Mariana Gkliati, Assistant Professor, Tilburg University
The article explores the failures of EU externalisation policies in managing migration. The study highlights the limitations of externalisation practices in reducing migrant arrivals and dismantling smuggling operations. It delves into the structural biases and Eurocentrism embedded in these policies, leading to unequal power dynamics and resistance from third countries. By analysing factors such as the agency of partner countries, social dynamics of migration, and hidden diplomatic agendas, the research uncovers key phenomena challenging the effectiveness of EU externalisation policies. Through a comprehensive examination of multidisciplinary literature, including political science, international affairs, law, and civil movement studies, the study sheds light on the complexities and shortcomings of externalisation as a tool for migration management.
1. Introduction: Externalisation in the EU’s toolkit
Externalisation is experiencing its age of glory in Europe, with Africa playing a major role in EU cooperation for migration management. The UK Supreme Court rejected the Rwanda deal, only for it to be pushed through with revised legislation. The German Parliament is currently debating a similar Rwanda deal, while the Albanian Parliament has approved an asylum deal with Italy. Team Europe is conducting Migration Partnerships with Tunisia, Mauritania, Morocco, and Egypt, in addition to prior agreements with Libya and Turkey, which paved the way for these efforts. Embedding migration in international partnerships with third countries is an essential element of the new EU Pact on Migration and Asylum, which reinforces the existing externalisation paradigm aiming at deterrence and mobility containment. It aims to enhance cooperation with countries of origin and transit in partnerships that couple development initiatives with the reinforcement of national migration management systems and their cooperation in readmissions.[1] It further envisages a much deeper involvement of Frontex in forming and supporting new partnerships with third countries, intending for this cooperation to become operational.[2] Status agreements with Senegal and Mauritania are under negotiation, which will allow Frontex to conduct its first-ever EU border surveillance operations outside the continent. These are only the latest examples of the deterrence and externalisation paradigm that the EU has chosen to address the challenges presented by human mobility.
Despite their intense presence in the current political debate, externalised migration control practices have evolved over a long history, with early examples including the US introducing visa requirements in 1924[3] and carrier sanctions dating back to the 19th century in relation to passport controls.[4] However, it was during the 1980s that North America, Europe, and other regions significantly expanded measures to prevent irregular migration through visa regimes, carrier sanctions, and interceptions at sea or in third countries.[5] In 1999, the Tampere Conference highlighted the need for cooperation with countries outside the EU to implement the Common European Asylum System, further regionalising these practices.[6]
Research interest has grown in the last years in understanding the implications of these externalised border controls, as well as the efforts by some states to externalise asylum responsibilities through third-country processing arrangements. The term ‘externalisation’ itself is contested, with various definitions and related terms like ‘remote control’ and ‘off-shoring’ used in the literature.[7] Generally, externalisation refers to shifting state functions, normally conducted within a state’s territory, to outside its borders.
The EU aims to create a pre-border buffer zone by cooperating with third countries, extending its migration control beyond its borders.[8] Certain cooperation measures aim to develop and improve the conditions in countries of origin, but the focus is more often on preventing departures and returns rather than addressing the root causes of migration.
Externalisation measures may aim at restricting territorial access (externalisation of border management) or offshoring asylum processing (externalisation of asylum processing). Forms of border externalisation include mobility partnerships and readmission agreements. Other forms, facilitated by Frontex, may involve intelligence exchange, capacity building, or joint border surveillance operations. Migration partnerships aim to stop individuals before arrival, avoiding the need for asylum-processing deals like those with Rwanda and Albania.
The impacts of externalisation policies have been extensively discussed by legal scholars and social scientists; empirical and theoretical research in this field continues to evolve like a mycelium network spreading its roots and connecting diverse strands of knowledge. While the EU and its member states continually develop further forms of ‘proactive containment’[9], these policies have faced significant criticisms. These include their focus on securitisation, lack of emphasis on development and addressing the root causes of migration, absence of human and refugee rights safeguards, concerns about the conditionality of development aid upon cooperation in migration management, the continuation of colonial dynamics, challenges of the informal nature of such agreements, and the complexities of responsibility sharing or attempts to shift responsibility to third states, adding legal and practical complexity. By offering anti-terrorism assistance to third countries (conflating security and migration control), operationalising development aid, or promising visa liberalisation, among other means, the EU and its Member States build geopolitical alliances tailored to the EU’s priorities of mobility containment and deterrence. The EU uses carrot-and-stick incentives to engage the cooperation of the Sahel countries in realising EU migration control goals.
