On Wednesday 10th April 2024, the bodies of three girls were recovered off the Greek island of Chios.[1] They drowned after a boat carrying migrants from Turkey to the EU ran into rocks. Another, fourteen people, including eight more children, were rescued. On the same day as this tragedy occurred, the European Parliament passed the Pact on Migration and Asylum which will introduce major changes to the current EU’s migration law including a “fast-track” (or “border procedure”) for asylum-seekers coming from third countries deemed to be safe, as well as a new “solidarity mechanism” amongst EU member states.[2] In total 10 legislative texts were adopted by the Parliament intended to speed up asylum procedures, improve identification at arrival, and strengthen vulnerability and health checks for people entering the EU irregularly. It has been described as “a set of new rules managing migration and establishing a common asylum system at EU level which delivers results while remaining grounded in our European values”.[3] The first two regulations come into immediate effect in June 2024 while the other four directives will be incorporated into EU member states’ domestic laws by 2026.[4]
Whilst in negotiations since 2015 and set to become law in two years’ time, this Pact is more of the same, or “old wine in new bottles”, as one EU commentator has described it.[5] Increasingly since the 2015 movement of refugees from the Syrian region into the EU, there has been growing use of securitisation approaches to manage immigration from outside Europe. This has included an increase in pushbacks and policies aimed to deter migrants resulting in subsequent deaths at the EU’s borders. The Pact continues to prioritise a security and deterrence approach over fundamental rights and has been widely criticised by NGOs and migrant rights advocates.[6] Below, we provide an overview of some of the policy approaches the Pact entails and how such similar approaches to asylum in the EU have already faired, and we set that in the context of tyranny.
Tyranny, albeit terms like authoritarianism or illiberalism, are often preferred monikers, is a possibility that must always be accounted for. Over the past decade it has been increasingly invoked, yet the sanguinity of Western liberal politics, regards it mainly as a concern for the Other, meaning that it is elsewhere. It’s particularly gendered content, often entirely ignored. There is no one clear definition, but tyrannies are legally and politically illegitimate, rule by law subsists, there is silence or an absence of contestation, often produced through fear, where that fear is also a form of governance but where some group, often the tyrant, their cronies and followers, make gains. Tyrannies are beneficent, there are always some making gains within the system, and some the tyranny will want to court, they work at any scale, including the transnational, they often include imperial legal practices, and include, as Arendt suggested, ‘rule by nobody’ where technocracy and bureaucracy offer a shield to the cruelty that persists. Gender is often characteristic, from the exclusion of women from decision making to those subject to the first, and often persistent harms. In the following sections, we outline the ways in which those who should be first to protected are the subject to tyrannical practices.
The first clear critique would be to say, well the EU is not a tyranny, and one practice ought not to condemn a whole order. But that is how we allow tyrannies to emerge, to pretend that isolated practices at the borders, or historically across empires and colonies, did not contaminate the core legal and political order. That the treatment of women, children and vulnerable groups is not the test of a system’s potential move towards tyranny, but here we suggest that yes, it ought to be.
Biometrics and Data Processing
The first iteration of tyrannical governance is the use of ‘rule by nobody’ through bureaucratic and technocratic practices. Migrants will be subject to a toughened pre-entry screening procedure within seven days of arrival, which would include ID and health checks.[7] Biometric data for any migrants aged six or older will be collected and there will be a mechanism to respond to large increases in arrivals.[8] This expands the EU’s biometric databased for asylum seekers (EURODAC[9]) to included face photos and biographical data of anyone aged 6 and above. Previously it only had the power to take fingerprints. It will also be easier for police to access the database.[10]
All the while, there is little in the way of adequate oversight or independent accountability of these border processes. The independent border monitoring mechanism (IBMM) proposed by the European Commission[11] has only a narrow mandate of monitoring screening processes, leaving unmonitored several other instances where human right violations can, and do, take place, including in detention centres. The norms we expect within a rule of law system, of access to adequate judicial systems, are made much harder, a clear extension of the forms of counter-terrorism processes, or the Guantanmoisation of ‘empty’ legal spaces, specifically created to exclude the rule of law.
