New Pact’s focus on migrant returns threatens Africa-EU partnership

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Tsion Tadesse Abebe, Senior Researcher; and Aimée-Noël Mbiyozo, Senior Researcher, Migration Programme, Institute for Security Studies (ISS)
11 December 2020

Introduction

The European Commission (EC)’s New Migration and Asylum Pact (New Pact) is aimed at rebuilding trust and developing workable compromises within the European Union’s (EU) 27 states.[1] This could well be achieved at the expense of partnerships with Africa. The New Pact’s emphasis on migrant returns and strengthening external borders is contrary to Africa’s position and could affect negotiations around the Post-Cotonou Partnership Agreement (ACP) and the Africa–EU Strategy.

Decreasing irregular migrant arrivals and enhancing returns are among the seven thematic areas of the New Pact that aim to increase returns by implementing a common EU system that combines stronger structures with more effective cooperation with third countries. Measures include strengthening border control, signing returns agreements with third countries and allowing EU member states to choose between resettling refugees and sponsoring returns.

Europe’s growing focus on returns

Overall irregular border crossings to EU member states have dramatically decreased since Europe detected 1.82 million illegal external border crossings in 2015. During 2020, 90, 150 refugees and migrants had crossed the Mediterranean into the EU (according to UNHCR data updated on 7 December 2020).

As irregular arrivals have decreased, EU institutions and Member States have increased their focus on returning migrants. Within the EU, where migration is deeply divisive among Member States, enforcing returns is one of the few unifying topics.

According to the New Pact:

“EU migration rules can be credible only if those who do not have the right to stay in the EU are effectively returned. Currently, only about a third of people ordered to return from Member States actually leave. This erodes citizens’ trust in the whole system of asylum and migration management and acts as an incentive for irregular migration.”

It goes on to state that an average of 370 000 asylum applicants are rejected each year and a third are returned home.

Pressure on Africa

Africans make up a small minority of asylum claims in the EU per year. Their claims are far exceeded by those of other nationals including Syrians, Afghans, Iraqis, Pakistanis, Turks, Iranians and more recently Venezuelans and Colombians. In 2019, only 9655 returnees – six percent of total returns – were sub-Saharan African nationals.

Despite these low numbers, the EU directs a lot of returns pressure towards Africa. In recent years, the EU and its Member States have tried to compel African states to accept and facilitate returns and readmissions through various legal and political instruments. Under the EC’s 2016 New Partnership Framework, 13 of the 16 priority countries are in Africa, namely Ethiopia, Eritrea, Mali, Niger, Nigeria, Senegal, Somalia, Sudan, Ghana, Côte d’Ivoire, Algeria, Morocco and Tunisia.

Africa’s divergent priorities

African negotiators have consistently resisted forcing states to take back their returned nationals and failed asylum seekers. African migration is predominantly intra-continental. Twenty-one million of the world’s 39.4 million African-born migrants (53.2%) live in Africa. Africa also hosts 25.2 million of the world’s 70.8 million displaced people. The continent is working towards free movement, free trade and regional integration. Strengthening securitised measures to prevent or deter migration are contrary to these priorities.

Contrary to the narrative that portrays African migration flowing principally to the EU, far more Africans are using the Eastern Routes to get to the Middle East and Gulf via Yemen. In 2019 alone, 138 000 Africans used the treacherous Eastern Route; between 2006 and 2016, over 800 000 African migrants and refugees crossed to Yemen.

Accepting returns is politically difficult for many African countries. Cooperating with EU members on forced returns can hurt the legitimacy of governments. This resistance by African governments is driven by the urge to avoid being branded as facilitators of deportation of their own citizens.

In December 2016, Mali was offered USD 160 million to cooperate on migrant returns, but it withdrew from the deal due to a public outcry. After the Gambia signed a similar informal arrangement in May 2018, media images of deportees in handcuffs and shackles arriving in the Gambia from Germany at a time of massive youth unemployment resulted in mass protest. The government eventually stopped cooperating on returns to offset potential damage to their constitutional role as protectors of their citizens – and subsequently hurt public trust in them.

