The EU’s External Migration Management Agreements in (non-)Crisis: How the European Migration Crisis Impacted the EU’s approach to External Migration Management Agreements

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Master of Arts Thesis

Euroculture

University of Groningen University of Uppsala March 2023

The EU’s External Migration Management Agreements in (non-)Crisis:

How the European Migration Crisis Impacted the EU’s approach to External Migration Management Agreements

Submitted by:

Lonneke Moen

Student number first university: S3326314

Student number second university: 19991010-T287 Contact: lonneke.moen@gmail.com

+31 6 83377285

Supervised by:

Name of supervisor first university: Senka Neuman-Stanivukovic Name of supervisor second university: Rannveig Haga

De Wijk, 10.03.2023

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MA Programme Euroculture Declaration

I, Lonneke Moen hereby declare that this thesis, entitled “The EU’s External Migration Management Agreements in (non-)Crisis: How the European Migration Crisis Impacted the EU’s approach to External Migration Management Agreements”, submitted as partial requirement for the MA Programme Euroculture, is my own original work and expressed in my own words. Any use made within this text of works of other authors in any form (e.g., ideas, figures, texts, tables, etc.) are properly acknowledged in the text as well as in the bibliography.

I declare that the written (printed and bound) and the electronic copy of the submitted MA thesis are identical.

I hereby also acknowledge that I was informed about the regulations pertaining to the assessment of the MA thesis Euroculture and about the general completion rules for the Master of Arts Programme Euroculture.

In case the research process involved participants (especially participants from vulnerable communities and populations), please ensure that the following boxes can be ticked before submitting the thesis, or tick the third box, if not applicable to your project:

I declare that I have obtained the required permission from the relevant ethics committees of the two universities supervising my thesis concerning my research proposal in order to proceed with proposed research involving participants;

I declare that I have obtained informed consent from these participants and that the consent forms are stored lawfully and in accordance with the rules of the two universities supervising my thesis.

The two items above do not apply to this project.

Signed:

Date: 10/03/2023

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Abstract

The European migration crisis of 2015-2016 exposed a number of issues with the EU’s internal system for migration management, the Common European Asylum System. As a result the EU looked beyond its own borders to deal with what they had framed as a crisis. Amongst its responses were a number of external migration management agreements with third countries. Most notable and controversial was the EU-Turkey Statement. It was heavily criticised for things that were not new in external migration management agreements. Therefore, this thesis looks into how external migration management agreements changed with the migration crisis. Understanding the crisis as a framed situation in which the EU acted differently than normal, I will look at an external migration management agreement made during non-crisis—the Mobility Partnership with Moldova—and compare it to the EU-Turkey Statement made in said crisis. The similarities between these agreements show that the crisis accelerated a number of processes that had been going on in external migration management in the EU for years: informalisation and increasing focus on security. The differences show that in crisis the EU makes agreements hastily and as a result can loose its leverage over its negotiation partner.

Keywords: Migration Crisis, External Migration Management, GAMM, CEAS, EU-Turkey Statement, Mobility Partnership

Word count: 24541

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1. Introduction

In a territory with open internal borders such as the European Union (EU) external border control is a shared concern. At the same time, migration is an issue on which the EU member states are reluctant to give up their competences to the EU. This is due to the connection of migration with security and the unwillingness of EU member states to give up control in the area of security. Thus, ¹ there is a tension in the EU between open borders and security. Within this tension, a somewhat common migration policy has emerged over the years. Over time, the EU’s focus has shifted largely from internal to external migration control, such as visa policies and external border patrolling. ² Third countries play an important role in this and the EU as well as its member states have established a multitude of external migration management agreements with them. Especially countries in neighbouring regions are important partners. ³

With increasing numbers of migrants coming into the EU, migration management became even more important. Between 2015 and 2016 over a million of migrants arrived in Europe, which is the biggest amount of migrants seen on EU territory since the Second World War. These refugees fled from wars and conflicts, and a lack of security and perspective for the future in their home states and most notably came from Syria. Even though it was the largest wave, it was far from the ⁴ first time the European Union (EU) saw a large influx of refugees coming into its territory. In fact, despite lulls and spikes in amounts, migrants are always coming into Europe. Still, the situation in ⁵ 2015-2016 was marked a ‘crisis’ in the EU, one that garnered a wide array of responses by different actors and with varying results. The system in place in the EU to deal with incoming migrants failed, and the subsequent lack of cohesion and solidarity among EU member states on how to ⁶ proceed to deal with the incoming migrants led to inaction on internal migration policy and sparked

1. Yun-Chen Lai, “Implications of the EU’s Immigration Governance to Normative Power Europe (NPE) in the Case of Refugee Crisis,” in Immigration Policy and Crisis in the Regional Context, Asian and European Experiences, eds. Chin-Peng Chu and Sang-Chul Park (Singapore: Springer, 2021), 148, https://doi.org/

10.1007/978-981-33-6823-1_9.

2. Anna Liguori, “The externalization of EU migration policies,” in Migration Law and the Externalization of Border Controls (London: Routledge, 2019), 51, https://doi-org.proxy-ub.rug.nl/10.4324/9780429439100.

3. James Hampshire, “Speaking with one voice? The European Union’s global approach to migration and mobility and the limits of international migration cooperation,” Journal of Ethnic and Migration Studies 42, no. 4 (2016): 572.

4. Arne Niemann and Natascha Zaun, “EU Refugee Policies and Politics in Times of Crisis: Theoretical and Empirical Perspectives,” Journal of Common Market Studies 56, no. 1 (2018): 3.

5. Anthony Messina, “The Origin and Trajectory of Post-WWII Immigration,” in The Logic and Politics of post WWII Migration to Western Europe (Cambridge: Cambridge University Press, 2007), 19-53, https://doi-org.proxy- ub.rug.nl/10.1017/CBO9781139167192.

6. Niemann and Zaun, 4.

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a number of ad hoc (often informal) agreements with third countries on migration management. ⁷ These agreements, due to the context in which they were made, were the results of quick decision- making and aimed at solving the EU’s crisis. This is a different starting point than earlier external migration management agreements made without the background of crisis. The agreements made during the crisis (e.g. the EU-Turkey Statement or the EU-Afghanistan Joint Way Forward) have been heavily critiqued for their informal nature, their lack of human rights protection and their questionable labelling of certain third countries as ‘safe’. However, as already mentioned, external ⁸ migration management agreements are not a new tool for the EU. Nor is the EU’s use of informal cooperation in migration matters. Thus the question arises what changed in the context of the migration crisis as compared to the normal situation. Or, more precisely: how did the framing of crisis change the approach of the EU to external migration management agreements during the 2015-2016 European migration crisis?

