Abstract

The influx of asylum seekers to the European Union in 2015 have revealed the EU’s and its asylum policies such as the Dublin III Regulation to be deficient in safeguarding the right to seek asylum. Moreover, they have become responsible for engendering many human rights abuses by outsourcing their political responsibility to for-profit companies such as commercial airlines and private military security companies. Mitigation responses iterated in the EU`s Migration Agenda have been largely influenced by such private military security companies by instigating a paradigm shift stipulating the need to address a euro-centric security threat, in order to render their services paramount. Leaving the task to alleviate the plight of asylum seekers and securing a safe pathway for allowing asylum applications secondary.

How the EU’s Migration Agenda and Asylum Policy Outsource Political Responsibility And Enable Human Rights Abuses

The European Union has faced a myriad of political and humanitarian crises since its conception that it had to navigate. Particularly the refugee “crisis” during its height in 2015 and Europe’s corresponding “Agenda on Migration” and the guiding asylum policy – the Dublin III regulation (Dublin III) were the sites of contestation from both left and right. Subsequently, the European Union has concocted a two-fold system of deterrence with the aim of significantly decreasing the number of asylum seekers¹in the EU through circumventing their international human rights obligations by shifting political responsibility to for-profit companies. Whilst Dublin Regulation III rectified a lot of its predecessor deficiencies, it still operates on a disproportionate distribution mechanism that fuels xenophobic sentiments towards refugees in first-point entry states. This materialized into a militarization of the EUs borders mainly carried out by private military and security companies (PMCs) who do not just provide military and logistic services but have been incorporated in drafting the “European Agenda on Migration ”. This devises a system in which human rights protections assume a subordinate role to border protections and are outsourced to private for-profit companies resulting in a complete disregard for human rights .

The EU’s asylum policy seems to employ a deliberative conceptual framework of human rights interlaced within an eurocentric refugee protection paradigm derived from cold war times. ^{2 3} Within this world order, the aim of a Western refugee system became allowing people who were prosecuted by communist regimes to have the right to live elsewhere, and to be well cared for while a new home was arranged.⁴ From this, the 1951 Convention on the Status of Refugees (the convention) ensued and stipulated that governments will reciprocally grant refuge in their territories to those that were persecuted in their home countries due to political orientations, nationality, race, religion or being part of a particular social group.⁵ Distinctive of the convention was that it was marked by temporality and tailored towards those individuals who were prosecuted in postwar Europe. The EU’s policies on migration and asylum today mirror this when using the term “refugee crisis” to denote an unprecedented dynamic of migration flows into the EU instead of the existence of the highest number of displaced people since the Second World War. Thus solutions within the spirit of the convention, are presented as temporal and remain eurocentric. This is corroborated by Dublin III regulations in practice incompatibility with the Schengen Agreement which is even more selective in the countries it benefits and in nature not related to the asylum process.

The Dublin III regulation is the foundation of the current EU asylum system and has been ratified by a total of 32 countries and outlines criteria meant to establish responsibility with the EU member states in regards to the processing and granting of asylum claims.⁶ The criteria for warranting the asylum status within the Dublin regulation are as follows. The first criteria is if the applicant already has “ presence of a family member with refugee status in a member state”.⁷ Secondly, the applicant is a holder of “ a valid residence permit or visa in a member state” and lastly, the cause of disarray states that “the frontier of the member state that an asylum applicant has irregularly crossed” would warrant an asylum claim. Following this, it also places the responsibility of the “the member state responsible for controlling the entry of the alien” with the first member state “with which the asylum application is lodged”.

Before the Dublin III and its predecessor the Dublin Convention were implemented, European countries aimed at mitigating the refugee influx of the 1990’s unilaterally caused a race as to who would impose the most restrictive asylum policies.⁸ Given discrepancies in asylum laws, it was clear that the EU had to streamline its asylum policy. In effect the primary purpose of this new regulation was to eliminate the problems that came out of unilateral negotiations. Namely, “refugees in orbit” and “asylum shopping”.⁹ The introduction of a first-entry point policy was to ensure that no refugees would remain in orbit but would ensure that some member state would take their case under their jurisdiction. Similarly the first-point of entry rule is proposed to solve the latter problem – “asylum shopping”. This was a method often employed by asylum seekers in order to apply for asylum in multiple states either simultaneously or upon rejection in order to increase their chances in getting asylum but instead caused a congesting of administrative capabilities. Thus the first-point of entry rule originated in good faith, solved the dual problem of “refugees in orbit” and “asylum shopping,” and reduced necessary state resources thus cementing itself as the cornerstone of this asylum policy.

Due to this rule, asylum seekers must first reach a point of first entry in order to articulate a claim. With the advent of the Schengen Agreement however, the EU managed to link Dublin III and Schengen’s EU Directive 51 and thereby exonerated itself from safeguarding transit to first points of entry. Directive 51 posits:

EU DIRECTIVE 2001/51/EC¹⁰

(1) In order to combat illegal immigration effectively, it is essential that all member states introduce provisions laying down the obligations of carriers transporting foreign nationals into the territory of the member states.

(2) Application of this Directive is without prejudice to the obligations of the Geneva Convention relating to the status of refugees.

Whilst intended to direct member states how to combat illegal immigration, it outsourced the political responisbility of warranting refugee status to commercial carriers. In practice, even if a person would qualify as a refugee, and thus exempt from this according to the Geneva Convention, would still have to provide all necessary documentation or they would not be allowed to board any carrier as the carriers themselves would be held financially liable to return these persons in case of an unsuccessful asylum application. This directrice is thus in effect the sole reason why refugees have to go through arduous journeys just to apply for asylum and bars them from safer modes of travel.