The other factor is remittances which serve as the most dependable source of income to many African societies. In 2018, Africa received USD 46 billion in remittances, mostly from migrants in the EU and North AmericaUSD 50 million in Official Development Assistance (ODA) and USD 32 billion in Foreign Direct Investment (FDI). Cooperation on returns could attract development funding, but citizens fear losing remittances.

The New Pact proposes a “one stop asylum” system with a centralised and accelerated system for asylum decisions. It applies mandatory pre-entry identity, health and security screening. Those likely to receive asylum would be designated to an EU country responsible for their application. The rest would enter a ‘fast-track’ application process in border facilities, based on their country of origin. If rejected, they would be returned to their country of origin. Both processes will take 12 weeks. Overall, this approach erodes refugee protection regimes, raising many procedural and human rights concerns such as eliminating the chance to appeal if rejected.

Vulnerable Africans genuinely seeking protection must surpass extraordinary barriers to reach Europe. The measures taken to stem irregular migrants increase the barriers for legitimate travellers and have made these pathways even more difficult and dangerous.

Securitisation of human mobility

Returns form part of the EU’s migration approach towards Africa that is focused on externalisation policies and an overall securitisation of human mobility. These measures have reduced irregular entries to the EU at severe costs to Africa and are not aligned with Africa’s migration priorities.

A 2020 Institute for Security Studies report examining the impacts of European policies in Agadez, Niger, revealed many adverse impacts. Agadez is a key transit point between West Africa and the Sahel and the Maghreb region. It is estimated that a third of all migrants travelling through Agadez end up on a boat to Europe. The EU’s interventions to dismantle Agadez’s ‘migration industry’ without putting in place alternative means of income generation for its residents have significantly diminished the local economy. Traders who provided goods and services such as food, water or phones have lost their livelihoods. Development aid promising to replace these livelihoods has not arrived fast enough and many people have been disenfranchised.

While these measures have curtailed the local smuggling industry, they have unwittingly contributed to a rise in others. Large criminal syndicates have been able to adapt and continue to provide smuggling services, while smaller Nigerien smuggling operators such as drivers or hostel operators have lost their business. Sudanese smugglers have capitalised on these shifts and offered new – and riskier – pathways through less-travelled parts of Chad and Sudan, including active conflict zones. This journey costs five times more than the one via Agadez.

The government’s inability to protect local economic actors has eroded public confidence in the local government. One official said, “the locals ask us why we work for the EU rather than them, the people who elected them”.

Development funds and visas used as leverage

The New Pact states all available tools should be used to enforce more returns. These include offering an additional 10% in development assistance to countries that cooperate and applying restrictive visa measures to those who don’t. The Pact’s visa proposal deepens the 2019 EU revised visa system by shifting to a multilaterally binding instrument.

Previous EU migration platforms included plans to expand visa pathways. Expanding immigration and humanitarian pathways has shown to successfully slow irregular migration when combined with strong enforcement measures, but the EU has moved away from these proposals.

In recent years, the EU has re-oriented migration policies to bundle restrictions within development funding under the auspices of addressing the ‘root causes’ of migration. However, in the New Pact more funding is directed towards security and surveillance measures – including allocations to repressive governments – than projects with true development potential.

This approach enables the horrific circumstances for migrants, refugees and asylum seekers in Libya. Migrants – mainly from East and West Africa – who pass through or are returned from failed boat crossings to Europe face ‘unacceptable and extreme’ forms of violence such as indefinite detention, extortion, torture, sexual violence, conscription and forced labour.

Since 2015, the EU Trust Fund for Africa has given Libya €435 million, including €57.2 million for border management. The EU has provided direct funding, training and equipment to the Libyan Coast Guard, whose members have been implicated in smuggling and sustaining informal detention centres that operate as lucrative trafficking and smuggling hubs. EU development assistance is supposed to be spent on helping those in need and visa measures should remain bilateral.