In order to answer this question I will look at two external migration management agreements. One made in non-crisis times and one made during the migration crisis. The former is the Mobility Partnership of the EU with Moldova of 2008 (Moldova MP). An informal agreement to facilitate legal migration and prevent illegal migration between the two partners. The partnership ⁹ was made under the EU’s policy framework for cooperation with third countries on migration and asylum: the Global Approach for Migration and Mobility (GAMM). The Moldova MP will be ¹⁰ compared to the EU-Turkey Statement of 2016 (Statement). Another informal agreement, this one aimed at stemming the flow of migrants from Turkey to Greece during the migration crisis. ¹¹ Important to note, though, is that although I refer to the Moldova MP and the Statement as agreements, this term is most usually used for legally binding documents. In this case I do not ¹²

7. Sergio Carrera, Leonhard den Hertog and Marion Panizzon, “The External Faces of EU External Migration Law and Policy: an Introduction,” in EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes, eds. Sergio Carrera, Leonhard den Hertog, Marion Panizzon and Dora Kostakopoulou (Leiden: Brill Nijhoff, 2019), 10, https://doi.org/10.1163/9789004354234.

8. Juan Santos Vara and Laura Pascual Matellán, “The Informalization of EU Return Policy: A Change of Paradigm in Migration Cooperation with Third Countries?,” in The Informalisation of the EU’s External Action in the Field of Migration and Asylum, eds. Eva Kassoti and Narin Idriz (The Hague: T.M.C. Asser Press, 2022), 44-45, https://

doi.org/10.1007/978-94-6265-487-7; Niemann and Zaun, 8-9.

9. Council of the European Union, “Joint Declaration on a Mobility Partnerships between the European Union and the Republic of Moldova,” 9460/08 ADD 1, Brussels, 2008.

10. European Commission, “The Global Approach to Migration and Mobility,” COM(2011) 743 Final, Brussels, 2011, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52011DC0743#document1.

11. European Council, “EU-Turkey Statement, 18 March 2016,” Press release, 2016, https://

www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/.

12. Gloria Fernández Arribas, “The EU-Turkey Statement, the Treaty-Making Process and Competent Organs.

Is the Statement an International Agreement?,” European Papers 2, no. 1 (2017): 303-4.

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mean that definition of agreement, but simply refer to the fact that two parties agreed to a set of intentions, without creating legal obligations for themselves. Agreement is therefore the most logical word to refer to the Statement and the MP together, despite the other connotations the word

‘agreement’ has.

Aside from the term agreement, there are a number of other terms that need clarification before moving on. Firstly, there is the migration ‘crisis’ I have referred to. The large inflow of migrants into the EU in 2015-2016 is often called a crisis. Though different academic articles refer to it by different names, for example: the migration crisis, the refugee crisis or the Syrian crisis, ¹³ and European actors often do not specify what (kind of) crisis they are referring to at all.

Additionally, the whole concept of crisis as applied to the migration situation can be called into question. A discussion on the concept of crisis will follow, but for the purposes of this thesis, I will use the term ‘migration crisis’ or ‘European migration crisis’ in reference to the situation of incoming migrants in the EU in 2015-2016. This is because this thesis focuses specifically on EU responses related to people crossing the borders into the EU and therefore definitionally fall within the large group of ‘migrants’ in general. Additionally, I add the term European sometimes not to diminish the struggles other countries have had to face in the context of the large groups of people on the move and its causes, but rather because the scope of the thesis and the problems I discuss are based in the EU. Lastly, there is the term ‘migrant’. In the context of the migration crisis both the terms ‘refugee’ and ‘asylum-seeker’ are relevant. However, both terms are somewhat restrictive.

Refugee is a status that a migrant can receive from a country in which they sought asylum, therefore people on the move may very likely become refugees but technically are not a refugee until a state labels them that. Asylum-seeker does apply to most could-be refugees, but excludes those who have sought asylum before and failed, but are still on the move. Furthermore, by virtue of being on the move, asylum-seekers fall by definition under the broader term ‘migrant’. Therefore, though I am aware that most of the people on the move discussed in this thesis fall within either the ‘refugee’ or

‘asylum-seeker’ category, I will mostly refer to ‘migrants’ when talking about people on the move, as to also include those who do not fall within those earlier categories.

Keeping this in mind, this thesis will continue as follows. First, a theoretical framework on the influence of labelling the migration crisis as a ‘crisis’ will be discussed. Calling something a

13. Heaven Crawley, Franck Düvell, Katharine Jones, Simon McMahon and Nando Sigona, “Rethinking Europe’s Response,” in Unravelling Europe’s ‘migration crisis’, Journeys over land and sea (Bristol: Bristol University Press and Policy Press, 2018), 129, https://doi.org/10.2307/j.ctt1xp3vrk.16; Roberto Cortinovis, “Forced Displacement and EU External Action: Exogenous Shocks, Policy Frames and Institutional Dynamics,” European Foreign Policy Affairs Review 22, no. 4 (2017): 479; Eiko Thielemann, “Why Refugee Burden-Sharing Initiatives Fail: Public Goods, Free-Riding and Symbolic Solidarity in the EU,” Journal of Common Market Studies 56, no. 1 (2018): 63.

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crisis as opposed to an emergency or a problem, for example, changes the way EU actors respond to a situation, which is highly relevant in determining how a crisis changed the EU’s approach to, in this case, external migration management agreements. The methodology for answering the research question and a literature review on external migration management in the EU as well as the two relevant agreements will complete this chapter. Next, a discussion follows on the existing migration management tools in the EU, including the institutional background from 1985 forward as well as an internal and an external part. Then a short description of the migration crisis will be given, which will lead into the subsequent discussion on the functionality of the two parts of the EU migration management tools. The initial failure of the internal system is an important step here as the internal system is generally the preferred mode for crisis management: the EU prefers to use its own powers to avert any crisis. The move to external migration management must therefore be understood in relation to these internal systems. After this I will take a step back to 2005 to discuss the Mobility Partnership with Moldova, an external migration made by the EU without the context of a Union- wide (migration) crisis. Understanding how this agreement was forged is important in understanding how the EU acts differently in crisis. Next I turn to the EU-Turkey Statement, in all aspects a product of crisis. Through a comparative analysis of the two agreements I will answer the question: How did the discourse of crisis change the approach of the EU to external migration management agreements during the 2015 European migration crisis? This will help in understanding the role that the crisis has played in the shape of this latter agreement. It will also show that, while the Statement is a result of crisis, not all of its flaws can be traced back to crisis decision-making and much of what the Statement is critiqued for can be found in the Moldova MP as well. But, that is not to say that nothing changed in external migration management agreements during the crisis.

