Forum on the new EU Pact on Migration and Asylum in light of the UN GCR
Contribution by Betty Rouland, Postdoctoral researcher (MEAE) at the Institut de Recherche sur le Maghreb Contemporain
8 January 2021
Regarding the so-called ‘New’ Pact on Migration and Asylum published on 23 September 2020 by the European Commission, Tunisia is more than ever in the firing line of the European Union (EU) for the implementation of its extraterritorial migratory policies. The country, located at the Southern shore of the Mediterranean Sea and sharing a border with Libya, represents a central player for the EU with its multiplying arsenal of instruments for managing human mobility in the macro-region. This situation stands in a long line of instances of ‘cooperation’ on migration between Tunisia and the EU that started on 25 April 1976.
By an even stronger reinforcement of the security approach initiated over the last decades, the Pact places cooperation with third countries at the heart of its strategy of externalisation. It insists on control, tracking and expeditious screening for ‘return’ or relocation while making the refugee status process extremely tedious. In view of the migratory situation and the multidimensional tensions characterizing the Mediterranean Sea region, room for manoeuvre by the Tunisian government might be renegotiated. In the Pact, the focus on ‘migration partnerships’ exemplifies how Tunisian mobility facilities is conditioned by readmissions agreements, and how the label ‘partner’ proves not to be appropriate. So far, Tunisia has deployed a strategy based on a triple approach: officially resisting, cooperating on the ground and adopting a lethargic position on legal issues.
The Pact: from territorial exclusion to inclusive cooperation with third countries
Not shifting from previous paradigms, the Pact is merely an extension of a coercive approach for promoting externalised and de-territorialised policies on migration and asylum in third countries including Tunisia. The Pact makes a priority of excluding non-EU citizens from its territory while it advocates inclusive cooperation with third countries.
Classified as a country of departure (of origin and transit), Tunisia accumulates what the EU considers ‘burdens’ to be redistributed. On the one hand, Tunisia supplies the most important contingency of ‘irregularized’ migrants arriving to the Italian coasts. On the other hand, the instability in Libya positions Tunisia as an irresistible gatekeeper for the EU in regards to migrant and refugee flows. On top of that, the sensitive political transition as well as the economic gloom triggered by the uprisings have made the country one of the main providers of jihadists since 2011. In 2020, the pandemic crisis caused by Covid-19 further exacerbated multidimensional tensions favouring departures from Tunisia.
Consequently, the current context undeniably plays into the hands of the European Commission’s Migration and Asylum Pact. With a total of 11 212 Tunisians arriving to the Italian coasts since the beginning of 2020 (41.2% of the total arrivals), the tone changed over the summer between both Mediterranean countries. While this situation reminds us of similar frictions caused by the uprisings in 2011, diplomatic pressures increased and the Italian foreign minister Luigi Di Maio threatened Tunisia with cutting economic support (equivalent to €6.5million). In response, a bilateral agreement on the readmission of approximately 80 Tunisians a week in two flights was concluded between Italia and Tunisia. The civil society has been denouncing the lack of transparency of this agreement as well as the lack of accountability and the systemic violation of human rights.
The terrorist attack on the Notre Dame Basilica in the French city of Nice on 29 October 2020, committed by a Tunisian national, placed the security question back on the table. The terrorist arrived in the EU on the island of Lampedusa, one European fortress gateway for migrants. In the aftermath of this tragedy, the French Minister of the Interior Gérald Darmanin met his North African counterparts in Tunis in November 2020. His goal was to pursue cooperation against terrorism and to negotiate the expulsion of radicalized Tunisians. While neither negotiation on readmissions nor cooperation against terrorism are new diplomatic topics, the analogical picture linking irregular migrants, refugees and terrorists has effectively moved the humanitarian debate into a ‘justification of security’ narrative. During an official visit in France, the new head of the Tunisian government, Hichem Mechichi, had struck a fatal damaged declaring ‘and who says illegal migration, also says terrorism’.
A matter of form and substance
If the Tunisian government firmly affirms its sovereignty on migration issues refusing the project of ‘hotspot’ on its territory, several types of cooperation remain in substance from the 1990s including a long series of agreements. Those agreements essentially link the EU’s financial support in Tunisia to the European Union Emergency Trust Fund (EUTF for Africa), estimated at €57m to be distributed to different tasks for managing migration and asylum issues (controls, strengthening of capacity-building, fighting human and migrant traffic, etc.).
The Pact multiplies concepts or instruments for returning irregularized or undesirable people to their home countries or third countries: ‘Return Directive’, ‘effective return policy’, ‘return systems’, ‘return border procedure’, ‘return policies’ ‘return sponsorship’, ‘return programmes’, etc. In doing so, the lexicon used in the Pact clearly embodies the priorities made to exclude non-EU citizens from quicker and more effective procedures. In the Pact’s proposal, the ‘return’ for non-pre-selected people facilitated by the cooperation with third countries appears a key objective as shown by the occurrences of the term ‘return’ (-s, –ed, –ees, –ing) (98 times), ‘cooperation’ (70) or ‘third countries’ (35).
While ‘voluntary return’ is a recycled objective (the Commission’s 2018 proposal on the Return Directive), the introduction of the concept of ‘return sponsorship’ is well worth a cosmetic terminological operation. Defined in the Pact as providing support to the Member State under pressure ‘to swiftly return those who have no right to stay’ (Pact, 5), the objective in substance aims to achieve the same goal. As a complex puzzle of procedures, the ‘return sponsorship’ is an unclear incentive of ‘solidarity practice’ and ‘partners’ from third countries have not been taking into consideration.
