The last few weeks have seen a spate of developments that will have a lasting and probably damaging impact on the EU’s relations with its neighbours to the southeast – and also on the tens of thousands seeking protection who remain in limbo in the region, in many cases enduring appalling conditions without access to basic rights.
First, Olivér Várhelyi has made it through to be confirmed as Hungary’s Commissioner in the next College of Commissioner, now able to take up office at the start of December. While his background and role in Hungarian government politics is less concerning than that of the original nominee, László Trócsányi – in that he didn’t play a key role in dismantling the rule of law in the country – he has nonetheless served as a senior representative of the government and presumably endorses its policies. In the hearing in Parliament, MEPs quizzed him on whether he would pursue Hungary’s policies. The Treaties stipulate Commissioners act in the interest of the EU, not of the nominating Member State, and historically most have done so. Concerns remain though, heightened because he will hold the portfolio covering enlargement and neighbourhood. ECRE previously urged a switch because of the risks attached to Hungary importing its political priorities, including its toxic migration policy, into the successful accession policy and the less successful but crucially important neighbourhood policies.
Second, after blocking Accession talks with Albania and Northern Macedonia, and provocative comments on Bosnia and Herzegovina, President Macron launched proposals for an overhaul of the Accession process. Motivated by attacks on the rule of law – and on the EU itself – and a general lack of solidarity and obstructionist posturing from governments of some of the countries that joined the EU in the 2000s, Macron has become an Enlargement sceptic, with nostalgia for a smaller, more cohesive EU. The UK’s Eurosceptics can look on with a certain satisfaction: the UK was always the great cheerleader for enlargement, for some good reasons but also because “wider” Europe was the way to limit “deeper” Europe. As it goes out the door, it can look back at the tensions and challenges resulting from expansion, as yet unmanaged.
Macron makes an error in blaming the accession process though – the problem was and remains that standards demanded of candidate countries are higher than for Member States in a whole range of areas: rule of law, corruption, human rights. At its most simplistic, the Accession process uses leverage to support reform but once in the club a country can do what it wants. Enforcement of standards is weaker, and Member States are then unwilling to use leverage such rule of law conditionality on funding. Backtracking is inevitable, including on the human rights of those on the move.
Third, an agreement between the EU and Serbia allowing for operations and involvement of Frontex in Serbia was announced, following the agreements with Albania and Montenegro and the launch of a joint operation in Albania. The agreements include language on fundamental rights but enforcement mechanisms are very weak. They also establish immunity from the jurisdiction of the host country, even though under the current operation officers deployed to Frontex have executive powers and may use force. The EU insisted on immunity while the countries of the region wanted the same treatment as for local officers. This disparity is eerily reminiscent of previous international actions in the region, long a source of resentment, which saw immunity (and impunity) including for serious international crimes.
The main concern is the purpose of this expansion into the Balkans by Frontex, which is a parallel policy, and part of the overriding strategy of prevention of access to the EU at any cost. In practice, it means that tens of thousands of people have been left in limbo, many in degrading situation without access to basic services, among them many refugees unable to access international protection.
It is legally and politically inaccurate to describe this Frontex expansion into the Balkans as “externalisation of the EU’s borders”. This is a process based on the EU acquiring control over the borders of third countries. The EU’s borders don’t move; other countries transfer border management functions to the EU. But to what end? See below – clue: it is not to ensure access to asylum at borders.
Finally, the outgoing Commission issued its recommendation that Croatia be accepted into the Schengen area. ECRE urged against this recommendation due to the well-documented and widespread and organised violations of international and EU law taking place at Croatia’s borders. ECRE outlines its concerns and highlights risks and recommendations in a Policy Note published today; it continues to support litigation to address violence at borders across the region. ECRE recommends a robust monitoring mechanism at the Croatian border; an overhaul of the Schengen Evaluation and Monitoring Mechanism to adequately cover fundamental rights compliance; monitoring, investigation and infringement proceedings from the European Commissions; withdrawal of EU funding if it is used to support actions that result in violations; and support for independent border monitoring.
Collectively these developments suggest a worrying shift in the EU’s priorities for the region – away from the Accession process, with its emphasis on supporting reform, and towards a focus on pressuring the countries of the region to prevent onward migration. Rather than using its considerable leverage to support positive developments, the EU uses it to buy cooperation on migration control. It also turns a blind eye to violations taking place; certain European leaders actively encourage them.
Domestic developments in Greece, are also part of the picture. Following the rushing through of a harsh new law, the Greek government has now announced plans for large scale detention of asylum-seekers in the country, with a view to rapid return to Turkey or to countries of origin. The law limits rights and removes procedural safeguards.
Legal, political and ethical concerns arise from these changes, which have been widely condemned by organisations in Greece. The inflammatory and inaccurate language used by the Greek government has also been widely and rightly criticized. At the same time, it is far from given that these measures will make asylum processes more efficient (increased investment and use of procedural guarantees, such as access to legal assistance, are more likely to do so). Nor will they necessarily lead to an increase in deportations. First, legal challenges are likely given the number of people at risk of refoulement. Second, the main challenge to returns is re-admission by the country of transit or origin. How creating an even more hostile environment in Greece has an impact on these countries is unclear. Will it make Turkey accept back the suggested 10,000 rapid returnees to add to the 4 million people it is already hosting?
Responsibility also lies with the rest of Europe, however. As should always be noted, the situation in Greece that has provoked these actions is the result of the EU’s strategy, and notably the EU-Turkey Deal which ECRE has condemned from the start, as alternatives were and are available. As a result of it, the EU’s support for Greece and its priorities in engaging with the Greek government, shifted towards implementing the Deal – getting people back to Turkey – and away from other priorities, such as relocation, building up the asylum system, and integration.
The inevitable consequences of the response to the 2015/2016 arrivals of refugees is containment of people at the borders – either just inside the EU on the Greek islands or just outside it in the Balkans. The EU-Turkey Deal and the decision to close the Balkan route, based on an even more dubious agreement of February 2016, brokered by Austria and signed – not by heads of government – but by police chiefs, were always two sides of the same coin.
ECRE has urged a change in direction of EU’s overall policies on asylum and migration, arguing that the new Commission faces a clear choice. ECRE has also urged immediate measures to respond to the increased arrivals of people in Greece and sound crisis preparation given the likely larger increases that will follow from the volatile political situation in Turkey and the deteriorating operational situation in Syria. These should include humanitarian and financial support for Greece and the countries of the Balkans; ending containment on the islands; ad hoc schemes for sharing of responsibility until permanent reforms are in place; insistence on improving asylum systems; investment in early integration processes; reconsidering the use of the temporary protection directive, not invoked in 2015; and so on.
But EU’s preparations are already there – this is it: maintain the strategy of containment in Greece and support it to carry out deportations; then, roll out agreements across the Balkans so that the EU can prevent access to its territory when people try to move. A gelling of the Accession process, or muddying it by using the considerable leverage it grants the EU to buy migration control, plus a commissioner for the region straight out of the Hungarian government, indicate not just a continuation but an acceleration of this approach. The rest of the Commissioners, the Commission services and the EEAS, and the European Parliament must be ready to monitor, to sound the alarm and to steer in a different direction.
Editorial: Catherine Woollard, Director of the European Council on Refugees and Exiles (ECRE)
Photo: (CC) Balkan Photos, February 2008