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2. Framework: Crisis? What Crisis?

In order to answer the research question this thesis poses, a theoretical framework as well as a methodological approach are necessary. The theory will determine how, as the question poses, the migration crisis is ‘framed.’ The methodology will then explain the approach and limitations of analysing the EU’s response to the migration crisis and, importantly, the two external migration management agreements introduced in the previous chapter. Lastly, this chapter contains a literature review to situate this thesis in the existing body of academic literature on these topics. The focus of the literature review will be on the EU’s externalisation of migration management and on the two agreements to be compared in the analysis.

2.1 Theory

2.1.1 What is a Crisis?

For this thesis it is important to understand the various meanings of the concept of crisis, and the various ways in which the term is used and understood by scholars. The word crisis is ambiguous and therefore difficult to define. Some recent perspectives in the context of Europe and/or migration are as follows. According to Runciman (2016), in order for something to be a crisis, there has to be a fundamental threat as well as a fundamental choice. If there is a threat but no choice, there is no point in deciding on action. If there is a choice but no threat, that is normal decision-making. ¹⁴ Davitti (2019) instead, sees a crisis as a state of exception and, in terms of the migration crisis, the crisis idea is maintained by framing the migrants as a security threat and migrant movements at large as a humanitarian disaster. During a crisis, he additionally argues, immediate actions are called for. Thus, any structural problems that might have prevented the crisis are ignored in the search for immediate solutions that can even bypass governance through law. Pallister-Wilkins (2017) ¹⁵ similarly argues that a crisis calls for immediate action, following political scientist Murray Edelman’s definition of crisis as being outside of the normal order and stemming from outside the realm of political control. Pallister-Wilkins, slightly divergent from Davitti, argues that the immediate action as a response to the crisis is what brings the situation into one of exception. ¹⁶

14. David Runciman, “What Time Frame Makes Sense for Thinking about Crises?,” in Critical Theories of Crisis in Europe: From Weimar to the Euro, eds. Poul F. Kjaer and Niklas Olsen (London: Roman & Littlefield Publishers, 2016), 4-5, DOI: 10.26530/OAPEN_611731.

15. Daria Davitti, “Biopolitical Borders and the State of Exception in the European Migration ‘Crisis’,” The European Journal of International Law 29, no. 4 (2019): 1185.

16. Polly Pallister-Wilkins, “Humanitarian Rescue/Sovereign Capture and the Policing of Possible Responses to Violent Borders,” Global Policy 8, suppl. 1 (2017): 20.

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Within the same line of thinking about immediate actions, Scheuerman (2016) argues that European leaders use crisis language to justify measures that go against procedures and norms and even use this language to frame these measures as necessary, unavoidable and rational. He defines a crisis ¹⁷ as an unpredictable, unforeseeable situation where the community in crisis fears for their continuity, but argues that this view is over dramatic. What these definitions of crisis have in common is that ¹⁸ they are perceived by the community that is in crisis before they are a crisis (e.g. the community must be under threat and have a choice or the community is in an exceptional situation etc.). De Rycker and Mohd Don (2013) are certainly not the only scholars to point out that this is because crisis is a socially and discursively constructed phenomenon. As will also become clear in the case ¹⁹ of the migration crisis, the situation was perceived as a crisis by certain actors and they consequently acted in a matter that is befitting a crisis and not the normal situation.

In terms of the European migration crisis, next to the issue of the word crisis being undefined, there was also no consensus on what kind of crisis the migration crisis was either.

Different scholars writing about the same phenomenon call the situation many different things: the migration crisis, the refugee crisis, the European refugee crisis, the European humanitarian refugee crisis, a legitimation crisis or a crisis of governance are only some examples of what the crisis has been called. All these different names give some idea as to what the crisis is about, but since they ²⁰ all talk about the same crisis, but with different names, it is still not clear what the crisis is exactly.

More importantly, they do not make clear what that means in terms of decision-making during crises, specifically when negotiating external migration agreements. Keeping this, as well as the idea of crisis as a construct in mind, the following section delves into Janet Roitman’s book Anti- Crisis to look at how a crisis works instead.

17. William E. Scheuerman, “Crises and Extralegality from Above and from Below,” in Critical Theories of Crisis in Europe: From Weimar to the Euro, eds. Poul F. Kjaer and Niklas Olsen (London: Roman & Littlefield Publishers, 2016), 197, DOI: 10.26530/OAPEN_611731.

18. Scheuerman, 202-3.

19. Antoon De Rycker and Zuraidah Mohd Don, “Discourse in crisis, crisis in discourse,” in Discourse and Crisis: Critical Perspectives, eds. Antoon de Rycker and Zuraidah Mood Don (Amsterdam: John Benjamins Publishing Company, 2013), 10, https://doi.org/10.1075/dapsac.52.

20. Crawley et al., 129; Cortinovis, 479; Sergio Carrera, Leonhard den Hertog and Marco Stefan, “It wasn’t me! The Luxembourg Court Orders on the EU-Turkey Refugee Deal,” CEPS Policy Insights no. 2017/15 (2017): 1;

Carrera et al., “The External Faces,” 1; Michael Collyer and Russell King, “Narrating Europe’s Migration and Refugee

‘Crisis’,” Human Geography 9, no. 2 (2016): 4; Sandra Lavenex, “‘Failing Forward’ Towards Which Europe?

Organized Hypocrisy in the Common European Asylum System,” Journal of Common Market Studies 56, no. 5 (2018):

1196.