Asylum and migration management regulation (AMMR) will be an extension of the Dublin Regulation by requiring asylum applicants to be made in the first member state they enter.[12] This will maintain pressure on Greece and Italy. The AMMR will allow transfers if the applicant has family ties, prior residency or education in another member state.[13]This system favours the core over periphery within the EU itself, privileging a second internal border relying on those states’ beneficence rather than solidarity.
Fast-tracking asylum claims
The Pact introduces screening at EU borders to channel international protection claims into either a traditional asylum procedure, a fast-tracked process, or a return process.[14] Those arriving from a country where less than 20% of people who apply for asylum have their claims approved will be automatically referred to the fast-track process which will be decided based on country-of-origin information, rather than an individualised assessment. Those whose asylum claim is refused will be detained pending deportation, despite the EU’s own data showing how difficult it is to achieve returns in practice.[15] Here again we see a form of ‘rule by nobody’ were statistics take over from human decision-making. This 20% is particularly problematic for those subject to often underplayed or unrecognised harms such as women or LGBTQ+ people. That less than 20%, in an already rigged system are recognised, does not make gendered harms, which exist everywhere, less likely or believable. In such a system, these groups are silenced, they’re stories ‘fast-tracked’ and emptied of their value.
Flexible Solidarity System
Beneficence is baked into the system. Those states undertaking ‘solidarity’ do so when and if they choose to, and even when they choose to do so, out of altruistic political decision-making, there are the others who benefit from doing nothing. The introduction of a ‘flexible solidarity system’ will allow states to choose between taking responsibility for asylum applicants through relocation, making financial contributions, or providing operational support. States who do not want to admit asylum applicants to their territory can pay €20,000 per person into a common fund for repatriation, paying one’s way out.[16] A mandatory quota system for the relocation of asylum-seekers was introduced after the 2015 so-called ‘refugee crisis’, but Hungary, the Czech Republic, and Poland refused to participate.[17]
In practice, this will allow member states to choose between granting financial support or adopting new voluntary schemes for resettlement of refugees from third countries.[18] States will also have the option of funding projects in third countries, which in practice could result in an uptake of externalisation as a strategy, including signing off on more deals with 3rd countries that are renowned for poor human rights records. This off-site process also maintains the silence of these groups, they literally go unheard and unseen by Europeans. The Pact also introduces a mechanism that sees member states on the external borders of the EU able to send people to other EU member states or receive payment from member states instead. The Pact also contains an emergency measure that can suspend the right to seek asylum in a member state, under a crisis regulation.[19] Overall, the requirements for when this regulation can be invoked are not very clear.
This entire process risks enabling a pick ‘n mix system to be created, where states get to choose the ‘deserving’ and ‘undeserving’ refugee which inevitably will be intermixed with racial, civilisational religious, homophobic and gendered assumptions and prejudices about which groups a state ‘wants’ and who they would prefer to pay not to have.
Criminalisation
The EU Pact comes under a broader raft of policies and laws that effectively criminalise asylum and those who are seeking asylum or supporting individuals in need of asylum in Europe.[20] This feeds into the rule by law system, by establishing a system outside the norm for criminalisation, where basic practices of self-preservation place you beyond the scope of safety and the law.
For example, in January 2023, the Italian government passed a decree on Search and Rescue (SAR) operations which has limited the ability of SAR NGOs by making it illegal for them to conduct multiple rescues in the same mission as well as making it essential that they disembark “without delay”.[21] This has reduced rescue capacity when rescue capacity was already inadequate. Criminalisation is not a recent issue, however. A report published with the support of Alarm Phone in October 2021 showed that since 2011, Italy had criminalised thousands of individuals for driving migrant boats across the Mediterranean Sea.[22] Boat drivers face criminalisation and harsh penalties.[23] Such cases of which there are many, are part of a broader criminalisation of the asylum process across Europe, including criminalising humanitarian responses to irregular migration. Criminalisation of acts of humanity, of acts of kindness, of care and solidarity. Making cruelty the accepted legal norm by which we should act.