Returns are complex

Removing unauthorised people from one country requires another country to accept them. Countries must cooperate and coordinate on nationality identification and the issuing of travel documents. Determining nationality is a state’s sovereign right. It can be complicated to prove, particularly if migrants dispute their origin or are unwilling to cooperate.

According to Frontex’s Risk Analysis for 2020, 14 346 people of ‘unspecified sub-Saharan nationals’ arrived in Europe in 2019, up from 69 in 2018 and 0 in 2017. These statistics suggest that authorities created a new classification for undocumented migrants whom they suspected were African but could not confirm it because those individuals refused to disclose or dispute their country of origin to avoid being returned.

Third-country returns, meaning ­­expelling someone to a country where he or she is not a national, are particularly contentious. Transit countries have strongly resisted accepting returns of non-nationals. Some have been expelling migrants and asylum seekers themselves. During 2020, Algeria has forcefully expelled thousands of migrants and asylum seekers to Niger regardless of nationality. Expelling people to transit countries does not sustainably resolve any issues and sets a problematic precedent.

Even when all parties agree to returns, reintegration schemes for failed asylum seekers or irregular migrants from the EU to Africa have been largely ineffective. They have instead resulted in hardship, violence and even re-migration. Many cases have been documented where returnees have not received the assistance they were promised. Some people have even been returned to the wrong countries.

Negotiations at a standstill

The African Union (AU) and its Member States maintain that returns must be voluntary despite mounting pressure across bilateral and multilateral platforms.

To date only Cape Verde has signed a formal readmission agreement with the EU, while Ethiopia, Guinea, the Gambia and Côte d’Ivoire have agreed to informal arrangements.

Returns are one of the key factors behind the existing EU-ACP negotiation deadlock. The current Cotonou Agreement includes a non-binding clause (under Article 13) for countries to readmit nationals whose asylum applications are rejected. The EU wants to include a legally binding clause forcing states to accept non-voluntary migrant returns.

The existing EU-ACP Cotonou Agreement expired in February 2020 and hasn’t been replaced. African member states – comprising 48 of the 79 ACP states – strongly oppose forced returns and insist that any returns must be voluntary. The disagreement on returns has contributed to this deadlock. The New Pact’s reiterated focus on returns could further compromise negotiations.

Enhancing returns and readmission is also a critical area of focus of the migration and mobility priority area of the EC’s Joint Communication and Council Conclusions related to the Africa-EU Strategy. Negotiations on this deal were postponed until 2021 due to COVID-19. Despite insisting that the Africa-EU strategy is a “partnership of equals”, as it stands, the Communication and Council Conclusions don’t sufficiently reflect Africa’s priorities, including reiterating securitised perspectives towards African migration.

African negotiators have consistently resisted forcing states to take back their returned nationals and failed asylum seekers, including throughout the duration of the UN Global Compact for Migration. Notably, this compact isn’t mentioned in the New Pact – nor are the Global Compact’s principles on safe and dignified returns that respect the rights of returnees in line with international and regional laws and norms.

Conclusion

The New Pact reflects the EU’s priorities, underscoring that returns are one of the key unifying factors among its Member States. It does so at the expense of African partnerships or true solutions to migration management from Africa. The renewed focus on returns will affect important non-migration agreements, most notably the ACP and the Africa-EU Strategy.

The EU’s reorientation of migration policies prioritising the stemming of migration flows has had numerous adverse effects – intended and unintended – on Africa. These restrictive policies are incompatible with the EU’s own free movement regime and are inhibiting Africa’s efforts to implement its own version.

The New Pact wrongly assumes that the threat of fast deportation will deter migrants and refugees from attempting any movement. They undertake extraordinary risks because they have to. There is also no evidence that a country’s willingness to accept forced returns will result in a high number of returns or deter future arrivals.

The AU and its Member States should remain focused on their key priority – Africa’s regional integration agenda. Implementing the African Continental Free Trade Area and expanding free movement are critical to achieving Africa’s objectives – sustainable and inclusive growth, good governance, and peace and security.

[1] Part of this article was published by Abebe and Mbiyozo, https://bit.ly/34nV6W4