The unprecedented influx of refugee and migrant population witnessed in Europe since 2015,  instigated the EU to close its borders and call for international cooperation with third countries. The externalisation of migration control through cooperation with third countries was executed through a wide range of stringent measures and practices imposed to deter the prospects of third country nationals from entering the EU irregularly.

For instance, the EU and its member states signed readmission agreements with third countries, such as the EU-Turkey deal, the Italian-Libyan Memorandum of Understanding, and the Spain Morocco Readmission Agreement to ensure the readmission of migrants in an irregular situation in their countries of origin through swift procedures. Moreover, the externalisation of migration control is viewed as a unilateral state action achieved by  adopting restrictive migration policies such as increased NATO presence and FRONTEX operations in the Aegean, and the closing of borders, consequently, turning  border countries from transit to buffer zones. The situation was further compounded due to the lack of solidarity among member states to handle the so-called refugee ‘crisis’.

The new EU Pact on Migration and Asylum, introduced in September 2020, states from the outset that it constitutes ‘a fresh start on migration’. Among other regulations that concern the asylum procedures and migration management, the EU Pact also presents an opportunity to shift the narrative towards promotion of safe and legal pathways to protection. Instead of framing externalisation as a deterrence strategy involving third countries, externalisation is also viewed as cooperation with those countries to facilitate legal pathways with EU states so that those in need of protection can safely arrive in EU without resorting to illegal ways or via smuggling networks.

This blog post aims to analyse the expansion of the use of legal pathways to protection – as delineated in the EU Pact of Migration and Asylum – and how it affects EU’s policy of externalisation of migration control. Additionally, the post closely examines the intricacies of implementing legal pathways in terms of access to asylum and reintegration in the EU.

The new pact on migration and asylum

The EU Pact on Migration and Asylum focuses on three main areas: improving cooperation with non-EU countries of origin and transit in order to improve migration management; amending and updating procedures to ensure transparent allocation of responsibilities; and establishing a permanent mechanism for solidarity.

The EU Pact and its accompanying Recommendation draws attention towards the importance of the development of legal pathways to protection. Herein, the legal pathways extend beyond resettlement programmes and are inclusive of humanitarian admission programmes such as community sponsorship, humanitarian visa, family reunification, education and labour mobility schemes such as university and employment corridors. Essentially, the pathways are not only fundamental for those seeking international protection but also those in search of better work and education opportunities in the EU.

The EU Pact highlights the EU’s focus on the aspects of integration of displaced persons by facilitating access to work and education (paras. 19-22 of the Recommendation) and by implementing the community (para. 13) and family sponsorship programmes. The EU Pact’s primary objective on this issue is to set the frame, the pledges, and operational and resource support, to ensure that member states promote legal pathways in a more structured and harmonised way. Additionally, the EU is required to ensure that the promotion of the legal pathways is accompanied with operational support, funding, incentives, enhanced monitoring, cooperation and dialogue between the states. While the Covid-19 pandemic is a significant obstacle in the implementation of the legal pathways, the Recommendation (para.17) proposes that states ensure continuity and renewed growth of the current operations, through remote interviews.

It appears the EU Pact aims to develop a common approach on legal pathways and establish an ambitious EU scheme that shares responsibilities and promotes durable solutions for those seeking protection. However, it is also conspicuous that the EU seeks to achieve this by imposing ‘soft’ rules on their member states, where the states have no legally binding rules to implement legal pathways except for the institutional and organisational framework on resettlement. This further implies that the implementation of the pathways shall be based on the political commitments of the states.

On that account, it remains to be seen how this novel strategy presented in the EU Pact would affect the practice of the EU externalisation policy. Specifically, how the EU will manage to change the narrative of externalisation and use it to enhance integration, bearing in mind the lack of solidarity and burden-sharing witnessed so far in most of the member states.

Examining the legal pathways to protection and externalisation

 The externalisation of the EU border controls has made it extremely difficult for third-country nationals to arrive safely and legally in European territory and seek international protection. Firstly, it has resulted in the disenfranchisement of third-country nationals who are deprived from access to safe and legal pathways and conversely, compelled to resort to treacherous routes controlled by smugglers and traffickers. Secondly, it has legitimised third countries to exercise externalised control; nevertheless, they necessarily do not have the capacity or equipment to ensure adequate protection and safeguard the rights of the third-country nationals as host countries. Thirdly, it has not absolved the EU from performing its general duties of upholding international standards with respect to the non-refoulement principle and granting international protection to those fleeing persecution and serious violations of human rights.