Pushbacks
Pushbacks, illegal under international human rights law, have been an ongoing concern over the last decade, resulting in several applications to the European Court of Human Rights (ECHR) on behalf of victims. In Safi and Others v Greece (2022) the Court found Greece in breach of the right to life (Article 2 of the ECHR) for pushing migrants and asylum seekers’ boats back towards Turkey, where they had crossed from. A further eight cases were communicated to the Greek authorities as of December 2022, in light of 32 applications brought by 47 asylum seekers claiming to have been pushed back from the Greek islands towards Turkey.[24] The cases communicated to the Court include a Syrian family with small children being held in detention in the border guard station and then pushed back to Turkey from Greece, and unaccompanied minors from Afghanistan pushed back into the sea. They claim this treatment violated several of their human rights including the right to life. The Council of Europe anti-torture committee has also raised concerned following the monitoring of widespread and coordinated push back efforts by EU states to deter migrants.[25]
However, Greece is not the only country in the EU to be accused of violent pushbacks. A report by Human Rights Watch in 2021 documents pushbacks by Polish border guards at the Polish Belarus border, sometimes violently and without due process.[26] There has also been documented violent pushbacks along the Balkan route, and a case at the European Court of Human Rights against Croatia, where the Court found multiple violations of the Convention concerning the push-back of an Afghan family at the Croatian-Serbian border, which also led to the death of one of the applicants, a six-year old Afghan child.[27] Frontex suspended all its operations in Hungary, following a ruling by the European Court of Justice (ECJ) that found Hungary had violated EU law by restricting access to asylum and pushing migrants back into Serbia, effectively making it impossible for migrants to apply for asylum.[28]
Tens of thousands of asylum seekers and migrants are pushed back from EU borders by European security agencies, “often carried out secretly in remote border areas where watchdogs and rights groups have a hard time keeping track”.[29]This reporting led to the resignation of the Frontex Director, Fabrice Leggeri in April 2022.[30]
UNHCR has said that push backs are becoming so commonplace they ‘risk becoming normalised and policy-based’.[31]As Keady-Tabbal (PhD student at Galway Uni) points out, however, enabling some of the impunity that surrounds this practice, is that “multiple, often overlapping legal frameworks that apply to pushbacks and the governance of borders, however, leave room for states to muddy the legal waters by emphasising their commitment to controlling who enters their territory over their human rights obligations”…. “[W]hen laws regulating border control are read in isolation, human rights obligations appear secondary,” she said.”[32]
Each of these is clearly an act that runs against the rule of law. It creates an exceptionalism for certain kinds of illegality where the normal systems of law-making and oversight are side-stepped. Rule by law is often an attribute of various kind of global law mechanisms, what is particularly insidious here is that it is aimed at the very groups who were intended to be taken out of the gaps of international legal protection because we know what happens when we abandon large groups of people, they often die or live in systems of inhumanity. Yet, these rule by law spaces are increasingly seen as the norm.
The EU externalisation agenda
While the EU Commission presents the externalisation agenda as having objectives such as addressing root causes of irregular migration and combatting smuggling networks as its core,
“externalisation” is a policy agenda by the EU that attempts to prevent migrants and refugees from accessing EU territory in the first place, effectively transferring their legal obligations to neighbouring states (with extremely poor human rights records) through agreements that outsource Europe’s border control or certain parts of the asylum process in exchange for money (including ‘development aid’). A number of financial instruments facilitate the implementation of the external dimension of the EU policy in the areas of asylum and migration.[33]
Adopted in 2011 by the Commission, the Global Approach to Migration and Mobility is the overarching framework of the EU’s external migration and asylum policy. It defines how the EU conducts its policy dialogues and cooperation with non-EU countries, based on clearly defined priorities. It is embedded in the EU’s overall external action and includes development cooperation.[34] Its main objectives are to better organise legal migration, to prevent and combat irregular migration, to maximise the development impact of migration and mobility, and to promote international protection. The Neighbourhood, Development and International Cooperation Instrument – Global Europe (NDICI – Global Europe), established by Regulation (EU) 2021/947,[35] brings together most of the EU’s external funding instruments that existed as separate instruments in the previous budget period (2014-2020). It amounts to EUR 79.5 billion and includes an indicative 10% spending target in relation to migration.