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2.1.2 Crisis as a Blind Spot

Mostly, what the authors above are trying to do is figure out what crisis is, and clearly, there is no one right answer. Roitman, in her book Anti-Crisis, foregoes the question of what crisis is and rather looks at how crisis works. For the question posed by this thesis what crisis is, is also less relevant than how crisis works, specifically in the context of a large number of incoming migrants into the European Union that was perceived as a crisis. The point Roitman is trying to make in her book is that, regardless of what crisis is, invoking the term on a situation has effects. It creates a certain point of view, and with it a blind spot to other points of view for the situation at hand, which can affect that situation as well. The following discussion on Roitman’s argument will help illustrate ²¹ how, in the context of the migration crisis, the concept of crisis affected the situation and specifically the creation of external migration management agreements during said crisis.

Roitman’s starting point is that crisis is a form of judgement. It judges a situation as a ‘bad’

situation, a crisis. This ‘bad’ situation is necessarily in contrast to the ‘good’ situation, the non-crisis or normal situation. If there is a crisis, something is judged as different from the way things are supposed to be. There is a deviation from the norm, a ‘crisis’ in comparison to a ‘normal situation.’ She then goes into Koselleck’s classic conceptual history of the term. The word crisis, ²² according to Koselleck, has three modern sources. One in medicine, where it stands for a turning point. Another in economics, where it can both mean an “acute breakdown” or an “ongoing malfunction” of the system. And lastly in theology, where it points to “immanent or even permanent transfiguration.” However, since then, the most important aspect that has changed in our ²³ understanding of the concept of crisis is that it has become grounded in time. The concept became a historical principle with a transformative quality. It both accesses and qualifies history. ²⁴ Additionally, by placing ‘crisis’ in time, and because ‘crisis’ has a transformative quality, the concept implies the possibility of change, of difference in the future. ²⁵

Next, in another nod to Koselleck’s work, she goes into a concept related to crisis: critique.

Without going into the meaning of the concept of critique as well, the point is that where crisis

21. Janet Roitman, “Dreams,” in Anti-Crisis (Durham: Duke University Press, 2013), 94, https://doi.org/

10.1515/9780822377436.

22. Janet Roitman, “What is at Stake?,” Anti-Crisis (Durham: Duke University Press, 2013), 4, https://doi.org/

10.1515/9780822377436.

23. Runciman, 3-4.

24. Janet Roitman, “Crisis Demands,” Anti-Crisis (Durham: Duke University Press, 2013), 18-20, https://

doi.org/10.1515/9780822377436.

25. Roitman, “Crisis Demands,” 31.

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entails a judgement, critique suspends judgement. That suspension means that critiquing something does not value the objects within a framework, but rather questions the framework itself. The fact that there is something to critique about the framework at all means that there is an issue with the epistemology in which the framework is based. Thus, critique, or the suspension of judgement of the objects in a framework, necessarily calls into being a crisis, as the framework itself is being judged as ‘bad,’ and thus, in crisis. ²⁶

In more concrete terms, taking the shipwreck of a migrant boat on the Mediterranean as the catalyst of the supposed crisis in the case of the migration crisis (see section 3.2.1), this idea can be applied. The problem was the high number of incoming migrants (too many migrants on a boat) coming to the EU via unsafe routes (e.g. over the Mediterranean Sea on unseaworthy boats). The critique, then, is on the system (the Common European Asylum System (CEAS), see section 3.1.2) that was unable to deal with this large number of migrants (which led to the unnecessary sinking of the boat). Thus, in this understanding of critique and crisis, which Roitman based on Koselleck’s, Michel Foucault’s and Judith Butler’s work respectively, the migration crisis was a crisis of the failure of the Common European Asylum System.

However, as shown above, this was not the only ‘crisis’ that was observed in the context of the high number of incoming migrants. Additionally, Roitman is not trying to figure out the meaning of, or a working definition for crisis. Crucially, Roitman's thinking goes beyond analysis what a crisis is. More important, in fact, is how a crisis works—the effects that applying the terms crisis can have. Roitman argues that calling something a crisis, regardless of what is thought of as crisis or what the crisis entails will open the door to some questions, while closing it to others. It allows for the discovery of the ‘otherwise’ as opposed to the normal situation. Taking crisis for granted, Roitman argues, closes the door to the question of how we can know or understand that normal situation and immediately asks the question of how we deviated from it. This is due to the ²⁷ fact that crisis in and of itself cannot be observed. Therefore, it is not explained or defined either.

Rather, it is an observation of other elements, together called crisis, that produces a new meaning. ²⁸ This is a fundamental characteristic of the term crisis: on the one hand elusive to the point of being invisible, but at the same time able to bring about transformative change. Roitman uses the financial crisis of 2007-9 throughout her book to illustrate this point. She argues that many scholars who tried to analyse that crisis, tried to figure out what went wrong or what the origins and causes of the crisis

26. Roitman, “Crisis Demands,” 33-35.

27. Roitman, “What is at Stake?,” 9-11.

28. Roitman, “Crisis Demands,” 39.

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were. With the 2015-2016 migration crisis something similar can be observed. As mentioned ²⁹ above, most scholarly work about the crisis in some way discusses or at least mentions the different names (and associated implications) the crisis has been given (e.g. migration crisis, refugee crisis, Syrian crisis, European (migration) crisis etc.). However, the fact that there was a crisis, in both cases, is usually taken as fact without hesitation. But the fact that there is migration towards the EU, even in such large numbers, does not make a crisis in and of itself. Thus, Roitman argues, besides questions of what went wrong, that go into what the crisis is, questions that try to determine when the observation of crisis takes place are equally important, because they determine from what point people leap to abstraction, the second order of observation, or, as mentioned above, the opening to certain questions and closing the door to others. By observing a crisis from a certain point onwards, it means that the situation is from then on seen as creating historical change. In addition, it invites to start thinking in terms of solutions to the perceived crisis. Thus, the observation of crisis creates a ³⁰ blind spot to certain forms of knowledge production and transforms knowledge production for the future. The observation creates distinguishable events in history, that are regulated by specific ³¹ narratives that help in understanding those events. ³²

2.1.3 The Blind Spot of the Migration Crisis

Understanding that conceptualising a situation as a crisis creates a blind spot and that there is no clear definition on what kind of crisis the migration crisis was, how can it be discussed? Similar to Roitman, De Genova and Tazzioli (2016, editors “New Keywords Collective”) want to look at

‘crisis’ without taking it for granted. They specifically look at the migration crisis and at how the ³³ discourse around the crisis tends to reinforce the dominant ideas without looking into the concepts that make up the discourse. De Genova and Tazzioli point out what I discussed above, how the ³⁴ phenomenon of migrants crossing the borders to the EU has been labelled many different things.