2. Policy Failure: Local Actor Resistance, Civil Liberties, and Instrumentalisation
Moving beyond such principled objections, the continuous expansion of externalisation policies seems to defy reason in terms of their effectiveness in reaching their goal: limiting migration to the EU. Research data contradicts the prevailing narrative that these measures will reduce or halt migrant arrivals in Europe, dismantle smuggling operations, and prevent tragedies in the Mediterranean. Instead, these policies consistently falter or lead to unintended consequences, proving counterproductive.
In ‘Why Migration Policies Fail’, Stephen Castles explores the reasons behind the persistent ineffectiveness of migration policies in achieving their intended goals, i.e. preventing unwanted flows and effectively managing immigration and integration. Castles argues that migration policies often fail due to three sets of factors: factors arising from the social dynamics of the migratory process, factors linked to globalisation and the North-South divide, and factors arising within political systems.[10] Applying this framework to externalisation policies, we observe the recurrence of key issues impeding their success, including the role of the agency of migrants of local actors, development dynamics and hidden agendas in national policies. The following sections utilise this framework to highlight three key phenomena which challenge the effectiveness of EU externalisation policies.
2.1. Active resistance, Selective Adoption, Silent Inapplicability
The EU narrative is one of cooperation, partnership, and assistance. For instance, the EU provides technical and operational ‘assistance’ to third countries so that they can better manage their borders or improve their asylum services. Can we, however, really talk about ‘assistance’ when third countries are essentially ‘assisted’ to better support EU interests and priorities concerning mobility? The new EU Pact on Migration and Asylum declares that it focuses on creating a ‘true partnership of equals’ with Africa. We need to acknowledge the dynamics that cast a shadow over the notion of ‘partnership’, including colonial continuities. It is former colonies that have now become actors in EU migration management. From an international relations historical perspective, the present state of affairs presents striking similarities with the involvement of African and Asian colonial forces on the side of colonial powers during the two World Wars. They were recruited to fight on the side and for the interests of the metropolis.[11]
Such partnerships, putting forward EU priorities, often go against national interests in the third countries, including benefits to the local economy from remittances or the ECOWAS free movement framework. These priorities can influence not only policies and practices in these third countries but also their law-making. For instance, the Sahel region of West Africa is a traditionally free-movement zone with economies heavily relying on migrants; mobility stands centre-stage both in the economy and culture. Nevertheless, in 2015 Niger, under EU pressure, was the first country in the region to introduce anti-smuggling legislation (Law No. 36/2015), which cracked down on professional activities facilitating migrant travel, for instance, by criminalising bus drivers. This is also in contrast with the ECOWAS free movement framework, which led to the law being challenged before the ECOWAS Court. As the latest political development, following the coup de etat in Niger in the summer of 2023, the new government retracted the infamous legislation breaking bonds with the EU and the ‘assistance’ – ‘partnership’ narrative.
Following Koskenniemmi’s approach that international law is shaped by various power dynamics and political interests, such policy failures can be traced back to the structural bias of seemingly objective rules.[12] EU foreign policy literature discusses Eurocentrism as a perspective that prioritises and centres European culture, values, and experiences as the universal standard while marginalising or overlooking the contributions and contexts of non-European societies. This viewpoint is often embedded in policy-making and academic discourse, leading to a skewed understanding of global history and contemporary developments. This premise justifies the European political and economic hegemony, reinforcing unequal power dynamics in contemporary international relations,[13] including the area of migration cooperation. In this Eurocentric background, the EU extends its policies, rules, and governance structures beyond its own borders. This concept is known as external governance, and it involves the EU influencing non-member countries to adopt its norms and standards. This includes the export of policies and regulatory frameworks to countries in the EU’s neighbourhood and beyond. Mechanisms used by the EU to exert its influence include conditionality (in the area of migration mainly linked to development aid and visa liberalisation), diplomatic persuasion, and the spread of EU policies through networks and partnerships (e.g. Africa Frontex Intelligence Community_AFIC).[14]
Political science and public policy literature highlight a critical oversight, i.e. the tendency to underestimate or ignore the agency of partner countries. This perspective implies that partner countries are often viewed merely as passive recipients of external policies and norms rather than as active agents with their own strategies, interests, and influence.[15] Such policy approaches fail to account for the motivations and behaviours of migrants, local authorities and other stakeholders in the third countries as part of the behavioural assumptions of policy tools.[16] In other words, the way policies are supposed to influence the behaviour of multiple actors is often overlooked. The assumption that third countries are passive recipients of EU policy proposals and can seamlessly adopt the role of border managers for the EU is challenged by the empirical reality of how these countries actively shape, resist, and adapt external influences based on their own political, economic, and social contexts. Limitations of the EU’s external governance include resistance from non-member states, the complexity of aligning different regulatory standards, and the need for sustained political and economic incentives.[17]
An emerging and fast-growing body of TWAIL and other literature considers the migration interests of states in the Global South, their agency and their diplomatic strategies,[18] their position in international law,[19] and the resistance against return and readmission cooperation for reasons mainly concerning the violence of forced returns and the loss of remittances.[20] This literature, combined with revived scholarly discussion of colonial continuities, which discusses a partial return to pre-colonial attitudes of operationalising the Global South for European objectives[21] showcases that existing policies fail to effectively take the interests and priorities of third countries into account.