Upstaging the ‘monkey on our back’: asylum and refugees in the context of a legal vacuum
In the Pact, the novelty is that screening procedures seek efficiency in ‘instituting a concomitance’ between the examination and the application for asylum or the return decision. The document clearly underlines the aim ‘to establish a seamless procedure at the border applicable to all non-EU citizens crossing without authorisation, comprising pre-entry screening, an asylum procedure and where applicable a swift return procedure – thereby integrating processes which are currently separate’ (Pact, 4). By making asylum and return as ‘part of a single system’ (Pact, 3), the screening upstages the refugee’s assistance and contradicts the humane approach claimed by the von der Leyen Commission. Priority is clearly on the protection of EU borders rather than on the protection of people; refugees and asylum are now a ‘subset’ of irregular migration. As a result of the relegation of this thorny ‘burden’, the Pact emphasizes that juridical status supplants human rights.
Despite the ratification of the 1951 Geneva Convention on refugees and other associated protocols, Tunisia does not offer legal protection to refugees. In 2014, impelled by the context of democratic transition, Tunisia adopted a new constitution which recognizes the right to political asylum in Article 25. This took place alongside a project of law on asylum in Tunisia. It was reworked until 2018, but since then nothing has happened. In compliance with international standards, the adoption of this law would permit expulsion or deportation (called ‘return’) to Tunisia including Tunisians but also citizens from third countries. Widely mobilized, the civil society is calling for the establishment of an effective asylum system.
To some extent, the camp of Choucha was a prelude for upstaging assistance to asylum seekers and refugees. Near the Libyan-Tunisian border post of Ras Jedir, this camp opened in 2011 and was managed by the UN Refugee Agency (UNHCR) primarily to contain flows of people fleeing the armed conflicts in Libya. In the camp, procedures of returns (organized by the International Organization for Migration), or resettlement in a third country (administered by UNHCR), coexisted. Regarding the procedures for seeking asylum, multiple irregularities have been denounced (e.g. lack to access to interpreters). With almost 18 000 individuals in the camp, it closed officially in 2013 but it was dismantled in 2017 by Tunisian authorities. Back then, people refused to leave the camp because Tunisia does not legal perspectives (asylum, residence or work permit). Since then, people have desperately been waiting for refugee status – which does not yet exist in Tunisia.
Tunisia has developed a strategy of ‘response/resistance’ and the law on asylum is not the only project pending. It is precisely the absence of a clear legal framework for asylum procedures combined with the violation of human rights that contradicts the idea one should consider Tunisia as a ‘safe country’ or among the list of ‘safe third countries’ – even though some EU countries refer to Tunisia as such. The Pact refers to ‘a greater degree of harmonization for the concepts of safe (third) country on the EU list of countries identified as such’ (Pact, 5). Tunisian NGOs and civil society organisations denounce this status quo advocating that only real measures for helping Tunisia become a safe place would permit one to consider the country hospitable.
A key innovation of the Pact is the call for solidarity among EU states preaching the notion of interstate for mutual trust. In reference to the 2009 Lisbon Treaty, EU countries must improve their cooperation in order to redistribute more equally the ‘burden’ of asylum seekers and refugees. A sustainable approach prioritizing assistance to migrants and refugees was seemingly discarded by the Pact which all the same advocates rather inclusive cooperation with third countries for containing, returning or relocating undesirable flows of migrants.
In doing so, the result (intended or not) has been international partnerships which are based on a balance of power rather than solidarity and mutual trust. The Pact mentions the importance of ‘an assessment of the interests of the EU and partner countries’ through ‘mutually beneficial partnerships’ (Pact, 13) with neighbouring countries (specifically referring to) the North African region. However, this principle of reciprocity is conditioned above all by the level of cooperation of third countries on readmissions. Even more explicitly, the Commission indicates the application of restrictive visa measures in cases of ‘substantial and practical problems’.
Initiated in 2012, a ‘Mobility Partnership’ between the EU and Tunisia was signed in 2014 with the purpose of improving the management of migratory flows. This includes, inter alia, the opening of negotiations for readmissions in exchange for a visa facilitation agreement. If this partnership agreement is not implemented, the new conditions advocated in the Pact might compromise negotiations further.
In the Tunisian context of democratization, legal progress is being driven by the mobilization of Tunisian civil society. Denouncing actively human rights violations (e.g. systemic racism), NGOs are a new key actor for politicising the conditions of migrants and refugees without status in Tunisia. In respect to the Mobility Partnership, the Tunisian civil society criticizes the fact that it has not been consulted. Legal progress can be noticed as attested by the approved law in 2016 to prevent and fight against human trafficking, Furthermore, a 2018 law sought the Elimination of All Forms of Racial Discrimination in Tunisia (even if the associated Commission has not yet been established).
Since the 2011 uprisings, Tunisia has gone through major and multifaceted transformations including important challenges in terms of migration and asylum issues. Furthermore, the migration landscape changed significantly as a consequence of flows of people fleeing not only armed conflicts in Libya but also contexts of instability and insecurity in other countries (with an overrepresentation of Syrians, Ivorian, Sudanese, Eritreans, Somalis, and Guineans in 2020).
By barricading the EU fortress with long and discouraging visa procedures, Tunisia is receiving new and varying inflows (e.g. patients seeking care in Tunisia rather than in Europe). Consequently, labor migrants from sub-Saharan Africa are attracted by new labour possibilities (domestic work, construction) or specific services (higher education, private health services). As the EU transfers restrictive policies to third countries, thereby placing them under even further pressure, the Tunisian government in turn is developing strategies for control without establishing a legal framework for labor migrants. Local, national and (trans)regional intra-African mobility contexts are being ignored, and in the end, everyone is losing.