Refugee crisis, migrant crisis, humanitarian crisis, crisis of the asylum system, crisis of Europe’s borders, crisis of border control and crisis of the Schengen zone are the examples they give. All

29. Janet Roitman, “Crisis Narratives,” Anti-Crisis (Durham: Duke University Press, 2013), 42, https://doi.org/

10.1515/9780822377436.

30. Roitman, “Crisis Narratives,” 47-48;64.

31. Roitman, “Crisis Narratives,” 66.

32. Roitman, “Dreams,” 93.

33. New Keywords Collective, “Europe/Crisis: New Keywords of ‘the Crisis’ in and of ‘Europe’,” Near Futures Online 1 (2016): 5.

34. New Keywords Collective, 2.

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these terms are intended to give an idea as to what the supposed cause of the crisis is. But besides the different names the crisis gets from different sources, the authors also point out that the migration crisis is often considered as the latest new piece of crisis in the ongoing crises of the EU that started with the economic crisis around 2008 and has since been expanded to include the housing crisis and the crisis of the European institutions among others. Additionally, the migration crisis is often seen as essentially a byproduct of the crises going on in the Middle East. A framing of crisis that both allows for interventions in this region as well as detachment from ideas of how Europe itself might be responsible for the issues it faces. The point De Genova and Tazzioli try to ³⁵ make with their multitudes of distinctions between different kinds of crisis the migration situation might be, is that it shows that the instability that signals the crisis in the situation of migration in its current form in Europe, is stable so to say. Or as the authors themselves put it: “A state of ‘crisis’

with regard to illegalised migration across the EU’s frontiers is therefore the norm rather than the exception.” But then, why talk about a crisis at all? Referencing (among others) Roitman, the ³⁶ authors emphasise the blind spot a language of crisis creates. As a crisis is exceptional and temporal, the perspective on the very permanence of the violence of migration in Europe is obstructed. Additionally, invoking crisis allows governments to deploy more extreme measures and abandon ‘business as usual’ type approaches. Since a crisis demands immediate responses, democratic debate takes too long and governments are justified in quickly taking the (authoritarian) measures they want to. Crisis, for governments, equals opportunity. This frame must not be ³⁷ underestimated. Thus, calling the migration situation a crisis grants the perfect opportunity to enhance and expand border enforcement and the policing of migration. The next chapter will show how the EU did this, but first the methodology for answering the research question will be discussed, followed by a literature review.

2.2 Methodology

Applying the thought that the framed crisis created a blind spot to the European migration crisis of 2015-2016 will help in answering the question of how the framed crisis has changed the EU’s approach to external migration management. However, in order to see change, the normal situation has to be established. As understood from Roitman, this normal situation is the presumed ‘good’ as opposed to the ‘bad’ crisis. De Genova and Tazzioli have pointed out that even the presumed ‘good’

35. New Keywords Collective, 7-8.

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situation can be one of violence and misconduct. In order to understand the normal situation in comparison to the ‘crisis’ situation with regards to migration this thesis will first compare the EU’s internal versus its external migration management to justify the focus of the research question on external management. Looking at the internal system through the lens of the normal situation at the crisis situation—in other words, using the normal situation to understand how the crisis situation deviated from it—will show that the internal migration system in place in the EU was never adequate to deal with as many asylum requests as during the migration crisis to begin with. The subsequent failing of the system during the crisis thus helps explain the shift in focus to external migration management. The internal system and its failure will be discussed in the next chapter.

Though, as internal problem solving is generally preferred in the EU in the context of a crisis, the failure of this system is still an important step towards external migration management. In other words, to understand why the EU acted as it did during a crisis in which asylum played such an important role, the failure of the internal system is important to understand as a step towards focussing on the external response to the crisis.

Then the focus shifts to the external system. Again, the normal situation will provide the lens through which I will consider the crisis situation. The main comparison here will be between the 2008 Mobility Partnership of the EU with Moldova versus the 2016 EU-Turkey Statement. The former is chosen for its position as (one of) the first Mobility Partnerships made under the GAMM, which is the EU’s policy framework for external migration management. Thus, the Moldova MP fits perfectly within the normal situation of the EU’s external migration management. It is based on policy and additionally fits very well within that policy as Moldova was chosen for an MP due to earlier bilateral agreements it had on migration with certain EU member states. In contrast, the EU- Turkey Statement was chosen to compare with the Moldova MP due to its controversial nature and its position as fundamentally a crisis response. This comparison will involve a number of components. Most importantly in this comparison are the literal text of the Moldova MP (the “Joint Declaration on a Mobility Partnerships between the European Union and the Republic of Moldova” ) and the EU-Turkey Statement (“EU-Turkey statement, 18 March 2016” ). However, ³⁸ ³⁹ considering that neither agreement in their respective texts themselves much deliberate their own contexts, as well as the fact that the text of the MP is nearly 10 times as long as the Statement I will also consider other documents. Mostly other analytical material on either agreement (academic articles, blogposts by experts), but also supporting websites from the partners in the agreements.

38. Council of the European Union, “Joint Declaration.”

39. European Council, “EU-Turkey Statement.”

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Additionally, though certain EU member states played important roles in the forming of both the Moldova MP and the EU-Turkey Statement, the focus in comparing the documents will be on EU actors. Without diminishing the roles of these member states, actions and releases of the EU—

specifically the European Council and the European Commission—will be what is mostly considered. This is due to the inherently EU focused nature of the research question. Though the EU is made up of its member states, it acts as an actor in and of itself, and in order to see a change in behaviour of that actor, I will look at its own actions.

Even though both the Moldova MP and the EU-Turkey Statement were EU-made agreements aimed at managing migration externally, the circumstances of their development were very different. These differences will make clear how the EU’s approach to external migration management changed with the migration crisis. However, there were also a number of similarities between the two agreements that will uncover some things about how the EU goes about forging external migration agreements in general. The comparison will also re-emphasise the danger Roitman and De Genova and Tazzioli pointed out about crises creating a blind spot.

2.3 Literature Review

2.3.1 Externalisation of Migration Management

This chapter will conclude with a literature review on the externalisation of migration management in the EU, the EU-Turkey Statement and the Moldova MP. Without going into the actual process of the externalisation of EU migration management (see for example Eisele (2014), Carrera et al.