An example of externalisation is the EU-Turkey deal. In that the European Council and Türkiye reached an agreement in March 2016 aimed at reducing the flow of irregular migrants into Europe via Türkiye. Under the agreement, all new irregular migrants and asylum seekers arriving from Türkiye on the Greek islands and whose applications for asylum have been declared inadmissible should be returned to Türkiye.[36] Also, for each Syrian returned to Türkiye, another Syrian should be resettled in the EU, in exchange for further visa liberalisation for Turkish citizens and the payment of EUR 6 billion under the Facility for Refugees in Türkiye, until the end of 2018.[37] According to the Commission’s last Progress report on its implementation, in 2019 the statement played a key role in ensuring that the challenge of migration in the eastern Mediterranean was addressed effectively.[38] However, Amnesty International described the deal as being one of “failed policies which have resulted in tens of thousands of people being forced to stay in inhumane conditions on the Greek islands, and put refugees at risk by forcing them to stay in Turkey.”
In July 2023, the Commission signed a Memorandum of Understanding with Tunisia. The EU has also signed deals with Libya, Morocco, Egypt and Sudan.
There is evidence that the EU money, some $200 million given to the Sudanese government to stem migration from African to Europe (the “Khartoum Process”) is being used by local government departments complicit or even actively involved in egregious human rights abuses.[39] The Khartoum Process is a platform for political cooperation between the EU and several countries within the Horn of Africa aimed at improving “cooperation on migration and mobility, while identifying and implementing concrete projects to address trafficking in human beings and the smuggling of migrants.”[40]
There is also recent evidence that this European money, has resulted in tens of thousands of migrants being dumped in the desert or remote areas each year to prevent them from coming to the EU.[41] Investigation by Lighthouse reveals that the EU has not only known but in some cases being directly involved in “systematic racial profiling detention and expulsion of Black communities across at least three North African countries”.[42] There report showed evidence of the Moroccan paramilitary auxiliary forces, funded by the EU, rounding up African migrants.[43]
The EU’s growing dependence on non-EU states, most of which have concerning human rights records, has grave implications for refugee protection including preventing access to protection for those who need it and undermining the EU’s own objectives and credibility as an external actor in human rights and in terms of development assistance. Yet, the EU has intentions to expand its externalisation agenda given that a key initiative presented in the New Pact on Migration and Asylum is promotion of tailor-made and mutually beneficial partnerships with non-EU countries in the area of migration. [44]
Europe has long been adept at using imperialist legal techniques to establish Janus faced laws with one system at home and another externally. Many of these agreements are with former colonies, with European states using their Global North positionality and their wealth, at least some of which derived from or continues to benefit from the unequal nature of the global legal economic order to establish these systems. It knowingly uses law to place the most vulnerable beyond Europe’s legal oversight and encourages and pushes other states, particularly those in North Africa, to treat these vulnerable people harshly. All the while claiming to be a leader in the creation of global human rights mechanisms and often critiquing these same states for human rights violations. This is not a new tactic, it has simply been repurposed for the 21st Century.
Conclusion
In an era where the term ‘illiberal constitutionalism’- an oxymoron – is often invoked to describe the practices of individual states, we need to think about where else tyranny or tyrannisation is underway. The ways in which those who are the most vulnerable are treated is often a good litmus test, and how the EU has decided to treat those seeking its protection should make us all stop and catch our breaths. The use of rule by nobody, of beneficence, of gendered systems, of fear and silence, of rule by law and imperial legal practices should make us stop and consider what it tells us about the legal order we inhabit. It is only hypocrisy combined with a delusion of superiority that would lead anyone to think that it is not about them, tyranny is about us all.
Prof Aoife O’Donoghue’s works at Queen’s University Belfast, her work critically examines how legal structures enable or prevent states, institutions and individuals to (not) act and the ramifications of such actions. Encompassing all areas of public law, including international and domestic, Aoife uses feminist legal theory, law and literature, prefiguration and legal history alongside tyranny and utopias to consider and challenge accepted narratives about what the law is or could be.
Amanda Gray Meral is a PhD researcher at the School of Law, Queen’s University Belfast, her thesis critically explores refugees, work and international law.
