STUDY Requested by the LIBE committee The EU Approach on Migration in the Mediterranean Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 694.413 June 2021 EN The EU Approach on Migration in the Mediterranean Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee , examines the EU approach on migration in the Mediterranean, covering developments from the 2015 refugee crisis up to the Covid-19 pandemic, assessing the effect these events have had on the design, implementation, and reform of EU policy on asylum, migration and external border control, and documenting the ramifications these changes have had on the actors who operate and are impacted by these policies, including immigration authorities, civil society organisations, and the migrants themselves. The study includes a review of the state of play of relevant EU asylum and migration legislation and its implementation, an appraisal of the situation in the Mediterranean, and a thorough examination of the external dimension of the EU migration, asylum and border policies, focusing on cooperation with third countries (Turkey, Libya and Niger), incorporating human rights and refugee law considerations and an analysis of the implications of funding allocations under the EU Trust Fund for Africa and the Refugee Facility in Turkey. The main goal is to test the correct application of EU and international law, having regard to increased allegations of human rights violations, undue criminalisation, and complicity of the EU in atrocity crimes committed against migrants at sea, stranded in Libya, or contained in Niger and Turkey. The role of EU agencies (Frontex and EASO) is also assessed alongside the bilateral or multi-lateral initiatives adopted by MS to confront the mounting challenges at the common external borders of the EU, incorporating the principle of solidarity and fair sharing of responsibility (Article 80 TFEU) as a horizontal concern. This document was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs. AUTHORS Violeta MORENO-LAX, Queen Mary University of London (UK) (scientific coordinator) (chs 1, 4, 6 & 7 and section 5.4.1) Jennifer ALLSOPP, Harvard University (USA) (ch 5: except section 5.4.1 and Annex: Table I) Evangelia (Lilian) TSOURDI, Maastricht University (The Netherlands) and Odysseus Network (chs 2 & 3: sections 2.1, 2.3, 3.1, 3.3, 3.4, and 3.5) Philippe DE BRUYCKER, Université Libre de Bruxelles (Belgium) and Odysseus Network (chs 2 & 3: sections 2.2, 2.4, 2.5, and 3.2) With assistance by Andreina DE LEO, Maastricht University (The Netherlands) (ch 6, especially section 6.6 and Annex: Tables I and II) ADMINISTRATOR RESPONSIBLE Marion SCHMID-DRÜNER PEER REVIEWERS Alessia DI PASCALE, State University of Milan (Italy) Paula GARCÍA ANDRADE, Pontifical University of Comillas ICAI-ICADE (Spain) Jean-Pierre GAUCI, British Institute of International and Comparative Law (UK) Meltem INELI-CIGER, Suleyman Demirel University (Turkey) Daniel THYM, University of Konstanz (Germany) EDITORIAL ASSISTANTS Justin McCANN and Barry LYSAGHT, proof-readers. Elona BOKSHI, Odysseus Network. EDITORIAL ASSISTANTS Monika Laura LAZARUK LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies. To contact the Policy Department or to subscribe for updates, please write to: Policy Department for Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels Email: [email protected] Manuscript completed in June 2021 © European Union, 2021 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © Cover image used under licence from stock.adobe.com The EU Approach on Migration in the Mediterranean CONTENTS LIST OF ABBREVIATIONS 6 LIST OF FIGURES 11 EXECUTIVE SUMMARY 12 1. INTRODUCTION 22 1.1 Rationale and Objectives 22 1.2 Scope and Structure 23 2. STATE OF PLAY OF EU LEGISLATION: A NEW PACT ON MIGRATION AND ASYLUM 26 2.1 Introduction 27 2.2 Legal Migration policy 28 2.2.1 Family Reunification 28 2.2.2 Long-Term Residence 30 2.2.3 Labour Migration 32 2.3 Asylum Policy 37 2.3.1. Substantive Legislative Acquis 38 2.3.2. Responsibility Allocation 40 2.3.3 Legal entry channels 42 2.3.4 Externalisation of Protection Obligations 46 2.4 Return Policy 47 2.5 Conclusion 48 3. SITUATION AT THE EXTERNAL BORDERS OF THE UNION AND RECENT TRENDS IN THE MEDITERRANEAN: FROM THE 2015 CRISIS TO THE COVID-19 PANDEMIC 51 3.1 Introduction: Migration at the Borders - State of Play 52 3.2 The Effect of Covid-19: An Overview 53 3.3 Impact of the Principle of Solidarity and Fair Sharing of Responsibility in MS Responses: A Critical Assessment 56 3.4 EU Agencies at the Forefront of Policy Implementation in the Mediterranean 59 3.4.1 Legal status quo 60 3.4.2 Key Trend: Joint Implementation 61 3.2.3 Key Trend: Monitoring Functions 63 3.2.4 Challenges and European Parliament’s Role 64 3.5 Conclusions 68 4. MARITIME SEARCH AND RESCUE (SAR) 70 4.1 Introduction 71 4.2 SAR Obligations and Human Rights Duties Applying at Sea 72 4.2.1 SAR Obligations of Flag States 72 PE 694.413 3 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs 4.2.2 SAR Obligations of Coastal States 73 4.2.3 SAR Obligations under EU Law 74 4.3 SAR Capacities and Infringements since the ‘Refugee Crisis’ 76 4.3.1 Frontex-coordinated Operations: Triton, Themis and Poseidon 76 4.3.2 EUNAVFORMED Operations: Sophia and IRINI 79 4.3.3 Member States’ Actions: MoUs with Libya and Pushbacks to Turkey 80 4.4 Proposed Changes: The Common European Approach to SAR 83 4.4.1 The SAR Recommendation: Policing Humanitarianism 84 4.4.2 Disembarkation and Relocation 85 4.4.3 Pressure, Crisis and Force Majeure Situations 88 4.5 Conclusions 89 5. THE CRIMINALISATION OF HUMANITARIAN ASSISTANCE 92 5.1 Introduction 94 5.2 Context: An Acute Humanitarian Need 94 5.3 The Facilitators Package 96 5.4 Guidance on Facilitation in the Commission’s New Pact on Migration and Asylum 98 Guidance on the Implementation of EU Rules on Definition and Prevention of the Facilitation of Unauthorised Entry, Transit and Residence 99 5.5 The Response of International Organisations 100 5.5.1 The UN 100 5.5.2 The Council of Europe 102 5.6 Recent Developments in the Policing and Criminalisation of Humanitarian Assistance 102 5.6.1 Merchant Vessels and SAR NGOs: The case of Mare Jonio 103 5.6.2 Italy 104 5.6.3. Greece 109 5.6.4 Malta 111 5.6.5 The Netherlands 112 5.6.6 Germany 112 5.7 Exporting Criminalisation of Humanitarianism? 113 5.8 The EU Response 113 5.9 Civil Society Response 114 5.10 Conclusion 115 6. COOPERATION WITH THIRD COUNTRIES: THE EXTERNAL DIMENSION OF MIGRATION AND ASYLUM POLICY 118 6.1 Introduction 119 6.2 External Cooperation with Third Countries: An Overview 120 6.3 The EU-Turkey Statement 122 4 PE 694.413 The EU Approach on Migration in the Mediterranean 6.3.1 The post-Statement situation in Greece 124 6.3.2 The post-Statement situation in Turkey 126 6.4 Cooperation with Libya 129 Human Rights Implications 131 6.5 Cooperation with Niger 134 Human Rights Implications 137 6.6 Financial Tools: The Facility for Refugees in Turkey (FRT) and the EU Emergency Trust Fund for Africa (EUTFA) 140 6.6.1 The legal framework 142 6.6.2 Assessment of the FRT’s compliance with the relevant requirements 145 6.6.3 Assessment of EUTFA’s compliance with the relevant requirements 147 6.6.4 Assessment of EUTFA funded actions in Libya and Niger 150 6.6.5 General considerations going forward 153 6.7 Conclusions 155 7. CONCLUSIONS AND RECOMMENDATIONS 159 7.1 CONCLUSIONS 159 7.2 RECOMMENDATIONS 160 REFERENCES 167 1. Literature 167 2. EU Documents 178 3. Treaties, Legislation and Soft Law Instruments 189 4 .Case Law and Jurisprudence 194 5. National and International Organisations 196 6 .Non-Governmental Organisations 200 7. News Outlets 203 ANNEX 210 TABLE 1: LIST OF SAR NGO BOATS ACTIVE IN THE MEDITERRANEAN AND AEGEAN, 2015 – 2021 210 TABLE 2: FINANCIAL INSTRUMENTS OF THE EXTERNAL DIMENSION OF THE EU ASYLUM AND MIGRATION POLICY 216 PE 694.413 5 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs LIST OF ABBREVIATIONS ACP African, Caribbean and Pacific Group of States AFIC Africa-Frontex Intelligence Community AFSJ Area of Freedom Security and Justice AIDA Asylum Information Database AMIF Asylum, Migration and Integration Fund ARIO Articles on the Responsibility of International Organizations APD Asylum Procedures Directive ARCI Associazione Ricreativa e Culturale Italiana AST Asylum Support Team AU African Union CEAS Common European Asylum System CFR Charter of Fundamental Rights CFSP Common Foreign and Security Policy CJEU Court of Justice of the European Union CoE Council of Europe CoC Code of Conduct CSDP Common Security and Defence Policy DCI Development Cooperation Instrument DCIM Department to Combat Illegal Migration DEVCO