(2019), Martenczuk (2014)) the following section gives a short overview of what has been written ⁴⁰ about the externalisation of EU migration management already, before going into the specific agreement with Turkey and the Mobility Partnerships.

The largest group of literature on the externalisation of EU migration management covers, in one way or another, how external migration policies came into being and evolved. For example, Eisele carefully details how, despite the sensitivity of migration issues and the reluctance of EU member states to give up control in that area, over time the EU has gotten continually more competences in migration matters. Additionally, many scholars (e.g. Boswell (2003), Hampshire ⁴¹

40. Katharina Eisele, “EU External Relations and Migration Policy, The Historical Development of the External Dimensions,” in The External Dimension of the EU’s Migration Policy, Different Legal Positions of Third- Country Nationals in the EU: A Comparative Perspective (Leiden: Brill Nijhoff, 2014), DOI:

10.1163/9789004265257_003; Carrera et al., “The External Faces;” Bernd Martenczuk, “Migration Policy and EU External Relations,” in EU Migration Law: Legal Complexities and Political Rationales, eds. Loïc Azoulai and Karin De Vries (Oxford: Oxford University Press, 2014), https://doi-org.proxy-ub.rug.nl/10.1093/acprof:oso/

9780198708537.001.0001.

41. Eisele, 127-8.

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(2016a)) point out that the need to start cooperating on external border control came from the so- called Schengen Agreement of 1985. The abolition of internal EU borders meant the external borders became a shared concern. Boswell argues that the externalisation of migration ⁴² management can be seen as a logical extension of the transnational approach that has been taken within the EU itself. It is important to note that underlying all the EU’s externalisation efforts, the ⁴³ biggest goal for the EU is to keep irregular migrants out of the territory. Pijnenburg et al. (2018), ⁴⁴ arguing about the evolution of migration management more generally, indicate that previously migration destination states tended to take on migration control roles in transit and origin states.

Now, however, origin and transit states get bigger roles in migration control, while the destination states mainly concern themselves with training and funding. ⁴⁵

As for more recent developments, Hampshire argues that the supranationalisation of the common migration policy as envisioned by the 1999 Tampere programme happened fast. This, because only ten years after the programme, migration policy was brought under supranational decision-making with the Treaty of Lisbon (TFEU) in 2009. However, after the entry into force of the TFEU, further development slowed. This, Hampshire argues, is due to the tensions between the EU institutions and the member states as well as between different member states in terms of interests and trust. ⁴⁶

In terms of actual offshoring of the EU’s responsibilities in migration management, Laganà (2018) warns that it is likely to result in abysmal treatment of asylum-seekers, human rights violations and refoulement, while only minimally reducing the number of incoming migrants. ⁴⁷ Liguori (2019), in her discussion on the migration policies of the EU during the migration crisis, shows that during the migration crisis externalisation policies moved even further towards prohibition of movement and border controls, making specific mention of the EU-Turkey Statement. However, such policies were part of the problem themselves, and as solutions they were

42. Christina Boswell, “The ‘external dimension’ of EU immigration and asylum policy,” International Affairs 79, no. 3 (2003): 622-3; James Hampshire, “European migration governance since the Lisbon treaty: introduction to the special issue,” Journal of Ethnic and Migration Studies 42, no. 4 (2016): 538.

43. Boswell, 623.

44. Olga Burlyuk, “The ‘Oops!’ of EU Engagement Abroad: Analyzing Unintended Consequences of EU External Action,” Journal of Common Market Studies 55, no. 5 (2017): 1019.

45. Annick Pijnenburg, Thomas Gammeltoft-Hansen and Conny Rijken, “Controlling Migration through International Cooperation,” European Journal of Migration and Law 20, no. 4 (2018): 367.

46. Hampshire, “European migration governance,” 543.

47. Giulia Laganà, “Does Offshoring Asylum and Migration Actually Work? What Australia, Spain, Tunisia and the United States can Teach the EU,” Open Society Foundations (2018): 7.

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thus ineffective and in some cases even counter productive. Additionally, they led to human rights ⁴⁸ violations and even refoulement, just as Laganà cautioned. Furthermore, Burlyuk (2017) argues ⁴⁹ that with such restrictive measures, regular entry options are scarce and thus migrants take higher risks to enter the EU irregularly. The risk to the migrants’ lives is an unintended consequence of the restrictive EU policies, but one the EU could—and probably should—have accounted for. ⁵⁰

Another discussion in the literature concerns the linking of different policies, and the overall coherence of externalisation policies. Carrera et al. (2019) point out that during crises the EU starts linking policies together more frequently to make bargaining with third countries easier and get quicker relief of the stress on their system. However, Papagianni (2013) mentions that, regardless ⁵¹ of whether or not there is a crisis, there is a big variety in actors as well as instruments that are involved in the EU’s external migration policies, and linking them together with other policy areas, each with their own actors and instruments, can harm the overall coherence of the external migration management of the EU. Cortinovis (2017) makes a similar argument from the ⁵² perspective of third countries, arguing that as the EU pressures third countries to contain migrants with increasingly more incentives (that are not even necessarily migration related), third countries are more likely to quickly adopt restrictive policies to get the EU rewards. This is despite the fact that the official EU objective is to create sustainable solutions for migrants. Martenczuk gives ⁵³ another argument for the policy incoherence of external migration management, namely that it also comes from the division of competences. As long as the European Commission and the EU member states have similar competences in external migration management, they can take different directions and thus undermine overall policy coherence. Going back to linking policies, the EU ⁵⁴ uses visa policy as a tool in its externalisation of migration, also, for example, as an incentive for cooperation with third countries. Laube (2019) points out the importance of visas in the ⁵⁵ differentiation between regular and irregular migration. Visa policies also disproportionally affect

48. Liguori, 52.

49. Liguori, 60.

50. Burlyuk, 1019-20.

51. Carrera et al., “The External Faces,” 1.

52. Georgia Papagianni, “Forging an External EU Migration Policy: From Externalisation of Border Management to a Comprehensive Policy?” European Journal of Migration and Law 15, no. 3 (2013): 287-9.

53. Cortinovis, 489.

54. Martenczuk, 99; 104-5.

55. Lena Laube, “The relational dimension of externalizing border control: selective visa policies in migration and border diplomacy,” Comparative Migration Studies 7, no. 29 (2019): 17.