Social movement studies showcase resistance at the local level against EU externalisation policies, local civil society actors’ agency and how they challenge established meanings while constructing contentious meanings. Such literature predominantly examines the role of non-state actors and local communities, as well as migrants in North Africa and the Sahel region, in responding to EU migration policies, including implementation and resistance.[22]
Responses vary widely, ranging from active forms of resistance to strategic manoeuvring and selective adoption and silent inapplicability. For instance, recent coup d’états in Mali and Niger underscore the unpopularity of migration cooperation with the EU. Historically, Mali has resisted signing readmission agreements and permitting mixed patrols to monitor borders. Furthermore, the African Union has actively opposed EU plans to set up “regional disembarkation platforms’ on African soil”. [23]
A further challenge related to the implementation of the policies, which is in the hands of third countries, concerns the local conditions on the ground. These conditions can inhibit effective implementation, even unintentionally, including a lack of implementing capacity, dysfunctional border management and asylum systems, and corruption.
2.2. Operationalisation by Authoritarian Regimes
The means chosen for border externalisation are focused on a security-based approach, leading to increasingly militarised border controls. This involves enhancing the security infrastructure of partner countries by outsourcing invasive surveillance and data processing technologies. For instance, the EU has invested EUR 11.5 million in Niger for intrusive technologies, including surveillance drones, a wiretapping centre, and an international mobile subscriber identity (IMSI) catcher.[24] Additionally, the African Integrated Border Management (IBM) system aims to connect national databases from countries like Senegal with international law enforcement agencies such as Interpol and Europol, exacerbating concerns about the misuse of sensitive personal data.
The deployment of advanced technologies and artificial intelligence, such as automated risk assessments and profiling systems, marks a significant development in this process, bringing further human rights risks and potentially exacerbating instability in the region. These measures can infringe on the civil rights of citizens in partner countries and may lead to increased emigration, especially in West Africa, where democracy and the rule of law are in decline. In fragile democracies and authoritarian regimes, such technologies can be used to suppress dissent and solidify political control over local populations. The use of these technologies to target human rights defenders has been widely documented by journalists and NGOs.[25] The UN Special Rapporteur on freedom of opinion and expression has highlighted the risk of interference with various rights, including privacy, freedom of expression, association, assembly, religious belief, non-discrimination, and public participation, often targeting journalists and human rights advocates. He has called for an immediate halt to the sale, transfer, and use of surveillance technology until regulatory frameworks that comply with human rights are in place.[26]
Currently, such regulatory frameworks are absent, and the exchange of surveillance technologies occurs with minimal scrutiny and often without human rights assessments and data protection impact assessments. In 2022, the European Ombudsman found that the European Commission had not taken the necessary measures to ensure a coherent and structured approach to assessing the human rights impacts of EUTF-supported technology transfers. [27] A year later, she criticised the inadequacies in Frontex’s human rights impact assessment before providing assistance to non-EU countries for developing surveillance capabilities.[28] Additionally, the civil rights of local populations are inadequately protected from the abuse of EU-funded technologies, as these activities fall outside the scope of the EU Data Protection Regulation, the EU AI Act, the EU Charter, and the European Convention on Human Rights.
2.3. Instrumentalisation of Migration
While the EU instrumentalises development aid and visa liberalisation to secure cooperation in migration management, third countries may do the same with their end of the bargain to advance their interests. Including third countries in the EU’s migration response enhances their bargaining power, allowing them to leverage (controlling) migration to serve domestic agendas. This practice, known as the instrumentalisation of migration, is exemplified by the May 2021 incident where 8,000 migrants attempted to enter the Spanish enclave of Ceuta from Morocco. Morocco reportedly encouraged this movement to pressure Spain during a diplomatic dispute over the medical treatment of a Western Saharan rebel leader in a Spanish hospital.[29] Another notable example is Turkey’s inconsistent cooperation in implementing the EU-Turkey deal, which was unilaterally suspended in 2023.
