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EU’s new migration pact portrays irregular migrants as debased, undeserving and possibly criminal

It’s not unreasonable to ask why those seeking international protection do not come through regular means, instead of being underhand about it – but there are good reasons why

Tombs at the newly renovated cemetery dedicated to refugees drowned while trying to cross to Europe in the Aegean sea, near Kato Tritos village on the Greek island of Lesbos. Photograph: Manolis Lagoutaris/AFP via Getty Images

Ciara Smyth
Wed Apr 24 2024 - 06:00

The European Parliament has given the green light to the adoption of the new EU pact on migration and asylum and Helen McEntee has signalled that Ireland will opt in. The impetus behind the new pact and Ireland’s endorsement of it is the increase in the number of irregular migrants seeking asylum in the EU.

More than one million people applied for asylum in the EU in 2023 – down on the nearly one and a quarter million that applied during the so-called “crisis” of 2015 but still significantly up on 2022. Ireland received 13,600 applicants in 2023, which is also a significant increase on previous years, but still only 1.2 per cent of the number received by the EU overall. The EU pact clamps down on irregular migration – hence the appeal.

The pact is a complex policy document, brought into practice via 10 or so pieces of EU legislation which will soon be adopted at EU level. Member states will then have two years to prepare corresponding domestic legislation. The pact’s focus on irregular migrants deserve serious attention.

It will make it extremely difficult for irregular migrants to claim and/or be granted international protection. Anyone detected irregularly entering the EU at the border, or detected in-land having already entered or disembarked following a rescue at sea, is screened to see whether they have permission to enter the EU. This creates an excised zone where people are considered not to be in the EU even though they are in the EU, making the applicability of fundamental rights unclear. Anyone seeking international protection is then placed in a border procedure, where they can be detained. The EU anticipates that about 120,000 people will be detained annually.

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The border procedure may prevent a protection application from being examined on the basis that the applicant passed through a “safe third country” outside the EU and can claim protection there. Or it may fast-track a protection claim by dispensing with the usual procedural guarantees (like adequate time to get documents or consult a lawyer) because the applicant comes from a “safe country”. The problem with safe country concepts is that they are rarely safe. For example, during the 2015 crisis, the EU considered that Turkey was a “safe third country” even though the Turkish practice of forcing Syrians back over the border to Syria was well documented.

[ Migration system may be tightened over spike in international protection applicants ]

Nonetheless, targeting irregular migrants may seem reasonable and necessary to many people. Why do people seeking international protection not come through regular means, instead of being underhand about it? The ease with which people from the “Global North” – defined as nations characterised by a high level of economic and industrial development, typically located to the north of less industrialised nations – can travel the world gives the impression that regular mobility is open to all. But many people from countries in the Global South – those with a relatively low level of economic and industrial development – do not hold a passport, do not have time to get one before they flee, or can’t risk revealing their intentions to the state by applying for a passport, even assuming passport services are available.

It’s worth noting that countries that produce asylum seekers are “visa required” for that reason – nationals must apply for a Schengen or Irish visa, which they are invariably denied because it is anticipated that they will make an asylum claim. For example, all five of Ireland’s top asylum countries are on Ireland’s visa blacklist – this includes Afghanistan and Somalia. So protection applicants who have no choice but to travel irregularly are punished for doing so.

Another reason that targeting irregular migrants may seem justifiable is the suspicion that they are economic migrants who are abusing the asylum system to gain entry to the EU. The EU has been actively promoting this narrative since the Syrian crisis in 2015. And although some irregular migrants may well be economic migrants, a look at the top countries of origin of international protection applicants in the EU and in Ireland reveals that most come from dangerous countries, where persecution and/or armed conflict are rife. The top five countries of origin in the EU are Syria, where the war is ongoing, Afghanistan, where the Taliban rules; Turkey which, thanks to the EU-Turkey deal is a major asylum-hosting country, but nonetheless has a dark human rights record of its own; Venezuela, from which more than seven million people have fled since the collapse of the economy and social order in 2014; and Colombia, where the peace process remains fragile and paramilitary violence continues.

Neither is there clear blue water between a refugee and an economic migrant. A refugee can flee because of persecution but choose a destination country because of language, diaspora, or generally because it offers the best prospects for integration. An economic migrant may be escaping poverty, but that poverty may be caused by armed conflict, human rights violations or wider structural issues, including climate change, which is largely attributable to the Global North. To complicate matters further, the definition of a refugee in international law is extremely narrow and omits many forcibly displaced migrants. It should not be concluded that because someone is not recognised as a refugee they are “just” an economic migrant. In any event, “economic migrant” is hardly a dirty word – although it is fast becoming one. Our own history of emigration should be testament to that.

[ Immigrants and the economic blame game ]

The focus in the pact on the EU borders is not accidental. The EU has to double down on the control of its external land and maritime borders because key border states – Greece, Italy and Spain – are under severe pressure. But the pressure is not so much a function of the number of irregular migrants entering those states as the fact that the infamous Dublin regulation creates a bottleneck there.

If people move on irregularly to other EU member states (do an image search of the conditions for asylum seekers in Greece, Spain and Italy, and you will readily understand why they do), they are sent back. The new pact does not reform this, although it appends on a highly complex and probably unworkable “solidarity mechanism”. Since the pact fails to adequately diagnose and remedy the real problem, it uses irregular migrants as a scapegoat. Portraying people as debased, undeserving and possibly criminal leads to a debased response. The new pact certainly delivers on this. Ireland would do well to stay away from it.

Dr Ciara Smyth is a lecturer in the School of Law and programme director of the LLM in International Migration and Refugee Law and Policy at the Irish Centre for Human Rights, University of Galway

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