[1] Three Girls Die After Migrant Dinghy Hits Rocks on Chios, Greece – GreekReporter.com
[2] Pact on Migration and Asylum – European Commission (europa.eu)
[3] Managing migration responsibly – European Commission (europa.eu)
[4] Common Implementation Plan to turn the Pact on Migration and Asylum into a reality – European Commission (europa.eu)
[5] ‘Old wine in new bottles’: the EU Migration Pact amplifies old, toxic narratives (euobserver.com)
[6] See for example: The New Humanitarian | EU doubles down on deterrence with new migration pact
[7] MEPs approve pre-entry screening procedure | News | European Parliament (europa.eu)
[8] Update of EU fingerprinting database – Consilium (europa.eu)
[9] EURODAC (European Asylum Dactyloscopy Database) | Knowledge for policy (europa.eu)
[10] The Council adopts the EU’s pact on migration and asylum – Consilium (europa.eu)
[11] Mapping potential elements of an Independent Border Monitoring Mechanism in Greece – Greece | ReliefWeb
[12] A new asylum and migration management regulation – Consilium (europa.eu)
[13] A new asylum and migration management regulation – Consilium (europa.eu)
[14] MEPs endorse common asylum procedures and border returns | News | European Parliament (europa.eu)
[15] Towards a common EU system for returns | Think Tank | European Parliament (europa.eu)
[16] Effective solidarity with migration to the EU (europa.eu)
[17] In-depth analysis on Implementation of the 2015 Council Decisions on relocation – CEPS
[18] EU Regulation on Asylum and Migration Management endorsed | News | European Parliament (europa.eu)
[19] Ibid
[20] While no longer a member of the European Union, the UK has also engaged in criminalization of asylum seekers and those who support then. In 2024 Ibrahima Bah, a young person from Senegal was given a 9.5 year prison sentence for manslaughter for helping to steer a dinghy across the Chanel. His conviction was secured despite his please in Court that he was not the skipper, but trying to claim asylum in the UK and keep the boat from sinking. See, Ibrahima Bah: Pilot of migrant boat sentenced for Channel deaths – BBC News
[21] Italy: Proposed new sea rescue law puts more lives at risk – Türk | OHCHR
[22] Inside Italy’s Show Trial against Libyan “Boat Drivers” – Alarm Phone | Alarm Phone
[23] Alarm Phone Aegean Archive (bordercrimes.net)
[24] Greece: Pushbacks by Sea to Go Before ECtHR, Access to Procedures Restricted on Land, Rule of Law Concerns in Asylum System Persist, Commission Challenges Legality of the Safe Third Country Concept | European Council on Refugees and Exiles (ECRE)
[25] The Council of Europe anti-torture Committee (CPT) calls for an end to illegal pushback practices and for increased safeguards against ill-treatment – CPT (coe.int)
[26] Belarus/Poland: Abuse, Pushbacks At Border | Human Rights Watch (hrw.org)
[27] European Court of Human Rights M.H. and Others v. Croatia (Applications nos. 15670/18 and 43115/18. Available at: M.H AND OTHERS v CROATIA (coe.int)
[28] Parliamentary question | Suspension of Frontex’s activities in Hungary | E-000546/2021 | European Parliament (europa.eu)
[29] https://www.thenewhumanitarian.org/analysis/2023/01/09/EU-pushbacks-legal-asylum
[30] Frontex, the EU Pushback Agency – Lighthouse Reports
[31] https://www.unhcr.org/uk/news/news-releases/news-comment-unhcr-warns-increasing-violence-and-human-rights-violations
[32] https://www.thenewhumanitarian.org/analysis/2023/01/09/EU-pushbacks-legal-asylum
[33] 2.3. External dimension of the EU’s asylum policy | European Union Agency for Asylum (europa.eu)
[34] Global Approach to Migration and Mobility (GAMM) – European Commission (europa.eu)
[35] Regulation – 2021/947 – EN – EUR-Lex (europa.eu)
[36] Carriages preview | Legislative Train Schedule (europa.eu)
[37] Ibid
[38] EUR-Lex – 52019DC0481 – EN – EUR-Lex (europa.eu)
[39] The New Humanitarian | Inside the EU’s flawed $200 million migration deal with Sudan
[40] The Khartoum Process: EU-AU Cooperate to Combat Human Trafficking | IOM Blog
[41] The Take: Dumped in the middle of nowhere – Black migrants in North Africa | News | Al Jazeera
[42] Desert Dumps – Lighthouse Reports
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