Regardless of externalisation being viewed as a logical response by the EU to regain border control over mixed migration flow, there are mounting concerns of human rights violations and failure of the EU to provide adequate protection to refugees and asylum seekers due to its unwavering non-entrée initiatives.

To overturn the counterproductive approach of solely regulating the migration flow at the external border, the Commission formulated a carefully-detailed strategy of legal pathways to protection by developing a common and comprehensive approach that represents fundamental tools to functional and cohesive reintegration. Some examples of enhanced integration prospects under the EU Pact are described as:

1. Streamlining family reunification

Member states facilitate access to family reunification programmes by streamlining the visa process and increasing access to information. For instance, Germany is currently operating this programme by introducing new mechanisms that help reunite families uprooted due to conflict and violence. Contrastingly, the UK New Plan for Immigration exploits the rhetoric of legal pathways by restricting access to asylum and full benefits of 1951 Refugee Convention (including family reunification and long-term residence) only to those arriving to the UK through the ‘safe and legal pathways’, thereby declaring those who arrive on their own as inadmissible.

2. Sponsorship programmes

The community sponsorship programme has proven to be an essential pillar of legal pathways in improving communal support and solidarity with respect to refugee integration and inclusion, reducing spaces in overcrowded resettlement centres, and working towards shifting the perception and narrative around refugees. With Canada being a precursor of this pathway, the humanitarian corridors in Italy and France are also some examples of sponsorship programmes that extend beyond family sponsorship programmes. Additionally, amidst the pandemic, Belgium and Spain have leveraged communities as active agents to support refugee resettlement by implementing this programme.

3. Education and labour-mobility schemes

Member states directly leverage the knowledge, skills and motivation of those in need of protection by enabling integration-oriented measures such as language training, scholarships and financial support, and adaptable criteria for admissions in the universities. Therefore, linking education with labour pathways would transform and resolve some of the critical challenges pertinent to social inclusion and refugee integration. For instance, Portugal and Italy have humanitarian corridors catering to student and labour pathways. So far, the newly developed model of community sponsorship and labour pathways in the EU is still underway and the demand for legal pathways far outweighs the provisions. Moreover, it is pertinent to note that these schemes are temporary in nature and do not necessarily provide a path to long-term residence.

The underlying issue for launching these programmes is that the legislative expertise of the EU is not envisioned in the Lisbon Treaty with respect to established numbers and qualifications of third-country nationals who are permitted to enter. This expertise rests independently and exclusively with each member state and is discretionary in nature.

Further, the integration criteria is also likely to create further intricacies as the EU Pact remains largely silent on the needs of highly vulnerable and disadvantaged groups such as victims of torture and sexual and gender-based violence (SGBV), persons with severe health conditions, etc. The heavy reliance on soft harmonisation tools provides states with considerable leeway to tailor humanitarian responses that may affect the selection process of legal pathways for third-country nationals, depending on the actual practices at the domestic-level.

While irregular migration and anti-immigration sentiments are on the rise, it is necessary to minimise and address the shortcomings and strengthen narratives revolving around refugees’ lived experiences by highlighting their contributions as individuals and in society. To safeguard their rights, these adjustments need to be carefully reviewed and assessed on a case-by-case and country-to-country basis. Additionally, for successful implementation, it is vital to coordinate between international organisations (UNHCR, EASO) that work for the promotion of legal pathways, together with civil society organisations in both countries of origin and destination countries.

Despite being at a nascent stage, the effective expansion of legal pathways not only diminishes the prospects of secondary movement and irregular migration, but also reinforces positive experiences and outcomes of integration for those in need of protection.

Conclusion

The EU Pact on Migration and Asylum significantly shifts the narrative and expands the concept of externalisation from a deterrence point of view to a refugee-centred policy framework. As legal pathways are directly accessible to those seeking protection, the externalisation of integration strengthens their agency and autonomy in securing their own pathways. Therefore, the expansion of legal pathways is a progressive approach that secures dignified entry, and demonstrates global solidarity and equitable responsibility sharing among a strong network of multiple stakeholders.