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asylum seekers as they need to be able to access a safe state, but are often unable to apply for visas for practical reasons. ⁵⁶

Lastly, turning back to the migration crisis, multiple scholars (e.g. Pijnenburg et al., Carrera et al.) have pointed out that the crisis led the EU to create ad hoc measures related to the externalisation of migration. And Carrera et al. argue that labelling something as a crisis does not ⁵⁷ only lead to ad hoc measures, but it also allows for fewer regards for the norms and values that are usually respected with new measures. Additionally, they argue that with the migration crisis, there ⁵⁸ has been an increased preference of the EU for informal cooperation with third countries on migration matters. With that in mind, the following section looks into what has been written about ⁵⁹ one example of such informal cooperation, namely the EU-Turkey Statement.

2.3.2 The EU-Turkey Statement

Much has been written about the EU-Turkey Statement already. The main agreement of the Statement, issued on 18 March 2016 by the European Council and Turkey, was that all migrants coming into Greece whose application was unfounded or inadmissible, or who did not apply for asylum at all would be returned to Turkey. In return, for any Syrian migrant returned to Turkey, the EU would resettle another Syrian migrant in the EU. This section focuses on what has been ⁶⁰ written already about this controversial Statement.

Perhaps the most discussed aspect of the Statement is its (international) legal status.

Officially being a ‘statement’ rather than an ‘agreement’, the EU-Turkey deal escapes the (legal) scrutiny of the European Parliament (EP) and the Court of Justice of the European Union (CJEU).

This is because a statement is informal, and technically only conveys intent by the signatories (the EU member state heads of State/Government and the Turkish Prime Minister). Looking at the ⁶¹ laws of international treaties and international organisations and pointing out that the European Council does not have the competence to draw up international agreements, Fernández Arribas

56. Laube, 4.

57. Pijnenburg et al., 366; Carrera et al., “The External Faces,” 5.

60. European Council, “EU-Turkey Statement.”

61. Peter Slominski and Florian Trauner, “How do Member States Return Unwanted Migrants? The Strategic (non-)use of ‘Europe’ during the Migration Crisis,” Journal of Common Market

Studies 56, no. 1 (2018): 109.

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(2017) argues that the Statement indeed cannot legally be considered an international agreement. ⁶² However, Slominski and Trauner do point out that the Statement is not an entirely extra-legal entity.

The implementation of the Statement can be challenged through national (Greek) law, and due to the working of the CJEU, this means the issue can still come before the European court. On the ⁶³ other hand, Carrera et al. (2017) show that, eventually, both the European Commission and European Council started to avoid their accountability in terms of the Statement, with each claiming that the press release with the Statement cannot be seen as binding to the EU as a whole, but rather is a commitment of its member states. ⁶⁴

Another legal issue arises from the content of the Statement. Much of the Statement depends on Turkey taking back migrants from Greece. However, under the Asylum Procedures Directive and the principle of non-refoulement the EU is only allowed to send migrants back to safe third countries. Non-refoulement means a migrant has the right not to be sent back to a place they face persecution. Safe third countries, as defined under the Asylum Procedures Directive, have to ⁶⁵ comply with certain EU and international laws to ensure the safety of migrants. Turkey has been presumed to be a safe third country, but does not comply with the criteria set out under the Directive. Many scholars (e.g. Poon (2016), Lavenex (2018)) have pointed out the danger of inhumane treatment of migrants and indirect refoulement as a result of labelling Turkey as a safe third country. The human rights issues that come with the EU-Turkey Statement are also widely ⁶⁶ discussed by human rights NGOs. ⁶⁷

Some authors (e.g. Dagi (2020), Gürkan and Coman (2021), Lavenex, Martin (2019)) argue that the human rights criticisms the EU faces in light of the EU-Turkey deal negatively affect its status as a normative power, as it lets its security concerns outweigh its values and norms. With ⁶⁸

62. Fernández Arribas, 304-9.

63. Slominski and Trauner, 109.

64. Carrera et al., “It Wasn’t Me!,” 5-6.

65. Jenny Poon, “EU-Turkey Deal: Violation of, or Consistency with, International Law?,” European Papers 1, no. 3 (2016): 1196.

66. Poon, 1202; Lavenex, 1206.

67. Lavenex, 1206; Niemann and Zaun, 9.

68. Dogachan Dagi, “The EU-Turkey Migration Deal: Performance and Prospects,” European Foreign Affairs Review 25, no. 2 (2020): 207-8; Seda Gürkan and Ramona Coman, “The EU-Turkey deal in the 2015 ‘refugee crisis’:

when intergovernmentalism cast a shadow on the EU’s normative power,” Acta Politica 56, no. 2 (2021): 288-9;

Lavenex, 1207; Natalie Martin, “From Containment to Realpolitik and Back Again: A Realist Constructivist Analysis of Turkey-EU Relations and the Migration Issue,” Journal of Common Market Studies 57, no. 6 (2019): 1362.

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Gürkan and Coman as well as Martin going into what this might mean ontologically about the functioning and status of the EU as a whole. ⁶⁹

Another oft discussed aspect of the EU-Turkey Statement is its accomplishments. On the one hand, in only the first five months after the deal, irregular migration from Turkey to Greece decreased by 97%, and the number of deaths and missing persons in the Aegean Sea decreased by ⁷⁰ 94% between 2015 and 2016. However, scholars (e.g. Koenig and Walter-Franke (2017), Batalla ⁷¹ Adam (2017)) point out that even before the Statement fewer people had been trying to get from Turkey to Greece. This is in part due to the closing of the Balkan route in February 2016, as that significantly reduced the chances of migrants to advance to other European countries. Next to this, ⁷² Niemann and Zaun (2018) point out that in two years only 1826 actual returns took place under the Statement, despite an agreed cap on this mechanism of 72,000. Additionally, Dagi mentions that ⁷³ by 2018 the number of people crossing the Aegean sea began to significantly increase again. ⁷⁴

Next, some scholars point out the issue of dependency. Since the EU-Turkey Statement took effect on 20 March 2016, Turkey’s president Erdogan has emphasised that the EU’s migration policy depends on Turkey, even going as far as to say the EU’s peace depends on Turkey. Though ⁷⁵ this thesis is not the place to determine the validity of such claims, they show, as Okyay and Zaragoza-Cristiani (2016) argue, that Turkey has gained leverage in any other cooperation with the EU. They argue that the EU is put in a disadvantaged position by the Statement, because Turkey realised early into the negotiations just how important and time sensitive the deal was to the EU. ⁷⁶ Meanwhile, Turkey was in a position to stop gatekeeping the millions of migrants it housed, which would grant them entry into the EU. Thus, despite a deteriorating democracy and rule of law,

69. Gürkan and Coman, 293-4; Martin, 1361-2.

70. Dagi, 205.

71. Nicole Koenig and Marie Walter-Franke, “One year on: What lessons from the EU-Turkey ‘deal’?,”

Jacques Delors Institute (2017): 4.