While the EU views the instrumentalisation of migration as an existential threat justifying the derogation of even the most basic rights, it paradoxically perpetuates this phenomenon by enhancing the role of third countries in migration management. By increasing its dependence on neighbouring and other third countries, the EU heightens its own vulnerability to coercive tactics, thereby feeding the very practices it seeks to mitigate.[30]
3. Conclusions
A review of the relevant EU foreign policy, international relations, TWAIL, public policy and political science, civil movement studies, and legal literature reveals that EU externalisation policies not only lack effectiveness but also often result in adverse unintended consequences, which can generate further migratory movements. The Eurocentric structural bias of these policies fails to consider the agency of migrants and local actors, as well as the interests of third countries, thus failing to build sustainable partnerships of equals. Resistance from local actors and ineffective implementation on the ground, the operationalisation of EU-funded infrastructure by authoritarian regimes and the instrumentalisation of (controlling) migration as diplomatic leverage for the third states represent systemic issues which impede the effectiveness of externalisation policies. To achieve a truly effective and equitable approach to asylum and migration, a comprehensive and bold rethinking of the current externalisation policies is imperative. Policymakers must embrace a decisive shift in strategy focusing on cooperation in development and the creation of legal pathways.
Footnotes
[1] Paula García Andrade, “EU Cooperation on Migration with Partner Countries within the New Pact: New Instruments for a New Paradigm?” EU Immigration and Asylum Law and Policy, December 8, 2020, https://eumigrationlawblog.eu/eu-cooperation-on-migration-with-partner-countries-within-the-new-pact-new-instruments-for-a-new-paradigm/
[2] European Commission, Communication from the Commission on a New Pact on Migration and Asylum, COM (2020) 609 final, Brussles, 23 September 2020. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0609
[3] Aristide Zolberg, ‘Matters of State’ in Charles Hirschman, Philip Kasinitz, and Josh DeWind (eds), The Handbook of International Migration: The American Experience (Russell Sage Foundation 1999) 71.
[4] John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State, 2nd ed. (Cambridge University Press, 2018), 12.
[5] Valsamis Mitsilegas, “Extraterritorial Immigration Control in the 21st Century: The Individual and the State Transformed,” in Extraterritorial Immigration Control: Legal Challenges, eds. Bernard Ryan and Valsamis Mitsilegas (Nijhoff, 2010).
[6] Christina Boswell, “The ‘External Dimension’ of EU Immigration and Asylum Policy,” International Affairs 79 (2003): 619.
[7] Compare, for example, UNHCR, ‘Note on the “Externalization” of International Protection’ (28 May 2021) para 5; Refugee Law Initiative Declaration on Externalisation and Asylum, International Journal of Refugee Law, Volume 34, Issue 1, March 2022, p. 114.
[8] Violeta Moreno-Lax and Cathryn Costello, “The Extraterritorial Application of the EU Charter of Fundamental Rights: From Territoriality to Facility, the Effectiveness Model,” in S. Peers et al. (eds.), European Union Law (2014), 1663; Agnes Hurwitz, The Collective Responsibility of States to Protect Refugees (Oxford: Oxford University Press, 2009), 75.
[9] Violeta Moreno-Lax and Mariagiulia Giuffre, “The Rise of Consensual Containment: From ‘Contactless Control’ to ‘Contactless Responsibility’ for Forced Migration Flows,” accessed July 2, 2024, https://www.unhcr.org/media/raise-consensual-containment-contactless-control-contactless-responsibility-forced-migration.
[10] Stephen Castles, “Why Migration Policies Fail,” Ethnic and Racial Studies 27, no. 2 (2004): 205–227.
[11] Eric D. Weitz, Daniel Laqua, and Stefan Martens, eds., Colonial Soldiers in Europe, 1914-1945: “Aliens in Uniform” in Wartime Societies (London: Routledge, 2009).
[12] Martti Koskenniemi, The Politics of International Law (Oxford: Hart Publishing, 2011).
[13] Floor Keuleers, Daan Fonck, and Stephan Keukeleire, “Beyond EU Navel-Gazing: Taking Stock of EU-Centrism in the Analysis of EU Foreign Policy,” Cooperation and Conflict 52, no. 3 (2016): 354-373.
