposed by the international and European legal instruments. The right to life appears then in jeopardy. Yet this stems from the European States’ refusal to see the migrants crossing the Mediterranean being disembarked in one of their ports because that would mean examining their asylum application as requested by their international and European obligations. This refusal, therefore, underscores the European States’ resistance to comply with their duty to protect. Hence the right to seek a refuge appears rather more as a relative right than a fundamental one. As François Crépeau, former UN Special Rapporteur on the Human Rights of Migrants, used to say, the EU and its member States are more eager to defend themselves from migrants and refugees than to shelter them. Such a lack of humanity is linked to a lack of solidarity.

The Europe without solidarity

There is a lack of solidarity towards the most vulnerable ones, the genuine refugees, the migrants fleeing persecutions and violence, the ones who can be considered as The Wretched of the Earth to use the famous title of the great essay Frantz Fanon published in 1961; these the European Union member States should welcome with dignity. Since the Tampere summit in 1999, the European immigration and asylum policy has been nourished not by the concern of the migrants’ and refugees’ rights, but by the preoccupation of securing the borders. Member States have started to use violence to stop undocumented movements across land and sea borders, to employ long-term detention as a deterrence tool, to carry out expulsions to countries of origin and transit, to export their border-management activities beyond their territorial borders, and to build fences and walls between them. Here arises the issue of the lack of solidarity between the EU member States, that has been revealed with great accuracy by the deceptive implementation of the Council decisions of September 2015 that organise the relocation of 120,000 migrants in clear need of international protection within the next two years, in order to relieve Italy and Greece of a part of the burden of welcoming thousands of migrants and refugees. Yet only 28,000 of them have been relocated. Furthermore some member States (part of the Visegrad group) were so hostile to such decisions that they decided not to apply them, Slovakia and Hungary introducing an action for annulment against them. Though the Court of Justice of the EU rejected the actions of these two States and declared the Council’s decisions lawful in the decision it delivered on 6 September (Joined Cases C‑643/15 & C‑647/15), the decision is highly disappointing as it avoids to deal with the question of the scope of the principle of solidarity described in Article 80 TFEU as “governing” the asylum policy. Such decision, therefore, revealed, according to Henri Labayle, a lack of both determination and lucidity, a failure in the credibility and the solidity of the structure of European principles.

The Europe without rationality

As François Crépeau puts it in a paper published on 8 June 2017, “the collective response to date of placing restrictions on mobility is part of the problem, not of the solution”. Reinstituting the internal border control, reinforcing the external border control, enlarging the power of the European Border and Coast Guard Agency (Frontex), insisting on the fight against illegal migration (even with militarising such a fight with the EUNAVFOR MED operation Sophia), establishing hotspots in Greece and in Italy in order to swiftly identify and register migrants with the purpose to select the desirable ones and return all the others, negotiating with African countries the installation of camps on their soil to welcome returned migrants and to prevent migrants’ flows though those countries – i.e. Libya where migrants are detained in centres where they are subject to torture, inhumane and degrading treatment, death -, criminalising migrants and people helping them (as it has occurred in Greece, in Italy, in France): all these orientations are deeply not rational. They are politically awkward insofar as they result from a misdiagnosis that has led to wrong remedies, which have in turn caused new problems. The misdiagnosis comes from the idea that the reception of immigrants and asylum seekers is not financially sustainable in Europe because of the economic crisis and budgetary constraints, meanwhile many economic studies show that receiving migrants is an engine for growth, promoting economic recovery in the North and development in the South. Such a misreading has impacted the choice of remedies. Methods that involve choosing, and actually reducing, legal immigration by strengthening external border controls – and externalising them if necessary – have led to unfortunate consequences: the wrongful refusal to recognise international protection, the worrisome growth in illegal immigration, the dangerous contribution to a nationalist and even xenophobic atmosphere, the increasing number of shipwreck victims, and the consolidation of human trafficking networks.

Conclusion

How can we understand such incoherent and unreasonable measures and policies deployed at the European and national levels? Generating irregular migration and establishing an illegitimate limbo correspond to a certain type of worrying rationality, as Arjen Leerkes & Dennis Broeders underscore. They fulfil implicit economic roles: European and national norms have “served as instruments to tactically supply and refine the parameters of both discipline and coercion” and “played an instrumental role in the production of a legally vulnerable undocumented workforce of illegal aliens”; they “also barred undocumented migrants from receiving a variety of social security benefits and federal student financial aid” which is a “restriction of the constitutional rights and judicial resources traditionally afforded to legal resident aliens” (Nicholas de Genova, “The Legal Production of Mexican/Migrant Illegality”, Latino Studies, 1996, 2/2, p. 166, 161 & 176 respectively). They ensure some implicit social functions too: firstly, they intend to deter irregular migration; secondly, they allow the managing of a marginalised population; thirdly, they address public opinion that the sovereign State is still able to control its borders. Such a regulation illegalising migration infringes the fundamental rights of thousands of irregular migrants, which leaves them in a legal but illegitimate limbo. That is why the way migrations are managed at the European level must be studied and questioned.

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