72. Laura Batalla Adam, “The EU-Turkey Deal One Year On: A Delicate Balancing Act,” The International Spectator 52, no. 4 (2017): 46; Anna Triandafyllidou, “A ‘Refugee Crisis’ Unfolding: ‘Real’ Events and Their Interpretation in Media and Political Debates,” Journal of Immigrant & Refugee Studies 16, no. 1-2 (2018): 198;

Koenig and Walter-Franke, 4.

73. Niemann and Zaun, 8.

74. Dagi, 205.

75. Dagi, 198.

76. Asli Okyay and Jonathan Zaragoza-Cristiani, “The Leverage of the Gatekeeper: Power and

Interdependence in the Migration Nexus between the EU and Turkey,” The International Spectator 51, no. 4 (2016): 56.

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Turkey got the EU to agree to further accession talks and visa liberalisation talks. Both Kfir ⁷⁷ (2018) and Okyay and Zaragoza-Cristiani point out that the EU-Turkey Statement has shifted the power dynamic between the two actors. Where the EU was the dominant party for years, Turkey seems to now be on equal footing due to its increased bargaining power and, importantly, increased EU dependence on Turkey. ⁷⁸

Thus, much has been written about the content and performance of the Statement, as well as about the Statement as a response to the larger migration crisis. However, it cannot be overlooked that the Statement was a product of that crisis. It was made hastily and during a time that was considered crisis in the EU. Dagi argues that the fact that the EU-Turkey Statement is fundamentally a product of the context of crisis means that it is unlikely to last. He shows that the ⁷⁹ quickly made promises have only yielded some of the desired results. Turkey remains unsatisfied with the amount of money it received and the lack of visa liberalisation in actuality compared to what was expected. On the other hand, the EU has to deal with the blow to its reputation as normative power and its vulnerability to the threats of open Turkish borders. These disappointments make the Statement unlikely to have a long-lasting future. ⁸⁰

This thesis intends to contribute to this literature base by looking at the Statement through the crisis lens in which it was created. In Roitman’s words, this thesis will try to find what blind spot the EU created by calling the migration crisis a ‘crisis’ and how the EU-Turkey Statement fits in with the new point of view. In order to understand how the situation of ‘crisis’ affected the content of the Statement and to see how external migration management agreements changed over time, it is important to look at another external migration management agreement concluded in normal (i.e. non-crisis) times. Thus, the next section looks at the EU’s Mobility Partnerships.

2.3.3 Mobility Partnerships

Under the framework of the EU’s Global Approach to Migration and Mobility, Mobility Partnerships (MPs) can be made for cooperation with third countries on migration and asylum. ⁸¹ These informal agreements are tailor made per country, but always include arrangements on

77. Okyay and Zaragoza-Cristiani, 57-58.

78. Isaac Kfir, “A Faustian pact: Has the EU-Turkey deal undermined the EU’s own security?,” Comparative Strategy 37, no. 3 (2017): 208; Okyay and Zaragoza-Cristiani, 51.

79. Dagi, 199.

80. Dagi, 213-4.

81. European Commission, “The Global Approach to Migration and Mobility,” 4.

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mobility, readmission and visa liberalisation. This section looks at what has been written about ⁸² MPs since their conception in 2008 until now, with a special focus on the Moldova MP as the agreement to be compared to the EU-Turkey Statement.

In terms of the success of the MPs, Brouillette (2018) argues that the Mobility Partnerships succeed in exporting European norms to third countries. This is because with the implementation of projects under the MPs, socialisation and learning mechanisms are put in place. This happens, for example, through the presence of European experts in the third countries, that help diffuse European (migration) norms and values to local policy-makers. She even argues that the EU puts too much ⁸³ emphasis on the Europeanisation of its partner countries, forgetting to look at the actual consequences of the projects they put into place there. In an analysis on whether the Mobility ⁸⁴ Partnerships could form part of the solution to the multitude of problems the EU faces, Brocza and Paulhart (2015) come to a similar conclusion, arguing that the MPs are mostly a tool for externalising the EU’s borders. Such Europeanisation leads to unequal partnerships, among others ⁸⁵ with Moldova. Brouillette argues that the Mobility Partnership with Moldova is not one of equal partnership, as Moldova had to accept certain engagements (e.g. a readmission agreement) before even being considered for cooperation. Additionally, Moldovan negotiation partners were well ⁸⁶ aware that the content of the MP more closely aligns with the priorities of the participating EU member states, rather than the Moldovan priorities. ⁸⁷

In relation to such power asymmetries, Carrera and Hernández i Sagrera (2009) are perhaps the first, but certainly not the only scholars (e.g. Hampshire (2016b), Strik (2017), Tennis (2020), Lavenex and Stucky (2011)) who have pointed out that the main objective of the MPs in practice,

82. European Commission, “The Global Approach to Migration and Mobility,” 10-11.

83. Martine Brouillette, “From discourse to practice: the circulation of norms, ideas and practices of migration management through the implementation of the mobility partnerships in Moldova and Georgia,” Comparative

Migration Studies 6, no. 5 (2018): 14-15.

84. Brouillette, 17.

85. Stefan Brocza and Katharina Paulhart, “EU mobility partnerships: a smart instrument for the externalization of migration control,” European Journal of Futures Research 3, no. 15 (2015): 6.

86. Brouillette, 9.

87. Brouillette, 8.

The EU’s External Migration Management Agreements in (non-)Crisis: How the European Migration Crisis Impacted the EU’s approach to External Migration Management Agreements

Master of Arts Thesis

Euroculture

The EU’s External Migration Management Agreements in (non-)Crisis:

How the European Migration Crisis Impacted the EU’s approach to External Migration Management Agreements

X

Abstract

Table of Contents

1. Introduction

2. Framework: Crisis? What Crisis?