As visas would not be given, asylum seekers would try to find loopholes by applying for tourist visas that would be viable throughout the entire Schengen area and then apply for asylum in the country of choice. Article 12 of Dublin III however, prevents this as it requires that the country that handled the tourist visa application is automatically also liable and responsible. A tool used to make sure applicants do not apply to places other than their first point of entry is the European Asylum Dactyloscopy Database or EURODAC.¹¹ EURODAC is “a system for comparing fingerprints of asylum seekers and some categories of illegal immigrants,” in order to facilitate the application of the Dublin Regulation, by determining the member state responsible for examining an asylum application through documentation of first irregular entry.¹² However, in order to circumvent this, asylum seekers have shown evidence of self-mutilation such as burning off fingertips in order to evade documentation.¹³

Along similar lines, overwhelmed states have tried to evade the same process by simply not documenting asylum seekers and paying off refugees and suggesting to apply for asylum in a different country as was the case in Italy in 2014.¹⁴ By states not registering asylum seekers they are committing gross human rights abuses as they will have no claim to any legal or economic aid. In another instance, countries are very selective in whom they deem an eligible applicant. In the case of Slovakia, asylum was only granted to asylum seekers prosecuted for their christian beliefs in their home countries thus rejecting the convention, Dublin III and other adopted human rights treaties.¹⁵

If wanting to combat political entrenchment however, one must recognize the inherent inequalities that are engendered through the Dublin III regulation that incentivizes countries to take such measures. The uneven distribution of asylum applicants to the first point of entries which happen to be outer-border countries such as Italy and Greece, “strains already overwhelmed economies and social systems”, that then give rise to unacceptable health standards in overfilled camps such as in Moria, Greece.¹⁶In addition, it promotes xenophobia and racism which makes the situation for asylum seekers ever so precarious. Due to this policy, states on the outer borders were completely ill-equipped in dealing with such an influx (albeit proportionally small compared to the total asylum claims) given their compromised infrastructure. Greece for instance received by far the most asylum applications from any other EU country but because other first-entry countries were facing similar economic hardships no re-location could take place. This leads to grave encroachments of human rights with “around 5,000 migrants having been revealed in an estimated 500 abandoned buildings, and more than 2,000 other properties occupied by migrants have been deemed as unfit for human habitation”.¹⁷

Instead of elevating these states from austerity measures as a means to better mitigate their hardships, or reforming Dublin III, the EU chose a different approach. Namely, to enforce border security under the helm of the European Agenda on Migration. This policy was drafted from states with the aid of PMCs and executed by these companies. Employing PMCs is an attractive alternative as they are rarely bound by international law or other legal instruments and thus in the name of European Agenda on Migration, human rights abuses may go unaccounted for.¹⁸ Large PMCs such as “Airbus”, “Leonardo S.p.A”, tailor their security services to the client with services for the EU ranging from border monitoring services to supplying floating maritime surveillance systems, arms trade and production; security and most paramount for the EU – policy research.¹⁹

In order to make themselves more lucrative, PMCs have adopted a similar strategy thatthe Bush administration took to subvert their obligations under the Geneva Convention and numerous other human rights treaties.^{20 21} By framing norms and the right to seek asylum as security threats, and as in the US, declaring wars on “terror, drugs, etc.” warrant and legitimize militarization and military responses. To corroborate the importance PMCs play in EU policy case-by-case basis PMCs may be bound to PIL or IHL more specifically but most of the time they are unbound.

Moreover, they use their clout not just to inform and influence EU migration policies to tailor them to their businesses which engulfs the EU in a symbiotic relationship with PMCs as they offer their services as a solution to a problem they manufactured.

The PMC “Leonardo S.p.A” for example, was part of the EU research programme “Horizon 2020” in which they contributed to contravening existing IHRL and IHL laws as Davitt notes by changing the definition of “irregular migrant” as seen earlier to “illegal migrant”.²³If the PMCs and the states acted pursuant to Article 31 of the Refugee Convention, the status of irregular migrants would allow these persons to be exempt from penalization. However, by using such language PMCs can frame irregular migrants as a security threat leaving asylum seekers exposed to their services.

In addition, the Italian company Leonardo S.p.A was deployed in Libya and through EU funding provided the Libyan coastguard with advanced technology and thereby the EU shifted the responsibility of migration control to the North African Countries and the PMCs.²⁴ Moreover, during Leonardo S.p.A’s deployment in Libya, the detention centers which were run were the sites of inhumane treatment with the extent of the involvement of Leonardo S.p.A. being unclear. If this were true, the acts would be against Article 3 of the European Convention of Human Rights (ECHR) yet Leonardo S.p.A. could only be liable if it is proven that the Italian government would be shareholders of the company.²⁵ Any other PMCs that are fully privately owned would most likely not be liable for these human rights abuses even if proven that they occured.

In conclusion, the continous legal hurdles that asylum seekers have to face to reach the EU corroborate a shift from a natural human rights conception to a deliberative account of human rights protections that rest on agreed principles. Whilst Dublin III improved from its predecessor, its link to EU directive 51 of the Schengen Agreement puts asylum seekers at risk by shifting the responsibility to commercial carries to define them as refugees. This contravenes the EU’s own obligations of warranting protection. A paradigm shift in seeing these asylum seekers as security threats largely fashioned by PMCs, warranted their services and contributed to a heavy militarization of European borders. The fact PMCs are only rarely viable for their conduct under international law, makes them attractive partners in border protection for the EU thereby allowing them to circumvent their international human rights obligations by outsourcing responsibilities both to commercial entities such as carriers and PMCs. If human rights protections want to be taken seriously, PMCs need to become liable for their conduct under IHL.

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