[14] Sandra Lavenex and Frank Schimmelfennig, “EU Rules Beyond EU Borders: Theorizing External Governance in European Politics,” Journal of European Public Policy 16, no. 6 (2009): 791-812.
[15] Tanja A. Börzel and Gregory C. Shaffer, “Governance and Norms in a New World Order: The Contest for Global Leadership,” UC Irvine School of Law Research Paper No. 2022-13, April 20, 2022.
[16] Anne Iarason Schneider and Helen Ingram, “Behavioral Assumptions of Policy Tools,” Journal of Politics 52 (1990): 510-529.
[17] Sandra Lavenex and Frank Schimmelfennig, “EU Rules Beyond EU Borders: Theorizing External Governance in European Politics,” Journal of European Public Policy 16, no. 6 (2009): 791-812.
[18] Fiona B. Adamson and Gerasimos Tsourapas, “The Migration State in the Global South: Nationalizing, Developmental, and Neoliberal Models of Migration Management,” International Migration Review 54, no. 3 (2020): 853-882.
[19] Bhupinder S. Chimni, “Migration, Mobility and Global Justice,” Indian Journal of International Law (2018); Balakrishnan Rajagopal, “The South in International Law,” Third World Quarterly (2002).
[20] Leonie Jegen and Sarah S. Willen, “From Deportation to Readmission: The Politics of Sending Back Migrants from Greece to Turkey,” Journal of Ethnic and Migration Studies (2021); Loren B. Landau and Tanya Pampalone, “The Politics of Return: African Nationalist Policy and the Crisis of Return Migration,” African Affairs (2019)
[21]Isabel Shutes, “Post-Colonial Critique of European Migration Management: A Return to Colonial Practices?” Journal of Ethnic and Migration Studies (2019); Leonie Jegen and Franck Düvell, “Neocolonialism and Migration Control in the Mediterranean: EU External Policy and Its Implications,” Race & Class (2021).
[22] Delphine Nakache and Julien Brachet, “Migration Control and Resistance in the Sahel Region of West Africa,” African Affairs 118, no. 471 (2019): 629-654; Oliver Bakewell and Loren B. Landau, “The Politics of Border Control and Non-State Actors in Africa,” Population, Space and Place 18, no. 6 (2012): 724-737.
[23] African Union seeks to kill EU plan to process migrants in Africa https://www.theguardian.com/world/2019/feb/24/african-union-seeks-to-kill-eu-plan-to-process-migrants-in-africa.
[24] Euromed Rights, Artificial Intelligence: The New Frontier of the EU’s Border Externalisation Strategy, p. 17, https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://euromedrights.org/wp-content/uploads/2023/07/Euromed_AI-Migration-Report_EN-1.pdf&ved=2ahUKEwiDht2-k4mHAxXT9AIHHQhTBK0QFnoECBwQAQ&usg=AOvVaw3HXYZ1dF9xcJwC4NukNyhk/.
[25] MENA Surveillance Coalition: stop all surveillance tech sales to the region’s autocratic governments – Access Now, 26 July 2021, https://www.accessnow.org/press-release/pegasus-project-mena/.
[26] UNHCR, UN expert calls for immediate moratorium on the sale, transfer and use of surveillance tools, 25 June 2019, https://www.ohchr.org/en/press-releases/2019/06/un-expert-calls-immediate-moratorium-sale-transfer-and-use-surveillance
[27] European Ombudsman, Decision on how the European Commission assessed the human rights impact before providing support to African countries to develop surveillance capabilities (case 1904/2021/MHZ) | Decision | European Ombudsman (europa.eu), https://www.ombudsman.europa.eu/en/decision/en/163491.
[28] European Ombudsman, Decision on how the European Border and Coast Guard Agency (Frontex) assessed the human rights impact before providing assistance to non-EU countries for developing surveillance capabilities (case 1473/2022/MHZ), https://www.ombudsman.europa.eu/en/decision/en/178917.
[29] Reuters, Spain Vows to Restore Order after Thousands Swim into Ceuta from Morocco, 18 May 2021, https://www.reuters.com/world/europe/spain-deploys-army-ceuta-patrol-border-with-morocco-after-migrants-break-2021-05-18/.
[30] Iris Golder Lang, “The New Pact on Migration and Asylum: A Strong External and a Weak Internal Dimension?” (2022) European Foreign Affairs Review 1; Mariana Gkliati, “Let’s Call It What It Is: Hybrid Threats and Instrumentalisation as the Evolution of Securitisation in Migration Management,” European Papers 8, no. 2 (2023): 561-578.